02/26/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 6, 2021 Session
CAROLYN PAYNE v. MAXINE BRADLEY
Appeal from the Circuit Court for Davidson County
No. 15C-4554 Kelvin D. Jones, Judge
___________________________________
No. M2019-01453-COA-R3-CV
___________________________________
Sisters filed counter-complaints related to the enforcement of a written contract. The trial
court ruled that the contract was missing an essential term and therefore could not be
enforced. The trial court, however, awarded the plaintiff a judgment in quantum meruit.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Tusca R. S. Alexis, Nashville, Tennessee, for the appellant, Carolyn Payne.
Kathleen R. Redpath, Hendersonville, Tennessee, for the appellee, Maxine Bradley.
OPINION
PROCEDURAL AND FACTUAL BACKGROUND
The underlying lawsuit has its genesis in another lawsuit. Specifically,
Defendant/Appellee Maxine Bradley was deeded a home in Hermitage, Tennessee by her
sister Nancy O. Cockerill, known as the Tulip Grove Property. Ms. Cockerill thereafter
died. Ms. Cockerill’s son contested the validity of the deed in a quiet title action filed
against Ms. Bradley in Davidson County Chancery Court (“the chancery court action”).
Around November 2012, Ms. Bradley contacted her other sister, Plaintiff/Appellant
Carolyn Payne, for help with the expenses related to the chancery court action. Eventually,
on March 3, 2013, Ms. Bradley and Ms. Payne entered into a written agreement drafted by
the attorney representing Ms. Bradley in the chancery court action. The agreement
provided as follows:
This agreement is made between [Ms.] Bradley and [Ms.] Payne
regarding a certain lawsuit pending concerning real property located at 632
Tulip Grove Road, Hermitage, Tennessee.
The parties have agreed to share equally the costs of pursuing the
lawsuit [] in Chancery Court of Davidson County, Tennessee under docket
number 12-1391-I. The parties further agree that they will share in any and
all expenses of the real property including property taxes and upkeep and all
expenses associated therewith. The parties agree that at the conclusion of the
lawsuit the property will be deeded in the name of [Ms.] Bradley and [Ms.]
Payne. If [Ms.] Payne fails to pay her share of expenses and costs and upkeep
of the property and or taxes, then [Ms.] Bradley will not be required to deed
one-half of the property to [Ms.] Payne.
Pursuant to the parties’ agreement, Ms. Payne made some undisputed payments
toward expenses, including (1) a $400.00 payment prior to the execution of the March
contract in December 2012 related to attorney’s expenses; (2) a $250.00 payment in March
2013 directly to Ms. Bradley’s attorney; (3) another payment in March 2013 for $850.00
to Ms. Bradley; (4) a $225.00 payment in April 2013 for a document examiner; and (5)
another April 2013 check in the amount of $250.00 to Ms. Bradley’s initial attorney.
No further payments were made between May 2013 and February 5, 2015, when the
chancellor entered a written order in Ms. Bradley’s favor in the chancery court action. Ms.
Payne thereafter attempted to make additional payments to Ms. Bradley, but Ms. Bradley
refused to accept the payments and further refused to deed one-half of the Tulip Grove
Property to Ms. Payne under the contract.
On November 19, 2015, Ms. Payne filed a pro se civil warrant in Davidson County
General Sessions Court (“general sessions court”). The civil warrant sought damages for
breach of contract and in quantum meruit. On November 30, 2015, Ms. Payne, now
represented by counsel, filed a motion to transfer the matter to circuit court because her
claim for an interest in real property exceeded the jurisdictional limit of general sessions
court. The general sessions court entered an order on December 17, 2015, transferring the
matter to the Davidson County Circuit Court (“the trial court”).
On March 23, 2016, Ms. Payne filed a verified complaint against Ms. Bradley,
alleging breach of contract, specific performance, and constructive trust. Ms. Payne
asserted that she made payments to Ms. Bradley upon request, some of which Ms. Bradley
refused to accept; that, in December 2014, Ms. Bradley stopped informing her of the costs
incurred in the lawsuit and stopped accepting payments from her to assist in the costs of
the action; and that, after Ms. Bradley was successful in defending the suit, she refused to
convey title to the Tulip Grove Property to Ms. Payne. Ms. Payne asserted that she had
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complied with the terms of the agreement entered into with Ms. Bradley, except to the
extent that Ms. Bradley prevented her from doing so, and, as such, requested the trial court
to enforce the agreement and require Ms. Bradley to convey her “undivided one-half
interest in the real property as a tenant in common.”1
On April 29, 2016, Ms. Bradley filed an answer and counterclaim. Therein, Ms.
