                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   July 12, 2011 Session

                  LARRY E. PARRISH, P.C. v. DODSON ET AL.

                  Appeal from the Chancery Court for Lincoln County
                          No. 13039   J. B. Cox, Chancellor


              No. M2011-00349-COA-R3-CV - Filed September 29, 2011


The former attorney of a client filed a seldom used “In Rem Complaint to Trace and Recover
Res” to prosecute a chose-in-action assigned by the former client in payment of attorney’s
fees. The funds to be recovered by this action were being held in trust by another law firm
following the resolution of a separate, but related action. The former client filed an answer
asserting that the assignment was unconscionable, thus, unenforceable; she also filed a
counter-claim against her former attorney for breach of contract and breach of fiduciary duty.
Both parties filed motions for summary judgment. The trial court found that certain
provisions of the assignment were unconscionable and others were not and granted partial
summary judgment to each party. Finding that the provision awarding $50,000 to the plaintiff
was not unconscionable, the trial court granted a judgment in the plaintiff’s favor for that
amount plus interest. The trial court also awarded the former client $10,000 in attorney’s fees
upon a finding that she was the “prevailing party” in this action. Both parties appeal. We
reverse upon a finding that there are genuine issues of material fact that preclude a grant of
summary judgment to either party and remand for further proceedings.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Reversed 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.

Timothy T. Ishii, Nashville, Tennessee, for the appellant, Nancy J. Strong.

Kevin W. Weaver, Cordova, Tennessee; and Megan McCune, Memphis, Tennessee, for the
appellee, Larry E. Parrish, P.C.
                                                    OPINION

      This appeal arises from separate but related actions and three previous appeals; the
only common element being the defendant/counter-claimant, Nancy J. Strong. The
procedural history, part of which we must address here, can best be described as a decade
long morass, which arose from a partnership dispute.

        In the initial action, a partnership dissolution action by Paul Braden against Nancy
Strong, Ms. Strong was represented in the trial court by attorney John Baker, III. Being
dissatisfied with the ruling of the trial court in the partnership dissolution action, Ms. Strong
terminated Mr. Baker’s services and retained attorney Donald Capparella of Dodson, Parker,
Behm & Capparella, P.C., to represent her on appeal. Mr. Capparella represented Ms. Strong
in not one but two appeals involving the partnership dispute. See Braden v. Strong, No.
M2004-02369-COA-R3-CV, 2006 WL 369274 (Tenn. Ct. App. Feb. 16, 2006)1 ; Braden v.
Strong, No. M2008-00216-COA-R3-CV, 2009 WL 276737 (Tenn. Ct. App. Feb. 3, 2009).

       During the pendency of the first appeal in Braden v. Strong, Ms. Strong hired attorney
Larry Parrish of Larry E. Parrish, P.C., to file a legal malpractice action against John Baker.
Ms. Strong entered into a retainer agreement with Mr. Parrish on December 30, 2004. On
January 11, 2005, the legal malpractice action against John Baker and his law firm 2 was filed.
Pursuant to a scheduling order entered in that action, discovery was to be completed by
November 15, 2005.


        1
            In the first appeal of this dispute, this court ruled as follows:

        The order of the trial court is affirmed as to the finding that the construction business was
        an implied partnership, that this partnership be dissolved and assets divided twenty-five
        percent (25%) to [Paul Braden], twenty-five percent (25%) to [Nancy Strong], and fifty
        percent (50%) to [Eddie Braden], and as to the dissolution of the remaining two partnerships
        effective January 12, 2004. . . . The trial court’s order is, in all other aspects, reversed and
        remanded for consideration of capital account adjustments for [Paul Braden and Nancy
        Strong], for a complete accounting of the construction business, Braden
        Construction/Braden LLC, and for consideration of [Nancy Strong’s] claims of breach of
        contract and breach of fiduciary duty for [Paul Braden’s] exclusion of [Nancy Strong] from
        the Landscaping Concepts partnership.

        Braden, 2006 WL 369274, at * 1.
        2
         The complaint also alleged causes of action for negligence, breach of express contract, breach of
implied contract, intentional misrepresentation, violations of the Tennessee Consumer Protection Act, and
intentional infliction of emotional distress. See Strong v. Baker, No. M2007-00339-COA-R3-CV, 2008 WL
859086 (Tenn. Ct. App. Mar. 31, 2008).

                                                         -2-
       During the pendency of the malpractice action against John Baker, both Ms. Strong
and Mr. Capparella, her attorney in the partnership action, requested that Mr. Parrish stay the
legal malpractice action pending the outcome of the appeal in the partnership dispute. Ms.
Strong also notified Mr. Parrish that she was concerned about her ability to finance two
lawsuits at the same time due to the fact she was obligated to pay hourly fees to her attorneys
in each case.

