### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2002 Session

STATE OF TENNESSEE, ET AL 

### . v. ROGER D. HAYWOOD, ET AL 

### .

Appeal from the Circuit Court for Williamson County No. II-2K082 J. Russ Heldman, Judge

No. M2000-01400-COA-R3-CV - Filed August 28, 2002

The Tr ia l C ou rt he ld th at Na ti on al Ci ty M or tg ag e C om pa ny ( “National”), which services the mortga ge on the property a t issue, and its attorneys violated Tenn

. R. Civ. P. 11.02 and imposed sanctions against them

in this condemnation proceeding. National and its attorney s appeal the Trial Court’s Rule 11.02 sanctions. We reverse and remand.

Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed; Case Rem

anded.

D. M ICHAEL S WINEY , J., deliver ed the opinion of the

court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Clifton E. Darnell and Lar ry W. Johnson, Atlanta, Georgia, f or the Appellants, Nation al City Mortgage Co., Morris, Schneider & Prior, L.L .C., and Larry

W. Johnson.

Robert H. Jennings, Jr., Nashville, Te nnessee, and Roger Horner, Bre ntwood, Tennessee, for the Appellees , State of Tennessee, on relation of The Commissioner of the Depar tmento f Transportation, for and on behalf of Said Department, a nd The City of Bre

ntwood.1 The Peti ti on forCondemnation a lso named Will iams on County as a defendant to determine what i nterest t he
cou nty may h ave in th e Pr ope rty.
-2- OPINION Background

On February

11, 2000, the City of Bre ntwood and the State Depa rtment o f Transportation (“Petit

ioners ”) filed a Petition for Condemnation (“Petition”), seeking to take, by eminent domain, a portion of a tract of land (“Property ”) located on Concord Road in Brentwood, Tennessee. The Property is owned by Roger D. Haywood a

nd Sonya M. Hay

woo d. The Pet ition also named National as a Defendant. National ser vices the Haywoods’ mortg age for their mortga ge holder. 1 The Petition cited the following eminent domain statutes as authority for the taking, Tenn. Code Ann. §§ 29-17-201, et seq., 29-17-801, et seq., and 54-5-104, et seq . The Petition also stated t he condemnation was for a public purpose, specifically road work to widen Concor d Road and a relocation of public utilities along that road.

On the same day the

Petition w as file d, Petitioners tendered $12,500 to the Trial Court. This $12,500 was the amount Petitioners determined to be just compensation for the taking of the Propert y . Petitioners also filed Notices, served upon each defenda nt, which informed the defenda nts, pursuant to Tenn. Code Ann. § 29-17-80 3, that if t hey objecte d to Petition

ers’ rig ht to condemn and take the Property , they should file a written objection wi thi n 5 day s of the da te Petitioners gave the Notice. The Notice also infor med the defendants that a hearing wa s set for March 27, 2000, at which Petitioners would seek immediate possession of the Property

.

The Notice addressed

to Nationa

l listed a Miamisburg , Ohio add ress, which was the addressli st ed on th e P ro pe rt y’ s Dee d of Trust. The Notice was not sent to National’s register ed
a gent for service of process in Tennessee . The Statement of the Evidence prov ides that bot h National and the Haywoods were served with the Petition and the Notice on February

17, 2000. The record shows the Notice and Petition were served u pon National by ce rtified mail, return receipt requested. The St ate ment of the Evidence also provides that National’s return receipt was signed
on behalf of National by

an unidentifiedperson and returned to the Circ

uit Court Cle

rk. Sometime thereafter, the Notice and Petition were forwarded to National’s c ounsel. The record shows National filed no objection to the Petition within 5 days of the date the Notice was served.

