                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 February 17, 2009 Session

 JAMES DANIEL RICHARDSON ROBERTS, JR. v. CHAMPS-ELYSEES,
                       INC., ET AL.

                     Appeal from the Circuit Court for Davidson County
                         No. 07C3747      Walter C. Kurtz, Judge



                     No. M2008-01577-COA-R3-CV - Filed May 28, 2009


Appellant challenges the dismissal of his malicious prosecution action and the imposition of Rule
11 sanctions. Finding that an essential element of Appellant’s cause of action had been negated, the
trial court’s dismissal is affirmed. Finding there to be no abuse of discretion, the trial court’s
imposition of sanctions is affirmed. Finding this appeal to be frivolous as to one of the Appellees,
we remand the case for the trial court to determine the damages to be awarded.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR and
ANDY D . BENNETT , JJ. joined.

Janet L. Layman, Nashville, Tennessee, for the appellant, James Daniel Richardson Roberts, Jr.

Eugene N. Bulso, Jr., Nashville, Tennessee, for the appellees, Champs-Elysees, Incorporated and
Edna L. Green.

                                            OPINION

I. Factual and Procedural History

        Attorney James Daniel Richardson Roberts, Jr. (hereinafter “Mr. Roberts”) filed this action
in Davidson County Circuit Court against Champs-Elysees, Inc. and Edna L. Green, a director,
shareholder, and employee of Champs-Elysees, Inc., alleging the defendants maliciously prosecuted
a contempt action against him for his alleged misconduct in a previous but separate action. In the
previous action, Mr. Roberts was the attorney of record for John Wesley Green, the founder and
former president of Champs-Elysees, Inc., who filed a declaratory judgment action in Davidson
County Chancery Court against Ms. Green, seeking to have a stock-sale contract by which she agreed
to sell her stock in Champs-Elysees, Inc. to him declared valid and enforceable. The trial court
granted a motion to intervene filed in the suit by Champs-Elysees, Inc. alleging that Mr. Green had
misappropriated funds from the company; Mr. Green filed a countercomplaint against Champs-
Elysees, Inc. On July 21, 2006, the court found in favor of Champs-Elysees, Inc. and Ms. Green
(collectively herein referred to as “Appellees”), awarded Champs-Elysees, Inc. judgment in the
amount of $46,000, and granted Ms. Green rescission of the stock-sale contract.1 Mr. Green filed
an appeal to this Court, which affirmed in part and reversed in part and remanded the case to the trial
court. The Appellees herein filed a Rule 11, Tenn. R. App. P., application with the Tennessee
Supreme Court, which granted permission to appeal and where the matter is currently pending.

        Mr. Green did not file a bond to stay execution on the judgment pending appeal. On October
23, 2006, the Davidson County Clerk & Master issued a writ of execution, directing the Sheriff to
sell Mr. Green’s stock in Champs-Elysees, Inc. to satisfy the $46,000 judgment against him. On
December 14, Mr. Roberts filed, on behalf of Mr. Green, a document styled “Motion For Temporary
Injunction (Restraining Order) Or In The Alternative Motion To Quash Execution And/Or Motion
To Stay Execution Pending Appeal,” based on numerous alleged deficiencies in the proposed sale
of the stock in execution on the judgment. No hearing on the motion was held prior to December
22, and the Sheriff’s sale took place as scheduled on that date. Champs-Elysees, Inc. purchased the
stock at the sale for court costs, plus $0.50.

         The motion which had been filed on December 14, 2006, was heard on January 5, 2007, but
was dismissed as moot since the sale had already taken place. On January 19, Mr. Roberts filed, on
behalf of Mr. Green, a document styled “Motion to Alter or Amend Order Denying Motion to Quash
or in the Alternative Motion to Set Aside Execution Sale,” which was denied on February 2. Mr.
Green appealed to this Court; that appeal is currently being held in abeyance pending resolution of
the first matter by the Tennessee Supreme Court.

