Raymond Clay Murray, Jr. v. Jes Beard

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 10, 2009 Session

RAYMOND CLAY MURRAY, JR. v. JES BEARD

Appeal from the Circuit Court for Hamilton County

No. 04C1490 W. Dale Young, Judge

No. E2008-02253-COA-R3-CV - FILED JULY 9, 2009

This is the second appeal in a legal malpractice case filed by Raymond Clay Murray, Jr. (“the

Client”) against Jes Beard (“the Attorney”). In the first appeal, we affirmed the Trial Court’s

sanction against the Attorney for discovery abuse which prohibited the Attorney from introducing

any expert testimony at trial. However, a majority of this Court reversed the Trial Court’s issuance

of a default judgment as a further sanction against the Attorney. We also affirmed the Trial Court’s

determination that the amount of the Client’s damages totaled $16,697.38. We remanded the case

on the sole issue of liability. On remand, both parties filed motions for summary judgment. The

Trial Court granted the Client’s motion for summary judgment and found the Attorney 100% at fault

for the Client’s damages. The Trial Court then denied the Attorney’s motion for summary judgment,

found that motion was filed in violation of Tenn. R. Civ. P. 11, and awarded an additional $1,374.94

in damages. The Attorney appeals raising several issues. We affirm the Trial Court’s judgment in

all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Affirmed; Case Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and

JOHN W. MCCLARTY , J., joined.

Alan R. Beard and Jes Beard, Chattanooga, Tennessee, for the Appellant, Jes Beard.

John T. Rice, Chattanooga, Tennessee, for the Appellee, Raymond Clayton Murray, Jr.

OPINION

Background

This is the second appeal in this legal malpractice case filed by Raymond Clayton

Murray, Jr. against Jes Beard. Much of the pertinent information was set forth in our Opinion in the

first appeal. We quote liberally from that Opinion1:

The facts pertaining to the underlying case are not in serious

dispute. In early 2003, the Client retained the Attorney to represent

him in an action to modify his child support obligation. After the

Client filed his petition, his former wife, Tina Louise Payne Murray,

filed a counterclaim seeking a child support arrearage with interest

under the terms of a 1996 court order. Following a trial in the

Hamilton County Chancery Court on September 8, 2003, the

Chancellor took the matter under advisement.

The parties to the case at bar agree that, following the trial, the

Attorney told the Client that he would likely end up paying his former

wife between $12,000 and $16,000. With the Client’s permission, the

Attorney entered into settlement discussions with his former wife’s

attorney, William H. Horton. On October 9, 2003, the Attorney and

Mr. Horton agreed on the details of a settlement agreement. Under

the terms of the agreement, the Client was to pay Ms. Murray $8,000

plus another $2,000 to Mr. Horton to cover his attorney’s fee. The

Client was to be responsible for paying court costs. Although the

parties allegedly agreed on the terms of the settlement on October 9,

2003, an agreed order reflecting the settlement was not then entered.

In the meantime, on October 13, 2003, the Chancellor filed a

memorandum opinion announcing his decision. The Attorney

contacted the Client around 4 p.m. on October 14, 2003, and told the

Client, based upon his initial review of part of the opinion, that “it

looked like” under the opinion he would have to pay his former wife

$15,000. During that same conversation, the Attorney told the Client

that he, the Attorney, had not completely read the memorandum

opinion.

The following day, Mr. Beard received a letter from Mr.

Horton, stating, in pertinent part, as follows:

1

Although some of the footnotes have been omitted, any remaining footnotes contained within the quoted text

are in the original.

-2-

Enclosed is an Agreed Order containing the

Settlement Offer you accepted on October 9, 2003, as

well as a Billing Statement detailing Ms. Burkhart’s

attorney’s fees. If the Order meets your approval,

please sign it and return it to us so that we may file it

with the Court.

Also, please forward us two (2) checks, one in the

amount of $8,000 and one in the amount of $2,000 as

provided for in the Settlement and send the check to

the Court.

If you have any questions or comments, please do not

hesitate to contact me.

The Attorney called the Client to notify him of the agreed

order. He directed the Client to deliver the checks to Mr. Horton’s

office. The Client delivered the checks at approximately 10:30 a.m.

on October 15, 2003. At approximately 2 p.m., the Attorney called

the Client to advise him that he had reviewed the entire memorandum

opinion, and that the Chancellor’s ruling was in the Client’s favor.

The Agreed Order reflecting the settlement was filed with the court

the following day. . . .

