I N THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTI ON FILED
August 27, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
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.
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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_ _ _ _ _ _ _ _ ________________________
Ch a r l e s D. Sus a no, J r . , J .
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