Donny N. Parsley v. City of Manchester, Tennessee

12/29/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 3, 2021 Session
DONNY N. PARSLEY v. CITY OF MANCHESTER, TENNESSEE
Appeal from the Chancery Court for Coffee County
No. 2020-CV-300 Larry B. Stanley, Jr., Chancellor
___________________________________
No. M2021-00200-COA-R3-CV
___________________________________
This is a declaratory judgment action in which the plaintiff—a citizen of the City of
Manchester, Tennessee, who was “the next highest vote getter” for Alderman, but not
elected in the most recent election—contends he is entitled to fill a mid-term vacancy on
the Board of Aldermen. The dispute arose when the City’s Board of Aldermen announced
it was accepting applications to fill the vacant seat on the Board. In the Complaint that
followed, the plaintiff asked the court to declare the proper procedure for filling a mid-term
Board vacancy under the City’s Charter. The trial court dismissed the Complaint pursuant
to Tennessee Rule of Civil Procedure 12.02(6), explaining that the Complaint failed to state
a claim because the unambiguous language in the Charter did not entitle the plaintiff to the
vacant seat. The court also ruled the plaintiff did not have standing “as a citizen.” On
appeal, the plaintiff contends that the trial court should have declared the rights of the
parties instead of dismissing the declaratory judgment action under Rule 12.02(6) and
asserts that he had standing as the “next highest vote getter” in the last election. While
motions to dismiss “are rarely appropriate in declaratory judgment actions,” Cannon Cnty.
Bd. of Educ. v. Wade, 178 S.W.3d 725, 730 (Tenn. Ct. App. 2005) (citation omitted), the
plaintiff has not shown that he was prejudiced by the decision. This is because, after
thoroughly analyzing the City’s Charter in the context of the facts stated in the Complaint,
the court concluded that the Charter was unambiguous and provided no circumstance in
which the “next highest vote getter” from the previous election would be entitled to fill a
mid-term vacancy. Accordingly, we modify the judgment of the trial court and remand
with instructions for the trial court to enter judgment holding that Plaintiff is not entitled to
fill the vacancy on the Board of Alderman under Article IV, §6(c) by virtue of the fact that
he was the next highest vote getter at the election preceding the occurrence of a vacancy.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Modified and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which W. NEAL
MCBRAYER and CARMA DENNIS MCGEE, JJ., joined.
Jeremy Wayne Parham and Mary Elizabeth Henderson, Murfreesboro, Tennessee, for the
appellant, Donny N. Parsley.
Gerald Leighton Ewell, Jr., Tullahoma, Tennessee, for the appellee, City of Manchester,
Tennessee.
OPINION
The Board of Mayor and Aldermen (“the Board”) of the City of Manchester,
Tennessee (“the City”), is comprised of six members who are elected by the citizens of
Manchester, Tennessee.1 Board members are elected to staggered 4-year terms, with three
Board positions standing for election every two years. The top three qualified candidates
standing for election to the Board and receiving the most votes are elected to fill the three
Board positions up for election during the general election, which is held in August of
even-numbered years.
In August 2020, Donny N. Parsley (“Plaintiff”) finished fourth in the race for three
open seats on the Board. Accordingly, Plaintiff was not elected, while the top three
candidates (“vote getters”) were duly elected.
In October 2020, after the new Aldermen had taken office, the Mayor of Manchester
died. Acting pursuant to the relevant provisions of the Charter, the Board elected an
incumbent Alderman as Mayor, creating a mid-term vacancy on the Board.2 Shortly
thereafter, the Board announced it was accepting applications to fill the vacancy.
Upon learning of the announcement, Plaintiff filed his Complaint for declaratory
and injunctive relief. Plaintiff alleged that the City Charter provided multiple mechanisms
for filling a vacancy on the Board, including appointing “the ‘next highest vote getter’ from
the previous election.” Plaintiff also alleged that he was entitled to fill the vacancy because
he was the “next highest vote getter” from the previous election and argued that the other
methods for filling a vacancy “should only apply in the event there is no remaining
qualified ‘highest vote getter’ from the previous election.” Further, Plaintiff asserted that
the appointment of another person would injure him as the “next highest vote getter” and
“as a citizen of Manchester”:
1
The Aldermen are elected at-large; they do not represent districts.
