Damages for frivolous appeal are frequently sought in Tennessee but rarely granted.
The recent case of Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023) provides us with a summary of the law. The Court first referenced the relevant statute, Tennessee Code Annotated section 27-1-122:
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.
Id. at 8.
It then provided this summary of the law:
The decision whether to award damages for a frivolous appeal rests solely in our discretion. Chiozza, 315 S.W.3d at 493. Appellate courts exercise their discretion to award fees under this statute ‘“sparingly so as not to discourage legitimate appeals.”’ Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (quoting Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)). ‘“Successful litigants should not have to bear the expense and vexation of groundless appeals.”’ Whalum, 224 S.W.3d at 181 (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 one in which there is little prospect that it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995).
The appellate court in Lebel found the appeal frivolous and awarded fees. Id. at 8 – 9.
As a service to our readers, I am going to start collecting decisions that discuss frivolous appeals and add to this blog post as new decisions are released. The first decision was released on August 31, 2023).
Damages for Frivolous Appeal Granted
Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023) (appellant neglected to properly preserve record on directed verdict issues, thus waiving its argument that the trial court should have granted a directed verdict and that the evidence was insufficient to sustain the verdict).
Deloach v. Sahara Daycare Center, Inc., No. W2022-01695-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023) (business dispute; appellate failed to comply with Tenn. R. App. Pro. 27’s briefing requirements and the Rules of the Court of Appeals).
Damages for Frivolous Appeal Denied
Hutchins v. Cardinal Glass Industries, No. E2023-00587-SC-R3-WC (Tenn. Ct. App. Jan. 12, 2023) (worker’s compensation appeal).
University Place, S.E., LP v. Bosan, No. W2023-00790-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023) (memorandum opinion) (pro se plaintiff / appellant did not follow briefing requirements).
Kent v. Global Vision Baptist, Inc., No. M2023-00267-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023) (Plaintiff’s request for damages against defendant asserting claim under TPPA).
Nedomthottathil v. Thomas, No. M2020-00473-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2023) (memorandum opinion) (domestic relations litigation).
Lazaroff (Coons) v. Lazaroff, No. M2022-01004-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023) (domestic relations).
In Re Lieselotte H. Rogoish Revocable Living Trust, No. M2022-01464-COA-R3-CV (Tenn. Ct. App. Oct. 1`6, 2023) (trust litigation).
In Re Estate of Willie Seeber, No. E2022-01476-COA-R3-CV (Tenn. Ct. App. Sept 27, 2023) (estate dispute).
In Re Estate of Charles Leonard Welch, No. M2023-00118-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2023) (estate dispute).
