Summit Process Design Inc. et al v. Hemlock Semiconductor, L.L.C.

Filing 28

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 12/21/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

SUMMIT PROCESS DESIGN INC.
and BRUCE HAZELTINE,
Plaintiffs
v.
HEMLOCK SEMICONDUCTOR,
L.L.C.,
Defendant.

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Case No. 3:17-cv-01208
Judge Aleta A. Trauger

MEMORANDUM
Plaintiffs Summit Process Design Inc. and Bruce Hazeltine (referred to herein,
collectively, in the singular, as “Summit”) have filed suit against defendant Hemlock
Semiconductor, L.L.C. (“Hemlock”), seeking to recover, as damages for the prior breach of a
settlement agreement, the attorney fees incurred as a result of that breach. Now before the
court is Hemlock’s Motion to Dismiss. (Doc. No. 13.) For the reasons set forth herein, the
court will grant the motion and dismiss this case.
I.

Factual and Procedural Background
In June 2015, Hemlock filed suit in this court against Summit (and others), claiming

misappropriation of trade secrets and seeking a preliminary and permanent injunction.
Hemlock Semiconductor, L.L.C. v. Summit Process Design Inc., No. 3:15-cv-00664 (M.D.
Tenn.) (“Prior Litigation”). On June 24, 2015, after two weeks of intensive litigation
concerning Hemlock’s preliminary injunction motion, while the parties and their attorneys
were gathered for depositions, counsel for Hemlock approached counsel for Summit with a

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suggestion that the parties settle the matter. “After several hours of negotiations, the parties
and attorneys gathered in a conference room with a court reporter and read into the record
what was described as a ‘Confidential Memorandum of Understanding’ (the ‘MOU’).”
(Compl. ¶ 13, Doc. No. 1.) Point Number 4 of the MOU was that “the lawsuit will be
dismissed with prejudice except the injunctive language.” (MOU, Doc. No. 1-2, at 5.) The
parties contemplated that additional negotiations would be necessary to hammer out the
precise language of the settlement agreement but agreed that they had, in principle, reached
an agreement. (See MOU, Doc. No. 1-2, at 2 (“This is a framework of basic points that the
parties have discussed and with which we believe we have agreement. There will be further
negotiations over the language.”).)
The next day, the parties began carrying out the terms of the MOU, beginning with
notifying the court that they had reached a settlement. (Compl. ¶¶ 15–16.) Over the next
several weeks, the parties worked on drafting a formal settlement agreement. In August,
according to Summit, Hemlock circulated a new draft settlement instrument that included
new and substantive changes. Ultimately, the parties found themselves unable to agree on the
wording of the settlement and began litigating the matter again. Summit maintains that its
attorneys were required to engage in substantial activities related to the original claims in the
action as a result of Hemlock’s failure to abide by the terms of the MOU. Summit ultimately
filed a Motion to Enforce Settlement. The presiding judge 1 denied Summit’s motion to stay
the matter pending resolution of the Motion to Enforce Settlement, so the parties continued to
litigate the underlying claims while that motion was pending.
In May 2016, the court entered an Order and Memorandum granting Summit’s

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The Prior Litigation was assigned to then Chief Judge Kevin Sharp.

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Motion to Enforce Settlement and dismissing the case. The court specifically held that the
parties had reached a binding and enforceable settlement agreement on June 24, 2015, as
memorialized by the MOU. Thereafter, both parties filed Motions to Alter or Amend
Judgment, but, “pursuant to a confidential second settlement agreement,” the court entered an
Agreed No-Fault Permanent Injunction and Agreed Order on March 29, 2017, thus mooting
the dueling Motions to Alter or Amend Judgment.
Five months later, Summit filed this lawsuit, alleging that Hemlock had breached a
binding settlement agreement by continuing to litigate its claims in the Prior Litigation after
the parties reached the agreement memorialized by the MOU. Summit asserts that it suffered
“substantial damages as a direct and foreseeable result of Hemlock’s refusal to dismiss the
Prior Litigation.” (Compl. ¶ 36.) Specifically, Summit claims that it incurred attorney fees
from June 24, 2015 through March 29, 2017, in the amount of $121,710.46, as a result of the
breach. (Compl. ¶ 37.)
Summit clarifies that it does not seek “recovery of damages for attorneys’ fees and
costs related to the drafting of Motion to Enforce Settlement, including reply and related
motion to ascertain status; negotiations and party-resolution of the Motions to Alter or
Amend, including the drafting of the second settlement agreement; or work that relates to the
recovery of damages as a result of Hemlock’s breach of the MOU.” (Compl. ¶ 39.) Instead, it
seeks to recover only those fees incurred in relation to the underlying claims in the Prior
Litigation, against which Summit was forced to defend itself as a result of the breach,
including the fees associated with preparing and submitting a proposed Initial Case
Management Order, participating in the initial case management conference, answering
Hemlock’s Complaint and Amended Complaint, conducting and responding to discovery,

