Lori Albers v. Richard Powers ( 2022 )

07/12/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 3, 2022 Session
LORI ALBERS ET AL. V. RICHARD POWERS
Appeal from the Circuit Court for Rutherford County
No. 78219 Darrell Scarlett, Judge
No. M2021-00577-COA-R3-CV
This appeal requires us to consider the defense of res judicata in the context of two separate
lawsuits filed by parties who were in a car accident. Following the car accident, the first
lawsuit was filed and settled by agreement of the parties. An agreed judgment was entered
dismissing the first lawsuit. Subsequently, the defendant from the initial lawsuit and her
husband filed suit against the former plaintiff, alleging various causes of action sounding
in tort. The trial court dismissed the second case, finding that all of the claims were barred
by res judicata. The defendant in the initial suit and her husband—the plaintiffs in the
second suit—appealed the dismissal of their lawsuit. We find that the tort claims alleged
in the second suit were not compulsory counterclaims under Tenn. R. Civ. P. 13.01, and
were not claims that would nullify the initial action or impair rights established in the initial
action; therefore, we hold that the doctrine of res judicata does not bar those claims. The
judgment of the trial court dismissing the case is reversed, and the case is remanded for
further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Jonathan Daniel Lawrence, Franklin, Tennessee, for the appellants, Lori Albers and
Michael William Albers.
Taylor Dale Payne, Murfreesboro, Tennessee, for the appellee, Richard Powers.
Roger Kreis White, Brentwood, Tennessee, for the appellee, Allstate Property And
Casualty Insurance Company.
OPINION
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 22, 2021, Lori Albers and her husband, Michael Albers (collectively
“the Alberses”), filed a lawsuit against Richard Powers alleging that on February 18, 2020,
Mr. Powers “drove over the hill crest . . . at a speed significantly above the posted speed
limit” and “smash[ed] the front end of his vehicle into the driver’s side” of Ms. Albers’s
vehicle as she was initiating a turn onto Old Nashville Highway. The Alberses and Mr.
Powers were residents of Rutherford County, Tennessee, and the accident occurred in
Rutherford County. Ms. Albers sought compensatory and punitive damages based on
theories of negligence,1 and Mr. Albers sought damages for loss of consortium.
On March 5, 2021, Mr. Powers filed a Motion to Dismiss the Complaint, asserting
that the trial court “lack[ed] subject matter jurisdiction to adjudicate the controversy”
because the Alberses’s suit “violate[d] the doctrine of prior suit pending” and alternatively,
that the suit was “barred by the doctrine of res judicata.” Mr. Powers asserted that, in
September 2020, he filed a personal injury lawsuit against Lori Albers, Cheryl Albers, and
David Albers2 regarding the same traffic accident. He further stated that he reached a
settlement agreement with the Alberses, and the trial court entered an Agreed Order of
Dismissal with Prejudice on February 8, 2021, approximately two weeks before the
Alberses filed suit against him.3 Mr. Powers attached the Agreed Order of Dismissal with
Prejudice to his motion, which stated, in relevant part: “IT IS THEREFORE ORDERED
AND DECREED that this cause and all claims asserted in this suit by Richard Powers
against Defendants, Lori Albers, Cheryl Albers and David Albers; and the unnamed
Defendant, Tennessee Farmers Mutual Insurance Company, pending in Case No. 77680
are dismissed WITH PREJUDICE.”
1
Specifically, Ms. Albers claimed Mr. Powers “commit[ed] the following acts and/or omissions”:
a) Failed to exercise due care;
b) Failed to maintain a proper lookout on the roadway ahead of him;
c) Failed to exercise caution;
d) Failed to maintain proper control of the motor vehicle he was operating;
e) Failed to maintain a safe following distance; and
f) Failed to see that which was there to be seen and to react reasonably under the
circumstances.
She also alleged causes of action for “negligence per se” and requested compensation for “certain medical
expenses related to the injuries suffered.”
2
It is unclear from the record what role Cheryl and David Albers played in the accident. Michael
William Albers was not a party to the first lawsuit.
3
The release did not address any claims that the defendants in the first suit might have against Mr.
Powers.
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The Alberses filed a Response in Opposition to the Motion to Dismiss alleging that
their claims were preserved by Tenn. R. Civ. P. 13.01 and neither the prior suit pending
doctrine nor res judicata barred their claims. Mr. Powers filed a Reply to which he
attached, among other things, the executed “Full, Final and Absolute Release, with
Indemnity” which stated:
WHEREAS, RICHARD POWERS on the one hand, and LORI ALBERS,
CHERYL ALBERS, DAVID ALBERS, Tennessee Farmers Mutual
Insurance Company and Safe Auto Insurance Company, on the other hand,
desire to fully and finally settle all claims that RICHARD POWERS has or
may in the future have arising from the accident which occurred on or about
February 18, 2020, and that such claims shall be forever barred in their
entirety, with PREJUDICE, upon completion of this settlement[.]
On April 5, 2021, Allstate Property and Casualty Insurance Company, Mr. Powers’s
insurance company that provided his uninsured motorist insurance coverage policy, filed
an Answer to the Alberses’s complaint.
After a hearing on Mr. Powers’s Motion to Dismiss, the trial court entered an order
granting dismissal on April 27, 2021. The court’s order found that:
4. The subject matter of the instant suit is identical to the subject matter of
Richard Powers v. Lori Albers, Cheryl Albers, and David Albers 2020-CV-
77680 in that both lawsuits arise from the same February 18, 2020, motor
vehicle accident that occurred in Rutherford County.
5. The same parties and their privities are involved in the instant suit as were
involved in Richard Powers v. Lori Albers, Cheryl Albers, and David Albers
2020-CV-77680.
6. The same causes of action and claims brought in the instant suit are the
same causes of action and claims that were brought or could have been
brought in Richard Powers v. Lori Albers, Cheryl Albers, and David Albers
2020-CV-77680 in that both suits involve tort claims arising from the same
February 18, 2020, motor vehicle accident.
The court concluded that, “[t]he instant case is barred by res judicata and is hereby
dismissed with full and final prejudice.” The court declined to award attorney’s fees.
The Alberses appeal, arguing that the trial court erred when it applied the doctrine
of res judicata to dismiss their cause of action against Mr. Powers. For his part, Mr. Powers
requests us to consider whether a transcript or statement of the evidence was necessary for
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the review of the appeal and whether the appeal is frivolous such that an award of attorney’s
fees is warranted.4
STANDARD OF REVIEW5
4
Allstate Property and Casualty Insurance Company has filed a brief in support of the Alberses’s legal
position and asserts that “[t]he Trial Court’s Order of dismissal should be reversed with the Albers[es]’[s]
tort action against Mr. Powers reinstated.”
5
We feel compelled to acknowledge that, as a general matter, res judicata is an affirmative defense that
must be included in an answer. Tenn. R. Civ. P. 8.03. However, our Supreme Court has determined that
res judicata may be raised in a Tenn. R. Civ. P. 12.02(6) motion to dismiss under certain circumstances:
For a Tenn. R. Civ. P. 12.02(6) motion to be used as a vehicle to assert an affirmative
defense, the applicability of the defense must “clearly and unequivocally appear[ ] on the
face of the complaint.” In other words, the plaintiff’s own allegations in the complaint must
show that an affirmative defense exists and that this defense legally defeats the claim for
relief.
Jackson v. Smith, 387 S.W.3d 486, 491-92 (Tenn. 2012) (internal citations omitted). Neither party raises
or acknowledges that the defendant asserted the defense of res judicata in a motion to dismiss rather than
in an answer; likewise, neither party points out that trial court considered materials outside the pleadings in
rendering its decision on Mr. Powers’s motion to dismiss. Generally, “[i]f matters outside the pleadings
are presented in conjunction with a [Rule 12 motion] . . . and the trial court does not exclude those matters,
the court must treat such motions as motions for summary judgment . . . .” Patton v. Est. of Upchurch, 242
S.W.3d 781, 786 (Tenn. Ct. App. 2007). However, under certain circumstances, materials other than the
pleadings may be reviewed by the trial court without converting the motion to one for summary judgment.
In Indiana State District Council of Laborers v. Brukardt, this Court noted:
Numerous cases . . . have allowed consideration of matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint whose
authenticity is unquestioned; these items may be considered . . . without converting the
motion into one for summary judgment.
No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009) (quoting Wright
and Miller, Federal Practice and Procedure, Civil § 1357, p. 376 (3d ed. 2004)); see also Tenn. R. Civ. P.
10.03 (“Whenever a claim or defense is founded upon a written instrument other than a policy of insurance,
a copy of such instrument or the pertinent parts thereof shall be attached to the pleading as an exhibit. . .
.”). Here, because neither party has argued that the trial court erred in considering the motion to dismiss or
that the proffered exhibits should have converted the motion to one for summary judgment, we decline to
engage in the purely academic quest to determine whether the motion to dismiss was proper in the first
instance or whether the motion to dismiss should have ultimately been considered as one for summary
judgment. See TENN. R. APP. P. 13(b) (“Review generally will extend only to those issues presented for
review.”); Sneed v. Bd. of Prof’l Resp., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts,
trial or appellate, to research or construct a litigant’s case or arguments for him or her . . . .”); Owen v. Long
Tire, LLC, No. W2011-01227-COA-R3CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 2011)
(“[T]his Court is not charged with the responsibility of scouring the appellate record for any reversible error
the trial court may have committed.”).
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This appeal requires us to construe Tenn. R. Civ. P. 13.01 and consider its interplay
with the doctrine of res judicata. The interpretation of a rule of civil procedure and the
determination of whether a claim is barred by the doctrine of res judicata are questions of
law, which we review de novo with no presumption of correctness. Fair v. Cochran, 418
S.W.3d 542, 544 (Tenn. 2013); In re Est. of Goza, 397 S.W.3d 564, 566 (Tenn. Ct. App.
2012). When interpreting rules of civil procedure, we are guided by the rules of statutory
construction, keeping in mind that “[o]ur duty is to enforce the rule as written.” Fair, 418
S.W.3d at 544 (citing Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176
(Tenn. 2008)).
ANALYSIS
I. Lack of a Transcript or Statement of the Evidence
Before considering the merits of the appeal, we first consider Mr. Powers’s assertion
that we cannot undertake a proper review of this case without a transcript of evidence or
statement of evidence provided in accordance with Tenn. R. App. P. 24. Generally, “in the
absence of a transcript or statement of the evidence, there is a conclusive presumption that
there was sufficient evidence before the Trial Court to support its judgment.” Outdoor
Mgmt. LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007). However, in cases
where a transcript is not present, we may examine “those issues where appellate review is
not hindered by the absence of a transcript or statement of the evidence.” Am. Express
Centurion Bank v. Lowrey, No. E2011-01247-COA-R3-CV, 2013 WL 937831, at *4
(Tenn. Ct. App. Mar. 11, 2013). In those circumstances, “we are limited to addressing
those issues [that] raise pure questions of law, as well as any issues challenging the trial
judge’s application of the law to the facts as stated by the judge himself in his memorandum
opinions.” Gross v. McKenna, No. E2005-02488-COA-R3-CV, 2007 WL 3171155, at *3
(Tenn. Ct. App. Oct. 30, 2007). Here, we are asked to consider a relatively narrow legal
issue regarding the application of a rule of civil procedure and the doctrine of res judicata.
Therefore, even without a transcript or statement of the evidence, we can proceed to address
the merits of the purely legal issue raised in this appeal. See id.II. Counterclaims and Res Judicata
To resolve this appeal, we must determine whether the Alberses’s tort claims, which
could have been asserted as counterclaims in the first proceeding between Mr. Powers and
Ms. Albers, are subject to the doctrine of res judicata. “The doctrine of res judicata, also
referred to as claim preclusion, bars a second suit between the same parties or their privies
on the same cause of action with respect to all issues which were or could have been
litigated in the former suit.” Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009). Res
judicata is a ‘“rule of rest,’” that “promotes finality in litigation, prevents inconsistent or
contradictory judgments, conserves judicial resources, and protects litigants from the cost
and vexation of multiple lawsuits.” Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012)
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(quoting Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976) (other citations
omitted)). The party asserting a defense predicated on res judicata must demonstrate: “(1)
that the underlying judgment was rendered by a court of competent jurisdiction, (2) that
the same parties or their privies were involved in both suits, (3) that the same claim or
cause of action was asserted in both suits, and (4) that the underlying judgment was final
and on the merits.” Id. (citing Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998)).
In its most simplistic application, res judicata prevents plaintiffs “from fragmenting their
accrued claims by litigating part of them to a final judgment and then filing a second suit
against the same defendant on alternate claims or theories.” Lowe v. First City Bank of
Rutherford Cty., No. 01-A-01-9305-CV-00205, 1994 WL 570082, at *3 (Tenn. Ct. App.
Oct. 19, 1994). In this case, as in Lowe, we must consider whether res judicata applies to
a “less straightforward” set of circumstances involving a defendant’s counterclaims. Id.Specifically, we consider were the Alberses are precluded from recovering on claims that
sound in tort that could have been asserted as counterclaims in the first suit.
This Court confronted a somewhat similar scenario in Lowe; thus we will examine
Lowe and extrapolate what we can from that precedent. In Lowe, First City Bank of
Rutherford County (“the bank”) filed suit against the Lowes seeking payment of a note that
was in default. Id. at *1. The Lowes eventually settled the lawsuit with the bank, and the
trial court entered agreed judgment in favor of the bank. Id. Later, the Lowes, who had
been defendants in the prior suit, filed suit against the bank, alleging, in part, that the bank
wrongfully filed notices of liens lis pendens on their real property and engaged in
“outrageous conduct.” Id. at *2. The trial court determined that the doctrine of res judicata
and collateral estoppel prevented the Lowes from asserting their claims against the bank.
Id. On appeal, this Court considered the application of res judicata to the counterclaims
that the Lowes could have asserted against the bank in the prior suit and noted that res
judicata “does not necessarily have the same broad preclusive effect with regard to
counterclaims that could have been asserted in an earlier proceeding. It applies only to
compulsory counterclaims.”6 Id. at *3 (citing Hixson v. Hixson, No. 03-A01-9308-CV-
00289, 1994 WL 76865 (Tenn. Ct. App. Mar. 8, 1994)) (emphasis added); see also Crain
v. CRST Van Expedited, Inc., 360 S.W.3d 374, 379 (Tenn. Ct. App. 2011) (observing that
“if a party fails to file a counterclaim, other than those excluded by the [Tenn. R. Civ. P.
13.01] itself, in response to a pleading in accordance with Rule 13.01 and the controversy
6
Courts from other jurisdictions have similarly held that permissive counterclaims are not always
barred by res judicata. See In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 769 A.2d 668, 673 (Vt. 2001)
(“For example, res judicata applies to both affirmative defenses that could have been raised before, . . . and
compulsory counterclaims that should have been raised before, but not to permissive counterclaims.”);
G.A.W., III v. D.M.W., 596 N.W.2d 284, 288 (Minn. Ct. App. 1999) (“There is no res judicata sanction for
not raising a permissive counterclaim. The very nature of a permissive counterclaim is that although it may
be properly triable in the pending action, it may also be reserved and made the subject of a separate action
filed contemporaneously or at a later date.”).
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results in a final judgment, then that party would be precluded from filing suit on that
claim”).
The Lowe court then proceeded to analyze Tenn. R. Civ. P. 13.01 to determine
whether the Lowes’ tort claim was a compulsory counterclaim in the prior action.
Tennessee Rule of Civil Procedure 13.01 states as follows:
A pleading shall state as a counterclaim any claim, other than a tort claim,
which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire
jurisdiction, except that a claim need not be stated as a counterclaim if at the
time the action was commenced the claim was the subject of another pending
action. This rule shall not be construed as requiring a counterclaim to be filed
in any court whose jurisdiction is limited either as to subject matter or as to
monetary amount so as to be unable to entertain such counterclaim.
(emphasis added).7 The Lowe court determined that the Lowes’ claim against the bank was
not a compulsory counterclaim under Tenn. R. Civ. P. 13.01 for two reasons: 1) “it is a
tort claim which is explicitly excluded from the operation of Tenn. R. Civ. P. 13.01” and
2) it did not “arise out of the same transaction or occurrence as the bank’s suit.” Lowe,
1994 WL 570082, at *4; see also Old Hickory Eng’g & Mach. Co. v. Henry, No. 01-A-
019106CV00216, 1991 WL 214714, at *2 (Tenn. Ct. App. Oct. 25, 1991) (“Claims arising
out of tort are not compulsory counterclaims.”).
The Lowe Court also cited and considered the application of Restatement (Second)
of Judgments § 22 to the Lowes’ claims:
7
The Advisory Commission Comment to Tenn. R. Civ. P. 13.01 states:
Rule 13.01 requires that a party who has a claim, other than a tort claim, which arose out
of the same transaction or occurrence as the claim of the opposing party, assert the claim
by way of counterclaim. Multiplicity of suits is avoided by requiring all matured claims
arising between the parties out of the same transaction or occurrence to be settled in a single
proceeding. Exceptions are made to protect a party against injustice. The exception of tort
actions from this Rule was made because these Rules do not affect the law of venue; in tort
actions, a claimant may have a legitimate choice of venue among several counties. So long
as the venue laws permit such choice, the Committee felt that injustice could result from
making tort claims subject to this Rule.
We note that there is not a dispute about venue in this case; Rutherford County is the only jurisdiction
where venue lies.
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(1) Where the defendant may interpose a claim as a counterclaim but he fails
to do so, he is not thereby precluded from subsequently maintaining an action
on that claim, except as stated in Subsection (2).
(2) A defendant who may interpose a claim as a counterclaim in an action
but fails to do so is precluded, after the rendition of judgment in that action,
from maintaining an action on the claim if:
(a) The counterclaim is required to be interposed by a compulsory
counterclaim statute or rule of court, or
(b) The relationship between the counterclaim and the plaintiff’s
claim is such that successful prosecution of the second action would
nullify the initial judgment or would impair rights established in the
initial action.
Lowe, 1994 WL 570082, at *4 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 22
(1980)). The Lowe court focused on section 2(b) and determined that “[p]ermitting the
Lowes to pursue their claim . . . will not impair the bank’s . . . judgment on the note.” Id.
Therefore, because the Lowes’ claims were not compulsory counterclaims in the prior
action and because bringing the claims in a subsequent action did not nullify the prior
judgment or impair rights established in the prior action, res judicata did not bar the Lowes’
claim. Id. The Lowe court ultimately vacated the order dismissing the Lowes’ claims and
remanded the case. Id. at *5.
Because Tenn. R. Civ. P. 13.01 is “closely akin” to Fed. R. Civ. P. 13(a), the
decisions of federal courts construing Fed. R. Civ. P. 13 can also guide us in our
interpretation and application of Tenn. R. Civ. P. 13.01. Quelette v. Whittemore, 627
S.W.2d 681, 682 (Tenn. Ct. App. 1981).8 To that end, we have found RyMed Technologies,
Inc. v. ICU Medical, Inc., helpful in understanding whether the failure to file a permissive
counterclaim in a previous action bars raising it in a later action:
8
As this Court has previously pointed out, and we reiterate here:
It should be noted that Tenn. R. Civ. P. 13.01, which is very similar to Fed. R. Civ. P. 13(a),
is dissimilar in one important respect, the Tennessee rule includes an exception not found
in the federal rule, that is the exception pertaining to tort claims. Tenn. R. Civ.
P. 13.01 reads in part, “A pleading shall state as a counterclaim any claim, other than
a tort claim, which at the time of serving the pleading the pleader has against any opposing
party . . . . ” Fed. R. Civ .P. 13(a) reads in part, “A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has against any opposing
party, . . . .”
Suddarth v. Household Com. Fin. Servs., Inc., No. M2004-01664-COA-R3-CV, 2006 WL 334031, at *3
n.4 (Tenn. Ct. App. Feb. 13, 2006).
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. . . [T]he “failure to interpose a counterclaim does not necessarily act as a
bar to later actions.” . . . There are two “exceptions” which lead to a later
action being barred by res judicata: (1) compulsory counterclaims may be
barred, and (2) permissive counterclaims too may be barred when “the
relationship between the counterclaim and the plaintiff’s claim is such that
the successful prosecution of the second action would nullify the initial
judgment or impair the rights established in the initial action.” . . . That is,
res judicata may generally bar compulsory counterclaims, but not always
permissive ones; otherwise res judicata would swallow Rule 13. But if
allowing a permissive counterclaim to go forward would nullify the earlier
judgment or impair rights established in the earlier action, even a permissive
counterclaim can be barred.
No. 3:10-01067, 2012 WL 4505896, at *8 (M.D. Tenn. Sept. 28, 2012) (quoting Capitol
Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 492 (D.C. Cir. 2009)).
Applying these principles to the case at hand, we first examine whether the
Alberses’s causes of action against Mr. Powers are compulsory counterclaims. The
Alberses’s claims against Mr. Powers sound in tort9 (e.g. causes of action based on
negligence and loss of consortium); thus, pursuant to the plain language of Tenn. R. Civ.
P. 13.01, the claims against Mr. Powers are not compulsory counterclaims. Old Hickory
Eng’g & Mach. Co., 1991 WL 214714, at *2 (“Claims arising out of tort are
not compulsory counterclaims.”).
Next, we consider whether, the Alberses’s tort claims, should they prevail on them,
“‘would nullify the initial judgment or would impair rights established in the initial
action.’” Lowe, 1994 WL 570082, at *3 (quoting RESTATEMENT (SECOND) OF JUDGMENTS
§ 22)). Permitting the Alberses to pursue tort claims against Mr. Powers would not nullify
or impair the rights established in the initial settlement agreement. The Alberses’s suit
would not prevent Mr. Powers from being paid in full in accordance with the terms of the
settlement agreement the parties voluntarily executed, and the Alberses’s claims have no
impact on the prior agreed judgment. Neither the settlement agreement nor the agreed
judgment included any mention of claims the defendants might have against Mr. Powers.
Thus, we conclude that res judicata does not bar the Alberses’s tort claims, and we reverse
the trial court’s dismissal of them on that basis.
9
Black’s Law Dictionary defines “tort” as a “civil wrong, other than a breach of contract, for which a
remedy may be obtained, usually in the form of damages.” Tort, BLACK’S LAW DICTIONARY (11th ed.
2019).
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III. Attorney’s Fees
Finally, we consider Mr. Powers’s request for the attorney’s fees incurred in
defending this appeal pursuant to Tenn. Code Ann. § 27-1-122. Tennessee Code Annotated
section 27-1-122 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.
This 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)). This appeal was not devoid of merit, baseless or
frivolous; therefore, we decline to award Mr. Powers his attorney’s fees on appeal.
CONCLUSION
The judgment of the trial court dismissing the Alberses’s claims is reversed, and the
cause is remanded for further proceedings consistent with this opinion. Costs of this appeal
are assessed against the appellee, Richard Powers, for which execution may issue if
necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
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