Jeremy David Parvin v. Jackie LaDean Newman

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 4, 2016

JEREMY DAVID PARVIN v. JACKIE LaDEAN NEWMAN

Appeal from the Circuit Court for Hamilton County

No. 15C849 L. Marie Williams, Judge

No. E2016-00549-COA-R3-CV-FILED-DECEMBER 9, 2016

In this post-divorce action, the husband filed a complaint alleging abuse of process on the

part of the wife during the divorce proceedings. He asserted that prior to the parties‟

stipulation to grounds for divorce and presentation of a settlement agreement,

subsequently adopted by the trial court in a final divorce judgment, the wife had filed a

motion for contempt against him with the intent to harass him, cause him to incur

unnecessary expense, and “weaken his resolve” to litigate for more favorable terms. The

wife filed a motion to dismiss this action, which the trial court treated as a motion for

summary judgment because the wife had requested that the court consider the record of

the divorce proceedings. Following a hearing, the trial court granted summary judgment

in favor of the wife upon finding, inter alia, that the husband‟s complaint was barred by

the doctrine of res judicata. Upon the wife‟s subsequent motion, the trial court imposed

a sanction against the husband‟s counsel, pursuant to Tennessee Rule of Civil Procedure

11.02, in the amount of $9,745.25, comprising the wife‟s reasonable attorney‟s fees and

expenses incurred in defending against this action. The husband appeals. Discerning no

reversible error, we affirm. We deny the wife‟s request for attorney‟s fees on appeal.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., joined. ANDY D. BENNETT, J., filed a separate opinion, concurring

in part and dissenting in part.

Phillip L. Davidson, Brentwood, Tennessee, for the appellant, Jeremy David Parvin.

John P. Konvalinka and Katherine H. Lentz, Chattanooga, Tennessee, for the appellee,

Jackie LaDean Newman.

OPINION

I. Factual and Procedural Background

The plaintiff, Jeremy David Parvin (“Husband”), initially filed a complaint for

divorce in the Hamilton County Circuit Court (“trial court”) against the defendant, Jackie

LaDean Newman (“Wife”), on July 9, 2012. Although only a portion of the divorce case

record is before this Court on the instant appeal, Husband has agreed with Wife‟s

characterization of the proceedings as entailing “numerous hearings,” including a three-

day hearing before a special master in May and June 2013. The trial court ultimately

entered a Final Judgment of Divorce (“divorce judgment”) on April 28, 2015, granting

the parties a divorce on stipulated grounds, pursuant to Tennessee Code Annotated § 36-

4-129 (2014), and adopting the parties‟ settlement agreement.

During the pendency of the divorce proceedings, Wife filed a “Motion to Impose

Sanctions for Contempt,” on July 17, 2014, alleging that Husband had violated various

provisions of orders previously entered by the trial court on January 4, 2013; April 22,

2013; and April 23, 2014. Although these prior orders are not in the record before us,

copies of the divorce judgment and Wife‟s July 2014 contempt motion were attached to

various pleadings in this action and are included in the record on appeal. In her 2014

contempt motion, Wife alleged, inter alia, that Husband had willfully failed to (1) make

mortgage payments on the marital residence, (2) pay full amounts ordered on a second

piece of real property, (3) keep the marital residence in good marketable condition, (4)

notify Wife when he filed an insurance claim regarding flood damage to the marital

residence, (5) pursue sale of the marital residence, (6) pay fees for the special master, and

(6) provide complete copies of bank account statements to Wife. Wife sought sanctions

against Husband, “including but not limited to a term of confinement in the Hamilton

County jail or workhouse.” Husband filed no response to Wife‟s July 2014 motion for

contempt, and the motion was pending at the time of the divorce judgment‟s entry.

During the divorce proceedings, Husband also filed pleadings seeking findings of

contempt against Wife. Although these pleadings are not in the appellate record, it is

undisputed that Husband filed a “Motion to Impose Sanctions for Contempt” against

Wife on April 11, 2013. It is also undisputed that the trial court in its April 22, 2013

order previously had found each party respectively in contempt of court for violating

provisions of the court‟s orders entered prior to that time. Husband subsequently filed an

“Amended Motion to Impose Sanctions for Contempt” against Wife on June 12, 2014.

Husband does not dispute that as with Wife‟s July 2014 motion for contempt, Husband‟s

June 2014 amended motion for contempt was pending at the time of the divorce

judgment‟s entry in April 2015.

2

In the divorce judgment, the trial court set forth the parties‟ announcement of their

settlement as follows in pertinent part:

This cause came on for hearing . . . upon the complaint for divorce

filed by [Husband], the answer and counter-complaint filed by [Wife], the

answer to the counter-complaint, the agreements and stipulations of the

parties, the testimony of a party as to the terms of this Final Judgment of

Divorce, and the entire record of this cause.

It was announced to the Court that the parties had stipulated, as

provide[d] by Tenn. Code Ann. § 36-4-129, that grounds for divorce exist

as alleged in both the original complaint and in the counter-complaint. It

was further announced to the Court that the parties had reached an

agreement to settle and compromise all of the matters in dispute between

them and that they have freely, voluntarily and knowingly entered into an

agreement that is reflected by the terms and provisions of this Final

Judgment of Divorce.

The Court adopts the stipulation of the parties as finding of fact that

grounds for divorce have been proven to the satisfaction of the Court, and

the Court adopts the settlement agreement of the parties as the final

judgment in this case.

The settlement memorialized in the divorce judgment included, inter alia, an

award to Husband of “all such right, title and interest” in fifteen pieces of real property

separate from the former marital residence. As pertinent to the issues raised in Wife‟s

motion for contempt, the divorce judgment provided:

There is currently being held either at Cornerstone Community Bank

or in the registry of the Court the approximate sum of $86,060 representing

insurance proceeds related to a casualty loss claim on the former marital

residence at 901 Channel View Lane, a lien has been previously declared

by the Court against those funds to secure payment of the fees of the

Special Master . . . and the fees and expenses of the attorneys of record for

the parties in this case pursuant to Tenn. Code Ann. § 23-2-102, and the

Court will enter a separate order for the disbursement of those funds in the

following order: first to the payment of the final statement of the Special

Master . . . and the balance of the funds one-half to Grant, Konvalinka and

3

Harrison and one-half to Lawrence and Lawrence, PLLC1 to the extent of

the indebtedness owed to them with any remainder payable to [Wife].

(Paragraph numbering omitted.)

