Metropolitan Government of Nashville & Davidson County ex rel. Anderson v. Fulton

701 S.W.2d 597, 1985 Tenn. LEXIS 582
CourtTennessee Supreme Court
DecidedNovember 18, 1985
StatusPublished
Cited by8 cases

This text of 701 S.W.2d 597 (Metropolitan Government of Nashville & Davidson County ex rel. Anderson v. Fulton) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metropolitan Government of Nashville & Davidson County ex rel. Anderson v. Fulton, 701 S.W.2d 597, 1985 Tenn. LEXIS 582 (Tenn. 1985).

Opinion

OPINION

HARBISON, Justice.

This action was instituted in the Circuit Court of Davidson County, Tennessee on [598]*598August 2, 1983. It was brought by the Metropolitan Government of Nashville and Davidson’County, Tennessee on relation of Mary M. Anderson, who was not otherwise identified in the original complaint. By an amendment it was alleged and later admitted that she is a private resident and taxpayer of Nashville, Davidson County, Tennessee. No other relationship between her and the subject matter of the lawsuit appears, nor does it appear by what authority she purported to bring a civil action on behalf of the Metropolitan Government.

The complaint as amended is quite brief. It alleges that Richard Fulton was the Mayor of Metropolitan Government. By resolution of the Metropolitan Council adopted July 18, 1980 the Mayor was authorized to employ special counsel to investigate claims by Metropolitan Government for alleged illegal bid-rigging. Counsel so employed was authorized to collect for the Government all damages suffered as a result of such illegal conspiracies “by legal action or otherwise” together with all incidental costs.

The complaint alleges that appellant Fulton thereafter employed appellant Barrett as special counsel for the Metropolitan Government “on a contingency-fee basis, he to be entitled to be reimbursed out-of-pocket expense.”

Attached to the answer of the appellant Fulton is the text of the ordinance which verifies these allegations. Originally the ordinance authorized compensation to the attorney so employed if he were unsuccessful in collecting his fees from the entities involved in the illegal conspiracies. Under those circumstances his fees were to be determined by the Mayor, the Director of Law, and Director of Finance and approved by the Metropolitan Council.

The provision concerning fees, however, was deleted by amendment and instead the ordinance expressly authorized the Mayor to employ counsel “on a contingency fee” but the attorney was to be reimbursed for his actual expenses in all events.

The complaint alleges that during the next year and one-half Barrett, with the approval of Mayor Fulton, recovered through settlements from various companies a total of $1,520,000, and that he was paid fees out of these settlements amounting to. one-fourth thereof.

It was alleged in the complaint that the attorney’s fees were not approved by the Council as required by the Metropolitan Charter, and it was also alleged that the settlement agreements were not approved by the Council and therefore were not binding on the Metropolitan Government.

It was alleged that the attorney’s fees received by Barrett were excessive for the services rendered. It was also alleged that the facts concerning the actions of the defendants Barrett and Fulton had been well publicized and were generally known. The complaint stated that the Metropolitan Council had failed to take any action with regard thereto and that therefore an appeal to it to bring suit to obtain refund of the fees would be futile.

The complaint sought judgment against Fulton and Barrett individually for the amount of the fees, together with interest and punitive damages.

As previously stated, the only amendment to the complaint was a short allegation concerning the residence and citizenship of Mrs. Anderson. Her right to maintain this action for the amount of the attorney’s fees, therefore, depends entirely upon the allegations of her brief complaint.

On behalf of Mayor Fulton an answer was filed interposing as defenses failure to state a claim upon which relief could be granted and lack of standing or capacity to sue. The answer also pointed out failure of the complaint to specify the real party in interest. The answer denied all averments of wrongdoing and sought dismissal of the action.

On behalf of Barrett motions for judgment on the pleadings and for summary judgment under Rules 12 and 56, T.R.C.P., were interposed. These motions also challenged the standing of the plaintiff, charged bad faith in the bringing of the [599]*599suit, laches, and failure to demonstrate any violation of the Metropolitan Charter.

The only section of the Metropolitan Charter cited in the complaint is § 8.607, which deals with the employment of special counsel for the Metropolitan Government. This can only be done by resolution of the Council, which may authorize the Mayor to employ special attorneys. Any such special counsel is to be paid a fee for his services as determined by the Mayor, the Director of Law and the Director of Finance and approved by resolution of the Council.

As stated previously, the resolution of the Council under which Barrett was employed by Fulton expressly approved retention of counsel on a contingency fee contract. The pleadings show that this was done, and since the Council approved this arrangement, we are of the opinion that the complaint does not show a violation of the Metropolitan Charter. Nothing in the charter indicates that the Council could not authorize the employment of counsel to bring an action or to seek collection of funds for the Government on a contingency basis.

The complaint also alleges that the Council did not approve the settlement agreements made with the firms accused of illegal conspiracy. The complaint cites no provision of the Metropolitan Charter nor any ordinance requiring such approval.

While the Tennessee Rules of Civil Procedure permit brief, concise pleadings, they do have some specific requirements. Among these is Rule 8.05(1) with reference to pleading violations of statutes, ordinances or regulations. The rule provides:

“Every pleading stating a claim or defense relying upon the violation of a statute shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary to constitute such breach so that the other party can be duly apprised of the statutory violation charged. The substance of any ordinance or regulation relied upon for claim or defense shall be stated in a separate count or paragraph and the ordinance or regulation shall be clearly identified.”

Since the complaint does not cite any charter, statute, regulation or ordinance requiring approval of settlements by the Metropolitan Council, the alleged failure of the Council to approve the settlements in question adds nothing to the claim for repayment of attorney’s fees.

Since neither the Charter nor the authorizing resolution requires any further approval of contingent fees by the Council after it has expressly authorized the employment of an attorney under such a contract, the allegation that the Council did not subsequently approve the fees likewise does not demonstrate a violation of the charter or of the resolution.

Every aspect of this complaint was challenged from the outset. There was ample opportunity to amend it before the defensive motions were ruled upon, but no amendment was tendered.

The complaint was dismissed by order of the trial judge entered October 24, 1983. With the case in that posture, on November 23, 1983 counsel for plaintiff filed a motion to alter or amend the judgment, stating that a genuine issue of fact existed as to whether the payments of fees to Barrett were approved by the Metropolitan Council as required by the Charter.

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Bluebook (online)
701 S.W.2d 597, 1985 Tenn. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-government-of-nashville-davidson-county-ex-rel-anderson-v-tenn-1985.