IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 29, 2015 Session

VICKI HEADRICK WEBB v. MAX SHERRELL, ET AL.

 Appeal from the Chancery Court for Sevier County

No. 11-11-517 Telford E. Forgety, Jr., Chancellor

No. E2013-02724-COA-R3-CV-FILED-AUGUST 12, 2015

Vicki Headrick Webb (“Plaintiff”) appeals the judgment of the Chancery Court for Sevier 

County (“the Trial Court”) in this suit involving title to real property and a boundary line 

dispute. We find and hold that Plaintiff has significantly failed to comply with Tenn. R. 

App. P. 27 rendering this Court unable to address any of Plaintiff‟s potential issues. We, 

therefore, affirm the Trial Court‟s judgment, find Plaintiff‟s appeal frivolous, and award 

the defendants damages for frivolous appeal. Defendants1raise an issue on appeal 

regarding whether the Trial Court erred in refusing to award them discretionary costs. 

We find no abuse of discretion in the Trial Court‟s determination that “the circumstances 

and equities do not favor the award of discretionary costs . . . .” We, therefore, affirm.

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

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., C.J. and THOMAS R. FRIERSON, II, J., joined.

Vicki Headrick Webb, Sevierville, Tennessee, pro se appellant.

Matthew A. Grossman, Knoxville, Tennessee, for the appellees, Gregory N. Bishop and 

Lisa L. Bishop.

 

1

The defendants involved in this appeal are Gregory N. Bishop; Lisa L. Bishop; U.S. Bank, National 

Association; Max Sherrell; Charles E. Sessions and Lois Elizabeth Sessions, Trustees – Sessions Living 

Trust; Tennessee Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman 

(collectively “Defendants”). Multiple other parties were named as defendants in Plaintiff‟s complaint, but 

the above listed defendants are the only defendants involved in this appeal. Although Defendants are 

represented by separate attorneys as shown above, and each attorney has filed a brief on behalf of the 

parties he represents, the issues raised are the same. As such, for ease of reference, we refer in this 

Opinion to the Defendants collectively. 
2

William S. Nunnally, Greeneville, Tennessee, for the appellee, U.S. Bank, National 

Association.

Lars E. Schuller, Knoxville, Tennessee, for the appellees, Max Sherrell; Charles E. 

Sessions and Lois Elizabeth Sessions, Trustees - Sessions Living Trust; Tennessee 

Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman.

OPINION

Background

In November of 2011 Plaintiff sued Defendants2 with regard to disputes involving 

real property located in Sevier County, Tennessee. The case was tried without a jury, and 

the Trial Court entered its judgment on November 12, 2013 establishing the common 

boundary line and finding and holding, inter alia, that Plaintiff had failed to prove title to 

a “boxed area” or “hatched area” at issue in the suit. Defendants then filed motions for 

discretionary costs pursuant to Tenn. R. Civ. P. 54.04.3 After a hearing, the Trial Court 

denied discretionary costs by order entered January 3, 2014. Plaintiff appealed the Trial 

Court‟s November 12, 2013 judgment to this Court. 

Discussion

Plaintiff‟s brief on appeal is so severely deficient that we are unable to determine 

what specific issues Plaintiff is attempting to raise on appeal other than that she is 

unhappy with the Trial Court‟s decision. Although not stated exactly as such, Defendants 

raise two issues on appeal: 1) whether Plaintiff‟s appeal should be deemed frivolous 

entitling Defendants to an award of damages; and, 2) whether the Trial Court erred in 

refusing to award Defendants Rule 54.04(2) discretionary costs. 

Additionally, defendants Gregory N. Bishop and Lisa L. Bishop filed a motion for 

consideration of post-judgment facts seeking to have this Court recognize post-judgment 

facts in support of their argument regarding frivolous appeal. We deny the motion for 

consideration of post-judgment facts as moot for the reasons stated below.

 

2 As noted in footnote 1, Plaintiff named a number of other persons and entities as defendants in the suit.

3 Gregory N. Bishop; Lisa L. Bishop; and U.S. Bank, National Association filed a motion and Max 

Sherrell; Charles E. Sessions and Lois Elizabeth Sessions, Trustees – Sessions Living Trust; Tennessee 

Property, LLC; Hassan Maziad; Elizabeth J. Maziad; Ted Jordan; and Darvin Hoffman also filed a 

motion.
3

We will begin by addressing the deficiencies in Plaintiff‟s brief. Plaintiff is 

representing herself pro se on appeal. As this Court explained in Young v. Barrow:

Parties who decide to represent themselves are entitled to fair and 

equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 

222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat=l Bank, Inc., 

971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into 

account that many pro se litigants have no legal training and little 

familiarity with the judicial system. Irvin v. City of Clarksville, 767 

S.W.2d 649, 652 (Tenn. Ct. App. 1988). However, the courts must also be 

mindful of the boundary between fairness to a pro se litigant and unfairness 

to the pro se litigant=s adversary. Thus, the courts must not excuse pro se 

litigants from complying with the same substantive and procedural rules 

that represented parties are expected to observe. Edmundson v. Pratt, 945 

S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 

728, 733 n.4 (Tenn. Ct. App. 1995). 

