Carl Lester Byrd, Jr. v. Appalachian Electric Cooperative ( 2018 )

04/25/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 16, 2018 Session
CARL LESTER BYRD, JR. v. APPALACHIAN
ELECTRIC COOPERATIVE
Appeal from the Circuit Court for Jefferson County
No. 24,369 Deborah C. Stevens, Judge1
No. E2017-01345-COA-R3-CV
The trial court dismissed the plaintiff’s claim of outrageous conduct/intentional infliction
of emotional distress filed against his employer because the plaintiff had previously filed
a workers’ compensation claim against the employer, seeking compensation for injuries
arising out of the same incident. The plaintiff has appealed the dismissal of his claim.
Discerning no reversible error, we affirm the trial court’s judgment of dismissal. We
decline Appalachian’s request for an award of attorney’s fees, determining that Mr.
Byrd’s appeal was not frivolous or taken solely for delay.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Carl Lester Byrd, Jr., New Market, Tennessee, Pro Se.
W. Stuart Scott, Nashville, Tennessee, for the appellee, Appalachian Electric
Cooperative.
OPINION
I. Factual and Procedural Background
The plaintiff, Carl Lester Byrd, Jr., filed a complaint on June 17, 2015, in the
Jefferson County Circuit Court (“trial court”), alleging that the defendant, Appalachian
Electric Cooperative (“Appalachian”) should be held liable for outrageous conduct and
1
Sitting by designation.
intentional infliction of emotional distress. Mr. Byrd asserted that he had been employed
by Appalachian since October 14, 1996. The incident giving rise to Mr. Byrd’s
complaint occurred on June 23, 2014.
In his complaint, Mr. Byrd alleged that when he reported to work on that date, he
was instructed to meet with Appalachian’s general manager, Gregory Williams. Upon
meeting with Mr. Williams and Leslie Strader, Director of Human Resources for
Appalachian, Mr. Byrd allegedly was asked about his recent marriage to Sherry Clifton,
who was related to another Appalachian employee. Mr. Williams informed Mr. Byrd that
his marriage violated Appalachian company policy and instructed Mr. Byrd that he
needed to resign or face immediate termination. Mr. Byrd claimed that he spent the next
three hours discussing the issue with Mr. Williams in the conference room and was
denied the opportunity to call his wife.
Mr. Byrd averred that after three hours of discussion, Mr. Williams spoke with
Appalachian’s attorney, who reviewed the policy and determined that there was no
violation. Mr. Byrd was then allowed to leave the conference room and return to work.
Mr. Byrd averred that because of this “interrogation” by Mr. Williams, Mr. Byrd
experienced chest pain, shortness of breath, anxiety, and other symptoms the following
day, which necessitated a visit to the emergency room. Mr. Byrd stated that he had since
been diagnosed with post-traumatic stress disorder and other maladies following this
event and that he had been told by his medical providers not to return to work.
Mr. Byrd claimed that the actions of Mr. Williams constituted outrageous conduct
and intentional infliction of emotional distress, which caused Mr. Byrd injury. Mr. Byrd
sought compensatory and punitive damages in the total amount of $2,000,000.
On August 24, 2015, Appalachian filed a “Special Motion to Dismiss,” contesting
the jurisdiction of the trial court. Appalachian asserted that Mr. Byrd had three claims
pending against Appalachian, including a workers’ compensation claim for injuries
allegedly arising from the same June 23, 2014 incident. Appalachian contended that
pursuant to Tennessee Code Annotated § 50-6-108, Mr. Byrd was barred from filing a
personal injury lawsuit based on the same injury claimed in his prior workers’
compensation action. Appalachian thus posited that workers’ compensation law provided
Mr. Byrd’s exclusive remedy for this alleged injury and that his tort action should be
dismissed.
On September 11, 2015, Judge Richard Vance entered an order recusing himself
from this matter. Subsequently, on October 20, 2015, Judge Ben Hooper entered an order
recusing all of the judges of the Fourth Judicial District. Thereafter, on November 9,
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2015, Justice Sharon Lee of the Tennessee Supreme Court entered an order designating
Judge Deborah Stevens to preside over this matter.
