                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 28, 2011 Session

                   ESTATE OF SUE BRATTON THOMPSON

              Direct Appeal from the Chancery Court for Maury County
                     No. P646-08    Jim T. Hamilton, Chancellor


                No. M2011-00411-COA-R3-CV - Filed March 14, 2012



                             SEPARATE CONCURRENCE

       I fully concur in the result reached by the majority in this case. However, I write
separately to express a different conclusion regarding the applicability of White v. McBride,
937 S.W.2d 796 (Tenn. 1996), to the instant case.

       The majority correctly notes that White involved a contingent fee arrangement
whereby the husband’s attorney was to be paid one-third of any recovery from the wife’s
estate. White, 937 S.W.2d at 797. As the surviving spouse, the husband was entitled to
$349,000 from his wife’s estate, and based upon that figure, the attorney sought a
$108,291.00 attorney fee. Id. at 799. The trial court found that the fee was “grossly
disproportionate to the services [] rendered” and therefore, it found that the attorney could
not recover under the contract. Id. However, it awarded the attorney a $12,500 fee based
upon quantum meruit. This Court affirmed.

        On appeal, our Supreme Court examined the issue of “whether the contingency fee
contract itself and the [attorney’s] subsequent attempt to enforce that contract contravened
DR 2-106,” the predecessor to RPC 1.5. Id. The Court agreed that the attorney fee sought
was “clearly excessive,” noting that the estate matter was “not terribly complicated or
novel[,]” and therefore, it found the fee contract unenforceable. Id. at 801. However, the
Court reversed the lower courts’ judgments awarding an attorney fee on a quantum meruit
basis, holding that “an attorney who enters into a fee contract, or attempts to collect a fee,
that is clearly excessive under DR 2-106 should not be permitted to take advantage of
[quantum meruit].” Id. at 803.
        In the instant case, the majority apparently concludes that all allegedly excessive
attorney fee requests–notwithstanding the absence of any fee contract–must be considered
against White the backdrop. It is this conclusion with which I cannot agree. White’s
application has clearly been limited to cases involving contingent fee arrangements. See
Alexander v. Inman, 974 S.W.2d 689, 693 n.6 (Tenn. 1998) (“[B]ecause we find that the fee
is not contingent, the recent case [of] White v. McBride, 937 S.W.2d at 803, is inapplicable
to this case.”); see also Taylor v. Woods, 282 S.W.3d 285, 294 (Ark. Ct. App. 2008) (“In
support of [Appellant’s] argument [that the attorney’s claim was excessive, justifying the
denial of a claim for fees,] [Appellant] relies on White v. McBride, . . . . However, such
reliance is misplaced because [White] did not involve a claim against a decedent’s estate for
services performed for the decedent but rather a contingency contract with the surviving
spouse based on a percentage of the amount of the estate awarded to that spouse by operation
of law.”). Compare Hosier v. Crye-Leike Comm., Inc., No. M2008-01182-COA-R3-CV,
2001 WL 799740, at *7 (Tenn. Ct. App. July 17, 2001) (discussing White in a non-
contingent-fee case, but ultimately concluding that the fee requested was not “clearly
excessive,” and therefore, not expressly considering whether White would also have been
inapplicable because a contingent fee arrangement was not involved.).


       Because the instant case does not involve a contingent fee agreement, I believe the
White decision is not implicated, and thus, that the majority’s discussion of whether White
precludes the recovery of any fee is unnecessary. However, given the majority’s ultimate
conclusion that a reasonable fee is appropriate in this case, I concur in the result reached.




                                                  ALAN E. HIGHERS, P.J., W.S.
