                                                                                          12/13/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 12, 2019 Session

                 JOHN W. HARRIS JR v. ROBIN L. STEWARD

                  Appeal from the Circuit Court for Shelby County
                    No. CT-000538-17 James F. Russell, Judge
                     ___________________________________

                           No. W2019-00231-COA-R3-CV
                       ___________________________________

This appeal arises from Appellant’s lawsuit against his former attorney, Appellee, for
breach of contract, unjust enrichment, and double billing. The trial court dismissed
Appellant’s lawsuit on its finding that his claims were barred by res judicata and
collateral estoppel. Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

John W. Harris, Jr., Oakland, Tennessee, appellant, pro se.

Robin L. Steward, Memphis, Tennessee, appellee, pro se.

                                        OPINION

                                      I. Background

        Appellant John Harris hired Appellee Robin Steward, a licensed Tennessee
attorney, to represent him in a quiet title and partition action. On or about June 10, 2013,
the parties entered into a contract, which provided, inter alia, that Mr. Harris would pay
an initial retainer of $3,500 to be used against Ms. Steward’s hourly rate of $210 plus
expenses. By letter of July 25, 2013, Ms. Steward outlined and clarified the parties’
agreement, including payment of attorney’s fees from the common fund in the probate
matter. The specifics of that letter are discussed in greater detail below. It is undisputed
that, during the pendency of the probate matter, Mr. Harris paid Ms. Steward $14,653.00
in fees and $2,500.00 in expenses.
       Following the sale of the property that was the subject of the partition action, the
attorneys, who represented the various heirs, filed to collect their respective fees from the
common fund established from the proceeds of the sale. In Ms. Steward’s case, she
requested fees and expenses totaling $49,245.00. The probate court considered the
attorneys’ respective requests for fees. In its order of June 3, 2016, the probate court
noted that it had received fee requests totaling $120,725.00 and that it had a total of
$124,000.00 in the common fund (and over 100 heirs). Accordingly, the probate court
awarded each attorney approximately one-half of his or her requested fees. Ms. Steward
was awarded $23,408.37. The probate court further addressed the reasonableness of the
fees requested by the various attorneys. As to Ms. Steward’s fees, the probate court held
that

       There is no question that . . . Robin L. Steward is entitled to a fee based on
       the common fund theory. Her work to bring this matter forward benefited
       all of the heirs of the property. . . . This Court does not dispute the hours
       these attorneys have recorded in this case . . . .

Neither Mr. Harris nor Ms. Steward appealed the June 3, 2016 order.

        Thereafter, Ms. Steward petitioned the probate court for an attorney’s lien, seeking
to collect the portion of her $49,245.00 in fees and expenses that was not paid from the
common fund or from Mr. Harris. As discussed in detail below, Mr. Harris opposed Ms.
Steward’s lien and filed a “Motion to Withhold Attorney Fees” in the probate court.
Therein, Mr. Harris averred that he had paid Ms. Steward $14,653.00 in fees and $2,500
in expenses and sought reimbursement of these payments. On September 29, 2016, the
probate court issued an order denying Ms. Steward’s petition for attorney’s lien.
Although it denied her lien, the trial court did not disturb its previous judgment for
$23,408.37 in attorney’s fees from the common fund, nor did the trial court disturb the
$17,153.00 that Mr. Harris paid Ms. Steward during the pendency of the probate matter.
In its order, the probate court reiterated its previous finding (in the June 3, 2016 order)
that the attorney fees requested in the partition action were, in fact, reasonable.
Specifically, the probate court stated that:

       In considering the respective attorney fee petitions, the Court was guided
       by Supreme Court Rule 8, RPC 1.5 as to the determination of a reasonable
       attorney fee for each attorney and in this respect the Court, among other
       things, reviewed the manner in which the case was litigated, the complexity
       of the case, and the ultimate benefit inuring to the clients . . . .
              After having reviewed the attorney fee petition requests, pursuant to
       RPC 1.5 the Court determined the reasonable fee due each attorney for
       legal work performed on this matter . . . .

