The opinion
IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
CORAZON R. JENKINS, )
)
Plaintiff/Appellee, ) Coffee Circuit No. 1419-D
)
VS. ) Appeal No. 01A01-9609-CV-00399
)
T. ARTHUR JENKINS, )
Defendant/Appellant.
)
) FILED
July 16, 1997
APPEAL FROM THE CIRCUIT COURT OF COFFEE COUNTY
AT MANCHESTER, TENNESSEE Cecil W. Crowson
THE HONORABLE JOHN W. ROLLINS, JUDGE Appellate Court Clerk
T. Arthur Jenkins, pro se
Manchester, Tennessee
Hollynn L. Hewgley
Shelbyville, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
HOLLY KIRBY LILLARD, J.
WILLIAM C. KOCH, J.
In this divorce case, T. Arthur Jenkins (“Husband”) appeals from an order of the trial
court which denied his motion to set aside a divorce decree pursuant to Tenn. R. Civ. P.
60.02(2) and 60.02(5) and ordered him to pay $637.50 to Corazon Jenkins (“Wife”) as
payment for Wife’s attorney fees arising from Husband’s filing of the motion. Husband
appeals the judgment of the trial court arguing that the trial court erred in denying his
motion to set aside the divorce decree. For the reasons stated hereafter, we affirm the
judgment of the court below.
PROCEDURAL HISTORY
The trial court awarded Wife a decree of absolute divorce from Husband and
dismissed Husband’s counter-complaint for divorce. The trial court held that the house in
the Phillippines was Wife’s separate property and awarded Wife $2,982.06, the value of
the insurance proceeds issued to Husband and Wife to repair Wife’s car which Husband
had appropriated. The trial court awarded both parties their separate vehicles, assessed
costs of the action against Husband, and denied Husband’s claim for alimony and attorney
fees.
Husband appealed the trial court’s decree of divorce to this Court, and this Court
affirmed the judgment of the trial court. Husband then appealed the decision of this Court
to the supreme court, and the supreme court denied Husband permission to appeal.
Husband next filed a motion in the trial court to set aside the decree of divorce
pursuant to Tenn. R. Civ. P. 60.02(2) and 60.02(5). In response to Husband’s motion to
set aside the divorce decree, Wife filed a motion for sanctions against Husband pursuant
to Tenn. R. Civ. P. 11.02 and 11.03, arguing that Husband’s motion was filed to harass,
to unnecessarily delay and/or to needlessly increase the cost of litigation. The trial court
denied Husband’s motion to set aside the divorce decree and granted Wife’s motion for
Rule 11 sanctions against Husband, ordering Husband to pay $637.50 to Wife as payment
for Wife’s attorney fees which arose from Husband’s filing of the motion.
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Husband now appeals to this Court arguing that the divorce decree was based upon
fraudulent allegations of Wife and that such decree should be set aside pursuant to Tenn.
R. Civ. P. 60.02(2) and 60.02(5).
LAW
Husband raises the following issues on appeal:
1) Whether the trial court erred in denying Husband’s motion to set aside the divorce
decree pursuant to Tenn. R. Civ. P. 60.02(2) and 60.02(5);
2) Whether the trial court erred in granting Rule 11 sanctions against Husband; and
3) Whether the trial court erred in dividing the parties’ marital property.
Rule 60.02 provides in part as follows:
On motion and upon such terms as are just, the court may
relieve a party or the party's legal representative from a final
judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(3) the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that a judgment should have prospective
application; or (5) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1) and (2) not more than
one year after the judgment, order or proceeding was entered
or taken.
Tenn. R. Civ. P. 60.02.
A motion for relief from a judgment based upon Tenn. R. Civ. P. 60.02 addresses
the sound discretion of the trial court. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97
(Tenn. 1993); Hopkins v. Hopkins, 572 S.W.2d 639, 640 (Tenn. 1978); Ellison v. Alley, 902
S.W.2d 415, 418 (Tenn. Ct. App. 1995). Our scope of review on appeal is to determine
whether the trial court abused its discretion. Underwood, 854 S.W.2d at 97; Banks v.
Dement Const. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991); Toney v. Mueller Co., 810
S.W.2d 145, 147 (Tenn. 1991); Travis v. City of Murfreesboro, 686 S.W.2d 68, 70 (Tenn.
