Pagliara v. Moses

• Decision Date: 14 September 2022
• Docket Number: M2020-00990-COA-R3-CV [1]
• Parties: TIMOTHY J. PAGLIARA v. MARLENE MOSES, ET AL.
• Court: Tennessee Court of Appeals

TIMOTHY J. PAGLIARA v. MARLENE MOSES, ET AL.

No. M2020-00990-COA-R3-CV ^[1]

Court of Appeals of Tennessee, Nashville

September 14, 2022

June 3, 2021 Session

Appeal from the Circuit Court for Davidson County No. 18C2241 Ross H. Hicks, Judge

This is a consolidated appeal from the trial court's attorney fee award pursuant to Tennessee Code Annotated section 20-12-119(c), which concerns awards of the costs and reasonable and necessary attorney fees to parties who prevail on a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The plaintiff filed a complaint alleging various claims against the defendants. Upon the defendants' motion, the trial court entered a judgment of dismissal on December 3, 2018. The plaintiff took a timely appeal, and we affirmed the judgment of dismissal in full. We remanded the case for collection of the costs below. After the Tennessee Supreme Court denied review, the defendants, for the first time, moved for attorney fees and expenses pursuant to Tennessee Code Annotated section 20-12-119(c) in the trial court. The trial court granted that motion and awarded the statutory maximum amount of fees to the defendants. We vacate the trial court's award of attorney fees and costs.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded

Eugene N. Bulso, Jr. and Paul J. Krog, Brentwood, Tennessee, for the appellant, Timothy J. Pagliara.

Winston S. Evans, Nashville, Tennessee, for the appellees Marlene Moses and MTR Family Law, PLLC.

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY, C.J., and THOMAS R. FRIERSON, II, J joined.

OPINION

JOHN W. McCLARTY, JUDGE I. BACKGROUND

On August 31, 2018, appellant Timothy J. Pagliara ("Plaintiff") filed a complaint in the Circuit Court for Davidson County ("trial court"), asserting various claims against attorney Marlene Moses and MTR Family Law, PLLC ("Defendants") for alleged wrongdoing related to a divorce proceeding.^[2] Defendants' malpractice insurance carrier retained an attorney to represent them in the lawsuit. On October 3, 2018, Defendants moved under Tennessee Rule of Civil Procedure 12.02(6) to dismiss all of the claims in Plaintiff's complaint for failure to state a claim upon which relief can be granted. Defendants did not request attorney fees in their motion to dismiss or in any other filing at the time. The trial court granted the Rule 12.02(6) motion, dismissed Plaintiff's complaint in its entirety, and assessed costs against Plaintiff on December 3, 2018. Because there was no claim or request for attorney fees pending at the time, the trial court's order did not address attorney fees. Plaintiff appealed to this Court. He filed the notice of appeal on December 5, 2018. Defendants neither raised any issues for our review nor requested attorney fees in the first appeal pursuant to Tennessee Code Annotated section 27-1-122.^[3]

On February 20, 2020, this Court affirmed the trial court's judgment of dismissal of Plaintiff's claims. Pagliara v. Moses, 605 S.W.3d 619, 629 (Tenn. Ct. App. 2020). The corresponding Judgment read:

It is therefore ORDERED and ADJUDGED by this Court that the judgment of the Circuit Court for Davidson County is affirmed, and this cause is remanded to the Circuit Court for Davidson County for collection of the costs below. Costs on appeal are assessed against the appellant, Timothy J. Pagliara, and his surety, if any.

Following Plaintiff's application for permission to appeal, the Tennessee Supreme Court denied review on June 4, 2020. Order, Pagliara v. Moses, et al., No. M2018-02188-SC-R11-CV (Tenn. June 4, 2020).

On June 16, 2020, Defendants filed in the trial court a motion for costs and fees pursuant to Tennessee Code Annotated section 20-12-119(c). Defendants requested the statutory maximum of $10,000.^[4] The Mandate from this Court was issued on June 19, 2020, and was filed in the trial court on June 22, 2020. The Mandate read:

Whereas, in our Court of Appeals, Middle Division at Nashville, it was adjudged and ordered in the cause of TIMOTHY J. PAGLIARA v. MARLENE MOSES ET AL. appealed to our said Court that the same be remanded thereto for further proceedings and final determination therein.

