                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                OCTOBER 13, 2004 Session

 LORENZO CHILDRESS, JR., d/b/a SOUTHGATE MEDICAL GROUP v.
             UNION REALTY COMPANY, LTD.

                   Direct Appeal from the Circuit Court for Shelby County
                       No. 37267 T.D.    George H. Brown, Jr., Judge



                    No. W2003-02934-COA-R3-CV - Filed March 28, 2005


This appeal arises out of an action for damages by a commercial tenant against a landlord. After a
jury awarded the appellee the sum of $168,000 in damages, the appellee sought pre-judgment
interest, post-judgment interest, and attorney’s fees. The trial court awarded the appellee pre-
judgment and post-judgment interest calculated on the entire award of damages but denied the
appellee’s request for an award of attorney’s fees. The appellant seeks review of the award of pre-
judgment and post-judgment interest, and the appellee cross appeals, seeking review of the trial
court’s denial of attorney’s fees. For the following reasons, we affirm and remand for any further
proceedings consistent with this opinion.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

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

R. Douglas Hanson, Memphis, TN, for Appellant

Bruce D. Brooke, Memphis, TN, for Appellee

                                            OPINION

                                 Facts and Procedural History

       This is the third occasion this action has appeared before this Court. The facts of this case
have been previously articulated by this Court in Childress v. Union Realty Co., Limited, 97 S.W.3d
573 (Tenn. Ct. App. 2002), as follows:

              Plaintiff lessee in this case sued Defendant landlord for damages associated
       with loss of personal property, interruption of business, and lost profits which
resulted from the collapse of a roof and flooding of Plaintiff's leased medical offices.
The jury awarded Plaintiff $168,000.00 in damages. Defendant appeals, arguing that
this is, in effect, a subrogation suit by Plaintiff's insurance carrier.

....

        The basic facts in this case are undisputed. In 1981, the plaintiff, Dr. Lorenzo
Childress, ("Childress") signed an initial five-year lease with defendant Union Realty
Company ("Union Realty") to rent space in the Southgate Shopping Center in
Memphis for use as a medical clinic. Childress occupied the space on September 10,
1982, and made approximately $57,000.00 worth of improvements. He purchased
over $135,000.00 worth of equipment and supplies for use in the clinic, which served
20 to 30 patients a day. Childress began to experience roof leaks at the clinic in
October of 1982. The leaks became a frequent problem, and efforts by Union Realty
to repair the roof were unsuccessful. Childress had to place garbage cans beneath the
leaks to collect the water, causing considerable embarrassment and inconvenience.

        Dr. Childress's first lease expired in September of 1986. After considering
the feasibility of relocating the clinic, Childress entered into negotiations with Union
Realty for a second lease. After several months of negotiations, the parties entered
into a second lease. In light of the continuing problems with roof leaks, however, an
additional provision was inserted into the lease. The following language was inserted
into paragraph 21 of the lease:

       21. LOSS OR DAMAGE TO LESSEE'S PROPERTY

       ....

       *Lessor will be responsible for any damages caused by roof leaks
       which recur more than four (4) days after Lessor has been given
       written notice of problem(s).

        Paragraph 24 of both the first and second leases required Childress to carry
public liability insurance on the property and to list Union Realty as a co-insured. It
also required that Childress would hold Union Realty harmless from damage to
property on the premises. However, paragraph 24 of the second lease excepted
damages "due to the act of negligence of Lessor or its agents" from this hold harmless
clause. Union Realty also added paragraph 48 to the second lease. Paragraph 48 is
entitled "Waiver of Subrogation" and provides:

       Lessee waives and releases any claim or right of recovery against
       Lessor . . . for any loss resulting from causes covered by insurance,
       and shall procure a waiver of subrogation against Lessor on the part


                                          -2-
               of its insurer by and endorsement to all insurance policies whereby
               the insurer recognizes that the insured has waived any right of
               recovery from Lessor . . . . A copy of such endorsement shall be
               deposited with Lessor.

               The roof leaks became continually worse and Childress sent numerous
       complaints to Union Realty, giving notice of extensive damages, interruption of
       business and embarrassment. On January 19, 1988, Union Realty notified Childress
       by letter that a new roof would be constructed for the building. On February 1, 1988,
       however, the roof completely collapsed and the clinic was flooded with rainwater.
       The clinic and equipment was [sic] ruined and the office had to be closed. Patient
       records were destroyed and Dr. Childress was unable to salvage his practice. He
       eventually relocated outside of Tennessee.

