DEWEY L. LINEBERRY,                       )
                                          )
       Plaintiff/Appellant,               )
                                          )      Appeal No.
v.                                        )      M1999-00075-COA-R3-CV
                                          )
TERRY ASHE and THE WILSON                 )      Wilson Chancery
COUNTY ELECTION                           )      No. 98319
COMMISSION,                               )

       Defendants/Appellees.
                                          )
                                          )               FILED
                                                          January 27, 2000

                   COURT OF APPEALS OF TENNESSEE Crowson, Jr.
                                             Cecil
                                            Appellate Court Clerk


     APPEAL FROM THE CHANCERY COURT FOR WILSON COUNTY

                        AT LEBANON, TENNESSEE


            THE HONORABLE TOM E. GRAY, CHANCELLOR


W. THOMAS SCHMITZ
P. O. Box 773
Brentwood, Tennessee 37024-0773
      ATTORNEY FOR PLAINTIFF/APPELLANT


MICHAEL R. JENNINGS
326 North Cumberland Street
Lebanon, Tennessee 37087
     ATTORNEY FOR DEFENDANTS/APPELLEES




                       AFFIRMED AND REMANDED




                                                  WILLIAM B. CAIN, JUDGE

                               OPINION
          This case purports to be an election contest.


          Appellant, Dewey L. Lineberry, was a candidate for sheriff of Wilson
County, Tennessee, subject to the general election of August 6, 1998. Appellee,
Terry Ashe, was the incumbent sheriff and a candidate for re-election. There was
a third candidate in the race for sheriff whose name is not disclosed by the
record. Ashe was re-elected handily with Lineberry finishing a distant third,
some 9,000 votes behind Ashe.


           On August 12, 1998, Lineberry filed the suit at bar allegedly pursuant
to Tennessee Code Annotated section 2-17-101, et seq., contesting the election
of Ashe.


           The complaint alleges:
              6.      Plaintiff alleges that as a qualified contestant or
           candidate for the office of Sheriff of Wilson County,
           Tennessee, held on August 6, 1998, that he is entitled upon
           his petition and at his expense to demand an examination by
           qualified technicians of all voting machines used for casting
           of votes for the office of Sheriff of Wilson County,
           Tennessee; that he has duly made a timely demand upon the
           Wilson County Election Commission for such examination
           for the purpose of verifying the accuracy and reliability of
           the machines to truly and correctly register and report votes
           actually cast in said election; and that the Wilson County
           Electi[o]n Commission has informed him that it does not
           oppose such examination.

                                      COUNT II

                                         ***

              7.     Plaintiff alleges on information and belief that said
           voting machines malfunctioned or otherwise incorrectly
           registered and/or incorrectly reported votes actually cast i[n]
           said election, and that the outcome of said election was
           thereby affected. [sic]



                                     COUNT III

                        FRAUDULENT CALL OF VOTES

                                         ***

              8.     Alternatively, Plaintiff alleges that on or about
           August 6, 1998, several thousand votes that were cast in said
           election for plaintiff were fraudulently called by
           election/precinct officials and credited to defendant, Terry
           Ashe, rather than to plaintiff, and that the outcome of said
           election was thereby affected.

              9.     That when all votes in said election that were
           actually cast for plaintiff are properly credited to plaintiff, the
           number of votes actually cast for plaintiff will exceed the
           number of votes cast for defendant.

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          Based upon these allegations, plaintiff prayed that all ballots and voting
machines be impounded and that the court order an examination of the voting
machines by qualified technicians selected by plaintiff and that “Terry Ashe, be
declared to be ineligible to hold the office of Sheriff of Wilson County pursuant
to election held on August 6, 1998; . . . ”


          On August 19, 1998, defendants Ashe and Wilson County Election
Commission filed a motion to dismiss under Rule 12.02(6) Tennessee Rules of
Civil Procedure for failure of the complaint to state a claim upon which relief can
be granted. Defendants filed an alternative motion for a more definite statement.


          By order entered August 28, 1998, the motion to dismiss under Rule
12.02(6) was denied and the motion for a more definite statement was granted.
This order further granted the temporary restraining order denying access of
others to the 129 voting machines used in the election and further holding:
              5.    As evidence of the accuracy of the voting machines
          or the accuracy of the election officials’ recording of the vote
          on the machine used in the August 6, 1998 election for the
          Office of Sheriff of Wilson County, Tennessee, on a date and
          at a time to be determined subsequently the Court should
          convene specially upon the site of the present storage facility
          located in the office of the Wilson County Election
          Commission, Lebanon, TN, and there conduct an in Court
          examination of the voting machines and permit the parties
          and their respective voting machine experts to be present
          during such examination.


          Plaintiff responded to the order for a more definite statement on
September 1, 1998 asserting:
              (a) Plaintiff alleges on information and belief that at all
          times pertinent to the within cause of action the
          election/precinct officials, and their agents, servants, and
          employees, have had sole and exclusive possession and
          control of all voting machines and all necessary electrical
          components required to produce a readable voting result of
          all votes cast in the August 6th election.