2
Lonnie Norman, the Mayor of the City of Manchester, died on October 12, 2019. Pursuant to the
provisions of the Charter, the Board elected then-Alderwoman and Vice Mayor Marilyn Howard to assume
the role of Mayor and fill the balance of Mayor Norman’s term in office until the next regular election
cycle.
-2-
20. [Plaintiff] will suffer immediate and irreparable injury should the Mayor
and Board be allowed to fill the vacant Alderman position prior to further
hearing before this Court to determine the parties’ respective rights and
obligations pursuant to Article IV, §6(c) of the Charter.
21. Specifically, [Plaintiff] may be deprived of his right to serve as Alderman
having stood for election to the position and garnering the next highest
number of votes.
22. Further, immediate and irreparable injury may occur to [Plaintiff] as a
citizen of Manchester, Tennessee[,] should the Board take action by
majority vote which would include the potential tie-breaking vote of an
Alderman which might otherwise be appointed in violation of the
provisions of the Charter.
The City moved to dismiss the action under Tennessee Rule of Civil Procedure
12.02(6), arguing that the plain language of the City Charter provided no circumstance in
which “the next highest vote getter” from the last election would automatically fill a mid-
term vacancy on the Board. The City also argued that Plaintiff lacked standing to pursue
the action “as a citizen.”
Two days later, on November 4, 2020, Plaintiff responded by arguing that dismissal
under Rule 12.02(6) would be improper because a dispute existed over the correct
interpretation of the Charter’s language. He also maintained that he had standing as the
“next highest vote getter.” In his Response to the Motion to Dismiss, Plaintiff argued that
he was entitled to a declaration of his rights under the City Charter:
The verified Complaint in this matter, when admitted as true for purposes of
Defendant’s Motion, demonstrates the existence of an actual controversy that
is properly subject to declaratory judgment before this Court. [Tennessee
Code Annotated] § 29-14-102 states in relevant part:
(a) Courts of record within their respective jurisdictions have the
power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed.
(b) No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for.
Further, . . . § 29-14-103 provides:
Any person . . . whose rights, status, or other legal relations are
affected by a statute . . . may have determined any question of
construction or validity arising under the . . . statute . . . and
-3-
obtain a declaration of rights, status, or other legal relations
thereunder.
It remains [Plaintiff]’s position that he should be sworn in to fill the balance
of the Alderman position vacated by Marilyn Howard pursuant to Article IV,
§[ 6](c) of the Charter which states, “Aldermanic positions being filled for
the balance of the term shall go to the next highest vote getter, with the top
highest vote getters being election [sic] to the regularly rotating aldermanic
seats.” Per the Motion filed by Defendant, it is the City’s argument that the
last sentence of the Article IV, §[ 6](c) only applies where a vacant position
is filled by the Mayor and Board until such time as the next regular election
and that the “next highest vote getter” then fills the balance of the appointed
term. As such, there is clearly a dispute between the respective parties as to
the appropriate interpretation of the Charter which is appropriate for
adjudication pursuant to . . . §§ 29-14-1[02] & 103. It matters not, at this
juncture, whether [Plaintiff] may ultimately be entitled to a favorable
outcome.
(Fourth alteration in original) (citations omitted).
Plaintiff additionally responded to the City’s lack of standing argument, asserting:
[Plaintiff]’s injury is “distinct and palpable” from the general citizenry in that
he[] alone is the “next highest vote getter” from the most recent election cycle
and, thus, stands unique among all others in his claim to the vacated alderman
position. Second, there is certainly a causal connection between [Plaintiff]’s
injury (loss of the vacated set) and the actions of the Mayor and Board by
their contrary interpretation of the relevant portions of the Charter. Finally,
[Plaintiff’s] injury may be properly redressed by a favorable decision in that
the City would be forced to install him in the position . . . should the case
ultimately be decided in his favor.
Without stating its reasoning, the trial court entered an order dismissing the
Complaint for failure to state a claim for which relief could be granted.