        On December 22, 2006, Champs-Elysees, Inc. filed a Motion to Show Cause against Mr.
Roberts, requiring him to show cause “as to why he should not be held in contempt” based on his
alleged interference with the execution sale.2 Champs-Elysees, Inc. withdrew the motion when told
by the trial court that it was not procedurally proper3 and on January 12, 2007, filed a Petition for


         1
         The underlying facts of the case are not relevant; the only part pertinent to this appeal is the trial court’s award
of damages.

         2
           Prior to the sale of Mr. Green’s stock in Champs-Elysees, Inc., the Sheriff’s Department distributed a “Notice
of Sheriff’s Sale” (“Notice”). The motion which had been filed on December 14 identified a typographical error on the
Notice, which misspelled Champs-Elysees, Inc. as “Champs-Elyees,” as a deficiency in the writ of execution. Also on
December 14, 2006, George Armstrong, sought and was issued a corporate charter from the Tennessee Secretary of State
for a corporation called “Champs-Elyees, Inc.” - the same spelling as was found on the Notice. Mr. Armstrong testified
during a later hearing that the formation of Champs-Elyees, Inc. was Mr. Roberts’ idea and that Mr. Armstrong formed
the company as a favor to Mr. Roberts.

         3
          At the January 5, 2007, hearing on the Motion to Quash, the trial court addressed Champs-Elysees, Inc.’s
Motion to Show Cause by stating:
                                                                                                    (continued...)

                                                            -2-
Contempt (“Petition”), alleging that “Mr Roberts intentionally attempted to disrupt the execution sale
in order to frustrate the sale of his client’s stock through the ex post facto formation of a bogus entity
by the name of ‘Champs-Elyees Inc.’” A hearing on the Petition was scheduled for February 20,
2007. For her part, Ms. Green did not join in either the Motion to Show Cause or the Petition.

         On February 15, 2007, Mr. Roberts filed a motion seeking dismissal of the Petition, asserting
that it failed to allege misconduct which rose to the level of contempt. The February 20 hearing on
the Petition was suspended because Mr. Armstrong, who was subpoenaed to testify, failed to appear;
the hearing was reset for February 28. On February 26, Mr. Roberts filed an Answer to the Petition
and a supplement to his Motion to Dismiss; a second supplement to the Motion to Dismiss was filed
on February 28.4

         Following the hearing on February 28, the court entered its order on April 4. The order
stated, inter alia, that “[t]he Court is of the opinion that Mr. Roberts’ conduct rises to the level of
criminal contempt” but that it could not impose sanctions because Mr. Roberts “was not charged
with criminal contempt” and was not “[g]iven the due process requirements triggered by a criminal
contempt action.” However, the order went on to state that “the Court finds Mr. Roberts’ testimony
throughout this proceeding to be evasive and untruthful, which causes the court grave concern about
Mr. Roberts’ veracity as an officer of the Court and as a witness under oath.” The order directed the
clerk of the court to “forward to the Board of Professional Responsibility a copy of the transcripts
from the contempt hearing and all orders issued pursuant to the [Petition].”

         On December 20, 2007, Mr. Roberts filed the instant suit for malicious prosecution against
the Appellees contending that the Motion to Show Cause and the Petition were filed against him for
the purpose of harassing him. The complaint sought over $2,000,000 in compensatory and punitive
damages.5 On January 18, 2008, the Appellees filed a Motion to Dismiss for failure to state a claim
for relief, asserting that the claim was “not premised on a prior suit or legal proceeding, but rather
a Motion to Show Cause, as to which [Mr. Roberts] was not even the prevailing party” and, further,

         3
          (...continued)
                   ...[A] motion to show cause is not proper...because if it’s sanctions that you were requesting,
         it has to be done by a petition. There has to be service on the Defendant...[I]n the past, when an
         attorney has filed a motion to show cause, I usually advise them that I am not in the position to grant
         a motion to show cause.
                   ...[T]he reason is because you do have to give proper service, and you have to have an
         order...ordering a person to appear and show cause why they shouldn’t be held in contempt. And part
         of what you have put in here may warrant that, but I can’t do that on a motion.
         ***
                   ...I regard the power that I have to hold someone in contempt to be one that I don’t use
         lightly, and therefore, if you feel strongly about this, you need to do it properly, and that’s by petition.

