Donny N. Parsley v. City of Manchester, Tennessee

12/29/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 3, 2021 Session

DONNY N. PARSLEY v. CITY OF MANCHESTER, TENNESSEE

Appeal from the Chancery Court for Coffee County

No. 2020-CV-300 Larry B. Stanley, Jr., Chancellor

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No. M2021-00200-COA-R3-CV

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This is a declaratory judgment action in which the plaintiff—a citizen of the City of

Manchester, Tennessee, who was “the next highest vote getter” for Alderman, but not

elected in the most recent election—contends he is entitled to fill a mid-term vacancy on

the Board of Aldermen. The dispute arose when the City’s Board of Aldermen announced

it was accepting applications to fill the vacant seat on the Board. In the Complaint that

followed, the plaintiff asked the court to declare the proper procedure for filling a mid-term

Board vacancy under the City’s Charter. The trial court dismissed the Complaint pursuant

to Tennessee Rule of Civil Procedure 12.02(6), explaining that the Complaint failed to state

a claim because the unambiguous language in the Charter did not entitle the plaintiff to the

vacant seat. The court also ruled the plaintiff did not have standing “as a citizen.” On

appeal, the plaintiff contends that the trial court should have declared the rights of the

parties instead of dismissing the declaratory judgment action under Rule 12.02(6) and

asserts that he had standing as the “next highest vote getter” in the last election. While

motions to dismiss “are rarely appropriate in declaratory judgment actions,” Cannon Cnty.

Bd. of Educ. v. Wade, 178 S.W.3d 725, 730 (Tenn. Ct. App. 2005) (citation omitted), the

plaintiff has not shown that he was prejudiced by the decision. This is because, after

thoroughly analyzing the City’s Charter in the context of the facts stated in the Complaint,

the court concluded that the Charter was unambiguous and provided no circumstance in

which the “next highest vote getter” from the previous election would be entitled to fill a

mid-term vacancy. Accordingly, we modify the judgment of the trial court and remand

with instructions for the trial court to enter judgment holding that Plaintiff is not entitled to

fill the vacancy on the Board of Alderman under Article IV, §6(c) by virtue of the fact that

he was the next highest vote getter at the election preceding the occurrence of a vacancy.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Modified and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which W. NEAL

MCBRAYER and CARMA DENNIS MCGEE, JJ., joined.

Jeremy Wayne Parham and Mary Elizabeth Henderson, Murfreesboro, Tennessee, for the

appellant, Donny N. Parsley.

Gerald Leighton Ewell, Jr., Tullahoma, Tennessee, for the appellee, City of Manchester,

Tennessee.

OPINION

The Board of Mayor and Aldermen (“the Board”) of the City of Manchester,

Tennessee (“the City”), is comprised of six members who are elected by the citizens of

Manchester, Tennessee.1 Board members are elected to staggered 4-year terms, with three

Board positions standing for election every two years. The top three qualified candidates

standing for election to the Board and receiving the most votes are elected to fill the three

Board positions up for election during the general election, which is held in August of

even-numbered years.

In August 2020, Donny N. Parsley (“Plaintiff”) finished fourth in the race for three

open seats on the Board. Accordingly, Plaintiff was not elected, while the top three

candidates (“vote getters”) were duly elected.

In October 2020, after the new Aldermen had taken office, the Mayor of Manchester

died. Acting pursuant to the relevant provisions of the Charter, the Board elected an

incumbent Alderman as Mayor, creating a mid-term vacancy on the Board.2 Shortly

thereafter, the Board announced it was accepting applications to fill the vacancy.

Upon learning of the announcement, Plaintiff filed his Complaint for declaratory

and injunctive relief. Plaintiff alleged that the City Charter provided multiple mechanisms

for filling a vacancy on the Board, including appointing “the ‘next highest vote getter’ from

the previous election.” Plaintiff also alleged that he was entitled to fill the vacancy because

he was the “next highest vote getter” from the previous election and argued that the other

methods for filling a vacancy “should only apply in the event there is no remaining

qualified ‘highest vote getter’ from the previous election.” Further, Plaintiff asserted that

the appointment of another person would injure him as the “next highest vote getter” and

“as a citizen of Manchester”:

1

The Aldermen are elected at-large; they do not represent districts.

