Chimneyhill Condominium Association v. Chow

CHIMNEYHILL CONDOMINIUM ASSOCIATION v. KING CHOW

No. W2020-00873-COA-R3-CV

Court of Appeals of Tennessee, Jackson

July 20, 2021

Session May 11, 2021

Appeal from the Circuit Court for Shelby County No. CT-004471-16 Rhynette N. Hurd, Judge

The defendant appealed to circuit court following a judgment against it in general sessions court. The plaintiff filed no notice of appeal, but amended its complaint to allege an additional claim. The plaintiff later filed a motion for partial summary judgment seeking an award of attorney's fees. Eventually, the defendant dismissed its appeal and asked that the general sessions court judgment be affirmed. The trial court affirmed the previous judgment from the general sessions court, but also granted the plaintiff an additional judgment for attorney's fees and discretionary costs. The defendant appeals the award of attorney's fees and discretionary costs. We reverse the trial court's decision to award the plaintiff attorney's fees, but affirm the award of discretionary costs.

Tenn R. App. P. 3 Appeal as of Right: Judgment of the Circuit Court Reversed in Part; Affirmed in Part; and Remanded

Mark J. Grai, Memphis, Tennessee, for the appellant, King Chow.

R Christopher Coleman, Bartlett, Tennessee, and Thomas F Bloom, Nashville, Tennessee, for the appellee, Chimneyhill Condominium Association.

J Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Thomas R. Frierson II, and Carma Dennis McGee, JJ., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

I. Factual and Procedural History

On May 12, 2016, Plaintiff/Appellee Chimneyhill Condominium Association ("Chimneyhill" or "the Association") filed an action against Defendant/Appellant King Chow in general sessions court for delinquent home owner's association dues, late charges, attorney's fees, and assessments. On June 15, 2016, Mr. Chow filed a counterclaim seeking a set-off and reimbursement for repairs. Eventually, on October 19, 2016, the general sessions court denied Mr. Chow's counterclaim and awarded Chimneyhill a judgment of $10, 218.25. On October 28, 2016, Mr. Chow filed a notice of appeal to the Shelby County Circuit Court ("the trial court"). Chimneyhill filed no notice of appeal.

On December 16, 2016, Mr. Chow filed an amended counterclaim in the trial court, again alleging entitlement to a set-off and repair reimbursement.^[1] On January 18, 2017, Chimneyhill answered the counter-complaint, denying that Mr. Chow was entitled to relief.

On the same day, Chimneyhill filed an amended complaint.^[2] Therein, Chimneyhill reiterated its claim that Mr. Chow failed to pay required assessments. Chimneyhill further asserted that Mr. Chow was unjustly enriched when he enjoyed the products and services provided by Chimneyhill without paying these assessments. Chimneyhill also raised for the first time that around September 1, 2015 Mr. Chow had made improper repairs to his unit in violation of the parties' contract, referred to as the Master Deed.^[3] According to Chimneyhill, they first informed Mr. Chow that his decision to reroof his property was unauthorized and asked him to correct the issue by letter dated September 15, 2015. The amended complaint also requested an award of attorney's fees pursuant to the Master Deed;^[4] Chimneyhill specifically requested damages, attorney's fees incurred in both the trial court and the general sessions court, and that Mr. Chow's property be foreclosed to pay its lien. Discovery thereafter ensued.

Chimneyhill filed a motion for summary judgment in February 2019, which the trial court denied in May 2019 because there were disputed material facts. Both parties thereafter filed motions in limine. According to a June 4, 2019 order, trial began on May 30, 2019, but "could not be concluded" and was reset for July 25, 2019.

On July 1, 2019, Chimneyhill filed a motion for partial summary judgment seeking an award of attorney's fees, citing Parker v. Brunswick Forest Homeowners Ass'n, Inc., No. W2018-01760-COA-R3-CV, 2019 WL 2482351 (Tenn. Ct. App. June 13, 2019), perm. app. denied (Tenn. Sept. 18, 2019). Chimneyhill argued therein that it was entitled to its full attorney's fees regardless of whether "said fees relate to the prosecution of its claim for unpaid assessments or defending against [Mr.] Chow's counterclaims." In support, Chimneyhill filed the affidavit of its counsel, asserting that he "billed and was paid" $28, 618.00 in attorney's fees in both the general sessions court and trial court proceedings from May 2015 to May 2019. He further asserted that Chimneyhill continued to incur attorney's fees after that date, which had not yet been invoiced.

