State of Tennessee v. Delinquent Taxpayers of Benton County, Tennessee ( 2022 )

12/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 13, 2022 Session
STATE OF TENNESSEE v. DELINQUENT TAXPAYERS OF BENTON
COUNTY TENNESSEE
Appeal from the Chancery Court for Benton County
No. 3575 Vicki Hodge Hoover, Chancellor
___________________________________
No. W2021-01050-COA-R3-CV
___________________________________
After a delinquent tax sale of land owned by a limited liability corporation, the managing
member filed a motion to redeem the property pro se, signing only his own name. The trial
court deemed admitted requests for admission propounded on purported redeemer
individually after only the entity responded. Relying in part on the admissions, the trial
court granted the tax sale purchaser’s motion to strike the attempt at redemption for lack
of standing. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.
Charles L. Hicks, Camden, Tennessee, for the appellant, Tennessee Properties, LLC and
Marty McInnis.
George Robert Whitfield, Paris, Tennessee, for the appellee, Misty Nesbitt.
OPINION
I. FACTS AND PROCEDURAL HISTORY
The central issue of this case involves the capacity in which documents were filed
and thus, the identities of the actual parties. We have therefore strived, in the recitation of
the history of this case, to be especially clear about both the content and the form of the
pleadings, which will inform our later discussion of the merits of this appeal.
On March 12, 2018, the Benton County Chancery Court (“the trial court”) entered
an order for the sale of certain property after a series of default judgments for delinquent
taxes were not satisfied. An identical order of sale was entered by the trial court on August
27, 2019. A report of sale was then entered on December 2, 2019, listing the final bidder
and bid amount for each parcel sold. The report included the final bids by Misty Nesbitt
(“Purchaser”) on two parcels owned prior to the sale by Tennessee Properties, LLC
(“Tennessee Properties” or “the LLC”). The report was then confirmed by the trial court’s
order of December 3, 2019, divesting the rights, title, and interest of the prior owners of
the property and vesting the same in the respective purchasers of each parcel.
On November 30, 2020, a form motion to redeem was filed. The motion listed the
property owner at the time of the sale as “Tennessee Property LLC/Marty McInnis,”
indicated that the signer was “the taxpayer and/or the owner of a legal interest in said
property[,]” and was signed “Marty McInnis[.]” A notice of the motion to redeem was
mailed to Purchaser on December 4, 2020. Purchaser filed her response to the motion to
redeem on December 29, 2020, alleging that Mr. McInnis lacked standing to redeem the
parcels and requesting attorney’s fees for responding to the motion. Purchaser also filed a
notice of forwarding discovery requests, including interrogatories, requests for production,
and requests for admission, to Mr. McInnis on December 29, 2020.
A reply to Purchaser’s response to the motion to redeem was filed on January 21,
2021, by “Marty McInnis, as owner of Tennessee Properties, LLC, as manager of
Tennessee Properties LLC, and as agent on behalf of Tennessee Properties LLC[.]”
Throughout the reply, Tennessee Properties and Mr. McInnis were referred to collectively
as the redeemer, though primarily singular pronouns were used. It appears that Mr. McInnis
retained an attorney by this point, as the reply had a signature line for counsel as well as
“Tennessee Properties LLC/Marty McInnis Owner, Agent, Manager of Tennessee
Properties LLC[.]”
Purchaser filed a motion to deem admitted the requests for admission and to recover
attorney’s fees for the failure to admit on February 8, 2021. Because the interrogatories
and requests for admission and production had been propounded on Mr. McInnis in his
individual capacity and identified him individually as the intended responding party, but
“Tennessee Properties, LLC/Marty McInnis, owner, managing member and agent” actually
responded, Purchaser argued that the discovery requests were not properly answered.
Concurrently with her motion to deem the discovery requests admitted, Purchaser
filed a motion to strike the motion to redeem. Purchaser alleged that Mr. McInnis was not
a party to the tax sale lawsuit and the motion to redeem should be stricken or denied for a
failure to state a claim upon which relief may be granted.
A response to Purchaser’s motion to deem the discovery requests admitted was filed
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on February 9, 2021. Therein, “Tennessee Properties LLC and Marty McInnis, as agent of
Tennessee Properties LLC, manager of Tennessee Properties, LLC and as owner of
Tennessee Properties, LLC” denied that Purchaser was entitled to any relief. The response
alleged that “Marty McInnis filed [the motion to redeem] as representative of Tennessee
Properties LLC, manager of Tennessee Properties LLC and as owner,” and “Marty McInnis
responded [to the requests for admission] on behalf of Tennessee Properties LLC/Marty
McInnis owner, managing member and agent.”
