Nashville, TN - Civil Litigation lawyer represented Respondent with appealing a complaint called frivolous.

On July 1, 2019, the appellant Steven Simmons ("Plaintiff”) filed in the trial court

a complaint in which the style of the case named the appellees "Mayor Strickland City of

Memphis,” "Melanie Neal Administrator Code Enforcement,” and each member of the

Memphis City Council: Sherman Greer, Frank Colvett, Jr., Patrice Robinson, Jamita

Swearengen, Worth Morgan, Gerre Currie, Berlin Boyd, Joe Brown, Cheyenne Johnson,

Martavius Jones, Kemp Conrad, J. Ford Canale, and Reid Hedgepeth (collectively

06/13/2022

- 2 -

"Defendants”). The complaint's allegations neither identify the parties nor indicate

whether the individuals listed in the style of the case are sued in their individual or official

capacities. Plaintiff's complaint does not allege anything against Defendants Neal, Greer,

Colvett, Robinson, Swearengen, Morgan, Currie, Boyd, Brown, Johnson, Jones, Conrad,

Canale, Hedgepeth, or the Memphis City Council as a body. In narrative format, the

complaint references Plaintiff's prior lawsuit which was settled against the City of

Memphis.1

At the time the complaint was filed, Plaintiff did not submit any summonses to the

Clerk of the trial court for issuance, nor did the Clerk promptly issue the required

summonses as set forth in Tennessee Rule of Civil Procedure 4.01. See Tenn. R. Civ. P.

4.04 ("The plaintiff shall furnish the person making the service with such copies of the

summons and complaint as are necessary.”). Instead, Plaintiff filed numerous motions for

default judgment against Defendants. Defendants later responded in opposition to the

motions for default judgment. On August 30, 2019, counsel for Defendants entered a

notice of appearance and expressly preserved all defenses on their behalf. On September

16, 2019, Defendants moved to dismiss the complaint based on lack of jurisdiction over

the person, insufficiency of process, and insufficiency of service of process. Among other

things, Defendants argued that service of process was not sufficient under Tennessee Rule

of Civil Procedure 12.02(5) due to Plaintiff's failure to issue and serve summons on any

defendant.

On October 9, 2019, more than ninety days after the complaint was filed, Plaintiff

caused summons to be issued for all Defendants except Defendant Swearengen and

attempted service of process through certified mail. On October 11 and 15, 2019, Plaintiff

filed copies of the summonses and attached the certified mail return receipts for Defendants

Mayor Strickland, Canale, Colvett, Brown, Greer, Jones, Boyd, Currie, Robinson, Morgan,

Hedgepeth, and Johnson. Plaintiff also filed a copy of the summonses for Defendants Neal

and Conrad but did not attach a certified mail return receipt. An electronic receipt

indicating that a package was delivered to an unnamed person at an unidentified address

on October 10 and 11, 2019, was attached to the summonses for Defendants Neal and

Conrad filed by Plaintiff. No summons was issued for Defendant Swearengen until

December 12, 2019, and the summons for Defendant Swearengen indicated that service

would be made through certified mail. There was no postal service receipt attached to the

filed copy of the summons issued to Defendant Swearengen.

Plaintiff responded in opposition to Defendants' motion to dismiss. In his response,

Plaintiff mostly referenced the prior lawsuit, but stated that "service of process has been

perfected.” Meanwhile, he continued to file motions to which Defendants responded,



1 Plaintiff attached to his complaint a copy of a $210,000.00 settlement check issued in 2016 by the

City of Memphis in the matter of Stephen [sic] Simmons and Vivian Simmons v. City of Memphis.

- 3 -

including another motion for default judgment which the trial court denied.

On December 31, 2019, Defendants filed a reply to supplement their motion to

dismiss in which they detailed the deficiencies in Plaintiff's attempts at service of process

through certified mail. Defendants also filed the affidavits of Defendant Neal and the

individuals Devon Thompson and Patricia Lewis to establish that Plaintiff's attempts at

service were unsuccessful because, in each instance, the summons through certified mail

was delivered to persons who were not authorized to accept service of process for any of

the Defendants.