The Client filed this action for legal malpractice on September

17, 2004, alleging that the Attorney’s “failure to review Chancellor

Brown’s Memorandum Opinion, fully understand its terms and

conditions prior to advising [the Client] to making [sic] a settlement,

fall [sic] below the applicable standard of care for trial lawyers in

Hamilton County.” He further alleged that the Attorney’s “failure to

fully review and comprehend Chancellor Brown’s Memorandum

Opinion before entering into an Agreed Order settling the issue” also

fell below the applicable standard of care. After the Client filed a

motion for default, the Attorney filed an answer on November 22,

2004. He denied that he was guilty of negligence in his

representation of the Client.

The Client served expert interrogatories upon the Attorney,

which he failed to answer. On January 25, 2006, the Client filed a

motion to exclude expert testimony pursuant to Tenn. R. Civ. P. 37,

claiming the Attorney had failed to timely respond, object to, or

request an extension of time to answer the expert interrogatories. The

Client requested that the trial court enter an order excluding “any

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testimony, reference, or witness, including the defendant, on any

expert opinion for the trial of February 3, 2006.”2

On May 2, 2006, the trial court entered an order setting the

case for trial on June 28, 2006. The Attorney filed a motion for

summary judgment on May 26, 2006. The trial court denied the

motion because it was not filed at least sixty days before the trial as

required by Hamilton County Circuit Court Local Rule 7.08.

Following a hearing on the Client’s motion to exclude

evidence, the trial court ruled that the Attorney could not offer expert

testimony at trial. The order entered on this matter states as follows:

This matter came on to be heard fully and finally on

the [27]th day of June 2006 upon [the Client]’s

Motion to Exclude Evidence.

The Court having found that [the Attorney] is

unwilling or unable to comply by producing responses

to Expert Interrogatories, and the Court finding the

time for responding has expired and the Court further

finding that the continuance of the case from February

3, 2006 to June 28, 2006 and [the Attorney] has still

failed to comply, it is therefore

ORDERED that any expert testimony on behalf of

[the Attorney] shall be excluded from evidence. . . .

The record indicates that the Client filed an amended motion

for Rule 37 sanctions at some time before the trial. That document

is not in the record and the date it was heard by the trial court is not

identified in the record. However, the record does indicate that the

trial court sent a fax to counsel on June 27, 2006, the day before trial,

stating that the Client’s motion was granted and that the trial would

be limited to proof of the Client’s damages. Neither the fax nor an

order incorporating the court’s ruling is in the record.

On the morning of trial, the Attorney filed a motion to

reconsider, asking the trial court to set aside the default judgment.

After hearing argument, the trial court denied the Attorney’s motion

to reconsider on the basis that the Rules of Civil Procedure do not

authorize the filing of such a motion. The Attorney’s counsel then

2

The trial was later continued to June 28, 2006.

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moved to amend the caption of that motion to be identified as a

“Motion to Alter or Amend.” The court denied this request, stating

that the motion was still, in essence, a motion to reconsider. The trial

court then reaffirmed its ruling from the previous day limiting the

trial to the issue of damages. The court asked the Attorney whether

he wanted to (1) empanel a jury to hear the Client’s proof of damages,

(2) waive the jury and have the court hear the case, or (3) have the

court enter an order for the amount of damages sought by the Client

without requiring him to present any evidence. The Attorney waived

the jury trial, and the Client testified as to the damages he had

incurred as a result of the Attorney’s conduct. The trial court entered

a judgment against the Attorney in the amount of $16,697.38. The

Attorney appeals.

Murray v. Beard, No. E2006-01661-COA-R3-CV, 2007 WL 2437971, at *1-3 (Tenn. Ct. App. Aug.

29, 2007), no appl. perm. appeal filed.

In the first appeal, the Attorney raised three issues. The first issue was whether the

Trial Court erred when it dismissed the Attorney’s motion for summary judgment because it was not

filed within 60 days of trial as required by Rule 7.08 of the local rules of the Hamilton County

Circuit Court. Id., at *3. We concluded that the Trial Court did not err when it dismissed the motion

for summary judgment in accordance with its local rule. Id., at *4.

