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Date: 06-25-2022
Case Style:
STEVEN SIMMONS v. MAYOR JIM STRICKLAND, ET AL.
Case Number: E2021-00154-COA-R3-CV
Judge:
JOHN W. McCLARTY
Robert S. Weiss
Court:
COURT OF APPEALS OF TENNESSEE
On appeal from The Circuit Court for Shelby County
Plaintiff's Attorney:
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Defendant's Attorney: Brandy S. Parrish and Allan J. Wade, Memphis, Tennessee, for the appellees, Mayor Jim
Strickland, Melanie Neal, Sherman Greer, Frank Colvett, Jr., Patrice Robinson, Jamita
Swearengen, Worth Morgan, Gerre Currie, Berlin Boyd, Joe Brown, Cheyenne Johnson,
Martavius Jones, Kemp Conrad, J. Ford Canale, and Reid Hedgepeth.
Description:
Nashville, TN - Civil Litigation lawyer represented Respondent with appealing a complaint called frivolous.
On July 1, 2019, the appellant Steven Simmons (“Plaintiff”) filed in the trial court
a complaint in which the style of the case named the appellees “Mayor Strickland City of
Memphis,” “Melanie Neal Administrator Code Enforcement,” and each member of the
Memphis City Council: Sherman Greer, Frank Colvett, Jr., Patrice Robinson, Jamita
Swearengen, Worth Morgan, Gerre Currie, Berlin Boyd, Joe Brown, Cheyenne Johnson,
Martavius Jones, Kemp Conrad, J. Ford Canale, and Reid Hedgepeth (collectively
06/13/2022
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“Defendants”). The complaint’s allegations neither identify the parties nor indicate
whether the individuals listed in the style of the case are sued in their individual or official
capacities. Plaintiff’s complaint does not allege anything against Defendants Neal, Greer,
Colvett, Robinson, Swearengen, Morgan, Currie, Boyd, Brown, Johnson, Jones, Conrad,
Canale, Hedgepeth, or the Memphis City Council as a body. In narrative format, the
complaint references Plaintiff’s prior lawsuit which was settled against the City of
Memphis.1
At the time the complaint was filed, Plaintiff did not submit any summonses to the
Clerk of the trial court for issuance, nor did the Clerk promptly issue the required
summonses as set forth in Tennessee Rule of Civil Procedure 4.01. See Tenn. R. Civ. P.
4.04 (“The plaintiff shall furnish the person making the service with such copies of the
summons and complaint as are necessary.”). Instead, Plaintiff filed numerous motions for
default judgment against Defendants. Defendants later responded in opposition to the
motions for default judgment. On August 30, 2019, counsel for Defendants entered a
notice of appearance and expressly preserved all defenses on their behalf. On September
16, 2019, Defendants moved to dismiss the complaint based on lack of jurisdiction over
the person, insufficiency of process, and insufficiency of service of process. Among other
things, Defendants argued that service of process was not sufficient under Tennessee Rule
of Civil Procedure 12.02(5) due to Plaintiff’s failure to issue and serve summons on any
defendant.
On October 9, 2019, more than ninety days after the complaint was filed, Plaintiff
caused summons to be issued for all Defendants except Defendant Swearengen and
attempted service of process through certified mail. On October 11 and 15, 2019, Plaintiff
filed copies of the summonses and attached the certified mail return receipts for Defendants
Mayor Strickland, Canale, Colvett, Brown, Greer, Jones, Boyd, Currie, Robinson, Morgan,
Hedgepeth, and Johnson. Plaintiff also filed a copy of the summonses for Defendants Neal
and Conrad but did not attach a certified mail return receipt. An electronic receipt
indicating that a package was delivered to an unnamed person at an unidentified address
on October 10 and 11, 2019, was attached to the summonses for Defendants Neal and
Conrad filed by Plaintiff. No summons was issued for Defendant Swearengen until
December 12, 2019, and the summons for Defendant Swearengen indicated that service
would be made through certified mail. There was no postal service receipt attached to the
filed copy of the summons issued to Defendant Swearengen.
Plaintiff responded in opposition to Defendants’ motion to dismiss. In his response,
Plaintiff mostly referenced the prior lawsuit, but stated that “service of process has been
perfected.” Meanwhile, he continued to file motions to which Defendants responded,
1 Plaintiff attached to his complaint a copy of a $210,000.00 settlement check issued in 2016 by the
City of Memphis in the matter of Stephen [sic] Simmons and Vivian Simmons v. City of Memphis.