The cause was heard on August 9, 2021. Purchaser called Ms. Hickman, a paralegal
who was qualified by the court as an expert abstracter over opposing counsel’s objection,
to testify regarding the results of her searches of the public record for a connection between
Tennessee Properties, Mr. McInnis, and the parcels. Purchaser objected to the introduction
of the LLC’s operating agreement, as it had been requested during discovery but not
provided. Counsel for Tennessee Properties and Mr. McInnis had the agreement included
in the record as an offer of proof. After hearing from all parties, the trial court orally granted
Purchaser’s motion to strike the motion to redeem and found, in the alternative, that Mr.
McInnis was not an interested person in relation to the parcels.
In an “omnibus” order entered August 18, 2021, the trial court found that the owner
of record prior to the tax sale was Tennessee Properties but the motion to redeem was
signed by Mr. McInnis individually without indication that he was acting in any
representative capacity for the LLC. The trial court noted that the parties stipulated that
Mr. McInnis filed the motion to redeem pro se and that Mr. McInnis is not a licensed
attorney. The trial court also found that because Mr. McInnis did not individually respond
to the discovery requests propounded on him as an individual, pursuant to Tennessee Rule
of Civil Procedure 36.01, he was deemed to have admitted each request for admission,
including:
Admit that you were not an “interested person” with respect to the Parcels as
of November 25, 2019 (the date they were sold in the tax sale) or December
2, 2019 (the date the Order Confirming Sale was entered) or November 30,
2020 (the date your Motion to Redeem was filed).
Admit that you are not licensed to practice law in the State of Tennessee.
Admit that your Motion to Redeem was filed by you individually (not in a
representative capacity).
(Internal footnotes defining terms omitted).
Based on the matters deemed admitted and, alternatively, all the proof presented,
the trial court found that Mr. McInnis as an individual was not an interested person within
the meaning of the redemption statute. The trial court also found that the motion to redeem
had been filed by Mr. McInnis individually, not in a representative capacity for Tennessee
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Properties. The testimony by Ms. Hickman that the public records did not indicate Mr.
McInnis was an interested person was found to be credible. The trial court also noted that,
despite bearing the burden of proof, Mr. McInnis did not provide any evidence establishing
his position as an interested person beyond the indication on various public records that he
was to receive the tax notices concerning the parcels. Considering all of the above, the trial
court held that Mr. McInnis was not an interested person and did not have standing, and
that therefore, the motion to redeem should be stricken or alternatively denied. Purchaser
was awarded $2,000.00 in reasonable attorney’s fees for proving the matters within the
requests for admission, or alternatively as sanctions for Mr. McInnis’s failure to respond
to the discovery requests individually.
On August 24, 2021, “Marty McInnis, as agent, manager and owner of Tennessee
Properties, LLC” filed a motion to alter or amend the judgment pursuant to Tennessee Rule
of Civil Procedure 60.02. Then on August 27, 2021, a motion for specific findings of fact
and conclusions of law pursuant to Rule 52 of the Tennessee Rules of Civil Procedure was
filed by “Tennessee Properties, LLC, by Marty McInnis, as agent, manager and part owner
of Tennessee Properties, LLC[.]”
On September 7, 2021, the trial court sent counsel for Tennessee Properties and Mr.
McInnis and counsel for Purchaser a letter outlining the procedural history, findings of fact,
and conclusions of law in the case. The trial court reiterated its findings that “even
notwithstanding those Requests for Admission, the Court has determined that Mr. McInnis
did not have standing for the reason stated hereinabove, that he lacked standing, both as
owner of the property and in not having capacity to represent the LLC as its attorney at law
agent.” Attorney’s fees were awarded to the State of Tennessee as plaintiff and as
prevailing party because the trial court found that Mr. McInnis “acted in bad faith or for
fraudulent purposes in attempting to redeem the property in his own name and/or
purportedly on behalf of the LLC, as owner or as attorney for the LLC.”
