### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 7, 2002

Session JOHN JAY HOOKER v. DON SUNDQUI ST, ET AL 

### . Direct Appeal from the Circuit Court for Davidson County No. 01C-3804 Thomas W. Brothers, Judge

No. M2002-01207-COA-R3-CV - Filed December 19, 2002

This case involves an appeal from an order denying a motion for Rule 11 sanctions. We reverse and remand. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and R OBER T W. W EDEMEYER , S P
. J., joined.
Paul G. Summers, Attorney Gene ral and Reporter, Michael E. Moore Solicitor Genera l, andJanet M. Kleinfelter, Senior Counsel, for the Appellants, G overnor Do n Sundquist, Paul Summers, Lt. Governor John Wilder and Jimmy Naifeh. John Jay Hooker, Pro se

. OPINION Plaintiff (Appellee) John Jay Hooker (Mr. H ooker) filed a complaint on December 13, 2001, against Governor Don Sundquist, individually and in his official capacity , and Lieutenant Governo r John Wilder , Speake

r Jimmy Naifeh, and Attor

ney Genera l Paul Summe

rs, in the ir official capacities. The complaint alleged that Governor Sundquist had violated Art. X, § 3 of the Tennessee Constitution during his 1998 re-election campaign by holding fundr aisers where “he served ‘meat and drink’ in the proce ss of party-g iving to voters, lobbyists and frie nds ‘to be1 The com plaint also stated th at it was the “fo urth in a series o f cases filed in the C ircuit Co urt to ‘reform the

elec ti on process i n Tennessee’ to make the elect ion process lawf

ul under both th e Federal and S tat e Cons ti tu ti ons .” At least one o f these ca ses, Hooker v. Br edesen, Da vidso n Co unty Eig ht h Ci rcu it Cour t No. 01- C-119 9, i nvol ved t he s ame issue as th at pres ented i n thi s case. While we tangen ti ally add ress the m erits of M r. Ho oke r’s unde rlying cas e in this opin ion, on ly insofar as necess ary to decide t he propriet

y of awarding s ancti ons, s uch merit s were s quarely addressed by this court

on appeal in Hooker v. Bredesen , No . M 200 2-01 025 -CO A-R 3-CV , 200 2 T enn. C t. App. LEXIS 766, at *1 (Tenn . Ct . App. October30, 2002) , whe re this Court st ated:

The Complaint in this ca se does not fact ual ly as ser t that Bredesen “had g ivenanyt hin g of value in excha nge fo r a pro mise to vote fo r him” in the G ove rnor's ele ction.

Article X, § 3 of th is St ate’ s Consti tut ion, as the Ful ton Court held, pr oscribes a cand idate’s giving any gift

or reward in meat, drink, money or otherwise in exchange for t he elector’s v ote. As we understand appellant’s ar gument, he concedes as much, but sincerel y contends tha t Ful ton did not addre ss the second sentence of Arti cle 10, § 3, which according to appellant “r equires no quid pro quo or i.e., giving food and drin k in exc hange f or a vote, ” and he fu rther argues that

the s econd sent ence simply requir es tha t food an d drin k be giv en t o prospe cti ve vot ers wit houtthe ir pr omise to vote for the can dida te. W e can not ag ree.

The first sente nce of § 3 establish es that an electo r who receiv es any g ift or rewa rd for his vote fr om the candi date is gui lt y of a cri me, as est abli shed by law. The secon d sentence of the sect ion sets forth the disqualifi cation for the candi date who gi ves “ such rewar d” to t he vot er. As we n oted, the prohi bit ion establ ished in thi s section i s the givi ng by the candidate any of t he items mentioned to the voter in exchange for the vot er’s vote. Absent the giving and re ceiv ing of “such reward” f

or the vote, there c an be no vio lation o f § 3.

