### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 12, 2000 Sessi

on PROJECT CREATION, INC., ET AL 

### . v. KENNETH NEAL, ET AL 

### .

Appeal from the Circuit Court for Wilson County No. 10352 John O. Wootton, Jr., Judge

No. M1999-01272-COA-R3-CV - Filed August 21, 2001

The trial court

dismissed Plaintiffs ’ libel action and then granted Defendants’ motion for sanctions pursuant to Tenn. R. Civ. P. 11.02(1) an d 11.02(3), f inding that the libel action was filed for an improper purpose and without factual support. The court awarded Defendants $9,262.90 in exp ense s and attorney fee

s. We affirm in pa

rt and vacate in p

art. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Vacated in Part and Remanded
P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM C. K OCH , J R ., J., joined. Jerry Gonzalez, Lebanon, Tennessee, for the appe llants Project Creation, Inc. and Sean Meek.
William E. Farmer, L

ebanon, Tenness

ee, for the appe

llees, Kenneth Ne

al, Judy Pratt,

Pame l a Sandoval, Brenda Williams, W.G. Neal, Jack Pratt, Jr., Hugo Sandoval, and Albert Williams, Jr.
OPINION Plaintiffs, Sean Meek and Project Creation, filed

a libel action ag

ainst Defendant

s, Kenneth Neal , J udy Pratt, Pamela Sandoval, Brenda Williams, W.G. Neal, Jack Pratt, Jr., Hugo Sandoval, and Albert Williams, Jr., who wrote a lette r to the editor of a local newspaper oppos

ing Plaintiffs’ proposeduse of land which was near theirs. After dismissing the libel action, the trial court granted Defendants’ motion for sanctions pur suant to Tenn. R. Civ.

P. 11.02(1) and 11.02(3), finding that the libel action was filed for an improper pu rpose and lacked a factual basis. The court awarded Defendants

$9,262.90 in expenses and attorney fees. The merits of the dismissal are not appealed; the assessment of

sanctions is.-2- I. Background
Sean Meek formed Proje ct Creation, Inc., a non-profit corporation, in 1993. He intended Proje ct Cre ation to be a teach ing mi nist ry devot ed to “ creat ion sc ience .” It was funded entir ely by donations, the largest of which was $610.
Mr. Meek, through Pr

oject Creation, pl

anned to build a facility

to promote

creation science. He spoke with local Chr

istian Coalition members and obtained their assistance in locating 19.07 acres in Wilson County o n which to build. Be

fore he actuall

y purchase

d th e property , Mr . Meek file d a zoning ap plication with the Wilson County Board of Zoning Appeals, seeking to have the land rezoned or

his proposed use a

pproved to accom

modate his plans. The appl

ication was filed

in the name of the owner of the property, Frances Pratt, and described the projec tas a “nature center andmuse um.” While the application was pending, Mr. Meek mentioned to local members of the Christian Coalition his

desire to keep a “

low profile” as to

the philosophical a

spects of the muse

um, fearing opposition from “outside gr oups, evolutionists, and such, who would have tried to block the museum.”
In early October 1997,the County Building Inspe ctor sent a

letter describing the proposed “nature center and museu m” to residents

of the surrounding area, notifying them that the Board of Zoning Appeals would hear the application on October 24. The letter was based on

information Mr. Meek had provided.
At the October 24 hearing on the application, several local residents appeared and expressed their opposition to the project. They asked the Board to defer ruling on the application until more information about the proposed use was available. Mr. Meek responded by stating that he planned to build amuseum similar to the Cumberland Science Museum in Nashville, which would receive betweentwo and three hundred visitors per day and would employ

four or five wor

kers. The Board granted the use on October 24, 1997. Mr. Meek completed the purchase of the property sh

ortly thereafter.
On October 28, 1997, Zander Raines, the head of the local branch of the Christian Coalition, wrote about the zoning approval in that group’s newsletter. In the article he offered to arrange for Mr. Meek to speak to loc al churches. A f

lyer about the museum, entitled “Ark Museum and Dinosaur Park,” was attached to the newsletter. It stated:

. . . The Dinosaur Pa

rk will include a va

riety of sizes and species of dinosaurs and will tel l how dinosaurs fit into the true Biblical history of the world. The Ark MuseumandDinosaur Park will not only be a

national resourc

e center for ch

urches, it will also be an evangelical outreach to those who might never go inside a church, butmay be open to hearing the G ospel me ssage in a different format. With the Museumlocated on In

terstate 40, only 25 mile

s from Nashville, T

ennessee and wit

h millions of people passing by it annuall

y, the Museu

m w ill have an outreach unparalleled in America today.1 Hugo Sandoval, the re maining defendant

in the underl

ying acti on, was not available to sign the peti tion. He did sign the letter t

o the editor. -3- On December 16, 1997, Brenda Williams, Albert Williams, Judy P. Pr

att, Jack F. Pratt,

Pam S andoval, W.G. Neal and Kenneth Neal 1 filed a petition for a writ of certiorari in the Chancer y Courtof Wilson County challenging the Board of Zoning Appe als’ approval of the application. The petition asserted

that the Board’s decision deprived them of due process by infring ing on their right to receive correct and complete information, threatened the safety and welfare of

the citizens in their area, and violated state

and county zoning law. It stated that the predicted increase in traffic was of concern and claimed that deception by Mr. Meek and others produc ed a ruling based on fraud.
On December 19, the Lebanon Democrat , the local newspaper, ran a front page story on the Chancery Court lawsuit. The headline read, “Suit: Christian Coalition Misled a ZoningRequest.” The article reported the allegations in the petition.
On December 30, 1997, members of the local Christian Coa

lition responded w

ith a “Guest Column.” The headline read, “Christian Coalition Blasts ‘False’ Story.” The column stated that the newspaper

had published certain falsehoods inc lud ing statements that: (1) a member of the Christian Coalition hadappeared before the Zoning Board and purposefully misled that group, when, in fact, no member had appear

ed; and ( 2) Sean Meek failed to disclose that the project was a religious operation proposed and spon sored by the

Tennessee Christ

ian Coalition when,

in fact, the Coalition was not sponsoring the project. However, the column stated, “We do not sponsor Project Creation, although we do support this effort, as we have supported and will continue to support any efforts by Christians to help turn our com munities back to

