JOSEPH G. WALKER, ET AL.,      )
                               )     NO. 01-A-01-9610-CH-00497
      PLAINTIFF/APPELLANT,     )
                               )     WILSON CHANCERY NO. 9191
v.                             )
                               )
BOARD OF EDUCATION OF
WILSON COUNTY,                 )
                                     )          FILED
                               )                  April 25, 1997
DEFENDANT/APPELLEE.            )
                                                Cecil W. Crowson
                                               Appellate Court Clerk

              COURT OF APPEALS OF TENNESSEE

               MIDDLE SECTION AT NASHVILLE

     APPEAL FROM THE WILSON COUNTY CHANCERY COURT

                   AT LEBANON, TENNESSEE

       THE HONORABLE ROBERT W. WEDEMEYER, JUDGE


WILLIAM L. HARBISON
Sherrard & Roe, PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
       ATTORNEY FOR APPELLANT LALETA SHIPPER

HENRY CLAY BARRY
106 South College Street
Lebanon, Tennessee 37087
      ATTORNEY FOR APPELLANT ALLEN BARRY

ERNEST W. COTTEN
202 East Gay Street
Lebanon, Tennessee 37087
       ATTORNEY FOR APPELLANT JOSEPH G. WALKER

MICHAEL R. JENNINGS
Wilson County Attorney
326 N. Cumberland Street
Lebanon, Tennessee 37087
       ATTORNEY FOR APPELLEE BOARD OF EDUCATION
       OF WILSON COUNTY




                    AFFIRMED AND REMANDED



                                           SAMUEL L. LEWIS, JUDGE
                                            O PINION


       This is an appeal by plaintiffs/appellants, Joseph G. Walker, Laleta Shipper and
Allen Barry, from a decision of the trial court dismissing their complaint to recover
attorneys’ fees from defendant/appellee, the Board of Education of Wilson County
(“the Board”). The facts out of which this matter arose are as follows.


       In February 1991, the District Attorney General initiated ouster proceedings
against Appellants and Frank Sadler, all members of the Board, on the
recommendation of the grand jury. The grand jury's decision was the result of its
investigation into audits that revealed the Wilson County School System had incurred
a budget deficit of approximately two million dollars for fiscal years 1988-90.


       Several things happened as the case proceeded to trial. Frank Sadler resigned
his board position rather than defend himself at trial. Appellants learned the Board’s
insurance would not cover the legal expenses associated with the ouster proceeding.
Also, Mike Jennings, the county attorney, informed Appellants he could not represent
them in the ouster proceeding because of a conflict of interest. Appellant Walker
testified that Mr. Jennings advised Appellants to retain their own counsel and that
Appellant Walker understood the Board would pay for it “out of a budget line item
for the school board.”1 Appellants each retained counsel to represent them, and the
case went to trial.


       At the end of the trial, the court directed a verdict in favor of Appellants as to
count nine and turned the remaining eight counts over to the jury. After hearing the
jury's findings, the court ordered the ouster of Appellants. Thereafter, Appellants
filed a motion for a new trial which the court denied. Appellants also filed a motion
for attorneys' fees in relation to the dismissed count pursuant to Tenn. R. Civ. P. 11
and 42 U.S.C. §1988.


       Appellants appealed the trial court's decision to oust them from the Board.


       1
          Appellants Shipper and Barry did not testify at trial because, according to their
attorneys, the testimony would have been cumulative to that of Appellant Walker.

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This court reversed the trial court after finding, in pertinent part, as follows: “We are
of the opinion after a thorough review of this record that the defendants have not
violated any of the duties assigned to them.” State v. Walker, 845 S.W.2d 752, 760
(Tenn. App. 1992). As a result, Appellants Walker and Barry were reinstated.
Appellant Shipper was not reinstated because her term had expired.


      On remand, the trial court entered an “Order for Cost” which awarded
Appellants costs pursuant to Tennessee Code Annotated section 8-47-122, but denied
their claims to attorneys' fees. The trial court determined it did not have authority to
order the Board to pay Appellants' attorneys' fees and concluded the Board should
determine the issue itself.


      Appellants then initiated a second appeal which this court dismissed for lack
of a final judgment. Thereafter, the trial court entered an order awarding a specified
amount of costs. Appellants initiated a third appeal. The western section heard the
case while sitting in Nashville. The western section determined Appellants were
entitled to Rule 11 sanctions as to count nine and were not entitled to fees under 42
U.S.C. §1988. State v. Walker, No. 01-A-01-9311-CR-00486, 1994 WL 164144, *4-
5 (Tenn. App. 4 May 1994).