       On November 4, 2005, Mr. Parrish sent an email to legal counsel for John Baker
suggesting an agreed order for a stay; for reasons unexplained by this record, no stay was
ever entered. Thereafter, Mr. Parrish continued to prosecute the legal malpractice action
against Mr. Baker; however, as the record in Strong v. Baker reveals, Mr. Parrish failed to
comply with deadlines in the scheduling order, most significantly the deadline to disclose
expert witnesses by December 31, 2005. In August 2006, Mr. Parrish told Ms. Strong that
he would file a motion with the trial court in the legal malpractice action to withdraw as her
attorney unless he received payment of past due fees and reimbursement of advance
expenses. She made a partial payment and, as of September 21, 2005, Ms. Strong had paid
$38,371.92 in attorney’s fees to Parrish.

       Several months later, in February of 2006, John Baker filed a motion to summarily
dismiss the legal malpractice action, asserting that his conduct had not breached the standard
of professional practice for attorneys. In response to this motion, Mr. Parrish filed a motion
on behalf of Ms. Strong to stay the proceedings, along with a response to the motion for
summary judgment asserting that damages in the legal malpractice remained uncertain
pending the decision of this court in the partnership dissolution action.3 The trial court denied
the motion to stay.

        The cross motions for summary judgment were heard on August 23, 2006. At the time
of the hearing, Mr. Parrish had failed to file an expert affidavit on behalf of Ms. Strong that
addressed the standard of professional practice for attorneys. Following arguments, the court
granted summary judgment to John Baker upon the finding there were no genuine issues of
material fact due in principal part to the fact there was no expert testimony to establish a
breach of the standard of care. Thus, Ms. Strong’s legal malpractice claim against Mr. Baker
was summarily dismissed.

       On the same day as the dismissal of the legal malpractice claim, Mr. Parrish
recommended to Ms. Strong that a motion to alter or amend be filed. During the same
discussion, Mr. Parrish presented Ms. Strong with a document entitled “Assignment Of


        3
         Three years later, the partnership dissolution action was concluded with the entry of a judgment in
favor of Ms. Strong in the amount of $261,361.84 on March 9, 2009.

                                                    -3-
Chose-In-Action,” pursuant to which Ms. Strong would be assigning the rights and
entitlements from her suit in the partnership dissolution action to “secure payment and
reimbursement of money advanced to defray costs and expenses” in accordance with the
retainer agreement previously entered. It stated the “maximum principle indebtedness” from
the assignment was $50,000. It also provided that if a dispute arose, the “prevailing party”
would be assessed attorney’s fees and costs. Whether Mr. Parrish advised Ms. Strong that she
had the right to or should seek independent advice regarding the chose-in-action is disputed.
Five days later, on August 28, 2006, Ms. Strong signed the chose-in-action without
consulting an attorney and delivered it to Mr. Parrish.

       As recommended by Mr. Parrish, a motion to alter or amend the summary dismissal
of the malpractice action was filed; it was subsequently denied by the trial court. Ms. Strong
appealed. This court affirmed the dismissal of her malpractice claim against Mr. Baker in
October of 2008. See Strong v. Baker, 2008 WL 859086, at *1 .

                      T HE C OMMENCEMENT OF THE C ASE ON A PPEAL

       On March 16, 2009, Larry E. Parrish, P.C., filed its complaint to commence this
action; the caption of which reads as follows:

                               L ARRY E. P ARRISH P.C.,
                      A T ENNESSEE P ROFESSIONAL C ORPORATION
                                          VS.
               $116,316.35 A CCRUED INTEREST P LUS A CCRUING INTEREST
              T RACEABLE TO V ARIOUS P ERSONS, INCLUDING R ESPONDENTS,
                       IN P OSSESSING D OMINION AND C ONTROL
                         OF ANY P ORTION OF THE $116,316.35
                                         R ES

                     D ODSON, P ARKER, B EHM & C APPARELLA, P.C.
                    A T ENNESSEE P ROFESSIONAL C ORPORATION, AND
                                   N ANCY J. S TRONG
                                    AN I NDIVIDUAL


                                       R ESPONDENTS




                                             -4-
        The title of the Complaint reads as follows:

                 S WORN IN R EM C OMPLAINT TO T RACE AND R ECOVER R ES AND
            O THER E QUITABLE R ELIEF, INCLUDING AN IMMEDIATELY ISSUED O RDER,
                    P URSUANT TO T ENNESSEE R ULES OF C IVIL P ROCEDURE,
                              R ULE 67.02 AND R ULE 67.03, AND
                              F OR C OSTS AND A TTORNEYS F EES

        The In Rem Complaint by Larry E. Parrish P.C. (“the Corporation”) set forth a claim
that the Corporation was entitled to $116,316.35 (the “res”) pursuant to the assignment of the
chose-in-action by Ms. Strong.4 The Corporation also sought, inter alia, an injunction
precluding the law firm of Dodson, Parker, Behm and Capparella (“Dodson Parker”) from
dispersing $261,361.84, the proceeds from the partnership dissolution action which were
being held by that firm. The Corporation also sought additional affirmative relief against Ms.
Strong, Dodson Parker, and twenty John Does.

      Although the Corporation sought affirmative relief from Ms. Strong and the firm of
Dodson Parker, they were identified in the complaint as “non-party respondents.” The
Corporation did not prepare or file with the clerk any summons for service on Ms. Strong or
Dodson Parker. Accordingly, no summons were ever issued or served.

