                     IN THE COURT OF APPEALS
                           AT KNOXVILLE
                                                          FILED
                                                          January 28, 2000

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk

                                     E1999-02545-COA-R3-CV
                                 )   BLOUNT COUNTY
CAROLYN TURNER,                  )   03A01-9903-CV-00111
                                 )
     Plaintiff/Appellant,        )
                                 )
     v.                          )
                                 )   HON. W. DALE YOUNG
MONROE FARMERS COOPERATIVE,      )   JUDGE
                                 )
      Defendant/Appellee.        )
                                 )
                                 )
                                 )   AFFIRMED AND REMANDED
                                 )




HUBERT D. PATTY, Maryville, for Appellant

ANDREW R. TILLMAN, Knoxville, for Appellee



                            O P I N I O N




                                                      Goddard, P.J.



          This appeal involves the issuance of a worthless check.

Carolyn Turner, the Plaintiff/Appellant, filed this action in

which she alleged malicious prosecution and outrageous conduct

against the Monroe Farmers Cooperative, the Defendant/Appellee,

after charges against her for issuing a worthless check were

dismissed.   The Co-op counterclaimed against Mrs. Turner and her

husband, John Turner, and her son, Ty Turner, as third-party
defendants by asking for payment in the amount of $2,154 for a

load of feed.      The Turners, who were doing business as Bestway

Feeds, had purchased the feed with the worthless check.

            Mrs. Turner presents four issues, which we restate, for

our consideration:



           1. Whether she was entitled to partial
           summary judgment;


           2. Whether her failure to complete
           a small portion of all discovery demanded
           by the Co-op was sufficient to warrant a
           dismissal of her suit;


           3. Whether the Co-op was entitled to summary
           judgment on a debt alleged due without specific
           proof;1 and


           4. Whether she is entitled to sanctions against the
           Co-op based upon the pleadings filed in the judicial
           proceedings.




            We are compelled to note that we had some difficulty in

discerning the arguments put forth by Mrs. Turner’s counsel in

his brief.    We suggest that in the future, counsel submit briefs

in which the issues presented to this Court are fully and

adequately argued.




     1
       Although Mrs. Turner raises this as an issue in her brief, she fails to
submit an argument for it. Therefore, the issue is considered waived.

                                       2
            The Trial Court granted summary judgment for the Co-op

                                           2
on Mrs. Turner’s original claim.               In light of the fact that no

issue was raised relative to the summary judgment in favor of the

Co-op on Mrs. Turner’s original claim, only issue one remains to

be addressed.




            The facts of this case are in dispute.           According to

Mrs. Turner, her husband John owns a business called Bestway

Feeds located in Maryville, Tennessee.             She insists that she is

not an owner of the business and does not participate in the

operation of the business.        However, she does make bank deposits.




            Mrs. Turner stated that sometime around April 16, 1997,

Joel Moss, an agent for the Co-op, came to Bestway Feeds and

demanded payment of $2,154 because the bank on which the check

had been drawn returned it for insufficient funds.




            Mrs. Turner insists that Mr. Moss went to the “Blount

County General Sessions Court and made a sworn statement that

Carolyn Turner had issued the check and caused a warrant to issue

resulting in her arrest” and in her placement in jail.



     2
       Mrs. Turner also filed a lawsuit against the Co-op in the United States
District Court for the Eastern District of Tennessee for violation of her
civil rights. The Court dismissed the lawsuit and imposed Rule 11 sanctions
against Mrs. Turner’s attorney.

                                       3
          On the other hand, the Co-op maintains that a check

bearing the business name of Bestway Feeds was issued to it for

$2,154 on April 15, 1997.    The Co-op stated that approximately

one month before, on March 12, 1997, Mrs. Turner had opened the

Bestway Feeds account at BankFirst as a sole proprietorship.




          The Co-op contends that over approximately four years,

Mrs. Turner had moved the business bank account several times and

had used variations of her name and initials in opening these

different accounts.   In addition, the Co-op insists that Carolyn

Turner, her husband, and her son alternately held themselves out

as the actual owner of the business.   The Co-op maintains that

the Turners wanted to create confusion as to the true owner of

the business because they owed numerous creditors.




          The check at issue in this case was signed by Ty

Turner, Mrs. Turner’s son.   The Co-op insists that Ty Turner had

actual and apparent authority to sign the check for Bestway

Feeds.   The Co-op maintains that Mrs. Turner knew that her son

wrote checks, that he paid some of her bills, such as the

electric bill, out of the account; “that there were no

limitations on his rights and abilities as regarded the business;

that it was not at all unusual for him to sign Carolyn Turner’s

payroll checks and to endorse checks made to the feed company;

                                4
and that he in fact signed at least 42 checks drawn on that

account.”     It further contends that if Ty Turner did not have

the authority to sign the check, Mrs. Turner and her husband

ratified his signing of the check “by accepting the feed, selling

the feed, and subsequently agreeing to pay the check either on a

payment schedule or by trade.”             The Co-op has not received

payment from the Turners for the feed.




            On June 26, 1997, Mr. Moss obtained an arrest warrant

from the Blount County General Sessions Court for a worthless

check violation.      Judge William R. Brewer, Jr. testified in his

affidavit as follows:

      I spoke to the person seeking the warrant and he
      relayed to me that Carolyn Turner was not personally
      present and did not personally sign the check upon
      which she was being prosecuted. Since the check was
      written on a business, for goods used by the business,
      and signed by someone at the business, I authorized the
      warrant to issue under the belief that there was
      probable cause to support the warrant.


