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Posted by: Tanja Trezise on Apr 30, 2014

Court: TN Court of Appeals

Attorneys 1:

H. Wayne Grant, Chattanooga, Tennessee, for the appellants, David R. Seaton and Paul Ray Seaton.

Attorneys 2:

Gary R. Patrick and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellee, Wise Properties-TN, LLC.

Judge(s): FRIERSON

This case involves the trial court’s award of attorney’s fees to the defendant property buyer upon remand from this Court. The sellers initiated the original action for specific performance and breach of contract after the buyer refused to close on the purchase of real property. The buyer filed a counterclaim requesting attorney’s fees. The buyer subsequently moved for summary judgment, arguing that the sellers had been the first to breach the contract by failing to fulfill a condition precedent. The trial court granted summary judgment in favor of the buyer, and the seller appealed. Upon that original appeal, while this Court affirmed summary judgment, the issue of attorney’s fees was not raised. Following this Court’s remand to the trial court, the buyer moved for an award of attorney’s fees, pursuant to a default provision of the parties’ agreement. After conducting a post-remand hearing, the trial court awarded the buyer attorney’s fees in the amount of $106,485. The seller appeals. We conclude: (1) that the buyer abandoned its counterclaim for attorney’s fees by failing to question the finality of the summary judgment and by failing to raise the issue during the first appeal and (2) that the trial court exceeded its authority by considering the buyer’s postremand motion. We therefore vacate the trial court’s award of attorney’s fees.