# FILED Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JERRY DALE DUFFEY, ) ) Plaintiff /Appella nt, ) Appeal No.

) 01-A-01-9607-CH-00324 v. ) ) Marshal l County WIL LI AM CHARL

ES LEE , et al, ) No. 9795 ) Defend ants/Appe llees. ) COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE APPEAL FROM THE CHANCERY COURT FOR MARSHAL L COUNTY AT LEWI SBURG, TENNESSEE THE HONORABLE L

EE RUSSELL, CHANCEL LOR

JERRY DAL

E DUFF EY, Pro Se NCSC 7466 Centennial Blvd. Nashville, Tennessee 37209-1052
CHARLES W. BURSON Attorney Gene

ral & Reporter MARK H. CHEN Civil Rights & Claims Division Cordell Hull Building, 2nd Floor Nashville, Tennessee 37243-0488

ATTORNEYS FOR DEFENDANTS/APPELL EES

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE1 Court of Appeals Rule 10(b): The Court , wi th t

he conc urre nce of

all judge s par ti cipating in t he cas e, may

aff irm, reve rse or modify the acti ons of the tri al court by memorandum op inion when a formal opinion would have no precedenti al val ue. When a case i s decided by memorandum opinion, it shall be designa ted "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be ci ted or relied on for any reaso n in a sub sequ ent unre lated c ase. 2 The comp laint alleged eleven go vernmen t officials conspired with forty-nine private citizens to bring false crimi nal char ges agai nst Pl aint iff . All persons wer e named as def endants as was Marshal l County , Tennessee . -2- 

## MEMORANDUM OPINION 1 This i s an appea l by plaintiff/appellant, Jerry Dale D uffey , from

the chancery court’ s judgm ent dism

issing his compl aint again stDefenda nts. The facts out of whic h this m atter ar ose are a s follows. Plaintiff was indic ted on thirt

y-one counts of th eft of property by fraud and/or deceit. After all was s aid and done, Pla intiff w as convicte d on twenty-four of the counts and was sentences to fourteen year s and one m

onth. The Court of Criminal Appeals a ffirmed the convi ction. On 30 May 1996, Plaintiff filed a c omplaint naming numerous defe ndants. 2 Plaintif

f sought to recover c ivil dam ages for v iolations of his civil r

ights. Defenda nts filed a m

otion to stay

the issuanc e of sum

mons pending a hear

ing on whether the lawsuit was “vexatious and abusive. ” T he chancery cou rt grante d the motion and set a he aring date . Afte r the hear ing, the c ourt found P laintiff’ s cla im s were frivolous and mal icious and dismissed the complaint pursuant to Tennessee Code Annot ated sect

ion 41-21-804 (a)(2). Plaintif f filed a time ly notic e of appeal. There is no transcript or statement of the evidence fi led or ma de a part of the record on

appeal. It is a w ell settle d rule in thi s state tha t when the re is no transcrip tof the evid ence cour ts will co nclusively

presum e on appeal

that the f indi ng s of fact made by

the trial courtare suppo rted by the eviden ce heard

in that cour

t. Thus, this cou rt must accept th e trial cour t’s finding s of fact as tr ue. Rockwell v. Arthur, 673 S.W.2d 512, 516 (Tenn. App. 1983). A court may dismiss an inmate’ s lawsuit if the court finds the c lai m i s frivolous or malicious. Tenn. Code Ann. § 41-21-804(a)(2) (Supp. 1996). “In determ ining whether

a claim is frivolou s or m alicious und er subsec tion (a), the court-3-

may consider whether

or not: 1) The claim has a chance of success; 2) The claim has a basis in law an d in fact; and 3) The claim is substanti ally

simil ar to a previous claim filedby the inmat e in that the present claim arises from the same operative facts.” Id. § 41-21-804(b). Here, the tri a l cou rt con duct ed th e stat utor y hearin g and foun d Plai ntif f’s c laim “do es not have a chanceof succes s and has no ba sis in fact or in law .” The courtfurther found the cl aim w as “f rivolous and ma

licious and amount s to no more than an effort by the Plaintiff to seek revenge o n those indivi duals who ha ve in so me wa y con tri bu ted to hi s l awf

ul con vi cti on on cri min al c har ges .” We must pre su me these findings ar

e correc t in the absence of a transcript or statement of the evidence. Therefore, it results that the j udg ment o f the trial court in di smissing Plaintiff ’s com plaint is affirm

ed with co sts assessed to the plaintiff/appellant, Jerry Dale Duffey . The c ause is r emanded to the trial court for any further necessary proceedin gs.

____________________________________ SAMUEL L . LEWIS, JUDGE CONCUR:

_____________________________________ HENRY F. TODD, P.J., M.S.

_____________________________________ BEN H. C ANT REL

L, J.