The Attorney’s second issue was whether the Trial Court erred when it granted a

default judgment on the issue of liability as a sanction pursuant to Tenn. R. Civ. P. 37 after already

having granted a sanction precluding him from introducing expert testimony at trial. Id., at *3. We

concluded that because the Client had failed to establish that the Attorney had engaged in any new

sanctionable conduct after the original sanction prohibiting use of expert testimony was meted out,

the Trial Court erred when it entered a default judgment. Id., at *6-7.3

The final issue in the first appeal surrounded the propriety of the $16,697.38

judgment entered against the Attorney by the Trial Court. We addressed this issue as follows:

The parties had a full hearing on the subject of damages.

Therefore, the issue of damages is not an open issue on remand. The

percentage of these damages to be assessed against the Attorney will

3

The undersigned filed a separate opinion concurring in part and dissenting in part. Specifically, I disagreed

with the majority’s conclusion on the second issue that the Trial Court erred when it entered the default judgment as

to liability.

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depend upon the degree of the Attorney’s fault as determined by the

trier of fact.4 . . .

The judgment of the trial court is vacated. This matter is

remanded for a trial on the issue of liability. On remand, the trial

court’s ruling prohibiting the Attorney from introducing expert

testimony will remain in full force and effect. . . . (footnote in the

original).

Id., at *7.

On remand, the Client filed a motion for summary judgment. In support of his

motion, the Client attached the expert affidavit of Sandra Bott (“Bott”), who has been licensed to

practice law since 1978. Bott stated:

[I]t is my opinion that by failing to read the entire Memorandum

Opinion of Chancellor Brown in the underlying case and by directing

his client to settle the case prior to reading the Chancellor’s opinion,

the Defendant failed to conform to the standard of care applicable to

trial lawyers in the State of Tennessee. . . . [I]t is apparent that had the

defendant read the entire Opinion he would have discovered that his

client had no obligation to pay any monies to his former wife. The

Defendant’s failure to read the Memorandum Opinion in its entirety

was the proximate cause of the Plaintiff’s damages.

The Attorney also filed a motion for summary judgment. The Attorney claimed that

even if the facts as set forth in the Client’s motion for summary judgment were true, the Client

nevertheless had no basis for recovery “because the case had been settled prior to the events

allegedly giving rise to the malpractice.” The Client then filed a motion for sanctions pursuant to

Rule 11 of the Tennessee Rules of Civil Procedure. The Client claimed that the Attorney’s motion

for summary judgment exceeded the scope of this Court’s remand and violated Rule 11 of the

Tennessee Rules of Civil Procedure.5

4

Obviously, if comparative fault is not an issue on remand, the Attorney will be liable for all of the damages,

assuming his liability is shown by a preponderance of the evidence.

5

Although the motion for sanctions does not expressly state whether the Client complied with the twenty-one

day safe harbor rule found in Rule 11, counsel for the Client affirmatively represented at oral argument before the Trial

Court that he had complied with the safe harbor rule. The Attorney did not challenge this representation at the hearing.

In his brief on appeal, the Attorney states that the Client did not prove that he complied with the safe harbor rule. The

Attorney does not, however, actually deny that the Client complied with the safe harbor rule. Because the Attorney did

not and does not actually deny either at the trial court level or on appeal that the safe harbor rule had been complied

with, we consider this issue waived.

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A hearing on the competing motions for summary judgment was conducted on

December 17, 2007. At the hearing, the Attorney’s lead counsel was not present and the Attorney

requested a continuance. The Attorney made this request even though the Attorney was the only

signatory to his motion for summary judgment. In other words, the Attorney’s lead counsel did not

sign the Attorney’s motion for summary judgment. The Trial Court denied the request for a

continuance. During oral argument, counsel for the Client informed the Trial Court that he never

received the Attorney’s response to the Client’s motion for summary judgment or the response to

the Client’s statement of undisputed material facts.6 The Trial Court stated that it believed the

Client’s attorney that neither of the responses had been received. The Trial Court then stated:

Accordingly, the Court most respectfully dismisses . . . the

Defendant’s motion for summary judgment. And the Court finds that

the Defendant’s Motion for Summary Judgment is frivolous.

The Trial Court then granted the Client’s motion for summary judgment and found the Attorney

100% liable for the Client’s damages.7 The Trial Court also granted the Client’s motion for Rule

11 sanctions. In addition to the original judgment of $16,697.38, the Trial Court awarded the Client

a judgment totaling $1,374.94 for Rule 11 sanctions, which represented attorney fees and costs

incurred by Client in responding to the Attorney’s motion for summary judgment. After his motion

to reconsider was denied, the Attorney filed this appeal raising four issues, which we quote:

#1. The Trial Court abused its discretion in denying the

Appellant’s Request for continuance when Appellant’s

counsel failed to appeal to argue the Motion for Summary

Judgement.