       Following a hearing on the Corporation’s request for an injunction to preclude Dodson
Parker from dispersing any of the proceeds from the partnership dissolution action, the
injunction was granted. Subsequently, Dodson Parker was granted leave to disperse
$82,249.40 to itself, the amount of the attorneys’ fees the firm had earned in the partnership
dispute, and it was permitted to transfer the remaining proceeds to the trust account of
another attorney of Ms. Strong. Upon remittance of the remaining proceeds, Dodson Parker
was dismissed with prejudice. Thereafter, the attorney holding the funds in trust was granted
leave to withdraw, at which time the funds were deposited with the Clerk and Master of the
Chancery Court of Lincoln County where they remain.

      In the interim, although she was not served with a summons, Ms. Strong filed an
Answer to the In Rem Complaint; she also filed a Counter-Complaint against the
Corporation. In her Answer, Ms. Strong denied the Corporation’s entitlement to the res




        4
          During oral argument, in response to a statement from the panel commenting on the uniqueness of
the initial pleading filed by Mr. Parrish on behalf of the Corporation, Mr. Parrish’s attorney stated that Mr.
Parrish often “thinks out of the box.” No one disputed this statement.

                                                     -5-
claiming that Mr. Parrish violated numerous professional conduct rules in the procurement
of the chose-in-action. In her Counter-Complaint, Ms. Strong asserted claims for legal
malpractice, breach of contract, and violations of the Tennessee Consumer Protection Act.

        The Corporation subsequently filed a motion to amend its complaint seeking to
remove all references to the non-party respondents; however, there is no order in the record
ruling on this motion. The Corporation then filed a motion to strike and a motion to dismiss
Ms. Strong’s Answer and Counter-Complaint, contending that Ms. Strong was not “a party”
to the in rem action and that an in personam counter-claim could not be asserted in an in rem
action. Ms. Strong filed a response. There are no orders in the record ruling on either of these
motions.

       Thereafter, the Corporation filed a motion for entry of a final judgment and
disbursement of the res; it also moved to dismiss Ms. Strong’s counterclaims for legal
malpractice and violations of the TCPA. On August 13, 2009, Ms. Strong took a voluntary
nonsuit of her counterclaims for legal malpractice and violations of the TCPA; an order of
nonsuit was entered by the trial court on August 18, 2009. Ms. Strong’s claim for breach of
contract remained.

       On August 21, 2009, the Corporation filed a partial nonsuit of its claim. A second
notice of voluntary nonsuit without prejudice was filed on August 24, 2009. However, and
again for reasons not explained by the record, the record before us does not contain an order
of nonsuit.5

       Both the Corporation and Ms. Strong subsequently filed motions for summary
judgment and each party filed a response to the other’s motion. Ms. Strong also filed a
motion to dismiss and an amended motion to dismiss. The court heard arguments on all
motions on November 3, 2009, after which the trial court took them under advisement. In an
extensive Memorandum Opinion filed on March 23, 2010, the trial court made the following
preliminary statement and set forth its findings:

              Moving quickly on to the remaining morass of pleadings, the Court is
        of the opinion that the case is more appropriately adjudicated via the

        5
          Pursuant to Tenn. R. Civ. P. 41.01(1), but for a few exceptions stated in the rule, a plaintiff “shall
have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of
dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties, . . .”
However, subsection (3) of the rule expressly requires that notice of a voluntary nonsuit to dismiss an action
without prejudice must “be followed by an order of voluntary dismissal signed by the court and entered by
the clerk.” Id. Because no order was entered voluntarily dismissing portions of the Corporation’s claims, they
have not been dismissed.

                                                      -6-
competing summary judgment motions. The Court has difficulty in analyzing
the case in the appropriate context as all the parties have gone far afield of
T.R.C.P. 56.03 in framing the issues for summary judgment by reliance on
other affidavits, etc. Rather than rest on a technicality for adjudication of the
res the Court will attempt to consider all the statements and affidavits
pertaining to the competing summary judgment motions. The Court believes
the following facts are undisputed as represented to the Court in Competing
motions for summary judgment by the parties.

1. Parrish PC is a professional corporation whose members are licensed to
practice law in the state of Tennessee.
2. Larry Parrish is the president of this professional corporation and acts as its
agent.
3. Nancy Strong is a layperson not educated in the law.
4. December 30, 2004, Strong engaged Parrish PC to represent her in a
subsequent lawsuit for legal malpractice filed in the Circuit Court of Lincoln
County, Tennessee, Styled Strong v. Baker.
5. This employment was accomplished via a retainer agreement which
include[s] the details of the employment, which was to be billed at an hourly
rate, the terms of payment, and a client guide outlining the respective roles of
the parties to the retainer agreement.
6. This agreement required Strong to keep $2000 in the PC trust account to be
billed against by the PC and it outlined the obligation of Strong to make
reimbursement for advances of expenses.
7. The client guide outlined the fiduciary nature of the relationship between
Parrish PC and Strong.
8. Parrish PC billed pursuant to the retainer agreement in excess of $150,000.
9. Strong fell behind in her ability to keep current on the invoices provided her
by Parrish PC.
10. During this time Strong paid to Parrish PC some monies for expenses and
legal fees.
11. Strong v. Baker progressed forward during the time when Braden v. Strong
was on appeal. The outcome of Braden v. Strong provided the avenue for
recovery, if any, and value, if any, of the malpractice action against Baker.
12. During the progress of Strong v. Baker, Mr. Baker filed an affidavit as an
expert to support his position that he had not violated the standard of care.
        ....

