                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                             July 10, 2002 Session

                          BRENDA R. LEHMAN v. SYLVIA J. VINES

                    A Direct Appeal from the Circuit Court for Davidson County
                       No. 00C 872    The Honorable Water C. Kurtz, Judge



                           No. M2001-01811-COA-R3-CV - Filed July 30, 2002


        Plaintiff-attorney sued former client for balance of amount due under fee agreement. In a
nonjury trial, the trial court found that the client owed a balance of $4,209.00, and entered judgment
for plaintiff in that amount. The client appeals, and we reverse and remand.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBY LILLARD, J., joined.

Sylvia J. Vines, Pro Se

Melissa Blackburn, Nashville, For Appellee, Brenda R. Lehman

                                         MEMORANDUM OPINION1

        Plaintiff, Brenda R. Lehman, filed a complaint against defendant, Sylvia J. Vines, alleging
that defendant owes plaintiff a balance of $11,593.36 for legal fees due pursuant to an agreement
between the parties.




       1
           Rule 1 0 of the R ules of the C ourt of A ppeals of Tennessee states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
       the actions of the trial court by memorandum opinion when a formal opinion would have no
       precedential value. When a case is decided by Memorandum opinion it shall be de signated
       “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
       reaso n in any u nrelated ca se.
        Defendant’s answer admits the attorney client relationship and the agreement for fees but
denies that she owes the amount plaintiff claims. Defendant avers that she was not given all just
credits for amounts that she had paid.

        The case was tried before the trial court without a jury, and the only witnesses were the
plaintiff and the defendant. The plaintiff testified that after giving the defendant all just credits, the
balance due is $8,458.31. The defendant testified that she had paid everything that she owed to the
plaintiff.

        Various invoices were introduced as exhibits, and the trial court, using the amounts set out
on the invoices, determined that the total fee charged by the plaintiff was $24,571.00. The trial court
calculated the payments made by the defendant, according to her testimony and the exhibits
introduced, and found a total of $20,362.00. Taking these figures, the trial court found that the
correct amount due was $4,209.00. Judgment was accordingly entered for that amount, and the
defendant, acting pro se, has appealed.

        Defendant presents a single issue for review, as stated in her brief:

                        In the Civil Court Case. 00C 872, all invoices having been
                paid in a timely manner (pages 28, 29, 30 lines 16-18) Ms. Lehman,
                Appellee, forgave $4,213.25. Judgemant [sic] was given that
                Appellee was not obligated this forgiveness, even though an
                agreement was made between Appellee and Appellant by Ms.
                Lehman’s Appellee’s choice. (page 44 transcript)

                        I plead that the conditions were met.

         Although the issue is not clearly stated, we perceive the issue to be whether the trial court
erred in granting judgment to plaintiff. Defendant asserts that she made all of the payments required
and that plaintiff had forgiven $4,213.25 of the debt. Plaintiff testified that she agreed to forgive that
portion of the debt if the defendant had paid all other sums due by November 15, 1998. Plaintiff
testified that the defendant did not meet that requirement and that there was no forgiveness of the
debt.

        On the other hand, defendant testified that she timely paid all sums due and, therefore, should
have received the stipulated discount. With a check dated November 14, 1998, defendant paid the
sum of $5,800.00, which defendant believed to be the balance due to plaintiff. It appears from
plaintiff’s testimony and the exhibits introduced that plaintiff’s accounting was somewhat confusing
and resulted in several admitted errors. Indeed, plaintiff’s complaint seeks $11,693.36 in damages,
which is not supported by any testimony in the record.

        Defendant testified that because of the inaccuracies in the account, she sought a meeting with
the plaintiff to try to resolve the matter, but plaintiff told her that she would have to charge her an

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hourly rate as an attorney to discuss the account. Also, by plaintiff’s own admission, plaintiff
erroneously overstated the amount actually owed by over $7,000.00.

         Plaintiff admits that she agreed to a discount with defendant if payment in full was made by
November 15, 1998. Although defendant was sent several incorrect invoices, she apparently had,
at the time of the November 15 deadline, paid everything that she believed she owed the plaintiff.
Therefore, the $200.00 paid by the defendant approximately eight days after November 15, 1998
would appear to be a correction rather than a late-payment, especially in view of the fact that the
defendant paid $5,800.00 on November 14, 1998. Under these circumstances, we believe that the
defendant substantially complied with the agreement for the discount, and it should have been
granted.

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

        We are not unmindful that when the issues in a case depend on the truthfulness of witnesses,
the credibility accorded by the trial court to the witness’s testimony will be given great weight by the
appellate court. In Re: Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). In this case,
however, the trial court apparently did not consider the confusion caused by plaintiff’s accounts and
the substantial compliance by the defendant with the agreement between the parties. From our
review of the record we find that the evidence preponderates against the finding of the trial court.

        Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial
court for such further proceedings as may be necessary. Costs of the appeal are assessed against the
appellee, Brenda R. Lehman.


                                                        ____________________________________
                                                        W. FRANK CRAWFORD, PRESIDING
                                                        JUDGE, W.S.




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