### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On-Brie fs August 2 7, 2003 DIANNA DA WN MCGAHEY v. D AVIS LEE MCGAHG EY A Direct Appeal from the Chancery Court for Carr oll County No. 02-DR-0084 The Honorable Ron E. Harmon, Judge

No. W2003-01051-COA-R3-CV - Filed October 1, 2003

This appeal involves a motion for sanctions pursuant to Rule 11, Tenn. R. App. P. Husband and Wife were scheduled for a cont ested divo rce hear ing. On the morning of the hearing, Husba nd and Wife n egotia

ted a set tlement a nd Judgmen

t was subse

quently entere d dissolvin g the pa rties’ marri age and inco rporating their Marital Dissolution Agreement a nd Permanent Parenting Plan. Thereafter, Wife obtained new counsel and filed a Motion to Alter or Amend the Judgment. As the basis for her Motion, Wife alleged that shehad not received proper repre sentation from her former at to rn ey. Husband filed a Motion for Rule 11 Sanctions

. Following a hearing, the trial c ourt denied Wife’s Motion to Alter or Amend and granted Husband’s Mot ion for Ru le 11 Sanctions. Wife appeals . We affir

m in part, r

everse in part.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. H IGHERS , J. and D AVID R. FA RMER , J., joined. Rosella M. Shackelford, Paris, For Appellant, Dianna Dawn Mc Gahey Steven L. West, McKenzie, For Appellee , Davis Lee McGahe y OPINION On May 9, 2002, Dianna McGahey (“Plaintiff,” “Wife,” or “Appellant”), repr esented by he

r attorney Vicki H. Hoover, filed a Complaint for Divorce ag ainst Da vis McGa hey (“D efendant,” “Husband,” or “Appellee). The Complaint alleged grounds of irrec oncilable differences as well as inapprop riate m arital c onduct on the part of Husband. In a ddition to her Complaint, Wife filed a Temporary

Parentin g Plan fo

r the par ties’ mino

r childre n, and an Affidav it in su pport of t

h e Temporary

Parenting Plan. Wife also f ile d for a restraining order ag ainst Husband to prevent dissipation of the marital assets, along with Notice and Motion for Defa ult Judgment. A Restraining-2-

Order was entered by

t he trial court on May

9, 2002. Wife filed a petition for child support and pendente lite spousal support, which was set for hearing on May 21, 2002. On June 4, 2002, Husband filed an Answer and Counter-Complaint along with a Temporary Parenting Plan. Husband’s Answer and Counter-Complaint was served on Wife on May 21, 2002 and she filed

an Answe

r to Counte

r Complain

t and an Order fo

r Bill of Particulars on May

24, 2002. On June 5, 2002, Husband filed his Motion for Bill of Particulars and same was set for hearing on August 5, 2002. On June 5, 2002, an Agreed Order wasentered, which, inter alia , set out a shared parenting plan with no child support obligations by either party

. On June 27, 2002, Husband filed a Motion for Contempt, which allege d, in pert inent par t, that Husband had proof that Wife had “been stay ing on an overnight

basis with

a param our and in facth ad been

residing with this ind

ividual with the chi ldren pr esent.” This Motion

for Co ntemp t was set for

hearing on Augu st 7, 2002 b ut was sub sequentl y moved to August 5, 2002, to be heard with the trial on the divorce. Prior to the trial, the parties negotiated a settlement, which included a Marital Dissolution Agreement (“MDA”) and a Permanent Parenting Plan. A Judgment was entered on August 5, 2002, which dissolved the marriage and incorpora ted by refer ence the parties’ MDA and Permanent Parenting Plan. On Augus t 1 5, Ms. McGahey, by new counsel, Rosella M. Shackelford, filed a “Ver ified Motion for Alteration or Amendment of Judgment or in the Alternative, Motion for New T rial (the “Motion” ), which

reads, in releva

nt part, a s follows: 4. Attached hereto and made a part he reof is an affidavit of the moving party

wherein she asse rts under oath that there were material misrepresentations to her on the part of her attorney and that her attorney didnot perform

adequately

due to her possible impairment and/or inability to function due to emotional di stress a nd that asa resul tof such impairment and/or inability to function, ther e w a s ineffective repres entation of counse

l on her behalf. Furthermore, affiant therein states that it is to h er best knowledge and belief that counsel failed toadequa tely prepar e for tri al due to h

er possib le impairment

and conf licts of tim

e, and because

of the affiant’s reliance on her attorney ’s expertise, was wholly and c o m pletely deprived of her opportunity of substantial justice and fair pla y on the day

of Court. 5. Affiant furt

he r states and believes that had the Court heard the evidence and testimony of those witnesses pre sent in Court on the day that the judgment would not have been entered as it wa s, including evidence known to the counsel for the affiant that there were material allegations of sexual molestation against the father by one of the children of the marri age so as to re nder him u

nfit as a p arent, which-3- is [in] direct conflict of the permanent parenting plan a pprovedby the Court. 6. Affiant further states and belie ves that her couns el there

in did not fully advise her of all of the rights she had bef ore ent ering into the Marital Dissolution Agreement and the Permanent Parenting Plan. There was undue coerci o n and duress exerted upon the affiant because of the fa ilure of t he attor ney to adequa

tely advise her of

the rights. 7. The Permanent Parenting Plan , as inco rporated into the Marital Dissolution Agreement, and approved by the

Court does not meet the best interest s of th e children standards as set forth by statute. The moving party her

ein asserts that had she been fully and compe

tently represented

by counsel on the day

of the hearing, she

would not have entered into any such ag

reement and she further asserts that there has been ineffectiv e repre sentation of counse

l. Ms. McGahey’ s allegations against her counsel ar e more specifically

addressed in her Affidav it in suppor

t of the a bove Motio n. The Af

fidavit r eads, in r elevant part, asfollows: 2. That I retained Vicki H. Hoover as my c ounsel for the purposes of obtaining a dissolution of marriage on or about May , 2002. 3. That during that s ame per iod of tim

e, Vicki H. Hoover was actively involved in the election campaign for her husband a nd law pa rt ne r M ic ha el Ai nl ey. 4. That on August 1, 2002, her husband and law partner

was defeated in such election. 5. That subse

quent the reto, on A

ugust 5, 2002, the

trial in my

case was se t for f

inal c ontes ted he aring. 6. That on or about June 21, 2002, by l ette r from Ste ve West, opposing counsel, my

attorney wa s advised of a Motion for Contempt against me. I did not rec eive notice of this motion until on or about July 18, 2002, and that I was unaware of the nature of the allegations agains tme until the

n. That a t all times subsequent thereto I denied the truth of such allegations and demanded to see such proof as was supposed to be ava

ilable and I provided evidenc e and witnesses as to such facts and circumstances as I know to be the truth.1 According to the record, Tony M iles i s alleged to be Ms. McG ahey’s paramour. -4- 7. That during a conversation on August 5, 2002, I overheard Steve West say directly to my

attorney that ther

e was a videotape made at Tony Miles’ house. 1 8. That I did not have a

ny o pportunit y to speak with my

attorne y un til after 11:00 am on August 5, 2002. That during such conversation, my witnesses, Kim Rich and Janelle Hainley (sic) were present. I was again led to believe there existed a videotape of me with another man that was damaging to my case. I have

never seen such a videotape, nor can one exist, because there were ne ver any f

acts or circumstances to support such an a

llegat ion. My attorne y a lso admitted in the presence of the witnesses that she had not seen suc h videotape. 9. My attorney

advised me at

this time that if I didn’t accept the offer of settlement wherein the children were to be split up, that I wou ld lose both o f my

childre n at trial

. 10. I did not unde

rstand no r did I comprehend that I

could have asked for a continuance, that I c ould have asked t o spe ak to another at to rn ey, nor did I

have time

to consult with other individuals for their guidance and su

pport. 11. My attorney

was very distracted and angry

during the period

of time that I was with her. She seeme d unable t o focu s on my case. However, since I had hired her, I be lieved he

r to be wo

rking on my behalf. 12. When I left her office , I heard her husba nd and law partner, whomI know to be Michael Ainley , ask her in a very ina ppropria

te manner “Are y ou still going to take this case.” And the r esponse t o his statement was “Yeah” but was made in such a manner and fashion that I believed that she did not want to handle the c ase any f urther. 13. That my witnesses wer e present and available, but my attorney di d n ot di sc us s t he fa ct s o r c ir cu ms ta nc es of th ei r t es ti mo ny. 14. It is my

belief and opinion that my

counsel o f recor

d at the tim

e was impaired to the extent that she could not adequ ately

repres ent my best interests at the time.-5- 15. That as a result of the ineffective repr esentat ion of counsel, I believe that my case wa s prejudiced, and that I was denied

substantial justice and fair play

had the Court been able to have heard the evidenc e that I

had and th

e testimon

y of my w itnesses. On September

25, 2002 , Mr. McGahey filed a “Motion for Sanctions Under Rule 11 Tennessee Rules of Civil Procedure” (the “Motion for Sanctions”). The Motion for Sanctions was supported by

numerous Affidavits, including those of Vicki H. Hoover, Meredith Diaz, and Laura Powell. All of

the supporting Affidav

its dispute d the factual alle gation made by Ms. McGa

hey in her Motio n and Aff

idavit. Th

e Motion f

or Sancti ons state s, in pert inent par t, as follo ws: 4. Further, no material allegations of sexualmolestati on aga inst this Defendant

was ever made known or allege d as any part of the divorce plead ings an d t he Mother agreed to a Tempora ry Parenting

Plan wherein the parties shared custody on a week t

o week ba sis of the two minor children. 5. The Parties negotiated for much of the mor

ning on A ugust 5, 2002 and the case was not resolved until after the Court took a lunch brea k on th at da y. * * * 8. Attach ed herewith is the copy

of the private investigator’s report and a copy of the

videotape made available to t he Honorable Vicki Hoover on August 5, 2002. The previous temporary parenting plan provided tha t both pa rties were specifically ordered not to have a paramour in the pre sence of

the minor c

hildren o n an over

night ba sis. A Contempt of Court Motion was pending against the Mother at the time that the agreement was entered into and that Motion was dismissed upon the agreement of the parties as to the Divorc e. 9. The specific conduct which violates Rule of Civil Procedure 11.02 is as follo ws:

a. There was not a reasonable inquiry under the circumstances in that the Honorab le Vicki Hoover was not contacted by the attorney for

the Mother in order to fully make an inquiry . Such an inquiry is not only reasona ble by also nec essary

under the circumst ances. b. The Verified MotionFor Alteration Or Amendment of Judgment Or In the Alternative, Motion for New Trial is being presented for an improper p urp ose, name

ly to cause un

necessa ry delay which is-6- evidenced

by the matter being attempted to be delay ed at the requ est of Mother until December 4, 2002.

c. The leg al remed

y a s sought b y th

e Mother is not wa rranted by existing law or is a frivolous argument for the extension, modification or reversalof existing law or the establishing of newlaw if said law exists. d. The allegations and factual contentions do not have e videntiary suppo rt, and are not likely to ha ve evidentiary

support af

ter a re as on ab le op po rt un it y fo r f ur th er in ve st ig at io n o r d is co ve ry.

e. Further, the relief as set forth here in is not consis tent with the plead ings and gives further rise to the basis of

the Motion

to initiate dela y and the fact that the Motion is frivolous. The Mother o n on e hand alleges sexual abuse allegations against the Father but asks the Courtto reinsta

te the terms and condition of the Temporary Parenting Plan entered into on May 9, 2002, which ca lls for split custody which would result in daughter being with the Fathe r more than she is now with the Father. Ms. McGahey ’s Motion and Mr. McGahey ’s Motion for Sanctions we re heard simultane ously

on December 4, 2002. At the hearing, pr oof was presented concerning Ms. Hoover’s alleged impairment on the day that the se ttlemen t was re ached. The proo f consisted of Ms. McGahey ’s testimony concerning Ms. Hoover’s alleged behavior on the da y of t he settl ement. Janelle Hanley, who w as present on the day of the se

ttlement, also testified that she was acquainted withMs. Hoove

r becau se, as a w aitress in Paris, TN , Ms. Hanley ha d waited on Ms. Hoover several times and had a

lso seen h er at ce rtain soc ial func tions in

the community. Ms. Hanley stated that Ms. Hoover acted “like she [Ms. Hoover] was–she was either really upset a

bout something or

she was worried or she had been up because she wasn’t very

friendly, ver

y little to say

or anything .” At the close of all proof, the trial court granted Husband’s Motion for Sanctions and denie d Wife’s M otion. The amount of sanctions was reserved until after a he aring held on Janua ry 22 , 2003. On February

18, 2003, the trial

court en tered a n Order awarding Mr. Mc Gahey

sanction s in the a mount of $2,435.00 as attorney’ s fees. On February 26, 2003, a Motion to Stay Execution Pending Appeal was filed by Rosella M. Shackelford as an intervening Petitioner and bond was posted. On February

27, 2003, an Order was entered to stay the execution of judgment pending appeal. Wife and her counsel appeal and raise the f ollowing issues, as stated in the brief:-7- 1. Whether the court

er red in not allowing Plaintiff’s attorney an opportuni ty to respond to the motion for sanctions as it was set to be heard on December 4, 2002; 2. Whether

the cour t erred in fili ng an or der abs ent sp ecifi c find ings of fact in gran ting def endant’ s motion for

sanction s; 3. Does the record on appeal reflect that the attorney for plaintiff met the standard of reasonab le pre-f iling investigation of the fact and where there was no ba d faith and no conduct of a reckless manner [sic]; 4. Whether the affidavit of Michael L. Ainley , attached as an exhibit to the Defen dant’s Motion for Sanctions, in which the affiant breached con fid entiality reg arding a complaint to the Board of Professi onal Resp onsibility resulted in prejud ice of the court. Rule 11, Te