               Childress filed a complaint against Union Realty in January of 1991, alleging
       breach of contract when Union Realty refused to pay his water damage claim. Union
       Realty filed a counter complaint in November of 1992, alleging that Childress
       breached the same lease by failing to list Union Realty as an additional insured in the
       policy of insurance and by neglecting to obtain an endorsement of the waiver of
       subrogation. Union Realty moved for partial summary judgment on the issue of
       paragraph 24 of the contract on June 2, 1994. This motion was denied and the case
       was tried before a jury in October of 1997. The jury returned a verdict for Dr.
       Childress and awarded him $ 168,000.00 in damages. Union Realty filed a motion
       for a new trial which was denied in March of 1998.

Childress v. Union Realty Co., Ltd., 97 S.W.3d at 575-76 (footnotes omitted).
        After this Court affirmed the judgment entered in the trial court below, Childress filed a
motion and an amended motion, requesting discretionary costs, attorney’s fees, pre-judgment interest
and post-judgment interest. After a hearing, the trial court awarded Childress pre-judgment interest
in the amount of $150,076.16, post-judgment interest in the amount of $88,054.41, and denied
Childress’ request for an award of discretionary costs and attorney’s fees. Union Realty filed its
notice of appeal and requests this Court to review the following issue, as we understand it:

       I.      Whether the trial court erred when it awarded pre-judgment and post-judgment
               interest to Childress on the entire amount of the jury award without considering an
               amount received by Childress prior to the judgment from his insurance company.

Appellee presents the following issue on a cross appeal:

       II.     Whether the trial court erred when it denied Childress his attorney’s fees pursuant to
               the lease agreement between the parties.




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For the following reasons, we affirm and remand for any further proceedings consistent with this
opinion.

                                             Standard of Review

       The Tennessee Supreme Court has previously stated the standard by which this Court must
review an award of pre-judgment interest:

                 An award of prejudgment interest is within the sound discretion of the trial
         court and the decision will not be disturbed by an appellate court unless the record
         reveals a manifest and palpable abuse of discretion. Spencer v. A-1 Crane Service,
         Inc., 880 S.W.2d 938, 944 (Tenn. 1994); Otis v. Cambridge Mut. Fire Ins. Co., 850
         S.W.2d 439, 446 (Tenn. 1992). This standard of review clearly vests the trial court
         with considerable deference in the prejudgment interest decision. Generally stated,
         the abuse of discretion standard does not authorize an appellate court to merely
         substitute its judgment for that of the trial court. Thus, in cases where the evidence
         supports the trial court's decision, no abuse of discretion is found. See State v. Grear,
         568 S.W.2d 285, 286 (Tenn. 1978) (applying abuse of discretion standard to trial
         court's decision to deny request for suspended sentence), cert. denied, 439 U.S. 1077,
         99 S. Ct. 854, 59 L. Ed. 2d 45 (1979).

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998).

         Moreover, this Court has previously held that the language of the post-judgment interest
statute is mandatory and is not subject to reduction by reason of equitable considerations. Bedwell
v. Bedwell, 774 S.W.2d 953, 956 (Tenn. Ct. App. 1989) (citing 45 Am. Jur. 2d Interest and Usury
§ 73; Kaufman v. Kaufman, 166 S.W.2d 860 (Ky. 1942)). All questions of law are reviewed by this
Court de novo affording the trial court’s decisions no presumption of correctness. Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.
Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                            Pre-Judgment Interest

       Union Realty first argues that Childress was paid an amount1 from his insurance company
and that any award of pre-judgment interest should reflect this payment rather than strictly focus on
the damage award from the jury. Section 47-14-123 of the Tennessee Code provides in pertinent
part:


        1
                  Though such amount was not in evidence at trial, U nion Realty contends that Childress received
$147,714.11 pursuant to an insurance policy with Nationwide Insurance Company. Such evidence was proffered in an
offer of proof during trial through the testimony of Childress and W illiam Stevenson, the insurance adjuster for
Childress’ claim. As we have noted previously, the policy of insurance was not admitted into evidence and, therefore,
we cannot consider it here. Childress v. Union Realty Co., Ltd., 97 S.W .3d 573, 577 (Tenn. Ct. App. 2002).