A notice of appeal of the August 18, 2021 order was filed on September 16, 2021,
by “Tennessee Properties, LLC, by Marty McInnis, as agent, manager and part owner of
Tennessee Properties, LLC[.]” The trial court then entered an order disposing of the post-
judgment motions on November 18, 2021. The order adopted the September 7, 2021 letter
ruling as supplementing the findings of fact and conclusions of law in the omnibus order
of August 18, 2021 and disposed of the motions under Tennessee Rules of Civil Procedure
60.02 and 52 without granting any additional relief. An amended notice of appeal
referencing the November 18 order was filed by “Tennessee Properties, LLC, by Marty
McInnis, as agent, manager and part owner of Tennessee Properties, LLC” on December
20, 2021. As such, we will refer to “Tennessee Properties, LLC, by Marty McInnis, as
agent, manager and part owner of Tennessee Properties, LLC” as “Appellant” for the
remainder of this Opinion.
II. ISSUES PRESENTED
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Appellant raised the following issues on appeal, which are restated from its brief:
1. Whether the trial court erred in finding that Marty McInnis was not an interested
person or otherwise lacked standing to redeem the parcels sold at the delinquent tax
sale, such that the motion to redeem was denied.
2. Whether the trial court erred in deeming admitted Purchaser’s requests for
admission and awarding Purchaser her attorney’s fees in relation to the requests for
admission.
3. Whether the trial court erred in excluding from evidence the operating agreement of
Tennessee Properties.
4. Whether the trial court erred in qualifying Ms. Hickman as an expert witness.
Purchaser raises the following additional issues, again restated from her brief:
1. Whether Appellant effectively appealed the August 18, 2021 omnibus order or the
November 18, 2021 order.
2. Whether Appellant waived all issues due to failure include appropriate references
to the record, citation to authorities, or argument.
3. Whether this appeal is frivolous under Tennessee Code Annotated section 27-1-122,
entitling Purchaser to her reasonable attorney’s fees.
III. STANDARD OF REVIEW
This Court has previously explained our standard of review in the context of a
delinquent tax redemption proceeding:
In actions tried upon the facts without a jury, appellate courts review the trial
court’s findings de novo upon the record, accompanied by a presumption of
the correctness unless the preponderance of the evidence is otherwise. Kelly
v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Tenn. R. App. P. 13(d)).
Our review of a trial court’s determinations on issues of law is de novo, with
no presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d
889, 895 (Tenn. 2011).
State v. Delinquent Taxpayers 2015, No. W2020-00981-COA-R3-CV, 2021 WL
3046970, at *1 (Tenn. Ct. App. July 20, 2021), appeal dismissed (Oct. 15, 2021).
IV. ANALYSIS
A.
We first address Purchaser’s argument regarding Appellant’s notice of appeal. The
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Tennessee Rules of Appellate Procedure require, inter alia, that a notice of appeal
“designate the judgment from which relief is sought.” Tenn. R. App. P. 3(f). Appellant’s
first notice of appeal referenced the August 18, 2021 omnibus order. The trial court then
disposed of the post-judgment motions by final order of November 18, 2021. Appellant
filed an amended notice of appeal on December 16, 2021, identifying only the November
18 order as the basis of the appeal. Purchaser argues that by doing so Appellant effectively
abandoned its appeal of the August 18, 2021 order.
It is true that this Court has at times strictly applied Rule 3 and refused to consider
on appeal issues resolved in orders other than the one specified in the notice of appeal. See
e.g., Howse v. Campbell, No. M1999-01580-COA-R3-CV, 2001 WL 459106 (Tenn. Ct.
App. May 2, 2001) (limiting scope of review to only those issues relating to first motion to
dismiss when appellant failed to file second notice of appeal after the trial court
subsequently granted second motion to dismiss). However, another more recent line of
cases focuses on the notice function Rule 3 is meant to serve when considering the scope
of review. Frogge v. Joseph, No. M2020-01422-COA-R3-CV, 2022 WL 2197509, *9
(Tenn. Ct. App. June 20, 2022) (determining that earlier notices of appeal “served their
purpose of sufficiently informing” the appellees of the appellants’ intent to appeal the trial
court’s final judgment despite a subsequent final order); Cox v. Tenn. Farmers Mut. Ins.
Co., 297 S.W.3d 237, 243 (Tenn. Ct. App. 2009) (rejecting the argument that Rule 3(f)
should be narrowly construed); Consol. Waste Sys., LLC v. Metro. Gov’t of Nashville &
Davidson Cnty., No. M2002-02582-COA-R3-CV, 2005 WL 1541860, *45 (Tenn. Ct. App.