Neither party appealed the September 29, 2016 order.
                                          -2-
        On December 18, 2016, Mr. Harris filed suit against Ms. Steward in the General
Sessions Court of Shelby County alleging “breach of contract, unjust enrichment, double
billing, in the amount of $21,720.00 cash dollars.” By order of January 19, 2017, the
general sessions court dismissed the case “due to res judicata and collateral estoppel.”
Mr. Harris filed a timely appeal to the Shelby County Circuit Court (“trial court”).

       On January 2, 2018, Ms. Steward filed an answer in the trial court. On January
10, 2018, Ms. Steward filed a motion to dismiss the case on grounds of res judicata and
collateral estoppel. Following a hearing, the trial court granted Ms. Steward’s motion to
dismiss by order of January 17, 2019. Mr. Harris appeals.

                                         II. Issues
       Mr. Harris raises two issues:

       1. Whether the trial court erred in dismissing Appellant’s claims against
       Appellee, for a refund of attorney fees and litigation expenses (arising from
       Steward’s representation of Appellant in a probate matter), on the ground
       that these claims are barred by the doctrines of res judicata and collateral
       estoppel.
       2. Whether the contingency fee agreement between the parties was
       unreasonable, pursuant to Tenn. Sup. Ct. Rule 8, RPC 1.5; if so, whether
       Appellant may recover fees paid in excess of reasonable attorney’s fees.

In the posture of Appellee, Ms. Steward asks for her attorney’s fees and costs on the
ground of frivolous appeal.

                                 III. Standard of Review

       At the outset, we note that while we are cognizant of the fact that Appellant is self-
represented in this case, it is well-settled that “pro se litigants are held to the same
procedural and substantive standards to which lawyers must adhere.” Brown v. Christian
Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App.
Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). As we have explained,

       [p]arties 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.

                                            -3-
Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn.
Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.
App. 2003)).

       Here, the trial court granted Ms. Steward’s motion to dismiss on the ground that
Mr. Harris’ lawsuit is barred by res judicata and collateral estoppel. “A trial court’s
decision that a claim is barred by the doctrine of res judicata or claim preclusion involves
a question of law which will be reviewed de novo on appeal without a presumption of
correctness.” Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).

                                        IV. Analysis

       “The doctrine of res judicata or claim preclusion bars a second suit between the
same parties or their privies on the same claim with respect to all issues which were, or
could have been, litigated in the former suit.” Jackson v. Smith, 387 S.W.3d at 491. Res
judicata is an affirmative defense that a defendant must ordinarily raise in his or her
answer. Id. (citing Tenn. R. Civ. P. 8.03). However, a Rule 12.02(6) motion may “be
used as a vehicle to assert an affirmative defense, [if] the applicability of the defense . . .
‘clearly and unequivocally appear[s] on the face of the complaint.’” Id. at 491-92
(quoting Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 404 (Tenn.
2002)). Thus, to successfully assert the defense of res judicata in a Rule 12.02(6)
motion, the defendant must show that the plaintiff’s own allegations “clearly and
unequivocally” establish the following elements: (1) that the underlying judgment was
rendered by a court of competent jurisdiction; (2) that the same parties or their privies
were involved in both suits; (3) that the same claim or cause of action was asserted in
both suits; and (4) that the underlying judgment was final and on the merits. Id. (citing
Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998)). As this Court has explained,

       [i]n order to succeed on a plea of res judicata, or estoppel by judgment, the
       party raising the defense . . . must carry the burden of proving it. Carter
       County v. Street, 36 Tenn. App. 166, 252 S.W.2d 803 (1952). To carry that
       burden, the party raising the defense must generally put in evidence the
       record or a copy of the record of the former case. American National
       Bank v. Bradford, 28 Tenn. App. 239, 188 S.W.2d 971 (1945). If the
       record does not conclusively show that a particular matter was determined
       in the former proceeding, the party relying on res judicata as a defense
       must supplement the record by other proof. Carter County v. Street, 36
       Tenn. App. 166, 252 S.W.2d 803 (1952). “Parol evidence is always
       admissible to show the fact, even if it appears prima facie that a question
       has been adjudicated, where the record does not show that it was actually
       settled.” Fowlkes v. State, 82 Tenn. (14 Lea) 14, 19 (1884); see also
       Borches & Co. v. Arbuckle Bros., 111 Tenn. 498, 78 S.W. 266 (1903).