         4
           The record does not contain an order disposing of the Motion to Dismiss, but the transcript of the hearing
suggests that the trial court did not consider the motion because it was not filed more than five days prior to the hearing,
as required by the local rules.

         5
             Mr. Roberts filed an amended complaint to request a jury be empaneled.

                                                             -3-
that the malicious prosecution claim should fail as to Ms. Green because she was not a party to the
motion. On March 14, the trial court heard the Motion to Dismiss6 and granted the motion by order
entered on March 24, finding that the “contempt proceeding in Chancery Court was. . . not
terminated in Mr. Roberts’ favor, which is an essential element for a claim for malicious
prosecution.”

       Also on March 14, the Appellees filed a motion seeking sanctions against Mr. Roberts for
allegedly violating Rule 11, Tenn. R. Civ. P.; Mr. Roberts filed a response to the motion on March
24. Following a hearing on April 4, the court granted the motion, finding that “the filing of [the
malicious prosecution] action was objectively unreasonable.” Mr. Roberts was ordered to pay
attorneys’ fees and expenses in the amount of $4,000 to Ms. Green and $2,500 to Champs-Elysees,
Inc. On April 22, Mr. Roberts filed a Motion to Alter or Amend the Judgment on a number of
grounds; the motion was supplemented on May 30. The trial court denied the motion by order
entered on June 25.

         Mr. Roberts appeals, asserting the following issues:

         1. Whether the trial court erred in granting the Appellees’ Rule 12.02 Motion to
         Dismiss.

         2. Whether the trial court erred by imposing Rule 11 sanctions.

         Appellees raise the following issue:

         1. Whether Mr. Roberts’ appeal is frivolous.

II. Analysis

         A. Motion to Dismiss

       When considering a Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss, matters outside the
pleadings should not be considered. Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691,
696 (Tenn. 2002). If a trial court does consider materials outside the pleadings, then Rule 12.02,
Tenn. R. Civ. P., provides that a motion to dismiss “shall be treated as one for summary judgment
and disposed of as provided in Rule 56.” The trial court’s order stated that it “has reviewed the
Motion [to Dismiss], the memoranda and other papers submitted in connection therewith, and has


         6
           The Appellees’ Motion to Dismiss was initially granted by default on February 6, 2008, based on M r. Roberts’
attorney’s failure to file a Response to the Motion to Dismiss. Mr. Roberts filed a Motion to Vacate Judgment; a hearing
was held on February 22, 2008. The trial court granted the motion in an order entered on February 26, 2008, finding
that, pursuant to Rule 60.02, Tenn. R. Civ. P., Mr. Roberts’ attorney “admitted some degree of neglect in [Appellees’]
Order of Dismissal being granted by default.” The trial court’s grant of the motion, however, was conditioned upon Mr.
Roberts’ attorney’s payment of the Appellees’ attorneys’ fees. Mr. Roberts’ attorney subsequently paid the Appellees’
attorneys’ fees and filed a Response to the Motion to Dismiss on March 10, 2008.

                                                          -4-
heard arguments of counsel.” Since the trial court considered materials outside the pleadings, this
Court will review the trial court’s action using the standard applicable to a ruling on a Rule 56, Tenn.
R. Civ. P., summary judgment motion.7

        Summary judgment is appropriate where a party establishes that there is no genuine issue as
to any material fact and that a judgment may be rendered as a matter of law, see Tenn. R. Civ. P.
56.04; Stoval v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003), and should be granted at the trial court
level when the undisputed facts, and the inferences reasonably drawn from the undisputed facts,
support one conclusion, which is the party seeking the summary judgment is entitled to a judgment
as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.2002);
Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W. 3d 265, 269 (Tenn. 2001). To be entitled to
summary judgment, the moving party must affirmatively negate an essential element of the non-
moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving
party’s claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000). Summary judgments
do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. V. Johnson,
100 S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1977).

