                                                                                FILED
                                                                              Feb 19, 2020
                                                                             01:17 PM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

ESTATE OF CLARENCE                         )   Docket No.: 2017-05-0963
TURNAGE,                                   )
           Employee,                       )
And                                        )
EJT, NRT, and SMT,                         )   State File No.: 58603-2017
           Employee’s minor                )
           children,                       )
v.                                         )
DOLE REFRIGERATING CO., INC.,              )   Judge Dale Tipps
           Employer.                       )


                       COMPENSATION HEARING ORDER


       This case came before the Court on Motions for Attorney Fees and Expenses filed
by the guardians ad litem on February 10 and 12, 2020. For the reasons below, the Court
grants the motions and awards the requested attorney fees and expenses.

                           Factual and Procedural History

      Dole Refrigeration filed a petition for benefit determination and a motion for the
appointment of a guardian ad litem for the deceased employee’s minor children. This
Court appointed Steven Waldron in September 2017 to serve as guardian ad litem for
EJT, NRT, and SMT. Upon Mr. Waldron’s motion, the Court relieved him of his duties
as guardian ad litem for EJT and appointed Richard Matthews to serve in that role in
November.

       The Court held a Compensation Hearing on January 17, 2019, and ordered Dole to
pay EJT death benefits. It also determined that NRT and SMT were not entitled to
benefits, a determination that NRT and SMT appealed to the Tennessee Supreme Court.
Both guardians ad litem filed motions for fees, but the Court denied those motions
pending resolution of the appeal.

                                           1
       On January 3, 2020, the Special Workers Compensation Appeals Panel issued an
opinion1 affirming the Court’s judgment and awarded EJT’s request for attorney fees on
the appeal. The panel remanded the case for “a determination of the amount of attorney
fees on appeal to be awarded to the guardian ad litem for EJT, together with a
determination of what, if any, fees are to be awarded to the guardians ad litem for EJT
and for NRT and SMT for the prior proceedings in that court.”

       Both guardians ad litem filed motions for fees and expenses, and Dole filed a
response to each. Dole stipulated that the guardians are entitled to a reasonable fee under
Tennessee Code Annotated section 50-6-238, and it did not dispute the number of hours
spent on the case set out in their affidavits. Dole contended, however, that the $300.00
hourly rate claimed by each guardian is unreasonable and in excess of the customary
amount for similar matters. It argued that this case did not involve complex legal issues
and noted that its defense firm charged $160.00 per hour.

       Regarding the expenses, Dole contended that, except for the court reporter fees,
the expenses requested by the guardians are not recoverable under Rule 54.04(2) of the
Tennessee Rules of Civil Procedure.

                                           Law and Analysis

       The Workers’ Compensation Law broadly defines the duties of guardians ad litem
as “to advocate for the best interests of a child and to ensure that the child’s concerns and
preferences are effectively advocated.” Tenn. Code Ann. § 50-6-238(a)(4) (2019). This
same provision authorizes this Court to award a “reasonable fee” to be paid by the
employer. Ultimately, the reasonableness of an attorney’s fee depends on the particular
circumstances of the individual case, as considered in light of the relevant guidelines.
White v. McBride, 937 S.W.2d 796, 800 (Tenn. 1996). “The amount of time expended,
and the hourly rate commonly charged by attorneys for doing similar work in the
community, while important, are not the only, or even the controlling, factors to be
considered.” United Med. Corp. of Tenn., Inc. v. Hohenwald Bank and Trust Co., 703
S.W.2d 133, 136 (Tenn. 1986).

       Applying these considerations, the Court recognizes that the guardians’ work
required legal research and investigation, depositions, trial preparation, briefing, and
court appearances. These tasks were all integral to advocating for the minors’ best
interests. The Court therefore agrees with Dole that the hours submitted by the guardians
were a reasonable amount of time to accomplish all these tasks.