Plaintiff then moved to set aside the dismissal, arguing he was entitled to a hearing
before the case was dismissed. After agreeing to afford Plaintiff a hearing, which occurred
on December 4, 2020, the trial court entered a subsequent order in which the court
explained its reasons for dismissing the Complaint:
Addressing the substantive position of Plaintiff, as alleged in the
Complaint[,] the Court accepted Plaintiff’s allegations of fact as true: that the
Plaintiff was the next highest vote-getter at the election prior to the vacancy
and that the Plaintiff was currently qualified to serve. The Court then
-4-
reviewed the Charter provision concerning the filling of vacancies and
concluded, as a matter of law, that the facts alleged by Plaintiff did not entitle
him to immediately be sworn in to the vacant Alderman position as he
requested the Court rule and, thus, failed to state a claim for which the relief
requested can be granted. Had the Court interpreted the Charter language to
entitle Plaintiff to the Alderman position or [found] that it was unclear
whether or not Plaintiff was entitled to the position[,] the Court would not
have dismissed the action.
As to Plaintiff’s request for a general declaration of “the proper procedure
for filling the vacant Alderman position pursuant to the Charter[,”] . . . the
Court finds Plaintiff does not have standing to seek this advisory declaration.
Once the Court determined the Charter language did not entitle Plaintiff to
the Alderman position[,] he had no rights or status different from any other
citizen. With no allegation that Plaintiff was a current member of the Board
of Mayor and Aldermen, the Mayor[,] or a member of the Coffee County
Election Commission[,] there were no rights nor prospective behavior of
Plaintiff which would be affected by the Court’s declaration of “the proper
procedure for filling the vacant Alderman position;” therefore, the Court
finds Plaintiff does not have standing to seek such a declaration as a
citizen. . . .
As the only conclusion that would permit the Court to dismiss this action for
failure to state a claim was that Plaintiff is not entitled to the vacant Alderman
seat by virtue of being the next highest vote getter at the election preceding
the occurrence of a vacancy[,] the Court thinks that, after reaching this
conclusion, a [d]ismissal for failure to state a claim was appropriate.
As to any declaration the Plaintiff seeks as a citizen concerning the proper
method for the filling of a vacancy which does not affect Plaintiff differently
than any other citizen[,] the Court finds Plaintiff lacks standing and,
therefore, as a citizen, does not state a claim for which the relief requested
can be granted.
This appeal followed.
ISSUES
Plaintiff contends the trial court erred in dismissing the Complaint based upon the
finding that Plaintiff lacked standing to have the trial court declare the proper method for
filling a vacancy on the Board of Alderman. Further, Plaintiff contends that his Complaint,
when admitted as true for purposes of the Motion to Dismiss, demonstrates the existence
of an actual controversy that is properly subject to declaratory judgment. Accordingly,
Plaintiff argues that the trial court employed an erroneous procedure by disposing of his
-5-
declaratory judgment action on a motion to dismiss under Tennessee Rule of Civil
Procedure 12.02(6).
For its part, the City contends that any procedural error in disposing of the case
under Rule 12.02(6) was harmless because the trial court essentially “declared” that
Plaintiff had no rights under the Charter as “the next highest vote getter.”
The City also raises a separate issue, contending it is entitled to damages for
frivolous appeal under Tennessee Code Annotated § 27-1-122.
STANDARD OF REVIEW
When reviewing a trial court’s decision on a motion to dismiss for failure to state a
claim, we use a de novo standard of review with no presumption of correctness afforded to
the court’s decision. See Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996).
We use the same standard when reviewing a trial court’s determination on standing. See In
re Est. of Brock, 536 S.W.3d 409, 413 (Tenn. 2017).
ANALYSIS
I. STANDING
The trial court ruled that Plaintiff lacked standing to seek a declaratory judgment in
two contexts. First, the court found he lacked standing as the next highest vote getter after
determining “the Charter language did not entitle Plaintiff to the Alderman position.”
Second, the court found he lacked standing as “a citizen” to seek a declaration concerning
the proper method for filling the vacancy.
As for the first determination, which related to Plaintiff being “the highest vote
getter” in the most recent election, we respectfully disagree with the trial court’s ruling.
Because an ultimate decision adverse to a plaintiff on the merits of the case does not deprive
the party of standing to bring the action, see Wade, 178 S.W.3d at 730, we conclude that
the court put the cart before the horse. Plaintiff was in a unique position to bring this action
because he was the only person in the City of Manchester who was “the highest vote getter”
in the most recent election. Accordingly, we hold that Plaintiff had standing to bring the
action as “the highest vote getter.”