2



According to Defendant Neal's affidavit, the certified mailing containing the

summons was not delivered to her personally by the postal service nor did she sign any

receipt for delivery of the summons. Defendant Neal stated that although it appears the

summons was delivered to her office address, she has not authorized any person to accept

service of process on her behalf.

According to Devon Thompson's affidavit, on October 10, 2019, she signed the

certified mail return receipts for Defendants Brown, Jones, Canale, Greer, Boyd, Currie,

Robinson, Morgan, Hedgepeth, Johnson, and Colvett. Ms. Thompson stated that she is an

administrative assistant for the Memphis City Council and her duties include providing

back-up to the executive assistant assigned to the front desk of the Council office. In her

affidavit, Ms. Thompson also stated that: she has not been authorized to accept service of

process for the Memphis City Council or any of the individual Council members; at the

time she signed for the certified mail from Plaintiff, she was unaware that it contained

summonses for service of process; she was merely performing clerical duties; later her

supervisor instructed her to open the certified mail; and the certified mail to Defendants

Brown, Jones, Canale, Greer, Boyd, Currie, Robinson, Morgan, Hedgepeth, Johnson, and

Colvett contained a summons only, but no copy of the related complaint.

Patricia Lewis is the executive assistant to the office of the Mayor of the City of

Memphis. According to her affidavit regarding the certified mail return receipt filed with

the summons to Defendant Mayor Strickland, the return receipt was signed by Jasmine

Baker. Ms. Baker is employed as a Customer Service Administrative Specialist in the

Office of Community Affairs for the City of Memphis, but also provides back-up to Ms.

Lewis during Ms. Lewis's lunch break. Ms. Baker's job duties do not include accepting

service of process on behalf of any employee or officer of the City of Memphis. Neither

Ms. Lewis nor Ms. Baker have been authorized to accept service of process for Mayor

Strickland or for the City of Memphis.



2 The certified mail return receipts contain a box for "agent” and a box for "addressee” next to the

signature line. It is apparent on the face of the return receipts that the "addressee” did not sign any of the

receipts; however, the "agent” box was not checked by the signer for any of the return receipts.

- 4 -

On January 10, 2020, the trial court heard Defendants' motion to dismiss the

complaint.3

The trial court announced its ruling granting the motion to dismiss from the

bench. Following the ruling, Plaintiff continued to file various motions. By order entered

August 28, 2020, the trial court held that Plaintiff failed to obtain proper service of process

on any Defendant; that his attempts to serve the summonses through certified mail did not

comply with Tennessee Rule of Civil Procedure 4.03(2) or 4.04(10); that none of Plaintiff's

mailings were signed by a Defendant or by someone authorized to accept service of process

on his or her behalf; and that Plaintiff "demonstrated an unwillingness to issue alias

summonses and attempt to properly serve Defendants.” Accordingly, the trial court

granted Defendants' motion to dismiss based on lack of jurisdiction over the person,

insufficiency of process, and insufficiency of service of process. Tenn. R. Civ. P. 12.02(2),

(4), and (5).

Plaintiff moved to "Vacate Void Judgment” arguing, among other things, that "no

judge has the power to determine whether he has jurisdiction” and that the trial court lacked

the "authority to request that a hot dog be brought to the court for tasting.” Defendants

responded. The trial court treated Plaintiff's motion as one to alter or amend the judgment

under Tennessee Rule of Civil Procedure 59.04 and, following a hearing, denied the motion

by order entered November 19, 2020. Plaintiff appealed.

II. ISSUES

Plaintiff's stated issues do not reference any action of the trial court or the order

appealed from. We have determined that the issue is: (1) Whether the trial court erred in

dismissing the complaint pursuant to Tennessee Rule of Civil Procedure 12.02. In the

posture of appellees, Defendants raise the following issues: (2) Whether the appeal should

be dismissed based on Plaintiff's failure to comply with Tennessee Rule of Appellate

Procedure 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee; and (3)

Whether Defendants should be awarded attorney fees pursuant to Tennessee Code

Annotated section 27-1-122. We will address the second issue first.