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drafting a motion for summary judgment, and so forth. (Compl. ¶ 25.)
In lieu of answering, Hemlock filed its Motion to Dismiss, arguing that, under the socalled “American rule,” each party must bear its own costs of litigation, absent an express
contractual or statutory basis for recovering attorney fees, that the Complaint fails to state a
viable basis for the recovery of damages that consist solely of attorney fees, and that the
claim for fees is untimely under Rule 54(d) of the Federal Rules of Civil Procedure and Rule
54.01(b) of this court’s Local Rules.
Summit responds that it simply seeks as compensatory damages the attorney fees that
were “the normal and foreseeable result of the breach of a contract.” (Doc. No. 21, at 3
(quoting Bush v. Cathey, 598 S.W.2d 777, 783 (Tenn. Ct. App. 1979)).) In its Reply,
Hemlock generally argues that the precedent upon which Summit relies is inapposite or from
jurisdictions the law of which differs from that of Tennessee. (Doc. No. 27.)
II.

Standard of Review
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the

court must “construe the complaint in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th
Cir. 2002). The Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and
plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957)
(quoting Fed. R. Civ. P. 8(a)(2)). The court must determine whether “the claimant is entitled
to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the
facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff
cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of
action”; instead, the plaintiff must plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
IV.

Discussion
This diversity breach of contract action is governed by state law, Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), and there is no dispute that Tennessee’s substantive law
applies to this case. Under Tennessee law, “[a] settlement agreement made during the course
of litigation is a contract between the parties, and as such, contract law governs disputes
concerning the formation, construction, and enforceability of the settlement agreement.”
Waddle v. Elrod, 367 S.W.3d 217, 222 (Tenn. 2012). To establish a claim for breach of
contract under Tennessee law, the plaintiff must prove “(1) the existence of an enforceable
contract, (2) nonperformance amounting to a breach of the contract, and (3) damages caused
by the breach of the contract.” ARC LifeMed, Inc. v. AMC–Tennessee, Inc., 183 S.W.3d 1, 26
(Tenn. Ct. App. 2005). In this case, the existence of a contract and breach thereof were
established by the ruling on Summit’s Motion to Enforce Settlement in the Prior Litigation.
The only issue now is whether Summit can establish damages caused by the breach. If, as a
matter of law, the damages Summit seeks are not recoverable, the case must be dismissed.
As set forth above, the only damages Summit seeks are in the form of attorney fees

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incurred in pursuing the Prior Litigation after Hemlock breached the MOU. “Tennessee, like
most jurisdictions, adheres to the ‘American rule’ for award[ing] attorney fees.” Cracker
Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing John
Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998); Pullman Standard,
Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985)). Under the American rule, a party in
a civil action may recover attorney fees only where: “(1) a contractual or statutory provision
creates a right to recover attorney fees; or (2) some other recognized exception to the
American rule applies, allowing for recovery of such fees in a particular case.” Id. (citing
John Kohl, 977 S.W.2d at 534).
Hemlock argues that the plaintiff has not pointed to a contractual or statutory right to
recover attorney fees and that no other exception to the American rule applies to permit an
award of fees in this case. Summit insists, to the contrary, that there is an exception for
awarding attorney fees when such fees constitute the incidental and consequential damages
flowing from the breach of a settlement agreement. It argues that it incurred fees when it was
forced, as a direct result of Hemlock’s breach of the MOU, to continue to litigate the
underlying claims in the Prior Litigation.
Summit compares its claims to those in John Kohl, a case in which the plaintiffs
sought to recover all attorney fees incurred in litigating a legal malpractice action as well as
the fees incurred in connection with the underlying legal negligence that gave rise to the
malpractice suit. The Tennessee Supreme Court distinguished among the different types of
legal fees at issue in that type of case as follows:
[T]here are three categories of attorney’s fees that may constitute damages
resulting from legal malpractice: (1) “initial fees” a plaintiff pays or agrees to
pay an attorney for legal services that were negligently performed, (2)
“corrective fees” incurred by the plaintiff for work performed to correct the

