fund doctrine in Tennessee

2009Co., 541 S.W.2d at 590 . 4 However, while the hiring of separate counsel can avoid application of the common fund doctrine under most circumstances, a beneficiary who hires separate counsel cannot escape application of the doctrine completely.

2009The Court in Kline recognized that a trial court’s “application of the common fund doctrine in the wrongful death context will rarely be inappropriate.” Id. at 206 .

2009However, upon finding that the common fund doctrine is applicable, “[t]he allowance of attorney’s fees is [then] largely in the discretion of the trial court.” Cf. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.1995).

2008However, “upon finding that the common fund doctrine is applicable, ‘[t]he allowance of attorney’s fees is ... largely in the discretion of the trial court.’ ” Id. (first alteration in original) (quoting Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.1995)).

2009These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 *330 With this general background i

2002These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the *205 work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 With this general background i

2008See Boeing Co. v. Van Gemert, 444 U.S. 472 , 100 S.Ct. 745 , 62 L.Ed.2d 676 (1980) (applying the common fund doctrine to a class action).

2008See Boeing Co. v. Van Gemert, 444 U.S. 472 , 100 S.Ct. 745 , 62 L.Ed.2d 676 (1980) (applying the common fund doctrine to a class action).

2006It provides that “a private plaintiff, or his attorney, whose efforts create, discover, increase or preserve a fund to which others also have a claim is entitled to recover from the fund the costs of his litigation, including attorneys’ fees.” Hobson v. First State Bank, 801 S.W.2d 807, 809 (Tenn. Ct. App. 1990) (quoting Vincent v. Hughes Air West, Inc., 557 F.2d 759, 769 (9th Cir. 1977)).

1990In so doing, the court noted: The purpose of this exception is of course identical to the purpose of the broader common fund doctrine itself: avoidance of unjust enrichment, or as it has been referred to in this litigation, “coattailing.” Id. at 772 .

2009Plainly stated, unless the separate counsel meaningfully participates in acquiring, preserving, or increasing the common fund, see Montcastle v. Baird, 723 S.W.2d 119, 123 (Tenn.Ct.App.1986), the beneficiary may be obliged to pay fees to the original or lead counsel in addition to those fees payable to the separate counsel.

2002Plainly stated, unless the separate counsel meaningfully participates in acquiring, preserving, or increasing the common fund, see Montcastle v. Baird, 723 S.W.2d 119, 123 (Tenn.Ct.App.1986), the beneficiary may be obliged to pay fees to the original or lead counsel in addition to those fees payable to the separate counsel.

2009Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rombo, 36 S.W.3d 837, 853 (Tenn.Ct.App.2000), meaning that it either applied an incorrect legal standard or reached a clearly uni'easonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2002Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rambo, 36 S.W.3d 837, 853 (Tenn.Ct. *204 App.2000), meaning that it either applied an incorrect legal standard or reached a clearly unreasonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2009These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 *330 With this general background i

2009These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 *330 With this general background i

2009Accord In re Polybutylene Plumbing Litig., 23 S.W.3d 428, 438 (Tex.App.2000) (“An attorney’s compensation from noncontracting plaintiffs under the common fund doctrine is limited to the reasonable value of the attorney’s services benefitting them.” (emphasis in original)).

2002Accord In re Polybutylene Plumbing Litig., 23 S.W.3d 428, 438 (Tex.App.2000) (“An attorney’s compensation from noncontracting plaintiffs under the common fund doctrine is limited to the reasonable value of the attorney’s services benefitting them.” (emphasis in original)).

2009Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rombo, 36 S.W.3d 837, 853 (Tenn.Ct.App.2000), meaning that it either applied an incorrect legal standard or reached a clearly uni'easonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2002Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rambo, 36 S.W.3d 837, 853 (Tenn.Ct. *204 App.2000), meaning that it either applied an incorrect legal standard or reached a clearly unreasonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2009GENERAL APPLICATION OF THE COMMON FUND DOCTRINE TO THE PROCEEDS OF A WRONGFUL DEATH ACTION No case from this Court has expressly recognized that the common fund doctrine may be applied to the proceeds of a wrongful death action, although the Court of Appeals has done so in at least three unreported cases. 7 However, the common law does not prevent the doctrine from being applied in such an action, as the doctrine can be “applie[d] generally to all funds [that are] created, increased!,] or preserved by a party in which others have an ownership interest.” Scholtens v. Schneider, 173 Ill.2d 375 ,

2009GENERAL APPLICATION OF THE COMMON FUND DOCTRINE TO THE PROCEEDS OF A WRONGFUL DEATH ACTION No case from this Court has expressly recognized that the common fund doctrine may be applied to the proceeds of a wrongful death action, although the Court of Appeals has done so in at least three unreported cases. 7 However, the common law does not prevent the doctrine from being applied in such an action, as the doctrine can be “applie[d] generally to all funds [that are] created, increased!,] or preserved by a party in which others have an ownership interest.” Scholtens v. Schneider, 173 Ill.2d 375 ,

2009In determining a reasonable fee amount, the trial court should look to the guidelines outlined in Connors v. Connors, 594 S.W.2d 672, 677 (Tenn.1980) and to the factors listed in Tennessee Supreme Court Rule 8, DR 2-106.

2002In determining a reasonable fee amount, the trial court should look to the guidelines outlined in Connors v. Connors, 594 S.W.2d 672, 677 (Tenn.1980) and to the factors listed in Tennessee Supreme Court Rule 8, DR 2-106. 11 Examining the record in this case, we note that while the trial court found a one-third contingency fee from the children’s portion of the settlement to be reasonable, it did not expressly consider *210 the Connors guidelines or the factors listed in DR 2-106.