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including another motion for default judgment which the trial court denied.
On December 31, 2019, Defendants filed a reply to supplement their motion to
dismiss in which they detailed the deficiencies in Plaintiff’s attempts at service of process
through certified mail. Defendants also filed the affidavits of Defendant Neal and the
individuals Devon Thompson and Patricia Lewis to establish that Plaintiff’s attempts at
service were unsuccessful because, in each instance, the summons through certified mail
was delivered to persons who were not authorized to accept service of process for any of
the Defendants.
2
According to Defendant Neal’s affidavit, the certified mailing containing the
summons was not delivered to her personally by the postal service nor did she sign any
receipt for delivery of the summons. Defendant Neal stated that although it appears the
summons was delivered to her office address, she has not authorized any person to accept
service of process on her behalf.
According to Devon Thompson’s affidavit, on October 10, 2019, she signed the
certified mail return receipts for Defendants Brown, Jones, Canale, Greer, Boyd, Currie,
Robinson, Morgan, Hedgepeth, Johnson, and Colvett. Ms. Thompson stated that she is an
administrative assistant for the Memphis City Council and her duties include providing
back-up to the executive assistant assigned to the front desk of the Council office. In her
affidavit, Ms. Thompson also stated that: she has not been authorized to accept service of
process for the Memphis City Council or any of the individual Council members; at the
time she signed for the certified mail from Plaintiff, she was unaware that it contained
summonses for service of process; she was merely performing clerical duties; later her
supervisor instructed her to open the certified mail; and the certified mail to Defendants
Brown, Jones, Canale, Greer, Boyd, Currie, Robinson, Morgan, Hedgepeth, Johnson, and
Colvett contained a summons only, but no copy of the related complaint.
Patricia Lewis is the executive assistant to the office of the Mayor of the City of
Memphis. According to her affidavit regarding the certified mail return receipt filed with
the summons to Defendant Mayor Strickland, the return receipt was signed by Jasmine
Baker. Ms. Baker is employed as a Customer Service Administrative Specialist in the
Office of Community Affairs for the City of Memphis, but also provides back-up to Ms.
Lewis during Ms. Lewis’s lunch break. Ms. Baker’s job duties do not include accepting
service of process on behalf of any employee or officer of the City of Memphis. Neither
Ms. Lewis nor Ms. Baker have been authorized to accept service of process for Mayor
Strickland or for the City of Memphis.
2 The certified mail return receipts contain a box for “agent” and a box for “addressee” next to the
signature line. It is apparent on the face of the return receipts that the “addressee” did not sign any of the
receipts; however, the “agent” box was not checked by the signer for any of the return receipts.
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On January 10, 2020, the trial court heard Defendants’ motion to dismiss the
complaint.3
The trial court announced its ruling granting the motion to dismiss from the
bench. Following the ruling, Plaintiff continued to file various motions. By order entered
August 28, 2020, the trial court held that Plaintiff failed to obtain proper service of process
on any Defendant; that his attempts to serve the summonses through certified mail did not
comply with Tennessee Rule of Civil Procedure 4.03(2) or 4.04(10); that none of Plaintiff’s
mailings were signed by a Defendant or by someone authorized to accept service of process
on his or her behalf; and that Plaintiff “demonstrated an unwillingness to issue alias
summonses and attempt to properly serve Defendants.” Accordingly, the trial court
granted Defendants’ motion to dismiss based on lack of jurisdiction over the person,
insufficiency of process, and insufficiency of service of process. Tenn. R. Civ. P. 12.02(2),
(4), and (5).
Plaintiff moved to “Vacate Void Judgment” arguing, among other things, that “no
judge has the power to determine whether he has jurisdiction” and that the trial court lacked
the “authority to request that a hot dog be brought to the court for tasting.” Defendants
responded. The trial court treated Plaintiff’s motion as one to alter or amend the judgment
under Tennessee Rule of Civil Procedure 59.04 and, following a hearing, denied the motion
by order entered November 19, 2020. Plaintiff appealed.
