No Attorney’s Fee Award Permitted in Trespass Case

Attorney’s fees are not recoverable in a claim for trespass in Tennessee. In Perlaky v. Chapin, No. E2017-01995-COA-R3-CV (Tenn. Ct. App. July 27, 2018), plaintiff owned land on a mountain with easement rights to access the land by a specific road. When defendants bought property on the same mountain, they blocked the road by “felling 400 or 500 trees across the road, setting up a steel gate, and placing security guards at the gate to monitor access.” Plaintiff filed this trespass action, and the trial court awarded him nominal damages. The trial court initially awarded plaintiff attorney’s fees, but after a motion to alter or amend the judgment by defendant, the trial court vacated the award of attorney’s fees. The Court of Appeals affirmed.

First, the Court affirmed the award of nominal fees. Because plaintiff had presented damages incurred by Raccoon Mountain Campground, LLC, but had filed suit individually, the trial court found that no actual damages to plaintiff were proven. Nonetheless, “even where no actual damages are proven, the plaintiff is still entitled to nominal damages,” and the award of $174.14 as nominal damages was affirmed.

Second, the Court affirmed the trial court’s ultimate ruling that attorney’s fees were not available here. The Court stated that “there is no current statutory scheme for awarding attorney’s fees in trespass claims which would alert the opposing side to the fact that plaintiff sought such an award in this trespass action, nor was any mention made of attorney’s fees in the pleadings[.]” Further, the Court noted that attorney’s fees could not be awarded here under the category of punitive damages because “the trial court must have awarded actual damages for punitive damages to be considered.” (internal citation omitted).

This case is a good reminder to be careful of both which cases you take and which party you name as plaintiff when filing the suit. Based on the very little information provided in this opinion, it appears that the entity that actually suffered damages here was not the person whose name was listed as plaintiff.