                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 January 21, 2011 Session

   VICTOR W. ISAAC, M.D. v. THE CENTER FOR SPINE, JOINT, AND
           NEUROMUSCULAR REHABILITATION, P.C.

                 Appeal from the Chancery Court for Davidson County
                   No. 09-81-IV    Russell T. Perkins, Chancellor


                  No. M2010-01333-COA-R3-CV - Filed June 1, 2011


In this employment contract dispute, the plaintiff seeks to recover a bonus from his former
employer. He asserts the defendant breached the contract by failing to pay a bonus as
provided in the employment agreement; alternatively, he asserts a claim for promissory fraud.
The trial court summarily dismissed plaintiff’s breach of contract claim. Following a bench
trial on the promissory fraud claim, the trial court ruled in favor of the defendant and ordered
plaintiff to pay defendant $64,471.86 in attorney fees pursuant to the employment agreement.
We affirm and remand with instructions that the defendants be awarded reasonable and
necessary attorney fees incurred on appeal.

       Tenn. R. App. P3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed and Remanded

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Anne C. Martin, Nashville, Tennessee, for the appellant, Victor W. Isaac, M.D.

H. Rowan Leathers, III, for the appellee, The Center for Spine, Joint, and Neuromuscular
Rehabilitation, P.D.

                                          OPINION

      The plaintiff, Victor W. Isaac, M.D., is a licensed physician. He is board certified in
physical medicine rehabilitation and pain management, and is a fellow in the American
Academy of Physical Medicine and Rehabilitation. The defendant, the Center for Spine,
Joint, and Neuromuscular Rehabilitation, P.C. (“CSJNR”),1 is a physical rehabilitation center
and pain management clinic with offices in Hermitage, Tennessee and Brentwood,
Tennessee. Son D. Le, M.D., founded CSJNR in 2002, and currently serves as its president
and CEO. He is also a licensed physician, board certified in physical medicine rehabilitation
and pain management.

       In 2006, in order to keep up with the growing patient demand and to expand, CSJNR
placed advertisements in several medical journals, seeking to hire an additional physician.
Dr. Isaac, who was employed by a competing firm, Pain & Spine Consultants, Inc., submitted
his curriculum vitae in response to one of CSJNR’s ads. Soon thereafter, Dr. Le contacted
Dr. Isaac to set up an interview. On July 25, 2006, after several discussions between Dr. Le
and Dr. Isaac, Dr. Isaac entered into a one-year employment agreement with CSJNR (“the
Agreement”), with automatically renewing one-year terms, unless terminated with prior
notice by either party.

       The Compensation Section of the Agreement provided that Dr. Isaac would receive
a base salary of $225,000, as well as a bonus. The provisions of the Agreement concerning
the bonus provide:

          b. Bonus. In addition to the Base Salary payable hereunder, the Company, in
          its sole discretion, may pay to Physician an annual performance based bonus
          (“Bonus”). Any such Bonus awarded to Physician shall be payable within sixty
          (60) days after the end of each one (1) year period following the
          Commencement Date of this Agreement. The Bonus is calculated as a
          percentage of the amount of total actual collections received by the Company
          for the Physician’s services over $500,000.00 (subject to refunds and debit
          adjustments to or by third party payers) over a twelve month period of
          employment. This bonus shall be 30% of net collections beyond $500,000 for
          the first year and will be increased to 40% of net collections beyond $500,000
          for the years thereafter.

          c. Physician must be employed by the Company on July 31, 2007, or pertinent
          anniversaries thereafter if this Agreement is renewed, in order to be eligible to
          receive any applicable Bonus payment. The Bonus shall not be prorated and
          paid for any partial year of performance.

