Dianna Dawn Mcgahey v. Davis Lee Mcgahgey

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Briefs August 27, 2003

DIANNA DAWN MCGAHEY v. DAVIS LEE MCGAHGEY

A Direct Appeal from the Chancery Court for Carroll County

No. 02-DR-0084 The Honorable Ron E. Harmon, Judge

No. W2003-01051-COA-R3-CV - Filed October 1, 2003

This appeal involves a motion for sanctions pursuant to Rule 11, Tenn. R. App. P. Husband

and Wife were scheduled for a contested divorce hearing. On the morning of the hearing, Husband

and Wife negotiated a settlement and Judgment was subsequently entered dissolving the parties’

marriage and incorporating their Marital Dissolution Agreement and Permanent Parenting Plan.

Thereafter, Wife obtained new counsel and filed a Motion to Alter or Amend the Judgment. As the

basis for her Motion, Wife alleged that she had not received proper representation from her former

attorney. Husband filed a Motion for Rule 11 Sanctions. Following a hearing, the trial court denied

Wife’s Motion to Alter or Amend and granted Husband’s Motion for Rule 11 Sanctions. Wife

appeals. We affirm in part, reverse in part.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,

Reversed in Part

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER, J., joined.

Rosella M. Shackelford, Paris, For Appellant, Dianna Dawn McGahey

Steven L. West, McKenzie, For Appellee, Davis Lee McGahey

OPINION

On May 9, 2002, Dianna McGahey (“Plaintiff,” “Wife,” or “Appellant”), represented by her

attorney Vicki H. Hoover, filed a Complaint for Divorce against Davis McGahey (“Defendant,”

“Husband,” or “Appellee). The Complaint alleged grounds of irreconcilable differences as well as

inappropriate marital conduct on the part of Husband. In addition to her Complaint, Wife filed a

Temporary Parenting Plan for the parties’ minor children, and an Affidavit in support of the

Temporary Parenting Plan. Wife also filed for a restraining order against Husband to prevent

dissipation of the marital assets, along with Notice and Motion for Default Judgment. A Restraining

Order was entered by the trial court on May 9, 2002. Wife filed a petition for child support and

pendente lite spousal support, which was set for hearing on May 21, 2002.

On June 4, 2002, Husband filed an Answer and Counter-Complaint along with a Temporary

Parenting Plan. Husband’s Answer and Counter-Complaint was served on Wife on May 21, 2002

and she filed an Answer to Counter Complaint and an Order for Bill of Particulars on May 24, 2002.

On June 5, 2002, Husband filed his Motion for Bill of Particulars and same was set for hearing on

August 5, 2002. On June 5, 2002, an Agreed Order was entered, which, inter alia, set out a shared

parenting plan with no child support obligations by either party.

On June 27, 2002, Husband filed a Motion for Contempt, which alleged, in pertinent part,

that Husband had proof that Wife had “been staying on an overnight basis with a paramour and in

fact had been residing with this individual with the children present.” This Motion for Contempt

was set for hearing on August 7, 2002 but was subsequently moved to August 5, 2002, to be heard

with the trial on the divorce. Prior to the trial, the parties negotiated a settlement, which included

a Marital Dissolution Agreement (“MDA”) and a Permanent Parenting Plan. A Judgment was

entered on August 5, 2002, which dissolved the marriage and incorporated by reference the parties’

MDA and Permanent Parenting Plan.

On August 15, Ms. McGahey, by new counsel, Rosella M. Shackelford, filed a “Verified

Motion for Alteration or Amendment of Judgment or in the Alternative, Motion for New Trial (the

“Motion”), which reads, in relevant part, as follows:

4. Attached hereto and made a part hereof is an affidavit of the

moving party wherein she asserts under oath that there were material

misrepresentations to her on the part of her attorney and that her

attorney did not perform adequately due to her possible impairment

and/or inability to function due to emotional distress and that as a

result of such impairment and/or inability to function, there was

ineffective representation of counsel on her behalf. Furthermore,

affiant therein states that it is to her best knowledge and belief that

counsel failed to adequately prepare for trial due to her possible

impairment and conflicts of time, and because of the affiant’s reliance

on her attorney’s expertise, was wholly and completely deprived of

her opportunity of substantial justice and fair play on the day of

Court.