These are, therefore, to require you, the Davidson County Circuit Court as aforesaid, that you proceed with the execution of this Judgment of our said Court of Appeals by such further proceedings in your Court as shall effectuate the objects of this order to remand, and attain the ends of justice.

On June 29, 2020, Plaintiff opposed Defendants' motion for attorney fees, arguing that it was barred by the final judgment affirmed on appeal and was untimely. Plaintiff explained that Defendants did not request an award of attorney fees in their motion to dismiss filed October 3, 2018, nor did they do so at any point before the trial court's entry of final judgment on December 3, 2018. Plaintiff reasoned that this Court's judgment which remanded the case to the trial court "for collection of the costs below"^[5] neither directed nor permitted the trial court to reopen the case to hear a motion for attorney fees under section 20-12-119(c). Plaintiff also contended that the fees and costs claimed by Defendants were inaccurate. Following a hearing on July 7, 2020, the trial court granted Defendants' motion by order entered July 13, 2020. Defendants were awarded $10,000 in attorney fees and costs, subject to credit for taxable costs previously paid by Plaintiff. Plaintiff appealed.

II. ISSUES

Plaintiff raises one issue on appeal which we restate slightly:

A. Whether a request for attorney fees pursuant to Tennessee Code Annotated section 20-12-119(c) may be made for the first time following the appeal from the underlying judgment.

III. STANDARD OF REVIEW

The interpretation of Tennessee Code Annotated section 20-12-119 is a question of law. "We review questions of law, including those of statutory construction, de novo with no presumption of correctness." Snyder v. First Tennessee Bank, N.A., No. E2015-00530-COA-R3-CV, 2016 WL 423806, at *3 (Tenn. Ct. App. Feb. 3, 2016) (citing Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013); Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)). "When considering the interpretation of a statute, we must determine the General Assembly's intent and purpose by reading the words of the statutes using their plain and ordinary meaning in the context in which the words appear." Montpelier v. Moncier, No. E2018-00448-COA-R3-CV, 2019 WL 990529, at *2 (Tenn. Ct. App. Feb. 28, 2019). "When a statute's text is clear and unambiguous, the courts need not look beyond the statute itself to ascertain its meaning." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010). When construing a statute, a court tries "to give full effect to the General Assembly's purpose, stopping just short of exceeding its intended scope." Id. at 526 (citing Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 2010)). We seek to construe statutes "in a way that avoids conflict and facilitates harmonious operation of the law." Id. at 527 (citations omitted).

When the trial court awards costs, including attorney fees, pursuant to Tennessee Code Annotated section 20-12-119(c), an appellate court reviews

the trial court's factual determination of whether litigation costs, including attorney's fees, are reasonable under an abuse of discretion standard.... However, apart from these specific factual determinations, the standard of review for the award of litigation costs pursuant to Tennessee Code Annotated § 20-12-119(c) is a matter of law due to the mandatory language of the statute.

Snyder, 2016 WL 423806, at *8.

IV. DISCUSSION

A.

Here, the trial court awarded attorney fees to Defendants pursuant to Tennessee Code Annotated section 20-12-119(c), which, states in pertinent part, as follows:

(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the costs and reasonable and necessary attorney's fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties. The awarded costs and fees shall be paid by the party or parties whose claim or claims were dismissed as a result of the granted motion to dismiss.

(2) Costs shall include all reasonable and necessary litigation costs actually incurred due to the proceedings that resulted from the filing of the dismissed claims, including, but not limited to:

(A) Court costs;

(B) Attorneys' fees;

(C) Court reporter fees;

(D) Interpreter fees; and

(E) Guardian ad litem fees.

(3) An award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have been exhausted and if the final outcome is the granting of the motion to dismiss. The award of costs and attorneys' fees pursuant to this section shall be stayed until a final decision which is not subject to appeal is rendered.

(4) Notwithstanding any other provision of this section, the court shall not require a party to pay costs under this section in excess of a combined total of ten thousand dollars ($10,000) in any single lawsuit....Nothing in this section shall be construed to limit the award of costs as provided for in other sections of the code or at common law.

Tenn. Code Ann. § 20-12-119(c)(1)-(4) (emphasis added).

This Court has previously explained that ...