16. The Court announced a ruling from the bench on August 23, 2006
unfavorable to Strong.

                                       -7-
      17. An order memorializing this ruling was entered in September, 2006.
      18. The failure to file a counter affidavit was fatal to the malpractice action as
      noted by the trial court and upheld by the court of appeals.
      19. The date of the chose in action’s execution was August 28, 2006.
      20. The parties entered into the chose in action after discussions surrounding
      the outcome of Strong v. Baker.
      21. Strong’s initials appear on each and every page of the chose and her
      signature appears on the last page. Said signature is notarized.
      22. No advice was given to Strong that she had a right to independent advice
      on the issue of the chose in action separate and apart from the malpractice
      action she was participating in.
      23. The Court is relying on the chose as if rewritten here verbatim. It is
      incorporated by reference.
      24. The chose was signed by Strong in Lincoln County, Tennessee on August
      28, 2006.
      25. Parrish PC is located in Memphis, Tennessee.
      26. Ms. Strong was also represented by Don Capparella at the time of her
      execution of the chose for the purposes of pursuing Braden v. Strong to its
      conclusion.
      27. Mr. Capparella advised Parrish PC to obtain a stay of the malpractice
      action while Braden v. Strong was on appeal.
      28. The chose provides for the “prevailing party” to be assessed Attorney fees
      and costs.
      29. The retainer agreement does not provide for attorney’s fees or interest on
      collection.
      30. Strong allowed Parrish PC to continue to represent her for the appeal of the
      grant of summary judgment of the trial court.
      31. The appeal against Baker was similarly unsuccessful.
      32. Any malpractice component to this action has been dismissed by Strong.

      The above findings were then followed by the trial court’s observations and
determinations as stated below:

              The sole issue for the Court’s consideration is whether the “chose in
      action” is an unconscionable contract. The Court needs to be clear in this
      circumstance. The Court is not adjudicating a legal malpractice dispute. The
      Court is not adjudicating a fee dispute between lawyer and client. Parrish PC
      asserts a right to the funds pursuant to the language of the chose in action on
      the basis that it constitutes the parties understanding of their relationship to
      each other as of the date of its execution. Parrish claims a right to the res

                                             -8-
       pursuant to that contract. That contract alone is the only basis by which the
       Court could disburse the funds to any other entity than Ms. Strong.

      Following a recitation of the legal principles to be applied when analyzing the issue
of unconscionability, the trial court stated:

              This chose in action is best analyzed in the context of its procurement.
       The discussion regarding the chose in action occurred in the month of August
       2006. At the time of the discussions Parrish PC represented Ms. Strong in the
       Strong v. Baker action. August 23, 2006 came without a chose in action
       contract and Parrish PC via Larry Parrish appeared to argue the summary
       judgment motions in the Baker case. At the time argument proceeded Parrish
       PC and its agent Larry Parrish knew that no expert affidavit had been filed in
       the case and that the case had not been stayed. Parrish PC argued the motion
       and lost. While at the courthouse, Parrish PC just happened to have a final
       draft of the chose in action for the consideration of Ms. Strong. There were
       discussions about what had happened that day and what would happen next.
       Ms. Strong had been on notice of the need to catch up on Parrish PC’s billing
       as early as August 10, 2006. She was behind on billing as of the date of the
       discussions as well as the date she signed the contract. She did not sign the
       contract there at the courthouse and she had an opportunity to have the contract
       reviewed before signing it whether she took that opportunity or not. She was
       never advised that she could seek outside advice as to the propriety of the
       contract she was entering into, but she was under no direct pressure to sign the
       contract before leaving the courthouse.

              The contract is on its face unconscionable because it restricts the right
       of Ms. Strong to contest the appropriateness of the fee and leaves open ended
       the amount that might be recovered by [Parrish PC]. A person of common
       sense would not have traded these rights without an upside benefit. The upside
       benefit is impossible to see in the face of the trial court’s ruling against Ms.
       Strong for not filing an affidavit in opposition to Mr. Baker’s affidavit. Parrish
       PC enjoyed uneven bargaining power which was exacerbated by the
       circumstances of the loss of the underlying action by the inaction of Parrish
       PC. Whether it was malpractice is not for this Court to decide, the actions are
       circumstances surrounding the execution of the contract. Whether Parrish PC
       may be successful in an action for its fees is not before this Court.

             For the foregoing reasons the Court finds that the contract is
       unconscionable as a matter of law. The Court will not enforce its provisions.

