In Re Estate of Mona J. Small

12/12/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Submitted on Briefs September 1, 2022

IN RE ESTATE OF MONA J. SMALL

Appeal from the Chancery Court for Wilson County

No. 2020-CV-242 C.K. Smith, Chancellor

No. M2021-01284-COA-R3-CV

The trial court awarded the estate of Mona Small (“the Estate”) a judgment in the amount

of $26,515 against appellants Kevin J. Elliott and Heather R. Elliott, based on its finding

that the Elliotts converted that amount when Ms. Small was residing with them. Because

the Elliotts’ brief was untimely filed and wholly fails to comply with the applicable Rules

of Appellate Procedure, we dismiss this appeal. We also grant the Estate’s request to find

this appeal frivolous, and we remand to the trial court for a determination of reasonable

attorney’s fees on appeal to be awarded to the Estate.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J.,W.S, and W. NEAL MCBRAYER, J., joined.

Kevin J. Elliott and Heather R. Elliott, Lebanon, Tennessee, pro se appellants.

Adam Barber and Kate Nyquist, Nashville, Tennessee, for the appellee, Estate of Mona J.

Small.

OPINION

I. BACKGROUND

Cheryl Vaughn, holder of a power of attorney for Mona Small, filed this action on

her behalf on October 6, 2020. She alleged that Kevin Elliott, Ms. Small’s adopted son,

and his wife Heather Elliott were guilty of conversion of Ms. Small’s money. Ms. Small

died while the case was pending, and her estate was substituted as a party. On June 17,

2021, the Estate filed a motion for judgment by default, asserting that the Elliotts failed to

timely respond to the complaint.

The trial court entered an order on August 16, 2021, stating that “[t]his matter came

to be heard on the 2nd day of July, 2021, . . . upon the motion for default filed by the

Petitioner. The [Elliotts] appeared and requested that the matter be continued.” The trial

court continued the case and set an evidentiary hearing for September 7, 2021. On

September 3, 2021, the Elliotts filed a pleading captioned “Answers” that consisted of a

string of forty lines, all but five of which stated only “True” or “False,” and the remainder

of which contained short phrases like “True but had to prior to coming to us” and “True

Moms right mind.” After the evidentiary hearing took place on September 7, 2021, the

trial court entered judgment in favor of the Estate on October 15, 2021, stating in pertinent

part:

A motion for default judgment was filed on June 17, 2021, which was set to

be heard on July 2, 2021. On July 2, 2021, Kevin and Heather Elliott

appeared; however, they had not filed a response. The court provided the

[Elliotts] with an additional thirty (30) days to retain counsel and file a

response. The court finds that [the Elliotts] were on notice to file a response

on July 2, 2021. A response was not filed until September 3, 2021, nearly

one year beyond the initial date of service and more than thirty (30) days

beyond July 2, 2021. The court finds that the September 3, 2021 response

was not timely filed.

The court finds that through their testimony, [the Elliotts] had an opportunity

to be heard by the court.

The court finds that during the time period that Mona Small (hereinafter

“Decedent”) resided with [the Elliotts, they] converted $26,515 of funds of

the Decedent through the exhaustion of her saving and checking account.

(Numbering in original omitted).

The Elliotts timely filed a notice of appeal on October 22, 2021. On February 23,

2022, this Court entered an order stating in pertinent part as follows:

On January 31, 2022, the clerk entered an administrative order requiring the

appellants, Kevin and Heather Elliott, to file with the trial court clerk a

transcript of the evidence, a statement of the evidence, or a Tenn. R. App. P.

24(d) notice, or else to show cause why the appeal should not be dismissed

for failure to comply with Tenn. R. App. P. 24. Mr. Elliot has responded by

requesting an extension of time within which to file a transcript of the

evidence.

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Mr. Elliott’s response purports to be filed on behalf of both Mr. Elliott and

his wife. However, Mr. Elliott is not permitted to file documents on behalf

of M[r]s. Elliott because doing so would constitute the unauthorized practice

of law. While the appellants may proceed pro se, they must each sign any

documents they file. Also, the response does not contain a certificate of

service on the appellees’ counsel as required by Tenn. R. App. P. 20.

