### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 14, 200 2 Session MR. SAMMY W. VEST, ET AL 

### . v. DR. FRANCIS GOSWITZ, ET AL 

### .

Appeal from the Circuit Court for Anderson County No. 00LA0003 James B. Scott, Jr., Judge

FILED DECEMBER 30, 2002 No. E2001-01613-COA-R3-CV

This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the sa

me year. The suit was by

Sammy W. Vest and

his adult childre n, Angli a M. Somner , Chery l D. Travis, andDann y W

. Vest, against Dr. Francis Goswitz and Dr. He len Vodopick. The suit seeks damages for the Defendants’ failure

to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his childr en. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest’s suit. He further gra nted sanction s pursuan

t to Rule 11. 03 aga

inst couns el for the

Plaintiff . We affir

m. Tenn.R.App. P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined. Edward A. Slavin, Jr., St. Augustine, Florida, for th e Appella nts, Sammy

W. Vest, Anglia M. Somner, Chery

l D. Travis and Da

nny W. Vest Debra A. Thompson, Knoxville, Tennessee, for the Appellees, Fra ncis Goswitz, M.D., and Helen Vodopick, M.D. OPINION

Mr. Vest a

nd the children ap

peal, ra ising the following

two issues : I. SHOULD SUMMARY JUDGMENT BE REVERSED B ECAUSE THE COURT ERRED B Y GRANTING IT WITHOUT ORDERING1 In the main, t he motion to reconsider repeats the arguments made in the motion to alter, amend and corr ect. -2-

DEFEND ANTS’ DEPOSITIO NS AND DISC OVER Y COOPERATION? II. DID THE COURT ER R BY IMP OSING SA NCT IONS FOR REQUESTING RECONSIDERATION OF THE SUMMARY JUDGMENT ORDER? We believe as to both issues the standard of review is abuse of

discreti on by

the Tria l Court. Everett v. McCall , an unreported opinion of this Court f

iled in Kno xville on April 3, 2001; Krug v. Krug , 838 S.W.2d 197 (Tenn. Ct. App. 1992). The record discloses that at a hearing he ld on December 15, 2002, by order entered on March 15, 2001, the Trial Court entered a pre-trial order which, a s pertinent to this appeal, provides the follo wing: 2. All party depositions will be taken on or be fore March 19, 2001. 3. Plaintiffs will identify their expert witnesses by March 19, 2001. 4. Defendants will identify the ir expert witnesses by May 18, 2001. 5. This trial will begin on August 28 2001. The Defendants’ brief (see appe ndix) accurately se

ts out with references to the record the facts necessary

for disposition of issue one. In light of the facts set out in the a ppendix, w e conclu de the Tr ial Court d

id not abus e its discreti on in ente

rtaining and gr anting t he motion f

or summar

y ju dgment. As to the second issue, the sanctions were imposed by the Trial Court because, subsequent to the filing of a notice of appeal, cou nsel for th e Plaintiffs filed a motion to reconsider the Trial Court’s action upon a previous motion to alter and amend. In granting the sa

nctions, which were only against Edward A. Slavin, Jr., counsel for the Plai ntiff s, th e Trial Court ’s ord er reci tes th e foll owing:

It is further

ORDERED pursuant to Tennessee Rules of Civil Procedure 11 that plain

tiff’s Motion to Reconsider Court’s Ruling on Motion to Alter, Amendand Correct

Judgment 1 was in violation of Rule 11.02(1), and that it was presented for an improper

purpose, such as to harass or to cause unnece ssary delay-3-

or needles s increa se in the cost of litigation, and that sanctions shall be o rdered to wit: Attorney

Ed Slavin shall pay reasona ble attorney’ s fees and

other expenses incurred as a direct result of the violation totalling $2,125.75 . See Af fidavit of Debra A. Thompson attached hereto. The amount of $2,125.75 shall be paid by Mr. Slavin directly to the law firm of Baker , McRey

nolds, O’Kane & Atkins, P.O. Box 1708, Knoxville, Tennessee, 37901-1708, within thirty (30) days of the e ntry of this Order. We first question whether the Trial Court could entertain a motion to reconsider after a notice of appeal h ad been

filed an d, furthe

r, even in the absence of a notice of appea l whether the Plaintiffs were entitled t

o file the motion see

king reconsider

ation of th eir previous motion

to alter and

amend. It would see m to us that i f this is pe rmissible aggr ieved pa rties cou ld file mul

tiple motio ns to re co ns id er , w hi ch co ul d d el ay r es ol ut io n o f t he di sp ut e b et we en th em in de fi ni te ly. Fi na ll y, as to this point, we be li eve the mostcompelling reas on for re jecting issue two i s that–andwe repe at for e

mphasis–th

e sancti ons were

agains tcounsel for the Plaintiffs. However, the notice of appeal lists only Plaintiffs Sammy W. Vest, Cheryl D. Tr avis, Anglia M. Somner and Danny W. Vest as t

he appe aling pa

rties. For the foregoing reasons the judg ment of the Trial Court is affirmed andthe cause remanded for collection of the sanctions imposed and collection of costs below. Costs of appeal are adjudged ag ai ns t S am my W . V es t, An gl ia M. So mn er , C he ryl D. Tr av is , D an ny W . V es t a nd th ei r s ur et y.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE