When plaintiffs nonsuit (meaning voluntarily dismiss) their own claims, defendants are “prevailing parties” under statutory and contractual fee-shifting provisions, the Tennessee Supreme Court has held.  The precedent-setting victory for Horwitz Law, PLLC client Vanessa Turner will affect thousands of cases in Tennessee each year in which defendants have statutory or contractual claims to attorney’s fees when they “prevail” in litigation.

The case involved post-judgment litigation between divorced spouses.  The Parties were previously divorced by judicial decree.  The terms of their divorce were governed by a marital dissolution agreement that required John Colley to pay alimony to his ex-wife, Ms. Vanessa Turner.  The Parties’ marital dissolution agreement also provided that: “In the event it becomes reasonably necessary for either party to institute or defend legal proceedings related to the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in connection with such proceedings.”

Mr. Colley later filed post-judgment litigation seeking to terminate his alimony obligation to Ms. Turner prematurely.  On the eve of trial, though, Mr. Colley filed a notice of nonsuit and voluntarily dismissed his claim.  The dismissal prompted further litigation over whether Ms. Turner could recover the attorney’s fees that she incurred in defending against Mr. Colley’s post-judgment claims under either the fee-shifting provision of the Parties’ marital dissolution agreement or under Tennessee Code Annotated section 36-5-103(c).

All five members of the Tennessee Supreme Court agreed that the answer was yes, albeit based on different reasoning.  According to the three-Justice majority opinion (authored by Chief Justice Holly Kirby), Ms. Turner “sought to preserve the status quo, and whether she wins on the merits or by voluntary dismissal, both are wins for the status quo.”  Central to this reasoning was the majority’s “agree[ment]” that, when a lawsuit “ends with a judgment that dismisses a plaintiff’s claims and affords him no relief, it makes little sense to conclude that the defendant did not ‘prevail[.]’”
Justices Sarah Campbell and Jeffrey Bivins concurred.  “Ms. Turner’s status as a prevailing party here necessarily depends on the earlier judicial alteration of the parties’ legal relationship,” Justice Campbell’s concurring opinion states.  “Although [Ms. Turner] succeeded in this post-judgment litigation when Mr. Colley voluntarily dismissed his petition, she is a ‘prevailing party’ within the meaning of the agreement and the statute only because her success here was necessary to keep intact the earlier court-sanctioned relief.”

The Court’s decision will have significant consequences on litigation behavior across Tennessee.  Most prominently: It will make bogus litigation less likely under circumstances when a defendant may obtain attorney’s fees for prevailing, and it will enable those who are victimized by bogus litigation to be made whole.

“This is a major victory for Ms. Turner and anyone else who is victimized by groundless litigation, especially after divorcing,” said Horwitz Law, PLLC principal Daniel A. Horwitz, Ms. Turner’s lead counsel.  “This decision also will benefit a huge number of people, most prominently the many women who have abusive ex-husbands who torment them with recurring litigation abuse.”

Ms. Turner was successfully represented by Horwitz Law, PLLC attorneys Lindsay Smith, and Melissa Dix.  Briefing from the case is linked below:

– Appellant’s Rule 11 Application

– Principal Brief of Appellant Vanessa Turner

– Appellee’s Response Brief

– Reply Brief of Appellant Vanessa Turner

– Brief of the State of Tennessee

– Appellant’s Response to Brief of the State of Tennessee

Read the Tennessee Supreme Court’s majority opinion in Colley v. Colley here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2021-00731-SC-R11-CV.pdf

Justice Campbell’s concurring opinion is available here: https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20-%20M2021-00731-SC-R11-CV.pdf

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As part of Horwitz Law, PLLC’s appellate practice, Horwitz Law has successfully represented appellate clients in high-stakes, high-profile appeals before the United States Court of Appeals for the Sixth Circuit, the Tennessee Supreme Court, the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel, and in administrative agency appeals to Davidson County Chancery Court.  Horwitz Law also provides amicus curiae representation in both state and federal appellate courts.  If you are seeking appellate representation, you can purchase a consultation from Horwitz Law here.