author: HOLLY M. KIRBY, J.,

text:
    Rodney MARRA v. BANK OF NEW YORK, Trustee, and Philip M. Kleinsmith, Trustee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 22, 2009 Session.
    Aug. 4, 2009.
    Order Denying Appellants’ Petition for Rehearing Aug. 26, 2009.
    Permission to Appeal Denied by Supreme Court Feb. 22, 2010.

      Philip M. Kleinsmith, Colorado Springs, CO, appellant, pro se, and for the appellant, Bank of New York.
    Sam F. Cole, Jr., Memphis, TN, for the appellee, Rodney Marra.
    William S. Rhea, Somerville, Tennessee, for the appellee, Vip D. Lewis.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

This appeal involves a court clerk’s fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiffs home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk’s fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney’s fees against the bank’s attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk’s motion for Rule 11 sanctions was granted, and the bank’s two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appel-lees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court’s award of appellate attorney’s fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.

Facts and ProceduRal Background

In May 2004, Plaintiff Rodney Marra (“Marra”) and his wife, Jentri Marra, obtained a $275,000 mortgage on property located at 50 Breezy Meadows Cove in Eads, Tennessee (“Breezy Meadows Property”). The mortgage was later assigned to Defendant/Appellee Bank of New York (“the Bank”). Marra’s name was not on the deed to the property.

On January 26, 2005, Marra’s wife died. After her death, Marra wished to become the sole owner of the Breezy Meadows Property. To this end, the Bank advised Marra to stop making the monthly mortgage payments, allow the property to go into foreclosure, and then purchase the property at the ensuing foreclosure sale for the amount of the balance of the mortgage plus the foreclosure expenses. Mar-ra agreed to this plan.

Due to an error by the Bank’s attorney, Philip M. Kleinsmith (“Kleinsmith”), Mar-ra was erroneously informed that the foreclosure sale would take place on April 4, 2006. Marra appeared at the courthouse on that date to purchase the property, but no sale took place. Two days later, on April 6, 2006, the foreclosure sale occurred without Marra present, and the Bank purchased the property for $285,974.66. A trustee’s deed to that effect was recorded. On June 23, 2006, the Bank filed a forcible entry and detainer (“FED”) action to evict Marra from the property.

On July 6, 2006, Marra filed this lawsuit against the Bank, as trustee, and Kleins-mith, in his capacity as the Bank’s representative, to set aside the foreclosure of the trust deed on the Breezy Meadows Property and to obtain injunctive relief and other damages. The Bank conceded that the foreclosure sale was void for lack of proper notice to Marra, and on November 21, 2006, the Bank filed a “Declaration of Void Successor Trustee’s Sale” to that effect. The trial court ordered the property to be re-sold by the Clerk and Master of the Chancery Court, Vip D. Lewis (“Lewis”), as the Special Commissioner, and it ordered and directed the publication of the judicial foreclosure sale. See Tenn. Code Ann. § 35-5-101 (2007).

The court-ordered sale of the Breezy Meadows Property was held on March 8, 2007. Lewis, as the Special Commissioner, facilitated the sale. Marra was the successful bidder at the auction, purchasing the property for $289,000. Pursuant to an order entered by the trial court on March 20, 2007, the proceeds of the sale were to be distributed as follows: $510 in costs, $14,450 (5% of the sale price) as a fee for Special Commissioner Lewis, and the balance of $274,050 to the Bank.

On April 9, 2007, the Bank filed an objection to the Special Commissioner’s fee of $14,450, arguing that the fee “is under these circumstances totally unreasonable and unconstitutional.” The Bank attached to the objection the affidavit of Phillip Jones, a Tennessee attorney, who stated that he had acted as both attorney and trustee for foreclosures on many occasions and that his fee for such services was $550 to $750. On April, 13, 2007, the trial court conducted a hearing on the Bank’s objection. After the hearing, the trial court concluded that the Special Commissioner’s fee was proper. The record on appeal does not include a transcript of the hearing. On the same day, the trial court entered an order to disburse court sale funds, directing the disbursement of the proceeds of the sale, including the Special Commissioner’s fee.

On May 1, 2007, the Bank filed the first appeal in this matter. The Bank named Lewis as an appellee in the notice of appeal, in the cost bond, and in the designation of the record filed with the trial court. However, the Bank did not file a motion to add Lewis as an appellee. See Marra v. Bank of New York, No. W2007-01044-COA-R3-CV (Tenn.Ct.App. Sept. 18, 2007). On May 21, 2007, the Bank filed in the trial court a “Notice of No Objection by Appellee to Appellant’s Statement of the Evidence and Request that Chancellor Approve Same and Authenticate the Record on Appeal.” Marra and Lewis both filed briefs in the first appeal in which both requested attorney’s fees and damages resulting from the Bank’s frivolous appeal. On August 3, 2007, the Bank filed a motion with the appellate court requesting that Lewis be added as an appellee, that the appealed order be declared final, and that the request for attorney’s fees by Marra and Lewis be denied. On September 18, 2007, this Court dismissed the Bank’s first appeal for failure to appeal a final order, because the trial court had not addressed the issue of Marra’s damages. The decision did not address the request for attorney’s fees by Marra and Lewis, nor did it address the Bank’s motion to include Lewis as an appellee. The case was then remanded to the trial court.

After remand, on November 2, 2007, Lewis filed a “Motion to Confirm That Vip D. Lewis is not a Party to the Action and to Disburse Fees.” He argued that, as Special Commissioner, he was acting in a quasi-judicial capacity and was, therefore, immune from suit and could not be added as a party. He asked the trial court to confirm that his fee could properly be distributed in accordance with the trial court’s April 13, 2007 order. In accordance with the notice provisions of Rule 11 of the Tennessee Rules of Civil Procedure, Lewis notified Kleinsmith that he planned to file a motion for sanctions against him personally under Rule 11 because Kleins-mith had named Lewis as an appellee in the first appeal “by methods he knew to be false, deceptive, and abusive practices and through nonsensical underhanded maneuvers.” Lewis claimed that he had “expended a great deal of time, effort and expense defending the false, misleading, and frivolous action, which was totally improper and caused immense delay and needless costs of litigation.” On November 30, 2007, as promised, Lewis filed the motion for sanctions against Kleinsmith. Attached to the motion was the affidavit of Lewis’s counsel, stating that Lewis had incurred $3,300 in attorney’s fees in defending the first appeal.

On the same day that Lewis filed his motion for Rule 11 sanctions, the Bank filed a cross-motion for-Rule 11 sanctions against Lewis’s counsel’s law firm and its attorneys. The Bank’s cross-motion asserted that Lewis’s motion to confirm was not warranted by existing law and was presented for an improper purpose. Attached to the Bank’s cross-motion was Kleinsmith’s affidavit showing that he had accrued $1,375 in attorney’s fees for drafting and filing the motion for sanctions, or $1,875 including the two hours he expected to spend at the anticipated hearing on the motion. In addition, on that day, the Bank mailed to Lewis a second motion for sanctions against Lewis’s counsel’s law firm and its attorneys, alleging that sanctions were warranted against them based on Lewis’s motion for sanctions, because it had no legal or factual basis and was filed for an improper purpose. Upon notification that the Lewis did not intend to withdraw his motion for sanctions, the Bank filed the second motion for Rule 11 sanctions on approximately December 6, 2007. Attached to this second motion for sanctions was Kleinsmith’s affidavit showing that he had accrued $1,250 in attorney’s fees in drafting and filing his second motion for sanctions.

On December 14, 2007, the trial judge, the Honorable Martha B. Brasfield, conducted a hearing on all outstanding motions — Lewis’s motion to confirm, Lewis’s motion for sanctions, and the Bank’s two cross-motions for sanctions. The appellate record does not include a transcript of that hearing.

On February 1, 2008, the trial court entered an order granting Lewis’s motion to confirm, authorizing disbursement of the $14,450 fee to Lewis as Special Commissioner and finding that Lewis was immune from suit because he was acting as a judicial officer. The trial court also granted Lewis’s motion for Rule 11 sanctions, finding that Kleinsmith’s act of naming Lewis as an appellee in the first appeal without filing a motion to add him as a party “was false, misleading, and deceptive.” For this offense, the trial court awarded Lewis $4,365 in attorney’s fees as damages for being required to defend himself in the first appeal. In light of the trial court’s holdings in favor of Lewis on his two motions, the trial court denied the Bank’s two cross-motions for sanctions.

On February 21, 2008, Lewis filed a motion asking the trial court to enter a final judgment as to all claims pertaining to him. The Bank filed a motion to alter or amend the February 1, 2008 order, asking the trial court to consider additional testimony and make further findings of fact. The Bank filed no objection to the entry of a final order as to all issues pertaining to Lewis. On March 20, 2008, the trial court entered an order denying the Bank’s motion to alter or amend and directing the entry of a final judgment as to all claims pertaining to Lewis, pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. The Bank and Kleins-mith now appeal this order.

On May 5, 2008, the Bank and Kleins-mith (collectively, “Appellants”) filed a motion in this Court to “Drop Parties and to Add Parties” pursuant to Rule 19(e) of the Tennessee Rules of Appellate Procedure, requesting that this Court drop Marra as an appellee, add Kleinsmith in his individual capacity as an appellant, and add Lewis as an appellee. On August 12, 2008, this Court entered an order permitting Lewis to be added as an appellee, but denying the Appellants’ request to drop Marra as an appellee. In addition, this Court granted the Appellants’ request to designate Kleinsmith as an appellant in his individual capacity.