On March 7, 2000, Nat

ional fil ed an An swer and Claim (“Answer”) in which National raised s everal

defense s, inclu ding: (1) the Petition failed to state a claim upon which relief
can be granted under Tenn. R. Civ. P. 12.02(6); (2) lack of in personam and subject ma tte r jurisdiction; (3) the Petition was invalid since the Petitioners failed to comply with the condemnation statutes; and (4) t

he conde mnation a ction viola

ted the Un

ited State s a nd Tenn essee Constitutions since it constituted a taking by a governmental entity

without just compensation.-3- On the same day it f

iled the Answer, National also filed a Motion for Pay ment of Proceeds from Court

Registry ( “Motion for Payment of Proceeds”) in which it asked the Trial Court to di sb ur se to Na ti on al “a ll fu nd s p ai d i nt o t he re gi st ry . . . as just and adequate compensation for the [P ]r op er ty. . . .” In support of this motion, National filed a brief in which it cited la nguage in the Property’sDeed of Trust as thebasis of its interest in the proceeds. The brief also stated that “[t]o the best of De

fendant National ’s knowle dge, no party -in-inte

rest disputes th at this sum r

eprese nts just and adequate compensation for the property and easements taken by

[the Petitioners].”

Soon thereafter, Petitioners filed a Motion to Strike National’s Answer. Petitioners argue d the Tria

l Court should strike all of National’s defenses because they were “unsupported by any factual statement” and bec aus e the defenses were “conc lusory, repug nant, contradictory

and withoutmerit andshould be stricken to permit this public improvement project to proceed without further delay.” Petitioners fur

ther stated, in their Motion to Strike, that the issue of damages was not before the Trial Court and that the only pending issue was “whether the

project to widen Concord Road and to relocate public utilities is for a public u se and pu

rpose and should a

Writ of Possession be granted.”

National filed a Motion fo r Continuance of the March 27, 2000, hearing stating National’s counsel had a conflict with the hearing date. The Trial Court, on March 27 , 2000, held the hearing

as sched uled. The record shows tha

t neither a repre sentative

of Nation al nor its attorney appeared at the hearing. The recor

d shows that at the hearing, on behalf o f the Petit

ioners, engineers testified about the public purpose of the Concord Road project. One of the owners of

th e P ro pe rt y, Roger Haywood, testified a

boutthe current dangerous condition of Concord Road a nd that he was in favor of the project. The record show s the Haywoods did not file an objection to the ta king. Furthermore, the record shows that Roger Hay

wood testified he had received correspondence, dated February 22, 2000, f

rom National notifying him Na tional had employed an a ttorney for the condemnation procee dings and that the atto rn ey’s fees would be added to the balance of the Haywoods’ mortg age. This correspondence is not conta ined in the record on appeal.
Thereafter, the Trial Court entered an Order g ranting Petitioners’ M otion to Strike anddenying

National’s Motion for

Payment of Pr

oceeds. The Orde

r also g ranted Pe titionersa writ of possession of the Property. F urthermore, and of

most import

ance to t his appea l, the Tria l Court,
sua sponte , set a sho w-caus e hearing for April 24, 2002, for National and its attorne y to show ca

use why they were no t in violation of Tenn. R. Civ. P. 11.02. The Trial Court, in the Order (“ShowCause Or der”), stated the

ground s as follow s: (1.) Filing an Answer to dismiss the Petition for Condemnation asserting a defense that theCircuit Court lacked jurisdiction of the subject matter in volving a

n Eminent D omain procee ding. Fu rther, said pleading stated the Court lacked jurisdiction of the pers on, Natio nal, notw ithstanding said Defendant

was served with Notice and the Petition for Condemnation, by certifie d mail/return receipt requested,2 W e refer to t he attorney who represented National i n the condemnation proceeding, Larry W. Johnson, and his law firm, Mo rris, Schneider & Prior, L.L.C ., as National’s attorneys.
-4- through the . . . Cir

cuit Court Clerk of

Williamson County. .