Bradley admitted that she asked Ms. Payne for financial assistance in March 2013 and that
she received some payments from her; that Ms. Payne accompanied her to court hearings
and engaged in phone conversations related to the previous litigation; and that she did not
accept any payments from Ms. Payne after November 6, 2015. However, she denied that
the contract between the parties was enforceable because “it lack[ed] essential terms,” Ms.
Payne failed to satisfy the condition precedent, to share in any and all expenses related to
the previous lawsuit, and the contract did not “encompass[] the agreement of the parties.”2
Ms. Bradley asserted ten defenses: failure to state a claim, fraud, lack of consideration,
estoppel, breach of good faith and fair dealing, unclean hands, failure to satisfy a condition
precedent, frustration of purpose, breach of contract, and failure to state a claim for
constructive trust; and counterclaimed, asserting “fraud in the inducement” and promissory
fraud.3 As to her counterclaim, Ms. Bradley requested both compensatory and punitive
damages.4 Ms. Payne denied the allegations set forth in Ms. Bradley’s defenses and
counterclaim, and asserted thirty-two affirmative defenses.
After the trial court entered a case management and scheduling order on October
29, 2018, Ms. Payne filed a motion to continue trial and set a new scheduling order on June
11, 2019; she asserted that she was unrepresented at the time the scheduling order was
entered, and that her new counsel had determined that she was not prepared to proceed
with the trial. Ms. Payne also stated that the trial court’s failure to grant her motion to
continue would be prejudicial to her case. No order on this motion is contained in the
record; however, there is no dispute that the motion was not granted. Ms. Payne filed a
second motion to continue on the day the trial was scheduled to commence, July 8, 2019;
the court heard the motion on the day of trial and orally denied the motion. A written order
was entered denying the motion on November 26, 2019.
1
Ms. Payne also requested that the trial court “impose a constructive trust” to protect her one-half
interest, “decree the disgorgement of those funds” Ms. Bradley acquired by leasing the real property, and
award her compensatory and punitive damages, as well as pre- and post-judgment interest and attorney’s
fees.
2
Ms. Bradley recognized in her answer that these contentions were somewhat contradictory, but
noted that while her central contention was that “there is no enforceable contract” she was pleading the
other “defenses in the alternative.”
3
On May 28, 2019, the trial court granted Ms. Bradley’s motion to file an amended answer to assert
two additional defenses: unconscionability and anticipatory breach.
4
These claims were abandoned, as the trial court did not award Ms. Bradley any damages and Ms.
Bradley raises no issue with regard to that ruling on appeal.
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The trial took place as scheduled on July 8, 2019. Only the parties testified.5 Ms.
Payne asserted that she made all payments requested by Ms. Bradley. In particular, Ms.
Payne testified that even though she was aware that Ms. Bradley had hired different counsel
mid-way through the chancery court action, she understood that no moneys were due, as
the attorney would receive his fee from the plaintiff in the chancery court action. Ms. Payne
said she was under a similar understanding with regard to court reporter expenses. Ms.
Payne testified that it was only after the trial in the chancery court action that she learned
there were additional expenses, related both to the chancery court action and the Tulip
Grove Property itself. As a result, Ms. Payne testified that she sent a notarized letter and a
check to Ms. Bradley for one-half the litigation costs in the amount of $2,204.50 on
February 13, 2015. Ms. Payne testified that the letter was delivered to Ms. Bradley’s home,
but Ms. Bradley claimed she did not receive the check and that even more money was
owed. As such, on or about March 11, 2015, Ms. Payne sent two checks to Ms. Bradley:
(1) a check for $2,204.50 to replace the earlier check that Ms. Bradley claimed had not
arrived; and (2) a $1,212.80 check for the additional Tulip Grove Property expenses that
Ms. Bradley claimed. Ms. Bradley received the March 2015 checks, but she undisputedly
refused to cash them.
