Clarification Offered on Attorney's Fees Awarded under Tenn. Code Ann. sec. 20-12-119(c) upon the Granting of a Motion to Dismiss under Tenn. R. Civ. P. 12.02(6)

The Tennessee Court of Appeals has issued its opinion in Thomson v. Genesis Diamonds, LLC, No. M2021-00634-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12- 119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/michael.thomson.opn_.pdf.

NOTE: This opinion offers insight into attorney's fees under sec. 20-12-119(a), discretionary costs,  and appellate practice. It is of significance as to the first matter and instructs the bench and the bar that fees under -119(c) are only for the work done on the claims dismissed, to wit:

We hold that the limited scope of Tenn. Code Ann. § 20-12-119(c) allows an award of attorney’s fees only for the tasks performed regarding the claims that were actually dismissed by the Trial Court for failure to state a claim upon which relief can be granted. Therefore, we vacate the Trial Court’s award of attorney’s fees and remand to the Trial Court for recalculation of the attorney’s fee award in this case in compliance with our Supreme Court’s opinion in Donovan and this opinion. During remand, the Trial Court should consider the factors in Tenn. Sup. Ct. R. 8, Rule of Professional Conduct 1.5(a) when determining whether the award of attorney’s fees is reasonable and necessary. See Donovan, 2022 WL 2301177, at *6 n.13 (“Rule of Professional Conduct 1.5 sets forth the ‘correct legal standard’ when assessing the reasonableness of a cost and fee request.”). Further, in compliance with Donovan, the Trial Court on remand should consider Defendant’s request for attorney’s fees incurred prior to the amended complaint only to the extent that the claim or claims were pled by Plaintiff prior to the amended complaint and defense counsel’s fees prior to the amended complaint involved those specific claims that were dismissed pursuant to Tenn. R. Civ. P. 12.02(6).

Thomas, supra, at 12.