On July 10, 2015, Husband, acting through his current counsel, commenced the

instant action in the trial court by filing a complaint alleging that Wife‟s purpose in filing

her July 2014 contempt motion had been to harass him, cause him to incur unecessary

expenses to defend the motion, “weaken his resolve” to continue litigation of the divorce,

and “settle for terms favorable to [Wife].” Husband requested compensatory damages for

“emotional distress” and attorney‟s fees incurred in defense of the contempt motion. He

also requested attorney‟s fees and costs for the instant action.

On September 23, 2015, Wife filed a motion to consolidate this action with the

divorce case, pursuant to Tennessee Rule of Civil Procedure 42.01, and to dismiss the

instant action, pursuant to Tennessee Rule of Civil Procedure 12.02(6), for failure to state

a claim upon which relief could be granted. She also requested attorney‟s fees and costs

pursuant to Tennessee Code Annotated § 20-12-119(c) (Supp. 2016) (providing for an

award of attorney‟s fees and costs upon the grant of a Rule 12.02(6) motion to dismiss).

Husband filed a response on October 7, 2015, objecting to the motion to consolidate and

asserting that Wife had improperly requested in her motion to dismiss that the trial court

consider motions outside the pleadings.

The trial court entered an order on December 4, 2015, finding that Wife‟s motion

to dismiss must be treated as a motion for summary judgment because Wife had

requested that the court review the record of the divorce proceedings. See Tenn. R. Civ.

P. 12.02 (“If, on a motion asserting the defense numbered (6) to dismiss for failure to

state a claim upon which relief can be granted, matters outside the pleadings are

presented to and not excluded by the court, the motion shall be treated as one for

summary judgment . . . .”). Reserving Wife‟s motion to consolidate, the court allowed

the parties thirty days to comply with the requirements of Tennessee Rule of Civil

Procedure 56.

Wife subsequently filed a motion for summary judgment on January 4, 2016,

together with a memorandum of law and statement of undisputed facts. She asserted that

Husband‟s complaint should be dismissed on the basis of res judicata and because “the

undisputed facts negate the essential elements of [Husband‟s] claims for abuse of process

. . . .” Husband filed a response on January 26, 2016, clarifying, inter alia, that he was

“not seeking to set aside in any manner the divorce decree” and emphasizing that he was

1

Husband was represented during the divorce proceedings by attorney Phillip C. Lawrence.

4

seeking damages for emotional distress. Husband concomitantly filed a statement of

undisputed facts in which he agreed with Wife‟s procedural history of the divorce

proceedings. He also filed a “Statement of Disputed Facts,” essentially asserting points

of his argument, and an affidavit he had executed on January 19, 2016.

In his affidavit, Husband stated in relevant part:

I took my former wife‟s motion to impose sanctions for contempt

very seriously. Prior to filing this motion, she had me arrested for domestic

violence, which was dismissed. All total, I was arrested twice, once at

work, both charges were dismissed, which cost me money to defend and

caused me great emotional distress.

She filed the motion on July 17, 2014. It was never set for hearing.

But I felt like it was being held over my head during the rest of the

litigation. My wife never offered to dismiss it. I felt like it was being used

as a threat against me. The things she said I did in her motion were not

true. But I felt like she was using this threat to cause me to weaken my

resolve to settling this case on terms more favorable to her.

I wanted the divorce settled. I was tired of the litigation ruining my

life. It was costing a great deal of money for attorneys fees, and the stress

was unbearable. I agreed to the divorce terms to resolve this matter. The

thought of continuing on, claiming that her motion was without merit and

litigating it, was just too harmful to me. And afterwards, I did not want to

do anything that would effect [sic] the finality of the divorce.

I agreed to many of the terms of the settlement because I did not

want to have to defend myself against charges that might land me in jail. I

did not do the things she claimed in the motion, but I simply could not take

the chance of being incarcerated and the potential impact on my ability to

earn a living.

If I had amended my divorce complaint to allege abuse of process it

would have hardened [Wife‟s] position toward settlement. She would have

accused me of abuse of process by attempting to force her into an

unequitable [sic] settlement agreement. We would never have settled the

divorce and spent huge sums of money on attorneys fees. She would have

hampered my ability to litigate the abuse of process claim, holding the

settlement of the divorce case over my head and forcing me to dismiss the

5

claim. This is why I wanted to wait until the divorce settlement was final to

file this case.

(Paragraph numbering omitted.)

On February 12, 2016, Wife filed a response to Husband‟s statement of disputed

facts, objecting to the statement as argumentative and speculative. She concomitantly

filed her own affidavit, asserting, inter alia, that the June 13, 2012 arrest to which

Husband refers in his affidavit resulted in his conviction for resisting arrest following a

domestic disturbance at the marital residence. As Wife noted, Husband‟s conviction was

subsequently affirmed by the Court of Criminal Appeals. See State v. Jeremy D. Parvin,

No. E2014-01569-CCA-R3-CD, 2015 WL 2128585, at *1 (Tenn. Crim. App. May 6,

2015) (explaining also that prior to trial, the State voluntarily dismissed an indictment

against Husband for two counts of domestic assault), perm. app. denied (Tenn. Aug. 13,

2015).

Wife attached to her affidavit a copy of an electronic mail message, dated

November 4, 2014, from Husband to Wife, with the subject heading, “Stalling.” In the

message, Husband stated in relevant part:

It hit me that you may actually think that I‟m the one delaying the

divorce. Maybe we both think the other is stalling and dragging this out.

Maybe it is the attorneys.

***

If you would like to try to get divorced on our December 2nd final

trial date, you and I could agree on an updated valuation (after any

necessary negotiations such as averaging appraisals) and then ask

[Husband‟s divorce counsel] to forward it to the SM [special master].

Wouldn‟t you like to be divorced for this Christmas, New Years,

Valentines Day and for 2014 taxes? I‟m ready if you are. If we settle, you

won‟t risk jail time for the pending contempt motion for not paying the

Channel View mortgage and for not switching all of the utilities into your

name as ordered. Also, I may be willing to negotiate a settlement on our

Malicious Prosecution case that will be filed by the 5/18/15 statute of

limitation.

I don‟t meant [sic] to sound threatening. I‟m simply offering you a

more efficient method of settling these matters, so that you can move on.

6

On February 23, 2016, the trial court entered an order granting summary judgment

in favor of Wife on the basis of res judicata and the court‟s finding that Husband would

not be able to establish the elements of abuse of process at trial. The court dismissed

Husband‟s complaint with prejudice. Husband filed a notice of appeal on March 18,

2016.