As for Plaintiff’s claim that he has standing by virtue of being “a citizen,” we agree
with the trial court’s ruling. Standing “may not be predicated upon an injury to an interest
that the plaintiff shares in common with all other citizens.” Am. Civil Liberties Union of
Tenn. v. Darnell, 195 S.W.3d 612, 621 (Tenn. 2006). Thus, we agree that Plaintiff does not
have standing in this context. Nevertheless, we have previously concluded that he has
standing as the only person who was “the highest vote getter” in the prior election;
therefore, his claim may proceed.
-6-
II. DISMISSAL OF DECLARATORY JUDGMENT ACTION UNDER TENNESSEE RULE OF CIVIL
PROCEDURE 12.02(6)
Plaintiff argues that a party seeking a declaratory judgment “need only state facts
sufficient to demonstrate the existence of an actual controversy to survive a motion to
dismiss” and asserts that “there is clearly a dispute between the respective parties as to the
appropriate interpretation of the Charter.”
“When considering a motion to dismiss a declaratory judgment action[,] it is
important to recognize that the general purpose of a declaratory judgment action is not to
award affirmative relief, but ‘to resolve a dispute, afford relief from uncertainty with
respect to rights, status, and other legal relations.’” Blackwell v. Haslam, No. M2011-
00588-COA-R3-CV, 2012 WL 113655, at *7 (Tenn. Ct. App. Jan. 11, 2012) (emphasis
added) (quoting Wade, 178 S.W.3d at 730). “The fact that the party seeking declaratory
relief is not entitled to the judgment sought (that it is on the losing side of the controversy)
does not mean that the parties are not entitled to the relief from uncertainty that a
declaratory judgment affords.” Wade, 178 S.W.3d at 730. “Thus, a party seeking a
declaratory judgment is not required to allege facts in its complaint demonstrating that it is
entitled to a favorable decision.” Id. (emphasis added) (citations omitted).
Although there are exceptions, motions to dismiss under Tennessee Rule of Civil
Procedure 12.02(6) “are rarely appropriate in declaratory judgment actions.” Id. (citing
Glover v. Glendening, 829 A.2d 532, 539 (Md. 2003)). “The prevailing rule is that when a
party seeking a declaratory judgment alleges facts demonstrating the existence of an actual
controversy concerning a matter covered by the declaratory judgment statute, the court
should not grant a [Rule] 12.02(6) motion to dismiss but, instead, proceed to render a
declaratory judgment as the facts and law require.” Id. (citing Hudson v. Jones, 278 S.W.2d
799, 804 (Mo. Ct. App. 1955); 1 Walter H. Anderson, Actions for Declaratory Judgments
§ 318, at 740 (2d ed. 1951)). But see Highwoods Properties, Inc. v. City of Memphis, No.
W2007-00454-COA-R3CV, 2007 WL 4170821, at *14 (Tenn. Ct. App. Nov. 27, 2007)
(noting that “Tennessee courts have affirmed a trial court’s granting of a Rule 12.02(6)
motion to dismiss in a declaratory judgment action” in several cases (citations omitted)),
aff’d, 297 S.W.3d 695 (Tenn. 2009).
Furthermore, even though the trial court granted the Motion to Dismiss Plaintiff’s
declaratory judgment action under Rule 12.02, this court may choose to review the
underlying merits of the case without having to remand it. See Karsonovich v. Kempe, No.
M2017-01052-COA-R3-CV, 2018 WL 1091735, at *3 (Tenn. Ct. App. Feb. 27, 2018).
This procedure is particularly appropriate when, as here, the trial court addresses the merits
of a declaratory judgment claim in its ruling on a Rule 12.02(6) motion to dismiss. Id. at
*2–3, *5.
As is the case here, the trial judge in Karsonovich dismissed a claim for declaratory
judgment pursuant to Rule 12.02(6) after addressing the merits of the claim in its ruling.
