Rule 10 of the Tennessee Court of Appeals provides: 

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 11, 2004 Session

ROSE CONSTRUCTION COMPANY, INC. v. RAINTREE

DEVELOPMENT COMPANY, LLC

Direct Appeal from the Chancery Court for Shelby County

No. 110162-1 Walter L. Evans, Chancellor

No. W2003-01845-COA-R3-CV - Filed November 16, 2004

This is the second appeal of this case. In June 1999, an arbitration panel determined Rose

Construction was entitled to damages under the parties’ contract. The trial court vacated the

arbitration award. On appeal, this Court reversed and confirmed the arbitration award in its entirety.

TheTennessee SupremeCourt denied Raintree Development’s application for permission to appeal,

issued a mandate, and remanded the case to the trial court for entry of judgment. The trial court

entered judgment for Rose Construction as ordered by this Court. Raintree Development again

appeals. We affirm. We also hold this appeal frivolous and award Rose Construction damages for

a frivolous appeal.

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

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

ALAN and E. HIGHERS, J., joined.

Larry E. Parrish and Robert P. Campbell, Jr., Memphis, Tennessee, for the appellant, Raintree

Development Company, LLC.

J. Houston Gordon and Michael I. Less, Covington, Tennessee, for the appellee, Rose Construction

Company, Inc.

MEMORANDUM OPINION1
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This is the second appeal of this protracted arbitration case. The factual background giving

rise to this appeal is addressed in Rose Construction Co. v. Raintree Development Co., No. W2000-

01388-COA-R3-CV, 2001 WL 1683746 (Tenn. Ct. App. Dec. 31, 2001) perm. app. denied (Tenn.

Oct. 7, 2002), and does not need to be reiterated here. In June 1999, an arbitration panel expressly

determined Raintree Development Company (“Raintree”) had acted in bad faith. Rose Constr., 2001

WL 168746, at *5. It further determined that Rose Construction Company, Inc. (“Rose”) was

entitled to a net award of $974,000, plus interest. Id. at * 2. 

In March 2000, the trial court vacated the entire arbitration award. Id. In its memorandum,

the trial court stated “[t]he award of attorney fees under the Prompt Pay Act by the arbitrators

constituted more than a mere error in construing the prevailing law, but was a complete failure to

apply the law or the contract.” Id. Rose appealed and in December 2001, this Court reversed. This

Court held, “[t]he arbitration award must be confirmed in its entirety, and the cause is remanded for

this purpose.” Id. at *6. We denied Raintree’s petition to rehear in January 2002. In October 2002,

the Tennessee Supreme Court denied Raintree’s application for permission to appeal. It also denied

Raintree’s motion to stay the mandate to permit appeal to the United States Supreme Court. The

Tennessee Supreme Court issued its mandate in November 2002, remitting the cause to the trial

court and signifying the end of the case. 

Rose moved for entry of the judgment in November 2002. In December 2002, Raintree filed

for bankruptcy. The bankruptcy stay was lifted in November 2003. On May 15, 2003, the trial court

entered judgment for Rose in conformance with the order of this Court and the mandate of the

supreme court. Raintree filed a motion to alter or amend, which the trial court denied in June 2003.

Raintree filed a timely notice of appeal to this Court. Rose filed a motion to dismiss the appeal,

which we denied. Rose now seeks dismissal and sanctions for a frivolous appeal. 

Raintree now presents the following issues, as we-restate them, for review by this Court:

(1) Whether the trial court erred in not vacating the arbitration award because the

issues in dispute were not subject to arbitration.

(2) Is Raintree entitled, as a matter of right, to adjudication of questions

pertaining to arbitrability?

(3) Is Raintree entitled to adjudication of its counter-claims?

Rose raises the following additional issues:

(1) Whether this matter was ended by the final decision and mandate of the

supreme court.

(2) Whether Raintree has exhausted or waived further appeals.
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(3) Whether this appeal is frivolous and is part of a pattern of abuse and delay.

We agree with Rose that this matter ended with the Tennessee Supreme Court’s denial of

Raintree’s application for permission to appeal. This Court confirmed the arbitration award “in its

entirety,” the supreme court denied Raintree’s application for permission to appeal, and there

remained nothing to litigate. We accordingly affirm the judgment of the trial court.

We next turn to whether this appeal is frivolous. 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 on 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. Tenn. Code Ann. § 27-1-122(2000). Courts construe this section

of the Code strictly in an effort not to discourage legitimate appeals. Davis v. Gulf Ins. Group, 546

S.W.2d 583, 586 (Tenn.1977). A frivolous appeal is one "devoid of merit" and which cannot

reasonably succeed. Id. It is one completely "lacking in justiciable issues." Id.

We agree with Rose that this is a frivolous appeal. This Court’s opinion of December 2001

unambiguously confirmed the arbitration award in its entirety. This holding was implicitly affirmed

by the Tennessee Supreme Court when it denied Raintree’s application for permission to appeal.

Upon issuance of the supreme court’s mandate and remand to the trial court for enforcement of the

arbitration award, there remained nothing to litigate. We accordingly award Rose damages for a

frivolous appeal pursuant to Tennessee Code Annotated § 27-1-122. We award Rose damages in

the amount equal to expenses and reasonable attorney’s fees incurred by this appeal. We remand to

the trial court for determination of such damages. Costs of this appeal are taxed to the Appellant,

Raintree Development Company, LLC, and its surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE