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Date: 07-28-2022
Case Style:
CLARE WEST ET AL. V. WAYNE AKARD
Case Number: E2021-00962-COA-R3-CV
Judge:
ANDY D. BENNETT; Presiding Judge
JOHN W. MCCLARTY
KENNY W. ARMSTRONG
joined
Court:
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
On Appeal From The Circuit Court for Knox County
William T. Ailor
Judge
Plaintiff's Attorney:
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Defendant's Attorney: Wayne Akard, Knoxville, Tennessee, pro se
Description:
Knoxville, TN - Real Estate lawyer represented appellees with a landlord-tenant dispute.
This case involves a dispute between a landlord and his tenants. Because the record
contains no transcript of evidence or statement of the evidence, the facts recounted herein
are taken from the pleadings, exhibits, and orders provided in the technical record.
On August 6, 2019, Wayne Akard (“Landlord”) entered into an agreement to lease
his real property located at 123 Henley Road, Oak Ridge, Tennessee to Fred and Clare
06/30/2022
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West (collectively, “Tenants”). Approximately three weeks prior to leasing the property
to Tenants, Landlord made some improvements to the house’s basement, including adding
a bathroom with a toilet, shower, and sink. He failed to obtain permits for these
improvements.
The one-page lease agreement executed by the parties included a provision about
maintenance of the property that stated: “[Tenants] shall be responsible for minor routine
maintenance of the house and grounds. . . . Any major repairs arising from the normal
operation of the house shall [be] the responsibility of [Landlord].” This provision became
of paramount importance because Tenants began experiencing plumbing issues within the
first month of living in the home, specifically water flowing into the basement. Initially,
the parties maintained an amicable relationship and cooperated with each other to make the
necessary repairs. The issue persisted through April 2020, and Landlord repeatedly
attempted to resolve the problem by hiring people to perform repairs. These attempts did
not resolve the issue, however, and Tenants became concerned after some mold was
discovered on a section of the basement floor. Thus, two mold inspections were performed.
Under both inspections, a reading of mold levels above 5,000 could indicate an issue for
occupants of the home. The first test showed a level of 100,000, but the second test, which
occurred approximately a week after the first test, showed that the mold levels significantly
decreased to 10,000.
On April 13, 2020, Mr. West, frustrated with the situation, reported the on-going
plumbing issues to Oak Ridge Codes Enforcement (“Codes”). After conducting an
investigation, Codes issued a violation to Landlord for not obtaining permits for the
bathroom addition in the basement and found the following problems with that bathroom:
(1) “[t]hat the shower drain was not properly vented,” (2) “[t]he slope was not proper on
the piping, causing slow drainage,” (3) “[t]he kitchen sink was piped into the floor drain
[in the basement bathroom] and caulked around,” and (4) “the toilet had a 2-inch drain, and
a 3-inch drain was required by Codes.”1 Once Codes became involved, the parties’
relationship deteriorated considerably, and they were no longer able to cooperate to resolve
the plumbing issues.
For approximately two weeks after April 13, 2020, Tenants did not stay at the
property due to their concerns about mold in the home. At some point during this time
period, however, Tenants visited the property and discovered a rental truck and Landlord
ordering movers to pack-up and haul away Tenants’ belongings. Tenants intercepted the
movers and directed them to take their belongings to a storage locker under Tenants’
names. Unfortunately, Tenants did not arrive in time to stop Landlord from towing one of
their vehicles from the property.
1 These quotes are from the trial court’s oral ruling given at the end of trial describing the testimony of
Lisa Crumpley, an employee of Codes.
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On May 11, 2020, Tenants filed a civil summons with the general sessions court in
Knox County seeking damages for breach of contract and various violations of the
Landlord/Tenant Act. Landlord filed an answer and counter-civil summons on June 4,
2020, seeking damages for breach of contract, “Reckless Act of Aggression,” “Charade,”
and “Extortion.” The general sessions court heard the matter on July 13, 2020, and entered
a judgment dismissing Landlord’s claims and awarding Tenants $34,000 ($25,000 in
compensatory damages and $9,000 in attorney fees). Landlord appealed to the Circuit
Court for Knox County.
Tenants filed their complaint in the circuit court, again alleging breach of contract
and several violations of the Landlord/Tenant Act, including the unauthorized towing of a
vehicle under Tenn. Code Ann. § 66-28-519. They sought both compensatory and punitive
damages. Landlord filed an answer and counter-complaint alleging breach of contract.
The circuit court conducted a two-day bench trial of the matter during which it heard
testimony from several witnesses, including Ms. West, Mr. West, and Landlord. In regard
to Landlord’s unauthorized towing of Tenants’ vehicle, the court admitted into evidence as
Exhibit Z the following venomous email from Landlord to Mr. West:
You claim no malice.... bulls[**]t[.]
You claimed you were delighted you were going to cost me over $4000
solely from
Your INSANE call to Codes when you knew or nobody would ever Benefit
from what I’m having to do. You didn’t bother to
hide your delight. I guess you will be even more DELIGHTED to learn that
with electrical craziness thrown in that will
probably jump to near $7000.
You ACCUSE ME (with obvious malice) OF STEALING YOUR CAR and
attempting to STEAL YOUR FRIDGE[.] You KNOW DAMN WELL I
DONT STEAL FROM ANYONE and you sure as hell don’t own anything I
want. I tried to tell you I did in fact have a reason for a separate destination
for the Freezer and the rest of your stuff. It was WITH MALICE THAT I
WANTED TO MESS YOU WITH YOUR HEAD. THE CAR if you ever
missed it was a different case from everything else. If you asked where it
was, I would have told you so you could have redeemed it before storage
costs got any larger. Everything else is a different story. I would have enjoyed
watching you squirm while trying to find out it[s] whereabouts. I would have
told you it was in VARIOUS PLACES (actually only 2). I would have told
you I didn’t even HAVE CONTROL OVER ANY OF IT which would have
been true. The storage facility was to be in my daughters married name in
case you went hunting for one in my name. The freezer would have been at
another rental house in the garage. Since I could not get into that garage, I
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had ZERO CONTRLL over FREEZER. The keys to the lock on the storage
unit would have been placed in the freezer, giving renter lady COMPLETE
CONTROL over storage unit and I would NOT HAVE CONTROL OVER
ANY OF IT. I (with admitted malice) would have delighted in watching u
squirm and go apes[**]t over trying to find your stuff.
Did you wonder why your pocket cop (who you obviously have snowed by
your lies about hazards and danger, so he treats me like a criminal) said
(falsely) if I took stuff out of house it would be stealing, but sending the car
to storage was not stealing and told you cost of redeeming it would be yours.
Car WASNT STEALING, and other stuff wasn’t either. Cop knows it, you
know it as well as I know it, but you just HAD TO CALL ME A TH[IE]F
(but with no malice.... yeah sure).
On April 16, 2021, the circuit court entered an order dismissing Landlord’s countercomplaint and finding that Tenants failed to prove all of their claims except the claim for
Landlord’s unauthorized towing of their vehicle. The court awarded Tenants $3,000 in
compensatory damages ($2,850 for the return of their security deposit for the lease and
$150 for damages caused by the unauthorized towing of the vehicle) and $25,000 in
punitive damages, for a total of $28,000. The court’s order incorporated by reference an
attached transcript of its oral ruling, in which it made very specific findings of fact
regarding the witnesses’ credibility that influenced the court’s decision: (1) Ms. West was
credible, (2) Mr. West was “less credible,” and (3) Landlord had “very little credibility”
because his actions during trial “show[ed] a lack of self-respect, a lack of respect for
authority, and a lack of respect for anybody who disagrees with him.”
The court also made the following specific findings regarding Landlord’s
unauthorized towing of Tenants’ vehicle under Tenn. Code Ann. § 66-28-519:
[Landlord] has clearly violated the provision of this statute.
This statute reads as follows: “A landlord may have the following
vehicles towed or otherwise removed from real property leased or rented by
such landlord for residential purposes upon giving a ten-day written notice
by posting the same upon the subject vehicle.”
There is no proof in the record that [Landlord] gave any kind of
written notice before he had the vehicle towed. Therefore, [Tenants] are
entitled to recover damages under this provision of the Residential
Landlord/Tenant Act.