                                             -4-
Gregory v. Gregory, 803 S.W.2d 242, 243-44 (Tenn. Ct. App. 1990). In addition, “[i]f
there is any uncertainty to the matter formerly adjudicated, the burden of showing it with
sufficient certainty by the record or extrinsically is upon the party who claims the benefit
of the former judgment.” Id. at 244 (citing Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d
841, 843 (1943)).

        Generally, res judicata bars a second suit between the same parties or their privies
on the same cause of action with respect to all issues that were or could have been
litigated in the former suit. State v. Thompson, 285 S.W.3d 840, 848 (Tenn. 2009)
(citing Massengill v. Scott, 738 S.W.2d 629 (Tenn.1987)). “In the context of a civil case,
collateral estoppel (also known as issue preclusion) has been described as an extension of
the doctrine of res judicata (also known as claim preclusion).” Id. (citing Massengill,
738 S.W.2d at 631-32). Collateral estoppel operates to bar a second suit between the
same parties and their privies on a different cause of action only as to issues which were
actually litigated and determined in the former suit. Id. The party invoking the doctrine
of collateral estoppel must demonstrate that: (1) the issue sought to be precluded is
identical to the issue decided in the earlier suit; (2) the issue sought to be precluded was
actually litigated and decided on the merits in the earlier suit; (3) the judgment in the
earlier suit has become final; (4) the party against whom collateral estoppel is asserted
was a party or is in privity with a party to the earlier suit; and (5) the party against whom
collateral estoppel is asserted had a full and fair opportunity in the earlier suit to litigate
the new issue now sought to be precluded. Beaty v. McGraw, 15 S.W.3d 819, 824-25
(Tenn. Ct. App. 1998) (internal citations omitted).

       Mr. Harris brought his general sessions lawsuit on averments of “breach of
contract, unjust enrichment, double billing, in the amount of $21,720.00.” In his second
appellate issue, supra, Mr. Harris also argues that the total fees Ms. Steward billed were
“unreasonable[] pursuant to Tenn. Sup. Ct. Rule 8, RPC 1.5.” As noted above, in its
order of June 6, 2016, the probate court awarded Ms. Harris $23,408.37 of the
$49,245.00 in attorney’s fees and expenses she requested. Furthermore, in its June 3,
2016 order, the probate court held that it did not dispute the hours Ms. Steward billed.
Neither party appealed this order. It is undisputed that during the pendency of the
probate matter, Mr. Harris paid Ms. Steward an additional $14,653.00 in fees and
$2,500.00 in expenses under the contract. After the probate court awarded Ms. Steward
$23,408.37, to recover the balance remaining on the $49,245.00 in fees and costs, she
sought a lien in the probate court against any proceeds due to Mr. Harris from the
common fund. In response to Ms. Steward’s request for an attorney’s lien, on or about
July 28, 2016, Mr. Harris filed a “Motion to Withhold Attorney Fees” in the probate
court. Therein, he argued, in relevant part, that:

       2. Attorney Stewar[d] is demanding that [Mr. Harris] pay her the
       difference between the court ordered amount of [$23,408.37] and the
       amount of $49,245.00 that she petitioned the court for in her petition for
                                        -5-
      attorney fees.
      3. [Mr. Harris] has paid [Ms. Steward] at least $14,653.00 in attorney fees
      and at least $2,500 in expenses in this case.
      4. That a hearing be had to determine how much should be awarded to
      [Ms. Steward] and how much should be paid to [Mr. Harris] by the probate
      court clerk.
      5. That the court issue an order to the clerk requiring reimbursement of
      fees paid by [Mr. Harris] . . . to [Ms. Steward] from the amount awarded to
      [Ms. Steward].