             (b) Plaintiff further alleges on information and belief
          that while said machines and electrical components were
          within their sole and exclusive possession and control, that
          one or more or all of the election/precinct officials, agents,
          servants, and employees, whether knowingly or unknowingly
          have permitted said voting machines and necessary electrical
          components, through one or more means or instrumentality’s
          within their sole and exclusive possession and control,
          whether by altering said machines and/or electrical
          components or by manual transcription of the vote totals, to
          produce and/or report vote results materially and

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         substantially different from the actual vote; hence, producing
         or resulting in false and/or fraudulent vote totals. [sic]


         On September 2, 1998, defendants renewed their motion to dismiss the
case.


         Pursuant to the order of the court on September 9, 1998, all parties
including the court convened at the Office of the Wilson County Election
Commission where witnesses were sworn and the voting machines were
examined by persons with qualifications acceptable to the court. The order
resulting from this hearing was entered on November 4, 1998, and provided in
part as follows:
         The Court granted to plaintiff each and every request made
         by him to check the accuracy of the voting machines and
         plaintiff through his attorney announced that he, plaintiff,
         was satisfied that the voting machines operated properly and
         that the votes reported and certified by the Wilson County
         Election Commission were accurate and plaintiff’s attorney
         stated that plaintiff desired to dismiss his lawsuit.

            Further, in this matter, the Court finds that the Motion to
         Dismiss by the defendants is well-taken and should be
         granted.

             IT IS THEREFORE ORDERED, ADJUDGED AND
             DECREED:


            1.      This cause is dismissed upon announcement of
         plaintiff that he was satisfied with the accuracy of the voting
         machines and that he wanted to dismiss his lawsuit and upon
         Motion to Dismiss filed by defendants.

            2.    Costs are assessed to Dewey L. Lineberry for which
         execution may issue, if necessary.


         On December 2, 1998, defendants filed their motion for discretionary
costs pursuant to Rule 54.04(2) and for reasonable attorney fees pursuant to
Tennessee Code Annotated section 2-17-115, together with supporting affidavits.


         On December 16, 1998, Dewey L. Lineberry filed his response to the
motion for discretionary costs and attorney fees asserting that such should not be
allowed.


         By order entered February 24, 1999, the court granted all discretionary
costs to Ashe and the Election Commission, together with attorney fees under
Tennessee Code Annotated section 2-17-115.

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          This final order of the court was timely appealed.


         Tennessee Code Annotated section 2-17-115 provides: “Costs and a
reasonable attorney’s fee shall be assessed against the contestant or the appellant
if the contest or the appeal is maliciously or frivolously prosecuted.”


          This case was frivolous when filed, frivolous when heard, and frivolous
when appealed.


          Election contests are of purely statutory origin and were not recognized
at common law or in equity. Harmon v. Tyler, 112 Tenn. 8, 83 S.W. 1041, 1044
(1903).
          The supreme court has held:

              There are two grounds in Tennessee upon which an
          election contest may be predicated. In Forbes v. Bell, 816
          S.W.2d 716, 719 (Tenn.1991), this Court delineated the
          grounds for an election contest. In Forbes, we held that a
          contestant may either file a suit to be declared a winner or
          file a suit to have the election declared void. In an election
          contest suit, courts are vested with the statutory authority to:
          (1) confirm an election; (2) declare an election void; (3)
          declare an election a tie; and (4) declare a contestant a
          winner. Tenn.Code Ann. § 2-17-112 (1994 Repl.).

Lee v. Tuttle, 965 S.W.2d 483, 484 (Tenn. 1998).


          The requirements for Forbes’ first ground of an election contest were
delineated as follows:
         The requirements of a complaint seeking to have an election
         contestant declared the properly elected party were set out in
         Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832 (1951), as
         follows:

             When we consider this case from the aspect that it was
             a valid election and that the petitioner, contestant, had
             received more votes than the contestee, it becomes
             necessary for the contestant to show on the face of his
             petition or complaint that the illegal votes cast should
             be thrown out and that when this is done that the votes
             that he received plus the legal votes of which he
             claims to have been deprived was greater than that of
             the contest[ee]. In making these allegations it [is]
             necessary that the contestant specifically point out
             each and every vote that was fraudulently or illegally
             cast on behalf of the contestant and against him and
             that the total of these votes when taken from the
             contestee and added to him would give him a majority.

          Shoaf, 241 S.W.2d at 833. See also Blackwood v.
          Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164, 166 (1953),

                                         5
           in which this Court, relying on Shoaf v. Bringle, noted that to
           sustain a claim of this sort, “the contestant must specifically
           point out the alleged illegal votes cast for the contestee.”

Forbes v. Bell, 816 S.W.2d 716, 719 (Tenn. 1991).


