# FILED

July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

HELEN S. ROGERS, ) ) Plaintiff/Appellee, ) ) Davidson Circuit ) No. 94C-3689 VS. ) ) Appeal No. ) 01A01-9603-CV-00120 THOMAS E. WATTS, JR., ) ) Defendant/Appel

lant. )

APPEAL FROM THE CIRCUI T COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE
THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Plaintiff/Appellee : For Defendant/A ppellant : Helen Sfikas Rogers Thomas E. Watts, Jr. Jones & Rogers Pro Se Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Ms. Rogers’s letter stated that “[t]he settl

ement moneys are

to be wire transf

erred into my trust account around the first of next week and I will let you know when we can complete the settlement.” -2- 

## O P I N I O N

This appeal involves another chapter i n a lingering, acrimo nious dispute between two Nashville law yers stemming from

a failed settleme

ntof a case in

federal court. After one

of the lawyers abandoned his third-party complaint against the other lawyer for fraudulent mis

representa

tion, the other lawyer f iled a malicious prosecu tion action in the Circui t Court for Davidson

County. When the tr

ial cou r t dismissed the complaint on the ground that it was pr

emature, the pre

vailing lawyer sought Tenn. R. Civ. P. 11 sanctions agai nst the lawyer whose ma

licious prosecution claim had been dismissed. The trial court declined to grant sanctions, and the lawyer seeking sanctions has appealed. We have determined that the record supports the trial court’s decision not to awar d s a nctions and, therefore, affirm the trial court’s decision.

I.

In mid-1992, Sharon Mc

Farlin obtained a de

fault judgment for a

pproximately $10,000 against Jim and Ros e Winfree. On the afternoon of September 17, 1992,

she arrived at the Winfrees’ home with a moving va n anda deputy sheriff armed with an
execu tion a uthorizing the seizure of the Winfrees’ personal property to satisfy her judgment. Faced with imm ediate loss of their furniture and other possessions,

the Winfrees made a hurried telephone call to their lawyer, Thomas E. Watts, Jr.

Atthat time , Mr. Watts was also representing a corporation in which Mr. Winfree had an inter est in a proceeding in the United States D

istrict Court for t

he Middle District of Tennessee. One of the parties in the federal proceeding was represented by Helen S. Rogers, a lawyer who had on ce practiced wit

h Mr. Watts until their association w

as dissolved over a fi

nancial dispute. O

n the day before Ms. McFarlin arrived at the

Winfrees’ home,

Mr. Wattsreceived a letter from Ms. Rogers confirming

the ter ms of a s ettlement of the lit igation and indicating t

hat she would shortly have the funds for the settlement in hand. 1 Mr. W atts a nticipated that Mr. Winfree’s share of this settle ment would be suffic

ient to pa

y Ms. McFarlin’s judgment.-3- Mr. Watts requested M s. McFarl in to forego executin g on the Winfrees’ propertyand promised her that Mr. Winfree would use the expected federal settlement

proceed s to pay her judgment. Ms. McFarlin referred Mr. Watts to her lawyer. Mr. Watts was un able to reach Ms. McFarlin’s l awyer by telephone but talked with one of his associates. After receiving Mr. Watts’s as surance that he would receive the set tle ment proceeds with in five days, the la

wyer telephoned Ms. McFarlin and advised her not to e

xecuteon the Winfrees’ p roperty because

“money is better than furnitu

re.” Based on this

advice, Ms. McF

arlin authorized the

lawyer to release the e xecu tion. Unbeknownst to Mr. Watts, Mr.

Winfree later s ought to exempt $7,350 of hi s personal property from execution.

When Mr. Watts did not r eceive the settlem

ent proceeds as he e

xpected, he wrotea pointed lett

er to Ms. Rogers on Septe mber 22, 1992 stating t

hat he would disavow the settlement unless the funds were delivered to him by the next day. After he did not receive

the funds, Mr. Wa

tts wrote another l

etter to Ms. Rogers stating that “I do not believe

the creditor [Ms.McFarlin] has any claim against me pe

rsonally, but in the unlikely and unfortunate event that I am sued, of course, I will have no option otherthan to pass the responsibility on to you, and pr esumably, you

would want

to pass it on to your clients.” Ms. Rogers responded by assert ing that she had never given Mr. Watts a defini te payment date.

