Appeal from the Circuit Court for Franklin County, No. 17199-CV, Thomas W. Graham, Judge.
Counsel for plaintiff in damage suit appeals award of sanctions imposed pursuant to Tenn. R. Civ. P. 11 against her. Finding that the trial court did not abuse its discretion the award is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
The opinion of the court was delivered by: Richard H. Dinkins, Judge
RICHARD H. DINKINS, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P. J., M.S., and ANDY D. BENNETT, J., joined.
The facts salient to the disposition of this appeal, the issue presented for review and the standards to be applied on review are largely undisputed. On October 14, 2008, Cynthia Cheatham, a member of the Tennessee bar, signed and filed a complaint in the Circuit Court for Franklin County on behalf of Ms. Marla Dean Evans against Ms. Evans' former husband, Johnny Howard Evans. In the complaint, Ms. Evans sought to recover monetary damages for Mr. Evans' alleged negligence in infecting her with two sexually transmitted diseases and for assault. The complaint alleged that Mr. Evans had infected Ms. Evans with the diseases during the marriage, requiring continuing medical care; that Mr. Evans physically assaulted her on February 20, 2007, causing various personal injuries; and that the parties had separated in February 2007. Of particular importance to the issues in this appeal are the allegations at paragraphs eight and nine of the complaint, which read as follows:
8. Mrs. Evans further avers that, for example, Defendant engaged in domestic violence, that constitutes assault and battery soon after Defendant filed for divorce, on or about February 20, 2007, she was assaulted by the Defendant, causing injury to her back, breaking the skin on her lip and causing swelling to her lip and face. Because of the assault, she sought medical treatment and incurred expenses for the treatment. Defendant frequently threatened Ms. Evans throughout the marriage with great bodily harm and/or death. Additionally, Defendant continues to threaten and terrorize Mrs. Evans and uses finances to intimidate her.
9. The medical expenses as well as Mrs. Evans [sic] pain and suffering were directly and proximately caused by the assault on her by the Defendant.
On November 13, 2008, Mr. Evans filed an answer to the complaint along with a motion for partial judgment on the pleadings, which sought dismissal of paragraphs eight and nine of the complaint on the ground that the cause of action for assault was barred by the statute of limitations at Tenn. Code Ann. § 28-3-104. Mr. Evans' counsel's cover letter sending Ms. Cheatham service copies of these pleadings included the following language:
It is apparent on the face of the Complaint that all the allegations contained in this Complaint are barred by the Statute of Limitations. This includes not only the allegations of the assault, but also the allegations with regard to the STDs. You and I both know that the parties have been separated for more than a year prior to the filing of the complaint. Please consider this your Notice, pursuant to Rule 11, Tennessee Rules of Civil Procedure, that if you do not dismiss this Complaint within twenty-one (21) days from the date of this letter, we will pursue Rule 11 Sanctions, including costs and attorney's fees in this matter made necessary by your failure to dismiss.
On January 15, 2009, Mr. Evans' counsel filed a document styled "Motion for Rule 11 Sanctions" seeking to have the court sanction Ms. Evans and Ms. Cheatham for failing to dismiss the complaint; the motion also referenced the fact that responses to discovery propounded by Mr. Evans were delinquent and that a motion to compel would be filed. On January 28 Ms. Evans filed a motion to amend the complaint, attaching an amended complaint which eliminated the two paragraphs specifically based on the February 20, 2007, assault. She did not file a separate response to the motion for partial judgment on the pleadings.
A hearing on the motion for partial judgment on the pleadings was apparently held on February 24, with the order granting the motion entered by the clerk on July 30.*fn2 Separate orders entered on July 30 granted a motion to compel filed by Mr. Evans on January 15*fn3 and assessed counsel fees of $528.75 against Ms. Evans and granted the motion for Rule 11 sanctions, assessing $573.25 against Ms. Cheatham. By order entered August 27 the court granted Ms. Evans' motion to amend which had been filed on January 29.*fn4 ...