      In October 2007, Dr. Isaac requested an increase in his base salary. Dr. Le prepared
a modified employment contract proposal on behalf of CSJNR, providing for a $25,000 raise,

1
    The practice uses the acronym SJNMR; however, CSJNR was used throughout the proceedings.

                                                  -2-
from $225,000 to $250,000; however, the proposed contract also provided that the
benchmark for bonus eligibility would be increased from $500,000 to $625,000. Dr. Isaac
rejected the proposed increase in the bonus threshold and did not sign the new agreement.
Therefore, the 2006 Agreement remained in effect for Dr. Isaac’s second year of
employment.

        Thereafter, tension began developing between Dr. Isaac and Dr. Le. According to Dr.
Le, Dr. Isaac was unwilling to work additional hours to assist Dr. Le and the other providers
and failed to provide adequate documentation of his work. Nevertheless, Dr. Le found Dr.
Isaac to be an excellent physician and a likeable person, and Dr. Le believed Dr. Isaac had
the potential to improve in his problem areas. Moreover, CSJNR needed Dr. Isaac to keep
up with the workload. As a result, despite Dr. Le’s concerns and the fact that Dr. Isaac did
not sign the new employment agreement, CSJNR began paying Dr. Isaac the higher base
salary.

       Not long into his second year at CSJNR, Dr. Isaac informed Dr. Le that he was
interested in becoming an equity partner in the practice. Dr. Le then hired Glenda Copeland,
a human resources consultant for small businesses, to advise him on how to proceed with Dr.
Isaac as well other emerging personnel issues in the growing practice. Ms. Copeland and her
assistant, Judy Marsh, held a meeting on April 10, 2008, with Dr. Isaac and Dr. Le. During
this meeting, Dr. Le specifically outlined what he expected out of a partner, and put Dr. Isaac
on a 90-day improvement plan, after which time Dr. Le would re-evaluate whether taking Dr.
Isaac on as an equity partner was right for CSJNR.

        Dr. Isaac met with Ms. Copeland and Ms. Marsh again on July 24, 2008, one week
before the completion of his second year of employment at CSJNR, to review his
performance during the 90-day improvement/evaluation period. At the conclusion of the
meeting, Ms. Copeland presented Dr. Isaac with three options. The first option was a
traditional equity partnership track, and the second option was a “Work/Life Balance
Partnership” track, which was more akin to an employee/employer relationship. Dr. Isaac’s
third option was to leave CSJNR on October 31, 2008.

         The next meeting was in mid-September 2008, at which time Dr. Isaac informed Ms.
Copeland that he intended to leave the practice at the end of October. In the weeks leading
up October 31, Dr. Isaac inquired about his bonus several times with Ms. Copeland. During
an exit interview conducted shortly before his last day, Ms. Copeland informed Dr. Isaac that
Dr. Le decided not to pay a bonus to Dr. Isaac for his second year of employment.




                                              -3-
      On October 31, 2008, Dr. Isaac left CSJNR and immediately returned to work for his
former employer, Pain & Spine Consultants in Brentwood, Tennessee.2

        Dr. Isaac filed suit against CSJNR in the Davidson County Chancery Court on January
15, 2009, claiming breach of contract, quantum meruit, and promissory fraud. Dr. Isaac
claimed that his net collections during his second year at CSJNR totaled $684,593.13,
making him eligible to receive a bonus of $73,837.26. CSJNR filed an Answer, denying all
liability. CSJNR also asserted a counterclaim against Dr. Isaac for breach of Section 11(b)
of the contract, which prohibited Dr. Isaac from soliciting CSJNR patients or employees for
two years following the termination of his employment. The counterclaim alleged that Dr.
Isaac had solicited several patients and two CSJNR employees to follow him to Pain & Spine
Consultants.

       Dr. Isaac later voluntarily dismissed his claim for quantum meruit. On March 1, 2010,
CSJNR voluntarily dismissed its counterclaim. CSJNR then moved for summary judgment
on Dr. Isaac’s two remaining claims. The trial court summarily dismissed Dr. Isaac’s breach
of contract claim but denied summary judgment on the promissory fraud claim. A bench trial
was held on May 10, 2010. The trial court found that Dr. Isaac had failed to demonstrate
promissory fraud and dismissed the sole remaining claim.