On March 29, 2017, the trial court, with Judge Stevens sitting by designation,
entered an order dismissing Mr. Byrd’s complaint. In this order, the trial court stated in
pertinent part:
The Plaintiff alleges that the meeting that gave rise to his claim
occurred “immediately upon his reporting to work on June 23, 2014” and
the actions occurred in the conference room of the General Manager. The
meeting occurred in the presence of the General Manager and the Director
of Human [Resources] of the Defendant. The Plaintiff alleges that the
meeting occurred because of an alleged workplace policy violation by
Plaintiff and, as a result, the General Manager was asking that he resign or
face termination.
Every employer and employee subject to the state’s Workers’
Compensation laws, shall pay and accept compensation for injuries arising
“primarily out of and in the course and scope of employment without
regard to fault as a cause of the injury . . .” Tenn. Code Ann. § 50-6-103.
An injury occurs in the course of employment, when it takes place within
the period of the employment, at a place where the employee reasonably
may be, and while the employee is fulfilling work duties or engaged in
doing something incidental thereto. Gooden v. Coors Technical Ceramic
Co., 236 S.W.3d 351 (Tenn. 2007).
While the determination of “in the course of employment” is
generally a factual issue, the facts of this case are such that no reasonable
minds could differ. The complaint states that Plaintiff had returned to work
on that day and the complaint states that he was on the premises of his
employer and he was in a workplace conference room for a meeting about
his alleged violation of the defendant’s workplace policy. While the
Plaintiff was not engaged in the actual performance of his job duties at the
time of the alleged incident, he was in a meeting incidental to his work
duties which would include following company policy. As such, it is clear
that the Plaintiff was in the course and scope of his employment and would
be subject to the workers’ compensation laws unless an exception applies.
The courts in Tennessee have created an exception to the exclusivity
rule for intentional torts committed by an employer. The “intent” necessary
to avoid the exclusivity provision is discussed at length in the case of
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Valencia v. Freeland and Lemm Const. Co., 108 S.W.3d 239 (Tenn. 2003).
In Valencia, an employee died in the course of his employment. The
employer had, on prior occasions, been cited for failure to comply with
safety regulations. The employee died while he was working in an open
construction trench that collapsed and buried the employee alive. The
employer was found to have violated safety regulations designed to ensure
that trenches would not collapse. Prior to the employee’s death, the
employer had been specifically cited for failure to comply with safety
regulations in the construction of trenches. In reviewing this case, the
Supreme Court found that the safety violations of the employer resulted in
the trench collapse, causing the death of the employee. The employee filed
both a tort claim and a workers’ compensation claim.
The employer in Valencia, filed a motion to dismiss based on the
exclusivity of Workers’ Compensation. The next of kin of the deceased
employee argued that the employer’s repeated violation of safety standards
was “substantially certain” to cause death. Valencia, 108 S.W.3d at 240.
The trial court found that the conduct was not proof of “actual intent” to
injure the employee. The case was appealed and the Court of Appeals
affirmed the trial court. When the case was appealed to the Supreme Court,
the Court chose to address the issue of “whether the judicially-created
exception to the exclusive remedy requirement, ‘actual intent’ should be
broadly interpreted to include an employer’s conduct that is ‘substantially
certain’ to cause injury or death.[”] Id. The Supreme Court concluded that
“proof of actual intent goes beyond that sufficient to prove gross negligence
or even criminal negligence.” Id. at 242-243. The Court found that
traditional tort law definitions of intent were not applicable to workers’
compensation. “[T]he definition of actual intent is the actual intent to
injure the employee.” Id. at 243. Finally, the Court concluded that it could
not extend the actual intent exception to conduct that made injuries
substantially certain. In the Valencia case, the Court found that the
amended complaint did not allege facts showing that the employer actually
intended to injure the employee and therefore the trial court properly
dismissed the action. Id.
This Court has carefully reviewed the complaint filed by the Plaintiff
in this matter. Plaintiff alleges that as a “direct and proximate result of the
three-hour interrogation regarding the Plaintiff’s employment status,
Plaintiff has developed a serious mental injury . . .” Plaintiff further alleges
that AEC, through the actions of its general manager and director of human
resources, engaged in conduct that was “intentional and reckless and that
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such conduct was so outrageous that it cannot be tolerated by civilized
society.” The allegations in the subject complaint are grounded in the
traditional definition of tort law for a claim of intentional infliction of
emotional distress/outrageous conduct or a claim for punitive damages.