June 30, 2005) (relying on “the clear preference [] for liberality in interpreting a notice of
appeal and the scope of appeal” to allow the appellant to “raise any issue resulting from
the trial court’s final judgment”).
This second reading finds support in the Advisory Committee Comment to Rule 31
as well as in Rule 13(a).2 See In re NHC–Nashville Fire Litig., 293 S.W.3d 547, 560
(Tenn. Ct. App. 2008) (“We accord great deference to the advisory commission comments
to the effect that Rule 3(f) is not intended to limit the scope of review so long as the notice
1
The Advisory Committee Comment to Rule 3(f) states in pertinent part:
The purpose of the notice of appeal is simply to declare in a formal way an intention to
appeal. As long as this purpose is met, it is irrelevant that the paper filed is deficient in
some other respect. Similarly, the notice of appeal plays no part in defining the scope of
appellate review.
2
Rule 13(a) provides that “[e]xcept as otherwise provided in Rule 3(e), any question of law may
be brought up for review and relief by any party.” The Advisory Committee Comment to that subdivision
“rejects use of the notice of appeal as a review-limiting device[,]” and further explains that:
Some courts have limited the questions an appellant may urge on review to those affecting
the portion of the judgment specified in the notice of appeal. However, since the principal
utility of the notice of appeal is simply to indicate a party’s intention to take an appeal, this
limitation seems undesirable.
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of appeal informs the appellee that the appellant intends to seek further review of the trial
court’s judgment.”). A notice of appeal is meant to serve as notice of the appealing party’s
broader intent to “seek further review of the trial court’s judgment.” Frogge, 2022 WL
2197509 at *19. It does not define the scope of appellate review. See Tenn. R. App. P. 3(f)
cmt.; In re Caleb F., No. M2016-01584-COA-R3-JV, 2017 WL 5712992, at *4 (Tenn. Ct.
App. Nov. 28, 2017) (“The notice of appeal is not a review-limiting device.” (quotation
omitted)); Ray v. Ray, No. M2013-01828-COA-R3-CV, 2014 WL 5481122, at *10 n.9
(Tenn. Ct. App. Oct. 28, 2014) (explaining that the notice of appeal “plays no part in
defining the scope of appellate review” and “is not a review-limiting device” so when “any
party files a notice of appeal the appellate court may consider the case as a whole”
(quotations omitted)).
Here, although the amended notice of appeal only references the November 18 final
order, we cannot conclude that Purchaser was not sufficiently notified of Appellant’s intent
to seek further review of the trial court’s judgment. Moreover, the November 18, 2021
order specifically adopts the findings of fact and conclusions of law within the September
7 letter ruling as supplemental and “in addition to” those in the August 18 omnibus order.
See Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL 2405130, *16 (Tenn.
Ct. App. Aug. 23, 2007) (“First, of course, an appeal from a final judgment brings up all
pre-judgment orders or decisions, and any question of law or fact may be considered.
Second, where there is both a final judgment as well as an order on a motion to alter or
amend, . . . issues raised in either or both orders may be considered regardless of which
may be designated in a timely notice of appeal.” (citations omitted)). Thus, we reject
Purchaser’s argument that our review is limited to the trial court’s disposal of Appellant’s
motion to alter or amend.
B.
Our discussion turns now to the crux of the issue on appeal, namely whether the
attempt to redeem the parcels was done by a party with proper standing. We begin with the
redemption statute. Tennessee Code Annotated section 67-5-2701 vests the right to redeem
a parcel sold at a tax sale “in all interested persons.” An “interested person” is defined as:
a person, including any governmental entity, that owns an interest in a parcel
and includes a person, including any governmental entity, that holds a lien
against a parcel or is the assignee of a holder of such a lien. “Interested
person” also includes a person or entity named as nominee or agent of the
owner of the obligation that is secured by the deed or a deed of trust and that
is identifiable from information provided in the deed or a deed of trust, which
shall include a mailing address or post office box of the nominee or agent.