5. Affiant further states and believes that had the Court heard the

evidence and testimony of those witnesses present in Court on the day

that the judgment would not have been entered as it was, including

evidence known to the counsel for the affiant that there were material

allegations of sexual molestation against the father by one of the

children of the marriage so as to render him unfit as a parent, which

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is [in] direct conflict of the permanent parenting plan approved by the

Court.

6. Affiant further states and believes that her counsel therein did not

fully advise her of all of the rights she had before entering into the

Marital Dissolution Agreement and the Permanent Parenting Plan.

There was undue coercion and duress exerted upon the affiant

because of the failure of the attorney to adequately advise her of the

rights.

7. The Permanent Parenting Plan, as incorporated into the Marital

Dissolution Agreement, and approved by the Court does not meet the

best interests of the children standards as set forth by statute. The

moving party herein asserts that had she been fully and competently

represented by counsel on the day of the hearing, she would not have

entered into any such agreement and she further asserts that there has

been ineffective representation of counsel.

Ms. McGahey’s allegations against her counsel are more specifically addressed in her

Affidavit in support of the above Motion. The Affidavit reads, in relevant part, as follows:

2. That I retained Vicki H. Hoover as my counsel for the purposes of

obtaining a dissolution of marriage on or about May, 2002.

3. That during that same period of time, Vicki H. Hoover was

actively involved in the election campaign for her husband and law

partner Michael Ainley.

4. That on August 1, 2002, her husband and law partner was defeated

in such election.

5. That subsequent thereto, on August 5, 2002, the trial in my case

was set for final contested hearing.

6. That on or about June 21, 2002, by letter from Steve West,

opposing counsel, my attorney was advised of a Motion for Contempt

against me. I did not receive notice of this motion until on or about

July 18, 2002, and that I was unaware of the nature of the allegations

against me until then. That at all times subsequent thereto I denied

the truth of such allegations and demanded to see such proof as was

supposed to be available and I provided evidence and witnesses as to

such facts and circumstances as I know to be the truth.

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7. That during a conversation on August 5, 2002, I overheard Steve

West say directly to my attorney that there was a videotape made at

Tony Miles’ house.1

8. That I did not have any opportunity to speak with my attorney until

after 11:00 am on August 5, 2002. That during such conversation,

my witnesses, Kim Rich and Janelle Hainley (sic) were present. I was

again led to believe there existed a videotape of me with another man

that was damaging to my case. I have never seen such a videotape,

nor can one exist, because there were never any facts or

circumstances to support such an allegation. My attorney also

admitted in the presence of the witnesses that she had not seen such

videotape.

9. My attorney advised me at this time that if I didn’t accept the offer

of settlement wherein the children were to be split up, that I would

lose both of my children at trial.

10. I did not understand nor did I comprehend that I could have asked

for a continuance, that I could have asked to speak to another

attorney, nor did I have time to consult with other individuals for their

guidance and support.

11. My attorney was very distracted and angry during the period of

time that I was with her. She seemed unable to focus on my case.

However, since I had hired her, I believed her to be working on my

behalf.

12. When I left her office, I heard her husband and law partner,

whom I know to be Michael Ainley, ask her in a very inappropriate

manner “Are you still going to take this case.” And the response to

his statement was “Yeah” but was made in such a manner and fashion

that I believed that she did not want to handle the case any further.

13. That my witnesses were present and available, but my attorney

did not discuss the facts or circumstances of their testimony.

14. It is my belief and opinion that my counsel of record at the time

was impaired to the extent that she could not adequately represent my

best interests at the time.

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According to the record, Tony M iles is alleged to be Ms. McG ahey’s paramour.

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15. That as a result of the ineffective representation of counsel, I

believe that my case was prejudiced, and that I was denied substantial

justice and fair play had the Court been able to have heard the

evidence that I had and the testimony of my witnesses.