Nevertheless, the Court will grant the appellants additional time to comply

with Tenn. R. App. P. 24.

It is, therefore, ordered that the time for filing a transcript or statement of the

evidence with the trial court clerk is extended through March 11, 2022.

Failure to file a transcript or statement of the evidence with the trial court

clerk by March 11, 2022, may result in dismissal of the appeal without further

notice.

The trial court entered a statement of the evidence with this Court on April 4, 2021,

stating:

This cause came on to be heard upon the Statement of the Evidence filed by

the Appellants, Kevin Elliott and Heather Elliott, Objection to Statement of

Evidence and Submission of Alternative Statement of Evidence filed by the

[Estate], and the entire record in this cause[.] [P]ursuant to Rule 24 (c) and

(e) of the Rules of Appellate Procedure, the Trial Court finds the following

Statement of Evidence:

1. Complaint was filed . . . on October 6, 2020, alleging violations of the

Tennessee Adult Protection Act, conversion, undue influence, breach of

fiduciary duty, and infliction of emotional distress.

2. Service of Process was issued and served on [the Elliotts] on October 15,

2020.

3. Cheryl Vaughn as Personal Representative for the Estate of Mona J. Small

was substituted as Petitioner on April 9, 2021.

4. Petitioner filed a Motion for Default on June 17, 2021, which was heard

on July 2, 2021.

5. Respondents, Kevin Elliott and Heather Elliott, appeared on July 2, 2021,

and the Trial Court allowed Respondents an additional thirty (30) days to

retain counsel and file a response.

6. An Evidentiary Hearing was set to be heard on September 7, 2021.

7. Respondents filed “Answers” on September 3, 2021.

8. At the Evidentiary Hearing on September 7, 2021:

A. Trial Court found that Mona J. Small lived with the Respondents

from June, 2018, through March, 2020.

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B. Trial Court found that Mona J. Small had an income of $1,430.00

per month from Social Security.

C. Trial Court found that Mona J. Small had two (2) accounts at

Pinnacle Bank.

D. Trial Court found that the “Answers” filed on September 3, 2021,

w[ere] not timely filed.

E. Trial Court found that the Respondents, Kevin Elliott and Heather

Elliott, were given the opportunity through testimony to be heard in

open Court.

F. Trial Court found that, based on the evidence, the Respondents

converted $26,515.00 of Mona J. Small’s funds.

On May 25, 2022, this Court entered an administrative order stating:

The record on appeal was filed with the clerk of this court on April 22, 2022.

Even though Rules 8A(g) and 29(a) of the Tennessee Rules of Appellate

Procedure require the appellant’s brief to be filed within thirty (30) days after

the record is filed, the appellant has neither filed a brief nor requested an

extension of time for doing so.

It is, therefore, ordered that the appellant either file a brief within ten (10)

days following the entry of this order or else show cause why this appeal

should not be dismissed for failure to comply with either Rule 8A(g) or 29(a)

of the Tennessee Rules of Appellate Procedure.

If the Appellant fails to respond to this order within the time allowed herein,

this appeal may be dismissed, with costs assessed to the Appellant, without

further notice.

This Court entered another administrative order on June 13, 2022, providing as

follows:

On May 25, 2022, the clerk entered an administrative order requiring the

appellants either to file a brief within ten days or else to show cause why the

appeal should not be dismissed. On June 1, 2022, the appellants attempted

to file a brief via facsimile. Rule 20A of the Tennessee Rules of Appellate

Procedure does not permit the filing of a brief by facsimile, and the clerk

directed the appellants to file their brief by a means other than facsimile. As

of the date of this order, the appellants have still not filed a brief.

It is, therefore, ordered that, within ten days following the entry of this order,

the appellants shall file their brief via one of the methods permitted by the

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Tennessee Rules of Appellate Procedure and the clerk. Failure to file a brief

within ten days may result in dismissal of the appeal without further notice.

(Footnote explaining proper methods of filing under Rules of Appellate Procedure

omitted).

On June 17, 2022, the Elliotts filed their appellate brief. In its entirety, the brief

states as follows:

Mr. Kevin Elliott was born to Cathy Alhf, the biological daughter of Ms.

