DUFFEY v. LEE, 01-A-01-9607-CH-00324 (Tenn.App. 4-25-1997)

Appeal No. 01-A-01-9607-CH-00324.Court of Appeals of Tennessee. Middle Section, at Nashville.
April 25, 1997.

Appeal From The Chancery Court For Marshall County At Lewisburg, Tennessee, The Honorable Lee Russell, Chancellor Marshall County No. 9795

JERRY DALE DUFFEY, Pro Se, CHARLES W. BURSON, Attorney General
Reporter, MARK H. CHEN, Attorneys For Defendants/appellees

AFFIRMED AND REMANDED

LEWIS, Judge

MEMORANDUM OPINION[1]
This is an appeal by plaintiff/appellant, Jerry Dale Duffey, from the chancery court’s judgment dismissing his complaint against Defendants. The facts out of which this matter arose are as follows.

Plaintiff was indicted on thirty-one counts of theft of property by fraud and/or deceit. After all was said and done, Plaintiff was convicted on twenty-four of the counts and was sentences to fourteen years and one month. The Court of Criminal Appeals affirmed the conviction.

On 30 May 1996, Plaintiff filed a complaint naming numerous defendants.[2] Plaintiff sought to recover civil damages for violations of his civil rights. Defendants filed a motion to stay the issuance of summons pending a hearing on whether the lawsuit was “vexatious and abusive.” The chancery court granted the motion and set a hearing date. After the hearing, the court found Plaintiff’s claims were frivolous and malicious and dismissed the complaint pursuant to Tennessee Code Annotated section 41-21-804(a)(2). Plaintiff filed a timely notice of appeal.

There is no transcript or statement of the evidence filed or made a part of the record on appeal. It is a well settled rule in this state that when there is no transcript of the evidence courts will conclusively presume on appeal that the findings of fact made by the trial court are supported by the evidence heard in that court. Thus, this court must accept the trial court’s findings of fact as true. Rockwell v. Arthur, 673 S.W.2d 512, 516 (Tenn.App. 1983).

A court may dismiss an inmate’s lawsuit if the court finds the claim is frivolous or malicious. Tenn. Code Ann. §41-21-804(a)(2) (Supp. 1996). “In determining whether a claim is frivolous or malicious under subsection (a), the court may consider whether or not: 1) The claim has a chance of success; 2) The claim has a basis in law and in fact; and 3) The claim is substantially similar to a previous claim filed by the inmate in that the present claim arises from the same operative facts.” Id. § 41-21-804(b).

Here, the trial court conducted the statutory hearing and found Plaintiff’s claim “does not have a chance of success and has no basis in fact or in law.” The court further found the claim was “frivolous and malicious and amounts to no more than an effort by the Plaintiff to seek revenge on those individuals who have in some way contributed to his lawful conviction on criminal charges.” We must presume these findings are correct in the absence of a transcript or statement of the evidence.

Therefore, it results that the judgment of the trial court in dismissing Plaintiff’s complaint is affirmed with costs assessed to the plaintiff/appellant, Jerry Dale Duffey. The cause is remanded to the trial court for any further necessary proceedings.

__________________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

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

_____________________________________ BEN H. CANTRELL, J.