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1985); John Barb, Inc. v. Underwriter’s at Lloyd’s of London, 653 S.W.2d 422, 424 (Tenn.
Ct. App. 1983).
Rule 60.02 “was designed to strike a proper balance between the competing
principles of finality and justice.” Banks, 817 S.W.2d at 18; Jerkins v. McKinney, 533
S.W.2d 275, 280 (Tenn. 1976). Regarding the purpose of this rule, the supreme court in
Toney v. Mueller Co. stated:
Rule 60.02 is not meant to be used in every case in which the
circumstances of a party change after the entry of a judgment
or order. Nor is the rule a mechanism for use by a party who
is merely dissatisfied with the result of a particular case. Rule
60.02 is meant to be used only in those few cases that meet
one or more of the criteria stated. As recently stated by this
Court, "Rule 60.02 acts as an escape valve from possible
inequity that might otherwise arise from the unrelenting
imposition of the principle of finality imbedded in our
procedural rules." Thompson v. Firemen's Fund Ins. Co., 798
S.W.2d 235, 238 (Tenn.1990). Because of the importance of
this "principle of finality," the "escape valve" should not be
easily opened.
Toney, 810 S.W.2d at 146.
To set aside a judgment under Rule 60.02, the burden of proof is cast upon the
movant, and there must be proof of the basis on which relief is sought. Banks, 817 S.W.2d
at 18; Trice v. Moyers, 561 S.W.2d 153, 156 (Tenn. 1978); Hopkins, 572 S.W.2d at 640;
Brumlow v. Brumlow, 729 S.W.2d 103, 106 (Tenn. Ct. App. 1986); Jefferson v. Pneumo
Servs. Corp., 699 S.W.2d 181, 186 (Tenn. Ct. App. 1985); Rhea v. Meadowview Elderly
Apartments, Ltd., 676 S.W.2d 94, 95 (Tenn. Ct. App. 1984). Husband did not set forth
facts and circumstances sufficient to justify invocation of the extraordinary relief afforded
by Rule 60.02 either in his motion for relief from the judgment or in his accompanying
affidavit. The trial judge considered the arguments of counsel, taking into account the
affidavit submitted in support of the motion and the entire record, and found that Rule
60.02 relief was not merited under the circumstances. Because the record does not
support Husband’s claim that denial of the motion was an abuse of discretion, we affirm
the decision of the trial court denying Husband’s motion to set aside the divorce decree.
Rule 11 of the Tennessee Rules of Civil Procedure requires that every pleading,
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written motion or other paper be signed by at least one attorney of record, or, if the party
is not represented by an attorney, signature of the party is required. The signature of the
attorney or party certifies that
(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 reasonably based
on a lack of information or belief.
Tenn. R. Civ. P. 11.02.
The certification which results from the attorney’s signature on a motion, pleading
or other document is directed at the three substantive prongs of Rule 11: its factual basis,
its legal basis and its legitimate purpose. Andrews v. Bible, 812 S.W.2d 284, 287 (Tenn.
1991). A signature signifies to the court that the signer has read the pleading, has
conducted a reasonable inquiry into the facts and the law, is satisfied that the document
is well-grounded in both, and is acting without any improper motive. Id.
If a pleading is signed in violation of Rule 11.02, the court may impose an
appropriate sanction upon the attorney, law firm, party that has violated the rule, or that
person responsible for the violation. Tenn. R. Civ. P. 11.03. The sanction imposed for
violation of this rule shall be limited to what is sufficient to deter repetition of such conduct
or comparable conduct by others similarly situated. Id. The amount of the sanction must
be supported by proof in the record as to the basis for the trial court’s determination.
Wright v. Quillen, 909 S.W.2d 804, 815 (Tenn. Ct. App. 1995).
In deciding whether an attorney’s conduct is sanctionable, the test to be applied is
one of objective reasonableness under all the circumstances, and the reasonableness of
the attorney’s belief must be assessed in light of the circumstances existing at the time the
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document in question was signed. Andrews, 812 S.W.2d at 288; Krug v. Krug, 838 S.W.2d
197, 205 (Tenn. Ct. App. 1992); See also Business Guides v. Chromatic Communications
Ent., 111 S.Ct. 922, 929 (1991); Cooter & Gell v. Hart Marx Corp., 110 S.Ct. 2447, 2454
(1990).
In the present case, we agree with the trial court’s imposition of Rule 11 sanctions
against Husband for his filing of the motion and affidavit in support of setting aside the
divorce decree pursuant to Tenn. R. Civ. P. 60.02 and 60.02(5). Husband’s affidavit in
support of the motion includes irrelevant, specious and debasing allegations against Wife
which provide no material support for the motion. Because the trial court’s imposition of
sanctions against Husband was reasonable under all the circumstances, we affirm the trial
court’s order.
Finally, Husband argues that the trial court erred in dividing the parties’ marital
property. Specifically, Husband argues that the trial court erred in finding that the house
in the Phillippines was Wife’s separate property. In support of his motion to set aside the
divorce decree, Husband submitted the affidavit of Elizabeth Cassion, a former wife of
Husband, which stated that Wife purchased the house in the Phillippines during the parties’
marriage.
The principle of finality is a principle of law deeply ingrained in the holdings of our
Court. This principle has been repeated in numerous cases where we have addressed the
issue of the justification of a new trial based upon newly discovered evidence. To justify
a new trial based upon newly discovered evidence it must be shown that the new evidence
was not known to the moving party prior to or during trial and that it could not have been
known to him through the exercise of reasonable diligence. Chicago Guar. Fund Life Soc'y
v. Ford, 58 S.W. 239, 240 (Tenn. 1900); Martin v. Nance, 40 Tenn. 649 (1859); Seay v.
City of Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App. 1983); Frazier v. McFerren, 402
S.W.2d 467, 471-72 (Tenn. Ct. App. 1964); Monday v. Millsaps, 264 S.W.2d 6, 23 (Tenn.
Ct. App. 1953); Bean v. Commercial Sec. Co., 156 S.W.2d 338, 347 (Tenn. Ct. App. 1941);
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Blue Bird Coaches, Inc. v. McGregor, 14 Tenn.App. 23 (1931); Wilkerson v. Joyce-Watkins
Co., 5 Tenn.App. 356 (1927); Tennessee Eastern Elec. Co. v. Link, 6 Tenn.App. 617
(1926). Thus, an attorney has a duty to investigate prior to trial, Demonbreun v. Walker,
63 Tenn. 199 (1874); Tabler v. Connor, 60 Tenn. 195 (1873); Tipton v. Smith, 593 S.W.2d
298, 302 (Tenn. Ct. App.1979); Brown v. University Nursing Home, Inc., 496 S.W.2d 503,
510 (Tenn. Ct. App.1972); City of Knoxville v. Ryan, 13 Tenn.App. 186 (1929), to call
appropriate witnesses at trial, Zirkle v. Stegall, 43 S.W.2d 192, 193 (Tenn. 1931); Ware v.
State, 67 S.W. 853 (Tenn. 1902); Wilson v. Nashville, C. & St. L. Ry., 65 S.W.2d 637, 644
(Tenn. Ct. App. 1933); Stafford v. Stafford, 1 Tenn.App. 477 (1926), to fully examine all
witnesses, Noel v. McCrory, 47 Tenn. 623 (1868); Luna v. Edmiston, 37 Tenn. 159 (1857);
Darnell v. McNichols, 122 S.W.2d 808, 816 (Tenn. Ct. App. 1938), and to secure evidence
of which counsel becomes aware at trial. Bradshaw v. Holt, 292 S.W.2d 30, 35 (Tenn.
1956); Southwestern Transp. Co. v. Waters, 79 S.W.2d 1028, 1031 (Tenn. 1935);
Whitfield v. Loveless, 1 Tenn.App. 377 (1925). The client is also under a duty to act with
due diligence in securing evidence for trial. Hayes v. Cheatham, 74 Tenn. 1 (1880);
Harbour v. Rayburn, 15 Tenn. 432 (1835); Puckett v. Laster, 405 S.W.2d 35, 41 (Tenn. Ct.
App. 1965); Spence v. Carne, 292 S.W.2d 438, 454 (Tenn. Ct. App. 1954).
Because prior to trial Husband could have discovered the date Wife purchased the
house in the Phillippines and because prior to trial Husband knew the witness whose
affidavit he attached to his motion to set aside the divorce decree, we affirm the trial court’s
division and labeling of the parties’ marital and separate property.
The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to the
Appellant for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
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LILLARD, J.
KOCH, J.
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