                                                                                          06/02/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 April 25, 2017 Session

        MITCH GOREE, ET AL. v. UNITED PARCEL SERVICE INC.

                   Appeal from the Circuit Court for Shelby County
                       No. CT-003102-11 Jerry Stokes, Judge
                      ___________________________________

                           No. W2016-01197-COA-R3-CV
                       ___________________________________


This is the second appeal of this employment discrimination case involving two
plaintiffs. In the first appeal, Goree v. United Parcel Service, 490 S.W.3d 413 (Tenn. Ct.
App. 2015), perm. app. denied (Tenn. March 23, 2016), this Court reversed the judgment
as to one plaintiff and affirmed the judgment as to the other plaintiff, the Appellant in the
instant case. On remand, the trial court determined that the specific attorney’s fees
chargeable to each plaintiff could not be determined and reduced the previous award of
attorney’s fees and costs by 50%. Appellant appeals. Discerning no error, we affirm and
remand.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and ARNOLD B. GOLDIN, JJ., joined.

Eric H. Espey, Germantown, Tennessee, for the appellant, Mitch Goree.

Marcus M. Crider and Aron Z. Karabel, Nashville, Tennessee, for the appellee, United
Parcel Service, Inc.


                                        OPINION

                                      I. Background

      This is the second appeal of this employment discrimination case. The
background facts and procedural history are set out in our first opinion, Goree v. United
Parcel Service, 490 S.W.3d 413 (Tenn. Ct. App. 2015), perm. app. denied (Tenn. March
23, 2016) (“Goree I”), and we will not extend the length of this opinion to restate them
here. Suffice to say that Messrs. Mitch Goree (“Appellant”) and James Wherry filed suit
against Appellee United Parcel Service (“UPS”), claiming racial discrimination and
unlawful retaliation in violation of the Tennessee Human Rights Act. Following a jury
trial, Mr. Goree received a verdict of $2,600,000 ($600,000 in back pay and benefits and
$2,000,000 in compensatory damages). Mr. Wherry was awarded $2,042,000.00
($1,042,000 in back pay and $1,000,000 in compensatory damages). Messrs. Goree and
Wherry filed a motion for attorney’s fees and costs; UPS opposed the motion. The trial
court granted the full amount of attorney’s fees that Messrs. Goree and Wherry sought,
i.e., $263,322.50 in fees and $11,497.11 in costs.

       In Goree I, this Court reversed the trial court’s remittitur of Mr. Goree’s award for
back pay and benefits of $600,000 and upheld the trial court’s remittitur of Mr. Goree’s
compensatory damages in the amount of $1,100,000. As is important to the instant
appeal, in Goree I, this Court reversed the verdict in favor of Mr. Wherry on the ground
that Mr. Wherry had failed to meet his burden of proof on his claims for racial
discrimination and retaliation.

On remand from Goree I, the trial court addressed several motions. As is relevant to the
this appeal, UPS filed a motion to amend or modify the order on attorney’s fees and
costs. By its motion, UPS sought a reduction of the award of attorney’s fees and costs by
50% based on the fact that this Court reversed Mr. Wherry’s judgment in Goree I. By
order of May 9, 2016, the trial court granted UPS’s motion, reducing the total attorney’s
fees from $263,322.50 to $131,661.25 and the total costs award from $12,352.67 to
$6,176.33. The trial court’s order states, in relevant part:

       The Court grants UPS’s request to reduce Plaintiffs’ attorneys’ fees and
       discretionary costs by 50% because UPS was the prevailing party on James
       Wherry’s claims. Further, UPS argued that it was impossible to segregate
       the fees and costs and the Court agrees. Therefore, Plaintiffs’ counsels’
       total fee award shall be reduced from $263,322.50 to $131,661.25 and total
       cost award shall be reduced from $12,352.67 to $6,176.33.

Mr. Goree appeals.

                                          II. Issue

       In his appellate brief, Mr. Goree states the issue as follows:

       Whether the trial court abused its discretion by reducing the fees and costs
       awarded to Mr. Goree by 50% based on the number of prevailing parties as
       opposed to the actual work performed in obtaining a judgment for Mr.
       Goree after finding that it “was impossible to segregate the fees and costs”
                                           -2-
       between parties:
       a.     Goree is entitled to recover the full attorney fees and discretionary
       costs awarded by the trial court on June 27, 2014, because the claims
       asserted by Goree and Wherry arose from an inextricably intertwined
       common core of facts.
       b.     Even if the claims of Goree and Wherry are not based on an
       inextricably intertwined common core of facts, the trial court abused its
       discretion by not making any findings or conducting any analysis of
       attorney fees and costs attributable solely to Goree’s claim.
       c.     Goree is entitled to attorney fees and costs for work performed in
       this appeal.