God.” Mr. Meek also wrote a letter to the editor, which appeared the same day. His letter stated, “Project Creation is not affiliated with the Christian Coalition or any other organization.”
The Defendants herein, who all live near the property where the proposed development wa s to be located, and who were Plaintiffs in the chancery cour t action challenging the zoningdecision, wrote a letter to the edi

tor respondin

g to the above-mentioned letters. This letter, which was published Janua ry 8, was the basis fo r the underly

ing lawsuit. The l

etter detailed D

efendants’ objections to the proposed use of theproperty, including the unsuitability of the roads to handle the expectedtra ffic . Although Plaintiffs herein objected primarily to those portions of the letter describing their objections to “d ecept ion” on the part of Plaintiffs and des

cribing Plaintiff

s’ interrelationshi

p with the Christian Coalition, we are se ttin g out h erein the fu ll tex t of th e lett er. It stated:
It is not our intention to

enter into a public

discussion about a matter tha t already i s in the courts. However, we feel that two lettersyou published in the edit orial page of Tuesday, Dec. 30, 1997 deserve some response

from us. One of the letters is from several members of the Christian Coalition andthe other is from Sean Meek, director of Project Creation.-4-

Both concern a suit

we have brought

to force reconsideration of the suitability of the location and manner in which a zoning variance for a “Nature Museum and hiking trail”was obt ain ed. Thi s pr oje ct i s pr opo sed by Sean Meek , as director of Project Creation.
This museum was first

described t o area property owners in a letter dated Oct. 7, 1997 by Kathy Dedman, co unty buildin g i nspector. This letter, based upon information supplied by Se an Meek, was sen

t to allthe surrounding

property owners alerting them to the Wilson Count Board of Zoning Appeals (“BOZA”) meeting that was held on Friday, Oct. 24, 199 7. In that l etter it says “Frances Pratt had made application on appeal seeking to establish a nature center and museum .” (Emphasis ours). The letter then describes the location of the property, its size and mentions that it is zoned “A-1 Agriculture.”
We contend that what weha ve called deception begins with this letter. Nowhere does the n ot ice mention that Sean Meek, Project Creation, and/or the Christian Coalition are behind this museum and its intended use as later described in Christian Coalition literature.
In their letter to the newspaper, the Christian Coalitionsays: ‘Falsehood: A Christian Coalition newslett

er later d isclosed for the first time that the project was being sponsoredby the Tennessee Christian Coalition.’ To ref

ute this statement we offer the following sequence of events and direct quotes, and invite the readers to form their own conclusion:
At the BOZA meeting, Sean Meek, identifying himself as director of Project Creation, spoke of

a nature center and museum. The BOZA minutes of the Oct. 24 meeting read: “Sean Meek stated that the use would

be a history, science, and nature center for family and school use. There will be science activities, outside activities, andthe use would have

four tofive employees. There would be self-guided tours on the site. The use would be a not-for-profit organization, but a fee would be charged for the facility. He was planning a 50 foot buffer for the use

. There would be two b uildings located on the site, a 75 foot by 75 foot building and a building 15 0 fee t long. . . . Shortly after the zoning was approved, the Christian Coalition n ewsletter , on CC letterhead, dated Oct. 28, 199 7 and signed by

Zander Raines , president of the Christian Coalition say

s: As some

of yo u al read y kno w, o n Fri day, Oct. 24, there was a zoning meeting

in the Wilson County

courthouse

that cleared theway for Project Creation to build a museum just off the Linwood Road Exit of I-40..” Mr. Raines cont inues: “The papers have already been sig ned and the work will be starting sometime next spring. I

n the me ant ime, Sean Meek, director of Project Creation, will be available for speaking engagements in local churches until the e nd of t his-5-

year. If you would like Sean Meek at y our church, just call me (emphasis ours) and we will work out the details.”
We ask, if the Christia

n Coalition and Proje

ct Creation are n

ot intertwined, why is Mr. Raines arran

ging Mr. Meek’ s speaking eng agements?
In addition, Mr. Meek

, in a telephone c

onversation with

a plaintiff, Albert Williams, led him to be lieve that the Coalition supports Project Creation. Further more, the Coalition’s letter to the paper misquotes Mr. Williams as saying that “he supported the creation science museum concept as he felt any person should.” In reality, Mr. Williams has never

supported the museum proposal under any of its forms. As Mr. Williams learned more about the details of the project, his opposition to itbecame stronger. . . . Everyone who knows the Trousdale Ferry Pike location under consideration knows th at this is primarily a narrow and winding country road. It has no shoulders, no turning lane, and close to the proposed museum location there are two narrow, nopassing culv ert brid ges. Only 1.2 miles from where the narrow entranc e to the museumwou ld b e, t here is T uck ers Cro ssr oad Ele men tar y Sch ool . Ob vio usl y, we are concerned about the safety of the childre n as we are about

the safety

of farmers who traffic frequently on slow-moving equipment.
Ours is an honest,rural Christian community. We believe that in Tuckers Crossroads Elementary

School we have the best all-aro und p ublic school in the county. Our neighbors are good, moral, rural people who attend good Christian churches in which many are elders and d

eacons. We have people

living in Tuckers Crossroads who are the fifth genera tion of their famili es to live in this comm

unity. We woul

d like to preserve all these qualities in our community for our children.
We know that many organizations that begin as Christian and with good intentions endat times causing commu

nities and even ou

r nation problems

when their tactics change, becoming more like cults. We are concerned that the needs and character of our community have not been considered in the planning of this Ark Museum and Dinosaur Park . The citation letter to the BOZA presented the now-former owner of t he property a s petitioning the change for a nature center. Then, Sean Meek and Project Creation appear

at the meeting as the interested party. Later, the Christian Coalition, in their newsletters and other literature, appear asmanagers of Mr. Meek’s speaking engagements and use rs of the center that is no longer called a nature museum but an Ark Museum and Dinosaur Park.
Our lawsuit is at this time the only way to force a new hearing of th

e zoning permit where our community’s concerns and needs are considered. We are worried about the loss of peace and tranquility, and about the insecurity of increased traffic and of strangers coming next to our homes. Finally, we are also concerned that the support2 The Plainti ffs di d not orig

inall y sue th e newspaper which pri

nted the lette r. The Defenda

nts fi led a moti

on to require Plaint

iffs t o add the newspaper and members of the Christ

ian Coalition who had

signed the guest column. The Plaintif fs later sought to add the newspaper as a defendant by amendment, but did not seek to add the members of the Christian Coalition. The record does not reflect any act ion by the trial court on eit her motion. -6- services for a facility with 200-300 people a day do not exist in our community. The way the project

has been presented was deliberately evasive. It is our opinion that these are not

tactics that Christ would approve of. TheBible teaches the positive virtues of honesty and truth while warning against worldly means such as dishonesty and deceit.
It is ou r hope that t

he Board of Zoning Appeals will conduct a future hearing and learning of our concerns, will realize that this activity is not proper for our area. Shortly after the defendant’s letter was published, Mr. Meek and Project Creation, Inc. filed the underlying action. 2 The complaint, signe d only by Plaintiffs’ counsel, alleg

ed that Defenda

nts hadfiled suit to enjoin t

he building of the

nature center a

nd science museu

m and, in pertinent part, that
On January 8, 1 998, De fendants Neal, Pr att, Sandoval, and