. . The certif

i cate of service was returned on February 17, 200 0 to the Circuit Court Clerk. The Answer of the De fendant , Nationa

l, to the Petition for Condemnation was not filed until March 7, 2000. Such defense s and othe

r rega l c onten tions made by National has caused

unnecessary

delay and a

needles s increa se in the cost of litigation and are frivolous and without me

rit.
(2.) Filing an Answe r to dismis s th e Petition for Condemnation alleging only that t he Petition was invalid and unco nstit

uti onal is without merit. The Petition specifically se

ts outthe public purpose i.e. the widening of Concord Road and the relo cation of the public utility facilities. The Petition cites the Eminent Domain statutes w

hich authorize the Petitio ners T.D.O.T. andBrentwood

to condem

n private propert y for thes e public

purposes . The cla

ims, defenses, and other legal contentions contained in said An s wer are notwarran

ted by existing la

w and viol ateRule 11:02 [sic] [of the] Tennessee Rules of Civil Procedure.
(3.) National files an A nswer to d

ism i ss the Condemna

ti on Petition and the pr operty owners desire andrequest t hat the public project proceed. Defend ant, National, has advised the property owners that said owners will be req

uired to pay the leg al fees for National’s attorne

y a nd said fees will be adde d to the mortgage held by

the Defendant, National. . . .

The re co rd on ap pe al sh ow s t ha t N at io na l’ s a tt or ne y appeared fo r the show -cause hearin g. Thereafter, the Trial Court entered a n Order (“Rule 11 Order”) holding that National and its at to rn eys had violated Tenn. R. Civ. P. 11.02(1) andNational ’s attorn ey s also had

violated Rule 11.02(2). 2 The Rule 11 Order recounted the arg ument National made at the show-cause hearing regar ding the issue of ju st compen sation asfollows:-5- At th e filing

of its Answ er and Cla

im, Defe ndant Na tional w as no t
sure that the p

roper c ompensat

ion had be

en paid with resp ect to the property take

n.
Defendant

National City had a mere five days to re spond to the Petition to contes t the rig ht of th e Petitioners to condemn the pr op er ty.
The undersigned had insuffi cien t time to obtain an appraisal of the propert y and wanted to preserve

Defend ant Natio nal City ’s righ ts to dispute value at a later date. . . .

In holding t

h at National and i ts attorneys violated Rule 11.02(1), the Trial Court made the following findings: (1) the Petition and Notice were ser ved on National on February 17, 2000; (2) the Notice stated the March 27, 2000, hearing would not cover the iss ues of the value of the Property or just compensation for the taking of the Prope rty; (3) Na

tional did not file a written objection to the taking within 5 days of service of the Notice as required by statute; (4) National filed
an Answer o n March 7 , 2000, in w hich it co ntended t

hat the c ondemnat

ion constitu ted a tak

in g withoutjust c om pensation in violation of the United States and Tennessee Constitutions; (5) National also filed, on March 7, 2000, a Motion for Payment of Proc eeds in which it stated that “‘no party -in-inte

rest disputes that this sum [$ 12,500] re present s just and a

dequate compensation for the [P]roperty

. . .’”; (6) National sent correspondence to the Ha ywoods on Febr

uary 22, 2000, in which it advised the Haywoods that the legal expenses incurred by National in this matter would be added to the balance of the Hay

woods’ mortgage; and (7) Roger Hay wood testified he did not dispute the condemnation proceeding.

The Rule 1 1 Order

also cont ained the following

determin ations of

the Tria l Court:

It is the opinion of the Court that the Defendant National . . . and i ts attorney rec eived adequate and sufficient notice and the Petition for Conde

mnation a

nd the tak

in g of the property is for a public use and purpose. The Petition for Condemnationis valid and the Court has jurisdiction of this condemnation proceedings [sic].