                                 III. Standard of Review

       The award of attorney fees is within the trial court’s discretion and will not be
overturned absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d
166, 176 (Tenn. 2011). In reviewing the award, we look at the evidence in the light most
favorable to the trial court's decision. Id. Thus, we are required to uphold the trial court’s
ruling “as long as reasonable minds could disagree about its correctness,” and “we are not
permitted to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250
S.W.3d 865, 869 (Tenn. Ct. App. 2007).

                                        IV. Analysis

      Mr. Goree first argues that the trial court erred in reducing his attorney fees by
50% when his claims and Mr. Wherry’s claims “involve an inextricable intertwined
common core of facts.” In support of his argument, Mr. Goree cites the 6th Circuit Court
of Appeals’ decision in Imwalle v. Reliance Medical Prods., Inc., 515 F.3d 531 (6th Cir.
2008). The Imwalle Court held:

               We have “repeatedly rejected mechanical reductions in fees based on
       the number of issues on which a plaintiff has prevailed.” Deja Vu of
       Nashville v. Metro. Gov’t of Nashville and Davidson County, 421 F.3d
       417, 423 (6th Cir.2005). “Litigants in good faith may raise alternative legal
       grounds for a desired outcome, and the court’s rejection of or failure to
       reach certain grounds is not a sufficient reason for reducing the fee. The
       result is what matters.” DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 672
       (6th Cir.2006) (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933 (footnote
       omitted)).
                “When claims are based on a common core of facts or are based on
       related legal theories, for the purpose of calculating attorneys fees they
       should not be treated as distinct claims, and the cost of litigating the related
       claims should not be reduced.” Thurman v. Yellow Freight Sys., 90 F.3d
                                             -3-
       1160, 1169 (6th Cir.1996). The Supreme Court explained in Hensley that

              [m]any civil rights cases will present only a single claim. In
              other cases the plaintiff's claims for relief will involve a
              common core of facts or will be based on related legal
              theories. Much of counsel's time will be devoted generally to
              the litigation as a whole, making it difficult to divide the
              hours expended on a claim-by-claim basis. Such a lawsuit
              cannot be viewed as a series of discrete claims. Instead the
              district court should focus on the significance of the overall
              relief obtained by the plaintiff in relation to the hours
              reasonably expended on the litigation.

               Hensley, 461 U.S. at 435, 103 S.Ct. 1933.
               In DiLaura, we explained that, “[b]y focusing on the fact that most
       of plaintiffs’ claims failed, the district court does what Hensley specifically
       forbids: it analyzes a series of related legal claims based on a common core
       of facts, and determines the amount of fees, not based on the plaintiffs’
       overall success, but based on the success or failure of the individual
       claims.” 471 F.3d at 673. This court has in fact held that discrimination and
       retaliation claims are related for the purpose of awarding attorney fees.
       Lilley v. BTM Corp., 958 F.2d 746, 756 (6th Cir.1992) (holding that the
       district court could not properly reduce the attorney-fee award for time
       spent on the plaintiff's unsuccessful age-discrimination claim because it
       was related to the plaintiff's successful retaliation claim (citing Hensley,
       461 U.S. at 437, 103 S. Ct. 1933)).
               Common facts are at the heart of all of Imwalle’s claims, both
       successful and unsuccessful, as noted by the district court. Most
       importantly, there is a significant overlap in the legal theories underlying
       Imwalle’s claims of discrimination and retaliation—all of which were
       decided by a jury following a trial on the merits. See Jordan v. City of
       Cleveland, 464 F.3d 584, 603 (6th Cir.2006) (holding that, where there is
       “an obvious and significant legal overlap” between claims, full recovery for
       counsel’s services is appropriate under Hensley ).

