IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 20, 2016 Session

W & H LLC, ET AL. v. COMMUNITY BANK N.A. v. WILLIE NELSON

Appeal from the Chancery Court for Shelby County

No. CH1106821 Walter L. Evans, Chancellor

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No. W2015-00878-COA-R3-CV – Filed January 29, 2016

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The trial court entered a final judgment confirming an arbitration award in favor of the 

appellee. Appellants appealed. Due to deficiencies in the appellants‟ brief to this Court, we 

conclude that they have waived their issues on appeal. The appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which BRANDON O.

GIBSON, and KENNY ARMSTRONG, JJ., joined.

Ted I. Jones, Memphis, Tennessee, for the appellants, Willie Nelson and W&H LLC.

Robert F. Miller and Allison Kay Moody, Memphis, Tennessee, for the appellee, Community 

Bank, N.A.

OPINION

Background

On May 18, 2005, Defendant-Appellee Community Bank, N.A., (“Appellee”) loaned 

Willie Nelson $366,015.00 pursuant to a promissory note (“Nelson Note”), secured by a 

Deed of Trust, pledging commercial real property located at 3311 Elvis Presley Boulevard in 

Memphis, Tennessee (“EP property”) as collateral. Mr. Nelson subsequently renewed the 

Nelson Note on April 21, 2008. Nearly a year later, on March 9, 2009, Mr. Nelson transferred 
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the EP property via quitclaim deed to W&H LLC1(together with Mr. Nelson, “Appellants”)2

but allegedly failed to provide notice of the transfer to Appellee. The Deed of Trust for the 

EP property contained a Due on Sale clause that required the entire balance of the debt be 

immediately due and owing (at Appellee‟s option) upon sale of the EP property. 

In April 2010, Mr. Nelson made his last payment toward the Nelson Note and 

subsequently defaulted on the loan. Eventually, on December 29, 2010, Appellee conducted a 

foreclosure sale of the EP property.3Prior to the foreclosure sale, Community Bank sent two 

letters to Mr. Nelson noticing him of his default on the Nelson Note and Appellee‟s intent to 

foreclose on the property. Both letters were mailed to Mr. Nelson‟s Post Office Box in 

Mississippi, which is the address listed for Mr. Nelson in the Nelson Note, its 2008 renewal, 

and the EP property‟s Deed of Trust. Additionally, the foreclosure sale was advertised in the 

Daily News, a daily newspaper in Shelby County, Tennessee, that is qualified to publish 

public notices, for three consecutive weeks on December 7, 2010,4 December 14, 2010, and 

December 21, 2010. The property sold at public auction for $325,000.00. 

On April 20, 2011, Appellants filed a Petition to Set Aside Trustee‟s Sale and for 

Injunctive Relief in the Shelby County Chancery Court. Appellants requested that the trial 

court set aside the foreclosure sale and permit Appellants to cure the default on the loan

secured by the EP property.

On May 25, 2011, Appellee filed a motion to dismiss or stay the proceedings and refer 

the case to arbitration based on the contractual agreement between the parties. On November 

18, 2011, the trial court entered a consent order staying the proceedings5and referring the 

case to arbitration. Appellants filed their complaint to the Arbitrator on March 30, 2012, 

challenging Appellee‟s actions in connection with the foreclosure of the EP property. On 

April 16, 2012, Appellee filed an answer and counter-complaint alleging that Mr. Nelson and 

the other businesses in which he had an ownership interest had defaulted on a separate group 

of loans that had been consolidated into a single note (“Master Note”); that the property 

securing the Master Note had been foreclosed; and that Mr. Nelson was individually liable 

 

1 Appellants‟ petition to set aside the foreclosure sale filed in this case indicates that Mr. Nelson is the 

“Managing Member” of W&H LLC.

2 Appellees argue that Mr. Nelson is the sole appellant in this appeal because neither of the two notices 

of appeal filed include W&H LLC as a party on appeal. Because we are dismissing this appeal, we need not 

decide this issue. However, for purposes of this appeal, we will refer to the plural Appellants.

3

Throughout these proceedings, it does not appear that Mr. Nelson has ever challenged the underlying 

debt owed under the Nelson Note. 

4

The first publication occurred twenty-two days prior to the foreclosure on the property.