      Regarding the hourly rate, however, the Court does not agree that the case was as
simple as Dole suggests. The difficulties raised by the unusual facts of this case are
1
    The Panel filed its Judgement Order on February 12.
                                                     2
reflected by parties’ inability to negotiate a settlement on an undisputed death claim.
These facts include Mr. Turnage’s relinquishment of his parental rights over NRT and
SMT, his mother’s adoption of those children, and his continued involvement in their
lives, including keeping the children with him for part of most years and providing some
measure of financial support. In spite of the relative novelty of these issues, both
guardians provided detailed and helpful legal analysis. The Court therefore finds that
they demonstrated the requisite skill to deal with difficult and novel issues and to
properly perform their legal services.

        As to the “fee customarily charged in the locality for similar legal services,” the
Court cannot find that a $300.00 hourly rate is facially unreasonable. Absent this finding,
the Court turns to the guardians’ affidavits. Mr. Matthews stated in his affidavit that his
regular hourly rate for ordinary matters is $300.00 and that he has consulted other
attorneys in the community to determine that this rate is reasonable. This affidavit
constitutes a statement under oath, and Dole has presented no opposing affidavit or other
proof to counter the assertions in the affidavit. Even if the Court were to consider Dole’s
argument that it pays its attorney $160.00 per hour, it does not necessarily follow that
$160.00 is the maximum community standard or that $300.00 is unreasonable. In the
absence of any proof that the guardians’ rate exceeds the customary fees charged in the
locality, the Court finds the requests reasonable.

        Regarding the requested expenses, Dole’s reliance on Rule 54.04(2) is misplaced.
That rule provides for discretionary costs payable to “the prevailing party,” which is not
the situation before the Court. Instead, the authority to order payment of fees in this case
derives from section 50-6-238(a)(4), which provides, “The court shall have the authority
to award a reasonable fee for the services provided by the guardian ad litem, which shall
be paid by the employer.” The same section also specifies that the Court’s authority to
appoint a guardian ad litem should be “consistent with § 37-1-149 and Tennessee
Supreme Court Rule 40.”

       Section 37-1-149 does not address attorney fees or costs, although the subsequent
section 37-1-150 states that “the supreme court shall prescribe by rule the nature of the
expense for which compensation may be allowed.” Supreme Court Rule 40 is
specifically limited to juvenile court neglect, abuse, and dependency hearings, and it does
not address attorney fees. Rule 40A(11)(a), which applies to custody hearings, provides,
“the guardian ad litem shall be compensated for fees and expenses in an amount the court
determines is reasonable.” (Emphasis added.) Therefore, “consistent with . . . Tennessee
Supreme Court Rule 40,” this Court has the authority to order payment of expenses as
long as they are reasonable.2

2
   This interpretation also promotes section 50-6-238(a)(4)’s stated purpose: to advocate for the best
interests of a child. Failing to reimburse expenses could serve as a disincentive to serve as a guardian ad
litem and reduce the number of qualified attorneys willing to do so.
                                                    3
       The Court has already found that the guardian’s activities were all integral to
advocating for the minors’ best interests. Similarly, the Court finds that the expenses
requested are reasonable, as the affidavits show they were necessary to effect the
guardians’ advocacy.

 IT IS, THEREFORE, ORDERED as follows:

   1. The Attorney Fee Motions are granted. Dole Refrigerating Company, Inc., shall
      pay Richard Matthews $21,091.93 for attorney fees and expenses incurred at trial
      and on appeal. Dole shall also pay Steven Waldron $13,698.00 for attorney fees
      and expenses incurred in the trial of this case.

   2. Absent an appeal, this Order shall become final in thirty days.

      ENTERED February 19, 2020.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims




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                             CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on February 19, 2020.


Name                        Certified    Via        Via      Service sent to:
                             Mail        Fax       Email
Connor Sestak, attorney                             X        csestak@morganaikins.com
for Dole Refrigerating
Co., Inc.
David Goodman, attorney                             X        dgoodman@forthepeople.com
for Megan Black
R. Steven Waldron,                                  X        arlenesmith@comcast.net
guardian ad litem for NRT
and SMT
Richard Matthews,                                   X        Rmatthews95@aol.com
guardian ad litem for EJT




                                          ______________________________________
                                             PENNY SHRUM, COURT CLERK
                                                 wc.courtclerk@tn.gov




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