2

Lonnie Norman, the Mayor of the City of Manchester, died on October 12, 2019. Pursuant to the

provisions of the Charter, the Board elected then-Alderwoman and Vice Mayor Marilyn Howard to assume

the role of Mayor and fill the balance of Mayor Norman’s term in office until the next regular election

cycle.

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20. [Plaintiff] will suffer immediate and irreparable injury should the Mayor

and Board be allowed to fill the vacant Alderman position prior to further

hearing before this Court to determine the parties’ respective rights and

obligations pursuant to Article IV, §6(c) of the Charter.

21. Specifically, [Plaintiff] may be deprived of his right to serve as Alderman

having stood for election to the position and garnering the next highest

number of votes.

22. Further, immediate and irreparable injury may occur to [Plaintiff] as a

citizen of Manchester, Tennessee[,] should the Board take action by

majority vote which would include the potential tie-breaking vote of an

Alderman which might otherwise be appointed in violation of the

provisions of the Charter.

The City moved to dismiss the action under Tennessee Rule of Civil Procedure

12.02(6), arguing that the plain language of the City Charter provided no circumstance in

which “the next highest vote getter” from the last election would automatically fill a mid-

term vacancy on the Board. The City also argued that Plaintiff lacked standing to pursue

the action “as a citizen.”

Two days later, on November 4, 2020, Plaintiff responded by arguing that dismissal

under Rule 12.02(6) would be improper because a dispute existed over the correct

interpretation of the Charter’s language. He also maintained that he had standing as the

“next highest vote getter.” In his Response to the Motion to Dismiss, Plaintiff argued that

he was entitled to a declaration of his rights under the City Charter:

The verified Complaint in this matter, when admitted as true for purposes of

Defendant’s Motion, demonstrates the existence of an actual controversy that

is properly subject to declaratory judgment before this Court. [Tennessee

Code Annotated] § 29-14-102 states in relevant part:

(a) Courts of record within their respective jurisdictions have the

power to declare rights, status, and other legal relations

whether or not further relief is or could be claimed.

(b) No action or proceeding shall be open to objection on the

ground that a declaratory judgment or decree is prayed for.

Further, . . . § 29-14-103 provides:

Any person . . . whose rights, status, or other legal relations are

affected by a statute . . . may have determined any question of

construction or validity arising under the . . . statute . . . and

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obtain a declaration of rights, status, or other legal relations

thereunder.

It remains [Plaintiff]’s position that he should be sworn in to fill the balance

of the Alderman position vacated by Marilyn Howard pursuant to Article IV,

§[ 6](c) of the Charter which states, “Aldermanic positions being filled for

the balance of the term shall go to the next highest vote getter, with the top

highest vote getters being election [sic] to the regularly rotating aldermanic

seats.” Per the Motion filed by Defendant, it is the City’s argument that the

last sentence of the Article IV, §[ 6](c) only applies where a vacant position

is filled by the Mayor and Board until such time as the next regular election

and that the “next highest vote getter” then fills the balance of the appointed

term. As such, there is clearly a dispute between the respective parties as to

the appropriate interpretation of the Charter which is appropriate for

adjudication pursuant to . . . §§ 29-14-1[02] & 103. It matters not, at this

juncture, whether [Plaintiff] may ultimately be entitled to a favorable

outcome.

(Fourth alteration in original) (citations omitted).

Plaintiff additionally responded to the City’s lack of standing argument, asserting:

[Plaintiff]’s injury is “distinct and palpable” from the general citizenry in that

he[] alone is the “next highest vote getter” from the most recent election cycle

and, thus, stands unique among all others in his claim to the vacated alderman

position. Second, there is certainly a causal connection between [Plaintiff]’s

injury (loss of the vacated set) and the actions of the Mayor and Board by

their contrary interpretation of the relevant portions of the Charter. Finally,

[Plaintiff’s] injury may be properly redressed by a favorable decision in that

the City would be forced to install him in the position . . . should the case

ultimately be decided in his favor.

Without stating its reasoning, the trial court entered an order dismissing the

Complaint for failure to state a claim for which relief could be granted.