                                              -9-
      Costs of the cause are adjudged against Parrish PC and counsel for Ms. Strong
      shall prepare an order consistent with this memorandum. The order shall
      contain language consistent with T.R.C.P. 54 that it is a final order.

             This Court cannot say that in analyzing the facts and circumstances of
      the contract and how it came to be that the facts and circumstances are not so
      one-sided that Ms. Strong was denied the opportunity to make a meaningful
      choice. She had the opportunity to make a meaningful choice. She had other
      people to turn to between the time she was presented the document and the
      time that she signed it. It is not patently unconscionable that an individual
      would enter into a chose in action to pay less money in attorney fees than was
      owed. The contract is not unconscionable as a matter of law and Parrish PC’s
      claim to $50,000 plus interest must be sustained.

              This memorandum shall be reduced to an order format by the prevailing
      party. Pursuant to the chose in action contract, the Court must award attorney
      fee’s. Costs of the cause are adjudicated against the non prevailing party and
      the order of judgment shall contain language consistent with T.R.C.P. 54 as it
      is a final order.

      Pursuant to the directive in the last paragraph of the Memorandum Opinion, an order
was entered that reads in pertinent part as follows:

              This matter is before the Court upon three specific matters. The first is
      a Motion to Dismiss pursuant to Rule 12 by the Respondent, Motion for
      Summary Judgment by the Plaintiff and cross-motion/counter-motion for
      Summary Judgment by the Respondent.
              The Court heard oral argument on all matters November 3, 2009 and
      has rendered its Memorandum Opinion March 23, 2010.
              The Court finds in its Memorandum Opinion that the Motion to Dismiss
      pursuant to Rule 12 by Respondent Strong is overruled.
              Further that the original Motion for Summary Judgment by the Plaintiff
      [Parrish, P.C.] is overruled consistent with the terms of the Memorandum
      Opinion as incorporated herein by reference.
              The Court further finds upon review of the “Chose” that the portion
      awarding attorney’s fees and interest was not unconscionable and find that the
      plaintiff, Parrish, P.C. is entitled to $50,000.00 plus interest.
              The Court further finds that the Respondent’s Motion for Summary
      Judgment is hereby sustained and as the prevailing party is awarded attorney’s
      fees and the costs are taxed against the original Plaintiff, Parrish, P.C.

                                            -10-
              It is therefore
              ORDERED that Respondent’s Motion to Dismiss pursuant to Rule 12
       is overruled and is a final order per Rule 54 T.R.C.P. Further, it is
              ORDERED that Plaintiff’s Motion for Summary Judgment is overruled
       and is a final order per Rule 54 T.R.C.P. Further, it is
              ORDERED that Respondent’s Motion for Summary Judgment is hereby
       sustained and the Court’s Memorandum Opinion is incorporated herein by
       reference as if specifically set out verbatim and is a final order per Rule 54
       T.R.C.P. Further, it is
              ORDERED that the Court further finds upon review of the “Chose” that
       the portion awarding attorney’s fees and interest was not unconscionable and
       find that the plaintiff, Parrish, P.C. is entitled to $50,000.00 plus interest.
       Further it is
              ORDERED that upon application the Respondent [Ms. Strong] will be
       awarded attorney’s fees. Costs are taxed to the Plaintiff, Parrish, P.C. for
       which execution may issue if necessary.

        Thereafter, Ms. Strong filed her application for attorney’s fees and discretionary costs.
She also filed a Tenn. R. Civ. P. 54.02 motion to alter or amend the above order contending
the trial court erred in awarding the Corporation $50,000 based upon the assignment, because
it is unconscionable and, alternatively, asserting that she should be given a credit for
$38,371.92 in fees that she previously paid the Corporation. In the final order that followed,
the trial court awarded Ms. Strong $10,000 as a portion of the attorney’s fees she incurred
to defend this action in the trial court. She was also awarded discretionary costs. The court,
however, denied her request for a credit of $38,371.92 for fees previously paid.

        Ms. Strong then filed a timely notice of appeal. Shortly thereafter, the Corporation
filed a motion before this court contending that the appeal should be dismissed for lack of
jurisdiction. This was based on the Corporation’s contention that Ms. Strong was not a party
to the in rem action, insisting that she was merely a non-party respondent, and she could not
perfect an appeal from an action to which she was not a party. On June 1, 2011, prior to oral
arguments, we issued an order denying the motion to dismiss stating:

       The appellee [the Corporation] asserts the appellant [Ms. Strong] was not a
       party to the proceedings in the trial court and thus lacks standing to initiate an
       appeal of the judgment. Having carefully reviewed both the appellee’s motion
       and the appellant’s response, we conclude that the appellant has standing and
       thus decline to dismiss the appeal.

       Having denied the motion to dismiss, oral arguments were heard on July 12, 2011.

                                              -11-
Our opinion in this matter follows.

                                          A NALYSIS

        Both parties raise issues on appeal. Ms. Strong contends that the trial court erred in
granting the Corporation’s motion for summary judgment and awarding $50,000 to the
Corporation. For its part, the Corporation contends the trial court erred in awarding attorney’s
fees to Ms. Strong as she was not the “prevailing party.”

