                                                                                         05/29/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs May 1, 2020

                  DAVID DYKES v. VICTOR OKORIE ET AL.

                Appeal from the Circuit Court for Rutherford County
                        No. 74901 Barry R. Tidwell, Judge
                     ___________________________________

                           No. M2019-01332-COA-R3-CV
                       ___________________________________


Pro se appellants appeal from the trial court’s judgment in favor of their former landlord.
We affirm the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

Victor Okorie and Odinachi Okorie, Murfreesboro, Tennessee, Pro Se.

James P. Barger, Murfreesboro, Tennessee, for the appellee, David Dykes.


                                       OPINION

                                I.     BACKGROUND

        On October 18, 2014, Appellants Victor and Odinachi Okorie (“tenants”) executed
a residential lease agreement to rent a residence in Murfreesboro, Tennessee, from
Appellee David Dykes (“landlord”) for an initial two-year term beginning on November
1, 2014 and ending on October 31, 2016. The tenants lived in the residence located on
the premises with their two children, and paid monthly rent of $1,250.00. After the initial
two-year term, the lease continued on a month-to-month basis at the same rental amount.
The tenants decided to purchase a home, gave notice of their intent to vacate the premises
to the landlord, and vacated the premises on July 31, 2018.

       The residential lease between the landlord and the tenants includes the following
provisions:

       On signing this Agreement, Tenant will pay to Landlord the sum of $1,250
       as a security deposit. Tenant may not, without Landlord’s prior written
       consent, apply this security deposit to the last month’s rent or to any other
       sum due under this Agreement.

       Tenant will: (1) keep the premises clean, sanitary, and in good condition
       and, upon termination of the tenancy, return the premises to Landlord in a
       condition identical to that which existed when Tenant took occupancy,
       except for ordinary wear and tear; . . . (3) reimburse Landlord, on demand
       by Landlord, for the cost of any repairs to the premises damaged by Tenant
       or Tenant’s guests or business invitees through misuse or neglect. Tenant
       has examined the premises, including appliances, fixtures, carpets, drapes,
       and paint, and has found them to be in good, safe, and clean condition and
       repair, except as noted in the Landlord-Tenant checklist.

       ...

       In any action or legal proceeding to enforce any part of this Agreement, the
       prevailing party [X] shall recover reasonable attorney fees and court costs.

       ...

       Additional provisions are as follows: The home is in good condition and I
       will only come out if something major breaks (AC – Oven – Refrig., etc.).

       After the tenants moved out, the landlord discovered that they had failed to
maintain the premises and had caused considerable damage to the premises. As a result,
on August 27, 2018, the landlord filed a civil warrant against the tenants in the
Rutherford County General Sessions Court for “breach of contract/Lease agreement,
unpaid rent, property damages, atty fees, process fees, court costs, [and] pre- and post-
judgment interest.” The tenants failed to appear at the September 11, 2018, hearing, so a
default judgment of $14,616.33 was entered. On September 19, 2018, the tenants
appealed the judgment to the Rutherford County Circuit Court (“trial court”). Trial was
set for November 27, 2018. The landlord testified and presented evidence, but the
tenants did not appear. Finding that the “damages of $14,616.33 are fair and reasonable
considering the severity of the damage to his real property and the cost to repair,” the trial
court entered judgment in the landlord’s favor for $14,616.33, by order entered
December 11, 2018.

      The tenants requested that the order and judgment be set aside, citing their
confusion about which courtroom to go to on November 27. The trial court set aside its
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order. The matter was assigned to another judge, and a new trial was set for June 25,
2019.1 At trial, the court heard testimony from tenant Victor Okorie and from the
landlord. The trial court found that “prior to the lease being consummated, photographs
presented by [the landlord] establish that the home was in immaculate condition and
everything was in order. . . . [U]pon the tenants leaving the house, based upon multiple
photos as well as [the landlord’s] own testimony, [] the home was in deplorable
condition.” The court found the landlord “to be extremely credible on these issues” and
found that tenant Victor Okorie was not credible. The court further found that the
landlord’s damages sought for costs, labor, and lost rent were “entirely reasonable and
reflect[ed] the damages sustained by [the landlord].” Accordingly, the trial court entered
a judgment against the tenants in the amount of $14,616.33, plus court costs, by order
entered July 2, 2019. This appeal followed.


                              II.    STANDARD OF REVIEW

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). This presumption of correctness applies only to findings of fact and not to
conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
The trial court’s conclusions of law are subject to a de novo review with no presumption
of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen,
338 S.W.3d 417, 426 (Tenn. 2011).

                                    III.       DISCUSSION

                                                A.