Landlord claimed that he was entitled to remove the vehicle from the premises because
Tenants abandoned the property. The court rejected this argument:
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[Tenn. Code Ann. §] 66-28-405 defines “Abandonment” as follows:
“The tenant’s unexplained or extended absence from the premises for
30 days or more without payment of rent as due shall be prima facie evidence
of abandonment.”
There is no evidence that [Tenants] w[ere] gone for 30 days without
payment of rent. The uncontroverted proof is that [Tenants] were current on
their lease.
Based on the proof in the record, [Tenants] did not abandon the
property under the statute.
After concluding that Tenants were entitled to damages for Landlord’s violation of
the Landlord/Tenant Act, the court considered Tenants’ request for punitive damages and
stated, “It is clear from exhibits and the testimony of [Landlord] himself that this was an
attempt to retaliate against [Tenants].” Thus, the court concluded that Tenants should
receive punitive damages and provided the following findings as support for its decision:
Punitive Damages. The Court finds by clear and convincing evidence,
taking into consideration all of the actions of [Landlord], that his actions were
clearly intentional, they were reckless, and they were malicious.
The e-mail that was sent by [Landlord] . . . clearly indicates that
[Landlord] did what he did to spite [Tenants], and it was his intention to
inflict as much damage as he possibly could with regard to [Tenants] for their
actions.
Punitive damages may be considered if, and only if, the plaintiff has
shown by clear and convincing evidence that the defendant has acted
intentionally, recklessly, maliciously, or fraudulently.
Clear and convincing evidence is a different and higher standard than
a preponderance of the evidence, and it means that the defendant’s wrongs,
if any, must be so clearly shown, that there is no serious or substantial doubt
the correctness of the conclusion drawn from the evidence.
A person ac[ts] intentionally when it is the person’s purpose or desire
to do a wrongful act or to cause the result.
It is clear in this Court’s mind that that was done by [Landlord]. A
person acts recklessly when the person is aware of, but consciously
disregards a substantial and unjustifiable risk of injury or damage to another.
Disregarding the risk must be a gross deviation from the standard of care that
an ordinary person would use under all of the circumstances.
This Court is convinced by clear and convincing evidence again that
[Landlord] acted in a reckless manner towards [Tenants].
A person acts maliciously when a person is motivated by ill-will,
hatred, or personal spite.
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Again, the e-mail sent by [Landlord] in this case shows, by clear and
convincing evidence, that [Landlord] was acting maliciously with ill-will or
personal spite—and probably hatred—toward [Tenants].
. . . .
It is clear to this Court that [Landlord] does not like it when people
disagree with him.
It is clear that he was not happy that Codes told him that their Codes
required different remedies than what he wanted to do.
It was clear that he was unhappy with [Tenants].
He made several statements with regard to the fact that this action
against him and the other actions by calling Codes was something that he
was unhappy with.
Landlord timely appealed. His appellate brief fails to state a clear issue for our
review, but we discern that he raises the following issue: whether the circuit court erred in
concluding that clear and convincing evidence supported an award of punitive damages2
to Tenants. Tenants also raise one issue: whether they should be awarded their attorney
fees incurred on appeal.
ANALYSIS
I. Punitive Damages.
Landlord argues that the circuit court should not have awarded punitive damages
because Tenants failed to introduce evidence at trial establishing by clear and convincing
evidence that they were entitled to such damages. According to Landlord, the circuit
court’s factual findings on this matter were “lies” and misstatements of the evidence
actually presented at trial.
Courts award punitive damages to “‘punish a defendant, to deter him from
committing acts of a similar nature, and to make a public example of him.’” Goff v. Elmo
Greer & Sons Constr. Co., Inc., 297 S.W.3d 175, 187 (Tenn. 2009) (quoting Huckeby v.
Spangler, 563 S.W.2d 555, 558-59 (Tenn. 1978)). Therefore, punitive damages are
“appropriate only in the most egregious cases,” and an order “imposing such damages must
be supported by clear and convincing evidence that the defendant acted intentionally,
fraudulently, maliciously, or recklessly.” Id. (citing Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 (Tenn. 1992)). Our Supreme Court has defined clear and convincing
evidence as “evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges, 833 S.W.2d at 901 n.3.
