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Young v. Barrow9/16/2003
29, 1997) (unpublished table decision). Accordingly, Mr. Young's equivocal statements and conditional response to the trial court did not provide effective notice of voluntary dismissal, and the trial court's decision to direct a verdict against him at the close of the plaintiffs' proof is a final decision on the merits.
V. Frivolous Appeal Damages Under Tenn. Code Ann. § 27-1-122 (2000)
Ms. Barrow and Harrison Brothers Insurance ask this court to award them attorney's fees on the ground that this appeal was frivolous. We have determined that they are entitled to damages for a frivolous appeal because Mr. Young apparently filed this appeal for the purpose of re-litigating claims that had already been finally resolved.
Parties should not be forced to bear the cost and vexation of baseless appeals. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). Accordingly, in 1975, the Tennessee General Assembly enacted Tenn. Code Ann. § 27-1-122 to enable appellate courts to award damages against parties whose appeals are frivolous or are brought solely for the purpose of delay. Determining whether to award these damages is a discretionary decision. Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn.1985).
A frivolous appeal is one that is devoid of merit, Combustion Eng'g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of succeeding. Davis v. Gulf Ins. Group, 546 S.W.2d at 586; Jackson v. Aldridge, 6 S.W.3d at 504; Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). 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. Brooks v. United Uniform Co., 682 S.W.2d 913, 915 (Tenn. 1984); McDonald v. Onoh, 772 S.W.2d at 914; Fields v. Fields, No. 86-131-II, 1987 WL 7332, *3 (Tenn. Ct. App. March 6, 1987) (No Tenn. R. App. P. 11 application filed).
Mr. Young's appeal, although it was nominally an appeal from a subsequent lawsuit, raised issues against Ms. Barrow solely related to a original trial that had concluded over four months prior to his notice of appeal. As to Harrison Brothers Insurance, Mr. Young offered no factual allegations in the trial court that would allow a court to conclude that he had stated a cause of action regarding the company's resolution of his insurance claim and he did no more than re-state his allegation to this court. He failed to create any possibility that he would prevail in this court. Accordingly, this appeal is frivolous, and Ms. Barrow and Harrison Brothers Insurance are entitled to the costs they incurred in defending against it.
VI.
Mr. Young also seeks to collaterally attack several of the trial court's decisions during the November 2000 trial even though he did not appeal from the judgment granting Ms. Barrow a directed verdict. These claims are now beyond our reach because Mr. Young failed to file a timely notice of appeal from the December 4, 2000 judgment.
Accordingly, we affirm the order granting Ms. Barrow's motion for summary judgment and Harrison Brothers Insurance's motion for a judgment on the pleadings and remand the case to the trial court for the assessment of damages in accordance with Tenn. Code Ann. § 27-1-122 and for whatever other proceedings may be required. We tax the costs of this appeal to Sylvester Young for which execution, if necessary, may issue.
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