       CSJNR then filed a motion for $98,831.32 in attorney fees, citing a provision of the
Agreement which provided that the “prevailing party” could recover its “reasonable
attorney’s fees.” Dr. Isaac opposed the motion. The trial court determined that CSJNR was
the prevailing party, and after excluding attorney fees associated with CSJNR’s counterclaim
and further reducing the award to account for “some duplication, . . . and the equities,”
awarded CSJNR $64,471.86. Dr. Isaac filed a timely appeal.

                                               I SSUES

        Dr. Isaac presents three issues for our review. He contends there were genuine issues
of material fact concerning whether Dr. Le violated the duty of good faith and fair dealing
in denying the bonus, and as a result, the trial court erred in summarily dismissing his breach
of contract claim. Second, he contends the trial court erred by finding that Dr. Le did not
fraudulently promise payment of the bonus to Dr. Isaac. Third, he asserts CSJNR is not
entitled to recover its attorney fees because it was not the “prevailing party”; alternatively,



       2
         Dr. Le had also worked for the Pain & Spine Consultants before opening CSJNR and, ironically,
left when he was not offered the option to become an equity partner.


                                                 -4-
he argues the award of $64,471.86 was excessive and should be reduced. We will discuss
each issue in turn.

                                  B REACH OF C ONTRACT

        Finding that payment of the bonus “was entirely discretionary” and that “Dr. Le was
the sole decision maker” on behalf of CSJNR, the trial court granted summary judgment in
favor of CSJNR on Dr. Isaac’s breach of contract claim. Dr. Isaac contends this was error
because CSJNR was bound by the implied duty of good faith and fair dealing to pay Dr. Isaac
the bonus when Dr. Isaac met the income threshold to be eligible for a bonus, the “sole
discretion” language in the Agreement notwithstanding. For its part, CSJNR insists the
Agreement expressly afforded it absolute discretion to pay or not pay the bonus; thus, it did
not fail to act in good faith in denying payment of the bonus to Dr. Isaac.

      The relevant provision in the Agreement appears in subparagraph “b.” of the
Compensation Section, titled “Bonus.” The first sentence expressly states: “In addition to the
Base Salary payable hereunder, the Company, in its sole discretion, may pay to Physician an
annual performance based bonus (“Bonus”).” (Emphasis added). The remainder of the
Bonus provision states:

       Any such Bonus awarded to Physician shall be payable within sixty (60) days
       after the end of each one (1) year period following the Commencement Date
       of this Agreement. The Bonus is calculated as a percentage of the amount of
       total actual collections received by the Company for the Physician's services
       over $500,000.00 (subject to refunds and debit adjustments to or by third party
       payers) over a twelve month period of employment. This bonus shall be 30%
       of net collections beyond $500,000 for the first year and will be increased to
       40% of net collections beyond $500,000 for the years thereafter.

       In Tennessee, the common law imposes a duty of good faith in the performance of
contracts. Wallace v. Nat’l Bank of Commerce, 938 S.W.2d 684, 686 (Tenn. 1996). It is an
implied-in-law covenant by each party to perform the contract in good faith. Barnes &
Robinson Co. v. OneSource Facility Servs., 195 S.W.3d 637, 642 (Tenn. Ct. App. 2006). As
this court has stated, the duty has a two-fold purpose:

       First, it honors the contracting parties’ reasonable expectations. Second, it
       protects the rights of the parties to receive the benefits of the agreement they
       entered into. The implied obligation of good faith and fair dealing does not,
       however, create new contractual rights or obligations, nor can it be used to
       circumvent or alter the specific terms of the parties’ agreement.

                                             -5-
Id. at 642-43 (quoting Goot v. Metro. Gov’t of Nashville and Davidson County, No. M2003-
01013-COA-R3-CV, 2005 WL 3031638, *7 (Tenn. Ct. App. Nov. 9, 2005)) (internal
citations omitted) (emphasis added).

       “The extent of the duty to perform a contract in good faith depends upon the
individual contract in each case.” Barnes & Robinson Co., 195 S.W.3d at 642. Thus, whether
a party acted in good faith in the performance of a contract is measured by the terms of the
contract. Bank of Crockett v. Cullipher, 752 S.W.2d 84, 91 (Tenn. Ct. App. 1988); see also
Largen v. Cracker Barrel Old Country Store, Inc., E1999-01006-COA-R3-CV, 2000 WL
375230, at *8 (Tenn. Ct. App. Apr. 13, 2000). Furthermore, “[p]erformance of a contract
according to its terms cannot be characterized as bad faith.” Wallace, 938 S.W.2d at 687.

        “In construing contracts, courts look to the language of the instrument and to the
intention of the parties, and impose a construction which is fair and reasonable.” TSC Indus.,
Inc. v. Tomlin, 743 S.W.2d 169, 173 (Tenn. Ct. App. 1987). The relevant provisions “should
be construed as in harmony with each other . . . so as to avoid repugnancy between the
several provisions of a single contract.” Park Place Ctr. Enters., Inc. v. Park Place Mall
Assocs., L.P., 836 S.W.2d 113, 116 (Tenn. Ct. App. 1992).

        Looking to the pertinent language of the Agreement between Dr. Isaac and CSJNR,
it is readily apparent that payment of a bonus to Dr. Isaac was neither mandatory nor
guaranteed; rather, the express language of the Agreement provides that payment of the
bonus was permissive and subject to the discretion of CSJNR. This is evident from the clear
and unambiguous language the parties used in the Agreement: “the Company, in its sole
discretion, may pay . . . an annual performance based bonus.” (Emphasis added). See Sanford
Realty Co. v. City of Knoxville, 110 S.W.2d 325, 327 (Tenn. 1937) (stating that the word
“may” is permissive and confers discretion). The Agreement goes on to state that “[a]ny such
Bonus shall be payable within sixty (60) days” after the end of each year of employment. It
also explains how the Bonus “is to be calculated.” Although these provisions are mandatory,
they only become operative in the event CSJNR actually awards a bonus. These provisions
do not limit CSJNR’s discretion when determining whether to award a bonus. Our decision
is consistent with Dr. Isaac’s own deposition testimony, in which he stated that he understood
the terms of the Agreement, and specifically, that he understood the phrase “in its sole
discretion” to mean that it was “up to Dr. Le [CSJNR] to pay this bonus or not.”

       As this court held in Barnes & Robinson Co, the implied duty of good faith does not
create new or different contractual rights and it may not be used to circumvent or alter the
specific provisions of an agreement. 195 S.W.3d 637 at 643. However, for this court to
construe the Agreement in the way Dr. Isaac urges us - that the duty of good faith rendered

                                             -6-
payment of the bonus mandatory - we would have to modify the rights and responsibilities
to which the parties explicitly agreed and circumvent the express and unequivocal language
of the agreement. We are not permitted to do either. See id. The parties agreed that if Dr.
Isaac reached certain benchmarks in his net collections, he would be eligible to receive a
bonus. They agreed on how to calculate the bonus in the event CSJNR decided to award it.
Last, they specifically agreed that CSJNR had sole discretion in determining whether to
actually award the bonus. These were the terms to which the parties agreed, and which were
adhered to in this case. Accordingly, we affirm the trial court’s grant of summary judgment
to CSJNR on Dr. Isaac’s breach of contract claim.

                                    P ROMISSORY F RAUD

        Dr. Isaac’s claim for promissory fraud survived summary judgment but not a bench
trial. At the conclusion of the bench trial, the court determined that Dr. Isaac “did not meet
his burden of proof or establish the elements of promissory fraud” and awarded judgment in
favor of CSJNR.