Mona Small. Ms. Small legally adopted Mr. Kevin Elliott. Mr. Elliott feels

that his adoption was never truly accepted by Ms. Small’s other biological

children, and this created animosity amongst them. Mr. Elliott feels that

jealousy and contempt are what led to this suit[].

On September 7, 2021, this matter was held before the Honorable C.K.

Smith, Chancellor. Mr. and Mrs. Elliott without counsel were heard before

the court. We now request to have this case reviewed for appeal as Mr. and

Mrs. Elliott felt unprepared and at a deficit during this hearing. We present

evidence that this judgement was made without all necessary documentation

to make any other determination. Being introduce[d] is a promissory note

signed by Mr. Kevin Elliott and Ms. Mona Small that acknowledged moneys

borrowed by the defendant would be repaid until the event that either party

met death. We are including a copy of this promissory notice for review.

The discussion took place between Mr. Kevin Elliott and Ms. Mona Small

on or around March 26, 2020, and a dollar amount was agreed upon by both

parties. Both parties signed this document without duress.

In May 2020, there was a large disturbance in the Elliott household. Ms.

Mona Small determined that she no longer wished to continue to reside with

Mr. and Mrs. Elliott. Ms. Small attempted to contact her other children to

make arrangement for transportation to one of their residences. Upon failure

to secure transportation, Mr. Kevin Elliott agreed, against his wishes, to

transport Ms. Small to the destination of her choosing. Mr. Mark Elliott

stated that at that point his wish was for Ms. Small to return to the residence

of Mrs. Cheryl Vaughn. Mr. Kevin Elliott again left his residence in Wilson

County Tennessee and transported Ms. Mona Small back to Okaloosa

County Florida. Mr. and Mrs. Elliott believe without evidence that Mrs.

Cheryl Vaughn continued to hold animosity toward them and convinced Ms.

Small that monies were stolen instead of borrowed.

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We are requesting to honor the agreement that Mr. Kevin Elliott and his

mother Mona Small had in writing. And not what Cheryl Vaughn is wanting.

II. ISSUES PRESENTED

The Elliotts’ brief does not contain a statement of the issues presented. The Estate

raises the following issues:

1. Whether this appeal should be dismissed for the Elliotts’ failure to comply with the

requirements of the Tennessee Rules of Appellate Procedure.

2. Whether the Estate is entitled to an award of damages against the Elliotts pursuant

to Tenn. Code Ann. § 27-1-122 for filing a frivolous appeal.

III. ANALYSIS

Tennessee Rule of Appellate Procedure 27 informs litigants of the elements required

to be included in an appellate brief. Rule 27 provides, in pertinent part, as follows:

(a) Brief of the Appellant. The brief of the appellant shall contain under

appropriate headings and in the order here indicated:

(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 heading

placed before the discussion of the issues);

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

Rule 6 of the Tennessee Court of Appeals additionally states:

(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.

In this case, the four short paragraphs in what the Elliotts filed as their appellant’s

brief do not contain any of the elements required by Tenn. R. App. P. 27. They have made

no citation to the record or to any legal authority. We are aware that the Elliotts have

elected to proceed pro se, i.e., to represent themselves, throughout this litigation. As this

Court has recently reiterated,

Pro se litigants “are entitled to fair and equal treatment by the courts.”

Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 551 (Tenn. Ct. App.

2015). Courts should be mindful that pro se litigants often lack any legal

training and many are unfamiliar with the justice system. State v. Sprunger,

458 S.W.3d 482, 491 (Tenn. 2015). Accordingly, courts should afford some

degree of leeway in considering the briefing from a pro se litigant, Young v.

Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003), and should consider the

substance of the pro se litigant’s filing. Poursaied v. Tennessee Bd. of

Nursing, 643 S.W.3d 157, 165 (Tenn. Ct. App. 2021). Pro se litigants,

however, may not “shift the burden of litigating their case to the courts.”

Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).

Additionally, “[i]t is not the role of the courts, trial or appellate, to research

or construct a litigant’s case or arguments for him or her.” Sneed v. Bd. of

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Prof’l Responsibility of Sup. Ct, 301 S.W.3d 603, 615 (Tenn. 2010). In

considering appeals from pro se litigants, the court cannot write the litigants’

briefs for them, create arguments, or “dig through the record in an attempt to

discover arguments or issues that [they] may have made had they been

represented by counsel.” Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn.