Issues on appeal

The issues on appeal raised by the Appellants are as follows:

(1)Whether the trial court’s award of a $14,450 fee to Lewis was reasonable, within sound judicial discretion, and whether such award was constitutional?
(2) Whether Lewis’s fee is absolutely incontestible in any court based on judicial immunity?
(3) Whether the trial court’s denial of the Bank’s first motion for sanctions was lawful?
(4) Whether the trial court’s sanctions imposed against Kleinsmith was lawful?
(5) Whether the trial court’s denial of the Bank’s second motion for sanctions was lawful?
(6) Whether this court should explain its denial of the Appellants’ motion to drop Marra?

Analysis

Statement of the Evidence

As a preliminary matter, Lewis and Marra (collectively, “Appellees”) argue that the appellate record submitted by the Appellants contains no Statement of the Evidence in accordance with Rule 24(c) of the Tennessee Rules of Appellate Procedure. Consequently, they contend that we must presume that the evidence presented to the trial court, even if taken and preserved, would have supported the trial court’s findings and the exercise of its sound discretion. The Appellees correctly note that, because this Court has appellate jurisdiction only, “our review power is limited to those factual and legal issues for which an adequate legal record has been preserved.” Trusty v. Robinson, No. M2000-01590-COA-R3-CV, 2001 WL 96043, at *1 (Tenn.Ct.App. Feb. 6, 2001); see Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct.App.1988); Daniel v. Metropolitan Gov’t of Nashville, 696 S.W.2d 8, 9-10 (Tenn.Ct.App.1985). It is the duty of the appellant to prepare an adequate record in order to allow meaningful review on appeal. Tenn. R.App. P. 24(b); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.1989).

The Tennessee Rules of Appellate Procedure require an appellant to file a transcript of the trial court proceedings under review. Where no such transcript is available, Rule 24(c) directs the appellant to prepare a statement of the evidence:

(c) Statement of the Evidence When No Report, Recital, or Transcript Is Available. If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement should convey a fail', accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant ... as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the clerk of the trial court with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the clerk of the trial court within fifteen days after service of the declaration and notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this rule.

Tenn. R.App. P. 24(c). If a statement of the evidence is filed with the trial court, the trial judge is to approve the statement of the evidence after objections have been considered and adjudicated. If no objections are filed within the time limit, and the trial court does not rule on the statement of the evidence within thirty days after the expiration of the time to file objections, then the statement of the evidence “shall be deemed to have been approved and shall be so considered by the appellate court....” Tenn. R.App. P. 24(f). If an appellant intends to file neither a transcript nor a statement of the evidence, the appellant is required to “file with the clerk of the trial court and serve upon the appellee a notice that no transcript or statement is to be filed-” Tenn. R.App. P. 24(d).

In this case, the record contains several filings relating to the requirements of Rule 24(c). On April 9, 2008, the Appellants filed a document entitled “Designation of Record on Appeal; Issues on Appeal, and; [sic] Statement of the Unreported Evidence.” This document does not describe the evidence submitted at the hearing below; instead, it appears to summarize the trial court’s ruling. On April 17, 2008, Lewis filed an objection to the Appellants’ designation of the record; there is no indication in the record that Lewis’s objection was addressed by the trial court. On or around May 15, 2008, the trial judge signed a document entitled “Court’s Statement of the Evidence,” quoting a portion of the trial court’s order stating that Lewis’s “fee was automatically calculated at 5% of the sale price of real estate....” On May 19, 2008, the Appellants filed a document entitled “Rule 24, TRCP Designations,” notifying the court and the opposing parties that no transcript of the trial court proceedings existed, and that the Appellants had “no statement of the evidence to submit.”

Notwithstanding the Appellants’ notice that no statement of the evidence would be filed, on June 4, 2008, the Appellants filed a “(A) Statement of the Evidence or Proceeding and (B) Issues,” purporting to “amend” or “supplement” their initial filing. This Statement of the Evidence derived from Kleinsmith’s “recollection from being a participant in all of this case’s Trial Court proceedings and from his file copies thereof.” This document essentially sets out the background facts of the case, delineates the series of filings in the case, sets out the trial court’s ruling, and identifies the issues raised on appeal by the Appellants. Regarding the evidence submitted at the hearing on the reasonableness of Lewis’s fee, the document asserts that the Bank’s objection to Lewis’s fee was supported by the affidavit of attorney Phillip Jones. In the same document, the Appellants set out facts related to the trial court’s decision on sanctions.

We must first determine whether the record is sufficient for this Court to conduct a meaningful review of the issues on appeal. As we have stated, the Appellants may submit a statement of the evidence instead of a transcript under Rule 24(c). However, in order to be a useful substitute for a trial transcript, the statement must “convey a fair, accurate, and complete account of what transpired [in the trial court] with respect to those issues that are the bases of appeal.” Tenn. R.App. P. 24(c). Neither allegations contained in pleadings, recitations of the facts contained in a brief, nor arguments of counsel qualify as evidence for purposes of a statement of the evidence. State v. Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App.1988).

From our review of the documents filed in this record, we find that the only document that satisfies any portion of the requirements of Rule 24(e) is the Appellants’ amended Statement of the Evidence, filed in the trial court on June 4, 2008. We note that this filing was not signed by either the trial judge or counsel for the Appellees. Nevertheless, there is no indication in the record that the Appellees filed an objection to this document, and no indication that the trial court approved or rejected this document as an accurate statement of the evidence. According to Rule 24(f), thirty days after the time for objections had expired, the amended Statement of the Evidence was “deemed to have been approved.” See Richards v. Richards, No. E2005-02924-COA-R3-CV, 2007 WL 187932, at *4 (Tenn.Ct.App. Jan. 25, 2007). Therefore, to the rather limited extent to which the Statement of the Evidence recounts evidence before the trial court, we will utilize it to address the issues on appeal.

Reasonableness of Special Commissioner Fee

We first address whether the trial court abused its discretion in awarding Lewis a $14,450 fee for his services as Special Commissioner in conducting the second foreclosure. The trial court made the following findings:

The parties agreed that the Clerk & Master of the Chancery Court of Fay-ette County, Tennessee, Mr. Vip D. Lewis, would sell the real estate through the court. He advertised the property, he contacted potential buyers, he conducted the sale, he collected the sale proceeds, and he disbursed all of the proceeds except his fee. The Clerk & Master performed all of his duties in a proper and legal manner, and he conducted a sale that was valid and legal. There were no objections by any party to the manner in which the Clerk & Master performed his duties. The Court approved the sale of the real estate and approved the fees and expenses, which included a $14,450 fee to the Clerk & Master for the performance of his duties.
Mr. Lewis was named as a Special Commissioner to sell this property; he performed his duties and was awarded his fees pursuant to Tenn.Code Ann § 8 — 21—401 (b)(45) [sic] and TenmCode Ann. § 8-21-801 et seq. The fee was mathematically calculated at 5% of the sale price of the real estate, $289,-000.000....
This Court gave little credence to th[e] affidavit [of Phillip Jones] because Mr. Jones was acting as an attorney and trustee in a foreclosure sale. He did not say that he had ever acted as a Special Commissioner appointed by a court to conduct a sale of real estate through the court. The duties of a Special Commissioner are much more complicated and involved than that of a simple trustee.
The Defendants objected to the amount of fees to the Clerk & Master as Special Commissioner. The Defendants appealed the amount of the fees granted to the Clerk & Master to the Court of Appeals. At that time, Mr. Kleinsmith filed several documents, such as “Notice of Appeal,” “Bond for Appellee’s Cost on Appeal,” and “Designation of Record on Appeal, Issue on Appeal, and Statement of the Evidence, and other documents in both the trial court and the Court of Appeals. He named Mr. Lewis as the Appellee as though he was a party to this action.
* * *
It is the amount of the fees awarded to Mr. Lewis that Mr. Kleinsmith opposes, not the performance by Mr. Lewis of his duties as Special Commissioner. The fees are subject to the discretion of the Court and are legal and valid pursuant to the statutes set out above. Mr. Lewis did not write a check to himself for the fees due to the appeal filed in this matter.
Mr. Kleinsmith argues that, because Mr. Lewis did not object to the record at the Appellate Level, he automatically becomes a party. This is simply not the case. Mr. Kleinsmith has never filed a proper motion to request that Mr. Lewis be made a party to this action, and, therefore, Mr. Lewis is not a party to this action.
The Court finds that the Clerk & Master, Mr. Vip D. Lewis, is not and cannot be made a party to this lawsuit. As a judicial officer, he is immune from suit. The Court finds that he is entitled to his fee of $14,450.00. The amount was set at the discretion of the Court •and is within the limits of the statutes set out above. The Clerk & Master is hereby authorized to disburse the fee.

The applicable statute regarding a fee for the sale of real property provides:

(7) For selling real or personal property under decree of court, and receiving, collecting, and paying out the proceeds, a commission not to exceed ten percent (10%) on the amount of sales up to six thousand dollars ($6,000), and an additional amount to be fixed within such limits, in the discretion of the court. The clerk shall collect the sheriffs fee, plus the sheriffs fee for each additional defendant, in a proceeding to sell real estate.

