The Fool That Will Not Yield
“To wisdom he’s a fool that will not yield”
When it comes to appellate practice, it’s best not to play the fool with the Court’s time. Intermediate courts are not a bludgeon for whacking opponents. They are not a litigation tactic. Intermediate courts exist to address serious errors of interpretation at the trial level. They exist to promote justice. That’s not idealism; it’s the law.
Tennessee Code Annotated section 27-1-122 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.
The Tennessee Supreme Court has described a frivolous appeal as an appeal that is “devoid of merit” and “has no reasonable chance of success.” It is one completely “lacking in justiciable issues.” Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977.)
Meaning if you’re going to file an appeal, make sure you have solid reasons, and make sure you communicate them well. Otherwise, it will leave your client nowhere, with potentially a hefty bill to pay.
Some circumstances that could put an appellant in jeopardy of being tagged with a frivolous appeal are:
Failure to file a transcript of the evidence when factual questions are raised by the appeal;
Failure to file a motion for a new trial in a case tried before a jury;
Asserting error that was not raised in a motion for a new trial;
Filing an appeal in which the appellant is faced with adverse controlling authority directly on point and can show no authority that would entitle him to relief; and, my favorite,
Simply filing an appeal, stating no reason or justification for the appeal, and failing to make any legal argument showing a reasonable chance of success.
In a nutshell, if you are going to appeal, you have to have meritorious reasons, know them, and assert them impeccably. Otherwise, the Court may mock you as a fool that will not yield.
You can read more about frivolous appeals and the Tennessee cases that have defined them in the 15th Edition of the Nashville Bar Association's Appellate Advocacy Handbook, Chapter 13 (J).