Nowhere in the complaint does the Plaintiff assert facts that the employer
acted with actual intent to cause him injury sufficient to remove this case
from the exclusive remedy provision for workers’ compensation within the
guidelines set forth in Valencia. While Rule 8 of the Tennessee Rules of
Civil Procedure allows for a liberal pleading standard, the complaint must
state actual facts to support the claim. Courts are not required to accept
“legal conclusions” couched as facts. Riggs v. Burson, 941 S.W.2d 44, 47-
48 (Tenn. 1997). As such, the motion to dismiss should be granted.
(Internal citations to record omitted.) Thereafter, because neither party received notice of
entry of the March 29, 2017 order, the trial court entered an agreed order amending the
dismissal order’s date of entry to June 7, 2017. Mr. Byrd timely filed a notice of appeal.
II. Issues Presented
Although Mr. Byrd’s appellate brief does not contain a statement of the issues, he
clearly takes issue with the trial court’s dismissal of his tort claim.2 Appalachian has
presented three issues for our review, which we have restated slightly:
1. Whether the trial court erred by granting Appalachian’s motion to
dismiss.
2. Whether Mr. Byrd has unfairly utilized his pro se status in this
matter.
2
On appeal, Mr. Byrd has filed a principal brief, consisting in part of a narrative-style “Statement of the
Case” and “Statement of Facts,” with neither section containing any citations to the appellate record. Mr.
Byrd’s brief also contains a “Summary of Argument,” which essentially sets forth another recitation of
the facts and includes arguments that are conclusory and unsupported by legal authority. Mr. Byrd’s brief
contains no statement of issues, table of contents, table of authorities, or any other sections required by
Tennessee Rule of Appellate Procedure 27 or Tennessee Court of Appeals Rule 6. “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.” Bean v.
Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000), perm. app. denied (Tenn. Feb. 26, 2001). However, this
Court can make the determination to suspend the requirements of the rules in a given case. Id. at 54. We
therefore determine that the rules should be suspended in this matter so that we may address the merits of
this appeal.
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3. Whether Mr. Byrd’s appeal is frivolous such that Appalachian
should be entitled to attorney’s fees on appeal.
III. Standard of Review
When reviewing the trial court’s dismissal of a complaint pursuant to Tennessee
Rule of Civil Procedure 12, we must consider only the legal sufficiency of the complaint.
See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). As our
Supreme Court has explained:
A Rule 12.02(6) motion to dismiss only seeks to determine whether
the pleadings state a claim upon which relief can be granted. Such a
motion challenges the legal sufficiency of the complaint, not the strength of
the plaintiff’s proof, and, therefore, matters outside the pleadings should
not be considered in deciding whether to grant the motion. In reviewing a
motion to dismiss, the appellate court must construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the
benefit of all reasonable inferences. It is well-settled that a complaint
should not be dismissed for failure to state a claim unless it appears that the
plaintiff can prove no set of facts in support of his or her claim that would
warrant relief. Great specificity in the pleadings is ordinarily not required
to survive a motion to dismiss; it is enough that the complaint set forth “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.
2000) (citing Tenn. R. Civ. P. 8.01).
Id. (other internal citations omitted).
In reviewing pleadings, we “must give effect to the substance, rather than the form
or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.
2010)). We note also that pleadings “prepared by pro se litigants untrained in the law
should be measured by less stringent standards than those applied to pleadings prepared
by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568
(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young
v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit
of counsel are “entitled to fair and equal treatment by the courts,” but we “must not
excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” See Hessmer v. Hessmer, 138 S.W.3d
901, 903 (Tenn. Ct. App. 2003).
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IV. Propriety of Dismissal
On appeal, Mr. Byrd takes issue with the trial court’s dismissal of his claim
pursuant to Tennessee Rule of Civil Procedure 12. Appalachian contends that the
dismissal was proper based on the exclusivity provision contained within the workers’
compensation statutory scheme, which is codified at Tennessee Code Annotated § 50-6-
108(a) (2014). This statute provides in pertinent part:
The rights and remedies granted to an employee subject to this chapter, on
account of personal injury or death by accident, including a minor whether
lawfully or unlawfully employed, shall exclude all other rights and
remedies of the employee, the employee’s personal representative,
dependents or next of kin, at common law or otherwise, on account of the
injury or death.