“In other words, the evidence must be such that the truth of the facts asserted be ‘highly
2 Landlord expressly stated in his brief that he is not challenging the compensatory damages awarded by
the circuit court.
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probable.’” Goff, 297 S.W.3d at 187 (quoting Teter v. Republic Parking Sys., Inc., 181
S.W.3d 330, 341 (Tenn. 2005)).
The punitive damages at issue in this case were awarded in a bench trial. Thus, in
reviewing the record to determine whether Tenants proved by clear and convincing
evidence that Landlord committed malicious, intentional, or reckless acts, we review the
circuit court’s findings of fact de novo with a presumption of correctness unless the
evidence preponderates otherwise. TENN. R. APP. P. 13(d); Chandler v. Chandler, No.
W2010-01503-COA-R3-CV, 2012 WL 2393698, at *5 (Tenn. Ct. App. June 26, 2012).
We review the circuit court’s conclusions of law de novo without a presumption of
correctness. Chandler, 2012 WL 2393698, at *5.
Before addressing Landlord’s punitive damages issue, we must note that he is pro
se in this appeal.3
We have stated the following principles about pro se litigants:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts 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, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see also
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct App. 2003). Additionally, we allow
pro se litigants some leniency in preparing their briefs by applying less exacting standards
than those applied to briefs drafted by lawyers. Young, 130 S.W.3d at 63. Tenants assert
that Landlord has waived the punitive damages issue because he failed to comply with the
Tennessee Rules of Appellate Procedure. Indeed, a review of Landlord’s appellate brief
and the record reveals several deficiencies in this regard.
We begin with Landlord’s failure to comply with this Court’s briefing requirements.
Tennessee Rule of Appellate Procedure 27 governs the content of appellate briefs.
3
In his appellate brief, Landlord explains that he consulted nine different lawyers but none of them
wished to represent him on appeal. He claimed that an attorney was eventually recommended to him by
the local bar association, and that attorney accepted the case. However, the attorney soon withdrew from
representing Landlord. As Landlord explained:
“He [the attorney] assured me he would be my Zealous Advocate, which I interpret[ed] as
supporting my prepared Agenda, not to create his own agenda, which it turns out was what
he wanted to do. He once emailed me that he insisted on being the “Captain of the Ship.”
I guess my wanting him to use my well planned narrative was damaging to his ego.”
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Subsection (a) of that rule identifies the requirements for the appellant’s brief and provides,
in pertinent part, as follows:
The brief of the appellant shall contain under appropriate headings and in the
order here indicated:
(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 heading
placed before the discussion of the issues);
(8) A short conclusion, stating the precise relief sought.
Likewise, Rule 6 of the Rules of the Court of Appeals provides, in pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial
court which raises the issue and a statement by the appellee of any action of
the trial court which is relied upon to correct the alleged error, with citation
to the record where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to the
attention of the trial judge with citation to that part of the record where
appellant’s challenge of the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced by such alleged
error, with citations to the record showing where the resultant prejudice is
recorded.
(4) A statement of each determinative fact relied upon with citation to the
record where evidence of each fact may be found.
(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
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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.
The brief submitted by Landlord fails to comply sufficiently with these rules.
Although Landlord’s brief contains several deficiencies, we need not recite each one. Most
importantly, however, his brief fails to make appropriate references to the record4
and to
cite to relevant authority in support of his arguments. Generally, when a party fails to refer
properly to the record or to cite to relevant authority, we consider that issue waived. Bean
v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000). This Court stated in Newcomb v. Kohler
Company, 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006), that “[a] skeletal argument that is
really nothing more than an assertion will not properly preserve a claim[.]” We have no
duty “to verify unsupported allegations in a party’s brief or to research and construct the
party’s argument.” Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (citing
Bean, 40 S.W.3d at 56).
We acknowledge that Rule 2 of the Tennessee Rules of Appellate Procedure allows
us to waive these briefing requirements if good cause exists.5
Chiozza, 315 S.W.3d at 489.
But, even if we exercised our discretion and waived the briefing requirements of Tenn. R.