The C ourt is of the further opinion that the representations , conduct and the ty

pe of ac tio n taken by

the Natio nal . . . and its attorney

. . . created delay

andcaused a

needles s increa se in the c ost of litigation and violated Rule 11.02(1) T.R.C.P. It is also the opinion of the Court that the claims, defenses and legal contentions made and taken by [National’s] attorney

. . . were misleading, frivolous and not warranted. . . .3 For simpl icit y’s sake, we use roun d numbers in thi s opini on as much as possibl e. -6- In addition, the State

ment of the

Evidenc e provid

es the basis for the Trial Court’s rationa le for finding a Rule 11 violation by National and its attorneys, stating in pe rtinent part , as follows:
[The] legal position tak en an d stated above at the sanction hearing

was contrary

and entirely diff

erent than the previous position taken by National and its at tor ney when the

y r eprese nted to the

Court in support of their claim for the conde mnati on proceeds that the deposited funds were “just and a de quate” compensation for the property a

nd easement taken by

the Petitioners. . . .

With respect to the sanctions imposed upon National and its attorney s for violating Rule 11.02(1), the Rule 11 Order held that Na ti on al an d i ts at to rn eys sh ou ld pa y a penalty of $5,000 andthe Petitioners’ attorneys’ fees at a rate of $150 per hour whic h totaled approx ima tely $5,360 for the Petitio ners’ tw o attorne ys. 3 Further

mo re, the Trial Court, in the Rule 11 Order, ordered N ational’s attorne

ys t o pay treble th e amount o f the Petit

ioners’ attorne

ys’ fees asa sancti o n fo r violating Rule 11.02(2).

National and its att

orney s appeal

. Discussion

On appeal a

nd althoug

h not exact

ly st at ed as su ch , N at io na l a nd it s a tt or ne ys raise the following issues for our

consideration: (1) whether the Trial Court erred in holding that National and its attorne ys violated Tenn. R. Civ. P. 11.02(1) and 11.02 (2); (2) if Nation al and itsattorneys violated Rule 11.02(1), whether the Trial Court abused its discretion in imposinga penalty of $5,000 agains t themand awarding Petitioners’ attorney s’ fees; and (3) if National’s attorney s viol at ed Rule 11.02(2), wheth er the T rial C ourt a bused its d iscre tion in im posi ng a penalty of treble attorneys’ f

ees upon them.

This Court reviews all aspects of a Trial Court’s Rule 11 determination under a n abuse of discretion standard. McGaugh v. Galbre ath , 996 S.W.2d 186, 194 (Tenn. Ct. App. 1998); Project Creation, Inc. v. Neal , M1999-01272-COA-R3-CV, 2001 Tenn. App. LEXI S 624, at * 37 (Tenn. Ct. App. Aug. 21, 2001), no appl. p erm. app. filed . This standard of review is applied because of the fact-intensive inquiry the Trial Court must make in Rule 11 determinations. Id. We should not reve rse for “‘abuse of discr etion a di scretion ary

judgmen t of a trial co urt unles s it affirma tively app ear s that the trial court’s decision was against logic or reasoning, and caused an injustice or injury

to the party complaining .’” Marcus v . Marcus, 993 S.W.2d 596, 601 (Tenn. 1999) (quot ing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)).4 Cou rts also us e the f ollowi ng anal ysi s to det ermine wh ether an att orney’ s conduct i s sanct ionable c onduct underRule 11:

“1. An a ttorney m ust RE AD every p ape r befo re signing it. (con tinued ...)
-7- First, we address National’s issues on appeal rega rding whether the Trial

Court erred in finding that National and its attorney s violated Tenn. R. Civ. P. 11.02(1) & (2). As discussed, the Trial Court found National and its attorneys violated Rule 11.02(1) andheld that the attor ney s also violated Rule 11.02(2). Therefore, apply ing the appropriate standard of review, we must examine all of the conduct at issue to determine whether the Trial Court er red in holding the conduct sanctionable under Rule 11.02(1) & (2).