                                               I.
                  M S. S TRONG: A P ARTY OR A N ON-P ARTY R ESPONDENT

        As mentioned earlier, the Corporation filed a motion to dismiss the appeal prior to oral
argument. The motion to dismiss was based on the Corporation’s assertion that Ms. Strong
is not a party to this action, merely a “non-party respondent”; thus, it asserted, she has no
right to challenge the Corporation’s efforts to collect the res. We denied the motion by order
entered June 1, 2011; we did not explain our reasoning in that order and wish to do so now.

       The Corporation’s insistence that Ms. Strong is merely a “non-party respondent”
notwithstanding, we determined she is a necessary party due in principal part to the fact the
Corporation sought to obtain judicial relief against her in its complaint. The Corporation’s
expressed intent to obtain judicial relief against Ms. Strong cannot be disputed and is evident
from reading pertinent parts of the complaint:

       8. DECLARE that, as a matter of law, all respondents are constructive
       trustees with a fiduciary duty to Plaintiff in the use of Res, as trust corpus, for
       the sole benefit of Plaintiff;

       9. DECLARE that all respondents are obligated, forthwith and without further
       delay, to turn over Res to Plaintiff;

       10. MANDATING that any and all respondents who ever received any part or
       portion of Res are enjoined, henceforth and forevermore, from disbursing,
       destroying or otherwise mitigating the possession or relinquishing control over
       said portion or part of Res, except by delivery of the part or portion of Res
       received by the respondent, plus interest specified in the Assignment, from and
       since respondent’s receipt, dominion or control of Res or any portion thereof;

       11. MANDATING that each respondent who ever has received any part or
       portion of Res, forthwith, to deliver to the Court, for keeping in the Registry

                                              -12-
       of the Court until disbursed by the Court according to law, that part or portion
       of Res that respondent now has, plus interest has accrued, as specified in the
       Assignment, since said respondent has had possession, dominion and control
       of Res or a portion of Res and disbursed to another respondent;

       12. ADJUDGING that Plaintiff be paid by a respondent equal to reasonable
       costs and attorneys fees incurred because of the prosecution of the instant
       case;

(Emphasis added).

        The lack of a court’s jurisdiction, and thus power, to issue an injunction against a non-
party, or to otherwise issue a mandatory order, is evident from this Court’s discussion in Carr
v. McMillan, No. M2007-00859-COA-R3-CV, 2008 WL 2078058, at *8-9 (Tenn. Ct. App.
May 14, 2008). In that matter, which involved custody of the parties’ children, the father of
the children correctly asserted that the trial court “erred by issuing injunctions against
persons who are not parties to this action.” Id. at *9. The challenged order stated: “[a]ll of
the parties involved including Grandmother, Father, the two grandfathers, Father’s new wife
and the extended families of each are to say nothing negative about any of the other parties
or the parties’ families.” Id. However, the trial court erroneously identified the extended
family as parties, they were not; the only parties in Carr v. McMillan were the parents, Mrs.
Carr and Mr. McMillan. Id. As we explained:

       Although it is clearly in the child’s best interest for [the grandmother], as well
       as the extended families of the parties, to comply with the Order, they are not
       subject to the jurisdiction of the court and thus they, as non-parties, are not
       subject to the injunction.

Id. (citing Henderson v. Mabry, 838 S.W.2d 537, 541 (Tenn. Ct. App. 1992)). Accordingly,
on remand, we instructed the trial court in Carr “to modify the judgment to delete that
portion of the Order that seeks to enjoin persons other than the parties to this action.” Id.

        There are numerous cases in which this court and others have held that a trial court
has no jurisdiction and, thus, no authority to issue orders against persons who are not parties
to the action. See Culwell v. Culwell, 133 S.W.2d 1009 (Tenn. Ct. App. 1939) (holding that
a divorce court has no power to impound property in which neither party has an interest, legal
or equitable); see also AmSouth Bank v. Cunningham, 253 S.W.3d 636, 640 n.6 (Tenn. Ct.
App. 2006) (citing Tenn. R. Civ. P. 14) (“When a claim is being asserted against a non-party




                                              -13-
over which the court does not yet have personal jurisdiction, it is a third party claim, which
carries with it a duty to issue summons and to comply with due process requirements.”).6

       Accordingly, the trial court in this action would have had no power and no jurisdiction
to grant the Corporation the relief it sought in paragraphs 8, 9, 10, 11, and 12 of its
Complaint unless Ms. Strong was a party to the action. The Corporation, however, failed to
prepare a summons for Ms. Strong, thereby thwarting the issuance or service of summons
on her. As a consequence, she would not have been subject to personal jurisdiction without
such service of process; however, Ms. Strong waived service of process by filing an Answer
and Counterclaim. See Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994) (holding that
a court’s lack of personal jurisdiction may be waived and “one method of waiver is by
making a voluntary ‘general appearance’ before the court in order to defend the suit on the
merits, . . .”); see also Dixie Savings Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. Ct.
App. 1988). Accordingly, Ms. Strong acquiesced to the jurisdiction of the court.