      After the Board reinstated Appellants Walker and Barry, Appellants requested
the Board pay their attorney's fees. The Board refused. Prior to the filing of the
western section's decision, Appellants filed a complaint in the Wilson County
Chancery Court. Appellants claimed a motion carried by the Board on 8 October
1987 required the Board pay their attorney's fees. The minutes of the 8 October 1987
meeting provided: “Mrs. Shipper moved that any judgment rendered against any
Board member, Superintendent, or employee while acting in his or her official
capacity be paid for by the Board. Mrs. Webb seconded and the motion carried.”
Appellants also filed the affidavit of Felix Smallwood, Wilson County School
Superintendent from September 1984 to September 1988, in support of their
complaint. Mr. Smallwood stated the intent of the motion “was that the school
system was to pay the cost incurred as a result of litigation brought against school
system officials.” In response, the Board argued the trial court decided the issue in
the ouster proceeding and the 8 October 1987 minutes did not reflect a Board policy

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to pay attorney's fees.


      The chancery court entered its final judgment on 23 May 1996 wherein it
dismissed Appellants' complaint. The chancery court found there was no statutory
basis for an award of attorney’s fees and the Board did not establish a policy for
paying attorney's fees. Thereafter, Appellants filed a timely notice of appeal. The
sole issue on appeal is whether Appellants are entitled to recover their attorneys’ fees
from the Board.


      Appellants are not entitled to relief under Tennessee law. In 1879, the
Tennessee Supreme Court decided a similar case. Smith v. Nashville, 72 Tenn. 69
(1879). In Smith, the State brought a bill, on the relation of a number of Nashville
citizens, accusing the Mayor and Common Council of Nashville, the Mayor,
individual members of the City Council, and other city officials with gross
misconduct and with having brought the corporation to the verge of bankruptcy. Id.
at 70. On 5 June 1869, the Mayor retained an attorney to aid the City Attorney in the
defense of the case. The Mayor and the City Council ratified the Mayor’s action in
September 1869. Id. at 71. Thereafter, the attorney filed an action for his fees. The
trial court concluded the municipal corporation had no interest in defending the bill
and that neither the City Council nor the Mayor had the authority to bind the
municipal corporation. Thus, the trial court entered judgment against the attorney.
The Tennessee Supreme Court affirmed the judgment and stated:
             Where a municipal corporation has no interest in the event of a
      suit, or in the question involved in the case, it would seem clear that it
      could not assume the defense of the suit, or appropriate its money for the
      payment of the expenses incurred. . . . Most clearly the corporation
      could not appropriate money to defray the costs of an official who had
      been prosecuted for official misconduct, although he be acquitted.
Id. at 72 (emphasis added). The court then stated: “A retainer for the defense of any
suit in which the corporation is not directly interested would be of no avail to create
a corporate liability.” Id. at 73. This case is analogous to the case currently before
this court. Appellants have failed to provide any authority in opposition to the
holding in Smith. In a more recent case, this court concluded that “suits under the
ouster law are directed to the individual holding the office rather than the office
itself.” Marshall v. Sevier County, 639 S.W.2d 440, 444 (Tenn. App. 1982). After


                                          -4-
considering this holding and the decision in Smith, we must conclude the City did not
have an interest in the suit. Thus, Appellants can not recover their attorney’s fees at
law.


       Appellants also argue they are entitled to their attorneys’ fees because the
Board had a policy or practice of paying its member’s attorney’s fees. There was no
policy. In 1987, the Board’s rules required there be three readings before a proposal
became a policy. The 8 October 1987 motion never received three readings. Even
if we were to conclude there was a practice as opposed to a formal policy, we could
not reverse the trial court on that basis alone. In Marshall, this court considered a
similar argument and determined it was without merit. Marshall, 639 S.W.2d at 445.
Moreover, Appellants have failed to cite any equitable principles entitling them to
relief. There is no evidence the City benefited from Appellants’ actions or that
Appellants relied on the City’s “practice” when they hired independent counsel.


       Despite our desire to overrule the chancery court, we were unable to find a
legal or equitable ground upon which to base such a ruling. The history of the case
reveals Appellants had done nothing wrong, but were forced to incur substantial
attorneys’ fees nonetheless. Should the Tennessee Supreme Court take this issue up
for consideration, we hope they are able to devise a just result.


       Therefore, it follows that the decision of the chancery court is affirmed and the
case remanded for any further necessary proceedings. Costs on appeal are taxed to
plaintiffs/appellants, Joseph G. Walker, Laleta Shipper, and Allen Barry.




                                                _____________________________
                                                SAMUEL L. LEWIS, JUDGE

CONCUR:


______________________________
HENRY F. TODD, P.J., M.S.




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______________________________
BEN H. CANTRELL, J.




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