App. P. 27, we could not overlook Landlord’s failure to comply with the requirement to
file a transcript or statement of the evidence pursuant to Tenn. R. App. P. 24. To determine
whether the evidence introduced at trial contradicted the trial court’s factual findings
supporting an award of punitive damages, we must be presented with a record that
adequately depicts what evidence was, in fact, introduced at trial. Therefore, it is of the
utmost importance that we be provided with either a transcript of the proceedings in the
trial court or a statement of the evidence that complies with Tenn. R. App. P. 24.6
The
4 Although Landlord provided a few citations to where in the record some facts could be found, he failed
to provide any citation to the record for the overwhelming majority of the facts he stated in his brief.
5 Rule 2 of the Tennessee Rules of Appellate Procedure provides, in relevant part:
For good cause, including the interest of expediting decision upon any matter, the Supreme
Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or
provisions of any of these rules in a particular case on motion of a party or on its motion
and may order proceedings in accordance with its discretion . . . .
6 Tennessee Rule of Appellate Procedure 24 provides, in pertinent part:
(b) Except as provided in subdivision (c), if a stenographic report or other
contemporaneously recorded, substantially verbatim recital of the evidence or proceedings
is available, the appellant shall have prepared a transcript of such part of the evidence or
proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal. . . .
(c) If no stenographic report, substantially verbatim recital or transcript of the evidence or
proceedings is available, or if the trial court determines, in its discretion, that the cost to
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appellant bears the burden of providing this Court with a transcript or statement of the
evidence from which we can determine if the evidence preponderates against the trial
court’s factual findings. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992);
see also Greer v. Cobble, No. E2015-01378-COA-R3-CV, 2016 WL 2898001, at *4 (Tenn.
Ct. App. May 11, 2016). Landlord has failed to carry this burden. Accordingly, we do not
have a fair, accurate, and complete account of what transpired with respect to the issue he
raises, leaving us no way to evaluate his assertion that the evidence contradicted the trial
court’s findings. See Britt v. Chambers, No. W2006-00061-COA-R3-CV, 2007 WL
177902, at *3 (Tenn. Ct. App. Jan. 25, 2007) (“Without a transcript or statement of the
evidence, the appellate court cannot know what evidence was presented to the trial court,
and there is no means by which we can evaluate the appellant’s assertion that the evidence
did not support the trial court’s decision.”). “In the absence of a transcript of the evidence
[or statement of the evidence], there is a conclusive presumption that there was sufficient
evidence before the trial court to support its judgment, and this Court must therefore affirm
the judgment.” Coakley, 840 S.W.2d at 370; see also Starnes v. Diamond, No. 7, 1990 WL
120119, at *5 (Tenn. Ct. App. Aug. 21, 1990) (“The findings of the trial court, in absence
of a trial transcript, conclusively show the appropriateness for punitive damages in this
case.”). That is to say, “‘we must conclusively presume that every fact admissible under
the pleadings was found or should have been found in favor of the Appellee.’” Chandler,
2012 WL 2393698, at *9 (quoting Britt, 2007 WL 177902, at *3).
As set forth above, the circuit court made detailed findings of fact when determining
that Tenants were entitled to punitive damages. Because Landlord failed to provide us with
either a transcript or statement of the evidence, we must conclusively presume that every
one of the facts relied on by the circuit court should have been found in favor of Tenants
and that they conclusively establish that punitive damages were appropriate. We are
concerned, however, with the amount of the award.
Due process’s fundamental notion of fairness limits the magnitude of punitive
damages awards. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003).
Thus, “[g]rossly excessive or arbitrary punishments” are disallowed. Id. at 416-17. When
determining the constitutionality of a punitive damages award, courts consider three
guideposts:
obtain the stenographic report in a civil case is beyond the financial means of the appellant
or that the cost is more expensive than the matters at issue on appeal justify, and a statement
of the evidence or proceedings is a reasonable alternative to a stenographic report, the
appellant shall prepare a statement of the evidence or proceedings from the best available
means, including the appellant’s recollection. The statement should convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal. The statement, certified by the appellant . . . shall be filed with the clerk of the trial
court within 60 days after filing the notice of appeal.