        Neither party to this appeal asserts that there is a dispute as to any material fact; therefore,
our review will focus upon whether the Appellees were entitled to a dismissal of the action as a
matter of law.

        To succeed in a claim for malicious prosecution, “[a] plaintiff must show (a) that a prior
lawsuit or judicial proceeding was brought against the plaintiff without probable cause, (b) that the
prior lawsuit or judicial proceeding was brought against the plaintiff with malice, and (c) that the
prior lawsuit or judicial proceeding terminated in the plaintiff’s favor.” Parrish v. Marquis, 172
S.W.3d 526, 530 (Tenn. 2005) (citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992)).8 The
trial court granted the motion to dismiss the malicious prosecution action because the contempt
proceeding upon which it was based was not terminated in favor of Mr. Roberts and, consequently,
Appellees had negated an essential element of his claim of malicious prosecution. Thus, the
determinative issue in this appeal is whether the termination of the contempt proceeding has the
effect of sustaining Mr. Roberts’ action for malicious prosecution.

         7
            In his brief on appeal, Mr. Roberts states that this court must review the trial court’s actions using the standard
of review applicable to motions under Rule 12.02, Tenn. R. Civ. P. and, in their brief, the Appellees agree. However,
in his reply brief, Mr. Roberts asserts that the standard of review applicable to summary judgment under Rule 56, Tenn.
R. Civ. P., is the appropriate standard. Despite Mr. Robert’s initial assertion, and the Appellees’ concurrence, that the
Rule 12.02, Tenn. R. Civ. P., standard must be used, this Court is obligated to review the grant of a M otion to Dismiss
based on the standard applicable to summary judgment if the trial court did not exclude materials outside the pleadings
in its consideration of the motion. See Tenn. R. Civ. P. 12.02 (holding that “[i]f...matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary judgment) (emphasis added).

         8
           The trial court’s order granting the M otion to Dismiss stated that “[b]oth the plaintiff and the defendants have
cited to and relied upon Parrish and recognize it as controlling.”

                                                             -5-
        “In determining whether a specific result was a favorable termination, a court must examine
the circumstances of the underlying proceeding.” Parrish, 172 S.W.3d at 531. In defining
“favorable termination,” the Tennessee Supreme Court relied on an opinion from the Supreme Court
of Vermont, which held:

         [I]f the manner of termination, including dismissal, reflects negatively on the merits
         of the case, it will be considered favorable to the defendant.... More specifically, if
         the dismissal somehow indicates that the defendant is innocent of wrongdoing, it will
         be considered a favorable termination.... On the other hand, if the reason for
         dismissal is “not inconsistent” with a defendant's wrongdoing, it will not be
         considered a favorable termination.... If the circumstances surrounding dismissal are
         ambiguous on this point, the determination should be left for trial.

Id. (quoting Siliski v. Allstate Ins. Co., 811 A.2d 148, 151 (Vt. 2002)); see also Sewell v. Par Cable,
Inc., 1988 WL 112915, at *3 (Tenn. Ct. App. Oct. 26, 1998) (holding that “[f]or purposes of a
malicious prosecution action, a favorable termination must be one indicating that the accused is
innocent...[a] disposition that does not indicate the plaintiff’s innocence is not considered a favorable
termination”).

        Mr. Robert’s complaint was based on the filing and pursuit of the Motion to Show Cause and
the Petition, which he contends were separate legal proceedings. Appellees assert that they withdrew
the Motion to Show Cause to re-file it as the Petition for Contempt, thereby creating only one legal
proceeding. For purposes of our review, since Mr. Roberts premised a separate claim for malicious
prosecution on each filing, we will consider whether both the Motion to Show Cause and the Petition
were terminated in his favor.9

        In support of his assertion that the Motion to Show Cause was terminated in his favor, Mr.
Roberts relies upon the Tennessee Supreme Court’s opinion in Christian v. Lapidus, 833 S.W.2d 71
(Tenn. 1992), which held “that abandonment or withdrawal of an allegedly malicious prosecution
is sufficient to establish a final and favorable termination so long as such abandonment or
withdrawal was not accomplished by a compromise or settlement, or accomplished in order to refile
the action in another forum.” Id. at 74. He contends that the Appellees withdrew the Motion to
Show Cause without a “compromise or settlement, or. . . in order to refile. . . in another forum,” and,
therefore, the withdrawal of the motion was a favorable termination upon which he could base a
malicious prosecution claim.