Tenn. R. Civ. P. 11.01 provides that “[e]very pleading , written motion, and other paper shall be signed by

at least one attorney

of record . . . or, if the party is not repre sented by an at to rn ey, shall be s igned b y the party .” The r equirem ent of a s ignatur

e “‘is d irec ted at the three
su bsta ntive prongs of Rule 11: its factual basis, its legal basis, and its legitimate purpose . . . .’” McGaugh v. Galbre ath , 996 S.W.2d at 194 (quot ing Andrews v . Bible , 812 S.W.2d 284, 287 (Tenn. 1991)). “‘A signature signifies to the Court that the signer has read the pleading , motion, or other paper, has conducted a reasonable inquiry into the facts and the law, and is satisfied that the document is well-grounded in both, and is acting without any improper motive.’” Id.

Tenn. R. Ci v. P. 11.02( 1) & (2) provide, in pertine nt part, a s follows: By present ing tothe co urt (w hethe r by signi ng, fil ing, submitting or later advoca ting) a pleading , written

mo tion, o r other paper, an attorney or unrepresented party

is certifying

t hat to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, –
(1) it is not being presented for any improper purpose, such

as to harass or to caus e unne cessary delay or needless increase in the cost of litigation;
(2) the claim s, defen se s, a nd other l egal c ontention s therein are warranted by

existing law or by a nonfr ivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . . .

When determining whether an attorney ’s or party’s c onduct violates Rule 11.02, the test to be appl

ied is “‘one of objective re asonable ness unde r all th e circu mst ances . . . and the
reasona bleness of the attorney ’s belief must be assessed in light

of the circumstances existing at the time the document in question was signed.’” McGaugh v. Galbre ath , 996 S.W.2d at 194 (quoting Andrews v . Bible , 812 S.W.2d at 288). 44 (.. .cont inu ed) 2. He must

make a r eason able pre- fi li ng i nves ti gati on of t he FACTS.

3. He must re searc h the LA W , unless he is certain h e kno ws it.

4. The law as applied to the f acts must REASO NAB LY W ARR ANT the legal positi ons and steps he takes. I f exi sti ng l aw does not warrant these positions, a plausible argument f or the extension of t

he law to the fac ts of the case is requi red.

5. It must be demo ns trated, as t he basis of pre-f

iling investi gation and research, th at th ere is a REASONABLE BASIS t o name each Defendant named, and t o suppor t ea ch cl aim as serted. The s hotg un compl aint or answe r, f

il ed in the hope t hat disc overy wil l produ ce t he ju sti fi cati on for it, is improper.

6. The adequacy of an attorney’s investi gation, research and l ega l analysis will be e val uated byth e co ur t u nde r a n OBJECTI VE STAN DARD,
nam ely, whether t

he attorn ey ac ted a s a reasonabl y competent att orney admitt ed to . . . pr acti ce. Exceptas t o imprope r pur pose, subj ecti ve good faith is not a defense to Rule 11 sanctions. A pure heart but an empty h ead is no av ail.

* * * * * *

8. An att orney must not have an IMP ROP ER P URP OSE , such as harass ment
or inti midation, in naming any defendant, assert ing any l egal posi ti on or taki ng anyleg al s tep.

9. If

an attorney violates Ru le 11, the impo si tion of som e sanc tion is MANDATORY, although the nat ure and e xtent o f the sanc tion is discre tionary w ith the [trial] c ourt.”

Wh ite v. Mye rs , E1999- 02642-COA-R3- CV, 2001 Tenn. App. LEXIS 814, at * 20-21 (Tenn. Ct. App. Oct. 31, 2001 ), no appl. perm. app. f

iled , (quoting An drew s v. Bib le , 812 S.W .2d at 288) (alterati ons in original ).
-8- Becau se this matter involves a taking of private property by gove rnmental entities thro ugh emin ent domain, we must e xamine Ten

nessee’ s eminent d

omain stat

utes and c ases to determine whether the Trial Court erred in finding that National’s and its attorney s’ conduct was not objectivel yreaso nable in light of the then-existing circumstances. See id. The Tennessee Constitution provides the state g overnme nt an inhe rent rig ht of emine

nt domain, the powe

r to take a perso n’s pr opert y for publ ic pur poses , stat ing:

That no m an’s par

ticular s ervice s shall be

demande d, or prop erty taken or applied to public use, without the consent of hi s representatives, or without just compensation being made there for.