Tenn.Code Ann. § 8-21-401(0(7) (2002). Though not the proverbial model of clarity, we read the statute as authorizing a 10% fee on the amount of a sale of property up to $6,000, plus an additional amount to be decided by the trial court in its discretion “within such limits,” or within 10%.

Because the statute states that the amount of the fee is discretionary with the trial court, we review the fee award under an abuse of discretion standard. A trial court abuses its discretion “when its decision is not supported by the evidence, when it applies an incorrect legal standard, [or] when it reaches a decision which is against logic or reasoning that causes an injustice to the party complaining.” Owens v. Owens, 241 S.W.3d 478, 496 (Tenn.Ct.App.2007) (citing Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn.2005)).

The trial court established Lewis’s fee at 5% of the purchase price of the property at issue. This was within the parameters of Section § 8 — 21—401(i)(7). In challenging the amount of this fee, the Bank bears the burden of proving that the trial court abused its discretion under the circumstances. According to the amended Statement of the Evidence, the Bank sought to carry this burden by submitting the affidavit of attorney Philip Jones, who stated that the fees for attorneys acting as trustees conducting foreclosure sales under § 35-5-101ff were $550 to $750, far below the $14,450 fee awarded to Lewis. The trial court stated specifically that it “gave little credence” to Jones’s affidavit, because he “was acting as an attorney and trustee in a foreclosure sale.... The duties of a Special Commissioner are much more complicated and involved than that of a simple trustee.”

The Appellants argue that the trial court’s rejection of Jones’s affidavit testimony as evidence that Lewis’s fee was unreasonable and constituted an abuse of discretion because no countervailing evidence was submitted to rebut Jones’s affidavit, nor was evidence submitted regarding the purportedly “complicated” nature of the sale conducted by Lewis. They claim that the trial court was obligated to base its decision on facts in the record. Because no facts were proven to show that the tasks performed by Lewis warranted such a substantial fee, they claim, the trial court erred in approving it.

We respectfully disagree. The applicable statute gives the trial court the authority to award a fee to the clerk and master for his services, with the amount to be within the trial court’s discretion, so long as the fee is within the statutory parameters. Here, the trial court chose to award Lewis 5% of the purchase price of the sale, well within the 10% authorized under the statute. The trial court was not obliged to credit the expert testimony by Jones in his affidavit. See Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 264, 270 (Tenn.Ct.App.1990) (stating that an expert opinion is merely advisory, and the trial court is bound to decide the issue based on its own fair judgment). Here, the trial court appointed Lewis as a Special Commissioner to conduct a sale of property, after the initial foreclosure sale was mishandled by the Bank. In rejecting Jones’s testimony, the trial court fairly noted that Jones’s opinion related to a sale by a trustee in an ordinary foreclosure, not to the type of sale that took place in this case. The trial court took further note of the undisputed facts that Lewis “advertised the property, he contacted potential buyers, he conducted the sale, he collected the sale proceeds, and he disbursed all of the proceeds except his fee.” The parties agreed that Lewis “performed all of his duties in a proper and legal manner, and he conducted a sale that was valid and legal. There were no objections by any party to the manner in which [Lewis] performed his duties.” Once Jones’s expert testimony was rejected as inapplicable, this left no credible evidence that the 5% fee was inappropriate. The trial court therefore concluded that the Bank had failed to carry its burden of showing that the fee was unreasonable. Under these circumstances, we cannot find that the trial court abused its discretion in awarding Lewis a 5% fee, which was in the middle of the range of fees authorized by the statute.

The Appellants also argue that the fee awarded to Lewis constituted an unconstitutional deprivation of due process, that the fee “shocks the conscience,” and that the fee is “a denial of the universal sense of justice.” From our review of the statement of the evidence, it appears that these arguments were neither raised nor adjudicated in the trial court proceedings. Any argument not raised in the trial court may not be first raised on appeal. See Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003). Moreover, as noted above, the fee awarded to Lewis was well within the parameters set forth in the applicable statute. Consequently, these arguments are without merit.

The Appellants argue that the trial court erred in determining that Lewis’s fee was not contestable based on his quasi-judicial immunity as a Special Commissioner and the Clerk and Master. The trial court held that Lewis “is not and cannot be made a party to this lawsuit. As a judicial officer, he is immune from suit.” The Appellants concede that Lewis is immune from suit for his actions in conducting the foreclosure sale, and that he cannot be sued for wrongdoing in performing those acts. See Miller v. Niblack, 942 S.W.2d 533, 537-41 (Tenn.Ct.App.1997). They claim, however, that the trial court improperly extended Lewis’s immunity from suit to the fee awarded to him, essentially insulating the fee and making it “incontestable.” Under these circumstances, they argue, the trial court erred in relying on judicial immunity.

This argument mischaracterizes the trial court’s holding. The trial court did not, as the Appellants suggest, hold that Lewis’s immunity rendered the fee incontestible. The trial court clearly recognized that “[i]t is the amount of the fees awarded to Mr. Lewis that Mr. Kleinsmith opposes, not the performance by Mr. Lewis of his duties as Special Commissioner.” Although the trial court refused to add Lewis as a party defendant, it fully addressed the reasonableness of the fee, taking evidence and ultimately finding that the fee was reasonable. The trial court found that it was not necessary to add Lewis as a party in order to address the reasonableness of his fee, regardless of his immunity from suit, and we do not disagree. Therefore, we reject the Appellants’ argument that the trial court’s holding should be reversed on this basis.

Rule 11 Sanctions

The remaining issues raised by the Appellants relate to the trial court’s decisions on the parties’ cross-motions for Rule 11 sanctions. The Appellants argue that the trial court erred in (1) granting Lewis’s motion for Rule 11 sanctions against Kleinsmith for naming Lewis as an appel-lee in the first appeal, (2) denying the Bank’s motion for Rule 11 sanctions against Lewis’s counsel’s law firm and its attorneys for filing the motion to confirm, and (3) denying the Bank’s motion for Rule 11 sanctions against Lewis’s counsel’s law firm and its attorneys for filing the motion for sanctions against Kleinsmith.

Rule 11.02 of the Tennessee Rules of Civil Procedure provides that, by presenting a pleading to the trial court, an attorney certifies that:

(1) [the pleading] is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Tenn. R. Civ. P. 11.02. Rule 11.03 authorizes the trial court to impose sanctions “[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision 11.02 has been violated.... ” The notice requirements of the Rule provide that the motion for sanctions “shall not be filed with or presented to the court unless, within 21 days after service of the motion ..., the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Tenn. R. Civ. P. 11.03(l)(a).

In determining whether an attorney’s conduct is sanctionable under Rule 11, the trial court must determine if such conduct was reasonable at the time the document was signed. Krug v. Krug, 838 S.W.2d 197, 205 (Tenn.Ct.App.1992) (quoting Andrews v. Bible, 812 S.W.2d 284, 288 (Tenn.1991)). “[T]he question of whether a Rule 11 violation has occurred requires the trial court to make highly fact-intensive determinations regarding the reasonableness of the attorney’s (and client’s) conduct.” Boyd, v. Prime Focus, Inc., 83 S.W.3d 761, 765 (Tenn.Ct.App.2001). As such, we review a trial court’s ruling on a Rule 11 motion for an abuse of discretion. Krug, 838 S.W.2d at 205.

Sanctions Against Kleinsmith

We first address whether the trial court abused its discretion in granting Lewis’s motion for sanctions against Kleinsmith. The trial court granted Lewis’s motion for sanctions in its February 1, 2008 order, after the first appeal had been dismissed and the case was remanded. The trial court found that “the action of Mr. Kleinsmith in naming Mr. Lewis as an Appellee in the Court of Appeals when he was not a party, and without filing a motion giving Mr. Lewis [notice] that he wanted to name him a party to the action, was false, misleading, and deceptive.” The trial court noted that Kleinsmith was given the opportunity to dismiss Lewis as an appellee, but he did not do so. The trial court also stated that, “attorneys can and do commit actions which are sanctionable which cannot be corrected. Unfortunately, Mr. Kleinsmith finds himself in this position.” Thus, the trial court granted the motion for Rule 11 sanctions against Kleinsmith and awarded Lewis $4,365 in attorney’s fees expended in defending the first appeal.

In this second appeal, Kleinsmith argues that the trial court abused its discretion in granting Lewis’s motion for sanctions because Rule 11 of the Tennessee Rules of Civil Procedure applies only to trial court proceedings, not to appellate proceedings. The appropriate remedy, Kleinsmith argues, is set out in Tennessee Code Annotated § 27-1-122, which provides that a reviewing court may award damages against appellants for filing an appeal that “was frivolous or taken for delay.” Tenn.Code Ann. § 27-1-122 (2000). Though such damages were requested by Lewis in the first appeal, Kleinsmith points out, the appellate court dismissed the appeal without resolving the issue, and Lewis did not ask the appellate court to reconsider awarding such damages. Kleinsmith further argues that the trial court erred in awarding Rule 11 sanctions against him because Lewis’s motion for sanctions was not filed until after the case was remanded, at a time when the offending documents could not be withdrawn or corrected. Because Rule 11 clearly contemplates a notice period during which an attorney would have the opportunity to withdraw the offending pleading, he argues, the trial court erred in imposing sanctions under the circumstances presented here, where there was no such opportunity.