Plain tiff argues the second sentence of the secti on is self -executed and relies on Cru tchfield
v. Coll ins , 607 S.W .2d 4 78 ( Te nn. Ct. App. 198 0). The Cru tchfield Court merely explained that the second sentence is s elf-execut ing in t he sense that a candidate who gives “such reward” for t he voter’s vote is autom atically dis quali fi ed, whil e the voter can onl y be punis hed by a prosecu tion u nder a “l aw” enacted by the Leg isl atur e. Si nce t he Compla int

fai ls to al lege a fa ctua l vi olation of Article X, § 3, it fails to state a caus e of action.
Id. at * 5-6.

2 Mr. Ho oke r corr ectly no tes that the fa cts of Anderson do n ot invo lve a p oli tical fundra iser. McW herter , however, all eged viol ations of Art. X § 3 stemming f rom fundrai sers f

or the r eelection of t

wo Tenne ss ee St ate Supr eme

(con tinued ...) -2- elected’. . . .” 1 Mr. Hooke r filed a n amended complaint on Dec ember 17 , 2001 tha t was virt ually identical to the original complaint. On January 18, 2002, the Def endants (Appellants) filed a motion to dismiss the amended complaint on the grounds that it failed to state a claim upon which relief c ould be granted. Defendants asserted that the amended complaint conta ined no factual support for any allegations contained therein and was contrary to existing law. Defendants relied on State ex rel. Anderson v. Fulton , 712 S.W.2d 90 (Tenn. 1986), and a decision of the Davidson County Chancery

Court in Hooker v. McWherter , Case No. 98-2246-II I (July 31, 1998), both cases involved similar allegations 2 and were dismissed for failing to state a claim for which relief could be granted.2 (.. .cont inu ed) Co urt Justice s. Exc epting the de fenda nts in eac h case , McW herter is ne arly fact

uall y ident

ical to th e case at

iss ue. -3- Defendants also served Mr. Hooker with a motion for sanctions pursuant to Tenn. R. Civ. P. 11, asserting that the amended complaint was both lega lly and factua

lly frivolous and thus violative of Tenn. R. Civ. P. 11.02(2) and (3). The motion and supporting memorandum of law were served on Mr. Hooker January 18, 2002. Rather than withdraw or dismiss his amended complaint, Mr. Hooker filed a response in opposition to Defendants’ motion to dismiss. The court granted Defendants’ motion to dismiss by an order dated February

26, 2002. On February 8, 2002 the Defendants filed their motion for sanctions with the court. After a hearing on February 22, 2002 the court denied Defendants’ motion for sanctions finding, inter alia , “the chilling affect [sic] on the average citizens of this state so greatly outwe ighs the inconvenience that’s associated with this lawsuit that I cannot see tha t sanctions are appropriate.” The order incorporating this ruling was entered by the court April 1, 2002. On May 17, 2002, the De fendants filed a notice of appeal of the trial c ourt’s order denying the motion for sanctions. On May 24, 2002, Mr. Hooker filed a motion to strike Defendants’ notice of appeal on the g rounds that it was premature. Mr. Hooker then filed an amended motion to strike on May 31, 2002, asse rting that the Defendants’ notice of appe al was untimely filed. A hear

ing on the motion to strike was held on June 21, 2002, at which time the trial court found that it was without jurisdiction and denied Mr. Hooker’s motion by an order dated June 28, 2002. Appellan t presen ts a sing le issue f

or revie w: Did the

trial cou rt abuse its discre tion in de ny ing De fe nda nt’ s motio n f

or sa nc tio ns? Standard of Review Our review of the trial court's ruling on a Rule 11 motion is under an abuse of discretion standard. Krug v. Krug , 838 S.W.2d 197, 205 (Tenn. Ct. App. 1992). An abuse of discretion oc cu rs wh en th e d ec is io n o f t he lo we r c ou rt ha s n o b as is in la w o r f ac t a nd is th er efor e a rb it ra ry, illogical, or unconscionable. State v. Brown & Williamson Tobacco Corp. , 18 S.W.3d 186, 191 (Tenn. 2000). Our review of Rule 11 decisions is gove rned under this deferential standard since the quest ion of whe