5 On August 31, 2012, the trial court lifted the stay of the proceedings for the limited purpose of 

permitting the parties to issue subpoenas for depositions.
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for the remaining balance of approximately $661,000.00. Appellants filed an answer to the 

counter-complaint, denying the material allegations contained therein. The parties proceeded 

to an arbitration hearing. After opening statements, Appellants raised the issue of whether the 

claims raised by Appellee in its counter-complaint were properly before the Arbitrator. The 

case was then referred back to the trial court to clarify the scope of arbitration. The trial court 

entered an order on November 8, 2012, stating that “all of the matters and issues in the 

pleadings and court papers submitted or filed in the arbitration proceedings are to be heard by 

the arbitrator.” 

Subsequently, the parties proceeded again to an arbitration hearing. The Arbitrator 

conducted hearings on September 17, 2013, and October 16, 2013. Mr. Nelson alleged that 

the foreclosure sale was improper because he did not receive notice of the foreclosure. The 

Arbitrator disagreed, and on June 9, 2014, the Arbitrator issued his written decision finding 

that the foreclosure was proper. The Arbitrator also found that it was undisputed that Mr. 

Nelson and his businesses had defaulted on several loan obligations owed to Appellee. In his 

Decision, the Arbitrator denied all claims asserted by Appellants and held that Mr. Nelson 

was individually liable to Appellee for the balances remaining on the Nelson Note and the 

Master Note in the amount of $711,889.58, as of October 17, 2013, plus the per diem rate of 

interest and $53,305.30 in attorney‟s fees.

On June 13, 2014, Appellee filed a motion requesting the trial court confirm the 

arbitration award and enter final judgment. On October 27, 2014, the trial court granted 

Appellee‟s motion in part in a written order, finding that the Arbitrator‟s decision should be 

“confirmed in all respects, except as to the award of attorney[‟s] fees[.]” The trial court 

referred the case back to the Arbitrator “for a determination of whether the award of 

attorney[‟s] fees was appropriate under the circumstances of this case.”

On February 1, 2015, the Arbitrator issued an Addendum to his decision, finding that 

the award of attorney‟s fees to Appellee was appropriate and awarding a total recovery of 

attorney‟s fees and expenses in the amount of $53,305.30. Appellee filed a motion to confirm 

the addendum to the Arbitrator‟s Decision on February 12, 2015, which the trial court 

granted on March 4, 2015. In the final order, the trial court entered judgment in favor of 

Appellee against Mr. Nelson individually in the total amount of $796,705.42, including 

attorney‟s fees, expenses, and interest.

Appellants timely appealed.

Issues6

 

6 Oral argument in this case was conducted on January 20, 2016. However, counsel for Appellants did 

not appear. Appellants‟ counsel subsequently sent the Court a letter explaining that the date for oral argument 

had been mistakenly placed on his calendar for the following day.
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Appellants raise one issue on appeal: whether the trial court erred in confirming the 

Arbitrator‟s award as to monetary damages and attorney‟s fees?

Appellee raises two additional issues, as taken from its brief: 

1. Whether Appellant[s] ha[ve] waived [their appeal] because 

[they] failed to cite to the record, failed to set forth the relevant 

facts, and failed to otherwise comply with the Tennessee Rules 

of Appellate Procedure and the Rules of the Tennessee Court of 

Appeals.

2. Whether Appellee is entitled to frivolous appeal damages. 

Analysis

Unfortunately, our review of the issues presented in this appeal is substantially 

hindered because Appellants‟ brief is woefully deficient. Rule 27 of the Tennessee Rules of 

Appellate Procedure specifically provides that an appellant‟s brief “shall contain”:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically 

arranged), statutes and other authorities cited, with references to 

the pages in the brief where they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme 

Court directly from the trial court indicating briefly the 

jurisdictional grounds for the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the 

case, the course of proceedings, and its disposition in the court 

below;

(6) A statement of facts, setting forth the facts relevant to the 

issues presented for review with appropriate references to the 

record;

(7) An argument, which may be preceded by a summary of 

argument, setting forth: (A) the contentions of the appellant with 

respect to the issues presented, and the reasons therefor, 

including the reasons why the contentions require appellate 

relief, with citations to the authorities and appropriate references 

to the record (which may be quoted verbatim) relied on; and (B) 

for each issue, a concise statement of the applicable standard of 
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review (which may appear in the discussion of the issue or under 

a separate heading placed before the discussion of the issues);

(8) A short conclusion, stating the precise relief sought.