Our Supreme Court has interpreted this statutory section as mandating that
workers’ compensation be considered “the exclusive remedy for an employee who is
injured during the course and scope of his employment, meaning the employee is
precluded from seeking tort damages for the injury.” See Valencia v. Freeland & Lemm
Constr. Co., 108 S.W.3d 239, 242 (Tenn. 2003) (citing Liberty Mut. Ins. Co. v.
Stevenson, 368 S.W.2d 760 (1963)). The High Court recognized, however, that an
exception to this rule exists when the employer commits an intentional tort against the
employee. See Valencia, 108 S.W.3d at 242; see also Rodgers v. GCA Servs. Grp., Inc.,
No. W2012-01173-COA-R3-CV, 2013 WL 543828, at *4 (Tenn. Ct. App. Feb. 13, 2013)
(reiterating that workers’ compensation law is the exclusive remedy for an employee
injured during the course and scope of her employment unless the employee can show
that the employer intended to actually injure her). “The theoretical basis for this
exception is that the employer cannot allege an accident when he has intentionally
committed the act.” Rodgers, 2013 WL 543828, at *4.
In order for the exception to apply, the employee must be able to prove that the
employer acted with “actual intent” to injure the employee. See Valencia, 108 S.W.3d at
242. As this Court has further explained:
Cases applying the “actual intent” requirement illustrate that this is a
“narrow exception” to the exclusive remedy provision of the workers’
compensation act. Coltraine v. Fluor Daniel Facility Servs. Co., No.
01A01-9309-CV-00419, 1994 WL 279964, at *2 (Tenn. Ct. App. W.S. Jun.
22, 1994). Our Supreme Court was asked to expand the scope of the
exception, to include a broader definition of “actual intent,” in Valencia v.
Freeland & Lemm Constr. Co., 108 S.W.3d 239, 240 (Tenn. 2003). In that
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case, a construction worker was working in an open construction trench,
which collapsed and buried him alive, causing his death. Id. at 241. Safety
regulations required that companies using construction trenches either slope
the sides of the trenches or use “trench-boxes” to ensure that the trenches
did not collapse, but this employer did neither, although trench boxes were
available and on-site. The employer had been cited twice for violating
these regulations before the accident at issue, but in spite of the citations, it
continued to construct trenches that were neither sloped nor reinforced.
The employer also failed to provide a stairway, ladder, ramp or other safe
means of egress from the trench, which was another violation of safety
standards. The collapse that killed the worker was “likely” a result of these
safety violations. The worker’s next of kin filed a tort suit against the
employer, asserting claims for intentional misrepresentation, negligence,
strict liability, wrongful death and assault. The complaint alleged that the
employer “acted with the ‘actual intent’ to injure [the worker].” Id.
Nevertheless, the trial court granted the employer’s motion to dismiss the
tort claims, finding that although the complaint “indicated that the
employer’s conduct was ‘substantially certain’ to cause death, . . . the
employer’s conduct was not indicative of an ‘actual intent’ to injure [the
worker].” Id. On appeal to the Supreme Court, the plaintiffs argued that
“actual intent” should be broadly interpreted to include an employer’s
conduct that was “substantially certain” to cause injury or death, but the
Court disagreed. The Court explained the reason for the “seemingly strict”
rule requiring “actual intent” to injure:
The Workers’ Compensation Law takes away from the
employee his common law rights and gives him others, on the
guarantee that these substituted rights shall be generously
awarded, both for foregoing his common law rights and in
consideration of the obligations of his employer to keep his
employee from becoming a public charge. The legislature
has made the rights of the employee and the employer the
exclusive remedy. Those who accept benefits under an act of
this kind must likewise take the burdens.
