The opinion
IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
January 28, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
E1999-02545-COA-R3-CV
) BLOUNT COUNTY
CAROLYN TURNER, ) 03A01-9903-CV-00111
)
Plaintiff/Appellant, )
)
v. )
) HON. W. DALE YOUNG
MONROE FARMERS COOPERATIVE, ) JUDGE
)
Defendant/Appellee. )
)
)
) AFFIRMED AND REMANDED
)
HUBERT D. PATTY, Maryville, for Appellant
ANDREW R. TILLMAN, Knoxville, for Appellee
O P I N I O N
Goddard, P.J.
This appeal involves the issuance of a worthless check.
Carolyn Turner, the Plaintiff/Appellant, filed this action in
which she alleged malicious prosecution and outrageous conduct
against the Monroe Farmers Cooperative, the Defendant/Appellee,
after charges against her for issuing a worthless check were
dismissed. The Co-op counterclaimed against Mrs. Turner and her
husband, John Turner, and her son, Ty Turner, as third-party
defendants by asking for payment in the amount of $2,154 for a
load of feed. The Turners, who were doing business as Bestway
Feeds, had purchased the feed with the worthless check.
Mrs. Turner presents four issues, which we restate, for
our consideration:
1. Whether she was entitled to partial
summary judgment;
2. Whether her failure to complete
a small portion of all discovery demanded
by the Co-op was sufficient to warrant a
dismissal of her suit;
3. Whether the Co-op was entitled to summary
judgment on a debt alleged due without specific
proof;1 and
4. Whether she is entitled to sanctions against the
Co-op based upon the pleadings filed in the judicial
proceedings.
We are compelled to note that we had some difficulty in
discerning the arguments put forth by Mrs. Turner’s counsel in
his brief. We suggest that in the future, counsel submit briefs
in which the issues presented to this Court are fully and
adequately argued.
1
Although Mrs. Turner raises this as an issue in her brief, she fails to
submit an argument for it. Therefore, the issue is considered waived.
2
The Trial Court granted summary judgment for the Co-op
2
on Mrs. Turner’s original claim. In light of the fact that no
issue was raised relative to the summary judgment in favor of the
Co-op on Mrs. Turner’s original claim, only issue one remains to
be addressed.
The facts of this case are in dispute. According to
Mrs. Turner, her husband John owns a business called Bestway
Feeds located in Maryville, Tennessee. She insists that she is
not an owner of the business and does not participate in the
operation of the business. However, she does make bank deposits.
Mrs. Turner stated that sometime around April 16, 1997,
Joel Moss, an agent for the Co-op, came to Bestway Feeds and
demanded payment of $2,154 because the bank on which the check
had been drawn returned it for insufficient funds.
Mrs. Turner insists that Mr. Moss went to the “Blount
County General Sessions Court and made a sworn statement that
Carolyn Turner had issued the check and caused a warrant to issue
resulting in her arrest” and in her placement in jail.
2
Mrs. Turner also filed a lawsuit against the Co-op in the United States
District Court for the Eastern District of Tennessee for violation of her
civil rights. The Court dismissed the lawsuit and imposed Rule 11 sanctions
against Mrs. Turner’s attorney.
3
On the other hand, the Co-op maintains that a check
bearing the business name of Bestway Feeds was issued to it for
$2,154 on April 15, 1997. The Co-op stated that approximately
one month before, on March 12, 1997, Mrs. Turner had opened the
Bestway Feeds account at BankFirst as a sole proprietorship.
The Co-op contends that over approximately four years,
Mrs. Turner had moved the business bank account several times and
had used variations of her name and initials in opening these
different accounts. In addition, the Co-op insists that Carolyn
Turner, her husband, and her son alternately held themselves out
as the actual owner of the business. The Co-op maintains that
the Turners wanted to create confusion as to the true owner of
the business because they owed numerous creditors.
The check at issue in this case was signed by Ty
Turner, Mrs. Turner’s son. The Co-op insists that Ty Turner had
actual and apparent authority to sign the check for Bestway
Feeds. The Co-op maintains that Mrs. Turner knew that her son
wrote checks, that he paid some of her bills, such as the
electric bill, out of the account; “that there were no
limitations on his rights and abilities as regarded the business;
that it was not at all unusual for him to sign Carolyn Turner’s
payroll checks and to endorse checks made to the feed company;
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and that he in fact signed at least 42 checks drawn on that
account.” It further contends that if Ty Turner did not have
the authority to sign the check, Mrs. Turner and her husband
ratified his signing of the check “by accepting the feed, selling
the feed, and subsequently agreeing to pay the check either on a
payment schedule or by trade.” The Co-op has not received
payment from the Turners for the feed.
On June 26, 1997, Mr. Moss obtained an arrest warrant
from the Blount County General Sessions Court for a worthless
check violation. Judge William R. Brewer, Jr. testified in his
affidavit as follows:
I spoke to the person seeking the warrant and he
relayed to me that Carolyn Turner was not personally
present and did not personally sign the check upon
which she was being prosecuted. Since the check was
written on a business, for goods used by the business,
and signed by someone at the business, I authorized the
warrant to issue under the belief that there was
probable cause to support the warrant.