II. ISSUES
Plaintiff’s stated issues do not reference any action of the trial court or the order
appealed from. We have determined that the issue is: (1) Whether the trial court erred in
dismissing the complaint pursuant to Tennessee Rule of Civil Procedure 12.02. In the
posture of appellees, Defendants raise the following issues: (2) Whether the appeal should
be dismissed based on Plaintiff’s failure to comply with Tennessee Rule of Appellate
Procedure 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee; and (3)
Whether Defendants should be awarded attorney fees pursuant to Tennessee Code
Annotated section 27-1-122. We will address the second issue first.
III. STANDARD OF REVIEW
Here, the trial court dismissed the complaint pursuant to Tennessee Rule of Civil
Procedure 12.02 based on the defenses of lack of jurisdiction over the person, insufficiency
of process, and insufficiency of service of process.
“A trial court’s decision regarding the validity of personal jurisdiction over a
3 The record does not contain a transcript of this hearing.
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defendant presents a question of law. We therefore conduct a de novo review of the trial
court’s decision with no presumption of correctness.” Crouch Ry. Consulting, LLC v. LS
Energy Fabrication, LLC, 610 S.W.3d 460, 471 (Tenn. 2020) (citations omitted).
Likewise, we review a trial court’s dismissal of a complaint based on insufficient process,
Tenn. R. Civ. P. 12.02(4), and insufficient service of process, Tenn. R. Civ. P. 12.02(5), de
novo with no presumption of correctness. See Meersman v. Regions Morgan Keegan Tr.,
No. M2017-02043-COA-R3-CV, 2018 WL 4896660, at *3 (Tenn. Ct. App. Oct. 9, 2018).
IV. DISCUSSION
Whether the Appeal Should Be Dismissed
At the outset, we must address Defendants’ raised issue wherein they request this
Court to dismiss the appeal. Defendants argue that the appeal should be dismissed based
on Plaintiff’s “significant departure from the mandatory provisions of Rule 27(a) of the
Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals
of Tennessee.” Tennessee Rule of Appellate Procedure 27 instructs that the appellant’s
brief “shall contain:”
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes
and other authorities cited, with references to the pages in the brief where
they are cited;
. . .
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the
course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented
for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting
forth: (A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on; and (B) for each issue, a concise statement of the applicable standard of
review (which may appear in the discussion of the issue or under a separate
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heading placed before the discussion of the issues);
(8) A short conclusion, stating the precise relief sought.
Tenn. R. App. P. 27(a). Additionally, Rule 6 of the Tennessee Court of Appeals states in
part:
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to the
page or pages of the record where such action is recorded. No assertion of
fact will be considered on appeal unless the argument contains a reference to
the page or pages of the record where evidence of such fact is recorded.
Tenn. Ct. App. R. 6(b).
We agree with Defendants that Plaintiff’s appellate brief is quite deficient.
Although portions of the brief contain an appropriate label, the substance of the brief’s
numbered pages is irrelevant to the issue decided by the trial court. For instance, the brief
includes a section labeled “Statement of Issues on Appeal,” but the issues do not
correspond to any issue the trial court decided. Likewise, the brief contains a “Statement
of the Case” which bears no resemblance to a statement regarding the nature of the case,
the course of proceedings, and its disposition in the court below. The “Brief and
Argument” section merely contains allegations copied from Plaintiff’s complaint without
any citation to the record. The “Conclusion” seeks original relief as opposed to appellate
relief. Plaintiff includes in the brief his own affidavit dated December 19, 2020, after this
appeal was filed. The affidavit was not filed in the trial court and is not part of the trial
court record, so we cannot consider it. See Tenn. R. App. P. 13(c) (This Court “may
consider those facts established by the evidence in the trial court and set forth in the record
and any additional facts that may be judicially noticed or are considered pursuant to Rule
14.”). Among other deficiencies, Plaintiff’s brief contains no references or citations to the
record on appeal, no facts relevant to the issue decided by the trial court, and no legal
argument or citations to authority on the issue decided by the trial court. Indeed, Plaintiff’s
brief makes but a passing reference to the service of process issue.
Generally, we only consider the issues that are properly raised, argued, and
supported with relevant authority. See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct.
App. 2001) (“[F]or an issue to be considered on appeal, a party must, in his brief, develop
the theories or contain authority to support the averred position . . . .”); see also Tenn. R.