       Dr. Isaac argues that the trial court’s findings are not supported by the record.
Specifically, he contends that there are contradictions between Dr. Le’s deposition testimony,
parts of which were read into the record at trial, and his testimony during trial. Dr. Isaac
asserts that when these contradictions are considered along with the rest of the proof, it
becomes clear Dr. Le decided not to pay Dr. Isaac a bonus early in Dr. Isaac’s second year,
yet he continued to encourage Dr. Isaac to work harder and be more productive in order to
be eligible for a bonus. Dr. Isaac also asserts that he suffered harm as a result of Dr. Le’s
representations, in that he worked long, difficult hours, and continued his employment at
CSJNR when he could have sought work elsewhere, under the belief he would be paid the
bonus.

        Because this claim was decided following a bench trial, we review the record de novo
with a presumption that the trial court’s factual findings are correct, unless the preponderance
of the evidence indicates otherwise. Tenn. R. App. P. 13(d). Moreover, if some of the trial
court’s factual findings are based on its determinations of the credibility of witnesses, we
afford great weight to those credibility determinations, and will not reverse such
determinations absent clear evidence to the contrary. McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995). We review the trial court’s conclusions of law de novo without a
presumption of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002).

       In order to establish a claim for promissory fraud in Tennessee, a plaintiff must prove
the following elements: “(1) an intentional misrepresentation of a fact material to the
transaction; (2) knowledge of the statement’s falsity or utter disregard to its truth; (3) an

                                              -7-
injury caused by reasonable reliance on the statement; and (4) a promise of future action with
no present intent to perform.” Houghland v. Houghland, No. M2005-01770-COA-R3-CV,
2006 WL 2080078, at *3 (Tenn. Ct. App. July 26, 2006) (citing Taylor v. Butler, No. W2002-
01275-COA-R3-CV, 2003 WL 21026938 (Tenn. Ct. App. Apr. 24, 2003)); see also Fowler
v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn. 1978); Carter v. Patrick, 163
S.W.3d 69, 77 (Tenn. Ct. App. 2004); Dobbs v. Guenther, 846 S.W.2d 270, 274 (Tenn. Ct.
App. 1992).

       It is essential to recognize that, in the context of a claim of promissory fraud, “‘the
mere fact that the promisor failed to perform the promised act is insufficient by itself to prove
fraudulent intent.’ This is because . . . ‘not every broken promise starts with a lie.’” Styles v.
Blackwood, No. E2007-00416-COA-R3-CV, 2008 WL 5396804, at *7 (Tenn. Ct. App. Dec.
29, 2008) (citing Am. Cable Corp. v. ACI Mgmt., Inc., No. M1997-00280-COA-R3-CV, 2000
WL 1291265, at *5 (Tenn. Ct. App. Sept. 14, 2000) (“Failure to perform a promise, standing
alone, is not competent evidence that the promisor never intended to perform.”)); see also
Stacks v. Saunders, 812 S.W.2d 587, 593 (Tenn. Ct. App. 1990).

        As our Supreme Court stated in Fowler v. Happy Goodman Family, promissory fraud
will not be found where the plaintiff fails to establish that the defendant’s promises and
representations concerning future conduct were made “without any intention . . . to perform.”
575 S.W.2d at 499. Further, a claim that is supported by nothing more than the plaintiff’s
“subjective belief and his unspecified ‘information’ in support of the claim of fraudulent
intent to deceive and not to undertake performance” is insufficient. Id. (citing Restatement
(Second) of Torts § 530, cmt. D (1977) (“The intention of the promisor not to perform an
enforceable or unenforceable agreement cannot be established solely by proof of its
nonperformance, nor does his failure to perform the agreement throw upon him the burden
of showing that his nonperformance was due to reasons which operated after the agreement
was entered into.”)).