Tenn. Code Ann. § 67-5-2502. Redemption is an exclusively statutory right, to be claimed
only “in the cases and under the circumstances prescribed[,]” without exception. Madison
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Cnty. v. Delinquent Taxpayers for 2012, 570 S.W.3d 223, 227 (Tenn. Ct. App. 2018)
(quoting Keely v. Sanders, 99 U.S. 441, 445–46, 25 L. Ed. 327 (1878)). As such, to have
standing to redeem a tax sale parcel, the purported redeemer must fall within this definition
of “interested person.” There are thus two questions before us: (1) by which party was the
motion to redeem filed; and (2) did that party meet the definition of “interested person.”
Despite Mr. McInnis’s testimony regarding his intent to sign the motion to redeem
as a representative of the LLC, and his belief that he had done so, the trial court found that
Mr. McInnis filed the motion to redeem in his individual capacity, and that, individually,
he was not an “interested person” within the meaning of the redemption statute. It is
Appellant’s argument that the motion to redeem was filed by Mr. McInnis as manager,
agent, and part owner of Tennessee Properties, and that he was an “interested person” in
this representative capacity by virtue of his ownership interest in the LLC and his payment
of the LLC’s tax obligations. Appellant further alleges that Mr. McInnis was authorized to
sign the motion to redeem on behalf of Tennessee Properties, because “[u]nder the LLC
Act and the Revised LLC Act, managers and members of the LLC are empowered and
authorized to execute documents and conveyances of LLC property.” Collier v. Greenbrier
Devs., LLC, 358 S.W.3d 195, 200 (Tenn. Ct. App. 2009) (citing Tenn. Code Ann. §§ 48-
238-101–104, 48-249-401–402).
Purchaser disagrees with the assignment of error to the trial court’s findings. She
argues that the record shows that Mr. McInnis knew how to indicate when signing a
document in a representative capacity, and that by including only his own name and
signature, Mr. McInnis filed the motion to redeem in his individual capacity. And,
Purchaser argues, Mr. McInnis lacked standing to file the motion individually as he was
not an “interested person” under the redemption statute. Moreover, even if Mr. McInnis
had attempted to represent Tennessee Properties when filing the motion to redeem,
Purchaser correctly asserts that he could not have done so as a non-attorney. See Tenn. Sup.
Ct. R. 7, § 1.01 (prohibiting the “practice of law” in Tennessee by persons not admitted to
the state bar, serving as in-house counsel, or licensed in another jurisdiction and admitted
pro hac vice); Tenn. Code Ann. § 23-3-101 (defining the “practice of law” as appearing
“as an advocate in a representative capacity or the drawing of papers, pleadings or
documents . . . in such capacity”); Tenn. Code Ann. § 67-5-2701(b) (describing filing of
motion to redeem with court as initiation of redemption proceedings). To be sure, “our
Supreme Court has addressed the issue of whether a non-attorney may represent a
corporation in court and has held that a non-attorney may not represent a corporation in
our Tennessee courts.” Elm Children’s Educ. Tr. v. Wells Fargo Bank, N.A., 468 S.W.3d
529, 532 (Tenn. Ct. App. 2014) (citing Old Hickory Eng’g & Machine Co. v. Henry, 937
S.W.2d 782 (Tenn.1996)). The same is true of limited liability companies such as
Tennessee Properties. See Collier, 358 S.W.3d at 200 (“[A] limited liability company is a
form of legal entity that has the attributes of both a corporation and a partnership but is not
formally characterized as either one. [A] limited liability company has an existence
separate from its members and managers . . . [and] may only appear in court through
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counsel.”) (internal citations and quotation marks omitted).
However, after reviewing the record, we conclude that this dispute is resolved by
consideration of another issue entirely: Purchaser’s requests for admission. Pursuant to
Tennessee Rule of Civil Procedure 36.01, requests for admission that are not timely and
appropriately answered will be deemed admitted. Tenn. R. Civ. P. 36.01 (“The matter is
admitted unless . . . the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the matter, signed by
the party or by the party’s attorney[.]”). A request for admission may involve “any matters
within the scope of Rule 26.02 set forth in the request that relate to [] facts, the application
of law to fact, or opinions about either[.]”3 Id. Any matter so admitted is then considered
“conclusively established” for the purposes of the pending action unless the trial court
exercises its discretion to permit withdrawal or amendment of the admission. Tenn. R. Civ.