Tenn. R. App. P. 27(a). Similarly, Rule 6 of the Rules of the Court of Appeals of Tennessee 

requires an appellate brief to include a written argument addressing the issues appealed, a 

statement of the trial court‟s allegedly erroneous action, and a specific reference to the record 

where the action is recorded. Rule 6 further provides:

No complaint of or reliance upon action by the trial court will be 

considered on appeal unless the argument contains a specific 

reference to the page or pages of the record where such action is 

recorded. No assertion of fact will be considered on appeal 

unless the argument contains a reference to the page or pages of 

the record where evidence of such fact is recorded.

Tenn. R. Ct. App. 6(b).

The brief submitted by Appellants fails to comply with these requirements. Appellants 

described the record as “substantial,”7yet failed to include any citations to the record in their

fact section, which includes only five sentences. Indeed, Appellants‟ factual recitation 

contains no actual facts regarding the circumstances involved in the transfer of the property

to W&H LLC, the alleged default, or the foreclosure sale. With regard to the few allegations 

that are contained in Appellants‟ statement of facts, none are supported by an appropriate 

reference to the record, as required by Rule 27(a)(6). Appellants‟ brief also omits a section 

detailing the applicable standard of review, an important requirement given the limited 

review involved in arbitration awards. See Arnold v. Morgan Keegan & Co., 914 S.W.2d 

445, 450 (Tenn. 1996) (“Judicial review of arbitration decisions is statutorily limited, and any 

judicial review must be conducted within those limits.”). Appellants‟ brief admittedly 

contains two citations to the record in the argument section; however, the second citation 

cites to “See Exhibit 2, Complaint for Breach of Contract and Money Damages.” From our 

review, however, no such document exists in the exhibits submitted to this Court on appeal.

Furthermore, although Appellants apparently take issue with the arbitrator‟s ruling that Mr. 

Nelson would be individually liable on the debt, neither individual liability nor the scope of 

the arbitrator‟s authority was specifically raised as an issue on appeal. Finally, we note that 

while Appellants do cite to Tennessee Code Annotated Section 35-1-101 to support their 

argument that the foreclosure sale was deficient for failing to comply with the advertising 

scheme contained therein, Appellants cite no law, statutory or otherwise, that suggests that 

 

7 Despite Appellants‟ contention that the record was “substantial,” the record includes only two 

volumes of technical record, two volumes of transcript, and one volume of exhibits. Even assuming arguendo 

the record was voluminous, that does not excuse an appellant from complying with the rules of this Court.
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such a failure is sufficient to void a foreclosure sale. Indeed, as pointed out by Appellee, 

Tennessee Code Annotated Section 35-1-106 specifically provides that: “Should the officer, 

or other person making the sale, proceed to sell without pursuing the provisions of this 

chapter, the sale shall not, on that account, be either void or voidable.”8

Although this Court has thoroughly reviewed the record, “[i]t is not the function of the 

appellate court to research and construct the parties‟ arguments.” Coleman v. Coleman, No. 

2011-00585-COA-R3-CV, 2015 WL 479830, at *9 (Tenn. Ct. App. Feb. 4, 2015) (citing 

U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). In Clayton v. Herron, No. M2014-

01497-COA-R3-CV, 2015 WL 757240, at *3 (Tenn. Ct. App. Feb. 20, 2015), we stated:

“„Courts have routinely held that the failure to make 

appropriate references to the record and to cite relevant authority 

in the argument section of the brief as required by Rule 27(a)(7) 

constitutes a waiver of the issue.‟” Forbess v. Forbess, 370 

S.W.3d 347, 355 (Tenn. Ct. App. 2011) (quoting Bean v. Bean, 

40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000)); see also Tellico 

Village Property Owners Ass’n, Inc. v. Health Solutions, LLC, 

No. E2012-00101-COA-R3-CV, 2013 WL 362815, at *3 (Tenn. 