Ct. App. 2014). It is imperative that courts remain “mindful of the boundary

between fairness to a pro se litigant and unfairness to the pro se litigant’s

adversary.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App.

2003).

Cannistra v. Brown, No. M2021-00833-COA-R3-CV, 2022 WL 4461772, at *4 (Tenn. Ct.

App. Sept. 26, 2022).

As is evident from this case’s procedural history recited above, this Court

demonstrated patience and leniency in allowing this appeal to proceed to its current

posture, despite the Elliotts’ failure to timely act. Moreover, the only document in the

record that informs us of what actually happened at the evidentiary hearing below is the

brief statement of the evidence prepared and certified by the trial court, which certainly

provides no ground to disturb the trial court’s judgment.

This Court has dismissed appeals under similar circumstances where an appellate

brief is so deficient as to preclude meaningful review. See, e.g., Breeden v. Garland, No.

E2020-00629-COA-R3-CV, 2020 WL 6285300, at *1 (Tenn. Ct. App. Oct. 27, 2020)

(“The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate

Procedure 27. Accordingly, we find that any issues on appeal are waived and we dismiss

the appeal”); Lacy v. Vanderbilt Univ. Med. Ctr., No. M2018-00832-COA-R3-CV, 2019

WL 1450390, at *4 (Tenn. Ct. App. Apr. 1, 2019) (“Due to our inability to reach the

substantive issues, given the deficiencies in [the appellant’s] brief after repeated warnings,

[the] appeal is dismissed”); Thomas v. Bank of Am., N.A., No. M2015-01849-COA-R3-

CV, 2017 WL 2859813, at *4 (Tenn. Ct. App. July 5, 2017) (“Although we are mindful of

[appellant’s] pro se status and have attempted to give her the benefit of the doubt when

possible, we cannot write her brief for her nor can we create arguments or issues for her

where her brief fails to contain any coherent argument. Based upon [appellant’s] failure to

comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we conclude that [she] has

waived any issues raised, and the appeal should be dismissed.”).1

The appellee Estate has properly raised the issue of whether it should be awarded

damages for a frivolous appeal pursuant to Tenn. Code Ann. § 27-1-122, which provides:

1

Our legal research reveals numerous other recently-filed opinions that are arguably analogous and reached

the same result, but were designated by this Court as memoranda opinions, which “shall not be cited or

relied on for any reason in any unrelated case.” Tenn. Ct. App. Rule 10.

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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 law on frivolous appeals is well-settled:

Parties should not be forced to bear the cost and vexation of baseless appeals.

Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); Jackson v.

Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); McDonald v. Onoh, 772

S.W.2d 913, 914 (Tenn. Ct. App. 1989). Accordingly, in 1975, the

Tennessee General Assembly enacted Tenn. Code Ann. § 27-1-122 to enable

appellate courts to award damages against parties whose appeals are

frivolous or are brought solely for the purpose of delay. Determining

whether to award these damages is a discretionary decision. Banks v. St.

Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985).

A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v.

Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable

chance of succeeding. Davis v. Gulf Ins. Group, 546 S.W.2d at 586; Jackson

v. Aldridge, 6 S.W.3d at 504; Industrial Dev. Bd. v. Hancock, 901 S.W.2d

382, 385 (Tenn. Ct. App. 1995).

Young v. Barrow, 130 S.W.3d 59, 66–67 (Tenn. Ct. App. 2003). This appeal is baseless

and presents no reasonable chance of succeeding. The Estate correctly points out that it

has been forced to expend time and money in the form of its attorney’s fees in defending

this appeal. Under these circumstances, we agree that the Estate should be awarded

damages for a frivolous appeal to recompense it for costs and expenses incurred on appeal,

including reasonable attorney’s fees.

IV. CONCLUSION

The appeal is dismissed. The case is remanded to the trial court for a determination

of reasonable costs and expenses incurred by the Estate on appeal and an award to the

Estate for that amount. Costs on appeal are assessed to the appellants, Kevin J. Elliott and

Heather R. Elliott, for which execution may issue if necessary.

_______________________________

KRISTI M. DAVIS, JUDGE

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