In contrast, Ms. Bradley asserted that she continually asked for additional payments
for the chancery court action and house expenses as they came due, but Ms. Payne shirked
her duty to make payments for years. In particular, Ms. Bradley noted that she paid
$2,500.00 to her second attorney and that there was no discussion with the attorney that he
would be paid by a third-party or at the conclusion of the litigation. Ms. Bradley testified
that she asked Ms. Payne to contribute to that expense immediately upon incurring it, but
was rebuffed. Likewise, Ms. Bradley testified that although Ms. Payne was present during
the trial of the chancery court action and overheard both Ms. Bradley’s attorney’s request
that Ms. Bradley pay the court reporter and Ms. Bradley’s response that she could not, Ms.
Payne made no offer to help with that expense. Additionally, Ms. Bradley testified that
there were ongoing expenses related to the Tulip Grove Property, such as property taxes
and insurance, that she asked Ms. Payne to pay every month.6 According to Ms. Bradley,
Ms. Payne only attempted to pay the additional outstanding expenses after the conclusion
of the chancery court action. Ms. Bradley asserted, however, that the contract should be
interpreted to require payment upon bills coming due, as the purpose of the contract was
to prevent Ms. Bradley from having to dip into her savings in defense of the chancery court
action. Although Ms. Bradley admitted that she received certified letters that included Ms.
Payne’s March 2015 checks following the conclusion of the chancery court action, she
refused to cash the checks because she believed that Ms. Payne had already breached the
5
Ms. Bradley’s initial attorney in the chancery court action was also called to testify, but Ms.
Bradley declined to waive the attorney client privilege and he was not permitted to testify to any substantive
matters.
6
There was some dispute at trial as to what additional expenses Ms. Bradley actually incurred, as
it appears that Ms. Cockrill paid some of the expenses prior to her death and her son may also have paid a
portion of the expenses during the pendency of the chancery court action.
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parties’ contract by that time. As such, when the chancery court action was concluded, Ms.
Bradley refused to deed a one-half interest in the Tulip Grove Property to Ms. Payne.
The trial court entered a written order on July 18, 2020. Therein, the trial court found
that it was undisputed that Ms. Payne paid her share of the expenses from December 8,
2012, to April 13, 2013, but that no payments were received after that date until the
conclusion of the chancery court action. After reciting the applicable law on this subject,
however, the trial court ruled that the contract omitted an essential term and was therefore
unenforceable:
In this case, the Agreement entered into between the parties clearly
identifies the parties and subject matter of the agreement. It also specifies the
exact size of the property interest to be conveyed by [Ms. Bradley] to [Ms.
Payne] upon [Ms. Payne’s] performance. However, the Agreement fails to
establish any type of payment schedule. The parties disagree as to when
payments were to be made pursuant to the Agreement. [Ms. Payne] testified
that she had until the conclusion of the Chancery Suit to make payment. [Ms.
Bradley] testified that the Agreement required [Ms. Payne] to pay expenses
as those expenses arose. As such, this Court is unable to determine whether
Plaintiff was expected to contribute payments during the lawsuit, or whether
the Agreement permits her to remit payment to [Ms. Bradley] at the
conclusion of the Chancery Suit. This discrepancy prevents this Court from
determining whether or not [Ms. Payne] breached the agreement. Thus, this
Court finds that a payment schedule is an essential element of the parties’
agreement. Without this essential element, this Court finds that the
Agreement is too indefinite and therefore unenforceable.
The trial court found, however, that Ms. Bradley was unjustly enriched by Ms. Payne’s
monetary contributions, and ordered Ms. Bradley to pay Ms. Payne $1,975.00, representing
all payments made by Ms. Payne and accepted by Ms. Bradley. Ms. Payne thereafter
appealed to this Court.
ISSUES PRESENTED
Ms. Payne raises the following issues in her brief, which we slightly restate and
reorder:
1. Whether the trial court erred in denying Ms. Payne’s motion to continue.
2. Whether the trial court erred when it found that there was no breach of
the agreement and that Ms. Payne was not entitled to specific
performance.
In contrast, Ms. Bradley argues that Ms. Payne’s arguments on appeal are waived and that
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she is entitled to attorney’s fees incurred in defending against a frivolous appeal.7
DISCUSSION
I.
We begin with Ms. Payne’s argument that the trial court erred in denying her motion
to continue trial. A trial court’s decision to deny a motion to continue is reviewed under
the abuse of discretion standard. See In re A’Mari B., 358 S.W.3d 204, 213 (Tenn. Ct.
App. 2011) (motions to continue reviewed under an abuse of discretion standard). As our
supreme court has explained:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. It reflects an awareness that the decision
being reviewed involved a choice among several acceptable alternatives.
Thus, it does not permit reviewing courts to second-guess the court below,
or to substitute their discretion for the lower court’s.
The abuse of discretion standard of review does not, however, immunize a
lower court’s decision from any meaningful appellate scrutiny.
Discretionary decisions must take the applicable law and relevant
facts into account. An abuse of discretion occurs when a court strays beyond
the applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. A
court abuses its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal standard, (2)
reaching an illogical or unreasonable decision, or (3) basing its decision on a
clearly erroneous assessment of the evidence.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (internal citations omitted).
In the specific context of a motion to continue, the following guidance is helpful:
Decisions regarding continuances are fact-specific. Accordingly,
motions for a continuance should be viewed in the context of all the
circumstances existing when the motion is filed. Among the factors that
courts consider are: (1) the length of time the proceeding has been
pending, (2) the reason for the continuance, (3) the diligence of the party
seeking the continuance, and (4) the prejudice to the requesting party if the
continuance is not granted.
7
Ms. Bradley does not contend that the trial court erred in awarding Ms. Payne relief in quantum
meruit.
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Nagarajan v. Terry, 151 S.W.3d 166, 172 (Tenn. Ct. App. 2003) (footnotes omitted). The
party seeking a continuance must show that the circumstances justify the
continuance. Osagie v. Peakload Temporary Services, 91 S.W.3d 326, 329 (Tenn. Ct. App.
2002). In order to meet this burden, the moving party must supply some “strong excuse”
for postponing the trial date. Barber & McMurry, Inc. v. Top-Flite Development Corp.
Inc., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986) (citing Levitt & Co. v. Kriger, 6 Tenn.
App. 323 (Tenn. Ct. App. 1927)).
In this case, Ms. Payne’s motion to continue was based on her delay in retaining
counsel after having been proceeding pro se for several months. The trial court’s November
2019 order denying the continuance noted, however, that the case had been pending for
some time and that Ms. Payne had continually insisted that trial occur in a timely manner.
The order further stated that the same basis was cited to deny the prior motion to continue.8
We discern no abuse of discretion in the trial court’s ruling. By the time of the first
motion to continue, this case had been pending for over three-and-a-half years. Nagarajan,
151 S.W.3d at 172 (considering the length of time the proceeding had been pending).
Moreover, when Ms. Payne’s first counsel was allowed to withdraw in August 2018, Ms.
Payne asserted that she needed sixty days to retain new counsel; although the trial court
only allowed Ms. Payne thirty days to employ counsel, Ms. Payne initially decided to
proceed pro se and did not retain her current counsel for another ten months. Id.
(considering the reason for the continuance and the diligence of the party seeking the
continuance). According to the trial court, during that time of self-representation, Ms.
Payne insisted that she wanted a timely trial. Although Ms. Payne asserts in her brief that
she was unable to conduct meaningful discovery being a lay person, Ms. Payne chose to
wait until the eleventh hour to retain counsel. “[E]xcept in the rarest and most exceptional
circumstances, [pro se litigants] cannot be permitted to . . . avoid the risks of failure to
attend [their] decision to forego legal assistance.” Irvin v. City of Clarksville, 767 S.W.2d
649, 652 (Tenn. Ct. App. 1988) (quoting Dozier v. Ford Motor Co., 702 F.2d 1189, 1194
(D.C. Cir. 1983)). Moreover, she has not shown in her appellate brief what specific
documents were needed or how they would have affected the trial. Nagarajan, 151 S.W.3d
at 172 (considering the prejudice to the requesting party); see also Tenn. R. App. P. 36 (“A
final judgment from which relief is available and otherwise appropriate shall not be set
aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.”). Under these circumstances, we cannot conclude that the trial court abused its
8
There is some dispute as to whether the trial court or a special master denied this first motion to
continue. The trial court’s November 2019 order states that it was denied by the trial court in a case
management conference call, and Ms. Payne has submitted no evidence, such as a transcript from that call,
to undermine the trial court’s statement. Moreover, the question of who denied the motion is largely
irrelevant given the trial court’s order addressing both motions and Ms. Payne’s failure to show that the
denial of her request to continue the case was an abuse of discretion, as detailed infra.