        There are two preliminary matters. First, there is neither a trial transcript nor a
statement of the evidence in the record. See Tenn. R. App. P. 24(a), (c). “When no
transcript or statement of the evidence is included in the record on appeal, we
conclusively presume that the findings of fact made by the trial court are supported by the
evidence and are correct.” In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005)
(citing J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn. 1979)).

       Second, the tenants’ brief fails to conform to Tennessee Rule of Appellate

1
 The landlord states that the tenants “refused to agree to a trial date and [he] was forced to set a
hearing.” Tenn. R. Civ. P. 40.
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Procedure 27. The landlord asks us to dismiss the appeal for this reason. In Young v.
Barrow, this court stated:

      Parties who decide to represent themselves are entitled to fair and equal
      treatment by the courts. The courts should take into account that many pro
      se litigants have no legal training and little familiarity with the judicial
      system. However, the courts must also be mindful of the boundary between
      fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
      Thus, the courts must not excuse pro se litigants from complying with the
      same substantive and procedural rules that represented parties are expected
      to observe.

      The courts give pro se litigants who are untrained in the law a certain
      amount of leeway in drafting their pleadings and briefs. Accordingly, we
      measure the papers prepared by pro se litigants using standards that are less
      stringent than those applied to papers prepared by lawyers.

      Pro se litigants should not be permitted to shift the burden of the litigation
      to the courts or to their adversaries. They are, however, entitled to at least
      the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7,
      8.05, and 8.06 provide to other litigants. Even though the courts cannot
      create claims or defenses for pro se litigants where none exist, they should
      give effect to the substance, rather than the form or terminology, of a pro se
      litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted).

      Although we are mindful of their pro se status, our review of this case is somewhat
hindered by the tenants’ failure to comply with Tennessee Rule of Appellate Procedure
27 which instructs that the appellant’s brief “shall contain:”

      (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;
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       (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);

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

Tenn. R. App. P. 27(a).

       The tenants’ brief falls short of meeting Rule 27’s requirements. Nevertheless, we
have fully reviewed the record and considered arguments from both the landlord and the
tenants. At the outset, the tenants state that they do not think they received a fair trial
because of the landlord’s family’s “influence in the court system in Murfreesboro.”
There is nothing in the record to support such a contention, and we find it to be without
merit.

       Next, the tenants admit that they damaged a wall when they were moving out of
the premises. They agreed to pay the landlord an “additional amount to help fix the wall
area that was damaged,” which appears to be $150.00 paid by a check dated July 31,
2018. The tenants state that their $1,250.00 security deposit “could have gone for the
damaged wall, but [the landlord] just wanted to get more money from us.” We find these
arguments to be meritless because the record contains photographic evidence of extensive
damage inflicted by the tenants to the premises, in violation of the lease. See also Tenn.
Code Ann. § 66-28-401(2) (“The tenant shall [k]eep that part of the premises that the
tenant occupies and uses as clean and safe as the condition of the premises when the
tenant took possession.”). When comparing the photographs taken before the tenants
took possession of the premises to those taken after they moved out, the only reasonable
conclusion is that the tenants trashed the premises, in violation of Clause 11 of the lease.
The trial court found that the tenants left the premises in “deplorable condition,” and the
tenants do not challenge this finding on appeal.

       Furthermore, both the terms of the lease itself and the applicable statutes entitled
the landlord to apply the $1,250.00 security deposit toward repairing the damages caused
by the tenants and to seek recovery for additional physical damage to the premises over
and above the amount of the security deposit. See Tenn. Code Ann. §§ 66-28-104(13);
                                           -5-
66-28-301; 66-28-506; 66-28-510.

      The evidence in this record does not preponderate against the trial court’s findings.
Accordingly, we affirm the trial court’s decision.


                                            B.

      The landlord requests his costs, expenses, and reasonable attorney fees on appeal
pursuant to Tennessee Code Annotated section 27-1-122, which provides as follows:

       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 decision whether to award damages for a frivolous appeal rests solely in our
discretion. Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). Appellate
courts exercise their discretion to award fees under this statute ‘“sparingly so as not to
discourage legitimate appeals.”’ Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn.
2017) (quoting Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)).
‘“Successful litigants should not have to bear the expense and vexation of groundless
appeals.”’ Whalum, 224 S.W.3d at 181 (quoting Davis v. Gulf Ins. Grp., 546 S.W.2d 583,
586 (Tenn. 1977)). “A frivolous appeal is one that is ‘devoid of merit,’ or one in which
there is little prospect that it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d
382, 385 (Tenn. Ct. App. 1995). Exercising our discretion, we deny the request for
attorney fees and costs on appeal.


                               IV.        CONCLUSION

        The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal
are taxed to the appellants, Victor Okorie and Odinachi Okorie, for which execution may
issue if necessary.


                                                 _________________________________
                                                 JOHN W. MCCLARTY, JUDGE


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