Williams intentionally andmaliciously prepared and composed an editorial, p ubli shed in the Lebanon Democrat an editorial which falsely imputed Plaintiffs as being aligned, sponsored, or otherwise connected with the Christian Coalition. . . In said newspaper article, Defendants

not only alig

n Plaintiffs with the

Christian Coalition,

but Defendants publically charge Plaintiffs with dishonesty, deliberate evas iveness, and compare Plaintiffs to being, “more like cults.” The complaint claimed that these actions constitutedlibel, and Plaintiffs sought $500,000 in compensatory

damages. They also alleged that “in falsely aligning Plaintiffs with the Christian Coalition, [Defendants] acted with malice or with . . . gross and reckless negligence,” and sought an additional $500,00

0 in punitive damage

s. On February 9, 1998 Defendants responded by sendi ng Mr. Meek, Project Cre ation, and their couns el a proposed motion for sanctions under Tenn. R. Civ. P. 11. Specifically, the proposed motion asserted that the complaint “was presented

for an improper purpose and is without factual or legal basis.” The motion asserted t hat the libel l awsuit was filed “in an effort to harass and intimidate

Defendants

because of their filing a cause of action” opposing the proposed zoning of the land owned by Project Creation, Inc. The motion also asserted that statements associating Plaintiffs withthe Christian Coalition would not be defamatory, and that members of the Christian Coalition hadpublished corres

pondence suppor

ting Plaintiffs’ pr

oject, but Plaintiff

s had not sued those persons for defamation. Themotion also alleged that the allegations in the complaint were without factual or legal basis becaus e the letter to the editor was pr

otected speech

under the First Amendment. The Pla

intiffs did not withdr

aw the complaint.3 According to the tran script fr om the second hearing before the Zoning

Board, the rules an d regulations governing the Wilso n County B oard of Z oning Ap peals requ ire a Health Department approval letter before applications for chang

e of use ca

n properly

be grante

d. -7- The Defendants later f

iled the Rule 11 motion they had sent to Plaintiffs, stating they had given Plaintiffs more than twenty-one days notice and Plaintiffs had refused to withdraw or amend their complaint. Defendants asked that the complaint be declared frivolous and contrary to Ru

le 11 andthat sanctions be assessed against Mr. Meek, Project Creation, Inc., and their attorney, Mr. Hill

. Defendants

attached the Notice of Filing Rule 11 Motion along with a copy of a February 9 letter which had been sent to Plaintiffs along with the proposed motion.
Th e Defendants filed a motion to dismiss the lawsuit on March 16, 1998, arguing that the complaint failed to state a

claim upon which relief could be granted. The trial court heard argument on Defendants’ motion to dismiss and entered an order finding that as to

the allegation “r

elative to the Christian Coalition and the Plaintiff’s connection to the Christian Coalition is not the basis for a suit in libel and is, therefore, dismissed.” The court held the remaining portions of the complaint and arguments on the mo tion to dismiss in abey

ance “until such t

ime as the Board of

Zonin g Appeals conducts its next hearing relative to the Project Creation project.”
The Board of Zoning Appe als again ad dressed the zoning issue, on remand from the chancery court, on June 12, 1998. The Defendant s ’ counsel participated, cross examining Mr. Meek and informing the Board that the County Health Department had disapproved the s

ite for the proposed use, a fact which precluded

approval of the use. 3 The Board then unanimously denied the zoning application.
In February of 1999, Defendants renewed their motions to dismiss and for summary judgmentin the libel case. They filed M r. Meek’s deposition and the transcript of the Board of Zoning Appeals proceeding as support for their motion. The court heard argument on Ap ril 12, 1999. On April 19, the trial court gra nted the motions, dis missed the complain

t, and taxed costs against Plaintiffs. No appeal was taken from the dismissal, and the merits of the dismissal are not involved in this appeal.
The Defendants

then filed a motion t

o alter and amend

the April order seeking a judgment of $9,262.90 in attorn

ey’s fees and lit

igation costs “aga

inst Plaintiffs, Project Creation, Inc. and/or Sean Meek,” pursuant to their earlier Rule 11 motion

. In support of the motion, Defendants filed the affidavit of Judy Pratt, who attested to the amount of attorney’s fees. T he mo tion notified Plaintiffs that “The foregoing Motionis expected to be heard . . . at 8:30 a.m. on Monday, May 10, 1999.” The Plaintif

fs responded to the

motion by asserting

there was a basi

s for the libel cla

ims.
The trial court heard arguments on the motion for Rule 11 sancti ons. The Plaintiffs were represented by their original trial counsel, but were

not present at the

hearing. In its subsequently filed order, the court reiterated that it found nothing libe

lous in the letter by

Defendants

published in the Lebanon Democrat on January 8. The

order states:4 Appellate counsel, M r. Gonza lez, as well as trial co unsel, Mr. H ill, represented Plaintiffs at

the post-judgment hearing on the moti

on to alt er or amend. -8- The Court furth

er fou nd that Project Cre ation, Inc. and Se

an Meek had filed

this litigation to increase the c osts of the pending l

itigation concer

ning th e Chancery Courtdispute involving the zoning case. . . [and there was] no factual or legal basis for a lawsuit against Defendants. The court awarded Defendants judgment in the amount of $9,262.60, jointly and severally against Sean Meek and Project Creation, Inc. The court declined to sanction t he ir attorney. No transcript of the proceeding is in the record.
After this ruling, Plaintiffs filed a motion to alteror amend the judgment

, 4 arguing that no evidence support ed the trial court’s ruling that the libe

l suit was filed to ha

rass and intimidate Defendants. The Plaintiffs also challenged the amount of attorney’s fees awarded, asser tin g that defense counsel’s itemized billing statement showed that a number of hours claimed were unnecessary or had been ex pended on the chancery court action. They further argued that the amount was far beyond that necessary to deter such conduct in the future. Finally, they asserted that monetary sancti ons coul d not be assessed a gainst a represe

nted party under

Tenn. R. Civ. P. 11.03(2) and, therefore, any portion of the s anctions attributa

ble to a finding of n

o legal basis should be allocated to Pla

intiffs’ counsel.
A hearing on this motion was held on July 12, 1999, and Plaintiffs requested an evidentiary hearing. In ruling on Plaintif fs’ motion to alter or amend, the trial court found that the court’s earlier ruling on Rule 11 sanctions was based uponthe record as a whole and that the basis for the sanctions were subsections (1) a