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discretion in denying Ms. Payne a continuance.
II.
We next consider the trial court’s ruling that the contract was unenforceable. As the
trial court correctly recognized, “[i]n order to enforce a contract in Tennessee,
the contract must result from a meeting of the minds, must be based upon sufficient
consideration, and must be sufficiently definite to be enforced.” Peoples Bank of Elk
Valley v. ConAgra Poultry Co., 832 S.W.2d 550, 553 (Tenn. Ct. App. 1991)
(citing Johnson v. Central National Insurance Co. of Omaha, 210 Tenn. 24, 34–35, 356
S.W.2d 277, 281 (Tenn. 1962)). “Indefiniteness as to any essential element of an
agreement may prevent the creation of an enforceable contract.” Id. (citing Jamestowne
on Signal, Inc. v. First Federal Savings and Loan Ass’n., 807 S.W.2d 559, 564 (Tenn.
Ct. App. 1990)). Stated another way, “[i]f the essential terms of an alleged agreement are
so uncertain that there is no basis for deciding whether the agreement has been kept or
broken, there is no contract.” Peoples Bank of Elk Valley, 832 S.W.2d at 553–54.
Therefore, a contract must be sufficiently explicit so a court can perceive the respective
obligations of the parties.” Bridgeforth v. Jones, No. M2013-01500-COA-R3-CV, 2015
WL 336376, at *11 (Tenn. Ct. App. Jan. 26, 2015) (citing Doe v. HCA Health Servs. of
Tennessee, Inc., 46 S.W.3d 191, 196 (Tenn. 2001)). “The terms of a contract are
reasonably certain if they provide a basis for determining the existence of a breach and for
giving an appropriate remedy.” Jamestowne, 807 S.W.2d at 564 (quoting Restatement
(Second) of Contracts § 33(2) (1981)). “Moreover, the ‘[d]estruction of contracts because
of uncertainty has never been favored by the law, and with the passage of time, such
disfavor has only intensified.’” Bridgeforth, 2015 WL 336376, at *11 (quoting Gurley v.
King, 183 S.W.3d 30, 34 (Tenn. Ct. App. 2005)). Generally, contract formation is a
question of law that this court reviews de novo. ICG Link, Inc. v. Steen, 363 S.W.3d 533,
543 (Tenn. Ct. App. 2011).
As noted above, Ms. Payne designated as an issue on appeal that the trial court erred
in declining to find a breach of the parties’ contract and in refusing to award specific
performance. Ms. Payne’s argument on this issue is divided into four sections bearing the
following titles: (1) The Contract; (2) Performance; (3) Breach; and (4) Specific
Performance. With the exception of the Performance section of the argument, each
argument section contains a recitation of the relevant general law on the subject. What none
of the argument portion of Ms. Payne’s brief contains, however, is references to the
appellate record.9 And Ms. Payne’s brief contains little argument or authority responsive
to the trial court’s actual ruling.
Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure provides that an
9
Other sections of Ms. Payne’s brief, such as the facts section, do contain references to the record
on appeal.
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appellant’s brief must contain an argument setting forth “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.” According to the
Tennessee Supreme Court, “[a]n issue may be deemed waived, even when it has been
specifically raised as an issue, when the brief fails to include an argument satisfying the
requirements of Tenn. R. App. P. 27(a)(7).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn.
2012).
“This court has repeatedly held that a party’s failure to cite authority for its
arguments or to argue the issues in the body of its brief constitute a waiver on
appeal.” Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011); see also
McGarity v. Jerrolds, 429 S.W.3d 562, 566 n.1 (Tenn. Ct. App. 2013) (“The failure to cite
authority to support an argument on appeal constitutes a waiver of the issue.”). “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 Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010). “The
adversarial system of justice is premised on the idea that ‘appellate courts do not sit as self-
directed boards of legal inquiry and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.’” Malmquist v. Malmquist, No. W2007-
02373-COA-R3-CV, 2011 WL 1087206, at *11 n.21 (Tenn. Ct. App. Mar. 25, 2011)
(quoting State v. Northern, 262 S.W.3d 741, 767 (Tenn. 2008) (Holder, J., concurring in
part and dissenting in part)). “[P]arties must thoroughly brief the issues they expect the
appellate courts to consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009). Based
on these well-settled principles, this court has previously held that arguments were merely
skeletal and therefore waived in similar situations.