       The Appellees assert that their withdrawal of the Motion to Show Cause “could not possibly
form the basis for an action for malicious prosecution” because of the Tennessee Supreme Court’s
opinion in Parrish v. Marquis, 172 S.W.3d 526 (Tenn. 2005), which reconsidered its finding in
Christian, supra, and held that:


         9
            Because the factual basis of the Motion to Show Cause and the Petition is the same, however, our discussion
of the facts is applicable to both.

                                                         -6-
       We are persuaded by our examination of the decisions of other states and other
       authority that the almost universal rule is that a dismissal of a complaint on
       procedural grounds that do not reflect on the merits is not a “favorable termination”
       for a malicious prosecution cause of action. . . . Our conclusion requires that we
       disagree with the Court of Appeals’ view that any outcome of the underlying lawsuit
       or judicial proceeding favorable to the original defendant will support the favorable
       termination element so long as that outcome “was not accomplished by a
       compromise or settlement, or accomplished in order to refile the action in another
       forum.” Such a broad interpretation of this essential element is not supported by our
       decision in Christian or by the persuasive, almost overwhelming authority from other
       courts and legal commentators.

Id. at 532-33 (emphasis in original).

        Parrish clearly established that the termination of an action in favor of a party, sufficient to
sustain a subsequent malicious prosecution action brought by that party, must be more than a mere
procedural disposition of the action, but must in some manner “reflect on the merits” of the action.
The record before us shows that Champs-Elysees, Inc.’s withdrawal of the Motion to Show Cause
was done because the trial court stated it could not consider the motion since it was not the proper
mechanism for bringing a contempt action and, consequently, the withdrawal was a procedural
disposition and did not “reflect on the merits” of the action. In accordance with the holding in
Parrish, the withdrawal of the motion is not a termination in favor of Mr. Roberts upon which he
could premise a malicious prosecution action.

        In support of his assertion that the Petition was terminated in his favor, Mr. Roberts contends
that “[d]espite [the April 4 order’s] negative comments, the harm caused to his reputation, and the
monetary damages suffered. . . [t]he Chancellor could not, and did not, find Mr. Roberts had
committed any act of contempt.”

        In support of their contention that the contempt proceeding was not terminated in Mr.
Robert’s favor, Appellees primarily rely upon the trial court’s April 4, 2007, order disposing of the
Petition for Contempt, which held:

       This Court is of the opinion that Mr. Roberts’ conduct rises to the level of criminal
       contempt pursuant to Tenn. Code Ann. § 29-9-102(2) and (3), but Mr. Roberts was
       not charged with criminal contempt, a serious charge that requires that he be given
       adequate notice of the charges against him, the right to counsel and to remain silent
       and that his guilt be established beyond a reasonable doubt. Given the due process
       requirements triggered by a criminal contempt action, the Court is of the opinion that
       it cannot impose additional sanctions upon Mr. Roberts for his conduct prior to and
       at the judicial sale or for his involvement with Mr. Armstrong’s conduct in this
       matter, including Mr. Armstrong’s failure to obey the subpoena. However, the Court
       finds Mr. Roberts’ testimony throughout this proceeding to be evasive and untruthful,


                                                  -7-
       which causes the court grave concern about Mr. Roberts’ veracity as an officer of the
       Court and as a witness under oath. Accordingly, the Clerk is directed to forward to
       the Board of Professional Responsibility a copy of the transcripts from the contempt
       hearing and all order issued pursuant to the Verified Petition for Contempt, including
       the Order in which Mr. Armstrong was found in contempt for willful failure to obey
       his subpoena.