Id. at 243 (quoting King [v. Ross Coal Co., Inc.,] 684 S.W.2d [617,] 619
[(Tenn. Ct. App. 1984)]) (citations omitted). The Court also explained the
parameters of the “actual intent” requirement and the Court’s reasons for
rejecting the broad interpretation suggested by Plaintiffs:
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The court in Mize explained the reason for this exception as:
Since the legal justification for the common-law
action is the nonaccidental character of the
injury from the defendant employer’s
standpoint, the common law liability of the
employer cannot be stretched to include
accidental injuries caused by the gross, wanton,
wilful, deliberate, intentional, reckless,
culpable, or malicious negligence, breach of
statute, or other misconduct of the employer
short of general intentional injury . . . . Even if
the alleged conduct goes beyond aggravated
negligence, and includes such elements as
knowingly permitting a hazardous work
condition to exist, knowingly ordering claimant
to perform an extremely dangerous job, wilfully
and unlawfully violating a safety statute, this
still falls short of the kind of actual intention to
injure that robs the injury of accidental
character. [King,] 684 S.W.2d at 619.
Mize [v. Conagra, Inc.], 734 S.W.2d [334,] 336 [(Tenn. Ct.
App. 1987)] (alteration in original). Further, proof of actual
intent goes beyond that sufficient to prove gross negligence or
even criminal negligence. Gonzales v. Alman Constr.
Co., 857 S.W.2d 42, 45 (Tenn. Ct. App. 1993)[.]
Plaintiff contends that public policy requires us to hold
that when an employer acts in a manner substantially certain
to cause death or injury it acts intentionally and such action
falls within the intentional tort exception. While the
traditional definition of intent used in tort law denotes the
tortfeasor’s desire to cause the consequences of his or her
actions or the belief that the consequences are substantially
certain to result from those actions, Hodges v. S.C. Toof &
Co., 833 S.W.2d 896, 901 (Tenn. 1992), that definition is not
applicable in workers’ compensation cases. Gonzales, 857
S.W.2d at 45. Rather, the definition of actual intent is the
actual intent to injure the employee. King, 684 S.W.2d at
619.
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....
We would radically depart from precedent were we to hold
that an employer is exposed to tort liability if its conduct
made injury substantially certain. This we cannot do. The
statute at issue here, as judicially interpreted, mandates that
the Workers’ Compensation Law provides the exclusive
remedies for all injuries occurring to an employee by way of
accident during the course of and in the scope of employment,
unless “actual intent” is alleged. This is the majority rule.
See 6 Larson’s Workers’ Compensation Law § 103.03 (2001).
Id. at 242-243. The Valencia Court ultimately held that “workers’
compensation is an employee’s exclusive remedy unless the employee can
show that the employer actually intended to injure the employee. Proof of
gross or criminal negligence is insufficient in this regard.” Id. at 243.
Applying these principles to the complaint filed on behalf of the deceased
construction worker, the Court held that the trial court properly granted the
employer’s motion to dismiss, despite the fact that the complaint alleged
that the employer “acted with the ‘actual intent’ to injure [the worker],”
because, according to the Court, “the amended complaint [did] not allege
facts showing that the employer actually intended to injure the employee.”
Id. (emphasis added).
Rodgers, 2013 WL 543828, at *4-6 (footnote omitted). In Rodgers, the plaintiffs alleged
that the decedent had been intentionally and recklessly exposed to harmful mold by her
employer, resulting in her death. See id. at *6. This Court affirmed the trial court’s
dismissal of the claim based on the exclusivity of the decedent’s workers’ compensation
remedy, determining that the plaintiffs had failed to allege facts demonstrating an actual
intent of the employer to injure the decedent employee. See id. at *9.
This Court further examined the issue of “actual intent” in John Doe v. Walgreens
Co., No. W2009-02235-COA-R3-CV, 2010 WL 4823212, at *9 (Tenn. Ct. App. Nov. 24,
2010), wherein the plaintiff employee alleged that she was injured when other employees
accessed her prescription history in the company database without any medical or legal
justification and were able to confirm her non-disclosed, HIV-positive status therefrom.
Those employees then discussed the plaintiff’s medical status with other employees and
with the plaintiff’s fiancé. This Court analyzed these facts pursuant to the “actual intent”
test from Valencia, stating:
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Appellees argue that the Does’ Complaint fails to specify that Appellees’
actual intent was to injure Ms. Doe. We note that at no point in their
Complaint, do the Does allege that the injuries occurred “by accident.”