O n O ctober 23, 1992, Ms. McFarlin sued Mr.Watts for negligent misrepresentation

in the Sumne

r C ounty General Sessions Court. The general sessions court awarded Ms. McFarlin a judgmen

t against Mr. Wat

ts, and Mr. Watt

s pursued a de novo appeal to the circuit court. Once the case reached the circuit court, Mr. Watts fil ed a third-party com plaint against Ms. R

ogers, alleging fr

aud and fraudulent

misrepresentation. At the close of his proof at trial, Mr. Wa

tts essentially abandoned his fraud claims and sought permission at trial to amen d his third-party complaint

to add a negligent misr

epresentation clai

m andto conform his pleadings to the proof. The tr

ial court declined t

o pe rmit Mr. W atts to amend his third -party complaint

and granted a

directed verdict dismissing Mr. Watts’s fraud a nd fraudulent misrepresentation

claims against Ms.Rogers. The circuit court thereafter awarded Ms. McFarlin a $7, 550 judgment against Mr. Watts.2 Ms. Rog er s also filed a motion in the Circuit Court f

or Sumner County see

king Tenn. R. Civ. P. 11 sanctions aga

inst Mr. Watts and h

is la wyer f

or the filing of the

third-party comp

laint. This motion was eventually denied on April 27, 1995. -4- A panel of this court reversed Ms. McF arlin’s judgment aga

inst Mr. Watts on Oct ober28, 1994. See McFarlin v. Watts , 895 S.W.2d 687 ( Tenn. Ct. App . 1994)

. On November 14, 1994, Ms. Rogers filed a malicious prosecution action against Mr. Watts in the Circuit Cou

r t for Davidson County based on his third-par ty complaint that had been dismissed in the Sumner

County proceeding. 2 Mr. Watts moved for a summary judgment on the ground tha t Ms. Rogers’s complaint was premature. After the trial court dismi ssed Ms. Rogers com plaint, Mr. Wat

ts requested sanctio

ns against Ms. Rogers under Tenn. R. Civ. P. 11. On July 24, 1995, the trial court denied Mr. Watts’s motion for s anctions. This appe al followed.

On Ma rch 6, 1995, the Tennessee Supreme Court denied Ms. McFarlin’s application

to review this court’s opinion vacating her judgment against Mr. Watts. On June 9, 1995, Ms. Rogers filed a second malicious prosecution action against Mr. Wa tts in the Circuit Court for Davidson County.Following a bench tr ia l, the tria

l courtawarded Ms. Rogers an $18,000 judgm ent against Mr. Watts. A divided panel of this c ourt affirmed the jud gment. See Rogers v. Wat ts , No. 01A01-9611-CV00500, 1997 WL 367477 (Tenn . Ct. App. July 2, 1997 ), perm. app. denied (Tenn. Jan. 20, 1998).

II.

We must first determi

ne which version of T

enn. R. Civ. P. 11 appli es to this proceeding

because the Tennessee Supreme Court revised the rule after the conduct giving rise to Mr. Watts’s mo tion for sanctions

occurred. Tenn. R. Civ. P. 11 tracked Fe d. R. Civ. P. 11 fr

om 1987 until Decembe r 1, 1993 when the U

nited S tate s Supreme Courtdramatically cha nged the explicit scope

of Fed. R. Civ.P. 11, as well
as its certification re

quirement and avail

able sanctions. T

he change in

the federal rule
was brought

about by a desire to c

urb some of the abuses in Rule 11 motion practice in federal courts, see 5A Charles A. W right & Arthur R. Miller, Federal Practice and Procedure

§ 1331, at4 (Supp. 1998), and by a desire to reduce the number of motions for sanctions filed in

federal courts. See 2A James W. Moore, et al., Moore’s Federal Practice ¶¶ 11.01[8], 11.02[1.-2 ] (2d ed. 1995).3 See Resolution of April 27, 1995, House Res. No. 30, 1995 Tenn. Pub. Acts 1353.

4 See Resolution of May 4, 1995, Senate Res. No. 13, 1995 Tenn. Pub. Acts 1207.

5 The United States Supreme Court’s order amending Fed. R. Civ. P. 11 in 1993 specified that the amended version

of the rule “shal

l govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending.” See Espinoza v. United States , 52 F.3d 838, 840 (10th Cir. 1995).

6 The requirement in Tenn. CodeAnn. § 16- 3-404 that both legislative chambers approve proposedrules may, as a

practical matte

r, indirectly

influence the scope of the Court’s rule-making authority. The Cour

t could be hesitant

to adopt rules that

will not meet with leg

islative approva

l. -5- Even though Tennessee’s courts had not experienced dramatic increases in the filing of motions seeking Rule 11 sanctions or w idespread abuse of t

hese motions, the Tennessee Supreme Court filed an order on February 1, 1995 conforming Tenn. R. Civ. P. 11 with the

1993 version of Fed. R. Civ. P. 11. Its reason for amending Tenn. R. Civ. P. 11 was to prevent the potential for abuse of Tenn. R. Civ. P. 11 sanctions. See Tenn. R. Civ. P . 11 adv isory comm’n cmt. to 1995 amendment. The Court submitted the proposed rule to th e General Assem

bly in accordance w

ith Tenn. Code Ann. § 16-3-404 (1994). T he House of Representatives approved th e rule on April 27, 1995, 3 and the Senate foll owed suit on May 4, 199 5. 4 By it s own terms, the amended rule took ef

fect on July 1, 1995.

The Tenness ee Supreme Court, un like the United Sta

tes Supreme Court, provided no direction concer ning the application of

the amended version of Tenn. R. Civ. P. 11 to pending civil cases. 5 Thus, we must det ermine whether a

ll or any portionof the 1995 version of T enn. R. Civ. P.11 applies to conduct occurring

before July 1, 1995. The Tennessee Rules of Civil Procedure themselves do not provide an answer to this question; accordingly, we must look elsewhere.

The only statute purporting to limit the sc ope of theTennessee Supreme Court’s rulemaking authorit y is Tenn. Code

Ann. § 16-3-403 (1994) which states that “[t]he rules prescribed by the supreme court pursuant to § 16-3-402 shall not abridge, enlarge or modify any substanti

ve right, and shall

be consistent

with the constitutions of the United States and the s tate of Tenn essee.” 6 This provision invokes T enn. Const. art. I, § 20's protection against r etrospective laws . Thus, we must d etermine whether the 1995 amendments to Tenn. R. Civ. P. 11 are substantiv e or procedural. See Kuykendall v. Wheeler , 890 S.W.2d 785, 787 (Tenn. 1994); Saylors v. Riggsbee , 544 S.W.2d 609, 610 (Tenn. 19 76). If the amen dments are procedural, then they may be applied to all civil cases pending when the amended rule became effective.-6-

See Kee v. Shelter I

ns. Co. , 852 S.W.2d 226,

228 (Tenn. 1993); Pacific Eastern Corp. v. Gulf Life Hol

ding Co. , 902 S.W.2d 946, 956 (Tenn. Ct. App. 1995).

Procedural statutes are ones th at affect the me

thod or pro cedure for prosec uting
or defending a claim. See Shell v. State , 893 S.W.2d 416, 419-20 (Tenn. 1995); State Dep’t of Human Servs. v. Defriece , 937 S.W.2d 954, 958 (Tenn. Ct. App. 1996). In this context, procedure includes

the mode or proceeding by which a legal right is enforced, as di stinguished from the l aw which gives or de

fines th e right, and which by means of the proceeding, the co

urt is to administer – the ma

chinery, as disting

uis hed from its product ;. . . including pleading, process, evidence , and practice. . .. Practice [is] the form .

. . for the enforc ement of rights or the redre ss of wrongs, as disti nguished from

the substantive

law w hich g ives the right or denou nces the wrong. Saylors v. Riggsbee , 544 S.W.2d at 61 0 (quoting Jones v. Garrett , 386 P.2d 194, 198- 99 (Kan. 1963)).