In response, Lewis maintains that sanctions against Kleinsmith were appropriate because Kleinsmith was given proper notice of the motion, and he refused to take corrective action. Lewis argues that the trial court properly found that naming him as an appellee in the post-judgment filings without first making a motion to add him was false, misleading, and deceptive. In addition, he points out that the trial court’s exercise of its discretion must be afforded great deference and must be upheld absent evidence that the trial court abused its discretion. Therefore, Lewis asserts, the trial court’s award of attorney’s fees as Rule 11 sanctions against Kleinsmith should be affirmed.

We refer to the outline in the Statement of the Evidence of the proceedings in the trial court below. The Statement of the Evidence states that Kleinsmith, on behalf of the Bank, named Lewis as an appellee in its post-judgment filings without making a motion to add Lewis as an appellee, and that the Bank admitted that doing so was error. Lewis did not ask the Bank to withdraw its appeal at any time during the pendency of the first appeal. In his appellate brief in the first appeal, Lewis requested attorney’s fees for a frivolous appeal pursuant to Tennessee Code Annotated § 27-1-122, on the basis that the appeal was prematurely filed, and that Lewis was named as an appellee without a proper motion and order adding him as a party. On August 3, 2007, the Bank filed a motion with the appellate court to add Lewis as an appellee. The motion was not adjudicated because this Court dismissed the first appeal for lack of a final judgment. Lewis did not further pursue the request for damages in this Court for a frivolous appeal, pursuant to Section 27-1-122. On November 2, 2007, Lewis mailed his Rule 11 motion for sanctions to Kleinsmith, identifying the offending pleadings as those filed in the first appeal naming him as the appellee. The motion for Rule 11 sanctions was filed with the trial court on November 30, 2007.

We are mindful of the deferential standard with which we must review the trial court’s decision to award Lewis Rule 11 sanctions against Kleinsmith. The trial court has wide discretion in such matters, and its decision will not be reversed absent evidence of an abuse of that discretion. One manner in which a trial court may be found to have abused its discretion is when the trial court applies an incorrect legal standard. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001). In granting Lewis’s motion for sanctions, the trial court found that Kleinsmith’s action in naming Lewis as an appellee when he had not been properly made a party was “false, misleading, and deceptive,” and that Lewis “is not and cannot be made a party to this lawsuit” based on quasi-judicial immunity. However, the offending pleadings that were the subject of Lewis’s motion for sanctions were all post-judgment motions filed for the purpose of initiating the first appeal. We must agree with Kleinsmith that Lewis’s motion for sanctions was in essence a motion for appellate attorney’s fees pursuant to Tennessee Code Annotated § 27-1-122 for the filing of a frivolous appeal. Under Section 27-1-122, the decision on whether to award damages for the filing of a frivolous appeal rests solely in the discretion of the appellate court, and it was improper for the trial court to essentially grant appellate attorney’s fees to Lewis under Rule 11. See Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn.Ct.App.2006) (stating that whether to award damages for a frivolous appeal is an issue that lies solely with the appellate court).

For these reasons, we must conclude that the trial court abused its discretion in granting Lewis’s motion for Rule 11 sanctions and awarding appellate attorney’s fees to Lewis for Kleinsmith’s filing of pleadings in connection with the first appeal. Lewis’s motion was essentially a motion for damages for a frivolous appeal pursuant to Section 27-1-122, and such motions are to be addressed solely by the appellate court. Therefore, the trial court’s award of Rule 11 sanctions is reversed.

This conclusion does not end our inquiry. In this appeal Lewis has asked for damages pursuant to Section 27-1-122, again requesting attorney’s fees on appeal. We construe this request as encompassing damages (fees) incurred in defending the first premature appeal in this matter. To reiterate, the conduct for which Lewis seeks damages is Kleinsmith’s naming Lewis as an appellee "without formally adding him as a party. Unfortunately for Lewis, we have held that Lewis is an appropriate party to this appeal. Kleins-mith had filed a motion with this Court to have Lewis formally added, but that motion was not adjudicated by this Court. In light of this holding and all other surrounding circumstances, we find that Kleinsmith’s conduct did not warrant damages and we decline to award Lewis attorney’s fees for defending the first appeal.

Bank’s Cross-Motions for Sanctions

The Bank argues that the trial court erred in denying its two cross-motions for Rule 11 sanctions against Lewis’s counsel’s law firm and its attorneys. The first motion for sanctions alleged that Lewis’s motion to confirm was improper, because it was unnecessary and was based upon no factual or legal grounds. The second motion for sanctions alleged that Lewis’s motion for Rule 11 sanctions was improper because Lewis’s request for appellate attorney’s fees should have been directed to the appellate court, as set out above. The trial court denied both of these motions in light of its other holdings in favor of the Appellees.

With respect to the trial court’s denial of the Bank’s first motion for Rule 11 sanctions, we find no abuse of discretion. Lewis’s motion to confirm was neither unnecessary nor meritless. After this Court remanded the case following the first appeal, Lewis filed the motion to confirm to place the relevant issues squarely before the trial court in order to resolve the immunity issue and to obtain disbursement of his fee. Thus, the Bank’s first motion for Rule 11 sanctions was meritless and the trial court did not err in denying it.

We also find no abuse of discretion in the trial court’s denial of the Bank’s second motion for Rule 11 sanctions. As outlined above, we have determined that Lewis’s motion for Rule 11 sanctions should not have been granted. This does not, however, mean that the filing of the motion was sanctionable. Rule 11 sanctions are not justified simply because the offending motion turns out to be nonmeritorious. See State ex rel. Thompson v. Walker, No. 01A01-9311-CR-00486, 1994 WL 164144, at *4 (Tenn.Ct.App. May 4, 1994) (holding that the failure of the merits of a claim does not make it frivolous per se). In fact, in addressing a motion for Rule 11 sanctions, the trial court should refrain from passing judgment on the merits of the underlying action, and all doubts should be resolved in favor of the signer of the pleading. See Berger v. Ratner, No. 62431 T.D., 1997 WL 170327, at *5 (Tenn.Ct.App. Apr.11, 1997). Under the circumstances of this case, we find no abuse of discretion in the trial court’s decision to deny both of the Bank’s motions for Rule 11 sanctions against Lewis’s counsel’s law firm and its attorneys.

Parties to the Appeal

The Appellants request that this Court reconsider its decision to retain Marra as an Appellee in this appeal. We adhere to our initial decision to retain Marra as an Appellee.

Lewis argues that this Court should reconsider its decision to add him as an Appellee in this action because of his quasi-judicial immunity. It is undisputed that Lewis enjoys immunity from suit based on his performance of judicial or quasi-judicial functions. See Miller v. Niblack, 942 S.W.2d 533, 537-41 (Tenn.Ct.App.1997). This appeal, however, challenges the fee awarded to Lewis by the trial court. The trial court’s award of a fee was authorized by statute, with the amount of the fee within the discretion of the trial court. As such, the exercise of the trial court’s discretion is subject to review on appeal. The propriety of the services performed by Lewis are beyond challenge because of his immunity, but the fee awarded to him is not. Lewis, the person to whom the fee was awarded, is named as an Appellee only to the extent that he would seek to defend his fee, which he has done with full participation in this appeal. This Court may add parties “on such terms as are just.” Tenn. R.App. P. 19(e). Thus, we adhere to our initial decision to add Lewis as an Appellee in these proceedings.

Conclusion

The parties will bear the cost of their own attorney’s fees on appeal. The holdings above pretermit any other issues raised on appeal. All outstanding motions filed by the parties in this appeal that are not specifically addressed herein are denied.

We affirm in part and reverse in part the decision of the trial court. Costs on appeal are to be taxed one half to Appellants Bank of New York, Philip Kleins-mith, and their surety, and one half to Appellees Rodney Marra and Vip D. Lewis, for which execution may issue, if necessary.

ORDER DENYING APPELLANTS’ AMENDED PETITION FOR REHEARING

The Appellants Bank of New York, Trustee, and Philip M. Kleinsmith, Trustee, filed an Amended Petition for Rehearing in this case. Upon due consideration, the amended petition for rehearing is denied. Costs are taxed to Appellants.

IT IS SO ORDERED.

      . This advice was apparently based on the premise that the property had a fair market value of $375,000, while the mortgage balance due was less than $300,000.

      . The Bank sent mailers erroneously advertising that the sale would take place on April 4, 2006, while the notice in a local newspaper correctly reported that the sale would take place on April 6.

      . Wilson & Associates, PLLC, was also named as a defendant, but it was dismissed from the lawsuit by agreement of the parties.

      . Kleinsmith, an attorney, has at all times during these proceedings represented the Bank and himself.

      . On September 4, 2008, the trial court entered an amended order that conformed to the requirements in Rule 58 of the Tennessee Rules of Civil Procedure. For reasons unclear in the record, Chancellor William C. Cole presided over the motion to alter or amend and entered the final order on appeal.

      . Although the order added Kleinsmith as an appellant and Lewis as an appellee, the style of the case remained unchanged.

      . This document is captioned as if it were issued from this Court, but it is signed by the trial court judge. The copy included in the technical record does not have a ‘'filed” stamp on it. For the sake of discussion, we ignore these irregularities because they do not affect our analysis.

      . On December 12, 2008, the Appellants filed a motion for damages in this Court pursuant to Tennessee Code Annotated § 27-1-122, arguing that the Appellees' opposition to the appeal based on the lack of a statement of the evidence was frivolous. This motion is non-meritorious and is hereby denied.