Wife subsequently filed a “Motion to Impose Sanctions Pursuant to Rule 11 of the

Tennessee Rules of Civil Procedure” on March 23, 2016. She attached a copy of a letter

that had been sent from her counsel to Husband‟s counsel on July 27, 2015, providing

Husband‟s counsel with a copy of the Rule 11 motion and notifying him that it would be

“filed at the appropriate time” unless Husband‟s complaint was withdrawn and the action

dismissed. Wife alleged in her motion that Husband had filed the instant action

frivolously and “for the improper purpose of (1) harassing [Wife] and (2) attempting to

recoup his attorney‟s fees expended in connection with the parties‟ previous divorce

proceedings.” Wife also argued that Husband‟s filing of a notice of appeal did not

deprive the trial court of jurisdiction to rule on ancillary matters relating to the

enforcement of its judgment. In a response filed March 31, 2016, Husband objected to

Wife‟s Rule 11 motion and requested that the trial court reserve judgment on the motion

until after this Court rendered a decision regarding the appeal.

On April 4, 2016, Wife filed a motion with this Court to dismiss Husband‟s

appeal, arguing that the trial court‟s judgment was not final because the trial court had not

ruled on the motion to impose sanctions. Husband filed a response, objecting to Wife‟s

motion to dismiss and noting that his notice of appeal had been filed one week before

Wife‟s motion to impose sanctions. On April 11, 2016, this Court entered an order

denying Wife‟s motion to dismiss the appeal, explaining that a “Motion to Impose

Sanctions Pursuant to Rule 11 of the Tennessee Rules of Civil Procedure is not among

the motions enumerated in Rule 4(b) of the Tennessee Rules of Appellate Procedure.”

See Tenn. R. App. P. 4(b) (enumerating specific timely motions in civil actions the filing

of which will mean that “the time for appeal for all parties shall run from the entry of the

order” granting or denying the motion). However, acting sua sponte, this Court stayed

the appeal and remanded this action to the trial court “for the limited purpose of ruling on

the Motion to Impose Sanctions.”

On remand, Wife filed her counsel‟s affidavit, delineating attorney‟s fees incurred

in defense of this action in the amount of $9,284.00 and expenses in the amount of

$461.25, for a total of $9,745.25. On April 26, 2016, the trial court entered an order,

inter alia, granting Wife‟s motion for sanctions as against Husband‟s counsel in the

amount of $9,745.25 in reasonable attorney‟s fees and expenses. Husband then

proceeded with his timely appeal.

7

II. Issues Presented

Husband presents two issues on appeal, which we have restated as follows:

1. Whether the trial court erred by granting summary judgment in favor

of Wife under the doctrine of res judicata.

2. Whether the trial court erred by granting Wife‟s motion to impose

Tennessee Rule of Civil Procedure 11 sanctions as against

Husband‟s counsel.

Wife presents an additional issue, which we have similarly restated as follows:

3. Whether this appeal is frivolous such that Wife is entitled to an

award of attorney‟s fees on appeal pursuant to Tennessee Code

Annotated § 27-1-122.

III. Standard of Review

The grant or denial of a motion for summary judgment is a matter of law;

therefore, our standard of review is de novo with no presumption of correctness. See Rye

v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick

Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)

(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court

must “make a fresh determination of whether the requirements of Rule 56 of the

Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. As

our Supreme Court has explained concerning the requirements for a movant to prevail on

a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56:

We reiterate that a moving party seeking summary judgment by attacking

the nonmoving party‟s evidence must do more than make a conclusory

assertion that summary judgment is appropriate on this basis. Rather,

Tennessee Rule 56.03 requires the moving party to support its motion with

“a separate concise statement of material facts as to which the moving party

contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each

fact is to be set forth in a separate, numbered paragraph and supported by a

specific citation to the record.” Id. When such a motion is made, any party

opposing summary judgment must file a response to each fact set forth by

the movant in the manner provided in Tennessee Rule 56.03. “[W]hen a

motion for summary judgment is made [and] . . . supported as provided in

[Tennessee Rule 56],” to survive summary judgment, the nonmoving party

8

“may not rest upon the mere allegations or denials of [its] pleading,” but

must respond, and by affidavits or one of the other means provided in

Tennessee Rule 56, “set forth specific facts” at the summary judgment

stage “showing that there is a genuine issue for trial.” Tenn. R. Civ. P.

56.06. The nonmoving party “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., 475 U.S. [574,] 586, 106 S.Ct. 1348 [(1986)]. The nonmoving party

must demonstrate the existence of specific facts in the record which could

lead a rational trier of fact to find in favor of the nonmoving party. If a

summary judgment motion is filed before adequate time for discovery has

been provided, the nonmoving party may seek a continuance to engage in

additional discovery as provided in Tennessee Rule 56.07. However, after

adequate time for discovery has been provided, summary judgment should

be granted if the nonmoving party‟s evidence at the summary judgment

stage is insufficient to establish the existence of a genuine issue of material

fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence

the nonmoving party comes forward with at the summary judgment stage,

not on hypothetical evidence that theoretically could be adduced, despite

the passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil

Procedure 56.04, the trial court must “state the legal grounds upon which the court denies

or grants the motion” for summary judgment, and our Supreme Court has instructed that

the trial court must state these grounds “before it invites or requests the prevailing party

to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316

(Tenn. 2014).

Although the issue of whether a claim is barred by res judicata presents a question

of law, we review a trial court‟s ruling on a Tennessee Rule of Civil Procedure 11 motion

according to an abuse of discretion standard. See Brown v. Shappley, 290 S.W.3d 197,

200 (Tenn. Ct. App. 2008), perm. app. denied (Tenn. Mar. 23, 2009). As this Court

explained in Brown:

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.

Id. (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186,

191 (Tenn. 2000)). Our review of Rule 11 decisions is governed under this

deferential standard since the question of whether a Rule 11 violation has

occurred requires the trial court to make highly fact-intensive

determinations regarding the reasonableness of the attorney‟s conduct. Id.

9

We review the trial court‟s findings of fact with a presumption of

correctness. Id.; Tenn. R. App. P. 13(d).

Id.