#2 The Trial Court erred in granting the Appellee’s Motion for

Summary Judgement when documents relied on by the

Appellee’s expert in forming her opinions were not attached

to her affidavit in support of the Motion for Summary

Judgement as required under Tennessee Rules of Civil

Procedure Rule 56.06.

#3 The Trial Court abused its discretion in refusing to consider

the Appellant’s Motion for Summary Judgement or his

response to the Appellee’s Motion for Summary Judgment.

6

The Certificate of Service on the Attorney’s response to the motion for summary judgment and the response

to the statement of undisputed material facts were not signed.

7

Even though the final judgment did not provide a specific dollar amount of the judgment, in light of our

previous Opinion it did not need to because we ruled that there had been a full hearing on damages which the Trial Court

found totaled $16,697.38. As quoted previously, we stated that the only remaining issue on remand was the degree of

the Attorney’s fault, if any.

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#4 The Trial Court abused its discretion in granting Appellee’s

Rule 11 Motion for Sanctions against the Appellant for

Appellant’s Motion for Summary Judgement.

Discussion

We first address whether the Trial Court erred when it failed to grant the Attorney’s

motion for a continuance. In Sanjines v. Ortwein and Assocs., Inc,, 984 S.W.2d 907 (Tenn. 1998),

our Supreme Court explained that a trial court’s decision to grant or deny a request for a continuance

is a matter:

entrusted to the sound discretion of the trial judge. See Blake v. Plus

Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). An appellate court

cannot interfere with the trial court’s decision unless such decision

constitutes an abuse of discretion and causes prejudice to the party

seeking the stay or continuance. Id.; see also Rachels v. Steele, 633

S.W.2d 473, 475 (Tenn. App. 1981).

Sanjines, 984 S.W.2d at 909.

Our Supreme Court further discussed the abuse of discretion standard in Eldridge v.

Eldridge, 42 S.W.3d 82 (Tenn. 2001), stating:

Under the abuse of discretion standard, a trial court’s ruling

“will be upheld so long as reasonable minds can disagree as to

propriety of the decision made.” State v. Scott, 33 S.W.3d 746, 752

(Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000).

A trial court abuses its discretion only when it “applie[s] an incorrect

legal standard, or reache[s] a decision which is against logic or

reasoning that cause[s] an injustice to the party complaining.” State

v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The abuse of discretion

standard does not permit the appellate court to substitute its judgment

for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920,

927 (Tenn. 1998).

Eldridge, 42 S.W.3d at 85.

There were several reasons why the Trial Court refused to grant a continuance. First,

the Attorney’s lead counsel never apprised the Trial Court that he would be unable to attend the

hearing and why he would be absent. More important, however, is the fact that the Attorney’s

motion for summary judgment was signed only by the Attorney himself. The Attorney was present

at the hearing and certainly was able to argue the motion that he had prepared and filed. The

Attorney had made the decision to be one of his attorneys of record, and we find no abuse of

discretion by the Trial Court when it treated him as such. Based on these facts, we cannot conclude

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that the Trial Court in any way abused its discretion when it refused to grant the Attorney’s request

for a continuance.

The next issue is the Attorney’s claim that the Client’s motion for summary judgment

should have been denied because the “documents relied on by the Appellee’s expert in forming her

opinions were not attached to her affidavit in support of the Motion for Summary Judgement as

required under Tennessee Rules of Civil Procedure Rule 56.06.” The documents the Attorney is

referring to are the Chancellor’s initial memorandum opinion and this Court’s first opinion, both of

which, obviously, were in the Trial Court’s file.

Interestingly, the Attorney filed his own affidavit in response to the Client’s motion

for summary judgment. In his affidavit, the Attorney refers to these same two documents, but they

are not attached to his affidavit either. More importantly, we can find nowhere in the record where

the Attorney brings this alleged deficiency to the Trial Court’s attention. In his response to the

Client’s motion for summary judgment, the Attorney makes no mention of the fact that these

documents were not attached to Bott’s affidavit. Likewise, the Attorney made absolutely no

reference to this alleged deficiency at the hearing on the motion for summary judgment. Because

this issue was raised for the first time on appeal, we consider it waived. See Crossley Const. Corp.

v. Nat. Fire Ins. Co. of Hartford, 237 S.W.3d 652, 656 (Tenn. Ct. App. 2007) wherein we stated:

Except for some limited exceptions not applicable here, we

will not consider issues, let alone claims, raised for the first time on

appeal. See City of Cookeville ex rel. Cookeville Reg’l Med. Ctr. v.