-7-
Id. at *2–3. In the Karsonovich appeal, we elected to review the merits of the ruling “in
order to preserve judicial resources,” id. at *3 (citing Blackwell, 2012 WL 113655, at *10),
based on our determination that there did “not appear to be a need for any additional facts,”
id; see also Frazier v. City of Chattanooga, 1 S.W.2d 786, 786 (Tenn. 1928) (affirming
trial court’s dismissal of a declaratory judgment action even though it would have been
“better practice” to enter a declaration). After conducting a thorough review of this case,
we find that the same review process is appropriate in this appeal.
III. THE MERITS OF THE DECLARATORY JUDGMENT ACTION
In his Complaint, Plaintiff alleged that “the Charter provides multiple mechanisms
by which a vacant Alderman position may be filled,” including by appointment of “the
‘next highest vote getter’ from the previous election.” Plaintiff asserted that “the other
methods prescribed by the Charter for filling a vacant Alderman term should only apply in
the event there is no remaining qualified ‘highest vote getter’ from the previous election.”
Plaintiff attached a copy of the Charter to the Complaint.
In its Motion to Dismiss, the City asserted that “assuming Plaintiff’s factual
allegations are true,” the Charter’s language did not entitle him to relief. The City asked
the trial court to resolve the matter “by addressing the substantive allegations” in the
Complaint. In response, Plaintiff asserted that “there is clearly a dispute between the
respective parties as to the appropriate interpretation of the Charter” based on his “position
that he should be sworn in to fill the balance of the Alderman position.”
Article IV, § 1 of the Charter provides that the Board must be “composed of the
Mayor and six (6) Aldermen.” Act of May 8, 2017, Art. IV, § 1(a), 2017 Tenn. Priv. Acts
85, 89 (ratified June 27, 2017). The Aldermen “shall be elected in the general city election”
for staggered four-year terms, with three Aldermen elected every two years. See id. § 1(c).
Article IV, § 6 of the Charter prescribes the methods for filling vacancies created by a
member’s “death, resignation, removal from office or forfeiture of office”:
A vacancy in the office of Alderman shall be filled until the next regular
election, by a majority vote of all of the remaining members of the Board of
Mayor and Aldermen. If the Board of Mayor and Aldermen fails to do so
within sixty (60) days following the occurrence of the vacancy, the Mayor
shall fill the vacancy until the next election. If the Mayor fails to fill the
vacancy within sixty (60) days, either the Mayor or any two Aldermen shall
notify the Coffee County Election Commission, who shall call a special
election to fill the vacancy for the unexpired term. A special election shall be
held not sooner than seventy-five (75) days and not later than eighty (80)
days thereafter, and shall be governed by the general election laws of the
state, except that no special election shall be held within one hundred and
eighty (180) days of the next regular election. All appointments, until the
next regular election, shall at the time of the next regular election, be filled
-8-
by electing someone for the balance of [the] term, if any, or for a new term.
Aldermanic positions being filled for the balance of the term shall go to
the next highest vote getter, with the top highest vote getters being
elected to the regularly rotating aldermanic seats.
Id. § 6(a), (c), 2017 Tenn. Priv. Acts at 91 (emphasis added). The emphasized sentence
immediately above is the focus of Plaintiff’s contention that he was entitled to
automatically fill the vacancy on the Board; however, we have determined that his reliance
on this provision is misplaced.
When interpreting municipal charters, courts use “[t]he same rules of construction
used to interpret statutes.” Metro. Elec. Power Bd. v. Metro. Gov’t of Nashville & Davidson
Cnty., 309 S.W.3d 474, 477 (Tenn. Ct. App. 2008) (citing Hargrove v. Metro. Gov’t of
Nashville and Davidson Cnty., 154 S.W.3d 565, 567–68 (Tenn. Ct. App. 2004)). Thus, a
charter “should be construed as a whole and its words given their natural and ordinary
meaning.” Id. (citing Hargrove, 154 S.W.3d at 568). And “[i]f the words are unambiguous,
they should be enforced as written.” Id. It is only when the language is ambiguous “that we
may reference the broader statutory scheme, the history of the legislation, or other sources.”
In re Estate of Tanner, 295 S.W.3d 610, 614 (Tenn. 2009).
Although the Charter is not the model of clarity, we agree with the trial court’s
determination that the relevant language is not ambiguous. Thus, resorting to legislative
history would be unnecessary. Moreover, the language simply does not support Plaintiff’s
contention that appointing “the ‘next highest vote getter’ from the previous election” is a
method for filling a vacancy.