        In his motion, Mr. Harris clearly asks the probate court to review the
reasonableness of Ms. Steward’s entire fee of $49,245.00. He brings to the court’s
attention the fact that he paid Ms. Steward an additional $17,153.00 in fees and expenses.
Finally, Mr. Harris asks the probate court to reimburse him at least a portion of the
$17,153.00 from the $23,408.37 awarded to Ms. Steward from the common fund.

      Concurrent with his motion to withhold attorney’s fees, Mr. Harris filed, in the
probate court, a document titled “Plaintiff’s Pro Se Objection to Plaintiff’s Attorney’s
Supplemental Petition for Attorney Fees,” wherein he states, in relevant part:

      COMES NOW THE PLAINTIFF, John W. Harris, Jr. . . . and [moves] the
      Court for an order denying Plaintiff[’s] Attorney Robin Steward’s motion
      for the amount of attorney fees $41,245.

      1. The Court has ruled in a previous order dated June 3, 2016 that
      Steward’s fee should be $20,795 plus $2,613.12 in expenses.
      2. Plaintiff John Harris has already paid Steward over $13,000 in attorney
      fees and over $2,500 in expenses . . . which means that Steward is guilty of
      double billing by wanting to keep the money already paid by plaintiff . . .
      plus $20,795 and expenses awarded by the Court in this cause.
      3. In asking the Court to allow Ms. Steward to go after the $49,245 is
      vindictive, retaliatory and unjust enrichment . . . .
      4. The fact that Ms. Steward never once sent Harris a time sheet or a bill
      indicating how much her fee would be creates an opportunity for adjusting
      time to fit the desired effect of unjust enrichment.
      5. I, John Harris never imagined that Ms. Steward’s time sheet was as
      represented to the Court in her petition for attorney fees. If I had known
      that her time would not be covered by the common fund as in other
      partition cases, I would have terminated our relationship earlier in the case.
      6. I was told by Ms. Steward that most of the information and time needed
      had been spent when I paid her the payment amounting to $12,000 . . . .
      7. I have always been lead to believe by the petitioner Ms. Steward that the
      doctrine of the common fund would be applied in this case . . . as indicated
                                             -6-
      in the letter to Harris, dated July 25, 2013 also included in that letter
      Steward cited TCA 29-27-121, which states attorney fees can be paid out of
      the common fund . . . .
      8. Petitioner Steward stated in the same letter “It is my firm belief that the
      Judge will in fact allow you to be reimbursed for monies expended for my
      attorney fees and expenses, but it must be clear between the two of us, it is
      your place to pay me as I work on this matter. Any monies awarded by the
      judge for services would be reimbursed to you.”
      9. Steward failed to ask the Court as promised in that letter to ask the Court
      to reimburse me for the attorney fees and expenses paid by me, which is a
      breach of contract. Instead of asking that I be reimbursed, she asked the
      Court to award her $49,215 without any mention of the fact that she has
      already been paid by me at least $13,000. Now she is asking the Court to
      award her $20,795.25 plus the amount already paid by me plus asking me
      to pay the difference up to $41,245.

        As noted above, the July 25, 2013 letter, which Mr. Harris references in the above
filing, was sent from Ms. Steward to Mr. Harris. The letter states, in relevant part:

             Our agreement . . . was for payment of an initial retainer of $3,500 to
      be charged against at the rate of $210 per hour plus reasonable and
      necessary litigation expenses. You and I agreed that you would do as much
      of the leg work as possible and that, in truth, most of the time expended
      would be in the beginning when we are trying to determine the heirs and
      their percentages, and filing the partition suit itself. At the time you
      retained me, you asked me if you would be reimbursed the monies paid to
      me out of the sales price for the property. I told you that I believed you
      would because the sale of the property benefited all of the heirs . . . .

                                           ***

      As [of] right now you, and only you, are responsible for my attorney fee
      and expenses because you, and only you, are currently my client. When the
      time comes, which is when the property is sold and the proceeds are paid
      into court, we can formally ask the court that you be reimbursed out of the
      “common fund” those expenses which you have incurred in moving this
      partition action forward, my fees and expenses, as well as your own
      expenses.

                                           ***

             At this point, what I need to make clear to you is that this two acre
      tract has [] many heirs . . . . The fact that it is such a small amount of land
                                            -7-
       doesn’t detract from what has to be done to clear title and sell the property.
       It is my firm belief that the judge will in fact allow you to be reimbursed for
       monies expended for my attorney fees and expenses but, it must be clear
       between the two of us, it is your place to pay me as I work on this matter.
       Any monies awarded by the judge for my services would be reimbursed to
       you. If there is a difference between what the court orders, and what I have
       been paid, and I have no reason to belief sic] there will be, you would still
       be responsible for any difference.

The letter was signed by Ms. Steward and was acknowledged by Mr. Harris, by his
signature, on July 27, 2013.

        Based on the July 25, 2013 letter, Mr. Harris’ motion asked the probate court for
the following relief:

       1. The Court reimburse Harris his expenditures for attorney fees of
       $13,000 and $3,500 in expenses.

                                             ***

       3. That any amount above the awarded amount in the June 3, 2016 ruling
       would be unjust and unreasonable enrichment.
       4. That Steward’s failure to ask the Court to award Harris his expenditures
       in the case is a breach of the contract, a failure to act in the best interest of
       her client Harris.
       5. That Steward’s action be ruled an act of double billing.

Along with his motion, Mr. Harris filed a “fee affidavit” seeking reimbursement of the
following expenditures: (1) “Attorney Fees Paid to Robin Steward $14,653;” and (2)
“Court Reporter, Postage and miscellaneous fees $3,240.”

        All of the foregoing filings, as well as Ms. Steward’s petition for lien, were before
the trial court for hearing on August 12 and September 8, 2016. In its September 29,
2016 order, the trial court notes that it was in possession of the following proof: (1) Fee
Agreement dated June 10, 2013 by and between Ms. Steward and Mr. Harris; (2) [letter]
from Robin Steward to John Harris dated July 25, 2013, supra; (3) Receipt for payment
of legal fees from Mr. Harris to Ms. Steward. The trial court’s order also states that Mr.
Harris testified at the hearing (our record does not contain this portion of the hearing
transcript). The order further states that, “[a]fter the conclusion of the hearing, the Court
also considered the argument of Petitioner and counsel for the Respondent,” and
“consider[ed] the merits of the petition. . . .”


                                             -8-
       Based on the foregoing evidence, the trial court affirmed its previous award of
$23,408.37 pursuant to its June 3, 2016 order. Specifically, the September 29, 2016 order
states that, “[a]fter having reviewed the attorney fee petition requests . . . the Court
determined the reasonable fee due to each attorney for legal work performed on this
matter, and entered the Order that the reasonable fee due attorney Robin L. Steward
totaled $20,795.25 plus $3,190.94 in expenses.” The probate court further held that,
“[T]his Court will not disturb or change any fees previously paid by Mr. Harris to Ms.
Steward,” but denied Ms. Steward any other fees from the common fund. Neither party
appealed the September 29, 2016 order.