                                                        -4-
         Prejudgment interest, i.e., interest as an element of, or in the nature of, damages, as
         permitted by the statutory and common laws of the state as of April 1, 1979, may be
         awarded by courts or juries in accordance with the principles of equity at any rate not
         in excess of a maximum effective rate of ten percent (10%) per annum . . . .

Tenn. Code Ann. § 47-14-123 (2001). The trial court awarded Childress pre-judgment interest in
the amount of $150,076.16.2 The sum was reached by imposing a 10% per annum rate of interest
on the amount the jury designated as damage to personal property: $154,000.00.

        As noted above, an award of pre-judgment interest is within the sound discretion of the trial
court and will not be disturbed by an appellate court unless we find in the record a manifest and
palpable abuse of discretion. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998) (citing
Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938, 944 (Tenn. 1994); Otis v. Cambridge Mut. Fire
Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992)). Where the evidence supports the trial court’s decision,
there is no abuse of discretion. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)).

       Trial courts are not without guiding principles in exercising their discretion to award pre-
judgment interest. First, they are guided by principles of equity. Id. (citing Tenn. Code Ann. § 47-
14-123).

         Simply stated, the court must decide whether the award of prejudgment interest is
         fair, given the particular circumstances of the case. In reaching an equitable decision,
         a court must keep in mind that the purpose of awarding the interest is to fully
         compensate a plaintiff for the loss of the use of funds to which he or she was legally
         entitled, not to penalize a defendant for wrongdoing. Mitchell v. Mitchell, 876
         S.W.2d 830, 832 (Tenn. 1994); Otis, 850 S.W.2d at 446.

Id. The Tennessee Supreme Court has noted two other guiding principles for determining whether
an award of pre-judgment interest is proper:

                 In addition to the principles of equity, two other criteria have emerged from
         Tennessee common law. The first criterion provides that prejudgment interest is
         allowed when the amount of the obligation is certain, or can be ascertained by a
         proper accounting, and the amount is not disputed on reasonable grounds. Mitchell,
         876 S.W.2d at 832. The second provides that interest is allowed when the existence
         of the obligation itself is not disputed on reasonable grounds. Id. (citing Textile
         Workers Union v. Brookside Mills, Inc., 205 Tenn. 394, 402, 326 S.W.2d 671, 675
         (1959)).


         2
                 W e presume that the trial court utilized the method of calculating pre-judgment interest offered by
Childress. Childress requested pre-judgment interest on the portion of the jury award designated property damage:
$154,000.00. He sought an interest rate of 10% on this amount for the period between February 2, 1988, and October
13, 1997. This calculation yields an amount of $150,076.16.

                                                        -5-
Id.

        The supreme court has further elaborated on the “certainty” criterion. While the certainty of
the existence or amount of an obligation supports an award of pre-judgment interest, the uncertainty
of either the existence or the amount of the obligation does not mandate its denial. Id. at 928.
“[T]he test is whether the amount of damages is ascertainable by computation or by any recognized
standard of valuation. This is true even if there is a dispute over monetary value or if the parties’
experts compute differing estimates of damage.” Id. (citing Cmty. State Bank v. O’Neill, 553 N.E.2d
174, 177-78 (Ind. Ct. App. 1990); Unlimited Equip. Lines v. Graphic Arts Ctr., Inc., 889 S.W.2d
926, 942-43 (Mo. Ct. App. 1994)).

        To begin, we note there is no evidence in the record showing that Childress received an
amount pursuant to an insurance policy with Nationwide Insurance Company. Though Union Realty
proffered testimony to support this allegation, such testimony was not admitted into evidence.
Further, Union Realty did not cite as error the trial court’s exclusion of the insurance policy with
Nationwide Insurance Company or the testimony of William Stevenson and Childress presented in
an offer of proof. See Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 577 (Tenn. Ct. App.
2002). For this reason, we may not address whether the exclusion of such proffered evidence
pursuant to the collateral source rule was error. See id. Finally, we note that trial counsel for Union
Realty stated that subrogation was not an issue at trial. Therefore, this Court is left with a record
which lacks any evidence of any prior payment of insurance proceeds from Nationwide Insurance
Company to Childress.