IV. Res Judicata

Husband contends that the trial court erred by finding this action barred under the

doctrine of res judicata. He argues that his complaint constitutes a tort claim separate

from the issues resolved by entry of the divorce judgment and that because he allegedly

entered into the divorce settlement under duress, he should not be precluded from

maintaining this lawsuit. Wife contends that the trial court properly found this action to

be barred by res judicata because by entering into the divorce judgment, Husband

knowingly and voluntarily entered into an agreement that resolved all pending issues

related to the parties‟ divorce proceedings, including Wife‟s July 2014 contempt motion.

Upon our thorough review of the record, we agree with Wife on this issue.

Our Supreme Court has explained the doctrine and essential requirements of res

judicata as follows:

The doctrine of res judicata or claim preclusion bars a second suit

between the same parties or their privies on the same claim with respect to

all issues which were, or could have been, litigated in the former suit.

Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009); Richardson v.

Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is a “rule of rest,”

Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976), and it

promotes finality in litigation, prevents inconsistent or contradictory

judgments, conserves judicial resources, and protects litigants from the cost

and vexation of multiple lawsuits. In re Estate of Boote, 198 S.W.3d 699,

718 (Tenn. Ct. App. 2005); Sweatt v. Tennessee Dep’t of Corr., 88 S.W.3d

567, 570 (Tenn. Ct. App. 2002).

The party asserting a defense predicated on res judicata or claim

preclusion must demonstrate (1) that the underlying judgment was rendered

by a court of competent jurisdiction, (2) that the same parties or their

privies were involved in both suits, (3) that the same claim or cause of

action was asserted in both suits, and (4) that the underlying judgment was

final and on the merits. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.

1998); see also Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990).

10

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).

In granting summary judgment in favor of Wife on this issue, the trial court stated

in its February 2016 order:

The parties to this case were involved in a lengthy and contentious

divorce and were both represented by talented and able counsel. The

divorce ultimately was resolved by the entry of a final decree of divorce

April 28, 2015. This final decree of divorce was signed by both parties and

both attorneys and recited that “. . . the parties had reached an agreement to

settle and compromise all of the matters in dispute between them and that

they have freely, voluntarily and knowingly entered into an agreement that

is reflected by the terms and provisions of this final judgment of divorce.”

[Wife‟s] “Motion to Impose Sanctions for Contempt” was filed July

17, 2014. It is the filing of this motion which [Husband] alleges constitutes

abuse of process. He alleges it was filed to harass him; to cause him to

incur expense; and to weaken his resolve and force a settlement. [Husband]

complains this motion never was heard. [Wife] states she understood the

motion was to be heard at the final divorce hearing. Through his very able

counsel, [Husband] could have asked for this motion, which he contends

was without merit, to be heard prior to the trial date. Because it had not

been heard prior to that time, it was a matter in dispute at the time the final

decree of divorce was entered and, accordingly, was settled and

compromised in that final decree of divorce. The Court finds the resolution

of all issues in this matter by settlement resolved any claim he may have

held for abuse of process and resolved the underlying motion for contempt.

Accordingly, the Court finds the instant case is barred by the doctrine of res

judicata.

(Internal citation to record omitted.)

It is undisputed that (1) the divorce judgment was rendered by the trial court as a

court of competent jurisdiction, (2) Husband and Wife are the sole parties involved in

both the divorce proceedings and the instant action, and (3) the divorce judgment was

final and operated as a judgment on the merits. See Gerber v. Holcomb, 219 S.W.3d 914,

917 (Tenn. Ct. App. 2006) (“„Generally, a consent judgment operates as res adjudicata to

the same extent as a judgment on the merits.‟”) (quoting Horne v. Woolever, 163 N.E.2d

378, 382 (Ohio 1959)). Our analysis of this issue thus narrows to whether the same claim

or cause of action was asserted in both suits. See Jackson, 387 S.W.3d at 491.

11

Husband argues that this cause of action is separate from the divorce judgment

because he “never had the full and fair opportunity to litigate the issue of abuse of

process during the negotiations to settle the divorce.” We disagree. As Husband notes,

our Supreme Court has adopted the “transactional standard” in determining whether a

cause of action is the same for purposes of res judicata. See Creech v. Addington, 281

S.W.3d 363, 379-80 (Tenn. 2009). The transactional standard provides:

When a valid and final judgment rendered in an action extinguishes the

plaintiff‟s claim . . ., the claim extinguished includes all rights of the

plaintiff to remedies against the defendant with respect to all or any part of

the transaction, or series of connected transactions, out of which the action

arose.

Id. (quoting Restatement (Second) of Judgments § 24(1)). As the Creech Court

explained:

Like many of the other states adopting the transactional approach, we

observe that even where two claims arise out of the same transaction, the

second suit is not barred by res judicata unless the plaintiffs had the

opportunity in the first suit to fully and fairly litigate the particular issue

giving rise to the second suit. For example, when a plaintiff is initially

unaware of the existence of a cause of action due to the defendants‟ own

concealment or misrepresentation, whether fraudulent or innocent, a second

cause of action is appropriate. Restatement (Second) of Judgments § 26

cmt. j. “The result is different, however, where the failure of the plaintiff to

include the entire claim in the original action was due to a mistake, not

caused by the defendant‟s fraud or innocent misrepresentation.” Id.

Id. at 381-82 (footnote omitted).

Although Husband argues that he has alleged a separate cause of action from the

divorce proceedings, he does not dispute the trial court‟s finding that Wife‟s July 2014

contempt motion was pending before the trial court when the parties entered into the

settlement agreement memorialized by the divorce judgment. Prior to entry of the

divorce judgment, Husband did not request a hearing on either Wife‟s contempt motion

or his own June 2014 amended contempt motion, also pending before the trial court at

that time. Furthermore, the parties themselves consented to include language in the

agreed order to the effect that they had “freely, voluntarily and knowingly entered into an

agreement” “to settle and compromise all of the matters in dispute between them”

(emphasis added).