III. STANDARD OF REVIEW

Here, the trial court dismissed the complaint pursuant to Tennessee Rule of Civil

Procedure 12.02 based on the defenses of lack of jurisdiction over the person, insufficiency

of process, and insufficiency of service of process.

"A trial court's decision regarding the validity of personal jurisdiction over a



3 The record does not contain a transcript of this hearing.

- 5 -

defendant presents a question of law. We therefore conduct a de novo review of the trial

court's decision with no presumption of correctness.” Crouch Ry. Consulting, LLC v. LS

Energy Fabrication, LLC, 610 S.W.3d 460, 471 (Tenn. 2020) (citations omitted).

Likewise, we review a trial court's dismissal of a complaint based on insufficient process,

Tenn. R. Civ. P. 12.02(4), and insufficient service of process, Tenn. R. Civ. P. 12.02(5), de

novo with no presumption of correctness. See Meersman v. Regions Morgan Keegan Tr.,

No. M2017-02043-COA-R3-CV, 2018 WL 4896660, at *3 (Tenn. Ct. App. Oct. 9, 2018).

IV. DISCUSSION

Whether the Appeal Should Be Dismissed

At the outset, we must address Defendants' raised issue wherein they request this

Court to dismiss the appeal. Defendants argue that the appeal should be dismissed based

on Plaintiff's "significant departure from the mandatory provisions of Rule 27(a) of the

Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals

of Tennessee.” Tennessee Rule of Appellate Procedure 27 instructs that the appellant's

brief "shall contain:”

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), statutes

and other authorities cited, with references to the pages in the brief where

they are cited;

. . .

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the case, the

course of proceedings, and its disposition in the court below;

(6) A statement of facts, setting forth the facts relevant to the issues presented

for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, setting

forth: (A) the contentions of the appellant with respect to the issues

presented, and the reasons therefor, including the reasons why the

contentions require appellate relief, with citations to the authorities and

appropriate references to the record (which may be quoted verbatim) relied

on; and (B) for each issue, a concise statement of the applicable standard of

review (which may appear in the discussion of the issue or under a separate

- 6 -

heading placed before the discussion of the issues);

(8) A short conclusion, stating the precise relief sought.

Tenn. R. App. P. 27(a). Additionally, Rule 6 of the Tennessee Court of Appeals states in

part:

(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. Ct. App. R. 6(b).

We agree with Defendants that Plaintiff's appellate brief is quite deficient.

Although portions of the brief contain an appropriate label, the substance of the brief's

numbered pages is irrelevant to the issue decided by the trial court. For instance, the brief

includes a section labeled "Statement of Issues on Appeal,” but the issues do not

correspond to any issue the trial court decided. Likewise, the brief contains a "Statement

of the Case” which bears no resemblance to a statement regarding the nature of the case,

the course of proceedings, and its disposition in the court below. The "Brief and

Argument” section merely contains allegations copied from Plaintiff's complaint without

any citation to the record. The "Conclusion” seeks original relief as opposed to appellate

relief. Plaintiff includes in the brief his own affidavit dated December 19, 2020, after this

appeal was filed. The affidavit was not filed in the trial court and is not part of the trial

court record, so we cannot consider it. See Tenn. R. App. P. 13(c) (This Court "may

consider those facts established by the evidence in the trial court and set forth in the record

and any additional facts that may be judicially noticed or are considered pursuant to Rule

14.”). Among other deficiencies, Plaintiff's brief contains no references or citations to the

record on appeal, no facts relevant to the issue decided by the trial court, and no legal

argument or citations to authority on the issue decided by the trial court. Indeed, Plaintiff's

brief makes but a passing reference to the service of process issue.

Generally, we only consider the issues that are properly raised, argued, and

supported with relevant authority. See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct.

App. 2001) ("[F]or an issue to be considered on appeal, a party must, in his brief, develop

the theories or contain authority to support the averred position . . . .”); see also Tenn. R.

App. P. 13(b) ("Review generally will extend only to those issues presented for review.”).

We agree with Defendants that Plaintiff has failed to comply with Tennessee Rule of

Appellate Procedure 27(a) and Rule 6 of the Rules of the Court of Appeals. Ordinarily,

"failure to comply with the Rules of Appellate Procedure and the Rules of this Court”

constitutes a waiver of the issues raised by the appellant. Bean v. Bean, 40 S.W.3d 52, 55

- 7 -

(Tenn. Ct. App. 2000).

We believe that the aforementioned shortcomings in the brief are due, in part, to

Plaintiff's status as a pro se litigant. This court "must not excuse pro se litigants from

complying with the same substantive and procedural rules that represented parties are

expected to observe.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing

Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996)). It is well-settled that

"[w]hile a party who chooses to represent himself or herself is entitled to the fair and equal

treatment of the courts, [p]ro se litigants are not . . . entitled to shift the burden of litigating

their case[s] to the courts.” Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App.

2009) (internal citations omitted). However, "[t]he courts give pro se litigants who are

untrained in the law a certain amount of leeway in drafting their pleadings and briefs.”

Young, 130 S.W.3d at 63. Although this appeal is subject to dismissal due to Plaintiff's

significantly deficient brief, we nonetheless exercise our discretion to consider the merits

of this case by reviewing the trial court's dismissal of the complaint. See Tenn. R. App. P.

2 (allowing this Court to suspend the Tennessee Rules of Appellate Procedure "[f]or good

cause”). We find good cause to do so in this instance because, despite its shortcomings,

Plaintiff's brief does not impede our ability to discern and address the dispositive issue in

this appeal. We caution litigants that our decision to entertain this appeal on the merits

does not mean that we will be as lenient in the future.

Dismissal of the Complaint Pursuant to Tennessee Rule of Civil Procedure 12.02

A civil lawsuit begins with the filing of a complaint in a court of competent

jurisdiction. Tenn. R. Civ. P. 3. That is only the first step. The person filing the lawsuit

must also serve a copy of the complaint and a summons on each defendant, and the

procedure for doing so is set forth in Tennessee Rule of Civil Procedure 4. Rule 4 concerns

"process” which is the legal means by which an individual or entity is required to appear

in court or a defendant is given notice of a legal action against them. See, e.g., Lewis v.

Bowen, No. M2003-00985-COA-R3-CV, 2004 WL 2752811, at *3 (Tenn. Ct. App. Dec.

1, 2004) ("Process . . . is the document, usually a summons, that brings the defendant before

the court, asserts the court's jurisdiction over the case, and requires the defendant to

respond.”). Any litigant, whether represented by an attorney or not, "must comply with

the requirements of Tenn. R. Civ. P. 3 and 4 regarding the filing of the complaint and the

issuance of process.” Hodges v. Att'y Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). If

these requirements are not met, then a defendant can ask the court to dismiss the complaint

because the Tennessee Rules of Civil Procedure allow dismissal of all or part of a complaint

based upon the defenses of lack of jurisdiction over the person, insufficiency of process,

and insufficiency of service of process. Tenn. R. Civ. P. 12.02(2), 12.02(4) and 12.02(5);

McNeary v. Baptist Mem'l Hosp., 360 S.W.3d 429, 436 (Tenn. Ct. App. 2011). "A court

acquires personal jurisdiction over a defendant when the defendant is served with process.”

McNeary, 360 S.W.3d at 436 (citing Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977)).

- 8 -

Here, the trial court dismissed Plaintiff's complaint because the court found that

Plaintiff did not follow the requirements in the Tennessee Rules of Civil Procedure when

attempting to serve the Defendants with process through certified mail. We turn now to

those Rules and the caselaw interpreting them. Rule 4.03(2) provides, in pertinent part, as

follows:

When process is served by mail, the original summons, endorsed as below;

an affidavit of the person making service setting forth the person's

compliance with the requirements of this rule; and, the return receipt shall

be sent to and filed by the clerk. The person making service shall endorse

over his or her signature on the original summons the date of mailing a

certified copy of the summons and a copy of the complaint to the defendant

and the date of receipt of return receipt from the defendant. If the return

receipt is signed by the defendant, or by person designated by Rule 4.04 or

by statute, service on the defendant shall be complete. If not, service by mail

may be attempted again or other methods authorized by these rules or by

statute may be used.

Tenn. R. Civ. P. 4.03(2) (emphasis added). "Return of service is a written account of the

actions taken by the person making service to show to whom and how the service was

made, or the reason service was not made.” 3 Nancy Fraas MacLean, Tennessee Practice

Series—Rules of Civil Procedure Annotated § 4:15 (4th ed. 2008). "The language of Rule

4.03 'set[s] forth a mandatory requirement rather than a discretionary ideal that need not

be strictly enforced to confer jurisdiction over a party.'” Hall v. Haynes, 319 S.W.3d 564,

577 (Tenn. 2010) (quoting Estate of McFerren v. Infinity Transp., LLC, 197 S.W.3d 743,

748 (Tenn. Workers Comp. Panel 2006)). Moreover, actual notice of a lawsuit "does not

excuse the failure to serve process in compliance with our Rules of Civil Procedure.” Id.

at 574.

Rule 4.04 instructs, in relevant part:

The plaintiff shall furnish the person making the service with such copies of

the summons and complaint as are necessary. Service shall be made as

follows:

Service by mail of a summons and complaint upon a defendant may be made

by the plaintiff, the plaintiff's attorney or by any person authorized by statute.

After the complaint is filed, the clerk shall, upon request, furnish the original

summons, a certified copy thereof and a copy of the filed complaint to the

plaintiff, the plaintiff's attorney or other authorized person for service by

mail. Such person shall send, postage prepaid, a certified copy of the

summons and a copy of the complaint by registered return receipt or certified

return receipt mail to the defendant. If the defendant to be served is an

- 9 -

individual or entity covered by subparagraph (2), (3), (4), (5), (6), (7), (8), or

(9) of this rule, the return receipt mail shall be addressed to an individual

specified in the applicable subparagraph. The original summons shall be

used for return of service of process pursuant to Rule 4.03(2). Service by

mail shall not be the basis for the entry of a judgment by default unless the

record contains either (a) a return receipt showing personal acceptance by the

defendant or by persons designated by Rule 4.04 or statute; or (b) a return

receipt stating that the addressee or the addressee's agent refused to accept

delivery, which is deemed to be personal acceptance by the defendant

pursuant to Rule 4.04(11). . . .

Tenn. R. Civ. P. 4.04(10). For service upon an individual, Rule 4.04 authorizes delivering

copies of the summons and the complaint "to an agent authorized by appointment or by

law to receive service on behalf of the individual served.” Tenn. R. Civ. P. 4.04(1). For

service upon a municipality, Rule 4.04 requires "delivering a copy of the summons and of

the complaint to the chief executive officer thereof, or to the city attorney.” Tenn. R. Civ.

P. 4.04(8).

Our Supreme Court's opinion in Hall addressed the issue of whether service by

certified mail is proper where it is signed for by persons who have not been authorized to

accept service of process of lawsuits upon an individual defendant. Hall, 319 S.W.3d at

577–81. The Court held "that a person with the authority to sign for and receive certified

mail does not, without more, qualify as an agent authorized by appointment to receive

service of process on behalf of an individual defendant.” Hall, 319 S.W.3d at 581. The

Court also offered some practice tips: "When sending the summons and complaint via

certified or registered mail, the plaintiff may . . . restrict[] delivery to a specific person

[and] . . . [i]f delivery by certified mail fails in the first instance, Rule 4.03(2) expressly

states that 'service by mail may be attempted again or other methods authorized by these

rules or by statute may be used.'” Id. The plaintiff has the burden of proving that the

person he or she elected to serve is the defendant's authorized agent for service of process.

See, e.g., Milton v. Etezadi, No. E2012-00777-COA-R3-CV, 2013 WL 1870052, at *6

(Tenn. Ct. App. May 3, 2013).

In this case, Plaintiff filed a copy of the "returned” summonses with attached postal

service certified mail return receipts for Defendants Brown, Boyd, Canale, Colvett, Currie,

Greer, Hedgepeth, Johnson, Jones, Morgan, Robinson, and Strickland. Plaintiff also filed

a copy of the "returned” summonses for Defendants Conrad, Swearengen, and Neal, but

did not attach a certified mail return receipt. On their face, all of the summonses filed by

Plaintiff are defective because none of them contain the affidavit required by Rule 4.03(2).

Also, the summonses for Defendants Conrad, Neal, and Swearengen lack the attached

certified mail return receipt required by Rule 4.03(2). Furthermore, none of the certified

mail return receipts are signed by the defendant named in the summons, so service was

incomplete. See Tenn. R. Civ. P. 4.03(2). To the extent that Plaintiff also attempted to

- 10 -

serve the City of Memphis with process, he failed to do so because the record does not

contain proof that a copy of the summons and of the complaint were served upon the chief

executive officer or the city attorney for the City of Memphis. See Tenn. R. Civ. P. 4.04(8).

Additionally, service by certified mail was not perfected in this case because

Plaintiff failed to prove that the staff members who received and signed for the summons

that he tried to serve via certified mail were agents authorized by appointment or law to

receive service of process on behalf of the individual defendants. Rule 4.03(2) plainly

requires the signature of the defendant or a person designated under Rule 4.04 or statute

for service by mail to be complete. Tenn. R. Civ. P. 4.03(2); 4.04(1). Instead, the

uncontroverted affidavit evidence submitted by Defendants establishes that, in each

instance, the person served was an office staff member who did not have authority to accept

service of process.

The only relevant statements Plaintiff presents on appeal are that service of process

was completed pursuant to Rule 4 because "[c]ertified mail returns receipt [sic] was

perfected and green cards were filed and have been filed with the clerk of court” and

"Tennessee Law makes clear that a complaint cannot be denied when a corrected service

was completed to the person who receives service of process to receive complaints against

City officials.” Plaintiff does not include any citation to the record on appeal to support

these assertions. In fact, the record totally controverts them. Plaintiff has never addressed

the fact that the "green cards” were not signed by any of the defendants. In the trial court,

Defendants submitted many filings detailing the deficiencies in service of process, yet

Plaintiff took no action to correct those deficiencies or to effect proper service. Based upon

the record, we must conclude that Plaintiff failed to properly serve process on Defendants

in compliance with the Tennessee Rules of Civil Procedure.

Due to Plaintiff's failure to comply with Rule 4, the trial court correctly determined

that it did not acquire personal jurisdiction over Defendants. Discerning no error and with

the foregoing considerations in mind, we affirm the trial court's order dismissing the

complaint pursuant to Tennessee Rule of Civil Procedure 12.02 on the defenses of lack of

jurisdiction over the person, insufficiency of process, and insufficiency of service of

process.

Frivolous Appeal

Defendants also contend that Plaintiff has filed a frivolous appeal, rendering him

liable for damages to them on appeal pursuant to 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

- 11 -

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.

Tenn. Code Ann. § 27-1-122.

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).

This appeal had no prospect of success. Plaintiff pursued the appeal relying on a

brief that significantly fails to comply with the requirements of Tennessee Rule of

Appellate Procedure 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee.

Plaintiff devotes nearly all of his brief to advancing irrelevant narrative arguments

pertaining to prior litigation rather than addressing, with reference to authority and to the

record, the order actually appealed from. Also, Plaintiff's brief contains material that was

not presented to the trial court. With all of the above considerations in mind and exercising

our discretion, we grant Defendants' request for attorney fees incurred on appeal, the

amount of which the trial court shall determine upon remand.

We affirm the judgment of the trial court. The case is remanded for such further

proceedings as may be necessary and consistent with this opinion, including a

determination of the proper amount of appellate attorney fees and entry of judgment

thereon. Costs of the appeal are taxed to the appellant, Steven Simmons.