App. P. 13(b) (“Review generally will extend only to those issues presented for review.”).
We agree with Defendants that Plaintiff has failed to comply with Tennessee Rule of
Appellate Procedure 27(a) and Rule 6 of the Rules of the Court of Appeals. Ordinarily,
“failure to comply with the Rules of Appellate Procedure and the Rules of this Court”
constitutes a waiver of the issues raised by the appellant. Bean v. Bean, 40 S.W.3d 52, 55
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(Tenn. Ct. App. 2000).
We believe that the aforementioned shortcomings in the brief are due, in part, to
Plaintiff’s status as a pro se litigant. This court “must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented parties are
expected to observe.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing
Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996)). It is well-settled that
“[w]hile a party who chooses to represent himself or herself is entitled to the fair and equal
treatment of the courts, [p]ro se litigants are not . . . entitled to shift the burden of litigating
their case[s] to the courts.” Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App.
2009) (internal citations omitted). However, “[t]he courts give pro se litigants who are
untrained in the law a certain amount of leeway in drafting their pleadings and briefs.”
Young, 130 S.W.3d at 63. Although this appeal is subject to dismissal due to Plaintiff’s
significantly deficient brief, we nonetheless exercise our discretion to consider the merits
of this case by reviewing the trial court’s dismissal of the complaint. See Tenn. R. App. P.
2 (allowing this Court to suspend the Tennessee Rules of Appellate Procedure “[f]or good
cause”). We find good cause to do so in this instance because, despite its shortcomings,
Plaintiff’s brief does not impede our ability to discern and address the dispositive issue in
this appeal. We caution litigants that our decision to entertain this appeal on the merits
does not mean that we will be as lenient in the future.
Dismissal of the Complaint Pursuant to Tennessee Rule of Civil Procedure 12.02
A civil lawsuit begins with the filing of a complaint in a court of competent
jurisdiction. Tenn. R. Civ. P. 3. That is only the first step. The person filing the lawsuit
must also serve a copy of the complaint and a summons on each defendant, and the
procedure for doing so is set forth in Tennessee Rule of Civil Procedure 4. Rule 4 concerns
“process” which is the legal means by which an individual or entity is required to appear
in court or a defendant is given notice of a legal action against them. See, e.g., Lewis v.
Bowen, No. M2003-00985-COA-R3-CV, 2004 WL 2752811, at *3 (Tenn. Ct. App. Dec.
1, 2004) (“Process . . . is the document, usually a summons, that brings the defendant before
the court, asserts the court’s jurisdiction over the case, and requires the defendant to
respond.”). Any litigant, whether represented by an attorney or not, “must comply with
the requirements of Tenn. R. Civ. P. 3 and 4 regarding the filing of the complaint and the
issuance of process.” Hodges v. Att’y Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). If
these requirements are not met, then a defendant can ask the court to dismiss the complaint
because the Tennessee Rules of Civil Procedure allow dismissal of all or part of a complaint
based upon the defenses of lack of jurisdiction over the person, insufficiency of process,
and insufficiency of service of process. Tenn. R. Civ. P. 12.02(2), 12.02(4) and 12.02(5);
McNeary v. Baptist Mem’l Hosp., 360 S.W.3d 429, 436 (Tenn. Ct. App. 2011). “A court
acquires personal jurisdiction over a defendant when the defendant is served with process.”
McNeary, 360 S.W.3d at 436 (citing Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977)).
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Here, the trial court dismissed Plaintiff’s complaint because the court found that
Plaintiff did not follow the requirements in the Tennessee Rules of Civil Procedure when
attempting to serve the Defendants with process through certified mail. We turn now to
those Rules and the caselaw interpreting them. Rule 4.03(2) provides, in pertinent part, as
follows:
When process is served by mail, the original summons, endorsed as below;
an affidavit of the person making service setting forth the person’s
compliance with the requirements of this rule; and, the return receipt shall
be sent to and filed by the clerk. The person making service shall endorse
over his or her signature on the original summons the date of mailing a
certified copy of the summons and a copy of the complaint to the defendant
and the date of receipt of return receipt from the defendant. If the return
receipt is signed by the defendant, or by person designated by Rule 4.04 or
by statute, service on the defendant shall be complete. If not, service by mail
may be attempted again or other methods authorized by these rules or by
statute may be used.
