MOHAMMAD AL-HADDAD,                     )
                                        )
      Plaintiff/Appellee,               )
                                        )   Appeal No.
                                        )   01-A-01-9608-CV-00369
VS.                                     )
                                        )   Williamson Circuit
                                        )   No. 95165 and 95166
WALTER RITTER AND WIFE,                 )
HELMA RITTER,                           )

      Defendants/Appellants.
                                        )
                                        )
                                                           FILED
                                                            February 5, 1997

                     COURT OF APPEALS OF TENNESSEE  Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE Appellate Court Clerk



APPEALED FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE

THE HONORABLE DONALD P. HARRIS, JUDGE




LAWRENCE WILSON
2400 Crestmoor Road Suite 314
Nashville, Tennessee 37215
      Attorney for Plaintiff/Appellee

WILLIAM CARTER CONWAY
236 Court Square, Suite 205
Franklin, Tennessee 37064
       Attorney for Defendants/Appellants




                            REVERSED AND REMANDED




                                            BEN H. CANTRELL, JUDGE



CONCUR:
LEWIS, J.
KOCH, J.
                                 OPINION


              Pursuant to Rule 11, Tenn. R. Civ. P., the trial court sanctioned the

appellants and their attorneys. The appellants argue on appeal that they cannot be

sanctioned under Rule 11 because they did not sign the offending pleading and that

the facts do not establish a violation of the rule. We hold that a party may be

sanctioned under Rule 11 without actually signing the pleadings, but we find that the

facts of this case do not justify a Rule 11 sanction and that the proof fails to show any

expenses incurred as a result of the alleged violation. Therefore we reverse the

judgment against the appellants for sanctions.



                                           I.



              The appellants, Walter Ritter and Helma Ritter employed Mohammed

Al-Haddad to install tile in three bathrooms at the their home. The Ritters refused to

pay because of alleged defects in the workmanship. Mr. Al-Haddad sued the Ritters

in General Sessions Court and obtained a default judgment for $3,445.



              The Ritters appealed the judgment to the Circuit Court. In a separate

complaint they sued Mr. Al-Haddad for faulty workmanship and specifically charged

that Mr. Al-Haddad’s agent flushed tile grout down two bathroom drains where it

hardened and did $8,000 worth of damage to the drainage pipes. The two actions

were consolidated for trial before a six person jury.



              The jury returned a verdict against Mr. and Mrs. Ritter for $3,000. Mr.

Al-Haddad then moved for sanctions against the Ritters under Rule 11 alleging that

in defending his claim and in pursuing their counterclaim, the Ritters did so without a

factual or legal basis and solely to hinder and delay Mr. Al-Haddad’s claim. The trial



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judge granted the motion and assessed costs of $3,000 against the Ritters and $1500

against their attorneys.



              Only the Ritters have appealed.



                                           II.



              Rule 11 requires that every pleading, written motion, and other paper

shall be signed by an attorney of record or by the party if he or she is not represented

by an attorney. Rule 11.01. The signature amounts to a certification that “to the best

of the person’s knowledge, information, and belief, formed after an inquiry reasonable

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;

              ....

              (3)     The allegations and other factual contentions have
              evidentiary support or, if specifically so identified, are
              likely to have evidentiary support after a reasonable
              opportunity for further investigation or discovery;

Rule 11.02.



              Not only is the signature a certification of the foregoing facts, but anyone

who presents the pleading, written motion, or other paper to the court “whether by

signing, filing, submitting, or later advocating” it makes the same representation. Id.

Thus, anyone who “advocates” a pleading certifies that the pleading is not filed to

harass or delay and that a reasonable inquiry has been made to discover the facts

alleged. A non-signing party, therefore, falls under the provisions of Rule 11.




                                           III.

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             The trial judge made the following findings in a memorandum issued on

the Rule 11 motion:

                     In this case, complainant filed suit in the General
             Sessions Court for $3,445.00 in labor and materials
             supplied in the construction of defendants’ home. At their
             attorney’s suggestion, defendants allowed a judgment by
             default be entered against them. This judgment was
             appealed and defendants brought a countersuit for
             $9,000.00. As specified in the counter complaint, $1,000
             was being sought for labor and materials required to
             complete the tile work complainant had been hired to
             perform and $8,000.00 was being sought for the costs of
             repair for damages caused by complainant or his agent to
             the pipes in defendants’ home. At trial, there was proof
             that some grout had been poured into two bathroom
             drains. The grout had hardened and the drains had
             become blocked.

                    Defendants assert they were given a bid of
             $8,000.00 to replace all the pipes under their house.
             There was no evidence, however, that all the pipes had
             been damaged. The plugged drain traps had been
             replaced at a cost of $35.00 and the plumbing system
             seemed to function properly. Moreover, the grout that
             had clogged the two drain traps was not of the type used
             by the complainant. Clearly, the attorneys for plaintiffs
             should have discovered that the damage to the
             defendants’ plumbing had been corrected at a cost of
             $35.00 and there was no apparent basis for alleging
             further damage. The court is of the opinion the
             countersuit was brought to harass, delay and increase the
             costs of litigation for the complainant.



             The court concluded that by claiming damages amounting to $8,000 to

their drain pipes, when the damage had been repaired for $35.00 the Ritters had

violated Rule 11.



             The test to be applied in Rule 11 cases is objective reasonableness

under all the circumstances. Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991). Mrs.

Ritter testified in her affidavit that she saw Mr. Al-Haddad’s workman pour grout into

the drain; that she had to pay a plumber to unstop two drains; that the plumber could

not be sure that there would be no further problems throughout the house; that

another drain cleaner advised her that to be sure the drain problem would not show

up it would be necessary to replace all the drain pipes under her house at a cost of

                                        -4-
$8,000. The second plumber did not testify at the trial but his estimate is in the

record.



             From an objective standpoint, we think Mrs. Ritter was justified in making

the $8,000 claim. When her attorney filed the complaint, she knew that two drains

had been plugged with grout and there remained a possibility that the entire drain

system might have to be replaced. Since hindsight cannot be used to establish

liability in Rule 11 cases, Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991), Mrs.

Ritter’s conduct passes the test of objective reasonableness.



             Turning to the question of the amount of the sanction, it is important to

note that the $8,000 claim was only one part of the Ritter’s complaint. The other part

was a claim for $1,000 for faulty workmanship in laying the tile. There is no question

that a genuine dispute existed between the Ritters and Mr. Al-Haddad, a dispute that

was destined to be tried. Therefore, we think it would be hard to find any extra

expenses incurred in litigating whether the grout poured in the drains caused

damages of $35 or $8,000. The affidavits of Mr. Al-Haddad and his counsel do not

attempt to attribute any of their expenses to the $8,000 claim. Therefore, the

evidence preponderates against the Rule 11 sanction imposed by the trial judge.



              The judgment imposing Rule 11 sanctions is reversed and the cause is

remanded to the Circuit Court of Williamson County for any further proceedings that

may become necessary. Tax the costs on appeal to the appellee.



                                          _____________________________
                                          BEN H. CANTRELL, JUDGE

CONCUR:




_______________________________
SAMUEL L. LEWIS, JUDGE

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_______________________________
WILLIAM C. KOCH, JR., JUDGE




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