12

In support of his position that the doctrine of res judicata should not apply to this

case, Husband relies on this Court‟s decision in Black v. Black, No. W2003-01648-COA-

R3-CV, 2004 WL 1563233 (Tenn. Ct. App. July 13, 2004) (“Black I”), affirmed by Black

v. Black, 166 S.W.3d 699 (Tenn. 2005) (“Black II”). However, we determine Husband‟s

characterization of the holding regarding res judicata in Black I to be misplaced. Black I

involved an “independent action” filed by the plaintiff wife in chancery court over two

years after the parties‟ final divorce decree and marital dissolution agreement (“MDA”)

had been entered by the circuit court. Black I, 2004 WL 1563233, at *1. The wife in

Black I alleged fraud and coercion on the part of the defendant husband in inducing her to

sign the MDA. Id. The chancery court in Black I granted the husband‟s Tennessee Rule

of Civil Procedure 12.02(6) motion to dismiss the complaint upon finding that the wife‟s

complaint was an independent action to set aside the circuit‟s court divorce decree based

on an allegation of fraud that could not be supported by the facts. Id. at *3. Although the

wife insisted that she sought only damages based on her allegations and did not request

rescission of the MDA, this Court determined that inasmuch as the wife alleged that the

husband had committed fraud by concealing his true net worth during the divorce

proceedings, she could not obtain the “damages” she requested “without, in essence,

setting aside or modifying the divorce decree . . . .” Id. at *8.

This Court further determined in Black I: “[L]itigating the issues of fraud and

duress would necessarily constitute a collateral attack on the divorce decree. Such a

collateral attack is impermissible under principles of res judicata.” Id. Therefore, this

Court, approaching Wife‟s pleading “in the light most favorable to Wife,” construed her

complaint as an action to set aside the divorce decree, pursuant to Tennessee Rule of

Civil Procedure 60.02, on the basis of fraud upon the court. Id.; see also Tenn. R. Civ. P.

60.02 (“This rule does not limit the power of a court to entertain an independent action to

relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud

upon the court.”). Although Husband in this cause is correct in asserting that this Court

did not apply res judicata in Black I, he fails to note that the reason was because by

operation of res judicata, the trial court‟s dismissal of wife‟s action would have been

affirmed without further analysis. See Black I, 2004 WL 1563233, at *8. This Court

instead determined in Black I that the wife‟s pleading merited additional analysis because

in the light most favorable to her, it could be construed as a Rule 60.02 motion based on

alleged fraud against the court. Id. However, because such fraud upon the court must be

extrinsic to the issues litigated in the case, id. at *9 (citing Simpkins v. Blank, No.

M2002-02383-COA-R3-CV, 2003 WL 23093849, at *6 (Tenn. Ct. App. Dec. 30, 2003)),

this Court ultimately affirmed the chancery court‟s dismissal of the wife‟s fraud claim

upon the determination that her allegations involved only matters intrinsic to the divorce

litigation, Black I, 2004 WL 1563233, at *11.

13

Having determined that the facts could not support the wife‟s fraud claim in Black

I, this Court next addressed the wife‟s allegations that the husband had induced her to

sign the MDA through duress and coercion and her assertion that such allegations were

the basis for an action in chancery court, independent of the divorce proceedings in

circuit court. Id. This Court analyzed the wife‟s purported independent claim as follows:

In her complaint, Wife asserts that Husband told her if she hired an

independent attorney and did not sign the MDA he had prepared, he would

have her prosecuted for child abuse and thrown in jail, that he would see to

it that she would never see her children again, and that she would pay

hundreds of thousands of dollars and receive nothing in the divorce. Since

Husband is a prominent domestic relations attorney, Wife believed that he

had the ability to carry out these threats, so she signed the MDA.

Taking Wife‟s allegations as true, which we must, it is arguable that,

akin to extrinsic fraud, Husband‟s alleged coercion deprived Wife of a “fair

and honest opportunity” to present her evidence in the divorce proceeding.

See Simpkins [v. Blank,] [No. M2002-02383-COA-R3-CV], 2003 WL

23093849, at *6 [(Tenn. Ct. App. Dec. 30, 2003)]. Unlike the situation

presented in a case involving extrinsic fraud, however, Wife was not

ignorant of Husband‟s conduct at the time she signed the MDA, and

consequently it is not unfair to subject her to the limits of Rule 60.02.

Furthermore, the threats alleged in Wife‟s complaint, though harsh indeed,

may be construed by a trial court as classic “hardball” settlement

negotiations, that is, informing the opposing party of the dire consequences

that could result from declining to settle the dispute. See Wright Med.

Tech., Inc. v. Grisoni, No. W2000-01302-COA-R7-CV, 135 S.W.3d 561,

2001 WL 1683754, at *21 (Tenn. Ct. App. Dec. 18, 2001) (“This is an ugly

but unavoidable consequence of settlement negotiations; each side must try

to convince the other tha[t] refusing to relent to its settlement demand will

result in consequences that are worse than giving in to the settlement

demand.”). Wife has not cited, nor have we found, a case allowing an

independent action to set aside a divorce decree to proceed based on duress

or coercion. Moreover, we are mindful of the concern expressed in

Simpkins, that we must work to prevent a “greater evil,” that is, “[e]ndless

litigation in which nothing [is] ever finally determined.” Simpkins, 2003

WL 23093849, at *6 (quoting Noll v. Chattanooga Co., 38 S.W. 287, 291

(Tenn. Ct. App. 1896)). In light of all of these considerations, while we do

not hold that there are no circumstances under which allegations of duress

or coercion could be the basis for an independent action, under the

14

circumstances of this case, Wife‟s allegations cannot be the basis for an

independent action to set aside the final decree of divorce.

Id. (emphasis added).

This Court in Black I thus affirmed the chancery court‟s dismissal of the wife‟s

complaint in its entirety. Id. at *12. Our Supreme Court in Black II subsequently

affirmed this Court‟s decision in all respects, additionally determining that the wife had

failed to state a claim for fraud under common law. See Black II, 166 S.W.3d at 705. In

affirming the dismissal of the wife‟s coercion claim, the High Court noted that the

parties‟ MDA and amended MDA had both included a provision that the MDA was “„not

the result of any fraud, duress, or any undue influence exercised by either party herein

upon the other . . . .‟” Id. at 706 (“[E]ven if viewed as a common law action for coercion

and a request for damages separate from Rule 60.02, the Wife‟s complaint fails to state a

claim.”). As in the case at bar, the Black parties had entered into an agreement,

memorialized by the circuit court‟s divorce decree, that resolved all issues pending in the

divorce proceedings. See id.; Black I, 2004 WL 1563233, at *11. Husband‟s reliance on

Black I is unavailing.