On September 25, 2002, Mr. McGahey filed a “Motion for Sanctions Under Rule 11

Tennessee Rules of Civil Procedure” (the “Motion for Sanctions”). The Motion for Sanctions was

supported by numerous Affidavits, including those of Vicki H. Hoover, Meredith Diaz, and Laura

Powell. All of the supporting Affidavits disputed the factual allegation made by Ms. McGahey in

her Motion and Affidavit. The Motion for Sanctions states, in pertinent part, as follows:

4. Further, no material allegations of sexual molestation against this

Defendant was ever made known or alleged as any part of the divorce

pleadings and the Mother agreed to a Temporary Parenting Plan

wherein the parties shared custody on a week to week basis of the two

minor children.

5. The Parties negotiated for much of the morning on August 5, 2002

and the case was not resolved until after the Court took a lunch break

on that day.

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8. Attached herewith is the copy of the private investigator’s report

and a copy of the videotape made available to the Honorable Vicki

Hoover on August 5, 2002. The previous temporary parenting plan

provided that both parties were specifically ordered not to have a

paramour in the presence of the minor children on an overnight basis.

A Contempt of Court Motion was pending against the Mother at the

time that the agreement was entered into and that Motion was

dismissed upon the agreement of the parties as to the Divorce.

9. The specific conduct which violates Rule of Civil Procedure 11.02

is as follows:

a. There was not a reasonable inquiry under the circumstances in that

the Honorable Vicki Hoover was not contacted by the attorney for the

Mother in order to fully make an inquiry. Such an inquiry is not only

reasonable by also necessary under the circumstances.

b. The Verified Motion For Alteration Or Amendment of Judgment

Or In the Alternative, Motion for New Trial is being presented for an

improper purpose, namely to cause unnecessary delay which is

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evidenced by the matter being attempted to be delayed at the request

of Mother until December 4, 2002.

c. The legal remedy as sought by the Mother is not warranted by

existing law or is a frivolous argument for the extension, modification

or reversal of existing law or the establishing of new law if said law

exists.

d. The allegations and factual contentions do not have evidentiary

support, and are not likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery.

e. Further, the relief as set forth herein is not consistent with the

pleadings and gives further rise to the basis of the Motion to initiate

delay and the fact that the Motion is frivolous. The Mother on one

hand alleges sexual abuse allegations against the Father but asks the

Court to reinstate the terms and condition of the Temporary Parenting

Plan entered into on May 9, 2002, which calls for split custody which

would result in daughter being with the Father more than she is now

with the Father.

Ms. McGahey’s Motion and Mr. McGahey’s Motion for Sanctions were heard

simultaneously on December 4, 2002. At the hearing, proof was presented concerning Ms. Hoover’s

alleged impairment on the day that the settlement was reached. The proof consisted of Ms.

McGahey’s testimony concerning Ms. Hoover’s alleged behavior on the day of the settlement.

Janelle Hanley, who was present on the day of the settlement, also testified that she was acquainted

with Ms. Hoover because, as a waitress in Paris, TN, Ms. Hanley had waited on Ms. Hoover several

times and had also seen her at certain social functions in the community. Ms. Hanley stated that Ms.

Hoover acted “like she [Ms. Hoover] was–she was either really upset about something or she was

worried or she had been up because she wasn’t very friendly, very little to say or anything.”

At the close of all proof, the trial court granted Husband’s Motion for Sanctions and denied

Wife’s Motion. The amount of sanctions was reserved until after a hearing held on January 22,

2003. On February 18, 2003, the trial court entered an Order awarding Mr. McGahey sanctions in

the amount of $2,435.00 as attorney’s fees. On February 26, 2003, a Motion to Stay Execution

Pending Appeal was filed by Rosella M. Shackelford as an intervening Petitioner and bond was

posted. On February 27, 2003, an Order was entered to stay the execution of judgment pending

appeal.

Wife and her counsel appeal and raise the following issues, as stated in the brief:

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1. Whether the court erred in not allowing Plaintiff’s attorney an

opportunity to respond to the motion for sanctions as it was set to be

heard on December 4, 2002;

2. Whether the court erred in filing an order absent specific findings

of fact in granting defendant’s motion for sanctions;

3. Does the record on appeal reflect that the attorney for plaintiff met

the standard of reasonable pre-filing investigation of the fact and

where there was no bad faith and no conduct of a reckless manner

[sic];

4. Whether the affidavit of Michael L. Ainley, attached as an exhibit

to the Defendant’s Motion for Sanctions, in which the affiant

breached confidentiality regarding a complaint to the Board of

Professional Responsibility resulted in prejudice of the court.

Rule 11, Tenn. R. Civ. P., provides, in pertinent part, as follows:

Rule 11.01 Signature

Every pleading, written motion, and other paper shall be

signed by at least one attorney of record in the attorney’s individual

name...

Rule 11.02 Representations to Court

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 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;

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(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 reasonably based on a

lack of information or belief.

Rule 11.03 Sanctions

If, after notice and a reasonable opportunity to respond, the

court determines that subdivision 11.02 has been violated, the court

may, subject to the conditions stated below, impose an appropriate

sanction upon the attorneys, law firms, or parties that have violated

subdivision 11.02 or are responsible for the violation.

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(3) Order. When imposing sanctions, the court shall describe

the conduct determined to constitute a violation of this rule and

explain the basis for the sanction imposed.

At the close of all proof presented at the December 4, 2002 hearing, the trial court made the

following, relevant, statements from the bench:

The Court finds the petition to alter or amend should be

overruled. This case was settled with advice of counsel. Counsel

was competent at the time. That the allegations in the petition to alter

or amend are unfounded by proof and that sanctions will be imposed.

Attorney’s fees will be awarded to Mr. West, reasonable fees.

The trial court’s Order entered February 18, 2003 reads, in relevant part, as follows:

Upon Motion filed by the Plaintiff for Alteration or

Amendment of Judgment or in the alternative Motion for New Trial

and upon Motion of the Defendant for Sanctions pursuant to Rule 11

of the Tennessee Rules of Civil Procedure; a hearing of the cause

before the Court on the 4th day of December, 2002, and the Court

being otherwise sufficiently advised;

IT IS HEREBY ORDERED AND ADJUDGED:

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1. The Motion of the Plaintiff is hereby denied and overruled.

2. The Motion of the Defendant for Rule 11 Sanctions is

hereby granted with the Defendant to recover his reasonable attorney

fees, costs, and expenses. The amount of which is reserved. These

sanctions are ordered as against the Plaintiff and her attorney jointly

and severally.

As cited supra, Rule 11.03(3), Tenn. R. Civ. P., clearly requires the trial court to “describe

the conduct determined to constitute a violation of [Rule 11] and explain the basis for the sanction

imposed.” Here, the trial court states that the case “was settled with advice of counsel,” and that “the

allegations in the petition to alter or amend are unfounded by proof.” While the trial court found that

there was not sufficient proof to show that Ms. Hoover was incompetent, the fact that Ms.

Shackelford lost the case does not constitute a basis for Rule 11 sanctions. The trial court failed to

make a specific finding that Ms. Shackelford violated Rule 11 by failing to investigate the facts upon

which the Motion was made and by failing to have evidentiary support for the allegations. Such

failure to explain is in direct violation of Rule 11.03(3), Tenn.R. Civ. P. Therefore, we reverse the

Order of the trial court to the extent that it imposes Rule 11 sanctions upon the Appellant and her

counsel. We pretermit Appellant’s remaining issues.

Although Appellee raises the issue of whether the trial court erred in overruling Appellant’s

Motion to Alter or Amend, we note that Appellant has not raised this issue in her brief. Therefore,

Appellee’s issue is a non-issue.

For the foregoing reasons, we reverse the Order of the trial court imposing Rule 11 Sanctions

upon Appellant and her counsel. We affirm the Order in all other respects . Costs of this appeal are

assessed against the Appellee, Davis Lee McGahey.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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