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The first and most important guidepost is the reprehensibility of the
defendant’s conduct. The . . . presence of violence, deceit, reckless disregard
for the safety of others, or repeated misconduct may be aggravating factors
that increase the reprehensibility of the defendant’s conduct. The second
guidepost is the ratio between the punitive damage award and the actual harm
suffered by the plaintiff. . . . The final guidepost requires courts to compare
the punitive damage award to civil or criminal penalties that could be
imposed for similar conduct.
Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 537 (Tenn. 2008) (citing BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 575-76 (1996)). “[W]e conduct a de novo review of the amount
of a punitive damages award to determine whether the award meets due process
requirements in light of the three guideposts.” Id. at 538.
Landlord’s actions in this case were reprehensible, but the harm suffered by Tenants
was purely economic (first guidepost). The unauthorized towing of Tenants’ vehicle
certainly inconvenienced Tenants, but it did not involve violence or indicate a reckless
disregard for their safety. Furthermore, Landlord made no attempt to conceal evidence of
his conduct. In regard to the second guidepost, the ratio between punitive damages
($25,000) and compensatory damages ($3,000) in this case is 1 to 8.3. There is no “strict
mathematical formula” for determining the constitutionality of a punitive damages award,
but the United States Supreme Court has stated that “a punitive damages award of ‘more
than 4 times the amount of compensatory damages’ might be ‘close to the line’ . . . of
constitutional impropriety.” Gore, 517 U.S. at 581-82 (quoting Pac. Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 23-24 (1991)); see also Flax, 272 S.W.3d at 537. Admittedly, the Flax
Court considered a punitive damages award with a 1 to 5.3 ratio to be constitutional but,
unlike in this case, the conduct of the defendant in that case was far more reprehensible
because the defendant consciously disregarded the safety of others and attempted to cover
up evidence of deficiencies in a product’s design that resulted in the death of a child. Flax,
272 S.W.3d at 538-39. We do not believe that the first two guideposts support a ratio
higher than 1 to 4 in this case.
Turning to the third guidepost, the statute that most closely expresses the General
Assembly’s judgment regarding the wrongfulness of Landlord’s behavior is the theft of
property statute codified at Tenn. Code Ann. § 39-14-103. Under that statute, “[a] person
commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103. A person convicted of that crime may be assessed
a fine ranging from $50 to $50,000, depending on the value of the property stolen. Tenn.
Code Ann. §§ 39-14-105, 40-35-111. For a fine of $25,000 to be warranted, the value of
the stolen property must be “sixty thousand dollars ($60,000) or more but less than two
hundred fifty thousand dollars ($250,000).” Tenn. Code Ann. § 39-14-105(a)(5); see also
Tenn. Code Ann. § 40-35-111(b)(2). A review of the limited record before us reveals no
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evidence relating to the value of Tenants’ vehicle. Therefore, we are unable to conclude
that this guidepost supports a ratio higher than 1 to 4.
In light of the foregoing, we conclude that the amount of the punitive damages
award was excessive and reduce it to $12,000—a ratio of 1 to 4. See Starnes, 1990 WL
120119, at *7 (concluding that an award of punitive damages was conclusively presumed
correct in the absence of the plaintiff’s failure to file a transcript or statement of the
evidence but modifying the amount of the punitive award because it was excessive).
II. Attorney Fees.
Tenants seek an award of their attorney fees incurred defending this appeal.
Litigants are generally required to pay their own attorney fees unless a statute or contract
provision provides otherwise. John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d
528, 534 (Tenn. 1998). According to Tenants, this appeal was frivolous so they are entitled
to an award of their attorney fees under Tenn. Code Ann. § 27-1-122. That statute provides
as follows:
When it appears to any reviewing court that the appeal from any court of
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 statute “‘must be interpreted and applied strictly so as not
to discourage legitimate appeals.’” Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct.
App. 2001) (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 . . . has no reasonable chance of success.”
Id. (citing Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998); Indus. Dev. Bd.
v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). We do not find this appeal to
be so devoid of merit so as to be characterized as frivolous. Thus, we decline to award
Tenants their attorney fees incurred on appeal.
Outcome: The judgment of the trial court is affirmed as modified. Costs of this appeal are
assessed against the appellant, Wayne Akard, for which execution may issue if necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: