FILED

August 27, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

I N THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTI ON

SCRUGGS, INC. ) KNOX COUNTY

) 03A01-9701-CV-00038

Plaintiff-Appellee )

)

)

v. ) HON. HAROLD WIMBERLY,

 ) JUDGE

) 

TR Auto/Truck Plaza, Inc., )

THOMAS C. REBER, Individually, )

and RICK H. LEWIS, Individually )

)

Defendants-Appellants ) VACATED AND REMANDED

CARL R. OGLE, JR., and J. MICHAEL KERR OF JEFFERSON CITY FOR

APPELLANTS

JEFFREY A. WOODS OF KNOXVILLE FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

The suit giving rise to this appeal originated in the

General Sessions Court for Knox County, wherein the Plaintiff,

Scruggs, Inc., sought judgment against the Defendants, TR

Auto/Truck Plaza, Inc., Thomas C. Reber, Individually, and Rick

H. Lewis, Individually, on a sworn account. 
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The Plaintiff prevailed there, and the Defendants

appealed the judgment to the Circuit Court, where the Plaintiff

again prevailed.

After judgment was rendered in the Circuit Court, the

Defendants filed a motion to set aside the judgment and the

Plaintiff responded by a motion to strike and to have the Court

grant sanctions against the Defendants and their counsel.

The Trial Judge denied the motion to set aside, granted

the motion to strike, and also granted the motion to impose

sanctions against all of the Defendants, except Mr. Reber, who

was non-suited after he filed for bankruptcy, and also against

the Defendants' attorney, Carl O. Ogle, Jr. He thereupon awarded

the Plaintiff $2559.31 for its reasonable expenses, including

attorney fees in addition to the judgment on the account rendered

against TR Auto/Truck Plaza, Inc., and Mr. Lewis.

Mr. Ogle appeals, raising the following issue:

1. WHETHER THE TRIAL JUDGE ERRED IN AWARDING 

SANCTIONS AGAINST THE DEFENDANTS' ATTORNEY OR, 

 IN THE ALTERNATIVE, IN AWARDING THE 

 PLAINTIFF'S ATTORNEY'S FEES INCURRED 

 THROUGHOUT THE ENTIRETY OF THE LITIGATION AS 

 OPPOSED TO ONLY THOSE ATTORNEY'S FEES FOR THE 

 OBJECTIONABLE PLEADINGS AND IN FAILING TO HOLD 

 A HEARING ON THE REASONABLENESS OF THE 

 ATTORNEY'S FEES.

The principal basis for the sanction against Mr. Ogle

was the Trial Court's finding that a representation made by Mr.

Ogle in his "MOTION TO SET ASIDE JUDGMENT" was false. 

Specifically, the representation was:
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3. That the attorney representing the Plaintiff,

Jeffrey A. Woods, nor his client were at the courthouse

on the 12th day of April, 1993.

In a brief filed subsequent to the Plaintiff seeking

sanctions, Mr. Ogle's associate represented that the statement

giving rise to the sanctions was made on information and belief

and in good faith.

It does not appear that there has been an evidentiary

hearing to determine whether Mr. Ogle was guilty of conduct

warranting imposition of sanctions. We are reluctant under the

record in this case to sustain this drastic remedy, which appears

to have been resolved upon pleadings and affidavits. 

We accordingly vacate the order granting sanctions and

remand the case to the Trial Court for an evidentiary hearing as

to Mr. Ogle's culpability in the representation he made.

For the foregoing reasons the judgment of the Trial

Court awarding sanctions against Mr. Ogle is vacated and the

cause remanded for further proceedings not inconsistent with this

opinion. Costs of appeal are adjudged against the Plaintiff.

_______________________________

Hous t on M. Godda r d, P. J .

CONCUR:

________________________________

He r s c he l P. Fr a nks , J .
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________________________________

Cha r l e s D. Sus a no, J r ., J .