Imwalle, 515 F.3d at 554-55. The Imwalle case is distinguishable from the instant
appeal. Unlike the case at bar, which involves two plaintiffs, the Imwalle case involved
one plaintiff with two claims. The Imwalle Court cautioned against basing the amount a
plaintiff may recover for his or her attorney’s fees on the success or failure of individual
claims, which are related by a common core of facts. Id. Here, the trial court’s reduction
of attorney’s fees was not based on the claims that Mr. Goree prevailed on, but rather on
the fact that Mr. Wherry’s judgment was reversed. Accordingly, the Imwalle holding is
not dispositive of the issue presented in this appeal.
                                             -4-
       Mr. Goree also argues that the trial court “abused its discretion by not making
findings or conducting any analysis of attorney fees and costs attributable solely to
Goree’s claim.” In support of his argument, Mr. Goree cites this Court’s opinion in
Crescent Sock Co. v. Yoe, No. E2015-00948-COA-R3-CV, 2016 WL 3619358 (Tenn. Ct.
App. May 25, 2016). In Crescent Sock, the plaintiff filed a declaratory judgment action,
seeking a determination that two contracts were invalid and unenforceable. The contracts
at issue were an employment contract between Robert Yoe and Crescent Sock and an
agreement between Crescent Sock and Yoe Enterprises, a company wholly owned by
Robert Yoe. Id. at *1-*3. Mr. Yoe asserted counterclaims based on a fee shifting
provision in the employment contract he had with Crescent Sock. Id. at *1. Mr. Yoe’s
company, Yoe Enterprises, also filed counterclaims concerning intellectual property
provisions in a contract between Yoe Enterprises and Crescent Sock. Id. At trial, Mr.
Yoe and Yoe Enterprises prevailed and subsequently sought to recover all attorney’s fees
and costs. The trial court granted the request. On appeal to this Court, Crescent Sock
argued that Mr. Yoe’s company was not a party to the employment contract, which was
the basis for the award of attorney’s fees.1 As such, Crescent Sock maintained that Yoe
Enterprises was not entitled to its attorney’s fees. This Court agreed, holding that:

                None of the proof regarding attorney’s fees contains any
        differentiation with respect to fees attributable or charged to Yoe, as
        opposed to Yoe Enterprises. All of the bills and documentation treated the
        case as if the attorneys had only one client; Yoe and Yoe Enterprises were
        not billed separately. At oral argument, counsel for the counter-plaintiffs
        stated that they in reality had just one client, Mr. Yoe, which is somewhat
        understandable given that he is the only natural person in the case and he
        wholly owns Yoe Enterprises. But the fact remains that Crescent agreed to
        pay attorney's fees to Yoe in the event he prevailed against it in a legal
        dispute; it never agreed to pay the fees of Yoe Enterprises. Counsel also
        argues that it is impossible to go back and separate the time spent for his
        individual claims from the time spent for Yoe Enterprises’ claims. While it
        may be difficult, it is not impossible. In any event, to force Crescent to pay
        the entire bill of $765,880.77 would be indulging in the fiction that all of
        the work done by Yoe Enterprises’ attorneys on its behalf was provided
        gratis, which is neither logical nor just. Consequently, we remand for a
        determination of the amount of attorney’s fees attributable to the work done
        for Yoe Enterprises. Yoe Enterprises is not entitled to recover the amount
        of those fees from Crescent.


        1
         In Crescent Sock, the trial court held that pursuant to the “February 15, 2012 executive
employment agreement, the prevailing party is entitled to receive the costs and expenses of the litigation
from Crescent, including all expert witness fees pursuant to the contractual provision in the February 15,
2012 executive employment agreement.” Crescent Sock, 2016 WL 3619358, at *9.
                                                  -5-
                                            ***

       In summary, the trial court shall take evidence and determine the proper
       amount of attorney’s fees and costs to be allocated to Yoe Enterprises both
       at trial and on appeal. We recognize that this will not be an easy task and
       may result in a number that is imprecise, but, as discussed in this opinion, it
       is our view that justice requires such an effort under these unusual
       circumstances.

Id. at *9. Mr. Goree argues that the Crescent Sock holding requires this Court to remand
the instant appeal to the trial court to segregate the attorney’s fees incurred by Mr. Goree
from those incurred by Mr. Wherry, rather than simply reducing Mr. Goree’s fees by
50%. In the first instance, the Crescent Sock case is distinguishable from the instant
appeal insofar as the award of attorney’s fees in Crescent Sock was based on a contract
between Mr. Yoe and Crescent Sock, and Yoe Enterprises was not a party to that
contract. Accordingly, in the Crescent Sock case, this Court was concerned with
enforcing the parties’ contract, which provided for attorney’s fees for Mr. Yoe but not his
company. In order to ensure that the parties’ contractual intent was not usurped, it was
imperative for Crescent Sock to be relieved from paying any of Yoe Enterprises’
attorney’s fees; therefore, this Court remanded the case for the purpose of segregating
Yoe Enterprises’ attorney’s fees from Mr. Yoe’s. In this regard, we cannot adopt Mr.
Goree’s broad interpretation of the Crescent Sock holding to require the segregation of
the specific attorney’s fees owed by each party in every case. In this appeal, there is no
contractual basis for the award of attorney’s fees as the award here is statutory. Although
we do not go so far as to hold that the existence of a contract for attorney’s fees mandates
an itemization of each parties’ respective fees in every case, we do acknowledge that, in
the case at bar, we do not have a contractual imperative to enforce.

        In Hensley v. Eckerhart, 461 U.S. 424 (1983), a case cited in both Imwalle and
Crescent Sock, the United States Supreme Court held that, on finding that a reduction of
hours related to pursuing unsuccessful claims is warranted, a court “may attempt to
identify specific hours that should be eliminated, or it may simply reduce the award to
account for the limited success. The court necessarily has discretion in making this
equitable judgment.” Hensley, 461 U.S. at 436-37. As set out in its order, supra, the trial
court held that “UPS argued that it was impossible to segregate the fees and costs and the
Court agrees.” We have reviewed some of the billing entries for attorney’s fees, and we
cannot conclude that the trial court’s determination that it is not possible to segregate the
fees and costs attributable to Mr. Goree from those attributable to Mr. Wherry constitutes
an abuse of discretion. Under the holding in Hensley, having made this determination,
the trial court could “simply reduce the award to account for the limited success . . . .”
Given the fact that only one of the two plaintiffs was successful, the trial court’s decision
to reduce Mr. Goree’s attorney’s fees and costs by 50% was a logical and reasonable
reduction. Here, the trial court’s approach to the attorney’s fees and costs award is
                                            -6-
similar to the approach adopted by the Eastern District of Missouri in Holland, et al. v.
City of Gerald, Missouri, et al., No. 4:08CV707HEA, 2013 WL 1688300 (E.D. Mo.
April 18, 2013). In Holland, some of the plaintiffs’ 42 U.S.C. § 1988 claims were
unsuccessful. The defendant argued that plaintiffs’ attorney’s fee and costs should be
reduced because not all of the plaintiffs prevailed. The District Court agreed and reduced
the requested fees by 60% because only nine of the twenty-two plaintiffs had prevailed.
The Holland Court held that:

       Given the circumstances outlined herein, the Court finds that a sixty (60)
       percent reduction in Plaintiffs’ fee proposal is appropriate. See Hensley,
       461 U.S. at 436-37 (upon finding a reduction for hours related to pursuing
       unsuccessful claims is warranted, the court “may attempt to identify
       specific hours that should be eliminated, or it may simply reduce the award
       to account for the limited success[, and] the court necessarily has discretion
       in making this equitable judgment”); Burks [v. Siemens Energy &
       Automation, Inc.,] 215 F.3d[, 880,] at 883 (an attorneys’ fee award of 25%
       of that which was requested was reasonable given the “relative
       interrelatedness of the various claims, the lack of specificity in the billing
       statements, and the degree of success achieved on the claims on which
       [plaintiffs] prevailed”); Schwarz v. Sec’y of Health & Human Servs., 73
       F.3d 895, 905 (9th Cir.1995) (“a district court does not abuse its discretion
       when it resorts to a mathematical formula, even a crude one, to reduce the
       fee award to account for limited success”)(applying Hensley, 461 U.S. at
       440).

Holland, 2013 WL 1688300, at *3. In view of the foregoing authority and considering
the totality of the circumstances presented in this case, we cannot conclude that the
amount of attorney’s fees and costs awarded to Mr. Goree was an abuse of the trial
court’s discretion.

        In his final issue, Mr. Goree asks this Court to award his reasonable attorney’s fees
and expenses incurred in this appeal. Whether to award attorney’s fees incurred on
appeal is a matter within the sole discretion of this Court. Shofner v. Shofner, 181
S.W.3d 703, 719 (Tenn. Ct. App. 2004). In determining whether an award for attorney’s
fees is warranted, we consider, inter alia, the party’s success on appeal. Id. Because Mr.
Goree has not prevailed in this appeal, we exercise our discretion to respectfully deny his
request for an award of appellate fees and costs.




                                            -7-
                                    V. Conclusion

        For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellant, Mitch Goree and his surety,
for all of which execution for costs may issue if necessary.




                                               _________________________________
                                               KENNY ARMSTRONG, JUDGE




                                         -8-
