Marshall v. Sevier County

• Decision Date: 21 May 1982
• Citation: 639 S.W.2d 440
• Parties: Peggy MARSHALL, Plaintiff-Appellant, v. SEVIER COUNTY, Tennessee, et al., Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 440

639 S.W.2d 440

Peggy MARSHALL, Plaintiff-Appellant, v. SEVIER COUNTY, Tennessee, et al., Defendants-Appellees.

Court of Appeals of Tennessee Eastern Section.

May 21, 1982.

Permission to Appeal

Denied by Supreme Court

Sept. 7, 1982.

W. Keith McCord and Sandra G. Olive, of McCord & Cockrill, P.C., Knoxville, for plaintiff-appellant.

Charlie R. Johnson, Sevierville, for defendants-appellees.

OPINION

FRANKS, Judge.

In this action, the Clerk and Master of Sevier County sued the county to recover attorney's fees and costs expended by her in the defense of her summary removal as Clerk and Master, pursuant to T.C.A., §§ 18-1-301, et seq. She was subsequently reinstated as clerk and master following an adjudication of no official misconduct.

The designated chancellor in the instant case concluded the county was not required to pay the fees and costs of her defense and dismissed the suit. On appeal, plaintiff insists she is entitled to recover her attorney's fees and incidental expenses under one of the following theories, viz., certain statutes require the county to pay or reimburse for attorney fees under these facts; the county has established a custom of paying fees of this nature incurred by other public officials and the county maintained an errors and omissions policy with an insurance company covering these fees and expenses but negligently failed to timely file a claim with the insurance company on her behalf.

On September 1, 1976, Chancellor Earl Hendry summarily and ex parte entered an order suspending Clerk and Master Marshall from office and enjoining her from coming about the office or interfering with its operation. Plaintiff immediately employed counsel and demanded a hearing on the suspension. Subsequently, the chancellor directed the district attorney general to investigate the clerk and master's administration and prosecute charges of official misconduct against her. William P. Goddard was appointed special prosecutor and, on October 14, 1976, the special prosecutor filed a petition against Clerk and Master Marshall alleging several instances of official misconduct. That case was tried before a designated judge and the plaintiff was totally vindicated on all charges of official misconduct and reinstated to her office in December, 1976. In the course of the proceeding, the clerk and master expended $9,371.00 in legal fees and expenses in defense of the suspension from office. ¹

In May, 1977, plaintiff learned Sevier County maintained an errors and omissions policy covering county officials and, on June 15, 1977, she wrote Ray L. Reagan, Sevier County Judge and Chairman of the Finance Committee, seeking reimbursement of her legal fees and expenses under the policy if she was unsuccessful in a lawsuit she had filed to recover from Chancellor Hendry and accountants hired by Hendry to investigate Ms. Marshall's office. That suit was dismissed on December 31, 1977, without any recovery upon Chancellor Hendry's agreeing to resign as chancellor. She again requested repayment from the county in September, 1978, January, 1980 and April, 1980, and filed the instant suit on April 17, 1980 to compel the county to pay her fees and expenses. On May 7, 1980, the insurance company, Midland Insurance Co., in response to a letter dated April 2, 1980, from the Sevier County Executive, advised Sevier County that the insurance company would not pay Peggy Marshall's defense costs since the county had failed to make a claim within the time required by the policy. Midland's letter states:

[I]t is apparent that the County was aware that the plaintiff [clerk and master] intended to hold the insured [Sevier County] responsible for a Wrongful Act, and that a possible claim existed. The insured did become aware of this on or about January 25, 1977. As you can see from the above stated policy condition, the insured had one year to report this matter to the Midland Insurance Company. We did not receive first report until February 29, 1980. This is well after the one year time period.

First, plaintiff argues T.C.A., §§ 8-47-121 and 8-47-122 ² establish her right to recover attorney's fees against the county. These statutes are part of what is commonly referred to as the Tennessee Ouster Law. See Edwards v. State, 194 Tenn. 64, 250 S.W.2d 19 (1952). While T.C.A., § 8-47-102 authorizes the attorney general upon his own initiative to institute proceedings against a public official, the proceedings against Clerk and Master Marshall were instituted pursuant to T.C.A., § 18-1-111. See Goddard v. Sevier Co., 623 S.W.2d 917 (Tenn.1981). The plaintiff, however, is entitled to the benefit of these provisions since the ouster law is remedial and cumulative to the general removal provisions. Broyles v. State, 207 Tenn. 571, 341 S.W.2d 724 (1960).