       For the above reasons, we find the Corporation’s assertion that Ms. Strong is not a
party to this action without merit, and as a party, Ms. Strong has standing to pursue this
appeal.

                                            II.
                   T HE C ORPORATION’S M OTION FOR S UMMARY J UDGMENT

       The Corporation filed a motion for summary judgment contending it was entitled to
judgment as a matter of law because there were no genuine issues of material fact and under
the document entitled “Assignment of the Chose-in-Action,” it was entitled to recover the
res. As the moving party, the Corporation is entitled to summary judgment “only if the
pleadings, depositions, interrogatories, admissions and affidavits show there is no genuine
issue as to any material fact and that he is entitled to a judgment as a matter of law.” Martin
v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008) (quoting Tenn. R. Civ. P. 56.04;
accord Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000)). “The moving party
has the ultimate burden of persuading the court that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law.” Id. (citing Byrd v.
Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).


        6
         Two of the most fundamental requirements of due process are notice and an opportunity to be heard.
Phillips v. State Bd. of Regents of State Univ. & Cmty. Coll. Sys. of State of Tenn., 863 S.W.2d 45, 50
(Tenn.1993). The purpose of these requirements is to assure that persons to be affected by a court’s ruling
are “‘informed that the matter is pending and can choose for [themselves] whether to appear or default,
acquiesce or contest.’” Greene v. Lindsey, 456 U.S. 444, 449 (1982) (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)).

                                                   -14-
        The Corporation moved for summary judgment on its claim for entitlement to the res
based upon the document entitled “Assignment of Chose-In-Action.” In response, Ms. Strong
responded creating a dispute regarding several of the statements of undisputed material fact
that the Corporation filed in support of its motion. We find these facts to be material to the
ultimate issue in dispute and, therefore, hold the trial court erred in granting summary
judgment to the Corporation.

                                              A.

        “The assignment of a chose in action is considered to be a contract, and, as with any
contractual agreement, it must meet requisites such as mutual assent and consideration.”
Denley Rentals, LLC v. Etheridge, No. W2000-00189-COA-R3CV, 2001 WL792646, at *3
(Tenn. Ct. App. July 11, 2001) (citing Hutsell v. Citizens Nat’l Bank, 64 S.W.2d 188, 190
(Tenn. 1933)). The determination of whether an assignment is valid is a question of law. Id.
(citing Ford v. Robertson, 739 S.W.2d 3, 5 (Tenn. Ct. App. 1987)).

        The trial court narrowed the issues to whether the assignment was unconscionable
and, if so, unenforceable either in whole or in part. “Unconscionability may arise from a lack
of a meaningful choice on the part of one party (procedural unconscionability) or from
contract terms that are unreasonably harsh (substantive unconscionability).” Trinity Indus.,
Inc. v. McKinnon Bridge Co., Inc., 77 S.W.3d 159, 170-71 (Tenn. Ct. App. 2001) (citing
Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965)). As we noted in
Trinity:

       In Tennessee we have tended to lump the two together and speak of
       unconscionability resulting

              when the inequality of the bargain is so manifest as to shock the
              judgment of a person of common sense, and where the terms are
              so oppressive that no reasonable person would make them on
              one hand, and no honest and fair person would accept them on
              the other.

       Haun v. King, 690 S.W.2d 869 at 872 (Tenn. Ct. App. 1984). Where the
       parties possess equal bargaining power the courts are unlikely to find that their
       negotiations resulted in an unconscionable bargain, Royal Indemnity Co. v.
       Westinghouse Electric Corp., 385 F.Supp. 520 (S.D.N.Y.1974), and terms that
       are common in the industry are generally not unconscionable. Posttape
       Associates v. Eastman Kodak Co., 450 F.Supp. 407 (E.D.Pa.1978); D.O.V.

                                             -15-
       Graphics, Inc. v. Eastman Kodak Co., 46 Ohio Misc. 37, 347 N.E.2d 561
       (Common Pleas 1976).

Id. at 171.

        The trial court determined that portions of the assignment were unconscionable on its
face because it restricted the right of Ms. Strong to contest the appropriateness of the fee and
left open-ended the fee the Corporation could recover. The trial court also found that the
Corporation “enjoyed uneven bargaining power which was exacerbated by the circumstances
of the loss of the underlying [legal malpractice] action . . . [against Baker].”

                                              B.

       Ms. Strong contends that the assignment was unconscionable both procedurally and
substantively because of the circumstances leading up to the signing of the assignment
including the conduct of attorney Parrish in representing her in the legal malpractice action
and the terms of the assignment itself.

       Based upon the record, specifically, the respective statements of “undisputed facts”
and “disputed facts,” we find there are material facts in dispute pertaining to the
circumstances of the signing of the assignment and the dismissal of the underlying legal
malpractice claim against John Baker. As the record reflects, the Corporation contends that
Mr. Parrish informed Ms. Strong that an expert affidavit on the issue of the professional
practice standard was necessary for the hearing and that Ms. Strong stated that she did not
want to pay for such an expense, as she was already concerned about the costs. Ms. Strong
vigorously disputes these alleged facts. Ms. Strong states that she was never informed of
being in a precarious position going into the hearing on the summary judgment motion; to
the contrary, she believed Mr. Parrish had obtained the requisite expert witnesses to prevail
on the motion.

