E. RILEY ANDERSON, SP. J.
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The Employee alleged that she was injured in the course and scope of her employment with Employer
Amy McGhee, the "Employee" alleged that she suffered injury by accident or occupational disease due to exposure to latex products while working for Tots and Teens Pediatrics, PLLC "Employer" in December 2005. The Employee retained the law firm of "(PryorParrott)" in December 2005 to represent her in her workers' compensation claim against Employer and its insurer. PryorParrott filed a claim for benefits to the Tennessee Department of Labor, but after a Benefit Review Conference, benefits were denied. PryorParrott then filed suit on Employee's behalf in the Chancery Court of Campbell County in January 2007. After PryorParrott worked on the case for over three years, a disagreement occurred between it and Employee regarding Employee's failure to attend several independent medical evaluations ("I.M.E.") requested by Employer. PryorParrott moved for leave to withdraw as counsel, and for a lien for expenses and attorney's fees, in March 2009. The Chancery Court granted PryorParrott's motion, including a lien for expenses in the amount of $1,146.38 and a lien for attorney's fees in the amount of 10% of any benefits recovered by Employee.
The Employee thereafter retained attorney David Dunaway to represent her. Dunaway advised PryorParrott that he would resist the award of any attorney's fees to them because of their withdrawal and abandonment of their client. Dunaway pursued the case on Employee's behalf and ultimately settled her workers' compensation claim for a lump sum payment of $100,000. On December 8, 2010, the case was set in Chancery Court for settlement approval. Dunaway, on Employee's behalf, voluntarily dismissed her Chancery Court case and on the same day, filed a joint petition for approval of the settlement in the Circuit Court of Campbell County. The Circuit Court, Judge John McAfee, entered a final decree approving a lump sum payment to Employee in the amount of $100,000 on December 8, 2010. The Circuit Court also granted an attorney's lien in an amount equal to 20% of the judgment, or $20,000, and ordered Dunaway to hold that amount in trust pending final resolution of any claim for attorney's fees or expenses which might be claimed by Employee's prior counsel, PryorParrott.
On December 21, 2010, PryorParrott, in its capacity as lien holder, moved the Chancery Court to set aside its December 8, 2010 order of voluntary dismissal pursuant to Tennessee Rule of Civil Procedure 60.02(2). The Employee, through her counsel, opposed this motion. Kathy Parrott contended that she attended Chancery Court on December 8, 2010, to resolve the attorney's fee issue, but when she arrived, Dunaway was not there. She had no notice that Dunaway had already dismissed the Chancery Court case and had immediately gone upstairs and petitioned the Circuit Court for approval of the settlement. Dunaway contended his reason for going to the Circuit Court was that the Clerk and Master had advised him that the Chancery Court was not hearing contested matters on that day. However, the settlement hearing in the Circuit Court was not contested. By order entered January 4, 2011, the Chancery Court set aside the prior voluntary dismissal "due to issues pending to be resolved," namely, PryorParrott's lien for fees and expenses. Employee and Employer thereafter filed motions to alter or amend or to rescind the Chancery Court's order setting aside the prior voluntary dismissal.
On September 14, 2011, the Chancery Court held a hearing to determine the issues of jurisdiction, the attorney's lien of PryorParrott, and the division of attorneys' fees. Attorney Kathy Parrott of PryorParrott filed an affidavit in support of the attorney's fees, with an attached detail of time and expenses.
The Chancery Court entered a hand written order dated September 14, 2011, which provided as follows:
The Chancery Court entered an additional order dated September 22, 2011, regarding the September 14th hearing. It provided that
Further, according to this order, before the hearing, the parties stipulated and the Chancery Court found from the bench, that the terms of the original settlement approved by the Circuit Court were undisputed and resolved. According to the order, "[d]uring argument, the parties further stipulated and submitted to the judicial jurisdiction of the Chancery Court to determine disputes related to the Attorney's Lien and the division of attorney's fees, if any." The entry of this order was approved and the order was signed by both Kathy Parrott
In the order, the Chancery Court approved a total fee of 20% or $20,000. The Chancery Court further determined that PryorParrott was entitled to a fee of 10% or $10,000, plus expenses in the amount of $1,146.38, in full and final satisfaction of its lien. Finally, the Chancery Court ordered Dunaway to satisfy PryorParrott's lien from the settlement funds which he was holding in trust, with the remainder to be released to Dunaway for payment of his services and expenses.