ther a Rul e 11 viola

tion has oc curred

require s the tria

l court to make hig

hly fact- intensive determinations regarding the reasonableness of the attorney 's conduct. Krug , 838 S.W.2d at 205. We review the trial court's findings of fact with a pr esumption of correctness. Tenn. R. App. P. 13(d).3 While Mr. Hooker acted pro se in these p roce eding s, it should be no ted tha t he is a licen sed a ttorney. -4- Discussion When an attorney 3 signs a motion, document, or other paper submitted to the court, he certifi es to the c ourt that h e has re ad it, tha

t he has r easonab ly in

quired in to the fa cts and la w it asserts, that he believes it is well-grounded in both fact and la w, and that he is acting without improper motive. Andrews v. Bible , 812 S.W.2d 284, 287 (Tenn. 1991). Rule 11 sanctions emphasize to the attorney that his signature is not meaningless, but convey s a message to the court for which he alone is responsible. Id. at 288. Rule 11 establishes that an attorney who signs such a paper without the required belief is subject to appropriate sanction by the court. Id. This State's Supreme Court has characterized such sanctions as a “potent weapon that can and should be used to curb litigation abuses.” Id. at 292. Our Supreme Court has, however, tempered this mandate by advising trial courts that, while they should impose sanctions when a Rule 11 violation is found, they should do so only with the utmost care. Id. In a ppropria te case s, sanctions may include pa yment of the opposing

party’s leg al expenses. Id. at 288. The Tennessee Supreme Court has established the standard f or determining whether an attorney' s conduct is sanctionable under Rule 11 as one of objective rea sonableness under the circumstances as they

existed when the document was signed. Id. “Sanctions are a ppropria te when an attorney

submits a motion or other paper on grounds which he knows or should know are without merit, and a showing of subjective bad fa ith is not required.” Boyd v. Pr ime Focus, Inc. , 83 S.W.3d 761, 765 (Tenn. Ct. App. 2001). In determining whethe r a Rule 11 violation has occurred, the trial court should consider all circumstanc es bearing on the reasonablene ss of the attorney' s conduct. Andrews , 812 S.W.2d at 293, fn4. Such circumstances may include the attorney’s e

xperience and past performance, the g eneral standards of conduct of the bar, a nd whether the attor ney ’s action s were th

e result o f neglect, incom petence , willfulness, or de liberate choice. Id. In the present case , Appellants contend, inter alia , that sanctions ar e approp riate in t his instance because the issue raised by Mr. Hooker had previously been decided in the Anderson case. Appellants also stress that Mr. Hooker himself had been unsuc cessful in McWherter , a case also alleging a violation of Ar ticle X § 3 of the Tennessee Constitution by a candidate for office. In McWherter , Mr. Hooker alleged in count nine of his amended c omplaint the follo wing:
9. On information and

belief, it is averred that the se campaign contributions . . . are solicited where the judges and lawyers wer

e and/or will be pr esent, at which time the hosts of the receptions provided or will provide meat and drink and the guests have or will provi de money , all in viol atio n of Articl e X, Section 3 of the Tennessee Constitution, outlawing

the use of

meat, drink and money in the election process for the procurement of votes.4 We fin d it n oteworth y tha t at the time of t

he McW herter

decision, Mr. Hoo ker stated that “my main interest is to ap pea l. I’m goin g to be true to the ques t.” -5- In the pr esent case Mr . Hook er all eges, al so in count nine o f his c ompl aint, the fo llow ing:
9. On “various and divers” occasions Gov. Sundquist “directly or indirec tly ” held “fun d-ra isers”whereparticipants contributed money to his campaign for reelection andhe served

