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Date: 07-26-2022
Case Style:
Cynthia A. Cheatham v. James Daniel Lampkin
Case Number: M2021-00790-COA-R3-CV
Judge:
D. Michael Swiney; Presiding Judge
ARNOLD B. GOLDIN
ANDY D. BENNETT
joined
Court:
COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
On Appeal From The Circuit Court for Williamson County
James G. Martin, III
Judge
Plaintiff's Attorney: Nora El-Chaer, Pegram
Defendant's Attorney:
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Description:
Knoxville, TN - Civil Litigation lawyer represented appellant with a contract dispute between an attorney and appellee.
Cynthia Cheatham, an attorney, entered into a series of professional services
contracts with James Lampkin in which Ms. Cheatham agreed to represent Mr. Lampkin
in a child custody case. Of note, Mr. Lampkin agreed, in July 2019, to sign a new contract
with Ms. Cheatham for the unpaid balance owed to her under the previous contract that
had been entered into between the parties. Pursuant to this new contract, Mr. Lampkin
agreed to pay Ms. Cheatham the total sum of $15,000.00. It was agreed that the initial
payment on this contract was to be $7,000.00. The remaining balance of $8,000.00 was to
be paid by October 1, 2019.
On October 28, 2019, Ms. Cheatham filed a complaint in the General Sessions Court
of Williamson County, alleging that Mr. Lampkin had failed to pay her the $8,000.00
balance due on the contract. Mr. Lampkin issued a “Sworn Denial” in response to the
complaint, accusing Ms. Cheatham of committing “[u]nfair pricing, excess charges,
extortion, and other unfair and deceptive trade practices[.]” Mr. Lampkin further claimed
that Ms. Cheatham “breached her fiduciary and professional duties of loyalty and
competence by threatening [to sabotage] [his] case if [he] did not pay her an additional
$15,000.00[.]” Additionally, Mr. Lampkin filed a “Verified Application to Remove to
Circuit Court,” which was granted. Once removed to Circuit Court (“the trial court”), Mr.
Lampkin, on May 27, 2020, filed another response to Ms. Cheatham’s claim as well as a
counterclaim against her. Therein, Mr. Lampkin repeated the same allegations made
previously, including what purported to be a Tennessee Consumer Protection Act claim,
and sought damages for injuries to his business and property interests, as well as for
“injuries to his civil rights.” Ms. Cheatham filed an answer to Mr. Lampkin’s counterclaim
on June 24, 2020, denying each of the allegations made against her. She also noted in her
answer that a civil extortion claim brought by Mr. Lampkin was not recognized as a private
right of action in Tennessee.
On August 26, 2020, Ms. Cheatham filed a motion for sanctions against Mr.
Lampkin under Rule 11 of the Tennessee Rules of Civil Procedure. In her Rule 11 motion,
she alleged that Mr. Lampkin had “engaged in some emotion-laden filings which cross the
line from zealous advocacy to absurd and improper allegations” against her, and that he
had made numerous statements that were without a basis in fact or law. Mr. Lampkin filed
a response to this motion, denying that he violated Rule 11 and instead alleging that Ms.
Cheatham herself was in violation of Rule 11.
On November 5, 2020, the trial court entered an order on Ms. Cheatham’s Rule 11
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
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motion, granting sanctions against Mr. Lampkin. Specifically, the trial court ordered Mr.
Lampkin to familiarize himself with both the Tennessee Rules of Civil Procedure and the
Tennessee Rules of Evidence such that he may properly represent himself pro se. The trial
court also struck Mr. Lampkin’s claim for civil extortion,2 noting that a private cause of
action for such a claim is not available in Tennessee.3
Finally, the trial court directed Mr.
Lampkin “to refrain from filing any further materials regarding Ms. Cheatham’s alleged
violations of the Tennessee Rules of Professional Conduct,” as such allegations bore “no
relation to Mr. Lampkin’s claims and [served] no other purpose than to embarrass Ms.
Cheatham.” Ultimately, the trial court awarded Ms. Cheatham her reasonable attorney’s
fees in connection with this motion.
On January 15, 2021, Mr. Lampkin filed a “Motion for Recusal” pursuant to Rule
10B of the Rules of the Tennessee Supreme Court, requesting that the trial judge in the
case recuse himself. Specifically, Mr. Lampkin claimed that the judge was biased against
pro se litigants. The trial court subsequently issued an order denying the motion to recuse,
finding it to be “without merit.” On January 22, 2021, Mr. Lampkin filed a “Motion to
Request Interlocutory Appeal” pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure. The trial court entered an order denying this motion on January 25, 2021.