Husband also relies on this Court‟s decision in Moore v. Moore, No. 01-A-01-

9708-CV-00444, 1998 WL 848091 (Tenn. Ct. App. Dec. 8, 1998), in support of his

argument that he should be able to maintain the instant action independent of the prior

divorce proceedings. However, we determine Moore to be highly factually

distinguishable from this case and, as the Moore Court noted, a “strange case”

procedurally. See Moore, 1998 WL 848091, at *2. The divorcing parties in Moore had

negotiated a settlement agreement, which was memorialized by the circuit court‟s entry

of an agreed order in July 1995, with a final divorce judgment subsequently entered by

the circuit court in May 1996. Id. at *1. In January 1997, the husband filed a complaint

in chancery court, accusing the wife of “fraudulent misrepresentations in the marital

home transaction.” Id.

The wife in Moore responded, inter alia, by filing a motion to dismiss (or, in the

alternative, for summary judgment) on the basis of res judicata in the chancery court. Id.

She simultaneously filed a Tennessee Rule of Civil Procedure 60.02 motion in the circuit

court, requesting that the circuit court determine “„whether fraud was perpetrated upon

the Court and Defendant in this cause,‟” as well as a Tennessee Rule of Civil Procedure

11 motion requesting that sanctions be imposed upon the husband for filing a frivolous

lawsuit. Id. The chancery court denied the wife‟s motion to dismiss upon finding that

the husband‟s complaint stated a claim for fraud, but the chancery court otherwise

deferred its ruling until the circuit court could rule on the wife‟s Rule 60.02 motion. Id.

The circuit court subsequently entered an order, finding, inter alia, that the husband‟s

15

interest “„in the parties[‟] real property [was] res judicata and binding on the Chancery

Court,‟” and assessing Rule 11 sanctions for the husband‟s filing in chancery court. Id. at

*1-2. The husband appealed the circuit court‟s ruling. Id. at *1.

This Court determined in Moore that rather than seeking to set aside the judgment,

the wife had filed her Rule 60.02 motion “simply [seeking] a declaration by the circuit

court that Mr. Moore‟s chancery action had no merit—a curious reversal of the historic

relationship between the two courts.” Id. at *2. This Court reversed the circuit court‟s

ruling, concluding “[t]hat such relief is beyond the power of the circuit court should be

apparent.” Id. This Court explained:

It may be that Mr. Moore‟s chancery action is frivolous, we take no

position on the merits of that case, but the chancery court has the tools to

deal with frivolous lawsuits. We simply recognize that Mr. Moore had the

right to file the chancery action and that the circuit court had no power to

rule on its merits or to impose sanctions for its filing.

Id.

The wife in Black I relied in part on Moore in support of her argument that her

complaint constituted an “independent action for fraud and coercion,” rather than a Rule

60.02 motion to set aside the MDA. Black I, 2004 WL 1563233, at *4 (citing Moore,

1998 WL 848091). This Court determined Moore to be inapposite to Black I and the

wife‟s reliance to be misplaced, explaining that the holding in Moore was based on the

circuit court‟s lack of authority over the action filed in chancery court. Black I, 2004 WL

1563233, at 11 (“[I]t was the place of the chancery court to dismiss the husband‟s lawsuit

if it proved to be frivolous.”) (citing Moore, 1998 WL 848091, at *2). In the instant

action, noting that no dispute concerning the trial court‟s authority to act is present, we

likewise determine Husband‟s reliance on Moore to be unavailing.

In this case, Husband insists that he waited to file his complaint because he wanted

to be sure the divorce judgment was final before he alleged that Wife had committed

abuse of process. In no way does Husband allege that he was unaware of his potential

claim for abuse of process when he entered into the consent order, and he certainly does

not allege that Wife was concealing the basis for such a claim from him at that time. See

Creech, 281 S.W.3d at 382; see also Blalock v. Preston Law Grp., P.C., No. M2011-

00351-COA-R3-CV, 2012 WL 4503187, at *7 (Tenn. Ct. App. Sept. 28, 2012), perm.

app. denied (Tenn. Feb. 12, 2013) (holding that “the accrual of a cause of action for

abuse of process need not await the termination of an action in the claimant‟s favor.”).

We determine that Husband had ample opportunity in the nine months between the filing

of Wife‟s contempt motion and the entry of the divorce judgment to fully and fairly

16

litigate the basis for any potential abuse of process claim regarding the contempt motion

by requesting a hearing on the motion before entering into a final consent order. Gerber,

219 S.W.3d at 918 (“„The [res judicata] bar of the judgment in such cases extends not

only to matters actually determined, but also to other matters which in the exercise of due

diligence could have been presented for determination in the prior action.‟”) (quoting

Gaither Corp. v. Skinner, 85 S.E.2d 909, 911 (N.C. 1955)). We therefore conclude that

the trial court did not err by granting summary judgment in favor of Wife and dismissing

Husband‟s complaint on the basis of res judicata.

V. Abuse of Process

The trial court also found an award of summary judgment in favor of Wife to be

appropriate upon the court‟s finding that Husband had failed to present any disputed

issues of material fact that would allow him to establish a claim for abuse of process. See

Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977) (“An action for abuse of

process lies for the use of legal process to obtain a result it was not intended to effect, for

a wrongful purpose.”). As our Supreme Court has explained:

[A] plaintiff must establish by evidence two elements to recover for abuse

of process: „“(1) the existence of an ulterior motive; and (2) an act in the

use of process other than such as would be proper in the regular prosecution

of the charge.‟” [Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen

& Ginsburg, P.A., 986 S.W.2d 550, 555 (Tenn. 1999)] (quoting Priest [v.

Union Agency], 174 Tenn. [304,] 307, 125 S.W.2d [142,] 143 [(Tenn.

1939])); see also Donaldson, 557 S.W.2d at 62.

Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 400-01 (Tenn. 2002).

Husband does not raise the trial court‟s findings regarding the abuse of process

claim in his presentation of the issues on appeal. See Tenn. R. App. P. 27(4) (providing

that the appellant‟s brief shall contain under an appropriate heading “[a] statement of the

issues presented for review . . . .”). Husband does, however, in the argument section of

his brief address the trial court‟s findings in this regard, and Wife has responded by

arguing that the trial court properly found no disputed issues of material fact that could

establish the elements of Husband‟s claim at trial. Inasmuch as we have determined that

Husband‟s instant claim is barred by the doctrine of res judicata, we further determine

Husband‟s argument regarding the elements of abuse of process to be pretermitted as

moot.

