                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs October 4, 2016

           JEREMY DAVID PARVIN v. JACKIE LADEAN NEWMAN

                   Appeal from the Circuit Court for Hamilton County
                         No. 15C-849 L. Marie Williams, Judge
                       ___________________________________

                No. E2016-00549-COA-R3-CV – Filed December 9, 2016
                       ___________________________________


ANDY D. BENNETT, J., dissenting in part.

       I fully concur in the majority‟s opinion with one exception—I would grant Wife‟s
request for attorney‟s fees on appeal. I respectfully dissent on this one issue.

      This Court, in the majority opinion, upheld the trial court‟s finding of “no basis”
for Husband‟s interpretation of the divorce settlement agreement and the trial court‟s
determination that Tenn. R. Civ. P. 11 sanctions were appropriate.1 Tennessee Code
Annotated section 27-1-122 states:

       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.

Thus, this Court has its own power to provide sanctions for a frivolous appeal. “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., 129 S.W.3d 42, 50 n.4 (Tenn. 2004)). In a case
upholding a trial court‟s determination that sanctions under Hawaii‟s version of Rule 11
were appropriate, the Hawaii Supreme Court observed, “where the circuit court ruled that
a lawsuit was frivolous, „it follows logically that the subsequent appeal was also
frivolous.‟” Gold v. Harrison, 962 P.2d 353, 366 (Haw. 1998) (quoting Abastillas v.

       1
           As the majority opinion states on page 24, “Husband has not raised an issue regarding the
reasonableness of the amount of attorney‟s fees and expenses assessed by the trial court.” Had Husband
raised this issue, I might view the appeal differently.
Kekona, 958 P.2d 1136 (Haw. 1998)).

       In Tennessee, Rule 11 sanctions are proper “when an attorney submits a motion or
other paper on grounds which he knows or should know are without merit, and a showing
of subjective bad faith is not required.” Hooker v. Sundquist, 107 S.W.3d 532, 536 (Tenn.
Ct. App. 2002) (quoting Boyd v. Prime Focus, Inc., 83 S.W.3d 761, 765 (Tenn. Ct. App.
2001)). The majority has held that Rule 11 applies. It follows that the appeal was
“devoid of merit” as well and, therefore, in my opinion, Wife should be awarded her
attorney‟s fees for the appeal.



                                                        __________________________
                                                         ANDY D. BENNETT, JUDGE




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