                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 26, 2010 Session

             MARLA DEAN EVANS v. JOHNNY HOWARD EVANS

                    Appeal from the Circuit Court for Franklin County
                      No. 17199-CV     Thomas W. Graham, Judge


                No. M2010-00079-COA-R3-CV - Filed September 22, 2010


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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M.S., and A NDY D. B ENNETT, J., joined.

John E. Herbison, Nashville, Tennessee, for the appellant, Cynthia A. Cheatham.1

Roger J. Bean, Tullahoma, Tennessee, for the appellee, Johnny Howard Evans.

                                              OPINION

I. BACKGROUND

        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


        1
         Cynthia Cheatham, who represented the Plaintiff in the original action, Marla Dean Evans, is the
Appellant in this appeal.
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.

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       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 30.2 Separate
orders entered on July 30 granted a motion to compel filed by Mr. Evans on January 15 3 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 29.4 Ms. Evans
thereafter non-suited the action. Ms. Cheatham appeals the award of sanctions against her
raising the following question:

       1) Whether the trial court’s award of sanctions pursuant to Tenn. R. Civ. P. 11
       constitutes an abuse of discretion.

II. DISCUSSION

       A trial court’s ruling on a Rule 11 motion is reviewed under an abuse of discretion
standard. Hooker v. Sundquist, 107 S.W.3d 532, 535 (Tenn. Ct. App. 2002). An abuse of
discretion occurs when the decision of the lower court has no basis in law or fact and is
therefore arbitrary, illogical, or unconscionable. State v. Brown & Williamson Tobacco
Corp., 18 S.W.3d 186, 191 (Tenn. 2000). When reviewing under this deferential standard,
an appellate court is not permitted to substitute its own judgment for that of the trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Appellate courts review a trial court’s
findings of fact with a presumption of correctness. Tenn. R. App. P. 13(d).

        In its order awarding sanctions, the trial court held that Ms. Cheatham’s action in
asserting a claim in the complaint which was on its face barred by the statute of limitations
violated Tenn. R. Civ. P. 11.02, a holding which she asserts was error in several respects.
First, relying on Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991), Ms. Cheatham contends
that Rule 11 does not impose a continuing obligation to review and reevaluate documents and
to take corrective action if it is discovered after a document has been signed that the pleading
is factually or legally meritless; in short, she argues that the determination of compliance with
Rule 11 is made as of the time the document is signed and revisions are not required.
Second, she contends that the reasonableness of her conduct in filing the complaint should
be assessed as of the time she signed it; as a consequence, her actions were not sanctionable
because the statute of limitations defense had not been raised at the time she signed the


       2
           The order, as well as other orders entered on July 30, recite a hearing date of February 24.
       3
           This motion is not a part of the record of this appeal.
       4
           This order also recites a hearing date of February 24.

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complaint and, because the defendant might waive the defense of the statute of limitations,
she could reasonably include time-barred allegations in the complaint. We discuss each
contention in turn.

       A. Continuing Obligation

       Ms. Cheatham’s reliance on Andrews v. Bible is misplaced. That case, decided in
1991, concerned the interpretation and application of Tenn. R. Civ. P. 11, as then worded,
a provision of which required an attorney or self-represented party to perform a pre-filing
investigation in order to certify, by signing the document, that the pleading was supported
factually and legally and was not interposed for an improper purpose. A primary issue before
the court was whether there was a continuing obligation under Rule 11 to review and
evaluate documents which had been previously signed and submitted. After reviewing
numerous cases from federal courts interpreting the comparable federal Rule 11, the Supreme
Court concluded that there “are no continuing obligations imposed by Tennessee’s version
of Rule 11.” Andrews, 812 S.W.2d at 291.

       Our Rule 11 was substantially amended in 1995. Of particular importance to the case
at hand, the following language was added as Rule 11.02:

       By presenting to the court (whether by signing, filing, submitting, or later
       advocating) a pleading, written motion, or other paper, an attorney or
       unrepresented party is certifying 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;
       (2) the claims, defenses, and other legal contentions therein are warranted by
       existing law or by a nonfrivolous argument for the extension, modification, or
       reversal of existing law or the establishment of new law;
       (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; and
       (4) the denial of factual contentions are warranted on the evidence or, if
       specifically so identified, are reasonable based on a lack of information or
       belief.

Tenn. R. Civ. P. 11.02.




                                             -4-
This amendment expanded the obligations under the Rule to include “signing, filing,
submitting, or later advocating,” thus imposing a continuing obligation on the part of counsel
and self-represented parties to verify the factual and legal basis of presentations made to the
court, in writing or orally. Consequently, Ms. Cheatham had a continuing obligation to
affirm that the claims continued to be warranted by the law and facts and that she, as signer
of the complaint, was not pursuing claims for an improper purpose.

       B. Waiver of Affirmative Defense of Statute of Limitations

        Ms. Cheatham correctly notes that the running of the statute of limitations on a claim
is an affirmative defense which must be pled in an answer to a complaint. Tenn. R. Civ. P.
8.03. As such, if it is not raised in the answer it is waived. Sawner v. M.P. Smith Const. Co.,
526 S.W.2d 492, 497 (Tenn. Ct. App. 1975). Consequently, the trial court’s ruling that the
mere assertion of the claim in the complaint was a violation of Rule 11 was error since, at
the time the complaint was filed, the claim was not barred. The fact that her action in
including paragraphs eight and nine in the original complaint was permissible at the outset,
however, does not resolve the question of whether her conduct was reasonable and consistent
with the letter and spirit of Rule 11 and her professional responsibilities as the case
progressed. Inherent in the obligations of Rule 11 is the requirement that counsel
continuously affirm, in light of information which becomes known as the case progresses,
that a claim has a reasonable basis in law and fact and is not being pursued for an improper
purpose and, concomitantly, that a clearly meritless claim, such as one barred by the statute
of limitations on its face, is not being pursued.

       The affirmative defense of the statute of limitations, which Ms. Cheatham
acknowledges in her brief to be a valid defense, was first raised when the answer and motion
for judgment on the pleadings were filed on November 12, 2008. Consistent with the
continuing obligation imposed on Ms. Cheatham by Rule 11, therefore, the question of
whether her conduct violated Rule 11 is determined on the basis of actions taken after the
defense was raised.

        As noted above, we review the trial court’s ruling under an abuse of discretion
standard and do not substitute our judgment for that of the trial court. Applying that standard
to the facts before us, we find no abuse of discretion in the trial court’s decision to award
sanctions. Ms. Cheatham’s failure to respond to the motion for partial judgment on the
pleadings, to seek an agreed order allowing the amendment or, failing that, to get an earlier
hearing on her motion to amend the complaint, caused unnecessary delay in the resolution
of the case. Having been put on notice of the statute of limitations defense in the answer and
motion for partial judgment on the pleadings, as well as being advised in the letter from Mr.
Evans’ counsel that sanctions would be sought if the allegations were not stricken, Ms.

                                              -5-
Cheatham had an obligation to take appropriate action. Her failure to take action in a timely
manner not only amounted to tacit advocacy of claims she knew could no longer be sustained
but also required Mr. Evans’ counsel to expend time in preparation and presentation of the
motion for partial judgment on the pleadings as well as the motion for sanctions.

III. CONCLUSION

       For the foregoing reasons, the judgment of the Circuit Court is AFFIRMED. The case
is remanded to the Circuit Court for Franklin County for enforcement of the judgment and
collection of costs rendered therein and for such further proceedings as may be necessary.




                                                   ___________________________________
                                                   RICHARD H. DINKINS, JUDGE




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