For example, in Biles v. Roby, No. W2016-02139-COA-R3-CV, 2017 WL 3447910
(Tenn. Ct. App. Aug. 11, 2017), the trial court found that the nominee of the plaintiff’s
lender validly assigned a deed of trust. Id. at *5. On appeal, the plaintiff asserted that the
deed of trust was “never effectively assigned[.]’” Id. We held, however, that this argument
was waived. Importantly, the court noted that “[t]he only authority cited by [the plaintiffs]
in support of their challenge to the assignment is the following statement in their brief:
‘In Collier v. Greenbrier Developers LLC, 358 S.W.3d 195 (Tenn. Ct. App. 2009), the
Tennessee Court of Appeals held that an assignee stands in the shoes of the assignor if
there is an effective assignment.’” Id. The court concluded that this was “nothing more
than a skeletal argument” and declined to address it. Id.
In another case, Purifoy v. Mafa, 556 S.W.3d 170 (Tenn. Ct. App. 2017), a similar
problem arose with regard to defendant’s due process argument. Specifically, the defendant
argued on appeal that he was denied due process in several respects. Id. at 192. According
to this court, the “‘due process’ section of [the defendant’s] brief spans a total of seventeen
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pages, but the only legal authority he cites about due process is the due process clause
itself, which he quotes on one page.” Id. We therefore held that the defendant’s due process
arguments were waived on appeal. Id.
Finally, in Tennessee Firearms Ass’n v. Metro. Gov’t of Nashville & Davidson
Cty., No. M2016-01782-COA-R3-CV, 2017 WL 2590209 (Tenn. Ct. App. June 15, 2017),
we held that an argument was waived under similar circumstances:
The trial court found that [a party] lacked standing because it had “no interest
in Mr. Goodman’s contracts with the Fair Board.” The trial judge noted,
“They can be an active cheering party all they want, but they are not qualified
to stand as a party litigant in this lawsuit.” On appeal, the plaintiffs maintain
that [the party] has standing to challenge the Board’s gun show ban. In their
brief, they quote two sentences from Hayes [v. City of Memphis, No.
W2014-01962-COA-R3-CV, 2015 WL 5000729, at *9 (Tenn. Ct. App. Aug.
21, 2015)]. One states that an organizational plaintiff may establish standing
to sue for an injury to itself in its own right, and the other lists elements that
organizational plaintiffs may alternatively show to establish standing to sue
as a representative of its members with standing. However, the plaintiffs fail
to analyze or explain how either type of standing was established by TFA
under the facts of this case. They simply state, “Here, [TFA] has standing
both in its own right and on behalf of its members arising out of the Fair
Board’s illegal termination of gun shows at the Nashville Fairgrounds that
are attended by members of [TFA].”
Id. at *4 (footnote omitted). We therefore held that that was nothing more than a skeletal
argument and thus waived that argument on appeal. Id.
The same is unfortunately true in this case. As previously discussed, the trial court
ruled that Ms. Payne was not entitled to specific performance on the contract because the
contract contained missing terms and it was therefore unenforceable. Ms. Payne correctly
notes in her brief that in order to support a claim for specific performance on a contract
involving realty, the contract “must be clear, complete and definite in all its essential
terms.” Parsons v. Hall, 184 Tenn. 363, 367, 199 S.W.2d 99, 100 (Tenn. 1947). Other than
this assertion of law, however, Ms. Payne’s appellate brief contains little argument to
address the trial court’s actual ruling. Rather, the only sentence in Appellant’s brief
responsive to the trial court’s ruling is as follows: “The contract here is clear, complete and
definite in all its essential terms and it show [sic] beyond doubt that the minds of the parties
actually met.” Other than the previous citation to Parsons, no law is cited for this specific
proposition, nor is it supported by any reference to the appellate record. Moreover, the trial
court did not rule only that specific performance on the contract was inappropriate, but that
the contract was unenforceable due to indefiniteness regarding an essential term, citing
Doe, 46 S.W.3d at 196 (“Indefiniteness regarding an essential element of a contract may
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prevent the creation of an enforceable contract.”) (quotation marks and citation omitted).10
Likewise, Ms. Payne’s brief contains no argument, skeletal or otherwise, is as to why the
trial court erred in ruling that the contract was unenforceable due to a missing essential
term regarding the timing of payments under the agreement.11
Thus, Ms. Payne contains, as best, only a skeletal argument actually addressing the
very foundation of the trial court’s ruling against her. In other words, Ms. Payne has not
properly appealed the dispositive issue in this appeal. Respectfully, citing some caselaw
tangentially related to this issue without any effort to actually “analyze or explain” why the
trial court’s ruling was in error falls far short of the requirements of Rule 27. Tennessee
Firearms Ass’n, 2017 WL 2590209, at *4. And while Ms. Payne’s brief does contain a
section concerning performance, her brief contains no argument or legal authority asserting
that partial performance on the contract should be considered in determining whether a
contract is too indefinite to be performed.12 Cf. Gurley v. King, 183 S.W.3d 30, 41–42
(Tenn. Ct. App. 2005) (citing authorities outside Tennessee) (“Partial performance by one
side of the bargain may, by the specifics of that performance, cure an indefinite term of the
agreement.”). Instead, the bulk of Ms. Payne’s legal analysis focuses on whether a breach
of contract occurred—a question that is wholly irrelevant if the trial court correctly
determined that no enforceable contract existed. In the absence of any proper argument to
show that the trial court erred in its decision, we must affirm the trial court’s decision that
the contract omitted an essential term and could not be enforced. See State v. Weaver, No.
M2001-00873-CCA-R3-CD, 2003 WL 1877107, at *16 (Tenn. Crim. App. Apr. 15, 2003)
(“[T]he burden of identifying issues for review on appeal and setting forth argument in
support of those issues falls upon the appellant[.]”).
III.
As a final matter, Ms. Bradley requests an award of the attorney’s fees she incurred
10
Even if the trial court’s ruling is interpreted as a refusal to order specific performance, the trial
court’s decision on that issue is reviewed for an abuse of discretion. See Sinclair Ref. Co. v. Martin, 38
Tenn. App. 66, 76, 270 S.W.2d 576, 581 (Tenn. Ct. App. 1954). Ms. Payne’s brief contains no argument
concerning the effect of this narrow standard of review, nor has she raised an argument sufficient to show
an abuse of the trial court’s discretion.
11
After being prompted by members of this Court at oral argument, counsel for Ms. Payne did
argue that the agreement clearly provided that payments were due “upon completion of the case in the
chancery court.” Counsel later admitted, however, that this was not expressly stated in the contract.
Moreover, counsel argued that the payment term could be supplied by the “conduct of the parties”; the
parties’ conduct at the beginning of the agreement, however, contradicts her argument, as payments were
made far ahead of the completion of the chancery court action. In any event, oral argument is not a substitute
for a properly briefed argument. See Tenn. R. App. P. 27(a) (stating that appellant’s briefs “shall” contain
the required argument, as detailed supra); see also Traylor v. State, 332 Conn. 789, 810, 213 A.3d 467,
481 (2019) (“Raising a claim at oral argument is not, however, a substitute for adequately briefing that
claim.”).
12
The Performance section of Ms. Payne’s argument contains no legal authority whatsoever.
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in defending against this appeal under Tennessee Code Annotated section 27-1-122. We
have generally held that parties should not be forced to bear the cost and vexation of
baseless appeals. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977). As such,
this statute 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 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.
A frivolous appeal is one in that is devoid of merit or has no reasonable chance of
success. Robinson v. Currey, 153 S.W.3d 32, 42 (Tenn. Ct. App. 2004). Although one of
Ms. Payne’s arguments was waived by her failure to properly brief the argument, she did
raise another argument that, if successful, would have resulted in a new trial. As such, we
decline to deem Ms. Payne’s appeal frivolous or to award attorney’s fees incurred in any
portion of this appeal. All other issues are pretermitted.
CONCLUSION
The judgment of the Davidson County Circuit Court is affirmed, and this cause is
remanded for all further proceedings as may be necessary and are consistent with this
Opinion. Costs of this appeal are taxed to Appellant Carolyn Payne, for which execution
may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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