        Union Realty’s argument for the reduction of the award of pre-judgment interest is predicated
upon the contention that Childress received $147,714.11 from Nationwide Insurance Company.
However, because we hold that such an allegation is not in the record, we cannot say that Childress
lost the use of the funds such that an award of pre-judgment interest was an abuse of discretion.
Further, Union Realty does not appear to argue that the amount of the obligation is uncertain or
cannot be ascertained by a proper accounting, and it does not dispute the amount on reasonable
grounds. Finally, Union Realty, other than the argument that Childress received an amount from his
insurance company, does not dispute the existence of the obligation on reasonable grounds.
Therefore, after considering the factors articulated in Myint v. Allstate Insurance Company, we
cannot say that the trial court abused its discretion when it awarded Childress pre-judgment interest
on the amount designated by the jury as damages for personal property.

                                      Post-Judgment Interest

       Union Realty further argues that the trial court erred when it awarded Childress post-
judgment interest on the entire amount awarded by the jury because, as Union Realty contends,
Childress received a payment of $147,714.11 from Nationwide Insurance Company pursuant to a
policy Childress held with the insurance company. Section 47-14-121 of the Tennessee Code
provides the following:



                                                 -6-
       Interest on judgments, including decrees, shall be computed at the effective rate of
       ten percent (10%) per annum, except as may be otherwise provided or permitted by
       statute; provided, that where a judgment is based on a note, contract, or other writing
       fixing a rate of interest within the limits provided in § 47-14-103 for that particular
       category of transaction, the judgment shall bear interest at the rate so fixed.

Tenn. Code Ann. § 47-14-121 (2001). Further, section 47-14-122 of the Tennessee Code provides
that “[i]nterest shall be computed on every judgment from the day on which the jury or the court,
sitting without a jury, returned the verdict without regard to a motion for a new trial.” Tenn. Code
Ann. § 47-14-122 (2001).

        As with pre-judgment interest, Union Realty’s argument for a reduction of the post-judgment
interest award centers around its contention that there was evidence Childress received $147,714.11
from Nationwide Insurance Company or, alternatively, that the trial court erred when it excluded
proof of such payment. Again, all proffered testimony and exhibits pertaining to any payment from
Nationwide Insurance Company to Childress were excluded by the trial court. Further, Union Realty
did not raise the exclusion of this evidence as error in its motion for a new trial. Thus, there is no
evidence of such a payment properly before this Court. Therefore, we cannot say that Childress was
unjustly enriched, see Staggs v. National Health Corp., 924 S.W.2d 79, 81 (Tenn. 1996), or that the
trial court erred when it awarded Childress post-judgment interest at the mandatory rate of 10% on
the entire jury award of $168,000.00.

                                          Attorney’s Fees

       Finally, on a cross appeal, Childress argues that the trial court erred when it denied him his
attorney’s fees pursuant to the lease agreement between Childress and Union Realty. As this Court
has previously noted,

              Tennessee follows the "American Rule" with regard to awarding attorney's
       fees. Litigants are responsible for their own attorney's fees no matter "however
       wrongful may have been the suit, or however groundless the defense." Corinth Bank
       & Trust Co. v. Security Nat'l Bank, 148 Tenn. 136, 154, 252 S.W. 1001, 1006 (1923).
       Thus, the courts will not compel losing parties to pay the prevailing party's legal
       expenses unless such fee-shifting is authorized by statute, contract, or some other
       recognized equitable ground. State v. Brown & Williamson Tobacco Corp., 18
       S.W.3d 186, 194 (Tenn. 2000); Kultura, Inc. v. Southern Leasing Corp., 923 S.W.2d
       536, 540 (Tenn. 1996); Kimbrough v. Union Planters Nat'l Bank, 764 S.W.2d 203,
       205 (Tenn. 1989).

              One of the most common exceptions to the American Rule involves contracts
       containing provisions expressly allowing the prevailing party to recover its
       reasonable attorney's fees incurred to enforce the contract. Pullman Standard, Inc.
       v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985); Pinney v. Tarpley, 686 S.W.2d


                                                 -7-
        574, 581 (Tenn. Ct. App. 1984). Thus, parties who have prevailed in litigation to
        enforce contract rights are entitled to recover their reasonable attorney's fees once
        they demonstrate that the contract upon which their claims are based contains a
        provision entitling the prevailing party to its attorney's fees.

Hosier v. Crye-Leike Commercial, Inc., No. M2000-01182-COA-R3-CV, 2001 Tenn. App. LEXIS
498, at *6-8 (Tenn. Ct. App. July 17, 2001).