nn. R. Civ. P. , provide s, in pert inent par t, as follo ws: Rule 11.01 Signature Every pleading, written motion, and other paper shall be signed by a

tleast one

attorne y of record in the attorney’ s individual name... Rule 11.02 Representations to Court By presenting to the cour t (whet her by sign ing, fi ling, submitting, or later advocating) a pleading , written motion, or other paper, an attorney or

unrepresented party

is certifying

to the best of the person’s knowledge, information, and belief, f ormed af t er an inquiry reasona

ble under the circumstances– (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal c onten tion s therein are warranted by

existing law or by a nonfr ivolous argument

for the extension, modification, or reversal of existing law or the establishment of new law;-8- (3) t he allegations and other factual conte ntions ha v e evidentiary

support or, if

specifically so identifie d, are likely to have evidentiary

support af

tera reasonable opportunity for further investigation or discovery ; and (4) the denial of factual co nt entions are warranted on the evidence or, if specifically so identified, are r ea sonably based on a lack of information or belief. Rule 11.03

Sanctions If, after notice and a reasona ble o pportunity to respond, the court determines that subdivision 11.02 has been violated, the court may , subject to the conditions stated below, impose an appropr iat e sanction up on th e a tt or ne ys , law fi rms, or parties that have violated subdivision 11.02 or are responsible for the violation. * * * (3) Order

. When imposing sanc tions, the court sha ll describe the conduct d

etermined to const

itute a v iolation of this rule and explain the basis for the sanction imposed. At the close of all proof presented at the December 4, 2002 hearing, the trial court

made the following, relevant, statements from the bench:

T he Court finds the petition to alter or amend shoul d b e overrul e d. This case was settled with advice of counsel. Counsel was competent at the time. That the allegations in the petition to alter or amend are unfounded by

proof and that sanctions will be imposed. Attorney ’s fees will be aw arded to Mr. West, r

easonab le fees

. The tria l court’sOrder e

ntered F ebruar y 18 , 2003 re ads, in re

levant pa rt, as fo llows: Upon Moti on filed by the Plaintiff for Alter ation or Amendment

of Judgment or in the alternative Motion for New Trial and upon Motion of the Defendant for Sanctions pursuant to Rule 11 of the Tennessee Rules of C ivil Proce dure; a h earing of the ca use before the Court on the 4 th day of December, 200 2, and the Court being otherwise sufficiently advised; IT I S HEREBY ORDERED AND ADJUDGED:-9- 1. The Motion of

the Plainti ff is hereby de

nied and overruled. 2. The Motion of the Defen dant for Rule 11 Sanctions is hereby granted with

the Defe ndant to r ecover his reasonable attorney fees, costs, and expenses. The amount of which is rese rved. Th ese sanctions are ord

ered asagains tthe Plainti ff and he r attorne y jo intly an d s ev er al ly. As cited supra , Rule11.03(3), Tenn. R. Civ. P., clearly requires the trial court to “describe the conduct d

etermined to constitute a violation of [Rule 11] and explain the basis for the sanction imposed.” Here, the trial court states that the case “w as settled with advice of counsel,” and that “the allegations in the petition to alter or amend are unfounded by proof

.” While the trial court found that there was not sufficient proof to show t hat Ms. Hoo ver was

incompet

ent, the f act that M s. Shackelford

lost the case doe s not const itute a ba sis for Rule 1 1 sanctio ns. The tr ial cour t failed t o make a specif

ic finding that Ms. Shackelford violated Rule 11 by failing to investigate the facts upon which the Motion was made and by failing to have evident

iary suppo rt for the allegations. Such failure to explain isin direc t violation of Rule 11.03(3), Tenn.R. Civ. P. Therefore, we reverse the Order of the trial court to the e xt ent that it imposes Rule 11 sanctions upon the Appellant and her counsel. We prete

rmit Appellant’s r

emaining issues. Alth ough Appellee raises the issue of whether the trial court erred in over ruling Appellant’s Motion to Alter or Amend, we note that Appellant has not raised this issue in her

brief. Therefore, Appellee’s issue is a non-issue. For the foregoing reasons, we reverse the Order of the trial cour t imposing Rule 11 Sanctions upon Appellan

t and her counsel. We affirm

the Order in all other respects . Costs of this appeal are as se ss ed ag ai ns t t he Ap pe ll ee , D av is Lee Mc Ga he y.

__________________________________________ W. FRANK CRA

WFORD, PRESIDING J UDGE, W.S

.