“meat a nd drink”in the pro cess of party-g iving to voters, lobbyists and friends “to be elected,” viola ting Article X§ 3[sic ]. Such c onduc t incl uded c ampai gn fund-ra isers, given for the purpose of being elected, at the Governor’s residence, at Opryland Hotel, and many other places all ac r oss Tennessee known to Gov. Sundquist and subject to stipulation, discovery and/or proof.
Mr. Hooke

r goes on to state, in count se venteen , that
the essence of this lawsuit is not ab out the voters who voted fo r Gov. Sund

quist, because the second sentence of Article X§3 [sic] ad dresses the conduct of the candida te and the vi olation by

the cand

idate oc curs inde

pendentl y of the first sentence a nd the conduct of the voters. The second sentence mandates that any candida te who gives “meat, drink, money or otherwise” “to be elected” violates the plain language of the sentenc e. . . . Mr. Hooker then proceeds, in count eightee n, to assert that
the

. . . Chancellor [], in [ McWherter ] said that the provision requires a quid pro quo andagreement by

the voter with the candidate that the “meat, dr ink, money or otherwise” given “to be elected” as a r eward is for the vote of th e voter “for his vote.” This, it is averred, is in error as [the] Chancellor . . . ignore d the f act that the word “reward” and the word “g ift” are used interchange ably. . . . This statement, that the Chancellor erred in the McWherter decision, is essentially an acknowl edgmen

t by Mr. Hooke

r that the facts of this case are no differe

nt than tho se in McWherter . If Mr. Hooker took issue with the trial cour ts ruling in McWherter , his proper recour se was to a

ppeal the decision to this Cour

t. Mr. Hooker failed to foll ow this cou rse 4 and, the doctrine of res judicata barring his ability

to bring the same claim ag ainst the s ame defendants, chose to urge another trial court to look at the same facts, albeit with different defendants, and reach some other conclusion. This he cannot do. Applying the Te

nnessee Supreme Court’s standard of “objective re asonableness under the circumstances” to the facts presented in this case results in the inescapable conclusion that Mr. Hooker, as “an attorney [, filed the complaint] on grounds which he kn[ew] or should [have] know[n] [were] without merit. . . .” Boyd , 83 S.W.3d at 765. The reasonableness of Mr. Hooker’s belief must be evaluated in light of the circ umstances as they e

xisted when the-6-

document was signed. Andrews , 812 S.W.2d at 288. In this case, the complaint at issue was signed subsequent to the dismissal of the McWherter case, ma king Mr. Hooker’ s belief t hat his complaint was “well-grounded in both fact and la w” an unreasonable one. “An attorney who signs a p aper wit

hout the r equired substantia

ted belie f ‘shall’ be pena

lized by ‘an appr opriate sanction.’” Andrews , 812 S.W.2d at 288. “This sanction may, but need not, include the pa yment of the other party ’s expenses.” Id. The trial court, in reciting its reasons for deny ing sanctions, stated “I r

ealize there’s [sic] been othe r action s and I ’m not a pa rty to those.”The cour

t makes no

mention of

reviewing these prior actions to asc ertain if the compl aint in thos e action s mirrored the facts prese nted in this case. A review of these other ac tions was required as the question of whether a Rule 11 violation has occurred requires the trial cour t to make highly fa

ct- intensive determinations regarding the reasonableness of the attorney 's conduct. See Krug , 838 S.W.2d at 205. The trial court’s failure to directly addre ss the similarity or differe nces between these other actions, actions which we re brought to the attention of the court by the party see

king the imposition of sanctions, does not rise to the level of a “highly fact-intensive determination” of whether the a ttorney’s conduct warrants sanctions. See id. Accordingly , we reverse the trial court’s dismissal of the motion for sanctions against Mr. Hooker and remand the c ause so that an appropriate sanction may be issued. The judgment of the trial court is, therefore, r eversed. Cost of this appeal is taxed to the Appellee, John Jay Hooker, for which e xecution, if necessary , may issue.

___________________________________ DAVID R. FARMER, JUDGE