Vicki Headrick Webb v. Max Sherrell

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 29, 2015 Session
VICKI HEADRICK WEBB v. MAX SHERRELL, ET AL.
Appeal from the Chancery Court for Sevier County
No. 11-11-517 Telford E. Forgety, Jr., Chancellor
No. E2013-02724-COA-R3-CV-FILED-AUGUST 12, 2015
Vicki Headrick Webb (“Plaintiff”) appeals the judgment of the Chancery Court for Sevier
County (“the Trial Court”) in this suit involving title to real property and a boundary line
dispute. We find and hold that Plaintiff has significantly failed to comply with Tenn. R.
App. P. 27 rendering this Court unable to address any of Plaintiff‟s potential issues. We,
therefore, affirm the Trial Court‟s judgment, find Plaintiff‟s appeal frivolous, and award
the defendants damages for frivolous appeal. Defendants1 raise an issue on appeal
regarding whether the Trial Court erred in refusing to award them discretionary costs.
We find no abuse of discretion in the Trial Court‟s determination that “the circumstances
and equities do not favor the award of discretionary costs . . . .” We, therefore, affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J. and THOMAS R. FRIERSON, II, J., joined.
Vicki Headrick Webb, Sevierville, Tennessee, pro se appellant.
Matthew A. Grossman, Knoxville, Tennessee, for the appellees, Gregory N. Bishop and
Lisa L. Bishop.
1
The defendants involved in this appeal are Gregory N. Bishop; Lisa L. Bishop; U.S. Bank, National
Association; Max Sherrell; Charles E. Sessions and Lois Elizabeth Sessions, Trustees – Sessions Living
Trust; Tennessee Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman
(collectively “Defendants”). Multiple other parties were named as defendants in Plaintiff‟s complaint, but
the above listed defendants are the only defendants involved in this appeal. Although Defendants are
represented by separate attorneys as shown above, and each attorney has filed a brief on behalf of the
parties he represents, the issues raised are the same. As such, for ease of reference, we refer in this
Opinion to the Defendants collectively.
William S. Nunnally, Greeneville, Tennessee, for the appellee, U.S. Bank, National
Association.
Lars E. Schuller, Knoxville, Tennessee, for the appellees, Max Sherrell; Charles E.
Sessions and Lois Elizabeth Sessions, Trustees - Sessions Living Trust; Tennessee
Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman.
OPINION
Background
In November of 2011 Plaintiff sued Defendants2 with regard to disputes involving
real property located in Sevier County, Tennessee. The case was tried without a jury, and
the Trial Court entered its judgment on November 12, 2013 establishing the common
boundary line and finding and holding, inter alia, that Plaintiff had failed to prove title to
a “boxed area” or “hatched area” at issue in the suit. Defendants then filed motions for
discretionary costs pursuant to Tenn. R. Civ. P. 54.04.3 After a hearing, the Trial Court
denied discretionary costs by order entered January 3, 2014. Plaintiff appealed the Trial
Court‟s November 12, 2013 judgment to this Court.
Discussion
Plaintiff‟s brief on appeal is so severely deficient that we are unable to determine
what specific issues Plaintiff is attempting to raise on appeal other than that she is
unhappy with the Trial Court‟s decision. Although not stated exactly as such, Defendants
raise two issues on appeal: 1) whether Plaintiff‟s appeal should be deemed frivolous
entitling Defendants to an award of damages; and, 2) whether the Trial Court erred in
refusing to award Defendants Rule 54.04(2) discretionary costs.
Additionally, defendants Gregory N. Bishop and Lisa L. Bishop filed a motion for
consideration of post-judgment facts seeking to have this Court recognize post-judgment
facts in support of their argument regarding frivolous appeal. We deny the motion for
consideration of post-judgment facts as moot for the reasons stated below.
2
As noted in footnote 1, Plaintiff named a number of other persons and entities as defendants in the suit.
3
Gregory N. Bishop; Lisa L. Bishop; and U.S. Bank, National Association filed a motion and Max
Sherrell; Charles E. Sessions and Lois Elizabeth Sessions, Trustees – Sessions Living Trust; Tennessee
Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman also filed a
motion.
2
We will begin by addressing the deficiencies in Plaintiff‟s brief. Plaintiff is
representing herself pro se on appeal. As this Court explained in Young v. Barrow:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat=l Bank, Inc.,
971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into
account that many pro se litigants have no legal training and little
familiarity with the judicial system. Irvin v. City of Clarksville, 767
S.W.2d 649, 652 (Tenn. Ct. App. 1988). 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. Edmundson v. Pratt, 945
S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d
728, 733 n.4 (Tenn. Ct. App. 1995).