Tenn. Code Ann. § 50-6-102(12). Rather, the Complaint clearly avers that
the injury (i.e., the dissemination of Ms. Doe’s HIV status, and the direct
fallout therefrom) occurred as a result of Ms. Ghoston “deliberately
access[ing] Walgreens’ database,” and as a result of Dr. Saxton’s telephone
call to Ms. Doe’s fiancé. The Does aver that both of these actions were
made “without medical or legal justification, and without [] being job
related or a business necessity.” As noted above, in reviewing a trial
court’s ruling on a motion to dismiss based on Rule 12.02(6), we must
liberally construe the pleadings, presuming all factual allegations are true
and drawing all reasonable inferences in favor of the complainant. See Tigg
[v. Pirelli Tire Corp.], 232 S.W.3d [28,] 31 [(Tenn. 2007)]; see
also Kincaid v. South Trust Bank, 221 S.W.3d 32, 37 (Tenn. Ct. App.
2006). Based upon the foregoing factual allegations, we can reasonably
infer that the alleged injuries arose from the deliberate acts of Dr. Saxton
and Ms. Ghoston and not as a result of any accidental discovery or
dissemination of Ms. Doe’s prescription records. Further, because these
deliberate acts lacked any medical, legal, business, or job related
justification, it is reasonable to infer that they were made with the actual
intent to injure the Appellants.
John Doe, 2010 WL 4823212, at *9. Therefore, in John Doe, actual intent to injure was
inferred from the nature of the co-employee’s acts and the lack of justification for same.
Id. This Court ultimately concluded, however, that the plaintiff’s injuries arose because
she was a customer of Walgreen’s rather than in the course of her employment at
Walgreen’s, such that the workers’ compensation statutes would not apply. Id. at *11.
In the case at bar, Mr. Byrd generally alleged that Appalachian’s agents engaged
in “intentional and reckless” conduct with regard to certain actions taken on the date in
question, but he did not allege facts showing that these agents actually intended that he be
injured by their actions. See Valencia, 108 S.W.3d at 243. Moreover, according to Mr.
Byrd’s complaint, the actions taken by his supervisors were related to an alleged violation
of company policy, establishing that the agents possessed a business- or job-related
justification for their actions. As such, it would be inappropriate to infer actual intent to
injure in this situation. See, e.g., John Doe, 2010 WL 4823212, at *9. We therefore
affirm the trial court’s dismissal of Mr. Byrd’s claims based on the exclusivity of his
workers’ compensation remedy.
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V. Mr. Byrd’s Pro Se Status
Appalachian asserts that Mr. Byrd has “improperly tried to manipulate the court
system” in order to attack Appalachian. Appalachian further argues that Mr. Byrd’s
baseless claims should not be excused by his pro se status. Appalachian appears to
utilize this argument as a segue into its next issue regarding frivolous appeal. We will,
therefore, address this issue in the following section.
VI. Frivolous Appeal
Appalachian asserts that this appeal is frivolous because the law regarding
workers’ compensation is well settled and Mr. Byrd maintains no reasonable chance of
success in this Court. Appalachian thus contends that this Court should award damages
to it pursuant to Tennessee Code Annotated § 27-1-122 (2017), 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.
We recognize that Mr. Byrd is a pro se litigant and respect his decision to proceed
self-represented. With regard to self-represented litigants, this Court has explained that
“[p]ro se litigants who invoke the complex and sometimes technical procedures of the
courts assume a very heavy burden.” Irvin v. City of Clarksville, 767 S.W.2d 649, 652
(Tenn. Ct. App. 1988), perm. app. denied (Tenn. Jan. 3, 1989). Having thoroughly
reviewed Mr. Byrd’s pleadings and the law applicable to this matter, we determine that
this appeal was not frivolous or taken solely for delay. We therefore decline to award
attorney’s fees to Appalachian.
VII. Conclusion
For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Byrd’s
claim. We decline to award attorney’s fees to Appalachian. This case is remanded to the
trial court for collection of costs assessed below. Costs on appeal are assessed to the
appellant, Carl Lester Byrd, Jr.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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