        The relevant findings by the trial court include the fact that Dr. Le “attempted to
motivate providers,” including Dr. Isaac, “to produce so that they would be eligible for
bonuses;” however, “Dr. Le did nothing in the second year that would operate to relinquish
his discretion to deny a proposed bonus even though Dr. Isaac’s production during the second
year made him eligible for it;” furthermore, “Dr. Le never made an intentional
misrepresentation of a material fact or a promise of future action with no present intention
to perform.”

       With regard to Dr. Le’s credibility, the trial court found that Dr. Le explained any
perceived inconsistencies between his deposition and his testimony at trial: Although Dr. Le
had doubts about Dr. Isaac early into Dr. Isaac’s employment, he didn’t know “what the

                                               -8-
outcome [was] going to be;” although he was unsure about whether he was “going to be able
to accommodate Dr. Isaac,” Dr. Le wanted to continue working with Dr. Isaac to see if he
could improve, and Dr. Le needed Dr. Isaac’s help. Dr. Le further testified at trial that he
wasn’t sure of the exact time at which he made the decision not to pay the bonus, but that he
knew it happened in October 2008, after Dr. Isaac notified Ms. Copeland that he was
resigning. As a result of these findings, the trial court concluded:

       Although he had some lapses in attempting to recount the events of 2008, [Dr.
       Le] testified credibly and forthrightly at trial that he had concerns about Dr.
       Isaac’s commitment to the practice beginning in October 2007, but that he did
       not make a final decision about the bonus until October 2008, which was after
       Dr. Isaac had given notice of his resignation.

       In addition to Dr. Le’s testimony, there is further proof supporting Dr. Le’s assertion
that he did not make the decision to withhold the bonus until after Dr. Isaac notified the
practice that he intended to resign. Glenda Copeland, the human resources consultant with
whom Dr. Le frequently met beginning in March 2008, testified that Dr. Le “never expressed
any qualms about paying a bonus” to Dr. Isaac. She also testified she knew that “if Dr. Isaac
had continued with the practice and everything, I have no doubt that [the] bonus would have
been paid to him.” Furthermore, as discussed, after Dr. Isaac’s first year of employment, Dr.
Le gave him a $25,000 raise, and subsequently offered him a path to partnership in the
practice. We find it very unlikely Dr. Le, acting on the advice of Ms. Copeland, an
experienced human resources consultant, took these actions while intending to deny Dr. Isaac
a bonus, especially given the fact that Dr. Le knew the important of performance-based
bonuses to physicians in Dr. Isaac’s position.

       Having thoroughly reviewed the record, we find it does not contain clear evidence
contradicting the trial court’s credibility findings. See McCaleb, 910 S.W.2d at 415. We also
find that the evidence does not preponderate against the court’s factual findings. See Tenn.
R. App. P. 13(d). Further, we agree with the trial court’s conclusion that Dr. Isaac failed to
prove the essential elements of promissory fraud; specifically, he failed to prove that Dr. Le
made a promise of future action without the present intent to perform. See Houghland, 2006
WL 2080078, at *3; see also Stacks, 812 S.W.2d at 593. Therefore, we affirm the dismissal
of Dr. Isaac’s claim of promissory fraud.

                                      A TTORNEY F EES

      Each party sought to recover attorney fees pursuant to paragraph 24 of the Agreement,
which states:



                                             -9-
       In the event that either party shall maintain or commence any action or
       proceeding against the other party to enforce this Agreement or provision
       thereof, the prevailing party therein shall be entitled to recover his reasonable
       attorney’s fees and costs incurred in connection with such action or
       proceeding.

       The trial court found that CSJNR was the prevailing party. Dr. Isaac contends this was
error because CSJNR voluntarily dismissed its counterclaim, and as such, it cannot be
considered the prevailing party. Essentially, he contends that because neither side prevailed
on its affirmative claims, there was no “prevailing party” as that term is defined in the
Agreement.