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003).
We are mindful of Plaintiff‟s pro se status and have attempted to give her the
benefit of the doubt whenever possible. Nevertheless, we cannot write Plaintiff‟s brief
for her, and we are not able to create arguments or issues where none otherwise are set
forth. Likewise, we will not dig through the record in an attempt to discover arguments
or issues that Plaintiff may have made had she been represented by counsel. To do so
would place Defendants in a distinct and likely insurmountable and unfair disadvantage
as this Court would be acting as Plaintiff‟s attorney.
We note that in this appeal Plaintiff filed a principal brief and a reply brief, both of
which failed to comply with Tenn. R. App. P. 27 in any significant manner. Specifically,
Plaintiff‟s initial brief 4 fails to comply with Tenn. R. App. P. 27(a)(4), which requires
that a brief shall contain A[a] statement of the issues presented for review.@ Tenn. R. App.
P. 27(a)(4). Although Plaintiff‟s brief contains a section titled ASTATEMENT OF THE
ISSUES PRESENTED FOR REVIEW FROM FINAL JUDGMENT,@ this section begins
by reciting details about the trial such as the dates of the trial and the Chancellor‟s name
and then attempts to present argument but never does present a statement of specific
issues that would justify appellate review. Additionally, this section, along with the
remainder of Plaintiff‟s brief, contains unconnected statements that are difficult to
understand and entirely unhelpful in understanding Plaintiff‟s position on appeal. Just
about the only thing that is clear from Plaintiff‟s brief is that Plaintiff is unhappy with the
4
Plaintiff‟s reply brief is as deficient as her initial brief.
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outcome of the trial. Plaintiff‟s brief, however, does not contain a statement of the issues
as required by Tenn. R. App. P. 27(a)(4), and, thus, it is impossible to tell from her brief
what specific appealable issue or issues Plaintiff wishes to raise. We will not undertake
to search the record and then revise Plaintiff‟s brief in its entirety so as to create and
address issues of claimed errors by the Trial Court when Plaintiff raises no such specific
claimed errors because to do so would have this Court serve as Plaintiff‟s attorney.
Plaintiff‟s brief also fails to comply with Tenn. R. App. P. 27(a) sections (1) and
(2). Plaintiff‟s brief does not contain “[a] table of contents, with references to the pages
in the brief;” or “[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; . . . .” Tenn. R. App. P. 27(a). Within the body of the brief there appears to be
quoted material, however, it is difficult, and in some cases impossible, to tell from what
source Plaintiff is quoting.
In Bean v. Bean this Court observed:
Courts have routinely held that the 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. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI
Acrylics, Inc. 898 S.W.2d 196, 210 (Tenn. Ct. App.1994); State v.
Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an
issue is waived where it is simply raised without any argument regarding its
merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App.
1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.
1988). . . . This Court is under no duty to verify unsupported allegations in
a party‟s brief, or for that matter consider issues raised but not argued in the
brief. Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993)
(citing Airline Const. Inc., [sic] v. Barr, 807 S.W.2d 247 (Tenn. Ct. App.
1990)).
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000).
Plaintiff failed to comply in any significant way with Tenn. R. App. P. 27, and this
failure makes it impossible for this Court to conduct any realistic review of the Trial
Court‟s judgment. As such, we find and hold that Plaintiff has waived any issues she
may have attempted to raise on appeal.
We next consider the issue raised by Defendants regarding whether
Plaintiff‟s appeal is frivolous. “„A frivolous appeal is one that is „devoid of merit,‟ or one
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in which there is little prospect that [an appeal] can ever succeed.‟” Morton v. Morton,
182 S.W.3d 821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of
Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). In pertinent part,
Tenn. Code Ann. ' 27-1-122 addresses damages for frivolous appeals stating:
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 (2000).
As discussed more fully above, Plaintiff‟s brief on appeal is so severely deficient
that this Court is unable to determine even what specific issues Plaintiff is attempting to
raise on appeal. As such, Plaintiff‟s appeal is devoid of merit with little prospect that the
appeal could ever succeed. Given this, we hold Plaintiff‟s appeal frivolous and remand
this case to the Trial Court for a determination of an award of damages from Plaintiff to
Defendants for frivolous appeal.
Finally, we consider Defendants‟ issue regarding whether the Trial Court erred in
denying their motions for discretionary costs. We review a Trial Court‟s decision to
award discretionary costs for abuse of discretion. Quebecor Printing Corp. v. L & B Mfg.