        The Corporation also contends that Ms. Strong was advised of the option of taking a
voluntary nonsuit. In her affidavit, Ms. Strong, however, claims that Mr. Parrish never
informed her of a nonsuit option. It is also disputed as to what occurred in the meeting
between Mr. Parrish and Ms. Strong following the summary dismissal of her suit against
John Baker. The Corporation contends that Mr. Parrish explained the ruling to Ms. Strong
and answered all of her questions for two and a half hours following the end of the hearing.
Ms. Strong contends that Mr. Parrish told her the decision by the trial judge was incorrect,
that a motion to alter or amend would be filed, and that they would win such a motion as the
law was on their side. Ms. Strong then states that Mr. Parrish told her that the assignment
needed to be signed very soon for him to continue to represent her.

                                              -16-
       Based upon the foregoing and other disputed facts that are material to the issue, we
have concluded that facts material to issues raised by the Corporation’s motion for summary
judgment and Ms. Strong’s opposition thereto are in dispute, including the issues of whether
the assignment was unconscionable, whether the parties had equal bargaining power, and
whether Mr. Parrish recommended that Ms. Strong seek independent advice concerning the
assignment he proposed. Accordingly, summary judgment was not appropriate. Tenn. R. Civ.
P. 56.04; see also Stovall v. Clark, 113 S.W.3d 715, 721 (Tenn. 2003). We, therefore, reverse
the grant of summary judgment in favor of the Corporation.

                                                        III.
                         M S. S TRONG’S M OTION FOR S UMMARY JUDGMENT

       As for Ms. Strong’s cross-motion for summary judgment on her claims for breach of
contract and breach of fiduciary duty, the trial court ruled that Ms. Strong’s “Motion for
Summary Judgment is hereby sustained and the Court’s Memorandum Opinion is
incorporated herein by reference as if specifically set out verbatim and is a final order per
Rule 54 T.R.C.P.”7 The trial court further ruled “that upon application, the Respondent, [Ms.
Strong] will be awarded attorney’s fees.” Although the trial court “sustained” Ms. Strong’s
claims, it did not award Ms. Strong “damages” on her claims. However, upon the filing of
her application for attorney’s fees as “the prevailing party,” Ms. Strong was awarded $10,000
of the attorney’s fees she incurred in defense of the Corporation’s claims.

       The Corporation contends any grant of attorney’s fees was in error as Ms. Strong was
not the “prevailing party.” This is because, the Corporation insists, the trial court held the
provision of the assignment awarding attorney’s fees was not unconscionable, and the
corporation was awarded $50,000 plus interest.

       Ms. Strong claims Mr. Parrish breached his fiduciary duty to her when he insisted that
their contractual relationship be modified immediately after “losing” the malpractice case.
Ms. Strong further asserts that the assignment and Mr. Parrish’s conduct must be evaluated
under the “close scrutiny” standard as described in Waller, Landsden, Dortch, & Davis v.
Haney:

       Owing to the confidential and fiduciary relation between an attorney and his
       client, and to the influence of the attorney over his client, growing out of that
       relation, courts of law, and especially of equity, scrutinize most closely all
       transactions between an attorney and his client. To sustain a transaction of
       advantage to himself with his client, the attorney has the burden of showing,

       7
           Pertinent parts of that ruling are set forth earlier in this opinion.

                                                        -17-
       not only that he used no undue influence, but that he gave his client all the
       information and advice which is (sic) would have been his duty to give if he
       himself had not been interested and that the transaction was as beneficial to the
       client as it would have been had the client dealt with a stranger.

Waller, Lansden, Dortch & Davis v. Haney, 851 S.W.2d 131-132 (Tenn. 1992) (citing
Hutchinson v. Crowder, 8 Tenn. Civ. App. 114 (1917)).

       We have determined that many of the facts that pertain to the issues raised in the
Corporation’s motion for summary judgment are also pertinent and material to the issue of
whether Mr. Parrish breached his fiduciary duty to Ms. Strong. A party is entitled to summary
judgment if there is no genuine issue as to any material fact and the party is entitled to a
judgment as a matter of law. Martin, 271 S.W.3d at 83; Tenn. R. Civ. P. 56.04. Therefore,
having concluded that several facts material to Ms. Strong’s claims for breach of contract
and breach of fiduciary duty are disputed, Ms. Strong is not entitled to summary judgment.
Accordingly, we reverse the grant of summary judgment in favor of Ms. Strong.

                                       In Conclusion

       The trial court’s decisions to grant partial summary judgment in favor of the
Corporation and partial summary judgment in favor of Ms. Strong are both reversed, and this
matter is remanded for further proceedings consistent with this opinion. Costs of appeal are
assessed against both parties equally.


                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




                                             -18-