      . The statute cited by the trial court, Tennessee Code Annotated § 8 — 21—401 (b)(45), is an earlier version of the applicable statute. See Tenn.Code Ann. § 8-21-401(b)(45) (1993).

      . Though the Appellants have filed a joint brief in this appeal, it appears that only Kleinsmith personally appeals the trial court's grant of Lewis's motion for sanctions against him, and that only the Bank raises the issues regarding the denial of its motions for sanctions.

      . The statute provides:
      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).

      . Marra's brief did not address these issues, because he "did not take part in the proceedings on these issues.”

      . This Court has held that Rule 11 sanctions do not apply to arguments made in the Court of Appeals. Vermillion v. Vermillion, 892 S.W.2d 829, 833 (Tenn.Ct.App.1994) (arguments made in the Court of Appeals cannot serve as the basis for Rule 11 sanctions in the trial court). In this case, many of the offending pleadings naming Lewis as an appellee— the notice of appeal, the cost bond, etc.,— were in fact filed in the trial court, not in the appellate court. All of the offending pleadings, however, were filed in connection with the appeal, and for the purpose of initiating the appeal. The fees generated from those pleadings would have been included in any request for fees on appeal under Section 27-1-122. Such post-judgment fillings are inappropriate as a subject for Rule 11 sanctions.

      . This is not unlike a challenge to the fee of other court-appointed officers, such as guardians ad litem or special masters. See, e.g., Pennington v. Boundry, Inc., No. M2006-02650-COA-R3-CV, 2008 WL 1923110, at *9-10 (Tenn.Ct.App. May 1, 2008) (citing cases).


source: Caselaw Access Project

author: DAVID R. FARMER, J.,

license: Public Domain

text:
    William L. ODOM, Jr., et ux. v. Harold OLIVER, et al.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 22, 2009 Session.
    March 17, 2009.
    Application for Permission to Appeal Denied by Supreme Court Nov. 23, 2009.

      Thomas M. Minor, Somerville, Tennessee, for the appellants, William L. Odom, Jr., and wife, Abby Odom.
    Julie C. Bartholomew, Somerville, Tennessee, for the appellees, Harold Oliver and wife, Patsy Oliver.
    Russell E. Reviere and Jonathan D. Stewart, Jackson, Tennessee, for the ap-pellees, Todd Pulse and Hardeman County Results Realty, Inc.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which HOLLY M. KIRBY, J., and J. STEVEN STAFFORD, J., joined.

Purchasers brought this action against sellers, realtor, and realty company of home that they purchased, alleging fraudulent concealment, and violation of the Tennessee Residential Property Disclosures Act. We affirm summary judgment for realtor and realty company, but we reverse the trial court’s order granting summary judgment to sellers.

Background/Procedural History

On December 16, 2005, Plaintiffs William L. Odom, Jr. and wife, Abby Odom, (together “Buyers”) purchased a house from Defendants Harold Oliver and wife, Patsy Oliver, (together “Sellers”). The exterior of the house was constructed out of wooden logs. When Sellers purchased the house in 1999, vinyl siding covered the logs on the outside. In the inside, however, the house was unfinished with exposed logs on the interior walls. During the time that they owned the house, Sellers made extensive improvements to the house, which included finishing the home’s interior with sheet rock. The result of the renovations was that the house no longer looked like a log home.

When Sellers decided to sell the house, they listed it with Todd Pulse (“Mr. Pulse”), a licensed real estate agent working for Hardeman County Results Realty, Inc. (“Results Realty”). Sellers originally informed Mr. Pulse that they had made improvements to the house, and, eventually, sellers explained that the house was actually a log construction home covered on the outside with vinyl siding and they had installed sheet rock within the house. Sellers also completed and signed a Tennessee Residential Property Condition Disclosure (“Disclosure”). The Disclosure indicated that new wiring was installed five years ago, but there is no specific indication that Sellers installed sheet rock inside the house. The Disclosure Act also contains a buyer’s acknowledgment that the “disclosure statement is not intended as [a] substitute for any inspection ... [and that buyers] have a responsibility to pay diligent attention to and inquire about those material defects which are evidenced by careful observation.”

Buyers eventually purchased the house from Sellers. The purchase agreement provided that Buyers maintained a right to inspect the house for, among other things, structural defects and interior water intrusions. The purchase agreement also waives any warranty and provided the following:

Buyer shall, within_days after Binding Agreement Date, make such inspections described herein AND, by written notice to Seller, either:
(1) accept the Property in its present “AS IS” condition with any and all faults and no warranties expressed or implied. Seller has no obligation to make repairs;
OR (2) furnish Seller a copy of the inspection report and a written list of items set forth in the inspection report which Buyer requires to be repaired and/or replaced in a professional and workmanlike manner.
OR (3) furnish Seller with a list of written specified objections and immediately terminate this Agreement with all Earnest Money refunded to Buyer. Seller, upon request, shall be entitled to a copy of all inspection reports.

Nevertheless, Buyers did not have the house inspected before completing the sale.

Although Mr. Pulse contends that in a telephone conversation to Buyers’ realtor he mentioned that the house was a log home, Buyers’ realtor denied receiving this information. Buyers discovered that the house was constructed from logs in July 2006, when a strong wind storm tore some of the vinyl siding off of the house. Plaintiffs subsequently retained a residential home builder, Charles Hill (“Mr. Hill”) to inspect the house. Mr. Hill discovered that up to sixty percent of the logs were damaged or rotting. Mr. Hill explained that this compromised the structural integrity of the home and believed it would cost $125,000.00 to repair. Buyers admit that neither Sellers nor Mr. Pulse were aware of any rot or moisture problem with the wooden logs before Buyers purchased the house.

Buyers filed their complaint on November 21, 2006, seeking rescission of the purchase agreement. They do not allege that Sellers knew that the wooden logs were rotting; rather, they allege that the house’s nature as a log home was in and of itself a material fact that sellers had a duty to disclose to them. In response, Sellers, Mr. Pulse, and Results Realty filed motions for summary judgment. In support, of their claims against Mr. Pulse and Results Realty, Buyers produced the testimony of another realtor who opined that a seller and his realtor should disclose that a home is constructed of logs. This realtor further stated that she would disclose that information “because many people interested in purchasing a home do not have an interest in purchasing a log home. It has been [her] experience that it is more difficult to sell a log home.”

The trial court granted summary judgment for all Defendants, and certified its order as a final adjudication pursuant to Tennessee Rule of Civil Procedure 54.02. As to Buyers’ claim against Sellers, the trial court found that there was no dispute that Sellers were unaware that the wooden logs were rotten. In addition, the trial court articulated that there was no causation between any duty to disclose that the house was a log structure and the rotten logs. As to Mr. Pulse and Results Realty, the trial court found that there was no proof that competent real estate licensees generally recognize that a log cabin covered on the exterior with vinyl siding significantly reduces the structural integrity of a house.

Issues

Buyers raise two issues on appeal. First, they assert that the trial court erred in granting summary judgment in favor of Sellers by finding that the Sellers did not have a duty to disclose to the Buyers the fact that the home was of log construction. In addition, as we rephrase it, Buyers argue that the trial court erred in granting summary judgment in favor of Mr. Pulse and Results Realty because the log construction of the Sellers’ home was an “adverse fact” as defined by Tennessee Code Annotated § 66-5-206 and Mr. Pulse should, therefore, have disclosed this condition to Buyers. The Sellers also request this Court award them attorney fees incurred on this appeal.

Standard of Review

We review a trial court’s resolution of a motion for summary judgment de novo with no presumption of correctness. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008). It is ultimately the moving party’s burden to persuade the court that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993)). The moving party may meet this burden by producing evidence or referring to the nonmoving party’s previously submitted evidence that either (1) affirmatively negates an essential element of the nonmov-ing party’s claim, or (2) shows that the nonmoving party cannot prove an essential element of the claim at trial. Id. (citing Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn.2008)). If the moving party sustains its burden, the nonmoving party must produce evidence of specific facts that establish that genuine issues of a material fact exist. Id. (citing Byrd, 847 S.W.2d at 215). “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Id. (quoting Byrd, 847 S.W.2d at 215). In considering a motion for summary judgment, we review the evidence in a light most favorable to the nonmoving party and draw all reasonable inferences in favor of the non-moving party. Id.

Analysis

Although the trial court properly held that there was no genuine issue of material fact that Sellers were unaware that there were rotting logs, we perceive that Buyers also argued that the fact that the house was a log home was in and of itself a material fact that Sellers were obliged to disclose to them. Buyers also appeal the trial court’s determination that the log construction of the home was not an “adverse fact” which realtors have a duty to disclose. We address both arguments below.

Sellers’ Duty to Disclose

This Court recognizes two actionable types of concealment: where the concealment constitutes a trick or contrivance and when there is a duty to disclose. Cont’l Land Co. v. Inv. Praps. Co., No. M1998-00431-COA-R3-CV, 1999 WL 1129025, at ⅝5-6 (Tenn.Ct.App.1999). A party commits fraudulent concealment for failing to disclose a known fact or condition where he had a duty to disclose and another party reasonably relies upon the resulting misrepresentation, thereby suffering injury. Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 539 (Tenn.1998). For the nondisclosure to constitute fraud, the charged party must have knowledge of an existing fact or condition and a duty to disclose that fact or condition. Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682, 685 (Tenn.Ct.App.1986). The fact or condition must be a material fact affecting the essence of the subject matter of the contract. Id. (citing Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d 295, 296 (1947)). Quoting the Restatement (Second) of Torts Section 538, we have opined that a fact is material if

(a) a reasonable [person] would attach importance to its existence or nonexistence in determining his [or her] choice of action in the transaction in question; or
(b) the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his [or her] choice of action, although a reasonable [person] would not so regard it.

