Tennessee Code Annotated § 27-1- 122 (2017) provides damages for a frivolous appeal:
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.
What makes an appeal frivolous? Here is standard as described in Young v. Barrow, 130 S.W.3d 59 (Tenn. Ct. App. 2003):
A frivolous appeal is one that is devoid of merit, or one that has no reasonable chance of succeeding. Thus, an appeal in which the reviewing court’s ability to address the issues raised is undermined by the appellant’s failure to provide an adequate record is deemed frivolous because it has no reasonable chance of succeeding.
Id. at 66-67 (citations omitted).
Here is a more expanded view from a more recent, albeit unreported, opinion of the Court of Appeals:
The frivolous appeal statute “must be interpreted and applied strictly so as not to discourage legitimate appeals.” “A frivolous appeal is one that is devoid of merit, or one that has no reasonable chance of succeeding.” “Imposing a penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of frivolity and should not be asserted lightly or granted unless clearly applicable—which is rare.” Nevertheless, “[s]uccessful litigants should not have to bear the expense and vexation of groundless appeals.” . In considering pro se filings … it is imperative that courts remain “mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.” Ultimately, “[t]he award of damages for the filing of a frivolous appeal lies within the sound discretion of this Court.”
Love v .McDowell, 202 WL 16646593, at *6 (Tenn. Ct. App. Nov. 3, 2022) (citations omitted).
The recent Court of Appeals opinion in Greger v. Greger, No. M2022-00558-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2023) provides an example of when a court will find an appeal to be frivolous. Here is an excerpt from the opinion where the Court found frivolous appeal sanctions appropriate:
In the case at bar, Father has waived two of his three issues by failing to present this Court with a Court of Appeals Rule 7 table and also by failing to make an offer of proof at trial concerning his excluded evidence. In addition, Father was unsuccessful regarding his sole remaining issue, which required him to demonstrate an abuse of discretion by the trial court. As such, we agree with Mother that this appeal is frivolous. See, e.g., Williams v. Williams, 286 S.W.3d 290, 298 (Tenn. Ct. App. 2008) (“[T]he issues raised by Husband on appeal are reviewed for an abuse of discretion, a notably high standard of review. Any objective review of these factors would cause a reasonable person to conclude that Husband’s appeal had ‘no reasonable chance of success.’”); Self v. Dawn, No. E2021-01130-COA-R3-CV, 2022 WL 17348893, at *11 (Tenn. Ct. App. Dec. 1, 2022) (deeming the appeal frivolous when the appellant, inter alia, failed to present a proper Rule 7 table); Terrazzano v. Terrazzano, No. M2019-00400-COA-R3- CV, 2019 WL 6320354, at *2 (Tenn. Ct. App. Nov. 26, 2019) (deeming the appeal frivolous when the appellant “failed to present this court with a record showing that she [was] entitled to any relief whatsoever”). We therefore grant Mother’s request for an award of reasonable attorney’s fees and costs incurred on appeal.
One way to be at significant risk to pay damages for frivolous appeal is the failure to provide a transcript or Tenn. R. App. P. 24 statement of the evidence.
While certainly not an automatic basis for finding an appeal to be frivolous, this court has on multiple occasions pointed to failure to file either a transcript or a Tennessee Rule of Appellate Procedure 24 statement of the evidence, when necessary to consider the appeal, in finding that an appeal had no reasonable chance of success and constituted a frivolous appeal. For example, in Young v. Barrow, this court, finding the pro se appellant’s appeal to be frivolous, observed that “an appeal in which the reviewing court’s ability to address the issues raised is undermined by the appellant’s failure to provide an adequate record is deemed frivolous because it has no reasonable chance of succeeding.” 130 S.W.3d at, 67. Similarly, in Williams v. Williams, an appellant provided a transcript of a pendente lite hearing before a divorce referee but did not provide a trial transcript while raising credibility-based challenges on appeal to the trial court’s ruling. 286 S.W.3d 290, 297 (Tenn. Ct. App. 2008). This court found the appeal to be frivolous noting that “[a]n appeal in which the appellate court’s ability to address the issues raised is undermined by the appellant’s failure to provide an adequate record may be deemed frivolous.” Id. See also, e.g., Clark v. Owens, No. M2018-01418-COA-R3-CV, 2019 WL 2051308, at *3 (Tenn. Ct. App. May 8, 2019) (“Because Appellant failed to provide this Court with a record that would allow us to review the trial court’s findings, we conclude that this appeal had no prospect of succeeding. Therefore, the appeal is frivolous ….”); Palmer v. McDonald, No. M2015-00321-COA-R3-CV, 2017 WL 2984248, at *3 (Tenn. Ct. App. July 13, 2017) (finding an appeal to be frivolous, in part, because of an “absence of a transcript or statement of the evidence”); Baine v. Woods, No. W2016-00583-COA-R3-JV, 2017 WL 2275802, at *3 (Tenn. Ct. App. May 24, 2017) (“We find this appeal to be frivolous…. An appeal has no reasonable chance of succeeding when our ‘ability to address the issues raised is undermined by the appellant’s failure to provide an adequate record.’ Such is the case here.” (quotations omitted.)); Johnson v. New Wave, LLC, No. M2014-02447-COA-R3-CV, 2015 WL 9594534, at *4 (Tenn. Ct. App. Dec. 30, 2015) (concluding, in part based on a failure to provide an adequate record, that the appeal was frivolous); Cremeens v. Cremeens, No. M2014-00152-COA-R3-CV, 2015 WL 1946165, at *5-6 (Tenn. Ct. App. Apr. 29, 2015) (determining that an appeal was frivolous where the arguments on appeal related to factual findings and the record provided was inadequate to allow consideration); Albertson v. Albertson, No. E2010-02647-COA-R3-CV, 2011 WL 4440064, at *1 (Tenn. Ct. App. Sept. 26, 2011) (noting that “[h]usband failed to provide this Court with a record which would allow us to review the Trial Court’s findings, [and concluding] we find that this appeal had no prospect of succeeding”); Gerakios v. Gerakios, No. M2009-01309-COA-R3-CV, 2010 WL 2612684, at *2-3 (Tenn. Ct. App. June 30, 2010) (determining an appeal was frivolous where appellant failed to provide an adequate record to allow consideration of the issues); Keisling v. Keisling, No. M2007-01102-COA-R3-CV, 2008 WL 1923105, at *3 (Tenn. Ct. App. May 1, 2008) (finding an appeal to be frivolous because the record contained neither a transcript nor statement of the evidence); In re M.L.D., 182 S.W.3d 890, 898 (Tenn. Ct. App. 2005) (considering the inadequacy of the record to support review, even in the context of a parental rights termination appeal, as part of finding the appeal to be frivolous); Couillard v. Couillard, No. E2001-01770-COA-R3-CV, 2002 WL 1446669, at *4 (Tenn. Ct. App. July 3, 2002) (determining an appeal was frivolous where the challenger “failed to take any steps to prepare an adequate record, either by transcript or a statement of the evidence”); Trusty v. Robinson, No. M2000-01590-COA-R3-CV, 2001 WL 96043, at *5 (Tenn. Ct. App. Feb. 6, 2001) (“We do not question the earnestness of [the appellants] or their lawyer in pressing this appeal…. However, because of the absence of an adequate record, we can reach no conclusion other than that there was never a reasonable chance that this appeal could succeed…. Accordingly, we find that this appeal is frivolous.”); Williams v. Williams, No. 01A01-9710-CV-00566, 1999 WL 93587, at *3-4 (Tenn. Ct. App. Feb. 25, 1999) (determining an appeal to be frivolous where a party failed to provide an adequate record to allow consideration of the issues raised); Mash v. Mash, No. 88-165-II, 1989 WL 22704, at *4 (Tenn. Ct. App. Mar. 15, 1989) (finding an appeal frivolous where the challenger failed to provide a record of the evidence presented that would enable consideration of where the preponderance of the evidence fell); Greer v. Greer, No. 86-267-II, 1987 WL 6026, at *1 (Tenn. Ct. App. Feb. 4, 1987) (finding the appeal to be frivolous because “neither a verbatim nor a narrative transcript of the evidence has been filed”).
Love v .McDowell, 202 WL 16646593, at *6, fn. 6 (Tenn. Ct. App. Nov. 3, 2022).
Likewise, deficiencies in briefing can lead to payment of the opponent’s attorney’s fees and expenses on appeal:
See, e.g., Cheatham v. Lampkin, No. M2021-00790-COA-R3-CV, 2022 WL 2525581, at *5 (Tenn. Ct. App. July 7, 2022) (concluding the appeal was frivolous in light of the significant deficiencies of the appellant’s briefing); Luker v. Luker, No. M2021-00758-COA-R3-CV, 2021 WL 6066802, at *6 (Tenn. Ct. App. Dec. 22, 2021) (same); Rummage v. Rummage, No. M2016-02356-COA-R3-CV, 2018 WL 2134018, at *5 (Tenn. Ct. App. May 9, 2018) (“[D]eficiencies in Father’s appellate brief coupled with Father’s reliance on documents and facts that are not contained in the appellate record lead us to conclude that Father’s appeal had no reasonable chance of success and that this is an appropriate case in which to award damages.”); Al-Athari v. Gamboa, No. M2016-01310-COA-R3-CV, 2017 WL 3208942, at *3 (Tenn. Ct. App. July 28, 2017) (concluding the appeal was frivolous, in part, based upon “the manifest deficiencies” in the briefing); Mora v. Vincent, No. E2016-00327-COA-R3-CV, 2017 WL 1372862, at *5 (Tenn. Ct. App. Apr. 13, 2017) (“Plaintiff’s brief on appeal is so severely deficient that this Court is unable to determine even what 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 [and is considered frivolous].”); Oakes v. Oakes, No. E2016-00274-COA-R3-CV, 2016 WL 7468198, at *3-4 (Tenn. Ct. App. Dec. 28, 2016) (concluding that an appeal was frivolous where a party’s briefing was extremely deficient); Murray, 457 S.W.3d at 404 (finding an appeal to be frivolous and noting that the pro se “Plaintiffs’ brief on appeal is so severely deficient that this Court is unable to determine even what issues Plaintiffs are attempting to raise on appeal. As such, Plaintiffs’ appeal is devoid of merit with little prospect that the appeal could ever succeed.”); Moore v. Youngquist, No. 01-A-01-9012CH00433, 1991 WL 57982, at *2 (Tenn. Ct. App. Apr. 19, 1991) (“The issues raised on this appeal are, at best, insubstantial…. The nature of the issues and the inadequacy of the appellant’s brief leads only to one conclusion—that this appeal is frivolous ….”).
Id. at p. 6, fn. 7.
To be sure, the imposition of damages for frivolous appeal rarely occurs. But it can and does happen, and therefore is something every lawyer should take into consideration before pursing an appeal.