Plaintiff then moved to set aside the dismissal, arguing he was entitled to a hearing

before the case was dismissed. After agreeing to afford Plaintiff a hearing, which occurred

on December 4, 2020, the trial court entered a subsequent order in which the court

explained its reasons for dismissing the Complaint:

Addressing the substantive position of Plaintiff, as alleged in the

Complaint[,] the Court accepted Plaintiff’s allegations of fact as true: that the

Plaintiff was the next highest vote-getter at the election prior to the vacancy

and that the Plaintiff was currently qualified to serve. The Court then

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reviewed the Charter provision concerning the filling of vacancies and

concluded, as a matter of law, that the facts alleged by Plaintiff did not entitle

him to immediately be sworn in to the vacant Alderman position as he

requested the Court rule and, thus, failed to state a claim for which the relief

requested can be granted. Had the Court interpreted the Charter language to

entitle Plaintiff to the Alderman position or [found] that it was unclear

whether or not Plaintiff was entitled to the position[,] the Court would not

have dismissed the action.

As to Plaintiff’s request for a general declaration of “the proper procedure

for filling the vacant Alderman position pursuant to the Charter[,”] . . . the

Court finds Plaintiff does not have standing to seek this advisory declaration.

Once the Court determined the Charter language did not entitle Plaintiff to

the Alderman position[,] he had no rights or status different from any other

citizen. With no allegation that Plaintiff was a current member of the Board

of Mayor and Aldermen, the Mayor[,] or a member of the Coffee County

Election Commission[,] there were no rights nor prospective behavior of

Plaintiff which would be affected by the Court’s declaration of “the proper

procedure for filling the vacant Alderman position;” therefore, the Court

finds Plaintiff does not have standing to seek such a declaration as a

citizen. . . .

As the only conclusion that would permit the Court to dismiss this action for

failure to state a claim was that Plaintiff is not entitled to the vacant Alderman

seat by virtue of being the next highest vote getter at the election preceding

the occurrence of a vacancy[,] the Court thinks that, after reaching this

conclusion, a [d]ismissal for failure to state a claim was appropriate.

As to any declaration the Plaintiff seeks as a citizen concerning the proper

method for the filling of a vacancy which does not affect Plaintiff differently

than any other citizen[,] the Court finds Plaintiff lacks standing and,

therefore, as a citizen, does not state a claim for which the relief requested

can be granted.

This appeal followed.

ISSUES

Plaintiff contends the trial court erred in dismissing the Complaint based upon the

finding that Plaintiff lacked standing to have the trial court declare the proper method for

filling a vacancy on the Board of Alderman. Further, Plaintiff contends that his Complaint,

when admitted as true for purposes of the Motion to Dismiss, demonstrates the existence

of an actual controversy that is properly subject to declaratory judgment. Accordingly,

Plaintiff argues that the trial court employed an erroneous procedure by disposing of his

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declaratory judgment action on a motion to dismiss under Tennessee Rule of Civil

Procedure 12.02(6).

For its part, the City contends that any procedural error in disposing of the case

under Rule 12.02(6) was harmless because the trial court essentially “declared” that

Plaintiff had no rights under the Charter as “the next highest vote getter.”

The City also raises a separate issue, contending it is entitled to damages for

frivolous appeal under Tennessee Code Annotated § 27-1-122.

STANDARD OF REVIEW

When reviewing a trial court’s decision on a motion to dismiss for failure to state a

claim, we use a de novo standard of review with no presumption of correctness afforded to

the court’s decision. See Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996).

We use the same standard when reviewing a trial court’s determination on standing. See In

re Est. of Brock, 536 S.W.3d 409, 413 (Tenn. 2017).

ANALYSIS

I. STANDING

The trial court ruled that Plaintiff lacked standing to seek a declaratory judgment in

two contexts. First, the court found he lacked standing as the next highest vote getter after

determining “the Charter language did not entitle Plaintiff to the Alderman position.”

Second, the court found he lacked standing as “a citizen” to seek a declaration concerning

the proper method for filling the vacancy.

As for the first determination, which related to Plaintiff being “the highest vote

getter” in the most recent election, we respectfully disagree with the trial court’s ruling.

Because an ultimate decision adverse to a plaintiff on the merits of the case does not deprive

the party of standing to bring the action, see Wade, 178 S.W.3d at 730, we conclude that

the court put the cart before the horse. Plaintiff was in a unique position to bring this action

because he was the only person in the City of Manchester who was “the highest vote getter”

in the most recent election. Accordingly, we hold that Plaintiff had standing to bring the

action as “the highest vote getter.”