        In the context of attorney fees clauses in contracts, Tennessee courts define
“prevailing party” as “the party to a suit who successfully prosecutes the action or
successfully defends against it, prevailing on the main issue, even though not necessarily to
the extent of his original contention.” Dairy Gold, Inc. v. Thomas, No. E2001-024630COA-
R3-CV, 2002 WL 1751193, at *4 (Tenn. Ct. App. July 29, 2002). In other words, the
“prevailing party” is the party “who obtains some relief on the merits of the case or a material
alteration in the legal relationship of the parties.” Estate of Burkes v. St. Peter Villa, Inc. No.
W2006-02497-COA-R3-CV, 2007 WL 2634851, at *4 (Tenn. Ct. App. Sept. 12, 2007).

       The main issue in this case is whether Dr. Isaac was entitled to a bonus for the second
year of his employment with CSJNR. The record clearly reveals that CSJNR successfully
defended both claims pertaining to this issue, breach of contract and promissory fraud; thus
CSJNR prevailed on the merits on the main issue. See Dairy Gold, Inc., 2002 WL 1751193,
at *4. We therefore affirm the trial court’s finding that CSJNR was the “prevailing party” as
defined in the Agreement, and that CSJNR was therefore entitled to attorney fees, the
voluntary dismissal of its counterclaim notwithstanding.

       Dr. Isaac also challenges the amount of attorney fees awarded. He asserts that the
equities of the case and Rule 1.5(a) of the Tennessee Rules of Professional Conduct require
a finding that the award was excessive. We respectfully disagree.

        Absent a showing of abuse of discretion, we will not disturb a trial court’s decision
regarding the reasonableness of attorney fees. Albright v. Mercer, 945 S.W.2d 749, 751
(Tenn. Ct. App. 1996). A trial court abuses its discretion only when it applies an incorrect
legal standard, or when it reaches a decision against logic or reasoning, that causes an
injustice to the complaining party. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).




                                               -10-
       CSJNR requested $93,362. The trial court found that CSJNR could not recover fees
associated with its counterclaim, which had been voluntarily dismissed, and further reduced
the award by 15% “to account for some duplication, the resolution of certain claims on
summary judgment . . . and the equities.” The final award of attorney fees was for
$64,471.86.3

        Counsel for CSJNR provided detailed affidavits showing attorney fees totaling
$98,831.92. Dr. Isaac takes issue with the fact that this total included fees relating to
CSJNR’s counterclaim, as well as the fact that multiple attorneys assisted in the case for
CSJNR. However, the trial court conducted a separate bench trial on the fee issue, and, as
stated, subtracted all attorney fees related to CSJNR’s counterclaim. The subtraction included
$12,988.75 for attorney fees related to the counterclaim, $2,844.00 for paralegal fees, and
$1,670.00 for “fees acknowledged as incorrectly included.” The trial court then further
reduced the total by 15% or $11,377.39 to account for any duplicative work.

       The trial court did not apply an incorrect legal standard, and the record fails to
establish that it reached a decision against logic or reasoning. Moreover, the charges for
services related to CSJNR’s counterclaim and for the work of additional attorneys was
specifically excluded from the award. We therefore affirm the award of $64,471.86 in
attorney fees to CSJNR.

        Further, because CSJNR is also the prevailing party on appeal, it is entitled to recover
its reasonable and necessary attorney fees incurred on appeal. We therefore remand this issue
to afford the parties the opportunity to be heard as to the amount of the award, and for the
trial court to make the appropriate award.

                                              I N C ONCLUSION

       The judgment of the trial court is affirmed in all respects, and this matter is remanded
with costs of appeal assessed against the plaintiff, Victor W. Isaac, M.D.




                                                                ______________________________
                                                                FRANK G. CLEMENT, JR., JUDGE




          3
              The trial court also awarded CSJNR $4,415.92 in discretionary costs, which Dr. Isaac does not
appeal.

                                                      -11-
