# FILED
February

5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MOHAMMAD AL-HADDAD, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9608- CV-00369 VS. ) ) W illiamson Circuit ) No. 95165 and 95166 WALT ER RITTER AND WIFE, ) HELMA RITTER, ) ) Defendants/Ap pellants. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C IRCU IT COU RT OF WILLIAM SON C OUNTY AT FRANKLIN, TENNESSEE THE HONORABLE DONALD P. H ARRIS, JUD GE

LAWRENCE W ILSON 2400 Crestmoor Road Suite 314 Nashvil le, Tennessee 37215 Attorney for Plaintiff/Appellee WILLIAM CARTER CONWAY 236 Court Sq uare, Suite 205 Franklin, Tennessee 37064 Attorney for Defendants/Appellants

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE

CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N

Pursuantto Rule 11, Tenn. R. Civ . P., the tri al court sanc tioned the appellants and their attor neys. The appel lants argueon appeal that they cannot be sanctioned under

Rule 11 becausethey did not sign theoffending pleading and that the facts do not establ ish a violat ion of the rule. We hold that a party may be sanctioned under

Rule 11 w ithoutactually signing the pleadings , but we find t hat the facts of this case do not justif y a Rule 11 sanction and t hat the proof fails t o show any expenses incurred as

a result o f the alleged v iolation. Therefore we reverse the judgment against the appellan ts for sanctions.

I.

The appellants, Wal te r Ritter and Helma Ritt er employed M ohammed Al-Haddad to install ti le in three bat hrooms at the thei r home. The Ritters refused to pay because of alleg ed defects in the workmanship. Mr. Al- Haddad sued the Ritters in General Ses sions Court and obtained a default judgment for $3,445.

The Ritters ap pealed the judg ment to the Circuit Court. In a sep a rate complaintthey sued Mr. Al- Haddad for faulty workmanship and s pecifically charged that Mr. Al- Haddad’s agent flushed tile g rout dow n two bathroom drains where it hardened and did $8,000 worth of damage to the drainage pi pes. The two a ctions
were co nsol idat ed f or tri al be for e a six p erso n jury.

The jury returned a verdict against Mr. and Mrs. Ritter for $3,000. Mr. Al-Haddad then moved for sanct ions agains t the Ritter s under Rule 11 alleging that in defending his claim and in pursuing their counterclai m, the Ritters did so wi thout a factual or legal basis and solely to hinder and delay Mr. Al-Haddad’s claim. The tr ial- 3 -

judge granted the mot ion and assessed co sts of $3,000 against the Ritters and $1500 against their attorneys.

Only the R itters have appealed.

II.

Rule 11 requires that ever y pleading , writt en moti on, a nd other paper shall be signed by

an attorney of record or by the party if he or she is not represented byan attorney. Rule 11.01. The s ignature amounts to a certification that“to the best of the person’s knowledge, information, and b elief, formed after an inquiry reasonable under the circumstances,

(1) it is not being presented for any improper

purpose, such as to harass or to cause unnec essary del ay or needless increase in the cost of litigati on;

. . . . (3) The allegatio ns and other factual contentions

have evidentiarysupp ort

or, if sp eci fi ca lly so identified, are likely to ha ve e vi dent iar

y s uppo rt aft er a reasonable opp ortu nity f or fu rthe r inves tigat ion o r disc overy; Rule 11.02.

Not only is the signatur

e a certificati on of the foregoing facts, but anyo ne who presents the pl eading, w ritt en mot ion, or other paper to the cour t “whether

by signing, filing, sub mitting, or later advocating” i t makes the same representation. Id. Thus, anyon e who “adv ocates” a plead ing certi fies that the pleadi ng is not fil ed t o harass o r delay and that a reasonabl e inquiry has been made to dis cover the fact s alleged. A non-signi ng party , therefore, falls under the prov isions of Rule11.