Co., 209 S.W.3d 565, 583 (Tenn. Ct. App. 2006). As this Court has explained:
Tenn. R. Civ. P. 54.04(2) permits prevailing parties in civil actions
to recover “discretionary costs.” The purpose of this provision is not to
punish the losing party but rather to help make the prevailing party whole.
Owens v. Owens, 241 S.W.3d 478, 496-97 (Tenn. Ct. App. 2007); Scholz v.
S. B. Int’l, Inc., 40 S.W.3d 78, 85 (Tenn. Ct. App. 2000). The particular
equities of the case may influence a trial court‟s decision to award
discretionary costs, Perdue v. Green Branch Mining Co., 837 S.W.2d 56,
60 (Tenn. 1992), and, therefore, parties are not entitled to discretionary
costs simply because they prevail. Scholz v. S. B. Int’l, Inc., 40 S.W.3d at
85; Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998).
The party seeking discretionary costs has the burden of convincing
the trial court that it is entitled to these costs. Carpenter v. Klepper, 205
S.W.3d 474, 490 (Tenn. Ct. App. 2006); Stalsworth v. Grummons, 36
S.W.3d 832, 835 (Tenn. Ct. App. 2000). As a general matter, a party
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seeking discretionary costs can carry its burden by filing a timely and
properly supported motion demonstrating (1) that it is the prevailing party,
(2) that the costs being sought are included in Tenn. R. Civ. P. 54.04(2), (3)
that the costs are necessary and reasonable, and (4) that it has not engaged
in conduct during the litigation that would justify depriving it of the costs it
is requesting. Trundle v. Park, 210 S.W.3d 575, 582 (Tenn. Ct. App.
2006); Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d
42, 65-66 (Tenn. Ct. App. 2004); Mass. Mut. Life Ins. Co. v. Jefferson, 104
S.W.3d 13, 35-36 (Tenn. Ct. App. 2002).
Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 214-15 (Tenn. Ct. App. 2008).
In pertinent part, Tenn. R. Civ. P. 54.04, provides:
Costs not included in the bill of costs prepared by the clerk are allowable
only in the court‟s discretion. Discretionary costs allowable are: reasonable
and necessary court reporter expenses for depositions or trials, reasonable
and necessary expert witness fees for depositions (or stipulated reports) and
for trials, reasonable and necessary interpreter fees not paid pursuant to
Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel
expenses are not allowable discretionary costs. . . .
Tenn. R. Civ. P. 54.04(2).
With regard to the motions for discretionary costs, the Trial Court found and held,
inter alia:
Upon consideration of the argument of counsel; the various petitions
and supporting documents submitted by the Defendants; the nature, issues
and difficulty of the case; the specific language of Rule 54.04 of the
Tennessee Rules of Civil Procedure; the applicable case law including
Perdue v. Green Branch Mining Co., 837 S.W.2d 56 (Tenn. 1992); Mix v.
Miller, 27 S.W.3d 508 (Tenn. App. 1999); and, Mass. Mut. Life Ins. Co. v.
Jefferson, 104 S.W.3d 13 (Tenn. App. 2002); and, the record as a whole,
the Court finds that the circumstances and equities do not favor the award
of discretionary costs, but rather it is appropriate that the parties bear their
own discretionary costs. In this regard, the Court notes that this cause
involved very complicated and somewhat convoluted boundary and title
issues requiring six full days of proof, including extensive expert and lay
testimony and an extraordinary number of exhibits. As the Court noted,
both sides presented substantial evidence in support of their claims and it
6
appeared almost inevitable that a judicial hearing and ruling would be
required to resolve these complicated issues, which issues were not the fault
of the parties, but rather the result of historical defects, conflicts and
uncertainty in descriptions and title to the subject land. Accordingly, it is
hereby
***
FURTHER ORDERED, ADJUDGED AND DECREED that the
requests for discretionary costs by the various Defendants are hereby
Denied and no discretionary costs shall be taxed in this cause.
We note that the record before us on appeal is voluminous and, even so, does not
consist of everything that the Trial Court had before it when rendering judgment. The
fact that Defendants prevailed at trial does not automatically entitle them to an award of
discretionary costs. Given the facts and circumstances of the case now before us we find
no abuse of discretion in the Trial Court‟s determination “that the circumstances and
equities do not favor the award of discretionary costs . . . .”
For the reasons set forth above, we affirm both the Trial Court‟s November 12,
2013 Judgment and the Trial Court‟s January 3, 2014 order.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for a determination of an award of damages from Plaintiff to Defendants for
frivolous appeal and for collection of the costs below. The costs on appeal are assessed
against the appellant, Vicki Headrick Webb.
_________________________________
D. MICHAEL SWINEY, JUDGE
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