         In those cases where the contestant seeks not to be declared the winner
himself but to have the election declared invalid, the supreme court has held:

           Tennessee law empowers a court to void an election on two
           alternative, but closely related bases. First, “upon a
           sufficient quantum of proof that fraud or illegality so
           permeated the election as to render it incurably uncertain,
           even though it can not be shown to a mathematical certainty
           that the result might have been different.” Emery v.
           Robertson County Election Comm’n, 586 S.W.2d 103, 109
           (Tenn.1979); see also State ex rel. Davis v. Kivett, 180 Tenn
           598, 177 S.W.2d 551 (1944); Ingram v. Burnette 204 Tenn.
           149, 316 S.W.2d 31 (1958). Secondly, where some ballots
           are found to be illegal, [and] the number of illegal votes cast
           is equal to, or exceeds the margin by which the certified
           candidate won. Emery v. Robertson County Election
           Comm’n, supra; Hilliard v. Park, 212 Tenn 588, 370 S.W.2d
           829 (1963).

Millar v. Thomas, 657 S.W.2d 750, 751 (Tenn.1983). See also Forbes v. Bell,
816 S.W.2d at 719-20.


           In vain, one may search the complaint in this case for a single
allegation of fact that provides any basis for an election contest. Likewise, the
appellant’s response to the motion for a more definite statement asserts nothing
at all except that officials and agents of the election commission had control of
the voting machines and the nebulous assertion that various agents and
employees of the election commission have somehow altered the votes casts on
such machines.


           For some reason not evident from this record the learned chancellor
was overcome by his more charitable instincts and allowed these allegations of
the complaint to survive the original Rule 12.02(6) motion to the end that a
“fishing expedition” occurred on September 9, 1998, which is nowhere more
clearly evidenced than in the statement of counsel for the appellant, after
technicians and employees of the election commission had been put to the test
of in-court re-examination of the accuracy of the election machines. Said
counsel:
              MR. SCHMITZ: Your honor, at this point Mr.
           Lineberry would like to thank the representative for coming
           into the area and making this examination. Mr. Lineberry
           also further would like to state that justice has been

                                         6
          adequately served by this proceeding. However rare it has
          been employed in Tennessee, it has been in the best interest
          of all public candidates who proceed in future ejections as
          well as those who have experienced past elections.

              It is a confirmation of the electoral process. It does
          confirm the accuracy of the voting machines based on the
          evidence that we have seen today. Although it has been short
          random sampling, we are satisfied that the results are
          accurate and for that reason Mr. Lineberry would like to
          enter a voluntary nonsuit and terminate this matter as quickly
          as possible without any further expense of the Court and with
          that concluding, we would say to the Court that Mr.
          Lineberry would like [to] enter a voluntary nonsuit.



          Appellant predicates his complaint about the accuracy of the voting
machines and his right to examine the machines in court on Tennessee Code
Annotated section 2-17-110, which provides as follows:
            (a) If voting machines were used in the election, any party
        to the contest who challenges either the accuracy of the
        voting machines or the accuracy of the election officials’
        recording of the vote on the machines may have the machine
        or machines brought into court to be examined by the parties
        or as evidence.

             (b) The total votes shown on the machine shall be
          conclusive unless the court finds reason to believe that the
          vote shown on the machine is not accurate.

Tenn. Code Ann. § 2-17-110 (1994).


          This statute is by its terms applicable to a complaint alleging a cause
of action in a statutory election contest and not to a complaint fatally defective
ab initio under Rule 12.02(6).


          The final judgment of the trial court is in all respects correct but the
trial court erred in failing to sustain the Rule 12.02(6) motion initially filed by
the defendants since the complaint does not state a claim upon which relief can
be granted.


          The sparse record before the court does not provide a basis to hold this
case to be malicious under Tennessee Code Annotated section 2-17-115 but it is
clearly and palpably “frivolously prosecuted” under such statute and the trial
court was justified in assessing attorney fees.


          The assessment of discretionary costs under Rule 54 of the Tennessee
Rules of Civil Procedure was within the sound discretion of the trial court and

                                        7
will not be disturbed on appeal, particularly when such expenses were in large
part incurred in the examination of the voting machines under count one of the
complaint wherein appellant asserted that “ . . . he is entitled upon his petition
and at his expense . . . ” to demand an examination of the voting machines.


         The result reached by the trial court in this case is in all respects
affirmed for reasons stated herein.


          This appeal had no reasonable chance of success and is frivolous under
principles set down in Wilson v. Ricciardi, 778 S.W.2d 450, at 454 (Tenn. Ct.
App. 1989) and Bursack v. Wilson, 982 S.W.2d 341, at 345 (Tenn. Ct. App.
1998).


          The case is remanded to the trial court for assessment of attorney fees
on appeal pursuant to Tennessee Code Annotated section 2-17-115.


          Costs on appeal are assessed against the appellant.


                                            _______________________________
CONCUR:                                     WILLIAM B. CAIN, JUDGE

__________________________________________
BEN H. CANTRELL, P.J., M.S.

__________________________________________
PATRICIA J. COTTRELL, JUDGE




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