Tenn. Const. art. I, § 21. See also Tenn. Code Ann. § 7-34-104(a)(1), § 29-16-101, et seq. , § 29-17- 801, et seq. (providing the p ower of emi nent domain to counties and municipalities). The-9-

government’s eminent domain pow er is a limitation on a person’s ownership of his property

. City of Chattanooga v. Classic Refinery, Inc. , No. 03A01-9712-CV-00552, 1998 Tenn. App. LEXI S 854, at * 9 (Tenn. Ct. App. Dec. 17, 1998), no appl. perm. app. filed , (cit ing H arper v . Trenton H

ous. Auth. , 274 S.W.2d 635, 641 (Tenn. Ct. App. 19 54)). “‘ [B]ecaus e the pow er of em inent doma

in is agains tcommon right ,’. . . statut es granting such power a re to be strictly construed against the condemnor, . . . and the proce dures pr esc ribed by those statutes ‘must be followed. . . .’” Roane County v. Christmas Lumb e r Co., Inc. , No . E1 999 -00 370 -CO A-R 9-C V, 2 000 Ten n. A pp. LEXIS 493, at * 7 (Tenn. Ct. App. July 27, 2000 ), no appl. perm. app. filed , (citations omitted) (quoting Vinson v. Nashville, Chattanooga & St. Louis Ry. , 321 S.W.2d 841, 844 (Tenn. Ct. App. 1958); ( City of Chattanoo

ga v. State , 272 S.W. 432, 434 (Tenn. 1925)). The gov ernment ’s eminen t domain po wer is considerable. Even in the face of this consider able power, a property

owner faced with the governme nt’s taking of

her prop erty

for a pub lic purpose still has a right to question the government’s actions. A court should be ca utious before taking ac ti on , p ar ti cu la rl y sua sponte , that rest ricts a property

owner’s right to question the actions of her government in taking her property . The right of an individual to questionthe emine nt domain actions of the government, without fear of retaliation by

the government, is fundamental under our Constitution. See Tenn. Const. art. I, §21. This fundamental right ser ves as the foundation for our analy sis of the T

rial Cour t’s Rule 11 sanction s.
The record onappeal shows the TrialCourt apparently ba sed its determination that National and its at to rn eys violated Rule 11.02 (1) and t

hat Natio nal’s att

orney ’s also vio lated Rule 11.02(2) by the following c onduct: (1) raising the defenses of subject matter and in personam jurisdiction; (2) obje cting to the Petitioners’ right to take the Property under eminent domain; (3) the positions National took in the Answer, in the Motion for Payment of Proceeds and at the show- cause hearing regarding the issue of just compensation; and ( 4) the corresponde nce Nat ional sent to the Haywoodsregar

ding its d ecision to add National’s att

orney ’s feesto the bal ance of the Hay woods’ mortgage. We will address each of these matters to determine whethe r the Tri al Court e rred in finding, sua sponte , that this conduct constituted sanctionable conduct under Rule 11.02(1) & (2).

In the Answer, National and its attorneys raised the de

fenses of lack of subject

matter ju ri sdiction and lack of in personam jurisdiction. Although not specifically stated as such in the Answer, the record shows National and its attorney s based these defenses upon claimed insufficient service of proce ss since th e Notice and Petition were n ot sent to National’s registered age nt for service of process in Tennessee. Under Tenn. R. Civ. P. 12.02 (1) & (2), defenses to lack of jurisdiction shall

be asserted in a responsive pleading or in a written motion. Moreover, the Notice provided, consistent with Tenn. Code Ann. § 29-17-803(c), that National had only 5 day s from the date the Notice was given to file a written objection to the taking . The Notice also stated that if no written obje ction w as given within the 5-day period, Petitioners would have the right to take possession of the Property. See Tenn. Code Ann. § 29-17-803(c). The recor d shows the Notice was addressed to National’s Miamisbur