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problem caused by the negligent lawyer, and (3) “litigation fees,” which are
legal fees paid by the plaintiff to prosecute the malpractice action against the
offending lawyer.
John Kohl, 977 S.W.2d at 534. The Tennessee Supreme Court held that the trial and
intermediate appellate courts had correctly held that the plaintiffs were entitled to recover the
initial fees and the corrective fees, but the court affirmed the denial of the litigation fees
based on its application of the American rule. Summit argues here that the fees it was forced
to incur in pursuing the Prior Litigation after Hemlock breached the MOU are akin to the
corrective fees that were held to be recoverable in John Kohl.
Likewise, Summit points to Morrow v. Jones, 165 S.W.3d 254 (Tenn. Ct. App. 2004),
an action for breach of a contract for the sale of real estate in which the defendant also
brought counterclaims for breach of contract, specifically a rental agreement. The court
entered judgment for the defendant on her breach of contract claim and awarded
consequential damages, which included attorney fees associated with late payments on her
mortgage, incurred as a result of the plaintiffs’/counterdefendants’ failure to make timely rent
payments. The court found that, “under the circumstances, [the defendant’s] inability to pay
the mortgage in a timely fashion was a foreseeable consequence of the [plaintiffs’] failure to
pay rent. Thus, the trial court properly awarded the late fees, reinstatement fees, and
attorney’s fees as consequential damages . . . .” Id. at 259–60. Summit argues that Morrow
supports the proposition that an award of attorney fees as a component of consequential
damages is authorized by Tennessee law.
As a matter of logic and public policy, Summit’s argument is not without appeal. The
Tennessee courts, however, do not appear to have embraced it. In Grace v. Grace, No.
W2016-00650-COA-R3-CV, 2016 WL 6958887 (Tenn. Ct. App. Nov. 29, 2016), the

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plaintiff in a breach of contract action filed a motion to enforce a settlement agreement
reached with the defendant and also sought, as part of the direct and consequential damages
caused by the breach, those attorney fees incurred after the defendant breached the settlement
agreement. He specifically sought only those fees “incurred . . . after [the defendant]
allegedly refused to sign the agreed order concerning the settlement agreement.” Id. at *2.
Neither the plaintiff nor the trial court expressly distinguished between those fees associated
strictly with the enforcement of the settlement agreement and those associated with litigating
the underlying claims. The court did note, however, that the defendant sought, and was
granted, leave to amend her answer and counter-complaint and to complete additional
discovery after the plaintiff filed the motion to enforce the settlement agreement, so
presumably at least some of the fees sought were incurred in connection with the plaintiff’s
being required to answer the amended counter-complaint and participate in discovery as a
result of the defendant’s breach of the settlement agreement.
The trial court ultimately granted the motion to enforce the settlement but denied the
request for attorney fees based on its application of the American rule. On appeal, the
plaintiff argued that an exception to the American rule permitted the recovery of attorney
fees that are the “incidental and consequential damages incident to [the defendant’s] breach
of the parties’ settlement agreement.” Id. at *6. The plaintiff relied on Edwards Moving &
Rigging, Inc. v. Lack, No. 2:14-cv-02100-JPM-tmp, 2015 WL 3891953 (W.D. Tenn. June 24,
2015), which held, based on Tennessee law, that “[o]ne who through the tort of another has
been required to act in the protection of his interests by bringing or defending an action
against a third person is entitled to recover reasonable compensation for loss of time, attorney
fees and other expenditures thereby suffered or incurred in the earlier action.” Id. at *8

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(quoting Engstrom v. Mayfield, 195 F. App’x 444, 451 (6th Cir. 2006), and citing Pullman
Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 340 (Tenn. 1985)).
In responding to that argument, the Grace court noted, first, that it was not bound to
follow a federal court’s interpretation of state law. Grace, 2016 WL 6958887, at *6. But it
also distinguished Edwards Moving on the basis that the plaintiff there pursued a tort claim—
tortious interference with contract—under which the plaintiff was able to claim as damages
the attorney fees it had incurred in its suit against a third party to enforce the contract the
breach of which was caused by the defendant’s tortious interference. As the Grace court
stated:
In our view, it was the tort action, rather than the contract enforcement action,
that laid the foundation for the attorney’s fee award. Indeed, the Tennessee
case cited by the Edwards Moving court in support of its ruling . . .
specifically held that the attorney’s fees award could be recovered in that case
“under an independent tort theory.”
Id. at *7 (quoting Pullman, 693 S.W.2d at 340); see also Pullman, 693 S.W.2d at 340 (“It
appears to be well settled that where the natural and proximate consequence of a tortious act
of defendant has been to involve plaintiff in litigation with a third person, reasonable
compensation for attorneys’ fees incurred by plaintiff in such action may be recovered as
damages against the author of the tortious act.”). 2
In Grace, however, Pullman’s “independent tort exception” did not apply, both
because the case did not involve a tort claim and because the case only involved claims
between the plaintiff and the defendant, as a result of which the plaintiff “was not required to

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The Pullman court also recognized another exception to the American rule, holding
that an implied indemnity agreement could furnish a basis for an award of attorney fees. See
id. at 338 (“We . . . hold that the right of indemnity which arises by operation of law, based
upon the relationship of the parties, includes the right to recover attorneys’ fees and other
litigation costs which have been incurred by the indemnitee in litigation with a third party.”).