P. 36.02; see also Meyer Laminates (SE), Inc. v. Primavera Distrib., Inc., 293 S.W.3d
162, 166 (Tenn. Ct. App. 2008) (“[T]he clear language of Tenn. R. Civ. P. 36 provides the
trial court discretion to allow withdrawal or amendment of matters deemed admitted
because of a party’s failure to timely provide answers to a request for admission, including
when no response has been provided by a party who has received a request for
admission.”). Indeed, “[n]o proof is needed to establish a fact that has been admitted, and
no evidence should be allowed to refute the admission.” Hutcheson v. Irving Materials,
Inc., No. M2002-03064-COA-R3-CV, 2004 WL 419722, at *3 (Tenn. Ct. App. Mar. 8,
2004) (citing Tennessee Dep’t of Human Servs. v. Barbee, 714 S.W.2d 263, 267 (Tenn.
1986)). And unless the trial court allows the admission to be withdrawn or amended, the
admittance “concludes the matter and avoids any need for proof at trial.” Id. Furthermore,
a trial court’s decision to deem requests for admission admitted, as a pre-trial discovery
matter, is within the trial court’s sound discretion. Ruff v. Raleigh Assembly of God
Church, Inc., No. W2001-02578-COA-R3-CV, 2003 WL 21729442, at *4 (Tenn. Ct. App.
July 14, 2003) (citing Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992)). “As such,
these decisions will not be overturned by an appellate court unless the trial court clearly
abused its discretion.” Id. (citing Benton, 825 S.W.2d at 416).
Here, Purchaser propounded discovery requests, including requests for admission,
on Mr. McInnis individually. The responses to the discovery requests, however, were
provided by Appellant. As a sanction for not responding to the discovery requests in his
individual capacity, the trial court deemed the requests for admission admitted. Those
admissions relevant to the issue of standing include:
Admit that you were not an ‘interested person’ with respect to the Parcels as
of November 25, 2019 (the date they were sold in the tax sale) or December
2, 2019 (the date the Order Confirming Sale was entered) or November 30,
2020 (the date your Motion to Redeem was filed).
3
Rule 26.02 of the Tennessee Rules of Civil Procedure outlines the scope and limits of discovery.
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Admit that your Motion to Redeem was filed by you individually (not in a
representative capacity
With these admissions, the questions posed above regarding the redemption statute are
answered in favor of Purchaser. Thus, if the trial court properly admitted these admissions,
the overarching issue of standing must also be resolved in Purchaser’s favor: if Mr. McInnis
did not file the motion to redeem in his representative capacity and could not file the motion
in his individual capacity, he lacked standing to file the motion at all.
Appellant has attempted to raise whether the trial court erred in deeming admitted
the discovery requests as an issue on appeal. Merely posing the question, however, is not
all that is required to form an appellate argument. Rather, the issue must also be sufficiently
argued within the appellate brief. Tennessee Rule of Appellate Procedure 27 requires
appellants to include within their argument section “citations to the authorities and
appropriate references to the record.” Tenn. R. App. P. 27(a)(1)(A). Rule 6 of the Court of
Appeals of Tennessee similarly requires citation to the record.4
Failing to meet the requirements of Rule 27 and Rule 6 can prove fatal to an
appeal—our supreme court has held that it will not find this Court in error for not reaching
the merits of a case where the appellant does not comply with the briefing requirements.
Bean v. Bean, 40 S.W.3d 52, 54–55 (Tenn. Ct. App. 2000). Certainly, it is not the function
of this court to “research and construct the parties’ arguments,” and a bare “skeletal
argument that is really nothing more than an assertion will not properly preserve a claim[.]”
Newcomb v. Kohler Co., 222 S.W.3d 368 (Tenn. Ct. App. 2006) (citations omitted).
4
Rule 6 states in pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial court which
raises the issue and a statement by the appellee of any action of the trial court which is
relied upon to correct the alleged error, with citation to the record where the erroneous
or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to the attention
of the trial judge with citation to that part of the record where appellant’s challenge of
the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced by such alleged error, with
citations to the record showing where the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon with citation to the record where
evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be considered on appeal
unless the argument contains a specific reference to the page or pages of the record where
such action is recorded. No assertion of fact will be considered on appeal unless the
argument contains a reference to the page or pages of the record where evidence of such
fact is recorded.
Tenn. R. App. Ct. 6.
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Accordingly, failure by a party to construct an argument regarding his or her position
waives that issue. Id.; Bean, 40 S.W.3d at 55 (“Courts have routinely held that the failure
. . . to cite relevant authority in the argument section of the brief . . . constitutes a waiver
of the issue.”).