The 1995 amendments to Te nn. R. Civ. P. 1 1 contain both sub stanti ve and procedural alterations. Subs tantively, the 1995 a

mendments broaden the

scope of the conduct subject to sanctions and expand the nature of the certifications implicit in an attorney’s or party’s signature on p leadings, writte n motions, or other pa

pers. Procedurally,

Tenn. R. Civ. P . 11.03 changes dec isions to impose sanctio

ns from mandatory to discretionary dec ision s. Similarly, Tenn. R. Civ. P. 11.03(1)(a) provides a 21-day safe harbor provision intended to reduce th e likelihood of sancti ons by giving parties an opportunit y to correct or

withdraw challe

nged submissions, and Tenn. R. Civ. P. 11.03(2) places new li mits on the nature of the sanctions to be imposed.

Whilewe have no Tennessee precedents regarding the application of amended rules to conduct occurring before the amendment s became effective, the federal courts have addressed preci sely the same questi on wi th regard to the 1993 amendments t o Fed. R. Civ. P. 11. With regard to sanc tionable conduct occu

rring befor e the effec tive date of the ame ndment, the feder

al courts have noted t

hat both remandingthe cases for consideration under the amended rule and reviewing the trial court’s decision using the amended rule’s standards w ould be unjust and impra

ctical. See Silva v. Witschen , 19 F.3d 725, 728-29 (1st Cir. 1994).-7- Because the 1993 amendments to

Fed. R. Civ. P . 11 were both substantiv e and procedural, the federal court s have held that the ke

y consideration is when the sanctionab le co nduct occurred, not when the motion for s anctions was filed. See Vanderventer

v. Wabash Nat’l Cor

p. , 893 F. Supp. 827, 838 (N.D. Ind. 19 95). With regard to the substantive aspe cts of the rule, the

federal courts ha

ve heldthat the pre1993 version of Fed. R. Civ. P. 11 should app ly because lawyers and parties should only be charged with know ledge of the version o

f the rule that wa

s in effect when t

he papergiving rise to the re quest for sanc tions was filed. See MacDraw, Inc. v. CIT Group Equip. Fin., Inc. , 73 F.3d 1253, 1257 (2d Cir. 19 96); Cunningham v. Waters Tan & Co. , 65 F.3d 1351, 1361 ( 7th Cir. 1995); Land v. Chicago Truc k Driv er s Union Health and

Welfare Fund

, 25 F.3d 509, 516 (7t

h Cir. 1994); Knipe v. Skinner , 19 F.3d 72, 78 (2d Cir. 1994). They have also held, however, that district judges may exercise their newfound disc

retion c o ntained in the 1993 ame ndments when the fil

ing giving rise to the request

for sanctions preceded the amendments to Fed. R. Civ. P. 11. See Moore v. Local 569, Int’l Bhd. of Ele c. Workers , 53 F.3d 1054, 1058 (9th Cir. 1995); Knipe v. Skinner , 19 F.3d at 78; Corpora te Printing Co. v. New York Typographical

Union No. 6, 886 F. Su pp. 340, 34 3 (S.D.N.Y . 1995); LaVigna v. WABC Television, Inc. , 159 F.R.D. 432, 436 (S.D. N.Y. 1995)

.
The choice of whi

ch versio n of Ten n. R. Civ. P. 11 to apply is not outcome determinative

in this case because

the conduct Mr. Wa

tts complains of, if

found to have been inappropriate, would have been sanctionable under either version of th e rule. For the purpose o f our analysis, however , we will deter

mine whether Ms. Rogers conduct amounts to a sub stantive violation of r ule using the una

mend ed version of the rule. Thus, like the trial court , we will apply the

objective standard o

f reasonableness

contained in the

pre-July 1, 1995 ver

sion of Tenn. R. C

iv. P. 11. See Business Guides, Inc. v. Chromatic Communications Enters., Inc. , 498 U.S. 533, 551, 111 S. Ct. 922, 933 ( 1991); Andrews v. Bible , 812 S.W.2d 284, 288 (Tenn. 1991).