g, Ohio, addressinstead of National’s registered ag ent for service of processin Tenne ssee. The recor d also shows Nat

ional did n ot file

an objection within the 5-day periodto the Petition. In light of the constraints placed on National by the 5-day r

ule set forth by-10-

Tenn. Code Ann. § 29-17-803(c) and the r equirement of Tenn. R. Civ. P. 12.02(1) & (2) that jurisdiction defenses be raised in a responsive pleading or mo tion, we hold that Na tional and its at to rn eys acted w ith objec tive rea sonablen ess, eve n if in error, in raising these jurisdiction defenses in the Answer. See McG

augh v. Ga lbreath , 996 S.W.2d at 194. Accordingly , we hold it was error for the Tria l Court to f

ind Nation al and its a

ttorney s violated

Ru le 11.02 (1 ) a nd th at th e a tt or ne ys violated Rule 11.02(2) by ra ising these defenses, and we reve rse this holding of the Trial Court.
Next, we addr

ess wheth er Natio nal and it s att orneys violated Rule 11.02(1)& (2) when, in the Answer, they objected to Petitioners’ r ight to take the Property

under eminent

domain andcontended

the Petition should be dismissed. As discussed, one of the eminent domain statutes unde rwhich t he Petitioners proceeded, Tenn. Code Ann. § 29-17-803, provides that notice of the filing of a petition for condemnation shall be given to the property owner “at least five (5) day s prior to the taking of any

additional steps in the case. ” Tenn. Co de Ann. § 29-17-803(a) & (b). The statute also co nt emplates an objection by the property owne

r to the condemnor’s right to take the pr op er ty, stating that “[a]fter the expiration of [5] days from the date of the giving of such notice if the right to take is not questioned , the cond emnor sha

ll have th e right to take possession of the propert y or prope rty rights. . . .” Ten

n. Code An

n. § 29-17 -803(c)(emphas is added) ; see also Town of Collierville v. Norfolk S. Ry. Co. , 1 S.W.3d 68, 73 n.5 (Tenn. Ct. App. 1998) (noting that Tenn. Code Ann. § 29-17-803(c) “implicitly, if not e xplicitly, [entitles] Norfolk Southern to question the Town’s right to

take”). In lig

ht of this statute, National had the right, at least, to raise an objection in its Answer to Petitioners’ right to take the Property and acted with objective reasonab lene ss in raising this objection. To imp ose Rule 11 sanctions under these circumstances, including the se vere time const

raints, a gainst a propert y owner for

objectin g to the g overnme nt’s rig ht to take pro

perty effec tively

would elim

inate a p roperty owner’s right to object to the already -vast power of eminent domain. Conseque

ntly , we hold it was err

or for the Trial Co

urt to hold

that Nati onal’s ob

jecting to Petitioners’ right to take theProperty constituted a violation of Rule 11.02(1) & (2), and we r

everse this determination.

We next determine whether National and its attorne

ys e ngag ed in sanctionable conduct under Rule 11.02(1) & (2) reg arding the issue of the proceeds the Petitioners deposited with the Trial Court Clerk for the taking of the Property. As g rounds for finding Rule 11.02 violations by National and its attorneys, the T rial Court citedNati onal’s po sition reg arding the issue of just compensation for the taking of the Prope rty. The Statement of the E vidence, as discussed, characterized the argument Na tional made at the show-cause hearing regarding this issue as being contrary to the position National previously took in its Motion for Pay ment of Proceeds.