Appellees argue that, even though the trial court did not find Mr. Roberts guilty of criminal
contempt, the language of the order does not support a finding that the contempt proceeding was
“terminated on a basis favorable to Mr. Roberts” and that they successfully negated an essential
element of his malicious prosecution claim.

        We agree that the disposition of the contempt proceeding was not a termination in favor of
Mr. Roberts, with the effect of sustaining his action for malicious prosecution, particularly in light
of the court’s findings that his conduct rose to the level of criminal contempt and that his testimony
was evasive and untruthful. Although he was not sanctioned by the court for his behavior relative
to the execution sale and Mr. Armstrong’s conduct, the trial court did not find Mr. Roberts to be
innocent of wrongdoing; the court did not hold him in criminal contempt solely because he was not
charged with it. Parrish, 172 S.W.3d at 531 (citing Siliski, 811 A.2d at 151); Sewell, 1988 WL
112915, at *3. The disposition of the Petition was “not inconsistent” with Mr. Robert’s wrongdoing.
 Parrish, 172 S.W.3d at 531 (citing Siliski, 811 A.2d at 151). Inasmuch as there was not a favorable
termination upon which Mr. Roberts could premise a malicious prosecution, an essential element
of his cause of action had been negated.

        Mr. Roberts failed to meet his burden of overcoming the negation of an essential element of
his claim, i.e., that the Motion to Show Cause and the Petition were terminated favorably to him;
consequently, the Appellees were entitled to have the complaint dismissed as a matter of law and the
trial court’s grant of the motion to dismiss was proper.

       B. Rule 11 Sanctions

        On February 22, 2008, the Appellees sent a copy of a Motion for Rule 11 Sanctions to Mr.
Roberts, stating that if his complaint for malicious prosecution was not withdrawn within 21 days,
the motion would be filed with the court. When the complaint was not withdrawn, the Appellees
filed the motion, alleging that Mr. Roberts violated Rule 11.02(2), Tenn. R. Civ. P.,10 because “the


       10
            Rule 11.02, Tenn. R. Civ. P., states, in part pertinent, that:

       By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading,
       written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the
       person’s knowledge, information, and belief, formed after an inquiry reasonable under the
       circumstances, --
       ***
                                                                                                          (continued...)

                                                            -8-
claims asserted in the Complaint and Amended Complaint are not warranted by existing law nor are
they warranted by a non frivolous argument for the extension modification or reversal [sic] of
existing law or the establishment of new law” and asking for sanctions under Rule 11.03, Tenn. R.
Civ. P.11 As aforesaid, the court imposed attorneys’ fees and expenses totaling $6,500 on Mr.
Roberts as sanctions for the filing of the action.

        “The purpose of Rule 11. . . is to curb abuse in the litigation process by deterring baseless
filings which put ‘the machinery of justice in motion, burdening courts and individuals alike with
needless inconvenience, expense, and delay.’” Project Creation, Inc. v. Neal, 2001 WL 950175, at
*7 (Tenn. Ct. App. Aug. 21, 2001) (quoting Andrews v. Bible, 812 S.W.2d 284, 292 (Tenn. 1991)).
“A signature signifies to the Court that the signer has read the pleading, motion, or other paper, has
conducted a reasonable inquiry into the facts and the law, and is satisfied that the document is well-
grounded in both, and is acting without any improper motive.” Andrews, 812 S.W.2d at 287. “An
attorney who signs a paper without the required substantiated belief ‘shall’ be penalized by ‘an
appropriate sanction.’” Id. at 288 (quotes in original). “This sanction may, but need not, include
payment of the other party’s expenses.” Id. “The test to be applied in deciding whether an attorney’s
conduct is sanctionable, is one of objective reasonableness under all the circumstances. . . and the
reasonableness of the attorney’s belief must be assessed in light of the circumstances existing at the
time the document in question was signed.” Id. (internal citations omitted).