With this in mind, Appellant’s argument regarding the requests for admissions is
waived. For one, the single paragraph of Appellant’s argument devoted to the request for
admission contains no reference to the appellate record. Even more significantly, Appellant
cites no legal authority of any kind for his assertion that the trial court abused its discretion
in admitting the admissions. The burden to show an abuse of a trial court’s discretion is
high, as this standard does not permit an appellate court to substitute its judgment for that
of the trial court. Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125 (Tenn.
2021) (citations omitted). Instead, “[a]n abuse of discretion occurs when a trial court
‘applies an incorrect legal standard, or reaches a decision which is against logic or
reasoning that causes an injustice to the party complaining.’” Id. (quoting Borne v.
Celadon Trucking Servs., Inc., 532 S.W.3d 274, 294 (Tenn. 2017)). Appellant’s
conclusory, skeletal, and unsupported argument simply does not meet this bar.
Therefore, we must conclusively presume both that Mr. McInnis filed the motion to
redeem in his individual capacity and that he did not individually qualify as an “interested
person.” Together these admissions establish that Mr. McInnis did not have standing under
the redemption statute, thus resolving the central issue of this appeal. In fact, this
conclusion resolves Appellant’s remaining issues on appeal. With the admissions properly
included, the record contains sufficient evidence upon which the trial court could determine
Mr. McInnis’s lack of standing. Appellant’s assignments of error to the trial court’s
decision to deny the proffered evidence regarding the operating agreement of Tennessee
Properties and qualify Ms. Hickman as an expert witness are therefore pretermitted.5
C.
Finally, we address Purchaser’s request for damages incurred in responding to a
frivolous appeal under Tennessee Code Annotated section 27-1-122, which provides as
follows:
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.
5
As Purchaser points out in her brief, Appellant’s discussion of these issues also failed to meet the
briefing requirements of Rule 27 and Rule 6 and so would otherwise be waived.
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Tenn. Code Ann. § 27-1-122.
“An appeal is frivolous when it ‘has no reasonable chance of success’ or is ‘so
utterly devoid of merit as to justify the imposition of a penalty.’” Stokes v. Stokes, No.
M2018-00174-COA-R3-CV, 2019 WL 1077263, at *10 (Tenn. Ct. App. Mar. 7, 2019)
(quoting Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009)). In that vein, a
“a party’s failure to point to any evidence or rule of law entitling him or her to relief may
be a basis for a court to conclude an appeal is frivolous.” Id. (citing Jackson v. Aldridge,
6 S.W.3d 501, 504 (Tenn. Ct. App. 1999)). An award of appellate attorney’s fees is within
this Court’s sole discretion, though the statute is meant to be applied sparingly “to avoid
discouraging legitimate appeals.” Id. (citing Chiozza, 315 S.W.3d at 493).
Here, Appellant included scant reference to authority within its brief. Even looking
to the most well-supported aspect of this appeal, Appellant’s argument section primarily
contains bare conclusions that Mr. McInnis was indeed an “interested person” or otherwise
representing Tennessee Properties when filing the motion to redeem, without any reference
to caselaw contradicting the trial court’s findings or otherwise establishing an entitlement
to relief. No real effort was made to dispute the trial court’s inclusion of the requests for
admission, despite the import those admissions had in determining the outcome of this
case. “Any objective review of these factors would cause a reasonable person to conclude
that [Appellant’s] appeal had ‘no reasonable chance of success.’” Williams v. Williams,
286 S.W.3d 290, 298 (Tenn. Ct. App. 2008) (quoting Lovelace v. Owens-Illinois, Inc., 632
S.W.2d 553, 555 (Tenn. 1982)). It therefore appears that this appeal is frivolous. As a result,
we conclude that this is an appropriate case in which to award Purchaser her damages
incurred as a result of defending against this frivolous appeal.
V. CONCLUSION
The judgment of the Chancery Court of Benton County is affirmed, and this cause
is remanded to the trial court for a determination of the reasonable costs Appellee Misty
Nesbitt incurred in defending against this appeal and all further proceedings necessary and
consistent with this Opinion. Because the motion that created the need for this appeal was
filed by Mr. McInnis in his individual capacity, the attorney’s fees are taxed to Mr. McInnis
individually. Costs of this appeal are also taxed to Marty McInnis, individually, for which
execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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