        As found by the trial court, the breach of contract and unjust enrichment claims
Mr. Harris brought in the trial court are barred as res judicata. Likewise, Mr. Harris’
objection to the reasonableness of fees Ms. Steward billed in the probate court is barred
as res judicata. Mr. Harris clearly raised his claims of “double billing,” “unjust
enrichment” in the probate court. As set out in context above, Mr. Harris’ “Pro Se
Objection to Plaintiff’s Attorney’s Supplemental Petition for Attorney Fees,” specifically
asserts that: (1) “Plaintiff John Harris has already paid Steward over $13,000 in attorney
fees and over $2,500 in expenses . . . which means that Steward is guilty of double
billing by wanting to keep the money already paid by plaintiff . . . plus $20,795 and
expenses awarded by the Court in this cause;” and (2) “In asking the Court to allow Ms.
Steward to go after the $49,245 is vindictive, retaliatory and unjust enrichment . . . .”
(Emphases added). By his filings in the probate court, Mr. Harris also raised a claim for
breach of contract. The basis of Mr. Harris’ breach of contract claim rests, in part, on the
July 25, 2013 letter from Ms. Steward to Mr. Harris. Mr. Harris contends that, in the
letter, Ms. Steward promised to seek reimbursement of his out-of-pocket payments
through the common fund and assured him that “[a]ny monies awarded by the judge for
my services would be reimbursed to you.” Mr. Harris claims that Ms. Steward “failed to
ask the Court[,] as promised in that letter[,] . . . to reimburse me for the attorney fees and
expenses paid by me, which is a breach of contract.” Mr. Harris explains that, “[i]nstead
of asking that I be reimbursed, she asked the Court to award her $49,215 without any
mention of the fact that she has already been paid by me at least $13,000.”

         All of the foregoing claims were before the probate court at the hearing on Ms.
Steward’s petition for attorney’s lien. Furthermore, prior to the probate court’s entry of
its first order on attorney fees, i.e., June 3, 2016, Mr. Harris knew the full amount of Ms.
Steward’s billing (i.e., $49,245.00). Thus, he was in possession of sufficient facts and
information to assert that the total bill Ms. Steward submitted was unreasonable.
However, even if we allow, arguendo, that the probate court’s June 3, 2016 order is
unclear as to whether the “reasonable” fee due Ms. Steward was her full bill of
$49,245.00 or the $23,408.37 awarded, in its September 29, 2016 order, the probate court
reiterated its finding that the determination of a reasonable fee award for each attorney
was based on the funds available in the common fund. In this same order, the probate
court denied Mr. Harris’ request for reimbursement of amounts he paid to Ms. Steward
                                               -9-
over and above the $23,408.37 she received from the common fund. Mr. Harris did not
appeal this order.

        As set out in its September 29, 2016 order, the probate court considered: (1) the
July 25, 2013 letter (which forms the basis of Mr. Harris’ breach of contract claim); (2)
the fee agreement by and between the parties (which forms the basis of Mr. Harris’
unreasonable fee argument); and (3) the receipts for Mr. Harris’ payments to Ms. Steward
during the pendency of the probate matter (which payments form the basis of Mr.
Steward’s unjust enrichment and double billing claims). The probate court also
considered Mr. Harris’ arguments as set out in his filings in the probate court, supra, and
in his testimony at the hearing. As noted in its order, the probate court “consider[ed] the
merits” of the case in reaching its decision to affirm its previous award to Ms. Steward
from the common fund, to deny Ms. Steward her lien, and to leave, undisturbed, any
payments made by Mr. Harris during the pendency of the probate case. In this regard,
Mr. Harris’ breach of contract, unjust enrichment, double billing, and reasonableness
claims were fully adjudicated in the probate court. As such the trial court did not err in
dismissing Mr. Harris’ lawsuit, in which he asserts claims previously adjudicated by the
probate court, on grounds of res judicata and collateral estoppel.

                           V. Damages for Frivolous Appeal

       Ms. Steward asks this Court to award damages (in the form of attorney’s fees) for
frivolous appeal under Tennessee Code Annotated Section 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 decision whether to award damages for a frivolous appeal rests solely in this Court’s
discretion. Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). “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). We find that this appeal is not so devoid of merit as to characterize it as
frivolous. Accordingly, we exercise our discretion to decline Ms. Steward damages for
frivolous appeal.

                                     VI. Conclusion

      For the foregoing reasons, we affirm the order of the trial court dismissing
Appellant’s lawsuit. The case is remanded to the trial court for such further proceedings
                                        - 10 -
as may be necessary and are consistent with this opinion. Costs of the appeal are
assessed to the Appellant, John W. Harris, Jr., for all of which execution may issue if
necessary.




                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




                                        - 11 -
