Nagarajan v. Terry

• Decision Date: 30 December 2003
• Docket Number: No. M2001-01480-COA-R3-CV,M2001-01480-COA-R3-CV
• Parties: Govindaswamy NAGARAJAN v. Michael E. TERRY.
• Court: Tennessee Court of Appeals

151 S.W.3d 166

Govindaswamy NAGARAJAN v. Michael E. TERRY.

No. M2001-01480-COA-R3-CV

Court of Appeals of Tennessee, at Nashville.

Assigned on Briefs July 23, 2003.

December 30, 2003.

Permission to Appeal Denied by Supreme Court May 24, 2004.

Richard J. Braun and Patricia E. Crotwell, Nashville, Tennessee, for the appellant, Govindaswamy Nagarajan.

Stephanie H. Gore, Nashville, Tennessee, for the appellee, Michael E. Terry.

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM B. CAIN, J., joined.

OPINION

This appeal involves a dispute between a lawyer and his former client regarding unpaid fees. After the client sued the lawyer for malpractice in the Circuit Court for Davidson County, the lawyer counterclaimed for unpaid fees. The trial court granted the lawyer's summary judgment motion and dismissed the malpractice claims. Thereafter, the trial court conducted a bench trial on the lawyer's counterclaim and awarded the lawyer a $53,884.86 judgment. The former client asserts on this appeal that the trial court erred by denying his request for a continuance, granting a judgment by default on the question of liability, denying his request for a jury trial, and considering expert evidence regarding the reasonableness of the lawyer's fee without affording him the opportunity for cross-examination. We affirm the judgment.

I.

Govindaswamy Nagarajan was terminated as an associate professor of physics at Tennessee State University ("TSU") in the fall of 1989. He retained David E. Mead and, on January 24, 1990, filed a Title VII action in the United States District Court for the Middle District of Tennessee against the president of TSU and others seeking reinstatement, tenure, and monetary damages. Approximately three months later, he filed a second complaint seeking essentially the same relief in the Chancery Court for Davidson County.

At some point after these lawsuits were filed, Dr. Nagarajan, who is apparently quite a demanding client, fired Mr. Mead and retained Walter T. Searcy, III to represent him in the federal Title VII proceeding. In May 1992, the chancery court notified Mr. Mead, who was still Dr. Nagarajan's lawyer of record, that Dr. Nagarajan's complaint would be dismissed for failure to prosecute unless some action was taken. Mr. Mead informed Dr. Nagarajan of this development. He also reminded Dr. Nagarajan that he had filed this complaint as a tactic to preserve remedies and recommended filing a voluntary nonsuit in the case. The notice of voluntary dismissal was filed on June 16, 1992, and an order of dismissal was entered in the chancery court on June 17, 1992. At the same time, Mr. Mead took steps to formally withdraw as Dr. Nagarajan's lawyer in the chancery court.

Mr. Searcy later withdrew from representing Dr. Nagarajan and was replaced by Thomas K. Bowers in August 1992. Mr. Bowers eventually withdrew, and in November 1993, Dr. Nagarajan retained Michael E. Terry to represent him in the pending Title VII action that was set for trial in March 1994. Mr. Terry agreed to represent Dr. Nagarajan and requested a $10,000 retainer to be paid in installments. Dr. Nagarajan also informed Mr. Terry that he had another suit pending in the chancery court. After Mr. Terry ascertained that the chancery court suit had been dismissed on June 17, 1992, Dr. Nagarajan insisted that it should be placed back on the docket despite Mr. Terry's advice that his remedies in the federal proceeding were adequate.

The trial in the United States District Court was later continued. On August 8, 1994, Mr. Terry, at Dr. Nagarajan's insistence, requested the chancery court to restore Dr. Nagarajan's complaint to the docket and to set a trial date. Thereafter, Mr. Terry tried Dr. Nagarajan's Title VII claim in the United States District Court for several weeks, and the District Court took the case under advisement. At a hearing on September 9, 1994, the chancery court granted the motion to reinstate Dr. Nagarajan's state case to the docket and directed the parties to contact the calendar clerk to set a trial date.¹

The parties in the chancery court suit took no action to advance the case because they were awaiting the outcome of the August 1994 trial in the United States District Court. On June 5, 1997, the District Court filed an order and memorandum concluding that TSU had discriminated against Dr. Nagarajan in violation of Title VII and that Dr. Nagarajan was entitled to reinstatement as a non-tenured professor and back pay. The court directed the parties to submit their "accounting" of damages for the court's consideration.