nd (3) of Tenn. R. Ci

v. P. 11.02. The trial court found that no evidentiary hearing wa s warra nted because Pla intiffs had notice

of the earlier h

earing and had a

n opportunity to be present and to present evidence. The court further found that the litigation fe es an d costs involved in the zoning lawsuit and in this libel action “were interrelated and any attorneys fees involved after January22, 1998 [the date the libel suit was fi

led] were prope

rly considered by the Court, subject to the allowance for monies paid by Defendants for the retainer fee.”
On appeal, Project Creation and Mr. Meek challenge the sanctions on three bases: (1)there was insuffici ent evi dence to support the trial court’s finding that the libel lawsuit was filed for an improper purpose; (2) the imposition of sanctions was procedurally defective, and violative of due process, because Plaintiffs did not have an opportunity to be heard; and (3) the amount of the sanctions was greater than that necessary to deter a nd was based

on fees for attorney time spent on another lawsuit. II. Rule 11 - Purpose and Interpr etation
Rule11 imposes upon litigants and attorneys the obligation to avoid conduct that frustrates the goals of Te nn. R. Civ. P. 1 for just, speedy, and inexpensive determination of every ac tion.5 Fed. R . Civ. P. 11 was amended i n 1993; Tenn. R. Civ. P. 11 was a mended in 1995. The Advisory Commission

Comments to the 1995 changes in Tenn. R. Civ. P. 11 note that the amended rule “tracks the current feder

al rule.” -9- M AC LEAN , B ONNYMAN & B RANDT , T ENNES SEE P RACTI CE § 11:1. The purpose of Rule 11, both state andfederal, is

to curb abuse in the litigation process by deterring baseless filing s which put “the machinery

of justice in motion,

burdening cour

ts and individuals alike with needless inconvenience, expense, and delay.” Andrews v. Bible , 812 S.W.2 d 284, 292 ( Tenn. 1991); see also Dandar v. Alderman , 158 F.3d 516, 528 (11th Cir. 1998) (“deterrence remains the touchstone of the Rule 11 inquiry”). This court

has recognized that the role of Rule 11 is “to discourage the filing of suits for ‘any improper purpose, such as to harass to or cause unnece ssary delay or needle

ss increase in the costs of litigation.” Justice v. Coker , Nos. 03A0 1-9606- CV-00191 and 03A01-9606-CV-00192, 1996 WL 622659 at *1 (Tenn. Ct. App. Oct. 29, 1996). In 1991, our Sup

reme Court noted:
the development of Rul

e 11 jurisprudenc

e is far more advanc

ed in the federal cou

rts than in the state

system because the provision has been part of the Federal Rules of Civil Procedure since 1938, in contrast to Tennessee’s version of Rule 11 which became law in 1971 as part of the Tennessee Rules of Civil Procedure. While there have been hundreds, if

not thousands,

of opinions constru

ing Rule 11 in

the federal system, our appellate

courts have only

once issued a reported opinion on the topic .

. . It is for this reason t hat this Court finds it appropriate to examine federal decisional authority concerning the nature of the questions posed by the instant case.
Andrews v. Bible , 812 S.W.2d at 287.
Both the federal rule and

the Tennessee rule have been amended since our Supreme Court made that statement in Andrews v. Bible

. 5 However, the Te nnessee rule

remains consistent with the federalrule, and we continueto find federal law helpful in the interpretation of Tennessee’s Rule 11. A well-known and oft-cited treatise has de scribed the most recent changes to the federal rule as follows:
Rule 11 was amended in 1 993, when the explic it scope of the rul

e, it s certification requirement,

andthe sanctions ava

ilable for its vio lat ion were chan ged d ram ati cal ly.
As the Advisory Committee Notes state, these revisions broaden the scope of attorneys’ and litigants’ ob ligation to

refrain from conduct that frustrates the aims of Rule 1 and call for

greater rest

raint in consider

ing the imposition o

f sanctions.

***
The sanction shoul d b e imposed on the persons - whether attorneys, law firms, or-10-

parties - who have violated the rule or who may be determined to be responsible for the violation. The person signing, filing, submitting or advocating a document has a nond elegable

responsibility to the court, and in most situations should be sanctioned for a violation. Charles A. Wright & Arthur R. Miller, F EDERAL PRACTICE & PROCEDURE , § 1331 (2001 Supp.)
III. Rule 11 - Prov

isions Tenn. R. Civ. P. 11.02 p

rovides in pertine

nt part: By pres ent ing t o th e cou rt ( whe the r by signing, filing, s ubmittin g, or later ad vocating) a pleading, w ritten motion, or oth er paper, an at

torney or un

represented pa

rty is certifying that to th e best of th e person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstance s, - (1) it is not b eing presente d for any imp

roper purpose, s

uch as to harass or to cause unnec

essary del ay or need

less increase in

the cost of litigation; (2) the claim s, defenses, and other legal contentions therein are warranted by existing la

w or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations an d other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further inv es tigation or dis cov ery. Tenn. R. Civ. P. 11.03 p

rovides: If, af t er notice and a reasonable opportunity to respond, the court determines that subdivision 11.02 has been violated, the court may, subject to the conditions stated below, impose

an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision 11.02 or are responsible for the violation. . . ( 2) A sanction imposed f or violation of this r

ule shall be limited

to what is sufficient to deter repetition of such conduc t or comparable conduct by others sim

ilarly situa

te d. Sub ject to the limitatio

ns in subparagraphs (a) and (b), the sanction may consist of, or include, directives of nonmonetary nature, an orde

r to pay a pe

nalty into co

urt, or, if imposed on motion and warranted for effective deterrence, and-11- order directin g payment to the movant of some or all of the reasonable

attorneys’ fees and o

ther ex penses incurred as a direct result of the violation. (a) Monetary sanctions may not be awarded

against a represented

party for a violation of subdivision 11.02(2). . . .
IV. Sanctions

Against Represe

nted Party O

nly Herein, the trial court granted Defendants’ motion for sanctions and initially found that there was no factual or leg

al basis for the lib

el lawsuit and that

Plaintiffs filed thi

s action to increa

se the costs of the other lawsuit regarding zoning. While the trial court assessed sanctions against Plaintiffs, it refused to sanction Plaintiffs’ counsel and later clarif ied its sanction aw

ard tostate that the finding was based on Tenn . R. Civ. P. 11.02(1) and 11.0 2(3), omitting the

“no legal basis” ground.Thus, our initial inq u iry is whether Rule 11 authorizes the trial court to impose sanctions against a party who is repre sen ted by co uns el, whi le n ot i mpo sin g san cti ons agai nst the att orn ey. Tenn. R. Civ. P. 11.02 authori zes a court to impose

sanctions again

st “the attorney

s, law firms, or parties that have violated subdivision 11.02 or are responsible for the violation .” That language necessarily

raises the question of when a represented party can be found to have violated 11.02 or to have been responsible for such violation. That question is answered in one particular by Tenn. R. Civ. P. 11.03(2)(a) which disallows the award of monetary sa

nctions against a

represented pa

rty for violation of the provision requiring certification that the claims in a filed paper have a

basis in law. By omission, this subsection implies that a represented party can be sanctioned for violation of either of the other two provisions of 11.02, as the trial court did herein.
The United States Supreme Court recognized that represented parties may be sanctioned for Rule 11 violati o ns in Business Guides v. Chromatic Communications Enterprises, Inc. , 498 U.S. 533, 111 S. Ct. 922 (1991). The Court determined that a represented party who signs a pleading or other paper filed in litigation may be sanctioned moneta

rily. 111 S.