Moreover, upon our careful review of the record, we agree with the trial court‟s

findings in its order granting summary judgment that (1) Husband presented no evidence

17

to contradict Wife‟s assertion in her affidavit that she filed the contempt motion in good

faith and (2) Wife‟s contempt motion was a “lawful” and “appropriate use of process,”

“filed in the divorce action to address acts allegedly not accomplished by [Husband] after

he was ordered to accomplish them.”2 Furthermore, to the extent that Husband seeks

damages for emotional distress, he appears to be suggesting a claim for the tort of

intentional infliction of emotional distress, but he alleges no conduct on the part of Wife

in filing a contempt motion that could conceivably rise to the level of this tort. See

Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (“The elements of an

intentional infliction of emotional distress claim are that the defendant‟s conduct was (1)

intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and

(3) resulted in serious mental injury to the plaintiff.”); see, e.g., Warwick v. Warwick, No.

E2011-01969-COA-R3-CV, 2012 WL 5960850, at *12 (Tenn. Ct. App. Nov. 29, 2012)

(affirming the dismissal of the plaintiff husband‟s post-divorce complaint against the

defendant wife for, inter alia, intentional infliction of emotional distress).

VI. Tennessee Rule of Civil Procedure 11.02 Sanctions

Husband also contends that the trial court erred by granting Wife‟s motion to

impose sanctions, pursuant to Tennessee Rule of Civil Procedure 11.02, against

Husband‟s counsel. In its order entered on remand, the trial court found it appropriate to

assess a sanction against Husband‟s counsel upon a finding that “no good faith basis”

existed for counsel to “believ[e] the cause of action was viable” or could be stated “under

existing law or a reasonable extension of existing law.” The court assessed a sanction

against Husband‟s counsel in the amount of $9,745.25 as Wife‟s reasonable attorney‟s

fees and expenses. Husband asserts that given the principle that the transactional

definition of a cause of action should be applied on a case-by-case basis for res judicata

purposes, see Creech, 281 S.W.3d at 381-82, Husband‟s counsel in good faith believed

that Husband was not afforded the opportunity during the divorce proceedings to fully

and fairly litigate his claim for abuse of process. To the contrary, we conclude that the

trial court did not abuse its discretion by assessing a Rule 11.02 sanction against

Husband‟s counsel upon finding no good faith basis for counsel to have believed this

action viable.

2

We are mindful of Husband‟s November 4, 2014 electronic mail message to Wife that she could avoid,

inter alia, the risk of “jail time for [his] pending contempt motion” by entering into a settlement.

However, inasmuch as we have determined that Wife‟s contempt motion (together with any potential

response to it on the part of Husband) was resolved by entry of the divorce judgment, we note that

Husband‟s contempt motion (together with any potential response to it on the part of Wife) was likewise

resolved by the divorce judgment.

18

Tennessee Rule of Civil Procedure 11.02 provides:

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 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 reasonably based on a lack of

information or belief.

Regarding the imposition of sanctions upon motion of a party, Tennessee Rule of Civil

Procedure 11.03 further provides in relevant part:

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.

(1) How Initiated.

(a) By Motion. A motion for sanctions under this rule

shall be made separately from other motions or

requests and shall describe the specific conduct alleged

to violate subdivision 11.02. It shall be served as

19

provided in Rule 5, but shall not be filed with or

presented to the court unless, within 21 days after

service of the motion (or such other period as the court

may prescribe), the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or

appropriately corrected. If warranted, the court may

award to the party prevailing on the motion the

reasonable expenses and attorney‟s fees incurred in

presenting or opposing the motion. Absent

exceptional circumstances, a law firm shall be held

jointly responsible for violations committed by its

partners, associates, and employees.

***

(2) Nature of Sanctions; Limitations. A 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. Subject to the limitations in

subparagraphs (a) and (b), the sanction may consist of, or

include, directives of a nonmonetary nature, an order to pay a

penalty into court, or, if imposed on motion and warranted for

effective deterrence, an order directing payment to the

movant of some or all of the reasonable attorneys‟ fees and

other expenses incurred as a direct result of the violation.

(a) Monetary sanctions may not be awarded against a

represented party for a violation of subdivision

11.02(2).

***

(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.

In reviewing a trial court‟s decision to impose Rule 11 sanctions against an

attorney, we apply a test of “objective reasonableness” “in light of the circumstances

existing at the time the document in question was signed.” See Andrews v. Bible, 812

S.W.2d 284, 288 (Tenn. 1991). In Andrews, our Supreme Court set forth the “principles

associated with a proper Rule 11 analysis” as follows in pertinent part:

20

1. An attorney must READ every paper before signing it.

2. He must make a reasonable pre-filing investigation of the FACTS.

3. He must research the LAW, unless he is certain he knows it.

4. The law as applied to the facts must REASONABLY WARRANT

the legal positions and steps he takes. If existing law does not

warrant these positions, a plausible argument for the extension of the

law to the facts of the case is required.

5. It must be demonstrated, as the basis of pre-filing investigation and

research, that there is a REASONABLE BASIS to name each

defendant named, and to support each claim asserted. The shotgun

complaint or answer, filed in the hope that discovery will produce

the justification for it, is improper.

6. The adequacy of an attorney‟s investigation, research and legal

analysis will be evaluated by the court under an OBJECTIVE

STANDARD, namely, whether the attorney acted as a reasonably

competent attorney admitted to . . . practice. Except as to improper

purpose, subjective good faith is not a defense to Rule 11 sanctions.

A pure heart but an empty head is of no avail.

******

8. An attorney must not have an IMPROPER PURPOSE, such as

harassment or intimidation, in naming any defendant, asserting any

legal position or taking any legal step.

9. If an attorney violates Rule 11 the imposition of some sanction is

MANDATORY, although the nature and extent of the sanction is

discretionary with the [trial] court.

Id. (quoting Whittington v. Ohio River Co., 115 F.R.D. 201, 209 (E.D. Ky. 1987))

(emphasis originally in Whittington). As this Court has explained:

[W]hen deciding whether to impose sanctions under Rule 11, the trial court

should consider all the circumstances. “[T]he trial judge should consider

not only the circumstances of the particular violation, but also the factors

21

bearing on the reasonableness of the conduct, such as experience and past

performance of the attorney, as well as the general standards of conduct of

the bar of the court.” Andrews, 812 S.W.2d at 292 n.4.

Brown, 290 S.W.3d at 202-03 (additional internal citation omitted).

It is undisputed that pursuant to Tennessee Rule of Civil Procedure 11.03(1)(a),

Wife‟s counsel provided adequate notice to Husband‟s counsel of an intent to file a Rule

11 motion for sanctions if the complaint were not withdrawn. See Andrews, 812 S.W.2d

at 292. The trial court, in finding that a sanction should be imposed against Husband‟s

counsel, made the following specific findings of fact in relevant part:

The Court has every reason to believe [Husband‟s counsel] is an

experienced and knowledgeable member of this Bar. This Court has no

information about his past performance as an attorney but is familiar with

the general standards of conduct of this Bar and those standards require

pleadings not violate the criteria of Rule 11. Pleadings must not be

frivolous or unwarranted by existing law.

The history of the divorce case out of which the instant case arises is

informative. It was highly contentious, expensive, and drawn out. It is

clear the parties were well aware of the effect and consequences of their

actions in entering into the Settlement Agreement. This Court finds there is

no basis for any misinterpretation of the settlement documents and it is

clear they resolve all issues pending before the Court. The Creech case [is]

cited by counsel for [Husband] as standing for the proposition that

[Husband] did not have the ability to litigate the issues raised by the Motion

for Contempt. He was represented by able counsel. He acknowledges

awareness of what he was settling. No admissible evidence was presented

to substantiate his position. The Creech case in discussing the doctrine of

res judicata states “The primary purposes of the doctrine of res judicata are

to promote finality in litigation, prevent inconsistent or contradictory

judgments, conserve legal resources, and protect litigants from the cost and

vexation of multiple lawsuits.” The concept is particularly meaningful in

this application. The suit filed by [Husband‟s counsel] presents the costs

and vexation of multiple lawsuits and does not promote finality in

litigation. Were this type [of] action viable, there is no agreed resolution of

a divorce which could not be resurrected by a theory comparable to the

gravamen of this complaint.

22

The Court finds this is an appropriate case for sanctions. Rule 11

provides that the sanction “shall be limited to what is sufficient to deter

repetition of such conduct or comparable conduct of others similarly

situated.” The violation of Rule 11 does not permit monetary sanctions to

be awarded against a represented party for a violation of subsection

11.02(2) which is one of the bases of the sanctions being imposed. The

other basis falls within 11.02(1) which is that the litigation was being

brought for an improper purpose such as to harass or to cause unnecessary

or needless increase in the cost of litigation.

The Court finds the sanctions in this case should be assessed against

counsel and the conduct constituting the violation of the rule is the bringing

of this lawsuit knowing there was no good faith basis for believing the

cause of action was viable and that the cause of action could not be stated

under existing law or a reasonable extension of existing law. It appears the

client‟s motivation was to harass the other party but the Court has no hard

evidence of this fact. Accordingly, the sanctions are limited to those

assessed against the attorney for enabling the harassment of [Wife] by

[Husband].

Accordingly, the Motion for Sanctions is sustained and attorney‟s

fees are awarded based upon the Affidavit of [Wife‟s counsel] filed on

April 19, 2016. No hearing has been requested as to the reasonableness of

the attorney‟s fees. Therefore, based on the affidavit, the Court finds the

fees are reasonable and necessary and total $9,745.25, which amount is

assessed against counsel for [Husband].

The trial court thus found that at the time of filing the instant complaint,

Husband‟s counsel had no reasonable basis upon which to believe that any litigation

related to Wife‟s contempt motion remained unresolved by the parties‟ divorce settlement

and final judgment. We agree that a reasonable pre-filing investigation of the factual and

procedural history of the divorce proceedings, together with reasonable research into

existing law, would have demonstrated to Husband‟s counsel that a defense of res

judicata was bound to prevail against Husband‟s abuse of process claim. Husband‟s

counsel‟s “good faith” defense is unavailing. See Hooker v. Sundquist, 107 S.W.3d 532,

536 (Tenn. Ct. App. 2002), perm. app. denied (Tenn. Mar. 10, 2003) (“„Sanctions are

appropriate when an attorney submits a motion or other paper on grounds which he

knows or should know are without merit, and a showing of subjective bad faith is not

required.‟”) (quoting Boyd v. Prime Focus, Inc., 83 S.W.3d 761, 765 (Tenn. Ct. App.

2001)); Andrews, 812 S.W.2d at 292 (“„[S]ubjective good faith is not a defense to Rule

11 sanctions.‟”) (quoting Whittington, 115 F.R.D. at 209).

23

We further determine that the sanction of reasonable attorney‟s fees and expenses

imposed against Husband‟s counsel was warranted for effective deterrence of similar

Rule 11 violations. See Tenn. R. Civ. P. 11.03(2); see also Andrews, 812 S.W.2d at 292

(“Baseless filing puts the machinery of justice in motion, burdening courts and

individuals alike with needless inconvenience, expense, and delay.”). Husband has not

raised an issue regarding the reasonableness of the amount of attorney‟s fees and

expenses assessed by the trial court. Based on our careful review of the record, we

determine that the amount of the sanction is within the realm of reasonableness and does

not constitute an abuse of the trial court‟s discretion. See, e.g., Schutt v. Miller, No.

W2010-02313-COA-R3-CV, 2012 WL 4497813, at *18 (Tenn. Ct. App. Sept. 27, 2012).

We therefore affirm the trial court‟s assessment of $9,745.25, comprised of Wife‟s

reasonable attorney‟s fees and expenses, as a sanction imposed against Husband‟s

counsel for violation of Tennessee Rule of Civil Procedure 11.02.

VII. Attorney‟s Fees on Appeal

Wife requests an award of attorney‟s fees on appeal, asserting that the appeal is

frivolous, thereby warranting an award of attorney‟s fees pursuant to Tennessee Code

Annotated § 27-1-122 (2000), which provides:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the

appeal.

This Court‟s decision regarding whether to award attorney‟s fees on appeal is a

discretionary one. Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003).

We determine that in light of Husband‟s request for review of the Tennessee Rule

of Civil Procedure 11.02 sanction imposed by the trial court, this appeal was not frivolous

or taken solely for delay. Accordingly, we exercise our discretion to deny Wife‟s request

for attorney‟s fees on appeal. See Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct.

App. 2006) (“We exercise our discretion under the statute sparingly so as not to

discourage legitimate appeals.”) (citing Tenn. Code Ann. § 27-1-122).

24

VIII. Conclusion

For the reasons stated above, we affirm the trial court‟s judgment. We deny

Wife‟s request for an award of attorney‟s fees on appeal. This case is remanded to the

trial court, pursuant to applicable law, for enforcement of the trial court‟s judgment and

collection of costs assessed below. The costs on appeal are assessed against the

appellant, Jeremy David Parvin.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

25