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bring suit against a third party to protect his interests.” Id. Because the plaintiff invoked no
other possible exception to the America rule, the court upheld the denial of attorney fees in
that case. The court also addressed virtually all of the Tennessee cases upon which Summit
relies, including Morrow and Bruce v. Olive, No. 03A01-9509-CV-00310, 1996 WL 93580
(Tenn. Ct. App. March 4, 1996), distinguishing them on the facts or on the basis that they
included no analysis of the attorney fee award. See, e.g., Grace, 2016 WL 6958887, at *7
(describing Morrow as “addressing an argument that another portion of the consequential
damage award was erroneous, but simply stating without discussion that the attorney’s fees
were proper consequential damages for the breach of contract”). 3
Summit argues that Grace is inapposite because it did not expressly address the
plaintiff’s argument—that is, it did not expressly distinguish between those fees incurred in
enforcing the settlement agreement and those fees incurred in pursuing the underlying
litigation because of the breach of the settlement agreement. Summit also argues that Grace,
as an unreported case, is of limited persuasive value and that the court should rely, instead,
on cases from other jurisdictions, particularly Ohio and Texas, which specifically
countenance the recovery of attorney fees incurred as the result of a party’s breach of an
enforceable settlement agreement. See, e.g., Rohrer Corp. v. Dane Elec. Corp., 482 F. App’x
113 (6th Cir. 2012) (“Ohio law allows a court to award attorney’s fees as compensatory
damages when a party’s breach of a settlement makes litigation necessary, even where none
of the exceptions to the American Rule have been shown.”); Tejada-Hercules v. State Auto.
Ins. Co., No. 08AP-150, 2008 WL 4416534 (Ohio Ct. App. Sept. 30, 2008) (“When a party
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In Morrow, the defendant was allowed to recover as damages the amount of
attorney fees she had paid to a third party as a result of the plaintiff’s breach of a rental
agreement, which rendered the defendant unable to pay her mortgage. Thus, the situation is
more closely analogous to Pullman than to Grace or this case.

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breaches a settlement agreement to end litigation and the breach causes a party to incur
attorney fees in continuing litigation, those fees are recoverable as compensatory damages in
a breach of settlement claim.”); Vianet Group PLC v. Tap Acquisition, Inc., No. 3:14-CV3601-B, 2016 WL 4368302, at *7 (N.D. Tex. Aug. 16, 2016) (noting that Texas law
“distinguishes between [1] recovery of attorney’s fees as actual damages and [2] recovery of
attorney’s fees incident to recovery of other actual damages,” and permits them in the former
but not the latter, to which the American rule applies instead (citations omitted)); Guffey v.
Clark, No. 05-93-00849-CV, 1997 WL 142750, at *3 (Tex. Ct. App. Mar. 31, 1997)
(“Therefore, if the attorneys’ fees and costs Clark and Harris incurred in the Mississippi
litigation and the injunction action were the natural, probable, and foreseeable consequence
of Guffey’s breach of the settlement agreement, those fees and costs can properly be
recovered as damages.”).
As Hemlock points out, however, “[w]here no on-point precedent from the Tennessee
Supreme Court is available, [the federal courts applying Tennessee law] must consider any
available precedent from the state appellate courts, whether published or unpublished.” Lukas
v. McPeak, 730 F.3d 635, 638 (6th Cir. 2013). That is, any intermediate appellate opinion is
“a datum for ascertaining state law which is not to be disregarded by a federal court unless it
is convinced by other persuasive data that the highest court of the state would decide
otherwise.” Id. (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). There is no
Tennessee Supreme Court opinion precisely on point and no other Tennessee appellate case
more closely on point than Grace. That opinion, regardless of whether it is published,
constitutes stronger evidence of how the Tennessee Supreme Court would rule than opinions
from Texas and Ohio.

