To Fee or Not to Fee, Part 1
“ Beware
Of entrance to a quarrel; but being in
Bear’t that the opposed may beware of thee.”
Welcome to Part 1 of our series on attorney fees on appeal.
It’s good to get paid, especially by the other side. Getting paid means electricity, internet service, running water, shoes, and gasoline. Also: sandwiches. I like sandwiches. Winning attorney fees on appeal means reimbursing and thus saving your client thousands of dollars. Which allows them to buy more electricity, internet service, running water, shoes, and sandwiches.
Often, lawyers will close their briefs by requesting an award of attorney fees without specifically designating the request in the statement of the issues. The Court of Appeals once held that failure to do so waives the request for fees on appeal. Brunetz v. Brunetz, 573 S.W.3d 173, 185-86 (Tenn. Ct. App. 2018), perm. appeal denied (Tenn. Jan. 18, 2019); see Akard v. Akard, No. E2013-00818-COA-R3CV, 2014 WL 6640294, at *9 (Tenn. Ct. App. Nov. 25, 2014), no appeal taken; Forbess v. Forbess, 370 S.W.3d 347 (Tenn. Ct. App. 2011). In the past it has been held that the appellant and the appellee must present a request for attorney fees explicitly in the statement of the issues. Id.
However, in 2024 the Supreme Court found that an appellee’s request for appellate attorney fees is not waived by a failure to include it in the statement of the issues section of the appellee’s brief. Charles v. McQueen, 693 S.W.3d 262, 283-84 (Tenn. 2024). The Court found that the appellee’s presentation of her attorney fee request, “by raising it in the body of the brief, adequately developing the argument, and specifying that relief in the brief’s conclusion,” was sufficient to preserve the issue for the appellee. Id. at 284. Therefore, unlike the requirements for the appellant, there is not an additional requirement for attorney fees on appeal to be included in the statement of the issues section for the appellee. Effective July 1, 2026, the Advisory Commission comment to Tenn. R. App. P. 27 will be amended to reflect this dichotomy.
Whether to pursue attorney fees or not should be part of your strategic thinking. Not every type of case lends itself to a reasonable claim for attorney fees.
Courts commonly grant attorney fees in divorce cases. Tennessee Code Annotated section 36-5-103(c) reads:
A prevailing party may recover reasonable attorney's fees, which may be fixed and allowed in the court's discretion, from the nonprevailing party in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.
In a contract dispute, if the contract explicitly states that the losing party must pay attorney fees, courts will likely enforce the clause. This includes the appeal.
Judges may apportion attorney fees when they find an appeal frivolous. See Tenn. Code Ann. § 27-1-122.
When drafting your briefs, ask yourself the question: to fee or not to fee? If the answer is “to fee,” make sure you get the request into your document.