The Co-op explains that Joel Moss “relied on Judge Brewer and his

clerk to determine whether or not Carolyn Turner could be

prosecuted, and he signed an affidavit3 prepared by Judge

Brewer’s clerk with the understanding that the affidavit

reflected what he had related to the Judge and his clerk.”




     3
       The affidavit, in fact, charges that Mrs. Turner had “given” affiant the
check and also that she “did issue same.”

                                       5
          Mrs. Turner filed this cause of action for malicious

prosecution and outrageous conduct against the Co-op on the basis

that Mr. Moss obtained the warrant by falsely stating that she

had personally signed the worthless check.   Mrs. Turner sought

$7.5 million in damages.




          The Co-op insists that it attempted to move forward

with discovery in the case.    However, because Mrs. Turner was not

forthcoming with the requested documents, the Co-op filed a

Motion to Compel Answers to Interrogatories and Production of

Documents and Production of Witnesses for Oral Deposition on

November 13, 1997.   On December 18, 1997 the Trial Court granted

the Co-op’s motion to compel.




          Notwithstanding the Trial Court’s order, Mrs. Turner

and other members of her family resisted the Co-op’s attempts at

discovery.   On one occasion, John Turner denied the Co-op access

to Bestway’s warehouse where the records were housed, and on

another occasion, Mrs. Turner provided only two banks with which

they had done business.    However, the papers located at Bestway’s

office indicated that the Turners had done business with as many

as seven other banks.




                                 6
            The Trial Court granted summary judgment for the Co-op

on its counterclaim against Mrs. Turner and on Mrs. Turner’s

original claim against it.    Alternatively, the Trial Court

dismissed her claim with prejudice as a discovery sanction.



            In her first issue, Mrs. Turner argues that the Trial

Court erred in not granting her partial summary judgment.      She

maintains that the Co-op “did not file any opposing affidavits

but the defendant’s attorney filed an affidavit that did not

comply with requirements of opposing affidavit, merely stating

opinion and conclusions,” which was in violation of Rule 56.06 of

the Tennessee Rules of Civil Procedure.




            The Co-op, however, argues that the Trial Court

properly denied Mrs. Turner’s motion for partial summary

judgment.   It asserts that Mrs. Turner’s motion was premature

since it was filed before discovery depositions of the parties

had been taken.   Also, the Co-op contends that because Mrs.

Turner’s motion for partial summary judgment had several

deficiencies, the Trial Court could have denied the motion based

on those deficiencies: her motion for partial summary judgment

was not accompanied by a statement of undisputed facts as

required by Rule 56.03 of the Tennessee Rules of Civil Procedure,

and she “neglected to cite the court to any applicable law which

would entitle her to summary judgment on her claims.”    Therefore,



                                 7
the Co-op insists that the Trial Court properly denied the

motion.




           Summary judgment is appropriate if the movant

demonstrates that no genuine issues of material fact exist

pursuant to Rule 56.03 of the Tennessee Rules of Civil Procedure.

This Court reviews a grant of summary judgment by the Trial Court

de novo.   Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 279

(Tenn. 1999).




           After reviewing the record, we conclude that ample

evidence exists to support the Trial Court’s denial of Mrs.

Turner’s motion for partial summary judgment.   Therefore, in

light of our affirmance of this issue, we need not address the

sanction aspect of the judgment.




           The Co-op insists that it should receive damages for

the expense of defending against Mrs. Turner’s frivolous appeals,

pursuant to Tennessee Code Annotated § 27-1-122.   It contends

that Mrs. Turner and her attorney pursued this frivolous appeal

and cannot provide this Court with any reason to reverse the

Trial Court’s judgment.   Thus, the Co-op asserts that it is

entitled to damages “in the amount of all its attorney fees,



                                   8
costs, and expenses of this appeal, and whatever other remedies

this Court deems appropriate.”




          Tennessee Code Annotated § 27-1-122 provides in

pertinent part:

               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.




          “A frivolous appeal is one that is ‘devoid of merit.’”

Industrial Development Board of City of Tullahoma v. Hancock, 901

S.W.2d 382, 385 (Tenn. Ct. App. 1995) (quoting Combustion

Engineering, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)). See

also Wells v. Sentry Insurance Company, 834 S.W.2d 935, 938

(Tenn. 1992); Clay v. Barrington Motor Sales, Inc., 832 S.W.2d

33, 35 (Tenn. Ct. App. 1992).




          In light of the fact that no issue is raised as to the

principal point of contention–-Mrs. Turner’s original claim for

malicious prosecution, we find this appeal to be frivolous.




                                 9
          Based on the foregoing, we affirm the judgment of the

Trial Court in all respects, and remand the cause to the Trial

Court for determination of damages, pursuant to Tennessee Code

Annotated § 27-1-122.   Costs of this appeal are adjudged against

Mrs. Turner and her surety.




                                     _________________________
                                     Houston M. Goddard, P.J.



CONCUR:



____________________________
Herschel P. Franks, J.



____________________________
Charles D. Susano, Jr., J.




                                10