As for Plaintiff’s claim that he has standing by virtue of being “a citizen,” we agree

with the trial court’s ruling. Standing “may not be predicated upon an injury to an interest

that the plaintiff shares in common with all other citizens.” Am. Civil Liberties Union of

Tenn. v. Darnell, 195 S.W.3d 612, 621 (Tenn. 2006). Thus, we agree that Plaintiff does not

have standing in this context. Nevertheless, we have previously concluded that he has

standing as the only person who was “the highest vote getter” in the prior election;

therefore, his claim may proceed.

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II. DISMISSAL OF DECLARATORY JUDGMENT ACTION UNDER TENNESSEE RULE OF CIVIL

PROCEDURE 12.02(6)

Plaintiff argues that a party seeking a declaratory judgment “need only state facts

sufficient to demonstrate the existence of an actual controversy to survive a motion to

dismiss” and asserts that “there is clearly a dispute between the respective parties as to the

appropriate interpretation of the Charter.”

“When considering a motion to dismiss a declaratory judgment action[,] it is

important to recognize that the general purpose of a declaratory judgment action is not to

award affirmative relief, but ‘to resolve a dispute, afford relief from uncertainty with

respect to rights, status, and other legal relations.’” Blackwell v. Haslam, No. M2011-

00588-COA-R3-CV, 2012 WL 113655, at *7 (Tenn. Ct. App. Jan. 11, 2012) (emphasis

added) (quoting Wade, 178 S.W.3d at 730). “The fact that the party seeking declaratory

relief is not entitled to the judgment sought (that it is on the losing side of the controversy)

does not mean that the parties are not entitled to the relief from uncertainty that a

declaratory judgment affords.” Wade, 178 S.W.3d at 730. “Thus, a party seeking a

declaratory judgment is not required to allege facts in its complaint demonstrating that it is

entitled to a favorable decision.” Id. (emphasis added) (citations omitted).

Although there are exceptions, motions to dismiss under Tennessee Rule of Civil

Procedure 12.02(6) “are rarely appropriate in declaratory judgment actions.” Id. (citing

Glover v. Glendening, 829 A.2d 532, 539 (Md. 2003)). “The prevailing rule is that when a

party seeking a declaratory judgment alleges facts demonstrating the existence of an actual

controversy concerning a matter covered by the declaratory judgment statute, the court

should not grant a [Rule] 12.02(6) motion to dismiss but, instead, proceed to render a

declaratory judgment as the facts and law require.” Id. (citing Hudson v. Jones, 278 S.W.2d

799, 804 (Mo. Ct. App. 1955); 1 Walter H. Anderson, Actions for Declaratory Judgments

§ 318, at 740 (2d ed. 1951)). But see Highwoods Properties, Inc. v. City of Memphis, No.

W2007-00454-COA-R3CV, 2007 WL 4170821, at *14 (Tenn. Ct. App. Nov. 27, 2007)

(noting that “Tennessee courts have affirmed a trial court’s granting of a Rule 12.02(6)

motion to dismiss in a declaratory judgment action” in several cases (citations omitted)),

aff’d, 297 S.W.3d 695 (Tenn. 2009).

Furthermore, even though the trial court granted the Motion to Dismiss Plaintiff’s

declaratory judgment action under Rule 12.02, this court may choose to review the

underlying merits of the case without having to remand it. See Karsonovich v. Kempe, No.

M2017-01052-COA-R3-CV, 2018 WL 1091735, at *3 (Tenn. Ct. App. Feb. 27, 2018).

This procedure is particularly appropriate when, as here, the trial court addresses the merits

of a declaratory judgment claim in its ruling on a Rule 12.02(6) motion to dismiss. Id. at

*2–3, *5.

As is the case here, the trial judge in Karsonovich dismissed a claim for declaratory

judgment pursuant to Rule 12.02(6) after addressing the merits of the claim in its ruling.

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Id. at *2–3. In the Karsonovich appeal, we elected to review the merits of the ruling “in

order to preserve judicial resources,” id. at *3 (citing Blackwell, 2012 WL 113655, at *10),

based on our determination that there did “not appear to be a need for any additional facts,”

id; see also Frazier v. City of Chattanooga, 1 S.W.2d 786, 786 (Tenn. 1928) (affirming

trial court’s dismissal of a declaratory judgment action even though it would have been

“better practice” to enter a declaration). After conducting a thorough review of this case,

we find that the same review process is appropriate in this appeal.

III. THE MERITS OF THE DECLARATORY JUDGMENT ACTION

In his Complaint, Plaintiff alleged that “the Charter provides multiple mechanisms

by which a vacant Alderman position may be filled,” including by appointment of “the

‘next highest vote getter’ from the previous election.” Plaintiff asserted that “the other

methods prescribed by the Charter for filling a vacant Alderman term should only apply in

the event there is no remaining qualified ‘highest vote getter’ from the previous election.”

Plaintiff attached a copy of the Charter to the Complaint.

In its Motion to Dismiss, the City asserted that “assuming Plaintiff’s factual

allegations are true,” the Charter’s language did not entitle him to relief. The City asked

the trial court to resolve the matter “by addressing the substantive allegations” in the

Complaint. In response, Plaintiff asserted that “there is clearly a dispute between the

respective parties as to the appropriate interpretation of the Charter” based on his “position

that he should be sworn in to fill the balance of the Alderman position.”

Article IV, § 1 of the Charter provides that the Board must be “composed of the

Mayor and six (6) Aldermen.” Act of May 8, 2017, Art. IV, § 1(a), 2017 Tenn. Priv. Acts

85, 89 (ratified June 27, 2017). The Aldermen “shall be elected in the general city election”

for staggered four-year terms, with three Aldermen elected every two years. See id. § 1(c).

Article IV, § 6 of the Charter prescribes the methods for filling vacancies created by a

member’s “death, resignation, removal from office or forfeiture of office”:

A vacancy in the office of Alderman shall be filled until the next regular

election, by a majority vote of all of the remaining members of the Board of

Mayor and Aldermen. If the Board of Mayor and Aldermen fails to do so

within sixty (60) days following the occurrence of the vacancy, the Mayor

shall fill the vacancy until the next election. If the Mayor fails to fill the

vacancy within sixty (60) days, either the Mayor or any two Aldermen shall

notify the Coffee County Election Commission, who shall call a special

election to fill the vacancy for the unexpired term. A special election shall be

held not sooner than seventy-five (75) days and not later than eighty (80)

days thereafter, and shall be governed by the general election laws of the

state, except that no special election shall be held within one hundred and

eighty (180) days of the next regular election. All appointments, until the

next regular election, shall at the time of the next regular election, be filled

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by electing someone for the balance of [the] term, if any, or for a new term.

Aldermanic positions being filled for the balance of the term shall go to

the next highest vote getter, with the top highest vote getters being

elected to the regularly rotating aldermanic seats.

Id. § 6(a), (c), 2017 Tenn. Priv. Acts at 91 (emphasis added). The emphasized sentence

immediately above is the focus of Plaintiff’s contention that he was entitled to

automatically fill the vacancy on the Board; however, we have determined that his reliance

on this provision is misplaced.

When interpreting municipal charters, courts use “[t]he same rules of construction

used to interpret statutes.” Metro. Elec. Power Bd. v. Metro. Gov’t of Nashville & Davidson

Cnty., 309 S.W.3d 474, 477 (Tenn. Ct. App. 2008) (citing Hargrove v. Metro. Gov’t of

Nashville and Davidson Cnty., 154 S.W.3d 565, 567–68 (Tenn. Ct. App. 2004)). Thus, a

charter “should be construed as a whole and its words given their natural and ordinary

meaning.” Id. (citing Hargrove, 154 S.W.3d at 568). And “[i]f the words are unambiguous,

they should be enforced as written.” Id. It is only when the language is ambiguous “that we

may reference the broader statutory scheme, the history of the legislation, or other sources.”

In re Estate of Tanner, 295 S.W.3d 610, 614 (Tenn. 2009).

Although the Charter is not the model of clarity, we agree with the trial court’s

determination that the relevant language is not ambiguous. Thus, resorting to legislative

history would be unnecessary. Moreover, the language simply does not support Plaintiff’s

contention that appointing “the ‘next highest vote getter’ from the previous election” is a

method for filling a vacancy.

The Charter identifies three methods for filling a vacancy in order of operation.