         An appellate court “reviews the trial court’s decision to impose sanctions under an abuse of
discretion standard. . . and the trial judge’s decision is entitled to great weight on appeal.” Stigall
v. Lyle, 119 S.W.3d 701, 706 (Tenn. Ct. App. 2003) (internal citations omitted) (citing Andrews, 812
S.W.2d 284 (Tenn. 1991); Krug v. Krug, 838 S.W.2d 197 (Tenn. Ct. App. 1992)). The Tennessee
Supreme Court addressed the abuse of discretion standard in Eldridge v. Eldridge, 42 S.W.3d 82
(Tenn. 2001) stating that:

       Under the abuse of discretion standard, a trial court's ruling “will be upheld so long
       as reasonable minds can disagree as to propriety of the decision made.” A trial court
       abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s]
       a decision which is against logic or reasoning that cause[s] an injustice to the party




       10
         (...continued)
       (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a
       nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment
       of new law...

       11
            Rule 11.03, Tenn. R. Civ. P., states, in part pertinent, that:

       If, after notice and a reasonable opportunity to respond, the court determines that subdivision 11.02
       has been violated, the court may, subject to the conditions stated below, impose an appropriate
       sanction upon the attorneys, law firms, or parties that have violated subdivision 11.02 or are
       responsible for the violation.

                                                            -9-
        complaining.” The abuse of discretion standard does not permit the appellate court
        to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (internal citations omitted).

        The trial court’s order granting the motion for sanctions, contained the following findings:

                2. Chancellor McCoy...found that [Mr. Roberts’] conduct rose to the level
        of criminal contempt. Chancellor McCoy ultimately referred the matter to the Board
        of Professional Responsibility.
                3. ...Because of the emphatic findings of Chancellor McCoy, there simply is
        no way for the Court to conclude that the filing of this malicious prosecution action
        was “objectively reasonable.”
                4. The Court finds that Rule 11 sanctions against Mr. Roberts are appropriate
        because the filing of this action was objectively unreasonable...

       The trial court did not apply an incorrect legal standard in its consideration of the motion for
sanctions, as the disposition of the contempt petition was not a favorable termination to Mr. Roberts
and, consequently, the claims and contentions in the malicious prosecution action were not warranted
under the law and the court’s finding that the filing of the action was objectively unreasonable is
supported by the evidence. As such, the trial court did not abuse its discretion in imposing Rule 11
sanctions.

        C. Frivolous Appeal

        Appellees contend that this appeal is frivolous and seek an award of damages.

         “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. 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)) (internal citations omitted). “Successful litigants should not have bear the expense and
vexation of groundless appeals.” Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977).

        The remedy for a frivolous appeal is provided in Tenn. Code Ann. § 27-1-122, which states:

        [w]hen 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 judgment and expenses incurred by the
        appellee as a result of the appeal.

Id. This statute “must be interpreted and applied strictly so as not to discourage legitimate appeals...”
Davis v. Gulf Ins. Group, 546 S.W.2d 583 at 586 (Tenn. 1997).


                                                  -10-
        The contempt proceeding upon which Mr. Roberts premised his malicious prosecution claim
was brought on behalf of Champs-Elysees, Inc. alone and Ms. Green did not join in filing either the
Motion to Show Cause or the Petition. In this appeal, Mr. Roberts does not argue that Ms. Green
was a proper party to the malicious prosecution action nor in any manner does he distinguish
between Ms. Green and Champs-Elysees, Inc. in discussing the court’s imposition of sanctions.
There was no factual or legal basis for including Ms. Green as a party defendant to the malicious
prosecution action and no basis for including her as a party to this appeal. We find the appeal to be
frivolous as respects Ms. Green. Given the court’s imposition of monetary sanctions against Mr.
Roberts, we do not find the appeal frivolous as to Champs-Elysees, Inc.

III. Conclusion

        For the reasons set forth above, the decision of the Circuit Court is AFFIRMED and the
matter is REMANDED to the trial court for a determination of damages as a result of the finding that
this appeal is frivolous as to Ms. Green.

       Costs are assessed against Mr. Roberts, for which execution may issue if necessary.




                                                       ___________________________________
                                                       RICHARD H. DINKINS, JUDGE




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