On October 25, 2011, PryorParrott filed a motion in Chancery Court to require the attorney's fees being held in trust by David Dunaway to be paid into the registry of the Clerk and Master during the pendency of the Supreme Court appeal by Dunaway. PryorParrott argued that Dunaway had filed an appeal bond only for costs and had not filed an appeal bond for the attorney's fees lien and that he had provided no security. In addition, PryorParrott alleged that David Dunaway's previous bankruptcy made him a questionable surety. Accordingly, PryorParrott asserted that the appeal had not been properly perfected.
David Dunaway responded through his attorney Johnny Dunaway that the Chancery Court had no jurisdiction since the case was on appeal, and even if the Chancery Court had jurisdiction, it could not give relief because PryorParrott was not a party to the litigation and had only an attorney's lien and not a judgment, which would require the filing of a separate law suit seeking to enforce the lien.
PryorParrott responded that David Dunaway had not satisfied the attorney's lien as required by the Chancery Court's order, nor had he stayed the order on appeal by executing a proper appeal bond.
After hearing the above arguments, the court announced its decision on November 7, 2011.
The standard of review of questions of fact in a workers' compensation appeal is de novo upon the record, with a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2);
As noted, although this appeal is brought by Employee, it relates solely to the division of fees between Employee's former and current counsel.
Dunaway first contends that the Chancery Court was without jurisdiction to determine the division of fees in this case. According to Dunaway, Employee exercised her absolute right to voluntarily dismiss her case in the Chancery Court and to re-file it in the Circuit Court. Further, according to Dunaway, the Chancery Court acted improperly in setting aside the voluntary dismissal. Dunaway, therefore, contends it was only the Circuit Court which had the jurisdiction to determine the fee issue.
We need not address this issue, however, as Dunaway expressly waived it. As reflected in the Chancery Court's September 22, 2010 order, which Dunaway approved and signed, the parties "stipulated and submitted to the judicial jurisdiction of the Chancery Court to determine disputes related to the Attorney's Lien and the division of attorney's fees, if any." Accordingly, Dunaway has no grounds to complain about the Chancery Court's exercise of jurisdiction over the division of fees in this case.
Dunaway contends that the Chancery Court erred in its division of fees between him and PryorParrott. He asserts that PryorParrott is not entitled to a fee because it abandoned its client and withdrew from the case. PryorParrott responds that it withdrew because its client refused to attend required independent medical examinations. In addition, Dunaway contends the division of fees was not proportionate to the services performed and the responsibility assumed by each counsel. Dunaway takes issue with the value of the services provided by PryorParrott between December 2005 and March 2009. In his brief, he attacks in vitriolic terms the performance of PryorParrott, and details his own superior performance. What Dunaway does not do is point to any specific item from the time records submitted by PryorParrott and show that work performed was unnecessary or unreasonable. Those records show a total of 64 and one-half hours which demonstrate significant work by PryorParrott on behalf of Employee over a period of several years. Dunaway filed an affidavit listing a total of 30 hours spent on the case.
Attorney's fees in a workers' compensation case are subject to review and approval by the court. Tenn. Code Ann. § 50-6-226(a)(1). The court may decline to approve a fee that does not appear to be reasonable, even if it falls within the statutory 20% cap.
The judgment of the trial court is affirmed. The cause is remanded to the chancery court to consider an award of interest to PryorParrott. Costs of this appeal are taxed to Amy McGhee and her surety, David Dunaway, for which execution may issue if necessary.
PER CURIAM.
This case is before the Court upon the motion for review filed by Amy McGhee pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(A)(ii), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law.
It appears to the Court that the motion for review is not well-taken and is therefore denied. The Panel's findings of fact and conclusions of law, which are incorporated by reference, are adopted and affirmed. The decision of the Panel is made the judgment of the Court.
Costs are assessed to Amy McGhee and her surety, David Dunaway, for which execution may issue if necessary.
It is so ORDERED.
GARY R. WADE, CJ., NOT PARTICIPATING