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003). 

We are mindful of Plaintiff‟s pro se status and have attempted to give her the 

benefit of the doubt whenever possible. Nevertheless, we cannot write Plaintiff‟s brief 

for her, and we are not able to create arguments or issues where none otherwise are set 

forth. Likewise, we will not dig through the record in an attempt to discover arguments 

or issues that Plaintiff may have made had she been represented by counsel. To do so 

would place Defendants in a distinct and likely insurmountable and unfair disadvantage 

as this Court would be acting as Plaintiff‟s attorney. 

We note that in this appeal Plaintiff filed a principal brief and a reply brief, both of 

which failed to comply with Tenn. R. App. P. 27 in any significant manner. Specifically, 

Plaintiff‟s initial brief 4fails to comply with Tenn. R. App. P. 27(a)(4), which requires 

that a brief shall contain A[a] statement of the issues presented for review.@ Tenn. R. App. 

P. 27(a)(4). Although Plaintiff‟s brief contains a section titled ASTATEMENT OF THE 

ISSUES PRESENTED FOR REVIEW FROM FINAL JUDGMENT,@ this section begins 

by reciting details about the trial such as the dates of the trial and the Chancellor‟s name 

and then attempts to present argument but never does present a statement of specific 

issues that would justify appellate review. Additionally, this section, along with the 

remainder of Plaintiff‟s brief, contains unconnected statements that are difficult to 

understand and entirely unhelpful in understanding Plaintiff‟s position on appeal. Just 

about the only thing that is clear from Plaintiff‟s brief is that Plaintiff is unhappy with the 

 

4

Plaintiff‟s reply brief is as deficient as her initial brief.
4

outcome of the trial. Plaintiff‟s brief, however, does not contain a statement of the issues 

as required by Tenn. R. App. P. 27(a)(4), and, thus, it is impossible to tell from her brief 

what specific appealable issue or issues Plaintiff wishes to raise. We will not undertake 

to search the record and then revise Plaintiff‟s brief in its entirety so as to create and 

address issues of claimed errors by the Trial Court when Plaintiff raises no such specific 

claimed errors because to do so would have this Court serve as Plaintiff‟s attorney.

Plaintiff‟s brief also fails to comply with Tenn. R. App. P. 27(a) sections (1) and 

(2). Plaintiff‟s brief does not contain “[a] table of contents, with references to the pages 

in the brief;” or “[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; . . . .” Tenn. R. App. P. 27(a). Within the body of the brief there appears to be 

quoted material, however, it is difficult, and in some cases impossible, to tell from what 

source Plaintiff is quoting. 

In Bean v. Bean this Court observed:

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. See State v. 

Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI 

Acrylics, Inc. 898 S.W.2d 196, 210 (Tenn. Ct. App.1994); State v. 

Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an 

issue is waived where it is simply raised without any argument regarding its 

merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App. 

1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App. 

1988). . . . This Court is under no duty to verify unsupported allegations in 

a party‟s brief, or for that matter consider issues raised but not argued in the 

brief. Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993) 

(citing Airline Const. Inc., [sic] v. Barr, 807 S.W.2d 247 (Tenn. Ct. App. 

1990)).

Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000). 

Plaintiff failed to comply in any significant way with Tenn. R. App. P. 27, and this 

failure makes it impossible for this Court to conduct any realistic review of the Trial 

Court‟s judgment. As such, we find and hold that Plaintiff has waived any issues she

may have attempted to raise on appeal.

We next consider the issue raised by Defendants regarding whether 

Plaintiff‟s appeal is frivolous. “„A frivolous appeal is one that is „devoid of merit,‟ or one 
5

in which there is little prospect that [an appeal] can ever succeed.‟” Morton v. Morton, 

182 S.W.3d 821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of 

Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). In pertinent part, 

Tenn. Code Ann. ' 27-1-122 addresses damages for frivolous appeals stating:

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 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). 

As discussed more fully above, Plaintiff‟s brief on appeal is so severely deficient 

that this Court is unable to determine even what specific issues Plaintiff is attempting to 

raise on appeal. As such, Plaintiff‟s appeal is devoid of merit with little prospect that the 

appeal could ever succeed. Given this, we hold Plaintiff‟s appeal frivolous and remand 

this case to the Trial Court for a determination of an award of damages from Plaintiff to 

Defendants for frivolous appeal.

Finally, we consider Defendants‟ issue regarding whether the Trial Court erred in 

denying their motions for discretionary costs. We review a Trial Court‟s decision to 

award discretionary costs for abuse of discretion. Quebecor Printing Corp. v. L & B Mfg. 