The Charter identifies three methods for filling a vacancy in order of operation.
First, the Board may fill the seat “until the next regular election.” If the Board fails to do
so within 60 days, the Mayor may fill the seat “until the next election.” If the Mayor fails
to do so within 60 days, the Coffee County Election Commission may hold a special
election to fill the vacancy “for the unexpired term.” The next to last sentence of § 6(c)
provides that “[a]ll appointments, until the next regular election, shall at the time of the
next regular election, be filled by electing someone for the balance of term, if any, or for
a new term.” Thus, the Mayor or the Board’s appointments last only “until the next regular
election,” at which time someone is elected “for the balance of the term.” If a special
election is held, the appointment is “for the unexpired term.”
Finally, the last sentence—which gives rise to Plaintiff’s claim—states that
“Aldermanic positions being filled for the balance of the term shall go to the next highest
vote getter.” As explained, the only circumstance in which a vacancy is filled “for the
balance of the term” is when the Board or the Mayor appoints someone “until the next
regular election.” Accordingly, we find “the next highest vote getter” refers to the runner-
up in “the next regular election,” meaning the election that is held after a vacancy
occurs. This conclusion is consistent with, and corroborated by, the last clause of the last
-9-
sentence, which states, “the top highest vote getters” will be “elected to the regularly
rotating aldermanic seats.”
Furthermore, § 6(c) of the Charter identifies Board appointment as the first method
for filling a vacancy. “The courts’ goal is to construe a statute in a way that avoids conflict
and facilitates the harmonious operation of the law.” Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 527 (Tenn. 2010). The Charter’s drafters expressed a preference for filling vacancies
by a majority vote of the Board because the other two methods described depend on the
Board’s failure to fill the position within 60 days. Thus, interpreting the last sentence as
requiring the vacancy to be filled by the “next highest vote getter” from the last election
would create a conflict.
This brings us back to the trial court’s decision to dismiss the Complaint pursuant
to Rule 12.02 even though the trial court thoroughly discussed the merits of the dispute.
“A final judgment from which relief is available and otherwise appropriate shall not be set
aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b). As the City correctly contends, the procedural error in
disposing of the case under Rule 12.02(6) was harmless because the trial court essentially
“declared” that Plaintiff had no rights under the Charter as “the next highest vote getter.”
Moreover, we agree with the trial court’s determination that Plaintiff is not entitled to fill
the vacancy.
Accordingly, we remand this matter with instructions for the trial court to enter
judgment holding that Plaintiff is not entitled to fill the vacancy on the Board of Alderman
under Article IV, §6(c) by virtue of the fact that he was the next highest vote getter at the
election preceding the occurrence of a vacancy.
IV. DAMAGES UNDER TENNESSEE CODE ANNOTATED § 27-1-122
The City also requests an award of attorneys’ fees as damages under Tennessee
Code Annotated § 27-1-122, which provides:
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.
The City argues that Plaintiff’s appeal is frivolous because “his only ‘substantive’
assertion on Appeal is that it ‘remains his position he is entitled to the Aldermanic seat.’”
The City asserts that Plaintiff “failed to even allege error by the trial [c]ourt in its
determination that he was not entitled to the Aldermanic seat” and failed to “construct any
argument or cite any authority that the trial Court was incorrect in this conclusion.”
- 10 -
An award of fees under § 27-1-122 “rests in the appellate court’s sound discretion.”
Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017). Appellate courts should
exercise this discretion “sparingly so as not to discourage legitimate appeals.” Id. (quoting
Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)). “A frivolous appeal is
one that is ‘devoid of merit such that it had no reasonable chance of succeeding.’”
Henderson v. SAIA, Inc., 318 S.W.3d 328, 341 (Tenn. 2010) (quoting Clark v. Nashville
Mach. Elevator Co. Inc., 129 S.W.3d 42, 50 n.4 (Tenn. 2004)).
Although Plaintiff did not prevail in this appeal, we cannot say that Plaintiff’s appeal
was “devoid of merit.” For these reasons, we deny the City’s request for attorneys’ fees
under Tennessee Code Annotated § 27-1-122.
IN CONCLUSION
The judgment of the trial court is modified, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against Donny N.
Parsley.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
- 11 -