Plaintiff relies on the unreported decision of Sullivan v. State, by the Middle Section of this court, filed August 29, 1980, as authority for her position that "full cost" may include attorney's fees. However, the court held the litigant before it was not entitled to attorney's fees. In a concurring opinion, Judge Cantrell notes from early English law and throughout the continuing development of statutory common law in this jurisdiction the words "full cost" do not include attorney's fees. Jamieson v. Trevelyan, 10 Exch. 748, 28 Eng.Law & Eq. 535; Perkins v. Brown, 135 Tenn. 140, 185 S.W. 1073 (1916). Also see Raskind v. Raskind, 45 Tenn.App. 583, 325 S.W.2d 617 (1959).

The rationale of the cases construing T.C.A., § 20-12-101 furnishes guidance to the construction of "full cost" in T.C.A., § 8-47-121. T.C.A., § 20-12-101 provides:

The successful party in all civil actions is entitled to full costs, unless otherwise directed by law, or by a court of record, for which judgment shall be rendered. [Emphasis added.]

We have found no cases allowing the successful party attorney's fees as an element of his full costs under this code section. As stated by the Supreme Court in State v. Thomas, 585 S.W.2d 606 (Tenn.1979):

The rule is well established in this state that in the absence of contract, statute or recognized ground of equity so providing there is no right to have attorneys' fees paid by an opposing party in civil litigation. 585 S.W.2d, at 607.

Also see Dyerle v. Wright Manufacturing Company, 496 F.2d 45 (6th Cir. 1974); Carter v. Virginia Surety Co., 187 Tenn. 595, 216 S.W.2d 324 (1948); Williams v. Burg, 77 Tenn. (9 Lea) 455 (1882). While the Sullivan opinion by dicta indicates that the award of attorney's fees under § 8-47-121 is discretionary with the trial court, there is simply no basis for authorizing an award under the statute since, historically, the term "cost" has not been interpreted to include attrorney's fees nor is there any other basis to read that intent into this legislative enactment. ³

Plaintiff further argues T.C.A., § 8-20-107 ⁴ affords a basis for awarding attorney's fees; however, the chapter containing this section is inapposite to the issue before us and constitutes no authority for the allowance of plaintiff's fees.

T.C.A., §§ 8-20-101, et seq., authorize officials, including the clerk and master, to bring suits to compel the county to employ additional deputies and assistants for the proper operation of the office. § 8-20-107 provides:

The cost of all cases shall be paid out of the fees of the office collected by said officers, and they and each of them shall be allowed a credit for the same in settlement with the county trustee.

This statute has been construed as giving a judge discretion to award attorney's fees to the officer suing under the chapter. See Cunningham v. Moore County, 604 S.W.2d 866 (Tenn.App.1980); Jenkins, County Court Clerk v. Armstrong, 31 Tenn.App. 33, 211 S.W.2d 908 (1947). Under this chapter, the public officer is authorized to bring suit for matters germane to the proper operation of his office. Contrastingly, under §§ 8-47-101, et seq., the public officer sues to be reinstated to his office upon charge of misconduct or incompetence. The latter is in the nature of a quo warranto, where the officer is not entitled to recover attorney's fees because the suit is against the officer individually and not in his official capacity. The distinguishing characteristic is well stated in State v. Stine, 200 Tenn. 561, 292 S.W.2d 771 (1956), quoting American Jurisprudence:

"A proceeding in quo warranto against a public officer is for the purpose of determining whether he is entitled to hold the office and discharge its functions. It is not against the respondent officer in an official capacity for the purpose of establishing some official power, right, duty, or obligation attaching to the office or pertaining to the duties of a public official as such. Thus, the writ is directed to the person holding the office and exercising its functions rather than to the officer as such, ..." 292 S.W.2d, at 773.

Similarly, suits under the ouster law are directed to the individual holding the office rather than the office itself.

Another factor distinguishing T.C.A., § 8-47-121 from § 8-20-107 is the provision in the latter statute that the costs be paid from the fees collected by the officer in the operation of his office, while reimbursement under § 8-47-121 is from the general funds of the county. The proceedings brought pursuant to §§ 8-20-101, et seq., involve administering and conserving funds held as a public trust and T.C.A., § 8-20-107 provides for payments from such fund. These cases fall within the well recognized exception to the rule that attorney's fees are not taxable as costs except where the attorney's fees are incurred to preserve or administer a fund which is brought before the court. See e.g., Travelers Ins. Co. v. Williams, 541 S.W.2d 587 (Tenn.1976); State v. Taylor, 199 Tenn. 507, 287 S.W.2d 83 (1955); Gilpin et al. v. Burrage et al., 188 Tenn. 80, 216 S.W.2d 732 (1948); Smith v. Haire, 138 Tenn. 255, 197 S.W....