Ms. Rogers’s conduct must be analyzed in light of the circumstan ces k nown to her at the time she filed her first malicious p rosecution compla int. See K rug v. Krug , 838 S.W.2d 197, 205 (Tenn. Ct. App . 1992). Accordi ngly, we must pursue
answers to the following two questions: first, whether Ms. Roge

rs filed her first malicious prosecution co mplaint belie ving it to be “well gr ounded in fact and . . .
wa rranted by existing law or a g ood faith argument f

or extension, modifi

cation , o r-8-

reversal of existing law” an d second, whether

Ms. Rogers filed t

his complaint “for any improper purpose suc h as to harass or to ca

us e unne cessary delay or ne edless increase in the cost of litigation.”
These inquires cal

l for the trial cour

ts to make fact-intens

ive close calls. See Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 404, 110 S. Ct. 2447, 2460 (1990). Accordingly, appellate courts use the deferentia

l abuse-of-discre

tion standard when reviewing

a trial court’s d

ecision with regard to the i mposition of sanctions.

See Alside Supply Ctr. v. Smith Heritage Sidin g Co. , No 03A01-9702-CH -00069, 1997 WL 414982 , at *1 (Tenn. Ct. App . July 25, 1997) (No Tenn. R. App.P. 11 application

filed); Berger v. Ratner , No. 02A01-9604- CV-00077, 1997 WL 170327, at*3 (Tenn. Ct. App. Apr. 11, 1 997) (No Tenn. R. App. P. 11 application f

iled); Krug
v. Krug , 838 S.W.2d at 20 5. Under this standa

rd of review, a trial cour

t abuses it s discretion if its decision is based on an erroneous view of t he l aw or a clearly
err oneous assessment of the ev idence. See Cooter & Gell v . Hartmarx Corp ., 4 9 6 U.S. at 405, 110 S. Ct. at 246 1. An erroneous decis ion with regard to th

e imposition of Tenn. R. Civ. P . 11 sanctions will not be second-guessed on appeal unless it has caused great injustice and injury to the comp laining p arty. See Binkley v. C annon , No. 01A01-9408-CH-0040 1, 1995 WL 66927, at *5 (Tenn. Ct. App . Feb. 17, 1995) (No Tenn. R. App. P. 11 applicat ion filed).

III.

The remaining issue to be decid e d is whether Ms. R ogers engaged in sanctionable

conduct when she

filed her first malicious prosecution claim against Mr. Watts. Mr. Wattsinsists that Ms. Rogers shou ld have known that her

first complaint
was not warranted by

existing law because his third-pa rty claim in McFarlin v. Watt s had not been finally ter

minated in her favor

at the time she file

d her complaint. Ms

. Rogers responds that Tenn. R. Civ. P. 11 sanctions were not warranted because she
eve ntually s ucceeded with her second malicious prosecution claim against Mr. Watts.

The reasonableness

of Ms. Rogers’s c

onduct must be establis

hed in light of the ci rcumstances existing when she fil ed her first malic

ious prosecution compla int. Accordingly, the later success o f her second

malicious prosecuti

on complaint has no-9-

be aring on our consideration of whether the filing of her first comp laint wa s sanctionable. As the law stood at the time she filed her first co mplaint, Ms. Roge

rs, like any other reasonabl

y competent

lawyer , should have known tha t she would be required to prove (1) that Mr. Watts filed his th ird- party c omplaint in McFarlin v. Watts without probable ca use, (2) thatMr. Watts acted with malice when

he filed his third-party

complaint against her, and (3) that the final disposition of Mr. Watts’s third-party

complaint was fa vorable to her. See Roberts v. F ederal Express Corp. , 842 S.W.2d 246, 247-4 8 (Tenn. 1992); Christian v. L apidus , 833 S.W.2d 71, 73 (Tenn. 1992) (both cases holding that the three essential e lements of a malic ious prosecution

claim are (1) that

the defendant brought

the prior suit without probable cause, (2) that the

defendant brought the

prior suit with

malice, and (3) t

hat the prior suit was terminated in the plaintiff’s favor).

The “favorable

termination” element of a malicious prosecution claim can be satisfied by a showing other than that the defendant’s underlying claim was dismissed
as a result of

a final judgment on the merits. Any dismissal indicating the innocence
or nonliability of the malicious prosecution plaintiff will suffice as a favorable ter mination

. See Sewell v. Par Cable, Inc. , No. 87-266-II, 1988 WL 112915, at *3 (Tenn. Ct. App. Oct. 26, 1988) ( No Tenn. R. App. P. 11 application filed) ; see also Villa v. Cole , 6 Cal. Rptr. 2d 644, 648 (Ct. App. 1992); Restatement (Second) of Torts § 674 cmt. j (1977); 1 Fowler V. Harper, et al ., The Law of Torts § 4.4 (3d ed. 1996). Accordingly, the Tennessee Suprem e Court has held

that the abandonment
or withdrawal of an

allegedly malicious

claim is sufficien

t to est ablis h a final and favorable termination as long a s the abandonment or w ithdrawal was not accompanied by a compromise or settlement or was not undertaken in order to refile the same claim in anot her forum. See Christian v. Lap idus , 833 S.W.2d at 74.

When Ms. Rogers filed her first malicious prosecuti

on claim against Mr.

Watts, she knew: (1) that Mr. Watts ha

d filed a third-par

ty complaint against

her in McFarlin v. Watts alleging that she has c ommitted fraud or f

raudulent misrepresentation; (2) that the trial court had d enied Mr. Watts’ s motion at the close of the evid ence to conform his third- party complaint to the

proof and

t o amendment

his third-p arty complaint to add a cla im of negligent misrepresentation;7 Mr. Watts conceded in the second malicious prosecution proceeding that he did not appeal from the trial court’s decision to grant the directed verdict dismissing his claims against Ms. Rogers for fraud or fraudulent misrepresentation. -10- (3) that the trial court had granted her motion of ad irected verdict dismissing Mr. Watts’s third-party complaint with prejudice; (4) that M r. Watts had appea led from Ms. McFa

rlin’s verdict aga

inst him and from the trial cour

t’s denial of his moti

on to amend his complai

nt but that he had not specifically appealed from the directed verd i ct dis missing his third-party claims for fraud or f raudulen t misrepresentation; 7 and (5) that the Court of Ap peals had affirme

d the trial court’s j udgment.

Based on these facts, Ms

. Rogers, or any othe r reasonably

competent lawyer, couldlegitimately have c oncluded that Mr. W

atts’s claims base

d on fraud and fraudulent

misrepresentation had been terminated in Ms. Rogers’s favor. Mr. Watts had abandoned them at tr ial by filing the motio

n to amend, a nd the trial court had granted a directed verdic t dismissing them. In

addi tion, any reasonably compe tent lawyer wo uld hav e concluded that the t rial court’s dismis sal of Mr. Watts’ s fraud claims was final because

Mr. Watts had not t

aken issue on appeal w

ith the dismissal of these claims. By f

ailing to raise this issue on ap peal, Mr. Watt

s placed the

issue of the trial court’s dismi ssal of his third-par ty fraud claims beyond the re

ach not only of the Court of

Appeals but also of t he Tennessee Supreme Cou rt. See Tenn. R. App. P. 13(b). Thus, it was of no consequence that Ms. McFarl in’s Tenn. R. A pp. P. 11 application

had not been disposed of when Ms. R ogers filed her fir st malicious prosecution

complaint. By virtue of his failur e to take issue in the Court of A

ppeals withthe trial court’s directed verdict dismissing his fraud claims, Mr. Watts had lost his opportunity to raise

these issues in the T

ennessee Supreme Court.

In light of these facts , Ms. Rogers, or any other reasonably competent lawyer, couldhave concluded that M r. Watts’s claim

s ba se d on fraud and fraudu lent misrepresentation had been finally concluded in Ms. Rogers’s favor when she filed her first malicious pro secution action. T his being the case, the tri

al court could have properlydeclined to impose Tenn. R. Civ. P. 11 sanctions for Ms. R ogers’s first malicious prosecution complaint because it was well-grounded in fact and supported by existing law.-11- IV.

We affirm the judgment dismissing Mr. Watts’s request for Tenn. R. Civ. P. 11 sanctions against Ms. Rogers and remand the case to the trial court for whatever further proceedings may be r

equired. We tax t

he costs of this appeal t

o Thomas E. Watts, Jr., and his surety for which execution, if necessary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ SAMUEL L. LEWIS, JUDGE