The Co-op explains that Joel Moss “relied on Judge Brewer and his
clerk to determine whether or not Carolyn Turner could be
prosecuted, and he signed an affidavit3 prepared by Judge
Brewer’s clerk with the understanding that the affidavit
reflected what he had related to the Judge and his clerk.”
3
The affidavit, in fact, charges that Mrs. Turner had “given” affiant the
check and also that she “did issue same.”
5
Mrs. Turner filed this cause of action for malicious
prosecution and outrageous conduct against the Co-op on the basis
that Mr. Moss obtained the warrant by falsely stating that she
had personally signed the worthless check. Mrs. Turner sought
$7.5 million in damages.
The Co-op insists that it attempted to move forward
with discovery in the case. However, because Mrs. Turner was not
forthcoming with the requested documents, the Co-op filed a
Motion to Compel Answers to Interrogatories and Production of
Documents and Production of Witnesses for Oral Deposition on
November 13, 1997. On December 18, 1997 the Trial Court granted
the Co-op’s motion to compel.
Notwithstanding the Trial Court’s order, Mrs. Turner
and other members of her family resisted the Co-op’s attempts at
discovery. On one occasion, John Turner denied the Co-op access
to Bestway’s warehouse where the records were housed, and on
another occasion, Mrs. Turner provided only two banks with which
they had done business. However, the papers located at Bestway’s
office indicated that the Turners had done business with as many
as seven other banks.
6
The Trial Court granted summary judgment for the Co-op
on its counterclaim against Mrs. Turner and on Mrs. Turner’s
original claim against it. Alternatively, the Trial Court
dismissed her claim with prejudice as a discovery sanction.
In her first issue, Mrs. Turner argues that the Trial
Court erred in not granting her partial summary judgment. She
maintains that the Co-op “did not file any opposing affidavits
but the defendant’s attorney filed an affidavit that did not
comply with requirements of opposing affidavit, merely stating
opinion and conclusions,” which was in violation of Rule 56.06 of
the Tennessee Rules of Civil Procedure.
The Co-op, however, argues that the Trial Court
properly denied Mrs. Turner’s motion for partial summary
judgment. It asserts that Mrs. Turner’s motion was premature
since it was filed before discovery depositions of the parties
had been taken. Also, the Co-op contends that because Mrs.
Turner’s motion for partial summary judgment had several
deficiencies, the Trial Court could have denied the motion based
on those deficiencies: her motion for partial summary judgment
was not accompanied by a statement of undisputed facts as
required by Rule 56.03 of the Tennessee Rules of Civil Procedure,
and she “neglected to cite the court to any applicable law which
would entitle her to summary judgment on her claims.” Therefore,
7
the Co-op insists that the Trial Court properly denied the
motion.
Summary judgment is appropriate if the movant
demonstrates that no genuine issues of material fact exist
pursuant to Rule 56.03 of the Tennessee Rules of Civil Procedure.
This Court reviews a grant of summary judgment by the Trial Court
de novo. Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 279
(Tenn. 1999).
After reviewing the record, we conclude that ample
evidence exists to support the Trial Court’s denial of Mrs.
Turner’s motion for partial summary judgment. Therefore, in
light of our affirmance of this issue, we need not address the
sanction aspect of the judgment.
The Co-op insists that it should receive damages for
the expense of defending against Mrs. Turner’s frivolous appeals,
pursuant to Tennessee Code Annotated § 27-1-122. It contends
that Mrs. Turner and her attorney pursued this frivolous appeal
and cannot provide this Court with any reason to reverse the
Trial Court’s judgment. Thus, the Co-op asserts that it is
entitled to damages “in the amount of all its attorney fees,
8
costs, and expenses of this appeal, and whatever other remedies
this Court deems appropriate.”
Tennessee Code Annotated § 27-1-122 provides in
pertinent part:
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.
“A frivolous appeal is one that is ‘devoid of merit.’”
Industrial Development Board of City of Tullahoma v. Hancock, 901
S.W.2d 382, 385 (Tenn. Ct. App. 1995) (quoting Combustion
Engineering, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)). See
also Wells v. Sentry Insurance Company, 834 S.W.2d 935, 938
(Tenn. 1992); Clay v. Barrington Motor Sales, Inc., 832 S.W.2d
33, 35 (Tenn. Ct. App. 1992).
In light of the fact that no issue is raised as to the
principal point of contention–-Mrs. Turner’s original claim for
malicious prosecution, we find this appeal to be frivolous.
9
Based on the foregoing, we affirm the judgment of the
Trial Court in all respects, and remand the cause to the Trial
Court for determination of damages, pursuant to Tennessee Code
Annotated § 27-1-122. Costs of this appeal are adjudged against
Mrs. Turner and her surety.
_________________________
Houston M. Goddard, P.J.
CONCUR:
____________________________
Herschel P. Franks, J.
____________________________
Charles D. Susano, Jr., J.
10