Ct. App. Jan. 30, 2013) (no perm. app. filed) (quoting Branum 

v. Akins, 978 S.W.2d 554, 557 n.2 (Tenn. Ct. App. 2001)) 

(“„Where a party makes no legal argument and cites no authority 

in support of a position, such issue is deemed to be waived and 

will not be considered on appeal.‟”) In addition, “Appellants . . . 

must include in their . . . brief a statement of the issues they 

desire to present to the court and an argument with respect to 

each of the issues presented.” Craig v. Hodge, 382 S.W.3d 325, 

334-335 (Tenn. 2012). “[A]n issue may be deemed waived when 

it is argued in the brief but is not designated as an issue in 

accordance with Tenn. R. App. P. 27(a)(4).” Id. (citing ABN 

AMRO Mortg. Grp., Inc. v. S. Sec. Fed. Credit Union, 372 

S.W.3d 121, 132 (Tenn. Ct. App. 2011); Childress v. Union 

Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)). “The 

requirement of a statement of the issues raised on appeal is no 

 

8 Only in Appellants‟ reply brief do they consider this statute, in essence arguing that it is 

unconstitutional. The Tennessee Supreme Court has noted, however, that the failure to provide notice of a 

constitutional challenge to the Attorney General as mandated by Tennessee Code Annotated § 29-14-107 and 

Rule 24.04 of the Tennessee Rules of Civil Procedure is fatal “except to the extent the challenged statutes are 

so clearly or blatantly unconstitutional as to obviate the necessity for any discussion.” In re Adoption of 

E.N.R., 42 S.W.3d 26, 28 (Tenn. 2001). Nothing in the record suggests that notice of a constitutional challenge

was ever given to the Attorney General. Moreover, Tennessee Code Annotated Section 35-1-106 is not clearly 

or blatantly unconstitutional. Therefore, any argument that Tennessee Code Annotated Section 35-1-106 is 

unconstitutional is also waived on appeal.
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mere technicality.” Owen v. Long Tire, LLC, No. W2011-

01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. 

Dec. 22, 2011). The appellee is entitled to fair notice of the 

appellate issues so as to prepare his or her response, and more 

importantly, “this Court is not charged with the responsibility of 

scouring the appellate record for any reversible error the trial 

court may have committed.” Id. “It is not the role of the courts, 

trial or appellate, to research or construct a litigant‟s case or 

arguments for him or her, and where a party fails to develop an 

argument in support of his or her contention or merely 

constructs a skeletal argument, the issue is waived.” Sneed v. 

Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 

(Tenn. 2010).

After Appellee‟s brief referenced the deficiencies in Appellants‟ brief, Appellants 

filed a reply brief. The reply brief includes more citations to authority but does little to 

correct the other various deficiencies discussed above. Still, a “reply brief is a response to the 

arguments of the appellee. It is not a vehicle for raising new issues.” Owens v. Owens, 241 

S.W.3d 478, 499 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c). Permitting an 

appellant to advance new arguments in a reply brief not addressed in the initial brief “would 

be fundamentally unfair as the appellee may not respond to a reply brief.” Denver Area Meat 

Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584 (Tenn. Ct. App. 2006). 

Accordingly, Appellants‟ reply brief does not rectify the deficiencies present in their initial 

brief. 

We recognize that there are times when this Court, in the discretion afforded it under 

Rule 2 of the Tennessee Rules of Appellate Procedure, may waive the briefing requirements 

to adjudicate the issues on their merits. Here, in light of Appellants‟ declination to explain to 

this Court the facts and legal concerns surrounding this appeal, we decline to soldier on. 

See Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5 (Tenn. 

Ct. App. Jan. 24, 2013) (noting that, despite deficiencies in the record, we are sometimes able 

to “soldier on” to review a case upon its merits, where the issues are sufficiently clear).

Based on the foregoing, we decline to address the merits of any issue on appeal. 

Additionally, Appellee has requested this Court determine that Appellants‟ appeal is 

frivolous and award damages pursuant to Tennessee Code Annotated Section 27-1-122. 

Section 27-1-122 provides that:

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 
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not be limited to, costs, interest on the judgment, and expenses 

incurred by the appellee as a result of the appeal.

The decision to award damages for the filing of a frivolous appeal rests solely in the 

discretion of this Court. See Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985). 

“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) (citing Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)). Based on 

our review of the record and Appellants‟ woefully deficient brief, we conclude that this 

appeal is frivolous. Accordingly, we remand this case to the trial court for a determination of 

the award for frivolous appeal damages. 

All other issues are pretermitted.

Conclusion

The appeal is hereby dismissed. This cause is remanded for the determination of 

Appellee‟s reasonable and necessary attorney‟s fees incurred in responding to this appeal. 

Costs of this appeal are taxed to the Appellants W&H LLC and Willie Nelson, for which 

execution may issue if necessary. 

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J. STEVEN STAFFORD, JUDGE