Co., 209 S.W.3d 565, 583 (Tenn. Ct. App. 2006). As this Court has explained:

Tenn. R. Civ. P. 54.04(2) permits prevailing parties in civil actions 

to recover “discretionary costs.” The purpose of this provision is not to 

punish the losing party but rather to help make the prevailing party whole. 

Owens v. Owens, 241 S.W.3d 478, 496-97 (Tenn. Ct. App. 2007); Scholz v. 

S. B. Int’l, Inc., 40 S.W.3d 78, 85 (Tenn. Ct. App. 2000). The particular 

equities of the case may influence a trial court‟s decision to award 

discretionary costs, Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 

60 (Tenn. 1992), and, therefore, parties are not entitled to discretionary 

costs simply because they prevail. Scholz v. S. B. Int’l, Inc., 40 S.W.3d at 

85; Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998).

The party seeking discretionary costs has the burden of convincing 

the trial court that it is entitled to these costs. Carpenter v. Klepper, 205 

S.W.3d 474, 490 (Tenn. Ct. App. 2006); Stalsworth v. Grummons, 36 

S.W.3d 832, 835 (Tenn. Ct. App. 2000). As a general matter, a party 
6

seeking discretionary costs can carry its burden by filing a timely and 

properly supported motion demonstrating (1) that it is the prevailing party, 

(2) that the costs being sought are included in Tenn. R. Civ. P. 54.04(2), (3) 

that the costs are necessary and reasonable, and (4) that it has not engaged 

in conduct during the litigation that would justify depriving it of the costs it 

is requesting. Trundle v. Park, 210 S.W.3d 575, 582 (Tenn. Ct. App. 

2006); Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 

42, 65-66 (Tenn. Ct. App. 2004); Mass. Mut. Life Ins. Co. v. Jefferson, 104 

S.W.3d 13, 35-36 (Tenn. Ct. App. 2002).

Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 214-15 (Tenn. Ct. App. 2008). 

In pertinent part, Tenn. R. Civ. P. 54.04, provides:

Costs not included in the bill of costs prepared by the clerk are allowable 

only in the court‟s discretion. Discretionary costs allowable are: reasonable 

and necessary court reporter expenses for depositions or trials, reasonable 

and necessary expert witness fees for depositions (or stipulated reports) and 

for trials, reasonable and necessary interpreter fees not paid pursuant to 

Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel 

expenses are not allowable discretionary costs. . . .

Tenn. R. Civ. P. 54.04(2). 

With regard to the motions for discretionary costs, the Trial Court found and held, 

inter alia:

Upon consideration of the argument of counsel; the various petitions 

and supporting documents submitted by the Defendants; the nature, issues 

and difficulty of the case; the specific language of Rule 54.04 of the 

Tennessee Rules of Civil Procedure; the applicable case law including 

Perdue v. Green Branch Mining Co., 837 S.W.2d 56 (Tenn. 1992); Mix v. 

Miller, 27 S.W.3d 508 (Tenn. App. 1999); and, Mass. Mut. Life Ins. Co. v. 

Jefferson, 104 S.W.3d 13 (Tenn. App. 2002); and, the record as a whole, 

the Court finds that the circumstances and equities do not favor the award 

of discretionary costs, but rather it is appropriate that the parties bear their 

own discretionary costs. In this regard, the Court notes that this cause 

involved very complicated and somewhat convoluted boundary and title 

issues requiring six full days of proof, including extensive expert and lay

testimony and an extraordinary number of exhibits. As the Court noted, 

both sides presented substantial evidence in support of their claims and it 
7

appeared almost inevitable that a judicial hearing and ruling would be 

required to resolve these complicated issues, which issues were not the fault

of the parties, but rather the result of historical defects, conflicts and 

uncertainty in descriptions and title to the subject land. Accordingly, it is 

hereby 

* * *

FURTHER ORDERED, ADJUDGED AND DECREED that the 

requests for discretionary costs by the various Defendants are hereby 

Denied and no discretionary costs shall be taxed in this cause.

We note that the record before us on appeal is voluminous and, even so, does not 

consist of everything that the Trial Court had before it when rendering judgment. The 

fact that Defendants prevailed at trial does not automatically entitle them to an award of 

discretionary costs. Given the facts and circumstances of the case now before us we find 

no abuse of discretion in the Trial Court‟s determination “that the circumstances and 

equities do not favor the award of discretionary costs . . . .” 

For the reasons set forth above, we affirm both the Trial Court‟s November 12, 

2013 Judgment and the Trial Court‟s January 3, 2014 order.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the 

Trial Court for a determination of an award of damages from Plaintiff to Defendants for 

frivolous appeal and for collection of the costs below. The costs on appeal are assessed 

against the appellant, Vicki Headrick Webb.

_________________________________ 

D. MICHAEL SWINEY, JUDGE