2009GENERAL APPLICATION OF THE COMMON FUND DOCTRINE TO THE PROCEEDS OF A WRONGFUL DEATH ACTION No case from this Court has expressly recognized that the common fund doctrine may be applied to the proceeds of a wrongful death action, although the Court of Appeals has done so in at least three unreported cases. 7 However, the common law does not prevent the doctrine from being applied in such an action, as the doctrine can be “applie[d] generally to all funds [that are] created, increased!,] or preserved by a party in which others have an ownership interest.” Scholtens v. Schneider, 173 Ill.2d 375 ,

2002GENERAL APPLICATION OF THE COMMON FUND DOCTRINE TO THE PROCEEDS OF A WRONGFUL DEATH ACTION No case from this Court has expressly recognized that the common fund doctrine may be applied to the proceeds of a wrongful death action, although the Court of Appeals has done so in at least three unreported cases. 7 However, the common law does not prevent the doctrine from being applied in such an action, as the doctrine can be “applie[d] generally to all funds [that are] created, increased[,] or preserved by a party in which others have an ownership interest.” Scholtens v. Schneider, 173 Ill.2d 375 ,

2009These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 *330 With this general background i

2002These circumstances can arise when (1) the original or lead counsel was responsible for the “lion’s share” of work in acquiring, preserving, or increasing the common fund, Hobson, 801 S.W.2d at 809 ; (2) the *205 work of separate counsel inured only to the benefit of a single beneficiary, and not to the fund itself, Gilpin v. Burrage, 188 Tenn. 80, 90 , 216 S.W.2d 732, 737 (1948); Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 688 (Tenn.Ct.App.1982); or (3) the separate counsel was hired expressly to advocate interests contrary to those of the common fund. 5 With this general background i

2009Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rombo, 36 S.W.3d 837, 853 (Tenn.Ct.App.2000), meaning that it either applied an incorrect legal standard or reached a clearly uni'easonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2002Consequently, we will uphold a trial court’s award of fees unless it has abused its discretion, see Fell v. Rambo, 36 S.W.3d 837, 853 (Tenn.Ct. *204 App.2000), meaning that it either applied an incorrect legal standard or reached a clearly unreasonable decision, thereby causing an injustice to the aggrieved party, see Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).

2008The common fund doctrine enables shareholders to “pursu[e] justified claims for the benefit of corporations in which they have a valid interest.” Hannewald v. Fairfield Cmty., Inc., 651 S.W.2d 222, 230 (Tenn. 1983).

2008The common fund doctrine enables shareholders to “pursu[e] justified claims for the benefit of corporations in which they have a valid interest.” Hannewald v. Fairfield Cmtys., Inc., 651 S.W.2d 222, 230 (Tenn.App.1983).

2015We have concluded, however, that this case falls within an exception to the general rule, the common fund doctrine, which “arises when the attorney ‘has succeeded in securing, augmenting, or preserving property or a fund of money in which other people are entitled to share in common.’” Id. (quoting Travelers Ins.

2009Second, Mother claims that the Trial Court erred when it determined that Crabtree was entitled to a one-third (1/3) fee from her share of the settlement proceeds. 3 Discussion The standard of review for both of Mother’s issues is set forth in Kline v. Eyrich, 69 S.W.3d 197 (Tenn.2002), wherein our Supreme Court stated: Any issue as to whether the common fund doctrine applies to spread an attorney’s fee among various parties is a question of law.

2014See Hall v. Cole, 93 S. Ct. 1943, 1946-1947 (1973).

2013Id. at 421, 434 .

2008See, e.g., Decatur Mineral & Land Co. v. Palm, 113 Ala. 531 , 21 So. 315 , 316 (Ala. 1896); Knutsen v. Frushour, 92 Idaho 37 , 436 P.2d 521, 525 (Idaho 1968); State ex rel.

2008See, e.g., Decatur Mineral & Land Co. v. Palm, 113 Ala. 531 , 21 So. 315 , 316 (Ala. 1896); Knutsen v. Frushour, 92 Idaho 37 , 436 P.2d 521, 525 (Idaho 1968); State ex rel.

2008See, e.g., Decatur Mineral & Land Co. v. Palm, 113 Ala. 531 , 21 So. 315 , 316 (Ala. 1896); Knutsen v. Frushour, 92 Idaho 37 , 436 P.2d 521, 525 (Idaho 1968); State ex rel.

2008Section 48-17-401(d) directs a plaintiff to pay the defendant’s attorney fees if the suit was not commenced with “reasonable cause.” The policy behind section 48-17-401(d) is to discourage frivolous derivative suits and compensate defendants that are harmed by the costs incurred in the 3 The majority cites to State v. Turner, 193 S.W.3d 522, 527 (Tenn. 2006), for the proposition that “a change in the law by statute raises a presumption that a departure from the old law was intended.” What Turner actually said was “W hen the legislature makes a change in the language of a statute, we must assum

2008Section 48-17-401(d) directs a plaintiff to pay the defendant’s attorney fees if the suit was not commenced with “reasonable cause.” The policy behind section 48-17-401(d) is to discourage frivolous derivative suits and compensate defendants that are harmed by the costs incurred in the 3 The majority cites to State v. Turner, 193 S.W.3d 522, 527 (Tenn. 2006), for the proposition that “a change in the law by statute raises a presumption that a departure from the old law was intended.” What Turner actually said was “W hen the legislature makes a change in the language of a statute, we must assum