Both the hearing on the motion for partial summary judgment and the trial were reset multiple times. At the final hearing on the motion for partial summary judgment on January 15, 2020, Mr. Chow's attorney announced that he intended to file a notice of dismissal of the appeal and presented the trial court with a notice during the hearing. The trial court heard the parties' arguments on the motion for partial summary judgment and requested additional briefing as to the effect of the dismissal and whether Mr. Chow's delay in entering it had any effect on its validity.^[5] Mr. Chow filed a formal notice of dismissal of the appeal on January 15, 2020, asking the trial court to affirm the general sessions court judgment.

Each party filed supplemental briefs to the trial court on January 29, 2020. In Chimneyhill's brief, it argued that it was entitled to both attorney's fees and discretionary costs notwithstanding the dismissal of Mr. Chow's appeal. Moreover, Chimneyhill asserted that the Master Deed's attorney fee provision did not require that it be the prevailing party in any litigation thereunder in order to recover fees, and the that the language of the Master Deed should be enforced as written. Chimneyhill also included an affidavit of its property manager/bookkeeper showing that it had incurred a total of $34, 618.00 in attorney's fees from May 23, 2015 to January 7, 2020, which included work done both in the general sessions court and the trial court. Excluding the general sessions court work reduced the fees incurred to $31, 377.00. Additionally, the bookkeeper stated that Chimneyhill incurred $3, 738.00 in discretionary costs, which included court reporter fees, subpoenas, and the bookkeeper's own time in dealing with the litigation.

Mr. Chow's memorandum argued, however, that Chimneyhill could not be awarded any amounts beyond the original general sessions court judgment, including the attorney's fees that Chimneyhill sought in its motion for partial summary judgment, because Mr. Chow dismissed his appeal. Moreover, Mr. Chow noted that Parker did not support Chimneyhill's claim to attorney's fees because, at the time the motion for partial summary judgment was filed, there was still a dispute as to which party materially breached the Master Deed, and thus there was no prevailing party.

An additional hearing occurred on February 5, 2020. On February 10, 2020, the trial court entered a written order accomplishing three tasks. First, the trial court ruled that Chimneyhill's motion for partial summary judgment as to attorney's fees was "well taken."^[6] The trial court therefore awarded Chimneyhill $35, 105.28, representing $31, 377.00 in attorney's fees incurred through January 7, 2020, and $3, 738.28 in discretionary costs. In what the trial court characterized as an action "[f]ollowing" the grant of partial summary judgment to Chimneyhill, the trial court "entered" Mr. Chow's notice of dismissal. Finally, the trial court remanded the matter back to the general sessions court for reinstatement of the judgment entered therein. Costs were taxed to Mr. Chow.

Mr. Chow thereafter filed a motion to alter or amend, arguing that the trial court mischaracterized its notice as a nonsuit rather than a dismissal of an appeal, and further mischaracterized the timing of the dismissal as occurring after the grant of partial summary judgment to Chimneyhill. The trial court eventually entered a final amended order on May 29, 2020, clarifying its prior order. Therein, the trial court explained the sequence of events that occurred with regard to the notice of dismissal and stated that Chimneyhill's motion for partial summary judgment was granted based on the Master Deed and "pertinent case law." The total amount of attorney's fees and discretionary costs increased in the amended order to $40, 268.28: $36, 540.00 in attorney's fees and $3, 728.28 in discretionary costs. Again, the trial court noted that "[f]ollowing" the grant of Chimneyhill's motion for partial summary judgment, the trial court

then immediately thereupon dismisses the appeal of [Mr.] Chow based on [his] Notice of Dismissal of Appeal filed pursuant to the applicable 2016 version of [Tennessee Code Annotated section 27-8-105] and this matter is remanded to General Session[s] with instructions to reinstate the judgment of Ten Thousand Two Hundred Eighteen Dollars ($10, 218.00)^[7] previously entered for Chimneyhill against [Mr.] Chow.

The trial court finally declared its order final and appealable under Rule 54.02 of the Tennessee Rules of Civil Procedure (discussed in detail, infra). Mr. Chow thereafter timely appealed to this Court. On August 24, 2020, the trial court entered an order staying execution on the judgment pending appeal secured by a $65, 000.00 bond.

II. Issues Presented

Mr. Chow raises the following issues in this appeal, which are taken from his appellate brief:

1. Whether the trial court erred in not immediately dismissing this case and affirming the judgment of the general sessions court at such time when Mr. Chow entered a notice of dismissal

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