On March 11, 2021, Ms. Cheatham filed a “Motion for Summary Judgment”
concerning her breach of contract claim, as well as any outstanding claims brought by Mr.
Lampkin. In a memorandum filed in support of her motion, Ms. Cheatham specifically
argued that Mr. Lampkin had failed to provide any evidence supporting his claims of fraud,
emotional distress, or personal injury, and that he had failed to properly raise a claim
pursuant to the Tennessee Consumer Protection Act. In a “Memorandum and Order”
entered by the trial court on April 13, 2021, the trial court declined to grant Ms. Cheatham
summary judgment on her breach of contract claim, finding that there was “a genuine
dispute of material fact as to whether Mr. Lampkin was forced to sign the . . . contract
under duress.” However, the court granted summary judgment in favor of Ms. Cheatham
insofar as it pertained to the claims raised by Mr. Lampkin in his counterclaim, including
his alleged claim pursuant to the Tennessee Consumer Protection Act.4
2 Mr. Lampkin does not expressly raise an issue on appeal concerning the trial court’s dismissal of
his extortion claim. However, in the argument section of his brief, Mr. Lampkin makes a citation to a case
from the United States Court of Appeals for the Seventh Circuit that he suggests permits extortion claims
by a “non-state entity.” However, not only did he fail to raise this as an issue on appeal, but he further fails
to present a legal argument as to how his cited case relates to Tennessee’s state law disallowing a private
cause of action for civil extortion. Accordingly, any argument or issue concerning this claim is waived on
appeal. Murray v. Miracle, 457 S.W.3d 399, 402-04 (Tenn. Ct. App. 2014).
3 The trial court also struck two separate filings made by Mr. Lampkin concerning his counterclaim,
as they were submitted in violation of Rule 15.01 of the Tennessee Rules of Civil Procedure and could not
be considered.
4 As part of its order, the trial court specifically found that Mr. Lampkin failed to adequately plead
the other claims raised in his counterclaim, including his claims of fraud, personal injury, and emotional
distress. However, Mr. Lampkin does not raise an issue related to the dismissal of these claims on appeal.
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A jury trial was conducted on May 7, 2021, following which the jury found:
1. There was a valid contract between [Ms. Cheatham] and [Mr. Lampkin.]
2. [Mr. Lampkin] breached the contract.
3. Ms. Cheatham was entitled to $8,000.00 for the damages sustained due
to the breach of the contract by [Mr. Lampkin.]
4. Mr. Lampkin was not entitled to recover any monies paid by him to [Ms.
Cheatham] based on his allegations of duress.
A judgment was entered on the jury’s verdict against Mr. Lampkin in the amount of
$8,000.00. The trial court subsequently entered an order on its prior grant of attorney’s
fees to Ms. Cheatham on her motion for Rule 11 sanctions, awarding her a judgment for
an additional $2,500.00 against Mr. Lampkin. This appeal followed.
ISSUES PRESENTED
Mr. Lampkin raises four5
separate issues for our review on appeal, restated as
follows:
1. Whether the trial court abused its discretion in not allowing certain recordings
into evidence.
2. Whether the trial court abused its discretion in dismissing a Tennessee
Consumer Protection Act claim.
3. Whether the trial court erred in denying Mr. Lampkin’s recusal motion.
4. Whether the trial court erred in sanctioning Mr. Lampkin pursuant to Rule 11
and awarding Ms. Cheatham her attorney’s fees against him.
For her part, Ms. Cheatham does not raise any challenge to the trial court’s actions
in this case, but she does specifically request that this Court award her damages for a
frivolous appeal.
DISCUSSION
At the outset, we must address deficiencies contained in portions of Mr. Lampkin’s
brief on appeal which prevent this Court from adequately reviewing certain of his issues.
Specifically, we note Mr. Lampkin’s issue as to what he purports to be the trial court’s
error in disallowing particular recordings into evidence, as well as his issue that the trial
court erred in sanctioning him under Rule 11.
As such, we do not address them herein.
5
In his brief, Mr. Lampkin also raises issues in connection with the trial judge’s purported violation
of Rule 10 of the Tennessee Rules of Judicial Conduct. However, this Court is without jurisdiction to review
any alleged violations of Rule 10 of the Tennessee Rules of Judicial Conduct. Such complaints are within
the purview of the Board of Judicial Conduct.
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Rule 27 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
* * *
(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)[.]
Tenn. R. App. P. 27(a).
Mr. Lampkin’s argument concerning the raised “recordings” issue fails to comply
with the above requirements of Rule 27, leaving us unable to conduct an adequate review
on appeal. Indeed, nowhere in his argument does Mr. Lampkin cite to the record on appeal,6
and while he does cite to a single statute, we are unable to ascertain his reasoning as to
exactly why appellate relief is required in this instance. His briefing deficiencies even leave
the specific nature of his grievance unclear. In the absence of any citation to the record,
we cannot be certain whether Mr. Lampkin’s issue is that particular recordings were
allegedly improperly excluded at trial or, alternatively, whether he contends that they were
improperly not given consideration in connection with his claims that were adjudicated at
another stage of the trial proceedings. In this respect, in addition to the noted violation of
Rule 27 of the Tennessee Rules of Appellate Procedure, Mr. Lampkin’s brief runs afoul of
Rule 6 of the Rules of the Court of Appeals. See Tenn. Ct. App. R. 6 (providing that,
among other things, “[n]o 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”); see also Hawkins v. Hart, 86 S.W.3d 522,
6
In addition, Mr. Lampkin fails to cite to the appellate record in the facts section of his brief, also
in violation of Rule 27 of the Tennessee Rules of Appellate Procedure.
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531 (Tenn. Ct. App. 2001) (“In order for an issue to be considered on appeal, a party must,
in his brief, develop the theories or contain authority to support the averred position as
required by Tennessee Rules of Appellate Procedure 27(a).”). Likewise, we largely find
the same issues present in Mr. Lampkin’s argument regarding the Rule 11 sanctions levied
against him. On appeal, Mr. Lampkin contends that he should not have been sanctioned.
However, again, there is neither a citation to the appellate record nor a legal argument
supported by appropriate authorities to counter the trial court’s disposition. This again
constitutes a violation of Rule 27. See generally Tenn. R. App. P. 27. As such, any review
of the above issues are irreparably hindered by Mr. Lampkin’s substantial noncompliance
with the rules of appellate procedure.
We remain mindful that Mr. Lampkin is proceeding pro se in this matter. Although
we acknowledge that pro se litigants are “entitled to fair and equal treatment by the courts,”
we note that “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.” Vandergriff v. Parkridge E. Hosp.
482 S.W.3d 545, 551 (Tenn. Ct. App. 2015) (quoting Young v. Barrow, 130 S.W.3d 59, 63
(Tenn. Ct. App. 2003)). Thus, despite such a party’s status, courts are not permitted to
“excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” Id. (citing Young, 130 S.W.3d at 63).
This Court has previously held that the failure to substantially comply with Rule 27 is
grounds for a dismissal on appeal. See Murray v. Miracle, 457 S.W.3d 399, 404 (Tenn.
Ct. App. 2014) (“Plaintiffs failed to comply in any significant way with Tenn. R. App. P.
27. As such, we find and hold that Plaintiffs have waived any issues they may have
attempted to raise on appeal.”); Thomas v. Bank of Am., N.A., No. M2015-01849-COAR3-CV, 2017 WL 2859813, at *4 (Tenn. Ct. App. July 5, 2017) (“Although we are mindful
of Thomas’s pro se status and have attempted to give her the benefit of the doubt when
possible, we cannot write her brief for her nor can we create arguments or issues for her
where her brief fails to contain any coherent argument. Based upon Thomas’s failure to
comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we conclude that Thomas has
waived any issues raised, and the appeal should be dismissed.”). Accordingly, based on
the briefing deficiencies present in Mr. Lampkin’s brief, we conclude that Mr. Lampkin
has waived these two issues on appeal. See Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App.
2000) (“[T]he failure to make appropriate references to the record and to cite relevant
authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.”).
Notwithstanding this waiver, we have endeavored to address the substance of Mr.
Lampkin’s remaining issues to the extent that his brief reasonably permits us to do so. As
such, despite the waiver that otherwise exists, we respond specifically to arguments, as best
we understand them, concerning Mr. Lampkin’s Tennessee Consumer Protection Act
(“TCPA”) claim and his Rule 10B recusal motion.
First, Mr. Lampkin maintains that the trial court erred in dismissing his TCPA claim
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for noncompliance with Rule 8.05 of the Tennessee Rules of Civil Procedure. As the trial
court observed, Mr. Lampkin generally cited to the TCPA in his counterclaim, but failed
to “sufficiently plead” how Ms. Cheatham’s prior actions constituted a breach under the
TCPA.7 See Tenn. R. Civ. P. 8.05 (providing that “[e]very pleading stating a claim or
defense relying upon the violation of a statute shall, in a separate count or paragraph, either
specifically refer to the statute or state all of the facts necessary to constitute such breach
so that the other party can be duly apprised of the statutory violation charged”). On appeal,
Mr. Lampkin opines that, despite certain inadequacies in his pleadings, his status as a pro
se party requires the court to provide him with “wide latitude” when construing his
allegations. Although courts attempt to provide a certain degree of leeway to pro se
litigants, such litigants are not permitted, as Mr. Lampkin has done here, to essentially
ignore the requirements of the Tennessee Rules of Civil Procedure. See Young, 130 S.W.3d
at 63 (“[T]he court must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”).
Accordingly, regardless of his pro se status, Mr. Lampkin is not excused from complying
with Rule 8.05 in pleading his claims regarding the TCPA. Not only did he fail to do so,
but there is no indication that Mr. Lampkin ever attempted to properly amend his
counterclaim so as to correct any pleading deficiencies concerning these claims. We,
therefore, find this issue to be without merit.
We next address Mr. Lampkin’s issue concerning his motion for recusal. Despite
the absence of any citation to the record, it appears that his complaint for recusal stems
from the mere fact that the trial court had previously ruled against him, and according to
Mr. Lampkin, this is an indication of bias on the part of the trial judge. However, “the
mere fact that a judge has ruled adversely to a party . . . is not grounds for recusal.” Berg
v. Berg, No. M2018-01163-COA-T10B-CV, 2018 WL 3612845, at *5 (Tenn. Ct. App. July
27, 2018) (quoting McKenzie v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL
575908, at *4 (Tenn. Ct. App. Feb. 11, 2014)). “In fact, ‘[r]ulings of a trial judge, even if
erroneous, numerous and continuous, do not, without more, justify disqualification.’” Id.
(quoting McKenzie, 2014 WL 575908, at *4). We accordingly find this issue to be without
merit as well.
7 According to the record, Mr. Lampkin filed two additional pleadings, titled “Update on
Counterclaim” and “Second Update on Counterclaim,” in violation of Rule 15.01 of the Tennessee Rules
of Civil Procedure, which provides that “[a] party may amend the party’s pleadings once as a matter of
course at any time before a responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been set for trial, the party may so amend it any time within 15
days after it is served. Otherwise a party may amend the party’s pleadings only by written consent of the
adverse party or by leave of the court; and leave shall be freely given when justice so requires.” Although
Mr. Lampkin did cite to specific provisions of the TCPA in his “Second Update on Counterclaim” pleading,
this pleading was struck by the trial court because it was not in compliance with Tennessee Rule of Civil
Procedure 15.01. Moreover, Mr. Lampkin failed to raise a specific issue regarding the trial court’s striking
of his “Second Update on Counterclaim” and, therefore, the issue is waived. See Murray, 457 S.W.3d at
402-04.
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Whether This Appeal is Frivolous
In her brief, Ms. Cheatham maintains that Mr. Lampkin’s appeal is frivolous and
that she is entitled to damages pursuant to Tennessee Code Annotated section 27-1-122.
Tennessee Code Annotated section 27-1-122 states 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. For purposes of awarding damages against an appellant, a
frivolous appeal is one that is “so devoid of merit that it has no reasonable chance of
succeeding.” Glanton v. Lord, 183 S.W.3d 391, 401 (Tenn. Ct. App. 2005) (citing
Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)). This Court retains
discretion in determining whether to award these damages. Banks v. St. Francis Hosp., 697
S.W.2d 340, 343 (Tenn. 1985). Finding this appeal to be frivolous in light of the foregoing
discussion, and utilizing our discretion under the statute, we hereby award Ms. Cheatham
her attorney’s fees incurred in defense of this appeal. We remand the issue to the trial
court for a determination of the amount of attorney’s fees to be awarded.
Outcome: Based on the foregoing, we affirm the rulings of the trial court and remand the case for a determination of an appropriate amount of attorney’s fees to be awarded to Ms. Cheatham for frivolous appeal and for such other matters as may be necessary and are consistent with this Opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: