Brenda Naldrett Johnson v. Gary Lee Johnson ( 2021 )

04/06/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 17, 2021 Session
BRENDA NALDRETT JOHNSON v. GARY LEE JOHNSON
Appeal from the Chancery Court for Johnson County
No. 7503 John C. Rambo, Chancellor
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No. E2020-00875-COA-R3-CV
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This case involves an intra-family dispute over a parcel of real property. Because of the
profound deficiencies with Appellant’s brief, we decline to reach the merits of this appeal
and instead find that Appellant has waived his argument. Thus, we affirm the judgment of
the trial court and award Appellee damages, including attorney’s fees incurred on appeal,
pursuant to Tennessee Code Annotated section 27-1-122.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Perry L. Stout, Mountain City, Tennessee, for the appellant, Gary Lee Johnson.
George T. Wright, Mountain City, Tennessee, for the appellee, Brenda Naldrett Johnson.
MEMORANDUM OPINION1
BACKGROUND AND PROCEDURAL HISTORY
The facts set forth below are taken from the trial court’s findings of fact and
1
Rule 10 of the Rules of the Court of Appeals provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be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.
conclusions of law found in the final judgment.2 The contention in this matter revolves
around the disposition of a parcel of real property previously owned by Erby L. Johnson,
who died in March of 2017. Brenda Naldrett Johnson (“Appellee”) is Mr. Johnson’s
widow. Gary Lee Johnson (“Appellant”) is the son of Mr. Johnson. Prior to his death, Mr.
Johnson executed and prepared a durable general and healthcare power of attorney,
appointing Appellant and reappointing his grandsons as his attorneys-in-fact for purposes
of healthcare, business decisions, transactions, and other matters. Prior to Mr. Johnson’s
death, Appellant executed a deed from Mr. Johnson, signing by himself as Mr. Johnson’s
attorney-in-fact and conveying the real property at issue to himself. Appellee ultimately
filed a complaint to set aside the deed. As part of her complaint, Appellee contended that
the conveyance was fraudulent on its face due to the fiduciary relationship existing between
Appellant and Mr. Johnson. In turn, Appellant argued that, based on a marital dissolution
agreement incorporated into a prior legal separation order between Appellee and Mr.
Johnson, Appellee had waived and released her right to inherit an intestate share from Mr.
Johnson. Specifically, Appellant contended that, because of the marital dissolution
agreement, Appellee did not even have standing to bring her lawsuit.3 Ultimately, the trial
court found that Appellant failed to carry his burden of proof by clear and convincing
evidence to rebut the presumption of undue influence regarding the conveyance. As a
result, the trial court awarded Appellant and Appellee a one-half interest each in the real
property as tenants in common.
ISSUES PRESENTED
As will be discussed in more detail, infra, Appellant does not expressly present
any issues for review in his brief. For her part, Appellee does not raise any independent
issues seeking relief from the trial court’s judgment. She does, however, raise the issue of
whether the appeal in this case was frivolous or taken solely for delay such that she is
entitled to damages pursuant to Tennessee Code Annotated section 27-1-122.
DISCUSSION
Appellant’s Noncompliance with the Tennessee Rules of Appellate Procedure
At the outset, we find it necessary to address Appellant’s brief, specifically his
noncompliance with Rule 27(a) of the Tennessee Rules of Appellate Procedure. As will be
2
Although the record indicates that Appellant submitted a statement of the evidence and an
amended statement of the evidence, the trial court filed an order regarding approval of record on appeal,
declining to approve Appellant’s submissions, finding that they did not “convey a fair, accurate, and
complete account of what happened during the trial.” According to the trial court, the “independent
recollection of the testimony of the parties and witnesses is limited to the portion of the [trial court’s] factual
findings that were placed in [its] Final Judgment and Order of the Court.”
3
The trial court addressed Appellant’s argument that Appellee had no standing in a separate order
denying his motion to dismiss wherein he argued the same.
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detailed below, we find that Appellant’s brief is noncompliant with Rule 27(a) in such a
degree as to warrant waiver of his appeal.
Rule 27(a) of the Tennessee Rules of Appellate Procedure sets forth various
requirements appellants are to follow regarding the content of their briefs. Specifically,
Rule 27(a) provides that an appellant’s brief shall include the following:
(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;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly
from the trial court indicating briefly the jurisdictional grounds for appeal to
the Supreme Court;
(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.
Tenn. R. App. P. 27(a). This Court retains the discretion whether to suspend or relax the
requirements set forth in the Tennessee Rules of Appellate Procedure. Paehler v. Union
Planters Nat’l. Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997). However, based on the
brief presented, we do not find that the present case merits suspension of these rules.
Upon reviewing Appellant’s brief, we find that it is woefully deficient in meeting
several enumerated requirements set forth in Rule 27(a). Specifically, in addition to lacking
a statement of issues presented for review, we also note that Appellant failed to include a
table of contents as required by Rule 27(a)(1), a table of authorities as required by Rule
27(a)(2), and a standard of review section as required by Rule 27(a)(7)(B). Furthermore,
the brief also lacks any citation to the record as required under Rule 27(a).
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It is not the role of this Court to “research or construct a litigant’s case or arguments
for him or her.” Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010).
Rather it is an appellant’s responsibility to ensure compliance with Rule 27(a). As such,
where a party fails to specifically present an issue for appeal, we may deem the issue to be
waived. See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (stating that
“[c]ourts have consistently held that issues must be included in the Statement of Issues
Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An
issue not included is not properly before the Court of Appeals.”). Here, nowhere in
Appellant’s brief is there a section specifically setting forth what issue Appellant is
bringing for our review on appeal as required by Rule 27(a)(4). Furthermore, as noted
above, Appellant’s argument is lacking entirely in citations to the record and includes no
standard of review, both of which are required by Rule 27(a)(7). For our purposes, “[w]e
will not undertake to search the record and then revise [Appellant’s] brief in its entirety so
as to create issues of claimed errors by the Trial Court when [Appellant] raises no such
specific claimed errors because to do so would have this Court serve as [Appellant’s]
attorney.” Heflin v. Iberiabank Corp., 571 S.W.3d 727, 734 (Tenn. Ct. App. 2018) (quoting
Murray v. Miracle, 457 S.W.3d 399, 404 (Tenn. Ct. App. 2014)). As such, we decline to
address Appellant’s arguments on the merits as the brief fails to provide adequate
information such that we can make an informed ruling on the matter.
Thus, based on Appellant’s failure to include a specific issue presented for our
review, as well as an argument severely lacking in both citation to the record and a standard
of review, we find that Appellant’s argument is waived on appeal based on his
noncompliance with Rule 27(a) of the Tennessee Rules of Appellate Procedure.
Whether this Appeal is Frivolous Within the Meaning of
Tenn. Code Ann. § 27-1-122In response to Appellant’s brief, Appellee argues that Appellant’s appeal is
frivolous and that she is thus entitled to damages pursuant to Tennessee Code Annotated
section 27-1-122. We agree.
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
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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).
Based on our findings regarding Appellant’s brief, we conclude the appeal in this
case to be frivolous. As explained above, Appellant’s brief woefully fails to comply with
both the spirit and letter of Rule 27(a) of the Tennessee Rules of Appellate Procedure.
Furthermore, in reviewing Appellant’s argument, though concise, he asserts no citations to
the record, nor does he present sufficient applicable law to support his position. Because
Appellant’s briefing deficiencies left this appeal with no reasonable chance of succeeding,
we conclude that Appellee is entitled to damages, including attorney’s fees incurred on
appeal, pursuant to Tennessee Code Annotated section 27-1-122.
CONCLUSION
Based on the foregoing, we find Appellant’s argument on appeal waived and affirm
the trial court’s ruling. This matter is remanded to the trial court for a determination of
Appellee’s damages, including attorney’s fees incurred on appeal, pursuant to Tennessee
Code Annotated section 27-1-122.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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