III.- 4 - The trial judge made th e follo wing findi ngs in a memorandum iss ued on the Rule 11 motio n: In this case, co mpla inant filed suit in the General Sessions Cou rt fo r $3 ,445.00 in labor and ma terials supplied in the constructi on of defend ants’ home. At their attorney’s suggesti on, defendants allowed a judgment by defau lt be entered agai nst them. This j udgment was appealed an d defendants brought a countersuit for $9,000.00. As specified in th e counter complai nt, $1,000 was being soug ht for labor and mate rials req uired to complete the tile work complainan t h ad been hired to perform and $8,000.00 w as being soug ht for the costs of repairfor damages cause d by complai nant or his ag ent to the pipes in defendants’ home. At trial , there was proof that some grout had been poured i nto two bathr oom drains. The grout had har dened and the drains had become blocked. Defendants a ssert they were g iven a bid of $8,000.00 to replace al l the pipes unde r t heir house. There was no ev idence, however, that a ll the pipes had been damaged. The plug ged d rai n traps had been replaced at a cost of $35.00 and the pl umbing system seemed to function proper ly. Mor eover, the g rout that had clogge d the two drain traps was not of the type used bythe complainant. Clearly , th e atto rney s for pla inti ffs should have d isc overed that t he damage to the defendant s’ plumbin g had been corr ected at a cost of $35.00 and there was no apparent bas is for alleging further damage. The c ou rt is of the opi nion the countersuit was brought to harass, del ay and increase the costs of liti gation for the complainant.

The court concluded that by claiming damages amounting to $8,000 to theirdrain pipes, when the damag e had been repair ed for $35.00 the Ri tters had violated R ule 11.

The test to be appli ed in Rule 11 cases is objective reasonableness under all the cir

cumstances. Andrews v. Bible , 812 S.W .2d 284 (Tenn. 199 1). Mrs. Ritter testified in her aff idavit that she saw Mr. Al-Haddad’s workman pour grout into the drain; that she had to pay a plumb er to unstop two drains; that the plum ber could not be sure that

there w ould be no further p roblems throug hout the house; that another drain c leaner advi sed her that tobe sure the drain problem wou ld not show up it woul d be n eces sary t o rep lace all the drain pipes und er her house at a cost of- 5 -

$8,000. The s econ d plu mbe r did n ot te stif y at the tri al but his est imate is in t he record.

From an ob ject ive sta ndp oint , we th ink Mr s. Rit ter wa s justified in making the $8,000 clai m. When her attorney filed the complaint, she kne w that two drains had been plugge d with g rout and there r emained a possibi lity that the entire drain system might have to be replaced. Since hindsi ght cannot be u sed to establish liabilit y in Rule 11 cases, Andrews v. Bible , 812 S.W .2d 284 (Tenn. 199 1), Mrs. Ritter’s conduct passes the test of objective reasonableness.

Turning to the questi on of the amount of the sanction, it is important to note that the $8,000 cl aim wasonly one part of the Ritter’s complaint. The other part
was a claim for $1,000 for faulty workmanshi p in layi ng the tile. There is no q uestion that a genuine dis pute existed between the Ritters an d Mr. Al- Haddad, a dispute that
was destined to be tried. Theref ore, we think it would be hard to find any extra expensesincurr ed in lit igating whether the grout poured in the drains caused damages of $35 or $8,000. The affidavits of Mr . Al-Haddad and his counsel do not attempt to attribut e any of their expenses to t he $8,000 claim. Therefore, the evidence preponderates agai nst the Rule 11 sanction imposed by the tri al judge.

The judgmentimposing Rule 11 sanctions is reversed and the cause is remanded to the Circ uit Court of Williamson County

for any further

proceedings

that may become necess ary. Tax the costs on appe al to the appell ee.

_____________________________ BEN H. CAN TRELL, JUDGE CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE- 6 -

_______________________________ WILLIAM C. KOCH, JR., J UDGE