Patel v. Bayliff, 121 S.W.3d 347, 353 (Tenn.Ct.App.2003) (quoting Lowe v. Gulf Coast Dev., Inc., No. 01A01-9010-CH-00374, 1991 WL 220576, at ⅜8 (Tenn.Ct.App.1991)). Although contracting parties have a duty to disclose material facts affecting the essence of a contract’s subject matter, a party does not have a duty to disclose a material fact where ordinary diligence would have revealed the undisclosed fact. Simmons, 206 S.W.2d at 296; Lonning, 725 S.W.2d at 684. “A party cannot be permitted to claim that he has been taken advantage of if he had the means of acquiring the needed information or if, because of his business experience or his prior dealings with the other party, he should have acquired further information before he acted.” Macon County Livestock Mkt., Inc. v. Kentucky State Bank, Inc., 724 S.W.2d 343, 351 (Tenn.Ct.App.1986). In addition, a plaintiffs damages must have been caused by his reasonable reliance on the nondisclosure, i.e., the plaintiff was not aware of the material fact and would have acted differently if the plaintiff knew of the concealed or suppressed fact. See Simmons, 206 S.W.2d at 297; Body Invest, LLC v. Cone Solvents, Inc., No. M2006-01723-COA-R3-CV, 2007 WL 2198230, at *6 (Tenn.Ct.App.2007)(no perm. app. filed).

Sellers assert that the trial court properly granted summary judgment because there was no proof that Sellers fraudulently intended to deceive Buyers. Because a plaintiff is not required to demonstrate an “intent to deceive” to establish a claim for fraudulent concealment, we cannot agree with Sellers’ argument on this point. See Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 39-40 (Tenn.Ct.App.2006) (“Constructive fraud is a breach of a legal or equitable duty which is deemed fraudulent because of its tendency to deceive others ... [njeither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.”); Pitz v. Woodruff, No. M2003-01849-COA-R3-CV, 2004 WL 2951979, at *8 (Tenn.Ct.App.2004); Edmondson v. Coates, No. 01A01-9109-CH-00324, 1992 WL 108717, at *9-11 (Tenn.Ct.App.1992); Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682, 684 (Tenn.Ct.App.1986). Sellers’ second argument appears to be two-fold: 1) Sellers did not conceal a defect because a log-frame home is not defective, and 2) Buyers have failed to establish that the failure to disclose the log character of the home actually caused Buyers’ damages. Because a cause of action for fraudulent concealment requires that a seller conceal a “material fact or condition,” rather than a defect, we address Sellers’ argument as it pertains to whether a house’s condition as a log structure is material.

Buyers, on other hand, argue that there is a genuine issue of material fact whether Sellers had a duty to disclose that the house was originally constructed out of logs. First, Buyers allege that the house’s log character is a material fact because a reasonable person would attach importance to a house’s character as a log construction in determining whether to purchase a house. Buyers also argue that Sellers had a duty to disclose because Buyers could not have discovered that the house was a log home through common observation.

Because the parties disagree as to the relevance of the “as is” clause in the purchase agreement, we first address the weight an “as is” provision has when a party alleges fraudulent concealment. Courts generally enforce a contract, including an express disclaimer of warranties such as an “as is” clause, absent fraud or mistake. Jaffe v. Bolton, 817 S.W.2d 19, 25 (Tenn.Ct.App.1991). In Edmondson v. Coates, this Court rejected the argument that “[buyers] cannot prevail on their fraudulent concealment claim because the ‘as is’ clause assigns to the buyers the risk of any and all defects” on the basis that enforcing the express disclaimer of warranties “would be to blindly enforce a contract obtained by fraud.” Edmondson, 1992 WL 108717, at *10-11; see also Godwin Aircraft, Inc. v. Houston, 851 S.W.2d 816, 822 (Tenn.Ct.App.1992) (“As is” disclaimer and opportunity for buyer to inspect aircraft did not relieve the seller of liability for misrepresentation that the aircraft was airworthy because a tortious misrepresentation case is a distinct and separate cause of action from breach of warranty case.). Thus an inquiry as to the effect of the “as is” clause just begs the question whether Sellers committed fraud. This Court noted, however, in Pitz v. Woodruff; No. M2003-01849-COA-R3-CV, 2004 WL 2951979 (Tenn.Ct.App.2004), that

Edmondson says only that an ‘as is’ provision in a contract is not a shield where the seller knew of a defect and withheld the information from a buyer. It does not say that the ‘as is’ provision cannot be considered at all in determining whether the buyer’s reliance on the seller’s representation was reasonable.

Pitz, 2004 WL 2951979, at *9. We, therefore, shall consider the “as is” clause among other factors in inquiring whether a plaintiffs reliance on a defendant’s misrepresentation or omission was reasonable. Id.

We now address Buyers’ argument that Sellers had a duty to disclose that the house was constructed from logs because that information is a material fact or condition. Because Buyers do not allege that Sellers had any reason to know that Buyers specifically wanted a conventional home and not a log-framed home, we limit our inquiry as to whether a reasonable person would attach importance to the fact that the house was a log home in determining his or her choice in the transaction in question. Comments to the Restatement (Second) of Torts emphasize that

d. In determining whether a fact is material it is not necessary that it be one that a reasonable man would regard as affecting the pecuniary advantages of the transaction. There are many more- or-less sentimental considerations which the ordinary man regards as important. Thus it is natural that a person should wish to possess portraits of his ancestors even though they have no value as works of art. A fraudulent misrepresentation that a particular picture is a portrait of the purchaser’s great-grandfather is a misrepresentation of a material fact.
e. As in all cases in which the conduct of a reasonable man is the standard, the question whether a reasonable man would have regarded the fact misrepresented to be important in determining his course of action is a matter for the judgment of the jury subject to the control of the court. The court may withdraw the case from the jury if the fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.

Restatement (Second) Torts § 538, cmt. d, cmt. e (1977) (emphasis added). We do not think that the fact that the house is a log home is so obviously unimportant that it can be determined as a matter of law that Sellers had no duty to disclose it. This issue, therefore, is a genuine issue of material fact that is best determined by the trier of fact.

Regardless of whether the log-based structure of the house is a material fact, Sellers only had a duty to disclose that the house was a log home if that information was not apparent through common observation. Although Buyers argue that they could not have discovered the house’s log character through common observation, Sellers respond that they permitted Buyers to inspect the property and Buyers failed to do so. The Tennessee Supreme Court has recognized that common observation requires a buyer to exercise ordinary diligence. Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d 295, 296-97 (1947). This Court has articulated, however, that ordinary diligence does not necessarily require a home-buyer to obtain an expert inspection. Edmondson v. Coates, No. 01A01-9109-CH-00324, 1992 WL 108717, at *12 (Tenn.Ct.App.1992). “It may be that a jury of that parties’ peers would find that ordinary diligence does so require, but it should not be assumed as a matter of law at the summary judgment stage.” Id. We find, therefore, that there is also a factual dispute regarding whether Buyers could, with ordinary diligence, have discovered that the house was constructed from logs. The question whether the log construction is a material fact and the question whether the log construction could have been discovered in the exercise of ordinary diligence are two inquiries that raise a genuine issue of material fact whether Sellers had a duty to disclose. We find, therefore, that the trial court erred in granting summary judgment in favor of Defendant Sellers.

Sellers also allege that Buyers failed to raise any genuine issue of material fact that the failure to disclose that the house was a log home did not cause the damages incurred to repair the rotten logs. Neither party addresses this issue in-depth. However, Mr. Hill, a general contractor, opined that log homes are more susceptible to fungal spores which cause rotting and require a greater amount of care and maintenance than a conventional home. In light of Mr. Hill’s testimony, we do not believe that Sellers have shown that Buyers cannot prove causation at trial; summary judgment, therefore, is also inappropriate on this ground.

Realtor’s Duty to Disclose

The Tennessee Residential Disclosure Act provides for a homebuyer’s exclusive remedy against a real estate licensee. Tenn.Code Ann. § 66-5-206 (2004). Tennessee Code Annotated § 66-5-206 states that

[i]f a real estate licensee performs [the duty to inform parties of rights and obligations], the licensee shall have no further duties to the parties to a residential real estate transaction under this part, and shall not be liable to any party to a residential real estate transaction for a violation of this part or for any failure to disclose any information regarding any real property subject to this part. However, a cause of action for damages or equitable remedies may be brought against a real estate licensee for intentionally misrepresenting or defrauding a purchaser. A real estate licensee will further be subject to a cause of action for damages or equitable relief for failing to disclose adverse facts of which the licensee has actual knowledge or notice. “Adverse facts” means conditions or occurrences generally recognized by competent licensees that significantly reduce the structural integrity of improvements to real property, or present a significant health risk to occupants of the property.