Tenn. R. Civ. P. 4.03(2) (emphasis added). “Return of service is a written account of the
actions taken by the person making service to show to whom and how the service was
made, or the reason service was not made.” 3 Nancy Fraas MacLean, Tennessee Practice
Series—Rules of Civil Procedure Annotated § 4:15 (4th ed. 2008). “The language of Rule
4.03 ‘set[s] forth a mandatory requirement rather than a discretionary ideal that need not
be strictly enforced to confer jurisdiction over a party.’” Hall v. Haynes, 319 S.W.3d 564,
577 (Tenn. 2010) (quoting Estate of McFerren v. Infinity Transp., LLC, 197 S.W.3d 743,
748 (Tenn. Workers Comp. Panel 2006)). Moreover, actual notice of a lawsuit “does not
excuse the failure to serve process in compliance with our Rules of Civil Procedure.” Id.
at 574.
Rule 4.04 instructs, in relevant part:
The plaintiff shall furnish the person making the service with such copies of
the summons and complaint as are necessary. Service shall be made as
follows:
Service by mail of a summons and complaint upon a defendant may be made
by the plaintiff, the plaintiff’s attorney or by any person authorized by statute.
After the complaint is filed, the clerk shall, upon request, furnish the original
summons, a certified copy thereof and a copy of the filed complaint to the
plaintiff, the plaintiff’s attorney or other authorized person for service by
mail. Such person shall send, postage prepaid, a certified copy of the
summons and a copy of the complaint by registered return receipt or certified
return receipt mail to the defendant. If the defendant to be served is an
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individual or entity covered by subparagraph (2), (3), (4), (5), (6), (7), (8), or
(9) of this rule, the return receipt mail shall be addressed to an individual
specified in the applicable subparagraph. The original summons shall be
used for return of service of process pursuant to Rule 4.03(2). Service by
mail shall not be the basis for the entry of a judgment by default unless the
record contains either (a) a return receipt showing personal acceptance by the
defendant or by persons designated by Rule 4.04 or statute; or (b) a return
receipt stating that the addressee or the addressee’s agent refused to accept
delivery, which is deemed to be personal acceptance by the defendant
pursuant to Rule 4.04(11). . . .
Tenn. R. Civ. P. 4.04(10). For service upon an individual, Rule 4.04 authorizes delivering
copies of the summons and the complaint “to an agent authorized by appointment or by
law to receive service on behalf of the individual served.” Tenn. R. Civ. P. 4.04(1). For
service upon a municipality, Rule 4.04 requires “delivering a copy of the summons and of
the complaint to the chief executive officer thereof, or to the city attorney.” Tenn. R. Civ.
P. 4.04(8).
Our Supreme Court’s opinion in Hall addressed the issue of whether service by
certified mail is proper where it is signed for by persons who have not been authorized to
accept service of process of lawsuits upon an individual defendant. Hall, 319 S.W.3d at
577–81. The Court held “that a person with the authority to sign for and receive certified
mail does not, without more, qualify as an agent authorized by appointment to receive
service of process on behalf of an individual defendant.” Hall, 319 S.W.3d at 581. The
Court also offered some practice tips: “When sending the summons and complaint via
certified or registered mail, the plaintiff may . . . restrict[] delivery to a specific person
[and] . . . [i]f delivery by certified mail fails in the first instance, Rule 4.03(2) expressly
states that ‘service by mail may be attempted again or other methods authorized by these
rules or by statute may be used.’” Id. The plaintiff has the burden of proving that the
person he or she elected to serve is the defendant’s authorized agent for service of process.
See, e.g., Milton v. Etezadi, No. E2012-00777-COA-R3-CV, 2013 WL 1870052, at *6
(Tenn. Ct. App. May 3, 2013).
In this case, Plaintiff filed a copy of the “returned” summonses with attached postal
service certified mail return receipts for Defendants Brown, Boyd, Canale, Colvett, Currie,
Greer, Hedgepeth, Johnson, Jones, Morgan, Robinson, and Strickland. Plaintiff also filed
a copy of the “returned” summonses for Defendants Conrad, Swearengen, and Neal, but
did not attach a certified mail return receipt. On their face, all of the summonses filed by
Plaintiff are defective because none of them contain the affidavit required by Rule 4.03(2).
