                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs October 10, 2001

         THOMAS W. HARRISON, ET AL. v. EARL LAURSEN, ET AL.


                      Appeal from the Chancery Court for Giles County
                         No. 7581     Robert L. Jones, Chancellor



                   No. M2001-00073-COA-R3-CV - Filed January 22, 2002


This appeal involves pre-judgment interest on unpaid attorney’s fees. The defendants owed the law
firm attorney’s fees alleged to be in the amount of $16,544.52 that accrued between November 1990
to April 1993. In 1996, the parties orally agreed to a lesser payment of $7,000.00 in settlement of
the larger debt. The defendants paid $1,500.00 but failed to pay the remaining balance owed. The
trial court ordered Defendants to pay pre-judgment interest on the unpaid fees and Defendants
appeal. We affirm.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S. and
PATRICIA J. COTTRELL, J., joined.

Earl and Dolorita Laursen, Pulaski, Tennessee, Pro Se.

Thomas H. Peebles, Columbia, Tennessee, for the appellees, Thomas W. Harrison, Terry Harrison
and Brenda Harrison Kenamore.

                                           OPINION

        In this action, the defendants hired Waller Lansden Dortch & Davis (hereinafter referred to
as “Waller”) to represent them in a lawsuit. Attorney Thomas H. Peebles, IV, an attorney with
Waller, was attorney of record from November 1990 to April 1993. Waller sought to enforce an
attorney’s lien against the defendants for attorney’s fees in the amount of $16,544.52. Attorney
Peebles filed an attorney’s lien on behalf of Waller on May 10, 1993 for $16,544.52.

       On October 14, 1996, Attorney Peebles and the defendants orally agreed to a lesser payment
of $7,000.00 in settlement of the larger debt. Defendant Earl Laursen wrote a check to Waller for
$1,500.00 leaving a remaining balance of $5,500.00. No payment has been made since that time.
The defendants assert that they intended to pay the remaining balance when they recovered from the
lawsuit. Waller maintains the remaining balance was to be paid within a short period of time after
receipt of the initial $1,500.00 payment. Waller sought pre-judgment interest on the amount of
attorney’s fees owed.

       On August 30, 2000, the trial court ruled that the lien was enforceable and judgment was
granted in favor of Waller in the amount of $5,500.00 plus pre-judgment interest at 10% per annum
accruing from November 14, 1996 until paid.

         On September 7, 2000, the defendants filed a “Motion for Reconsideration, Modification,
or to Set Aside the Judgment” requesting the court to modify or set aside the order of August 23,
2000 awarding Waller pre-judgment interest. Notice of appeal was filed on November 30, 2000.
We acknowledge that the initial question before this court is whether we have jurisdiction to consider
the appeal of the August 30, 2000 order denying the appellant’s motion to reconsider and whether
the filing of this post-judgment motion tolled the thirty day time period in which to file a notice of
appeal.

         Waller submits that the defendants failed to file their appeal within the thirty day time
limitation pursuant to Rule 4(a) of the Rules of Appellate Procedure. Further, Waller argues that the
defendants’ post-judgment motion is not sufficient under Rule 59.01 of the Tennessee Rules of Civil
Procedure to toll the time for a notice of appeal. “Courts must consider the substance of a motion
in determining whether it is in fact one of the specified post-trial motions which toll commencement
of the time.” Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998). We
conclude that the motion was in substance a Rule 59.04 motion to alter or amend the judgment which
allowed the trial court to retain jurisdiction of the cause and tolled the time for filing a notice of
appeal.

       The defendants concede that they owe Waller the sum of $5,500.00. The issue before this
Court is whether the trial court properly awarded Waller pre-judgment interest. The trial court
awarded pre-judgment interest in this case stating:

               The Court considered the oral argument of Thomas H. Peebles, IV, the oral
       argument of Earl Laursen, the Affidavits of Thomas H. Peebles, IV, and Leah Fuller,
       as well as the entire file in this cause of action, from all which the Court finds that
       the law firm of Waller Lansden has a legitimate lien on the proceeds presently being
       held by this Court in the amount of $16,544.52, but that the sum of $1,500.00 was
       paid to Waller Lansden on October 14, 1996, thereby reducing said lien to the sum
       of $15,044.52. The Court further finds that although the law firm of Waller Lansden
       agreed to accept a compromised figure of $7,000.00 on 10/14/96, this agreement was
       predicated upon the representation that said amount would be promptly paid, but that
       only $1,500.00 was paid to Waller Lansden on 10/14/96, leaving a balance of
       $5,500.00, which Mr. and Mrs. Laursen have never paid. Instead of honoring their
       agreement to promptly pay the balance owed, the Court finds that Mr. and Mrs.
       Laursen attempted to cheat the law firm of Waller Lansden by attempting to obtain



                                                 -2-
       a full release from Mr. Peebles’ secretary without paying therefor and by leading Mr.
       Peebles to believe that funds were being held by the Court which did not exist. . . .
                ORDERED, ADJUDGED and DECREED that the motion of Waller Lansden
       for enforcement of its lien is well-taken and should be granted and that the law firm
       of Waller Lansden is hereby granted judgment in the amount of $5,500.00 together
       with interest at the rate of 10% per annum from November 14, 1996 until paid.

       Our review of this appeal is to determine whether the trial court based its decision on
applicable legal principles and whether the decision is consistent with the evidence. Scholz v. S.B.
International, Inc., 40 S.W.3d 78, 82-83; Myint v. Allstate Ins. Co., 970 S.W.2d at 927; Overstreet
v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App.1999).

        The defendants submit that the trial court abused its discretion by awarding pre-judgment
interest in this case arguing that the facts of this case show that there was nothing in the contract of
settlement that provided interest would be paid. The trial court held that the agreement to
compromise the claim by accepting $7,000.00 instead of the lien amount of $16,544.52 was
predicated on the representation of the Laursens that it would be promptly paid. The evidence
provides no indication to the contrary. T.R.A.P. 13(d). An award of pre-judgment interest is within
the sound discretion of the trial court. 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)); Tenn. Code Ann. §47-14-123 (2001). A
trial court’s decision to award pre-judgment interest may be overturned by an appellate court only
upon a finding of a manifest and palpable abuse of discretion. Id.

        Tennessee Code Annotated section 47-14-123 provides that “prejudgment interest . . . 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 court in Myint held that principles of equity are foremost in determining whether to
award pre-judgment interest. Id. “Simply stated, the court must decide whether the award of
pre-judgment 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 compensate a
plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize the
defendant for wrongdoing.” Scholz., 40 S.W.3d at 83.

         As a matter of equity, pre-judgment interest is fair and proper under the circumstances of this
case. Examination of the record reveals that the amount of the unpaid attorney’s fees was known
and conceded by the defendants. The defendants agreed to pay the remaining $5,500.00 balance
promptly after the initial payment and failed to do so. Further, the defendants attempted to obtain
a full release from Mr Peebles’ secretary without paying the debt and lead Mr. Peebles to believe the
funds were being held by the court. Therefore, we affirm the trial court’s award of pre-judgment
interest.




                                                  -3-
        The trial court’s award of pre-judgment interest is not a manifest and palpable abuse of
discretion. Accordingly, the award of pre-judgment interest is affirmed. Costs on appeal are taxed
to appellants for which execution may issue if necessary.




                                                     ___________________________________
                                                     WILLIAM B. CAIN, JUDGE




                                               -4-