On June 13, 1997, approximately one week after the District Court filed its order and memorandum, Mr. Terry received an order dismissing the pending chancery court case for failure to prosecute.² When Mr. Terry and Dr. Nagarajan met on June 16, 1997, Mr. Terry informed him that the chancery court case had again been dismissed and advised him that the suit was no longer necessary because he would obtain sufficient relief in the federal proceeding in light of the District Court's June 5, 1997 memorandum. Nonetheless, Dr. Nagarajan insisted that another effort should be made to reinstate his state lawsuit. Mr. Terry thereafter filed a motion to set aside the chancery court's May 12, 1997 order of dismissal.³ On December 24, 1997, the District Court entered an order awarding Dr. Nagarajan (1) $356,310.22 in back pay plus interest, (2) $61,037.35 in back Social Security contributions, (3) $33,053.00 in back health insurance contributions, (4) $49,818.53 in back retirement contributions, (5) $10,800.00 in back longevity pay, and (6) 540 hours of sick leave. In addition, the District Court directed Dr. Nagarajan to submit his application for the payment of attorney's fees.

TSU appealed the District Court's decision to the United States Court of Appeals for the Sixth Circuit. After the Court of Appeals referred the case to its mandatory settlement process, the State and Dr. Nagarajan engaged in lengthy settlement negotiations. Eventually, the State offered to withdraw its appeal if Dr. Nagarajan would accept its offer to pay $525,000 in damages. On June 2, 1998, Mr. Terry recommended that Dr. Nagarajan accept this offer. Dr. Nagarajan responded on June 5, 1998 instructing Mr. Terry to decline the State's offer because he believed that he might somehow get a better result on appeal even though he had not appealed the District Court's decision. On June 8, 1998, Mr. Terry advised Dr. Nagarajan that his instructions were unreasonable and requested an opportunity to "discuss the future of [his] representation." On June 15, 1998, Dr. Nagarajan delivered a letter to Mr. Terry's office terminating his employment. In August 1998, Dr. Nagarajan hired Richard H. Batson II to represent him in the pending federal appeal and also directed him to undertake to reinstate the state complaint that had been dismissed by the chancery court on May 5, 1997.

On July 19, 1999, the United States Court of Appeals affirmed the District Court's judgment for Dr. Nagarajan. On March 20, 2000, the District Court awarded Dr. Nagarajan $167,460.00 in attorneys fees relating to his Title VII case. In April 2000, following negotiations among the five lawyers who had represented Dr. Nagarajan in the federal proceedings, Mr. Terry received $83,000.00 for his work in the case. Two months later, he received an additional $15,742.49.

On April 27, 2000, Dr. Nagarajan filed a pro se malpractice complaint against Mr. Terry in the Circuit Court for Davidson County seeking $500,000.00 in damages for his failure to reinstate his chancery court complaint against TSU and others. Mr. Terry responded by denying the malpractice claim and by counterclaiming for unpaid attorney's fees. In March 2001, Mr. Terry filed a motion for summary judgment seeking dismissal of Dr. Nagarajan's malpractice claim on the ground that it was not timely filed. The trial court granted the summary judgment in May 2001 and suggested that the parties either mediate the remaining fee dispute or submit it to the Nashville Bar Association's fee dispute committee.

When attempts to resolve the fee dispute proved fruitless, Mr. Terry requested the trial court to set the case on the non-jury docket. After receiving a September 2001 trial date, Dr. Nagarajan retained James G. Stranch, III to represent him. The trial was thereafter postponed for another attempt at mediation. After this attempt failed, the trial was set for September 2002. The trial was again postponed until December 9, 2002. On the day of trial, the court learned that Dr. Nagarajan had sued one of Mr. Stranch's employees and, therefore, that Mr. Stranch could no longer represent Dr. Nagarajan. Rather than proceeding to trial without a lawyer, Dr. Nagarajan agreed that the trial would be continued until February 10, 2003, and that he would inform the trial court on or before January 17, 2003 either that he had retained a new lawyer to represent him or that he would be proceeding pro se at the February 10, 2003 trial.

On February 7, 2003, Dr. Nagarajan filed a motion for a continuance informing the trial court that he had found a lawyer, Richard J. Braun, who would represent him but only if the trial was again continued.⁴ Dr. Nagarajan appeared without a lawyer on February 10, 2003. The trial court denied Dr. Nagarajan's motion for a fourth continuance and granted Mr. Terry a default judgment on the issue of Dr. Nagarajan's liability for additional attorney's fees. The trial court also set a hearing for February 19, 2003 on the issue of damages. Dr. Nagarajan's lawyer sought unsuccessfully to reschedule the February 19, 2003 hearing. Following a bench trial on February 19, 2003, during which Dr. Nagarajan declined to offer any proof regarding Mr. Terry's claim for attorney's fees, the trial court entered an order on February 27, 2003, awarding Mr....