Ct. at 931. The Court held that “a represented pa

rty who sig

ns his or her name bea

rs a personal, no

ndelegable re

sponsibility to certify the truth and reasonableness of the document.” Id. The Supreme Court also held, “Rule 11 impo ses a n objective standard of reasonable inquiry on represented pa rties who sign papers or pleadings,” but stated, “We have no occasion to determine whether or under what cir

cumstances a nonsigning party may be

sanctioned.” Id. at 934-35.
In the case before

us, Mr. Meek did not sign the complaint, for himself or on behalf of Project Creat i on. Although the Supreme Court did not reach the issue of nonsigning parties in Business Guide s, several low er federal cou rts have con sidered whe ther a court may sanction a n onsign in g represented

party, and have concluded that it may

. See, e.g., United States v. Internat’l Brotherhood of Teamsters , 948 F.2d 1338, 134 4 (2d Cir

. 1991) (“Rule 11 subjects the client - ‘the represented6 For example, in Devine v. Wal-Mart Stores, Inc. , 52 F. Sup p.2d 74 1, 746 (S .D. Miss. 1 999), th e trial court

imposed san

ctions only on

the plaintiff

upon learning that the factual allegations in the complaint were false, and that plaintiff had encouraged the “wi tness” to l

ie under oath. Sanctions wer e not i mposed upon the attorney because the plaintiff’s affidav it and counsel ’s motion to wi thdraw indicat

ed that the at

torney did not k

now that the t

estimony was false. Id . at 745. -12- part y’ - to sanctions even if he has not signed the offending paper.”); Bergero n v. Northwest Publications Inc ., 165 F.R.D. 518, 521 (D. Minn. 19 96); Continental Ins. Co. v . Construction Indus

. Servs. Corp. , 149 F.R.D. 451, 454 (E.D.N.Y . 1993) (“ [The section reg arding sanction

s] plainly contemplates the imposition of sanctions on a represented party who does not s ign a pleadi ng, motion, or other paper. Otherwise, the reference in that sentence to [res ponsible p arties] is superfluous,

and the sentence would only refer to the ‘person who signe d’ a pleading, motion, or other paper.”); Donohoe v. Consolidated Operating & Prod. Corp. , 139 F.R.D. 626, 631 (N.D. I ll. 1991) (noting that the Su

preme Court,

in Business Guides , declined to decide whether a nonsigning party might be held liable, but deciding that a literal reading of the rule required such a holding).
Tennessee courts havealso determined that non-signing represented parties may be liable for Rule 11 violations. Alside Supply Ctr. v . Smith Herit

age Siding Co., Inc. , No. 03A01-9702-Ch00069, 1997 WL 414982 at *2 (Tenn. Ct. App. July 25, 1997) (no Tenn. R. App. P. 11 application filed) (a non-signing

party may

be liable for Rule

11 violations); Al-Haddad v. Ritter , No. 01A01- 9608-CV-00389, 1997 WL 44389 at *1 (Tenn. Ct. A pp. Feb. 5, 1997) (no Tenn. R. App. P. 11 application filed) (“anyon e who ‘advocates’ a p

leading certif

ies that the plead

ing is not filed to harass or d ela y and tha t a r easo nab le i nqu iry has bee n made to discover the facts alleged. A nonsigning party, therefore, falls under the provisions of Rule 11.”)
Because Tenn. R. Civ. P. 11.03 permits sanctions against a repres e nted party “ responsible for the violation,” regardless of whether that party actua lly signed papers or pleadings, a represe nted party may be held liable for a Rule 11 violation. Thus, when the p arty is “res ponsible for the violation,” then sanctions against the party alone are appropriate

. 6 V. Standard for Measuring Conduct
The trial court found Plaintiffs had violat ed two of th e three subs tantive pr ongs of Rule 11: the claims had no factual basis and the lawsuit was brought for an improper purpose. Plaintiffs argue that the evidence preponderates against the trial court’s finding that the complaint was filed for an improper purpose. Mr. Meek maintains that, because he is not a lawyer and Project Creation is not a sophisticated cor

porate entity

, a court must revie

w their actions und

er a subjective s

tandard to determine whether the sanctions were appropriate. They also assert that improper motive must be determinedby applying

a subjective standard, relying on language in Andrews v. Bible , 812 S.W.2d at 288, that “exce pt a s to improper purpose, subjective good faith is not a defense to Rule 11 sanctions.” It is well settled th

at an attorney’s conduct is to be measured by a test of objective reasonablenes s under all the circumstances. Andrews , 812 S.W.2d at 288; McGaugh v. Galbreath , 996 S.W.2d 186, 194 (Tenn. Ct. App. 1998). The United States Su preme Court, in Business Guides ,7 The Advisory Committee Notes to the 19 93 Amendments to Fed. R. Civ. P. 11 list a number of factors approp riate fora court to consi der in deciding wh

ether to impose a

sanction, includ ing whether the responsib le party is law-trained. The Notes are quoted extensively lat er in this opinion. -13- imposed the same

standard on a represented party who signed papers or pleadings. 498 U.S. at 554, 111 S. Ct. at 935-36. We see no reason to impose a different standard upon a nonsigning party. See Templev. WISAP USA in Texas , 152 F.R.D. 591, 61 9 (D. Neb. 1993) ( “In dete rmining wheth

er a violation of Rule 11 has occu rred, this court must apply an

“objective rea

sonableness” sta

ndard to determine whether the pleading was frivolous, groundless, or advanced for an improper purpose.”). Althou gh not universally true, most federal courts have applied an objective standar d whe n considering whether a violation of the improper p urpo se restriction has occurred. WRIGHT AND M ILLER , § 1335 at 85 (1990 and 2001 supp.).
As Plaintiffs have asserted, this court has determined that use of an objective s tan dard of reasonablenes s of

inquiry should be

applied to a sophisticated non-signing party, rely ing on federal decisions on the issue. Alside Supply Ctr. , 1997 WL 414982 at *3. We do not conclude, however, that the Alside opinion requires that a different standard be applied

to non -soph isti cated parti es. In fact, this court has state

d, in a case involv

ing sanctio

ns against represented parties who were not att orn eys that “the test to be appli ed in Rule 11 c ases is objective reasonableness under all the circumstances.” Al-Haddad v. Ritter , 1997 WL 44389 at *2 (citing Andrews v. Bible , 812 S.W.2d 284). In Al-Haddad , th is c our t me asu red t he p art ies ’ con duc t by a test of objective r easonableness. Id

. In addition, we have stated the test, in a

case where the

trial court found

a counterclaim to be without basis and interposed for the improper purpose of causing unnecessary delay and/or needless increa

se in the cost of liti

gation, as follow

s:
A trial court is free to impose appropriate sanctions under Rule 11 if it determines that an objectively reasonable party and/or their attorney would not have asserted a particular cla

im. Rayburn v. E.J. Constr. Eng’g., Inc. , No. 03A01-9306-CV-00212, 1994 WL 27616at *5 (Tenn. Ct. App. Feb. 3, 1994) (no Tenn. R. App. P. 11 application filed) (emphasis added).
We conclude the test to be applied, to a party or an attorney , regarding improper purpose or the other prongs of

Tenn. R. Civ. P. 11.02, is one of objective

reasonablenes s under all the circumstances.

That standard allows the court to take many factors into conside ration. 7 Such a standardcert ain ly al low s a t ria l co urt to c ons ide r a pa rty’ s lack of legal sophistication when determining whe

ther to impose sanc

tions.
We must reject Plaintif

fs’ other argume

nt in this regard, h

owever. Plain

tiffs essentially argue that without Mr. Meek’s

testimony regard

ing his motivation for bringing the lawsuit, the trial court could not conclude his mot

ivation was imprope

r. Relying upon the “

subjective standa

rd” argument,8 We do not suggest that Plaintif f’s absence f

rom the hearing wa

s strateg ic.
9 Thus, Plaintiffs did lay the evidentiary predicate for a defense of subjective good faith.

-14- Plaintiffs assert the subjective reasons for filing a complaint “cannot possibly be weighed without we ighin g the party’s own sta tements whether by live testimony or other admissions .” We cannot accept that reas oning. F irst, we conclude that Plaintiffs’ conduct is subject to a test of objective reasonablenes s under all the cir cumstances, and

the court is entitle

d to consider any

evidence in

the record relevant to that inquiry. See Townsend v. Holman Consulting Corp. , 929 F.2d 1 358, 1366 (9th Cir. 1990) (“The test for

improper purpose is objective, and . . . it was not an abuse of discretion to find that [counsel’s] outward behavior manifested an imprope r p urpose . . .”). This court has upheld a trial court’s imposition of sanctions for “filing a large number of repetitive and unnecessary motions that have required the court on repeated occasions to con sider the same issues based on similarif notidentical facts where the law governing such circumstances has not chang ed.” Wright v. Quillen , 909 S.W.2d 804, 815 (Tenn. Ct. App. 1995). This court was satisfied from the record of the litigation that this conclusion was correct and the violation “obvious.” See also Al-Haddad v. Ritter , 1997 WL 44389 at *3 (reversing the trial court, bu

t both the trial court and this court based the holding solely on the record in the underly ing case). Second, the reasoning a

dvanced by

Plaintiffs would al

low a party

to strategically

prevent a court from imposing sanctions by declining to appear for a hear ing or simply test

ifying tha t his or her motives were proper. 8 Finally, in the case before us, Mr. Meek had the opportunity to present evidence of his reasons for filing this lawsuit

, but did not. 9 Just

beca use he ch ose not to t est ify, the trial court was not precluded from relying on other evidence to deter mine whether Rule 11 has been violated and whether sanctions were justified.
VI. The Find

ings Herein
In reviewing a trial

court’s determin

ation under Rule 11 , appellate cour ts apply an abuse of discretion standard to all aspects of the ruling. Cooter & Ge ll v. Hartmarx Corp ., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461, 110 L. Ed.2d. 359 ( 1990); Krug v. Krug , 838 S.W.2d 197, 205 (Tenn. Ct. App.1992) (finding Tenness ee has adopted th

e federal “abu

se of disc

retion” and “deferent

ial” standards i n part because determinations of whether Rule 11 has been violated involve “fact-intensive, close calls”). We, then, review the trial court’s decision that Plaintiffs violated Rule 11 using a standard that: requires us to consider (1) whether the dec

ision has a suffic

ient evident iary foundation, (2) whether the court correctly identified and properly applied the appr opri atelegal principles, and (3) whether the decision is within the range of acceptable

alternatives. W

hilewe will set aside a discretionary decision if it rests on an inadequate evidentiary foundation or if it is contrary to the governing law, wewill-15-

notsubstitute our judgme nt for that of the tr

ial court merely b

ecause we might have chosen another alternative. State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000) (citations omitted).
Our review necessa

rily depend

s on th e condition and completeness of the record. The appellant bears the burden of showing that the evidence presented in the trial court preponderates against the findings of

fact. Coakley v. Danie

ls, 840 S.W.2d 367, 370 (T enn. Ct. App.1992). To this en d, the Te nnessee Rules of Appellate Procedure require the appellant to prepare "a tra nscript of such part of the evide

nce or proceed

ings as is necessary to c onvey a fa ir, accurate a

nd complete account of what transpired with respect to those issues that are the base s of appeal." Te

nn. R. App. P. 24(b); Johnson v. H

arbin , 926 S.W.2d 236, 239 (Tenn.1996) In the absence of a transcript or statement of the evidence, a presumpt ion arises that the rec ord is suff icient to s upport the trial court 's judgment, requiring this court to affirm the judgment. Coakley , 840 S.W.2d at 370; McDonald v. Onoh, 772 S .W.2d 913 (Tenn. Ct. A pp.1989); Irvin v. City of Clark sville , 767 S.W.2d 649, 65 3 (Tenn. Ct. App.1988).
In Rule 11 practice, the p arty seeki ng relief bears the burden of proving that conduct warranting sanctions occurred. See, e.g., McGaughv. Galbreath , 996 S.W.2d 186, 194 (T enn. Ct. App.1998). The n the burden sh ifts to the party opposing sanctions to present a defense. Here, although their counsel participated, Plaintiffs did not attend the hearing on the sanctions motion, or offer any evidence countering that which Defendants produced. As the trial court observed at the hearing on the plaintiff’s motion to alter or amend, Mr. Meek