Humphrey, 126 S.W.3d 897, 905-06 (Tenn. 2004) (noting the general

rule that “questions not raised in the trial court will not be entertained

on appeal.” (quoting Lawrence v. Stanford, 655 S.W.2d 927, 929

(Tenn. 1983)). . . .

The Attorney’s third issue is his claim that the Trial Court abused its discretion in

refusing to consider the Attorney’s motion for summary judgment or the Attorney’s response to the

Client’s motion for summary judgment. Despite how this issue is phrased by the Attorney, in his

brief what the Attorney argues is that the Trial Court erred in denying his motion for summary

judgment and granting the Client’s motion. In a recent Supreme Court opinion, the Court granted

permission to appeal in order “to provide further guidance regarding the application of summary

judgment in this State.” Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 82 (Tenn. 2008). The

Court stated as follows:

The moving party is entitled to summary judgment only if the

“pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits ... show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Tenn. R. Civ. P. 56.04; accord

Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000). The

moving party has the ultimate burden of persuading the court that

there are no genuine issues of material fact and that the moving party

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is entitled to judgment as a matter of law. Byrd v. Hall, 847 S.W.2d

208, 215 (Tenn. 1993). Accordingly, a properly supported motion for

summary judgment must show that there are no genuine issues of

material fact and that the moving party is entitled to judgment as a

matter of law. See Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88

(Tenn. 2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585,

588 (Tenn. 1998). If the moving party fails to make this showing,

then “the non-movant’s burden to produce either supporting affidavits

or discovery materials is not triggered and the motion for summary

judgment fails.” McCarley, 960 S.W.2d at 588; accord Staples, 15

S.W.3d at 88.

The moving party may make the required showing and

therefore shift the burden of production to the nonmoving party by

either: (1) affirmatively negating an essential element of the

nonmoving party’s claim; or (2) showing that the nonmoving party

cannot prove an essential element of the claim at trial. Hannan v.

Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008); see also McCarley,

960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.5. Both methods

require something more than an assertion that the nonmoving party

has no evidence. Byrd, 847 S.W.2d at 215. Similarly, the

presentation of evidence that raises doubts about the nonmoving

party’s ability to prove his or her claim is also insufficient.

McCarley, 960 S.W.2d at 588. The moving party must either produce

evidence or refer to evidence previously submitted by the nonmoving

party that negates an essential element of the nonmoving party’s

claim or shows that the nonmoving party cannot prove an essential

element of the claim at trial. Hannan, 270 S.W.3d at 5. We have

held that to negate an essential element of the claim, the moving party

must point to evidence that tends to disprove an essential factual

claim made by the nonmoving party. See Blair v. W. Town Mall, 130

S.W.3d 761, 768 (Tenn. 2004). If the moving party is unable to make

the required showing, then its motion for summary judgment will fail.

Byrd, 847 S.W.2d at 215.

If the moving party makes a properly supported motion, then

the nonmoving party is required to produce evidence of specific facts

establishing that genuine issues of material fact exist. McCarley, 960

S.W.2d at 588; Byrd, 847 S.W.2d at 215. The nonmoving party may

satisfy its burden of production by:

(1) pointing to evidence establishing material factual

disputes that were over-looked or ignored by the

moving party; (2) rehabilitating the evidence attacked

by the moving party; (3) producing additional

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evidence establishing the existence of a genuine issue

for trial; or (4) submitting an affidavit explaining the

necessity for further discovery pursuant to Tenn. R.

Civ. P., Rule 56.06.

McCarley, 960 S.W.2d at 588; accord Byrd, 847 S.W.2d at 215 n.6.

The nonmoving party’s evidence must be accepted as true, and any

doubts concerning the existence of a genuine issue of material fact

shall be resolved in favor of the nonmoving party. McCarley, 960

S.W.2d at 588. “A disputed fact is material if it must be decided in

order to resolve the substantive claim or defense at which the motion

is directed.” Byrd, 847 S.W.2d at 215. A disputed fact presents a

genuine issue if “a reasonable jury could legitimately resolve that fact

in favor of one side or the other.” Id.

Because the resolution of a motion for summary judgment is

a matter of law, we review the trial court’s judgment de novo with no

presumption of correctness. Blair, 130 S.W.3d at 763. In addition,

we are required to review the evidence in the light most favorable to

the nonmoving party and to draw all reasonable inferences favoring

the nonmoving party. Staples, 15 S.W.3d at 89.

Martin, 271 S.W.3d at 83-84.

In our first Opinion in this case, we affirmed the Trial Court’s sanction prohibiting

the Attorney from presenting any testimony from experts. We remanded the case to the Trial Court

solely for a determination of the degree, if any, of the Attorney’s liability, having found that there

had already been a full and fair hearing on damages. On remand, the Client filed the expert affidavit

of Bott who stated that the Attorney’s conduct fell below the appropriate standard of care and was

the proximate cause of the Client’s damages. The Attorney did not (and could not) file an affidavit

addressing whether his conduct at issue fell below the standard of care. Instead, he filed his own

affidavit simply stating that a settlement had been reached prior to the alleged malpractice.8 The

issue of whether or not a settlement had been reached does not directly address the issue of whether

the Attorney’s conduct fell below the accepted standard of care. Rather, it concerns whether the

Client suffered any damages as a result of the malpractice. We, however, had foreclosed the issue

of damages in our first Opinion when we stated:

The parties had a full hearing on the subject of damages.

Therefore, the issue of damages is not an open issue on remand. The

percentage of these damages to be assessed against the Attorney will

8

No issue is raised as to whether this affidavit simply discussed facts or whether it set forth an expert opinion

in violation of the discovery sanction.

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depend upon the degree of the Attorney’s fault as determined by the

trier of fact.

Murray, 2007 WL 2437971, at *7 (emphasis added). In a footnote we went on to explain:

“Obviously, if comparative fault is not an issue on remand, the Attorney will be liable for all of the

damages, assuming his liability is shown by a preponderance of the evidence.” Id., at *7 n.5

(emphasis added).

The affidavit filed by the Attorney does not put liability or comparative fault at issue

as the affidavit could not be considered as expert testimony and is, therefore, relevant only to the

issue of the amount of the damages, an issue conclusively resolved in our first Opinion. The

undisputed material facts demonstrate that the Client’s motion for summary judgment was properly

supported by the expert affidavit of Bott which established that: (1) the Attorney’s conduct fell

below the appropriate standard of care; and (2) the Attorney’s conduct was the proximate cause of

the Client’s damages. This proof went unchallenged. The Attorney did nothing to place liability

or comparative fault at issue. Therefore, per the clear language in our first Opinion, “the Attorney

will be liable for all of the damages” because liability has been established by a preponderance of

the evidence. Id. Accordingly, the Trial Court correctly granted the Client’s motion for summary

judgment.

The final issue is whether the Trial Court correctly granted the Client’s motion for

Rule 11 sanctions. Tenn. R. Civ. P. 11.02 provides as follows:

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

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(4) the denial of factual contentions are warranted on the

evidence or, if specifically so identified, are reasonably based on a

lack of information or belief.

If there is a violation of this Rule, a court is authorized to impose sanctions which may include

attorney fees and other expenses. See Rule 11.03(2).

This court reviews the trial court’s decision to impose

sanctions under an abuse of discretion standard, Andrews v. Bible,

812 S.W.2d 284 (Tenn. 1991), and the trial judge’s decision is

entitled to great weight on appeal. Krug v. Krug, 838 S.W.2d 197

(Tenn. Ct. App. 1992).

Stigall v. Lyle, 119 S.W.3d 701, 706 (Tenn. Ct. App. 2003).

The Trial Court found that the whole purpose of the Attorney’s motion for summary

judgment was to contest the issue of damages, which, as stated numerous times already, was

foreclosed by this Court’s first Opinion. Therefore, the Trial Court found that the Attorney’s motion

for summary judgment was frivolous and filed in violation of Rule 11. We agree that the Attorney’s

motion for summary judgment did not address the one remaining issue on remand, i.e., the

Attorney’s liability. Because the Attorney’s motion for summary had no reasonable chance of

success, we cannot conclude that the finding of a Rule 11 violation was an abuse of discretion, and

that finding must be affirmed.9

The only issue raised by the Client is a request for attorney fees incurred on appeal.

Exercising our discretion, we decline to award any attorney fees incurred on appeal.

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Circuit

Court for Hamilton County solely for collection of the costs below. Costs on appeal are taxed to the

Appellant, Jes Beard, and his surety, for which execution may issue, if necessary.

__________________________________

D. MICHAEL SWINEY, JUDGE

9

The Attorney does not challenge the amount of damages awarded under Rule 11.

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