First, the Board may fill the seat “until the next regular election.” If the Board fails to do

so within 60 days, the Mayor may fill the seat “until the next election.” If the Mayor fails

to do so within 60 days, the Coffee County Election Commission may hold a special

election to fill the vacancy “for the unexpired term.” The next to last sentence of § 6(c)

provides that “[a]ll appointments, until the next regular election, shall at the time of the

next regular election, be filled by electing someone for the balance of term, if any, or for

a new term.” Thus, the Mayor or the Board’s appointments last only “until the next regular

election,” at which time someone is elected “for the balance of the term.” If a special

election is held, the appointment is “for the unexpired term.”

Finally, the last sentence—which gives rise to Plaintiff’s claim—states that

“Aldermanic positions being filled for the balance of the term shall go to the next highest

vote getter.” As explained, the only circumstance in which a vacancy is filled “for the

balance of the term” is when the Board or the Mayor appoints someone “until the next

regular election.” Accordingly, we find “the next highest vote getter” refers to the runner-

up in “the next regular election,” meaning the election that is held after a vacancy

occurs. This conclusion is consistent with, and corroborated by, the last clause of the last

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sentence, which states, “the top highest vote getters” will be “elected to the regularly

rotating aldermanic seats.”

Furthermore, § 6(c) of the Charter identifies Board appointment as the first method

for filling a vacancy. “The courts’ goal is to construe a statute in a way that avoids conflict

and facilitates the harmonious operation of the law.” Lee Med., Inc. v. Beecher, 312 S.W.3d

515, 527 (Tenn. 2010). The Charter’s drafters expressed a preference for filling vacancies

by a majority vote of the Board because the other two methods described depend on the

Board’s failure to fill the position within 60 days. Thus, interpreting the last sentence as

requiring the vacancy to be filled by the “next highest vote getter” from the last election

would create a conflict.

This brings us back to the trial court’s decision to dismiss the Complaint pursuant

to Rule 12.02 even though the trial court thoroughly discussed the merits of the dispute.

“A final judgment from which relief is available and otherwise appropriate shall not be set

aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.” Tenn. R. App. P. 36(b). As the City correctly contends, the procedural error in

disposing of the case under Rule 12.02(6) was harmless because the trial court essentially

“declared” that Plaintiff had no rights under the Charter as “the next highest vote getter.”

Moreover, we agree with the trial court’s determination that Plaintiff is not entitled to fill

the vacancy.

Accordingly, we remand this matter with instructions for the trial court to enter

judgment holding that Plaintiff is not entitled to fill the vacancy on the Board of Alderman

under Article IV, §6(c) by virtue of the fact that he was the next highest vote getter at the

election preceding the occurrence of a vacancy.

IV. DAMAGES UNDER TENNESSEE CODE ANNOTATED § 27-1-122

The City also requests an award of attorneys’ fees as damages under Tennessee

Code Annotated § 27-1-122, 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.

The City argues that Plaintiff’s appeal is frivolous because “his only ‘substantive’

assertion on Appeal is that it ‘remains his position he is entitled to the Aldermanic seat.’”

The City asserts that Plaintiff “failed to even allege error by the trial [c]ourt in its

determination that he was not entitled to the Aldermanic seat” and failed to “construct any

argument or cite any authority that the trial Court was incorrect in this conclusion.”

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An award of fees under § 27-1-122 “rests in the appellate court’s sound discretion.”

Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017). Appellate courts should

exercise this discretion “sparingly so as not to discourage legitimate appeals.” Id. (quoting

Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)). “A frivolous appeal is

one that is ‘devoid of merit such that it had no reasonable chance of succeeding.’”

Henderson v. SAIA, Inc., 318 S.W.3d 328, 341 (Tenn. 2010) (quoting Clark v. Nashville

Mach. Elevator Co. Inc., 129 S.W.3d 42, 50 n.4 (Tenn. 2004)).

Although Plaintiff did not prevail in this appeal, we cannot say that Plaintiff’s appeal

was “devoid of merit.” For these reasons, we deny the City’s request for attorneys’ fees

under Tennessee Code Annotated § 27-1-122.

IN CONCLUSION

The judgment of the trial court is modified, and this matter is remanded for further

proceedings consistent with this opinion. Costs of appeal are assessed against Donny N.

Parsley.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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