Tenn. Code Ann. § 29-17-8 02 requir es a go vernmen

tal entity that is exer

cising its eminent domain powers under Tenn.Code Ann. § 29-17-801, et seq. , to deposit with the Trial Court Clerk the amount

of compe

nsation it determines the property

owner is entitled to for the taking of the pr op er ty. Th er ea ft er , t he pr op er ty own er has three options regarding the deposit which are, gener ally stated: (1) accept the

amount of the deposit as full settlement for theta ki ng of th e p ro pe rt y; (2) not acce

pt the dep osit and a

ppear f or trial t o determ ine the iss ue of just

compensa

tion; or (3) obtain the deposit, while disputing the am ou nt deposited, and try the issue of just compe nsation.-11-

Tenn. Code Ann. §§ 29-17-804, 29-1 7-805, & 29-17-80 6. The record show s Nationa l sought t o proceed under the third option as it raisedthe defense, in its Answer, that the condemnation was an unconstitutional taking without just compensation while also filing a Motion for Pay ment of Proceeds in which it stated that no party disputed that the amoun

t Petitione

rs had de posited wa s just compensation. While the l anguage use d in the Answer and Motion for Pay ment of Proceeds certainly c ould have been better worded to properly reflect National’s choiceto obtain th e deposit while disputing the issue of just compensation, N ational h ad the right to choose this option. Therefore, while National’s positions in the Answer and Motion for Pay ment of Proceeds and at the show-ca use hearing may

have been inartfully stated, they were not necessarily inc onsistent and were objectiv ely

reasonable under the

then-existing circumstances. Accordingly , we hold it was error for the Trial Court to find this conduct violated Rule 11.02(1) & (2), and we reverse the Trial Court’s determination on this issue.

Fi na ll y, we must determine w heth er it was error for the Trial Court to hold that N ati onal and its attorneys violated Rule 11.02 bec ause of the February 22, 2000, correspondence National sent to the Hay woods regar ding National’s attorney ’s fees incurred in this matter. As d iscussed, this letter is not a part of the record on appeal but, acc ording to R oger Haywood’ s te st im on y, this corres pondenc e stated that Nati onal had h

ired an a ttorney to protect its interest and that the at torne y’s fees wo uld b e added to th e Haywoods ’ mort gage balance. Thelanguage contained in Rule 11 shows that

the rule ap plies to pleadings, written motions and other papers which are presented to the court “whether by

signing, filing, submitting, or later advoca ting. . . .” Tenn. R. Civ. P. 11.02. See also State v. Miller , E2000-03038-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 582, at * 6 (Te nn. Crim. App. Aug. 2, 2001), no appl. perm. app. filed , (holding that Rule 1 1 “clea

rly applies only to pleading s, motions, or other papers filed by a party or

the party’s a

ttorney”). The record on appeal shows the February 22, 2000, correspondence was never f iled , submitted or otherwis e relied upo n by Natio nal and its attorneys in cour t. Accordingly , due to the facts and circumstances present

ed by the rec ord on ap

peal, we hold it w as erro

r for the Trial Cour

t to hold that National and its attorneys violated Rule 11.02(1) & (2) by sending this correspondence to the Haywoods, and w e reverse this determination.

We believe the Trial Court’s decision to im pose Rule 11 sanctions, sua sponte, under the f acts an d circum stancespresent ed in the r

ecord be fore us, places a

n unnece ssary

chill on a

ll propert y owners’ right to question the eminent domain actions of the government. We believe such a result is neither desirable as policy nor appropriate under the law.

The remaining issues on appe al conce rn the Rule 11 sanctions the Trial Court imposed upon National and its at torneys. Since we hold that National and its attorney s did not engage in any

sanctionable conduct under Rule 11.02(1) & (2), the se issues are pretermitted.-12- Conclusion

The judgment of the Trial Court is reversed, and this cause is re mandedto the Trial Courtfor su ch furt her pro ceedin gs as may be r equired, if any , consistent with this Opinion and for collection of the co sts below. The costson appea l are as sessed a

gainst t he Appell ees, the

City of Brentwood and the State of Tennessee.

___________________________________ D. MICHAEL

SWINEY, JUDGE