was on notice of thi s hearing . He could have presented proof. He did not present pr oof. I don’t know why, but this hearing went on for a good long time, about an hour, hour and a half, . . . But it went on and on, but I kept coming back to the pleadings and the letters to the editor.
No transcript or statement of the evidence from the sanctions hearing was presented to this court. Accordingly, we must presume that the evidence supported the trial c ou rt’s fi nding that Plaintiffs were responsible for the violation, that the lawsuit was brought for an improper purpose, and that the libel claims were without factual support. King v. King , 986 S.W.2d 216, 220 (Tenn. Ct. App. 1998).
As we have stated, the trial court was entitle d to rely upon any e

vidence in the re

cord in determining whether a violation of Rule 11 had occurred. In addition to the plea dings filed in this lawsuit, at the time the motion for sanctions was being considered, the record contained Mr. Meek’s deposition and the transcri pt from the m eeting of the Board of Zoning Appeals in which Project Creation’s application was denied. Thelack of merit of the libel claims alleged in the complaint, the timin g of the complaint’s filing, so close o

n the heels of Def

endants’ filing

of the petit

ion fo r certiorari , and the content of the letters to theeditorwritten by Mr. Meek, local members of the Christian Coalition, and Defendants provide evidence of an impro per purpose. Moreover, Mr.-16-

Meek’s testimony mak

es clear his clos

e connection with

local members of the Christian Coalition. He admitted that he had authorized the the head of t he local branch of the Christian Coa

lition to arrange speaking engagements at local churches for him “in a general sense.” Mr. Meek admitted that when he gav e the head of the local Christian Coalition permission to arrange these speaking engagements , he asked the head to “keepa low profile” on the philosophical a

spects of the muse

um. From all of this, we find that the trial court’s dec isions that Rule

11 was violated and sanctions were justified are supported by the evidence.
In a related argum

ent, Plaintiffs also assert that due process requires that the party have the opportunity

to be heard. They assert that they requested an evidentiary heari ng, and their request was denied. From the re

cord, it appears

that request

was made after the sanctions hearing and after the trial court’s imposition of sanctions. They also assert that this court’s opinionin Alside requires an eviden tiary hearing before sanctions can be imposed. We do not disagree with this court’s statement in Alside that it is prudent for the cour t to hold a n evidentiary hearing before imposing sanctions w here there are disputed facts or issues of credibility. Alside , 1997 WL 414 982 at *4. In the case before us, however, Plaintiffs were given the opportunity to present evidence; they were notified of the hearing on the Rule 11 motion, and their counsel attended.
Plaintiffs also assert that their due pr oce ss rights were abridged because they received no notice that they mig

ht be sanctio

ned for filing the libel action for an “improper purpose.” They contend, “Throughout most of the motions and memo

rand[a] submitted by

Defendants

in which they requested sanctions, they

referred ge

nerically to Rule 11 and repe

atedly st ated that t

he case was ‘frivolous’ a nd without ‘lega l merit.’ This [implie

s] that the basis was

one of violation by

th e attorney.”
The record refutes this contention. The motion fo r Rule 11 sanc tions, filed on March 12, 1998, states in per

tinent part:
Come Defendants, by and through their attorney

. . . an d move for sanctions under the provisions of Rule 1 1 of the Tennesse e Ru les of Civ il Procedure. De fendants stated that

the Complaint filed a

gainst them on January 22, 1998 was presented for an improper purpo

se and is without fa

ctual or legal b

asis. The motion also clearly stated that Defendants sought “monetary

sanctions against Project Creation, Inc., Sean Meek, and Ruston L. Hill, Attorney at Law.” The Plaintiffs were on notice that monetary sanctions were sought against them, and they had opportunity to be heard, but declined to attend or to prese

nt evidence. This

issue is without meri

t.-17- VI. Amount of the Sanctions
As with other aspects of a Rule 11 decision, we review the trial court’s determination of the amount of the sa nctions und er an abuse of discretion standard. The Plaintiffs maintain that the am ount the y were sanctioned was far grea ter than necessary to deter future filings in violation of Rule 11. The y als o ma int ain tha t a p ort ion of t he at tor ney fees and cos ts awarded to Def endants were not related to the defense of this action, but were actually incurre d in the chancery

court case related to the zoning issue.
The amount of sanctions must be limited to that necessary to “give effect to the rule’s c entral goal of deterrence.” Andrews , 812 S.W.2d at 288. One of the principal purposes behind the 1993 change to Fed. R. Civ. P. 11, which parallels the 1995 change to Tenn. R. Civ. P.11, involved the court’s assessme

nt of sanctions.
The 1993 amendments to Rule 11 were motivated by a desire to curb some of the abuses surrounding Rule 11 motion practice. By adding a safe harbor provision and reduc ing incentive s to privat e parties to seek sancti ons under t he Rule thr ough it s emphasison the use of fines paid to the court rather than the opposing party, the new Rule 11 seeks to

reduce the litigation that the prior Rule had generated. In addition, by making the imposition of sanctions discretionary rather than mandato ry and emphasizing the importance of a party’s ability to pay as a factor

in determining wheth erto levy sancti

ons or not, the new R

ule seeks to prote

ct litigants with le

ss resources and prevent the unfair application of the Rule.
W RIGHT V
. M ILLER , § 1331 (2001 Supp.)
The Advisory Comm ittee Note s to Fed. R. Civ. P. 11 , as revised in 1993, ar e enlighten ing. In pertinent part, they state:
The court has available a variety of possible sanctions to impose for violations, such as striking the offending paper; issuing an admonition, repriman d, or censure; requ iring par ticipation in seminars or other educational programs; ordering a fine payable to the court; referring the matter to disciplinary authorities . . . the rule does notattempt to enumera

te the factors a

court should consid

er in deciding w

hether to impose a sanction or what sanctions would be appropr

iate in the circum

stances; but, for emphasis, it does specifically note that a sanction may be nonmonetary

as well as mon eta ry. Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it inf ected the e ntire pleading, or only one particular count or defense; whether the per

son has engag

ed in simi larc onduct in other litig ation; whether it w

as intended to injur

e; what effect i

t hadon th e litigation proc ess in time or expense ; whether the res ponsible person is trainedin the law; what amount, given th e financial res ources of the re

sponsible person, is needed to deter that person from repetition in the same case; what amount-18-

is needed to deter similar activity by other litigants; all of these may in a particular case be proper consid

erations. The co

urt has signif

icant di scretion in determining what sanctions, if any, should be imposed for a violation, subject to the principle that the sanctions should not be more severe than reasonably necessary

to deter repetition of the conduct

by the offe

nding person or c

omparable

conduct by similarly situated persons. Fed. R. Civ. P. 11, Ad

visory Committe

e Notes to 1993 Ame

ndments. Therefore, the amount of

monetary sanctions is to be set with the goal of deterrence in mind. Although Plaintiffs assert that the amount awarded exceeded that necessary to deter future f

ilings, they point to no evidenc

e inthe record to

support that argument. As discussed earlier, no transcript or statement of the evidence from the sanctions hearing was filed. Therefore, we must presume that the trial court ’s determina tion regarding the amount necessary for de terrence is supported by the record

. As long a s the trial court’ s decision is suppor ted by the ev

idence, made upo

n appropriate legal principles, and within the r ange of acceptable alternatives, we will not disturb that decision. State ex rel. Vaughn v. Kaatrude , 21 S.W.3d at 248.
Additional limitations ap ply, ho wever, where the sanction involves payment to the other party of expenses incurred because of the violation. The court may, “on motion and [if] warranted for effective deterrence [enter] an order di recting paymen

t to the movant of some or all of the reasonable

attorneys’ fees and other expenses incurred as a direct result of the violation.”

Tenn. R. Civ. P. 11.03(2) (emphasis added).
Since the purpose of Rule 11 sanctions is to de

ter rather than

to compensate, the

rule provides that, if a monetary sanction is imposed, it should or dinarily be paid into court as a penalty. However, under unusual circumstances, par ticularl y for (b)( 1) [improper purpose] violations, deterrence may be ineffective unless the sanction not only requires the p erson violating t he rule to make a m

onetary pa

yment, but al

so directsthat some or all of this payment be made to those injured by the violation. Acco rdi ngly, the rule authorize s the court, if re

quested in a mo

tion and if so warranted, to award

attorney’s fees to another party

. Any such award to another party, however, should not exc eed the expenses a

nd attorney’s fees

for the services directly and unavoidabl y cau sed by the violation of the certification requirement. If, for example, a wholly unsupportable count were inc lude d in a multi-count compla

int or countercla

im for the purpose

of needlessly

increasing the cost o f litigation to an impecunious adversary, any award of expenses should be limited to those directly caused by inclusion of the imprope r count, and not those resulting from the filing of the complaint or answer itself. Fed. R. Civ. P. 11, Ad

visory Committe

e Notes to 1993 Ame

ndments.-19-

Plaint iffs assert that the sanction should be limited to the amounts necessary to defense of this lawsuit; that the awardincludes services provided in the zoning case; and that som e entries in the attorney’ s bill are not spec ific to either ca

se. They al

so challenge so

me activities as no t “reasonably

necessary .” Defendants a ssert that they

paid counsel $ 3000 for fe es and expenses related to the zoning case and that actions taken by their counsel in the zoning case, including the deposition of Mr. Meeks and the second hearing before the Board of Zoning Appeals, were “necessary

portions of the Circ

uit Court record in

order to sh

ow the lack of

merit in Plaintiffs’ lawsuit.”
One of the Defendants, Judy Pratt, submitted an aff idavit with detaile

d bills from Defen

dants’ counsel refl ect ing t he ex pen ses and att orn ey’s fees sou ght. The att orn ey b illed D efendants, who were also h is clients as Plaintif fs in the chancer

y court lawsuit, for his servic es in both lawsu

its. H e providedthemwith combined bills, the total of which was $11,865 for legal services and $692.40 for expenses. In the affidavit, Plaintiffs subtracted from this total the $3,000

retainer Defe

ndants paid their couns el when they hir ed him to ch allenge the Zo ning Board’s appro val of Mr. Meek’s application and $294.50 they paid in initial expenses related to that lawsuit. Thus, the total amount requested was $9 ,262.90, which re presented fees

and costs associa

ted with both lawsui

ts.
In its initial order awa

rding sanctions,

the trial court aw

arded judgment

in the amount o f $9,262.90, based upon its

finding that the lawsuit had been filed to increase the costs of the pending zoning case. That order

begins with a recitation that the trial court considered the motions filed, the record as a whole, including affidavits presented, and argument of counsel.
The trial court again

considered the amount of sanctions in the hearing on Mr. Meek’s motion to alter and amend the judgment. In response to the motion, counsel for Defendants had f iled an affidavit stating he had represented Defendants in two actions in two courts, but that the factual basis of the two lawsuits wa

s the same. “Mu

ch of the work in the Circuit Court and Chancery court overlapped

since the factual basis was the same. The affidavit of

Ms. Judy Pratt denotes legal fees andlitigation costs th

at have been inc

urred by De

fendants in their

legal battle co

ncerning Noah’s Ark.” Follo wing the hear ing, the cou rt entered an order stati ng: basedupon the record, the Court was of the opinion that the litigation fees and costs involved in the Circuit

Court case and

the Chancery Court action were interrelated and any attorney

fees involved after January 22, 1998,[the date the libel complaint was filed] were prope

rly considered by

the Court, subject to the allowance for monies paid by Defendants for the retainer fee. Ther efore, the Court ref

u sed to alter or amend the judgment in the amount of $9,262.90.
The amount of sanctions awarded as attorney fees and expenses incurred by the other

party must be supported by evidence in the record. Wright v. Quillen , 909 S.W.2d at 815. It is clear from the record that not a

ll the fees and expe

nses awarded we

re attributable d

irectly an d unavoidably

to the com plaint filed in this lawsuit. The pending zoning case would have proceeded, req uirin g Defendants

herein to incur a

ttorney fe es and expenses ev

en if this libel action had never been filed.-20-

While we do not doubt that some actions taken in the zoning case were also related to defense of this libel action, we cannot, based on the record before us, accept the conclusion that all legal wor k done on behalf of these c

lients after the d

ate of the filing

of this lawsuit was t

he result of Plainti

ffs’ violation of Tenn. R. Civ. P. 11. For purposes of a

ssessing sanctio

ns, the issue is what expens es were incurred because of the filing of the libel lawsuit for an improper purpose and without factual support.
Acco rdi ngly, we find that the trial court erred in assessing the total of attorney

fees and costs associated

with both lawsuits

which were incurred after the filing date of this lawsui

t as sanctions, andremand for a recalculation of the amount owed. Only those fees and costs determined to have directly resulted from the filing of this action may be assessed as sanctions and ta

xed to Plaintiffs. We agree that the trial court may consider, as a dire ct result of the filing of thi s lawsuit, any increased costs to Defendants herein incurred in the zoning case, since the trial court found the improper purpose to be to inc

rease those

costs. We also agree th

at services nee

ded in both lawsuits may be considered and appropriately apportioned.
V. Conclusion
We affirm the imposition of sanctions on Plaintiffs, but remand the case to the trial court for a recalculation of the amount of sanctions. Costs of this appeal are taxed one half to Appellants and one hal f to App ell ees, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE