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PST Vans12/28/1999
t of Counsel on January 26, 1999 relative to the lien for fees heretofore filed by Mr. Nicholson and as to certain expenses claimed by Defendant, Rose Clark Reed, from the proceeds on deposit in the above-captioned case. The Court took the matters under advisement.
The Court has carefully reviewed all of the data of record in this case and concludes that Mr. Nicholson is entitled to the fees per his contract and the expenses claimed are reasonable and were necessary to prosecute the cause of action to judgment.
Accordingly, the Court expressly approves expenses claimed by Rosie Clark Reed in the amount of $103,215.32 and Mr. Nicholson's fees based on one- third of the tendered judgment.
Mr. Nicholson will prepare an appropriate Order, pursuant to the provisions of this Memorandum and submit to opposing Counsel for their approval as to form and the Order will be tendered to the Court for entry not later than twenty (20) days from the date hereof.
III.
In this non-jury case, our review is de novo upon the record, with a presumption of correctness as to the trial court's factual determinations, unless the evidence preponderates otherwise. Rule 13(d), T.R.A.P.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). The trial court's conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
IV.
The Daughter's primary argument, in its most general terms, is that the trial court's division of the fund is not equitable. More specifically, her arguments are as follows: (1) the litigation expenses and the one-third contingent fee of the Nicholson law firm should not have been charged against the entire fund; (2) the disbursement to the Nicholson law firm for fees and reimbursement of expenses amounted to 93% of the total fund which is an inequitable percentage of the recovery; (3) the trial court erred in approving some clearly unreasonable expenses; and (4) the Nicholson law firm should not be allowed to collect expenses from the fund that were collectable from the defendants in the wrongful death action.
V.
The parties sharply disagree as to the involvement of the Sobieski law firm in the wrongful death action. There is less disagreement as to the involvement of the Nicholson law firm in the preparation and trial of the federal court action. This latter assertion can be seen from the following excerpt from the reply brief filed by the Sobieski law firm on behalf of the Daughter:
[The Daughter] has never disputed the fact that appellee's counsel did the lion's share of the trial preparation, nor has she disputed that he argued the case to the jury. In his words, he had "exclusive control over the litigation." In fact, it was at the request of appellee's counsel that [the Daughter's] attorney did not sit at the counsel's table, and kept a low profile in the courtroom, so as not to create any question in the jury's mind as to who [the Daughter] was and why she had separate counsel. (Citation omitted).
We will now examine the parties' respective positions with respect to the work of the Sobieski law firm.
In the Daughter's brief, she states that t is undisputed that [the Daughter] actively intervened in the federal lawsuit, was represented at depositions, and appeared throughout the trial. She was not a passive beneficiary.
If, by this statement, the Daughter is claiming that her counsel, the Sobieski law firm, played an active role in the preparation a
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