Tenn.Code Ann. § 66-5-206 (2004). The trial court found that Buyers failed to demonstrate that competent realtors generally recognized that a house constructed from logs significantly reduced the structural integrity of the house. In opposing summary judgment, Buyers submitted an affidavit of a realtor that averred that

when listing [a home originally constructed as a log home and thereafter covered with vinyl siding on the exterior and sheetrock on the interior], there should be full disclosure that the home is constructed of logs as opposed to wood studs. Although the Tennessee Residential Property Condition Disclosure form, which all [s]ellers in Tennessee are required to complete and sign, does not specifically address such a situation, in my opinion Sellers should disclose this fact in narrative form on the disclosure form itself or in some other manner.
It is my further opinion that if the listing agent is aware of such construction and subsequent modifications, he or she has an obligation to disclose these facts when dealing with prospective Purchasers and/or their agents.

The trial court considered the realtor’s affidavit but determined that her testimony was insufficient to establish that realtors generally know that a log home with vinyl siding causes structural problems. We agree and, therefore, affirm the trial court’s order granting summary judgment to Defendants Results Realty and Mr. Pulse.

Attorney Fees

Sellers also argue that they are contractually entitled to attorney fees on this appeal. The language in the purchase agreement provides that “[i]n the event that any party hereto shall file suit for breach or enforcement of this Agreement (including suits filed after closing which are based on or related to the Agreement), the prevailing party shall be entitled to recover all costs of such enforcement, including reasonable attorney’s fees.” In light of our determination that the trial court erred by granting Sellers’ motion for summary judgment, we find that Sellers are not entitled to recover attorney fees for the instant appeal.

Conclusion

For the foregoing reasons, we affirm in part and reverse in part. We reverse the trial court’s judgment granting Sellers Mr. and Mrs. Olivers’ motion for summary judgment. We affirm the trial court’s judgment granting Defendants Hardeman County Results Realty, Inc., and Mr. Pulse’s motion for summary judgment. The Olivers’ request for attorney fees on appeal is denied. Costs of this appeal are taxed one-half to the Appellees, Harold Oliver and wife, Patsy Oliver, and one-half to the Appellants, William L. Odom, Jr., and wife, Abby Odom, and their surety, for which execution may issue if necessary.

      . The purchase agreement stated the following:
      8. Inspections.
      All inspections/reports are to be made at Buyer’s expense, including those required/recommended in the Home Inspection Report, unless otherwise stipulated in this Agreement. Seller shall cause all utility services and any pool, spa, and similar items to be operational so that Buyer may complete all inspections and tests under this Agreement. Buyer agrees to indemnify Seller for the acts of themselves, their inspectors and/or representatives in exercising their rights under this Purchase and Sales Agreement. Buyer waives any objections to matters of purely cosmetic nature disclosed by inspection. Buyer has no right to require repairs or alterations purely to meet current building codes, unless required to do so by governmental authorities. In the event Buyer fails to timely make any inspection, the Buyer shall have forfeited any rights provided under this paragraph eight (8).
      Initial Inspection: Buyer and/or its inspectors/ representatives shall have the right and responsibility to enter the Property during normal business hours, for the purpose of making inspections and/or tests of the following items: all appliances, the plumbing systems (including but not limited to spa/whirlpool tub, hot tub, sauna, swimming pools, irrigation system), heating and air conditioning systems, electrical systems (including but not limited to smoke, fire, security system), sewage disposal systems, wells, fireplaces (including but not limited to gas starter and/or logs), environmental issues (including but not limited to asbestos, radon gas, and toxic mold), synthetic stucco (EIFS), cracked window panes and/or broken seals, structural defects, interior water intrusion(s), standing water within foundation and/or basement, and the roof and decking for visible leaks. The inspection report is not to ascertain the cosmetic imperfections of Property or other items that Buyer has already considered, or should have already considered in determining the purchase price. (Emphasis added.)

      . As this Court stated in Continental Land Company:

      As a general rule to constitute fraud by concealment or suppression of the truth there must be something more than mere silence, or a mere failure to disclose known facts. There must be a concealment, and the silence must amount to fraud. Concealment in this sense may consist in withholding information asked for, or in making use of some device to mislead, thus involving act and intention. The term generally infers that the person is in some way called upon to make a disclosure. It may be said, therefore, that, in addition to a failure to disclose known facts, there must be some trick or contrivance intended to exclude suspicion and prevent inquiry, or else there must be a legal or equitable duty on the party knowing such facts to disclose them.

        Cont’l Land Co. v. Inv. Props. Co., No. Ml 998-00431-COA-R3-CV, 1999 WL 1129025, at *5-6 (Tenn. Ct.App. 1999) (citing Hall v. De-Saussure, 41 Tenn.App. 572, 297 S.W.2d 81, 87 (1956)).


author: CHARLES D. SUSANO, JR., J.,

text:
    STATE of Tennessee ex rel. Bee DeSELM, et al. v. John W. OWINGS, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    April 14, 2009 Session.
    May 27, 2009.
    Permission to Appeal Denied by Supreme Court March 1, 2010.
    Petition to Rehear Denied March 22, 2010.

      Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Bee DeSelm, Alfred Akerman, Margo Akerman, Donna J.G. Brian, Mike Whalen, Jerry Bone, James Gray, Robert Cunningham, Millie Cunningham and Carl Seider.
    Robert H. Watson, Jr., Knoxville, Tennessee, for the appellees, John E. Owings and Knox County, Tennessee.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and JOHN W. McCLARTY, J, joined.

The plaintiffs, ten citizens of Knox County, filed suit against John W. Owings, the Knox County Law Director, and Knox County, seeking, among other things, declaratory judgment and a writ of mandamus, pertaining to the plaintiffs’ request that the officers of Knox County who were newly-elected in the August 7, 2008, general election, be sworn in immediately following the certification of the election results by the Knox County Election Commission, rather than waiting until September 1. The defendants filed a motion to dismiss, which the trial court granted, based, in part, on a lack of standing. The plaintiffs appeal. We affirm.

I.

The style of the complaint identifies and describes the plaintiffs in the following manner:

State of Tennessee on relationship of Bee DeSelm, Alfred Akerman, Margo Akerman, Donna J.G. Brian, Mike Whalen, Jerry Bone, James Gray, Robert Cunningham, Millie Cunningham and Carl Seider and said named Citizens as an Association exercising their Tenn. Const. Art. 1, §§ 1, 8 and 17 rights; as an [sic] Bennett v. Stutts Association of Public Spirited Citizens; as an Association of Local Taxpayers; as an Association of T.C.A. § 29-35-110 Citizens; as T.C.A. § 8-47-110 Citizens; and as Politically Associated Persons.

The original complaint — which was filed on August 4, 2008 — seeks “judicial review” of a “controversy.” The core facts of that controversy are found in the first two paragraphs of the complaint:

Plaintiffs seek judicial review by expedited declaratory judgment to settle a controversy created by Knox County Law Director John E. [sic] Owings’ reported directives that persons elected to fill vacated Knox County offices at the August 7, 2008 Knox County Election can delay taking their oath of office until September 1, 2008.
Plaintiffs assert that persons elected to fill an unexpired term of an office, including Law Director, take office immediately upon the Election Commission certifying the winners of the election and are required to perform the ministerial duty to take the oath of office.

(Paragraph numbering in original omitted.)

As noted, the plaintiffs, among other things, ask that the officers elected on August 7, 2008, “be sworn and take office immediately after the Knox County Election Commission certifie[s] the winners of each office.” Plaintiffs alleged in their original complaint that the defendant Ow-ings is not acting in a proper and legal way with respect to these matters. They seek a writ of mandamus “to require that [Ow-ings] perform his duty as Knox County Law Director to direct Knox County[,] Tennessee to conduct a swearing in for all officials elected on August 7, 2008[,] to fill vacated offices, including Law Director, immediately after the Knox County Election Commission certifies the winners of the August 7, 2008[,] election.” (Footnote in plaintiffs’ complaint omitted.) Further, in addition to mandamus, the plaintiffs seek declaratory judgment, “damages, attorney fees and costs,” and general relief.

In addition to the identifying and descriptive material in the style, the plaintiffs refer to themselves “as members of a partnership of publicly spirited citizens known as ‘The Citizen Plaintiffs.’ ” They allege that their “partnership” has some 13 objectives in pursuit of the partnership’s “purpose.” All of these objectives can be properly characterized as addressing alleged misdeeds or threatened wrongs by the government of Knox County and its officers. The plaintiffs purport to act for themselves and “voters, taxpayers, candidates, [and] civic[-] minded citizens.” Later in their original complaint, in an attempt to bolster their “standing” allegations, the plaintiffs point to their “prior participation in litigation individually, collectively and in groups to accomplish the purposes of [their] partnership” and refer specifically to 18 lawsuits against various and sundry defendants, including Knox County and county officers. They allege that these lawsuits reflect their “special interest, not shared by the general public of Knox County.”

On August 8, 2008, the plaintiffs filed a motion to amend and supplement their complaint. On the same day, the defendants filed a motion to dismiss, which, among other things, asserts that the “[plaintiffs do not have standing to bring this suit, as they do not have the appropriate nexus with the offices.”

The trial court heard all pending motions including the defendants’ motion to dismiss on August 13, 2008. Following that hearing, the court entered its judgment on August 25, 2008, dismissing the plaintiffs’ suit. Among other reasons given, the court held that “[t]he plaintiffs do not have standing to bring this cause of action.” On the day the judgment was entered, the plaintiffs filed their “Second Motion to Amend and Supplement Complaint.”

On August 26, 2008 — obviously after the trial court had stated on August 13, 2008, that it was dismissing the plaintiffs’ lawsuit — the plaintiffs filed their “Fourth Motion to Amend and Supplement Complaint.” (Emphasis added.) On September 11, 2008, the plaintiffs filed a pleading, which, as pertinent here, changed the designation of the aforesaid “Fourth Motion” to “Third Motion,” (emphasis added), but that same document also includes a true “Fourth Motion to Amend and Supplement Complaint.” In any event, the trial court, by order entered September 22, 2008, denied all of the plaintiffs’ pending motions.

This appeal followed.

II.

The plaintiffs raise a number of issues. However, the threshold question for us is whether the plaintiffs have standing to pursue the claims in their complaint. The short answer to that question is “no.”

III.

The trial court granted the defendants’ Tenn. R. Civ. P. 12.02(6) motion for “failure to state a claim upon which relief can be granted.” Id. Such a motion challenges the legal sufficiency of the well-pled factual allegations of the complaint. Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.2002). We review a trial court’s grant of a Rule 12.02(6) motion de novo “without giving any presumption of correctness to [the trial court’s] legal conclusions.” Id. at 696-97.

IV.

As previously noted, the trial court held that the plaintiffs lack standing to pursue the claims asserted in their complaint. The Supreme Court extensively discussed the concept of “standing” in the case of American Civil Liberties Union v. Darnell, 195 S.W.3d 612 (Tenn.2006):

Courts employ the doctrine of standing to determine whether a particular litigant is entitled to have a court decide the merits of a dispute or of particular issues. Grounded upon “concern about the proper — and properly limited — role of the courts in a democratic society,” the doctrine of standing precludes courts from adjudicating “an action at the instance of one whose rights have not been invaded or infringed.” The doctrine of standing restricts “[t]he exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, ... to litigants who can show ‘injury in fact’ resulting from the action which they seek to have the court adjudicate.” Without limitations such as standing and other closely related doctrines “the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”
To establish standing, a plaintiff must show three “indispensable” elements “by the same degree of evidence” as other matters on which the plaintiff bears the burden of proof. First, a plaintiff must show a distinct and palpable injury: conjectural or hypothetical injuries are not sufficient. Standing also may not be predicated upon an injury to an interest that the plaintiff shares in common with all other citizens. Were such injuries sufficient to confer standing, the State would be required to defend against “a profusion of lawsuits” from taxpayers, and a purpose of the standing doctrine would be frustrated.
The second essential element of ’standing is a causal connection between the claimed injury and the challenged conduct. A plaintiff may satisfy this element by establishing the existence of a “fairly traceable” connection between the alleged injury in fact and the defendant’s challenged conduct. The third and final element necessary to establish standing is a showing that the alleged injury is capable of being redressed by a favorable decision of the court.
It is important to note that standing does not depend upon a plaintiffs likelihood of success on the merits; however, the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.

Id. at 619-20 (citations with explanatory information in parenthesis and footnote omitted).

V.

Both sides rely upon the Supreme Court case of Bennett v. Stutts, 521 S.W.2d 575 (Tenn.1975). The plaintiffs argue that Bennett supports their position. The defendants contend that this landmark case bolsters their position, and the trial court’s conclusion, that the plaintiffs lack standing. We have determined that the correct answer to the “standing” question is to be found in Bennett.

VI.

As in the instant case, the suit in Bennett was brought by “citizens, residents and taxpayers.” Id. at 576. As an aside, we note, and find interesting, that the Court in Bennett said that the complaint there was dealing with a “patent public wrong.” Id. (Emphasis added.) This statement was made without any equivocation on the part of the High Court. The complaint in Bennett sought to invalidate the election of an individual to the position of County Superintendent of Public Instruction because “the election ... was conducted by secret ballot in violation of the entirely mandatory provisions of” the applicable statute. Id. Again, no equivocation by the High Court on the issue of a statutory violation. The complaint sought to prevent the new superintendent “from taking office or performing any of the duties of office.” Id. On appeal, the Supreme Court held, in affirming the trial court, that “[t]he suit ... must fail for plaintiffs lack of standing to sue.” Id.

Early on in the opinion, the Supreme Court stated the “settled law”:

It is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally.

Id. (citations omitted). The plaintiffs in the instant case acknowledge that this is a well-established general principle. However, they strenuously argue that Bennett, later in that opinion, carves out an exception to this general rule. They rely upon the following language in Bennett:

We recognize that the requirement that suits in the nature of a quo warranto and those seeking to redress public wrongs be brought by the District Attorney General can create insurmountable problems. Public spirited citizens should not be stifled or stopped in their search for solution to public wrongs and official misconduct such as are involved in this case.
If the District Attorney General, in matters such as this, should act arbitrarily or capriciously or should be guilty of palpable abuse of his discretion in declining to bring such an action, or in authorizing its institution, the courts will take jurisdiction upon the relation of a private citizen, in the name of the State of Tennessee.
When citizens sue to rectify a public wrong, under these circumstances, a copy of the complaint shall be served upon the District Attorney General. It shall be the duty of the trial court forthwith to conduct an in limine hearing designed to determine whether to permit plaintiffs to proceed. If it be determined that the District Attorney General’s refusal to bring the action, or to authorize the use of his name in its institution, was improper or unjustified, or that plaintiffs case is prima facie meritorious, the trial court shall permit the action to proceed.

Id. at 577 (citations omitted). The plaintiffs now before us point out that they served a copy of their complaint on Randall Nichols, the District Attorney General for Knox County. They complain that the trial court failed to hold a hearing to determine whether Attorney General Nichols wrongfully refused and failed to proceed with this action. They contend that Bennett stands for the proposition that, if an attorney general, after being notified of a suit, refuses to bring the action or refuses to authorize the use of his or her name and if his or her refusal “was improper or unjustified,” plaintiffs such as those in this case will be permitted to proceed, regardless of whether the plaintiffs have standing under the general principle reiterated in Bennett and quoted by us in this opinion. We disagree with the plaintiffs’ interpretation.

Bennett’s reference to the district attorney general is simply a recognition of the unique role of the attorney general in suits of this nature. Id. However, despite this unique role, Bennett makes clear that the attorney general cannot “act arbitrarily or capriciously” or “be guilty of palpable abuse of his discretion in declining to” pursue or allow such a suit to be pursued in the attorney general’s name. Id. Bennett does not expressly say that the failure to act of a recalcitrant attorney general will, ipso facto, convert a plaintiff, unthout standing in the traditional sense, into a plaintiff with standing. In the absence of such an express holding by the High Court, we conclude that the failure of an attorney general to act or allow his or her name to be used, simply means that the attorney general’s preeminent role in this area will give way to a plaintiff with standing.

We find no error in the trial court’s failure to conduct a hearing on the “attorney general” issue discussed in Bennett. We say this because a ruling that General Nichols was improperly refusing to act or permit others to act in his name would not benefit these plaintiffs. The record clearly reflects that the plaintiffs do not “aver special interest or a special injury not common to the public generally.” Id. at 576. We do not doubt that these plaintiffs are “public spirited citizens,” active in the political and public affairs of the community, “politically associated persons,” and that they have participated in the filing of many lawsuits in an effort to remedy and correct what they perceive to be wrongful and illegal conduct by public officials. None of this, however, vests them -with standing. In the absence of standing, they cannot proceed with this action.

VII.

The plaintiffs attempt to demonstrate standing by arguing that they can proceed as taxpayers. On this issue, the trial court opined as follows:

The parties have failed to allege sufficient facts to invoke their status as a taxpayer, and in particular there’s been no specific allegations of an illegal expenditure or an increase of a tax burden on them or any other member of the tax paying public at large.

We agree. See Parks v. Alexander, 608 S.W.2d 881, 886 (Tenn.Ct.App.1980); see also Ragsdale v. The City of Memphis, 70 S.W.3d 56, 62-63 (Tenn.Ct.App.2001).

VIII.

Having found a lack of standing we decline to address the merits or demerits of the substance of the plaintiffs’ complaint or the defendants’ position that the issues in this ease were rendered moot by virtue of the fact that the new county officers were duly sworn into office on September I, 2008, bringing to an end the tenure of them predecessors. It is not the prerogative of an appellate court to render advisory opinions. Banks v. Jenkins, 224 Tenn. 23, 449 S.W.2d 712, 717 (1969).

IX.

The judgment of the trial court is in all things affirmed. Costs on appeal are taxed to the appellants, Bee DeSelm, Alfred Akerman, Margo Akerman, Donna J.G. Brian, Mike Whalen, Jerry Bone, James Gray, Robert Cunningham, Millie Cunningham and Carl Seider. This case is remanded to the trial court, pursuant to applicable law, for the collection of costs assessed below.

      .At oral argument, the plaintiffs orally moved the Court to disqualify attorney Robert H. Watson, Jr., from representing both Mr. Owings and Knox County because of the plaintiffs' perception that there was an irreconcilable conflict of interest between the defendants. We took the motion under advisement. Upon consideration of the motion, it is denied.

      . This is actually the style as shown on the plaintiffs' brief in this Court. We have quoted this style because it apparently incorporates the style of this case as it existed when the trial court entered its last judgment on September 22, 2008.

      . The complaint reflects that the newly-elected county officers were elected to the following offices: commissioner (eight in number), sheriff, trustee, register of deeds and clerk.

      . None of the amended complaints add significantly to the allegations in the original complaint bearing on the issue of the plaintiffs’ alleged standing.