        Childress cites the following provision from the lease in support of his argument that he may
collect his attorney’s fees from Union Realty:
        32. RIGHT TO TERMINATE NOT EXCLUSIVE

                  The right of [Union Realty] to terminate this Lease as herein set forth is in
        addition to and not in exhaustion of such other rights that [Union Realty] has or
        causes of action that may accrue to [Union Realty] because of [Childress’] failure to
        fulfill, perform or observe the obligations, agreement or covenants of this Lease, and
        the exercise by [Union Realty] of any of the rights or causes of action accruing
        hereunder shall not be in exhaustion of such other rights or causes of action that
        [Union Realty] might otherwise have; and the prevailing party shall recover from the
        other all attorney’s fees and expenses occasioned by the other’s default, or failure
        to perform any of the obligations, agreement or covenants hereof, incurred in
        enforcing any of the provisions hereof, or any of either party’s rights hereunder.

(emphasis added). Childress contends that this provision entitles him to an award of attorney’s fees
and that the trial court erred when it denied him these fees.

        Union Realty counters by arguing that, because Childress did not specifically request
attorney’s fees in his complaint, the trial court should not have considered this issue and Childress
is not entitled to attorney’s fees. We are mindful that, when determining whether a judgment is
beyond the scope of the pleadings, those pleadings must be given a liberal construction with all
reasonable intendments taken in favor of the judgment. Killingsworth v. Ted Russell Ford, Inc., 104
S.W.3d 530, 533-34 (Tenn. Ct. App. 2002) (quoting Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.
1955)). This Court has previously held that failure of a plaintiff to specifically plead attorney’s fees
in a complaint is not fatal to the recovery of attorney’s fees. Id. at 534 (holding that, by alleging a
violation of the Tennessee Consumer Protection Act, the defendant was effectively put on notice that
the plaintiffs were seeking all relief authorized under the Act, including attorney’s fees). In this case,
though he did not specifically request relief in the form of attorney’s fees, he requested in a general
prayer “such other costs, expenses and other relief to which the Plaintiff may be entitled in the
premises.” Additionally, Childress attached a Memorandum of Lease, which was signed by
Childress, Andrew Groveman, a vice president of Union Realty, and Lawrence Thomas, another vice
president of Union Realty. Such exhibit refers to the second lease between Childress and Union
Realty and states that the “terms and provisions are made a part hereof as fully and particularly as
if set out verbatim herein.” Giving Childress’ complaint a liberal construction, we hold Union


                                                   -8-
Realty was effectively placed on notice that Childress was seeking all relief authorized by the lease,
including relief pursuant to paragraph 32.

         Union Realty next contends that the trial court’s denial of Childress’ request for attorney’s
fees should be affirmed because the issue of attorney’s fees was not presented to the jury for a
decision, and a jury was demanded by both parties to decide the matters in controversy. “A litigant
has a constitutional right to have all issues of fact tried at the same time by the same jury.” Kozy v.
Werle, 902 S.W.2d 404, 412 (Tenn. Ct. App. 1995) (citing Winters v. Floyd, 367 S.W.2d 288 (Tenn.
Ct. App. 1962)); see also McCormic v. Smith, 668 S.W.2d 304, 306 (Tenn. Ct. App. 1984) (citing
Morgan v. Tenn. Cent. Ry. Co., 216 S.W.2d 32, 37 (Tenn. Ct. App. 1948)). The issues of whether
a plaintiff is entitled to attorney’s fees and, if so, the amount of attorney’s fees are issues of fact.
McCormic, 668 S.W.2d at 306. In this case, the parties demanded a jury to try all disputed issues
of fact, which includes the issue of attorney’s fees. However, no evidence was presented to the jury
on this issue. The trial court was not authorized to resolve a jury issue without the interposition of
the jury, and, therefore, we cannot say that the trial court erred when it denied Childress’ request for
attorney’s fees. Kozy, 902 S.W.2d at 412.

                                             Conclusion

       For the reasons stated herein, we affirm the trial court’s award of pre-judgment interest and
post-judgment interest. Further, we affirm the trial court’s denial of the appellee’s request for
attorney’s fees. Costs of this appeal are taxed equally to appellee, Lorenzo Childress, Jr. d/b/a
Southgate Medical Group, and the appellant, Union Realty Company, Limited, and its surety for
which execution may issue if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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