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Moreover, other jurisdictions presented with the precise issue have expressly held,
based on the American rule, that attorney fees incurred in litigating a case after the breach of
a settlement agreement are not recoverable. For example, in Reigel v. Whelan, No. 04-C-365,
2006 WL 51149, at *1 (E.D. Wis. Jan. 10, 2006), the district court was squarely confronted
with the question of “whether, under Wisconsin law, attorney’s fees are properly awarded as
damages stemming from breach of a release in which one party agrees not to sue the other.”
The court noted the absence of Wisconsin case law precisely on point “as well as the tension
between the notion that attorney’s fees are the sensible and predictable ‘damages’ when a
release is breached and the American Rule holding that attorney’s fees are to be borne by
both sides of a dispute.” Id. The court was clearly troubled by this tension but ultimately
denied attorney fees:
[W]hen a party agrees not to sue another, and then does, the damages from a
breach of that agreement would seem to include the costs of defending the
wrongfully brought lawsuit, including attorney’s fees. [H]owever, . . . there
seem[s] to be a majority view that attorney’s fees are not properly awarded in
this circumstance absent a specific contractual provision to the contrary. The
reasoning behind this rests squarely on the American Rule that a party must
bear its own expenses in litigation.
Whatever the merits of the opposing viewpoints, I am persuaded that
Wisconsin courts would not award attorney’s fees in a case like this. . . .
[P]arties to a release are aware of the potential costs of litigation and can
easily contract to provide attorney’s fees if they so desire. Absent such a
provision, and without clear Wisconsin authority to do so, I conclude that the
proper approach here is to decline to award fees.
Id. (citing In re Weinschneider, 395 F.3d 401, 404 (7th Cir. 2005); Child v. Lincoln Enters.,
Inc., 200 N.E.2d 751, 754 (Ill. App. Ct. 1964); and Navellier v. Sletten, 131 Cal. Rptr. 2d
201, 211 (Cal. Ct. App. 2003)). Accord Bunnett v. Smallwood, 793 P.2d 157, 161 (Colo.
1990) (“[P]arties who enter into a release are aware of the potential legal costs if the
agreement is breached. It is not unfair to require each party to pay its own legal costs if the

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parties did not find it necessary to include a fee shifting provision when they entered into the
agreement.”); Schumate v. Lycan, 675 N.E.2d 749, 753–54 (Ind. Ct. App. 1997) (reaching the
same conclusion under Indiana law, citing Bunnett).
The Tennessee Supreme Court has recognized that the American rule is “firmly
established” in the state. House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008).
The public policy considerations underlying the rule include:
First, since litigation is inherently uncertain, a party should not be penalized
for merely bringing or defending a lawsuit. Second, the poor might be unjustly
discouraged from instituting actions to vindicate their rights if the penalty for
losing included paying the fees of their opponent’s lawyer. Third, requiring
each party to be responsible for their own legal fees promotes settlement.
Fourth, the time, expense, and difficulty inherent in litigating the appropriate
amount of attorney’s fees to award would add another layer to the litigation
and burden the courts and the parties with ancillary proceedings. Thus, as a
general principle, the American rule reflects the idea that public policy is best
served by litigants bearing their own legal fees regardless of the outcome of
the case.
Id. (citations omitted). Summit insists that the third consideration is actually thwarted by not
allowing attorney fees in the situation presented here: litigants are free to flout settlement
agreements without penalty, since the only damages associated with the breach of a
settlement agreement are the attorney fees associated with continuing to litigate a case that
has been settled.
While the court finds that argument persuasive, Summit has not pointed to any
Tennessee case creating an exception to the general rule for this type of situation. And those
Tennessee decisions addressing claims for attorney fees—from the Tennessee Supreme Court
as well as both published and unpublished decisions from the Tennessee Court of Appeals—
strongly suggest that the Tennessee Supreme Court, if confronted with the question, would
apply the American rule strictly, awarding attorney fees to an adversary only where they are

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permitted by statute or contract or where “some other recognized exception to the American
rule applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old
Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009). Summit is essentially
asking this court to create a new exception to the American rule, one not previously
recognized by the Tennessee courts. The court declines that invitation.
In sum, the only damages sought are attorney fees, but Tennessee law does not
authorize recovery of attorney fees as damages under the circumstances presented here.
Damages are an essential element of any contract case governed by Tennessee law. See
Kindred v. Nat'l Coll. of Bus. & Tech., Inc., No. W2014-00413-COA-R3CV, 2015 WL
1296076, at *4 (Tenn. Ct. App. Mar. 19, 2015) (dismissing contract claim where the damages
sought were too speculative). Summit, as a matter of law, cannot prevail on its breach of
contract claim.
V.

Conclusion
For the reasons forth herein, the court will grant the defendant’s motion and dismiss

this case with prejudice. An appropriate Order is filed herewith.
ENTER this 21st day of December 2017.

____________________________________
ALETA A. TRAUGER
United States District Judge