Also, the summonses for Defendants Conrad, Neal, and Swearengen lack the attached
certified mail return receipt required by Rule 4.03(2). Furthermore, none of the certified
mail return receipts are signed by the defendant named in the summons, so service was
incomplete. See Tenn. R. Civ. P. 4.03(2). To the extent that Plaintiff also attempted to
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serve the City of Memphis with process, he failed to do so because the record does not
contain proof that a copy of the summons and of the complaint were served upon the chief
executive officer or the city attorney for the City of Memphis. See Tenn. R. Civ. P. 4.04(8).
Additionally, service by certified mail was not perfected in this case because
Plaintiff failed to prove that the staff members who received and signed for the summons
that he tried to serve via certified mail were agents authorized by appointment or law to
receive service of process on behalf of the individual defendants. Rule 4.03(2) plainly
requires the signature of the defendant or a person designated under Rule 4.04 or statute
for service by mail to be complete. Tenn. R. Civ. P. 4.03(2); 4.04(1). Instead, the
uncontroverted affidavit evidence submitted by Defendants establishes that, in each
instance, the person served was an office staff member who did not have authority to accept
service of process.
The only relevant statements Plaintiff presents on appeal are that service of process
was completed pursuant to Rule 4 because “[c]ertified mail returns receipt [sic] was
perfected and green cards were filed and have been filed with the clerk of court” and
“Tennessee Law makes clear that a complaint cannot be denied when a corrected service
was completed to the person who receives service of process to receive complaints against
City officials.” Plaintiff does not include any citation to the record on appeal to support
these assertions. In fact, the record totally controverts them. Plaintiff has never addressed
the fact that the “green cards” were not signed by any of the defendants. In the trial court,
Defendants submitted many filings detailing the deficiencies in service of process, yet
Plaintiff took no action to correct those deficiencies or to effect proper service. Based upon
the record, we must conclude that Plaintiff failed to properly serve process on Defendants
in compliance with the Tennessee Rules of Civil Procedure.
Due to Plaintiff’s failure to comply with Rule 4, the trial court correctly determined
that it did not acquire personal jurisdiction over Defendants. Discerning no error and with
the foregoing considerations in mind, we affirm the trial court’s order dismissing the
complaint pursuant to Tennessee Rule of Civil Procedure 12.02 on the defenses of lack of
jurisdiction over the person, insufficiency of process, and insufficiency of service of
process.
Frivolous Appeal
Defendants also contend that Plaintiff has filed a frivolous appeal, rendering him
liable for damages to them on appeal pursuant to Tennessee Code Annotated section 27-1-
122, which provides as follows:
When it appears to any reviewing court that the appeal from any court of
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record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122.
The decision whether to award damages for a frivolous appeal rests solely in our
discretion. Chiozza, 315 S.W.3d at 493. Appellate courts exercise their discretion to award
fees under this statute ‘“sparingly so as not to discourage legitimate appeals.”’ Eberbach
v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (quoting Whalum v. Marshall, 224 S.W.3d
169, 181 (Tenn. Ct. App. 2006)). ‘“Successful litigants should not have to bear the expense
and vexation of groundless appeals.”’ Whalum, 224 S.W.3d at 181 (quoting Davis v. Gulf
Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)). “A frivolous appeal is one that is ‘devoid
of merit,’ or one in which there is little prospect that it can ever succeed.” Indus. Dev. Bd.
v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995).
This appeal had no prospect of success. Plaintiff pursued the appeal relying on a
brief that significantly fails to comply with the requirements of Tennessee Rule of
Appellate Procedure 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee.
Plaintiff devotes nearly all of his brief to advancing irrelevant narrative arguments
pertaining to prior litigation rather than addressing, with reference to authority and to the
record, the order actually appealed from. Also, Plaintiff’s brief contains material that was
not presented to the trial court. With all of the above considerations in mind and exercising
our discretion, we grant Defendants’ request for attorney fees incurred on appeal, the
amount of which the trial court shall determine upon remand.
Outcome: We affirm the judgment of the trial court. The case is remanded for such further
proceedings as may be necessary and consistent with this opinion, including a
determination of the proper amount of appellate attorney fees and entry of judgment
thereon. Costs of the appeal are taxed to the appellant, Steven Simmons.
Plaintiff's Experts:
Defendant's Experts:
Comments: