                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                          June 18, 2001 Session

ALFRED LEE BOWLING v. DOBBS BROTHERS BUICK-PONTIAC, INC.,
     d/b/a DOBBS BROS. BUICK-PONTIAC/MITSUBISHI, INC.

                    Direct Appeal from the Chancery Court for Shelby County
                             No. 107946-2   Floyd Peete, Chancellor



                       No. W2000-01476-COA-R3-CV - Filed August 3, 2001


This appeal arises from the trial court’s denial of a motion in limine. Employee was fired from his
position at Company. At a pre-trial deposition, Manager testified on behalf of Company that
Employee was terminated due to Manager’s observation of Employee’s lack of sales skills.
Employee filed a motion seeking to bar testimony of other Company employees during the trial.
These employees were to testify on Employee’s lack of sales skills. Employee argued that this
testimony would be inconsistent with Company’s pre-trial deposition that Employee was terminated
due to Manager’s observation of his lack of sales skills. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS and HOLLY K.
LILLARD, J.J., joined.

Connie Westbrook, Memphis, Tennessee, for the appellant, Alfred Lee Bowling.

James Stephen King, Memphis, Tennessee, for the appellee, Dobbs Brothers Buick-Pontiac, Inc.,
d/b/a Dobbs Bros. Buick-Pontiac/Mitsubishi, Inc.

                                       MEMORANDUM OPINION1

       On April 16, 1996, Alfred Lee Bowling was fired from his position as Finance and
Insurance Manager (F&I Manager) at Dobbs Brothers Buick-Pontiac, Inc. (Dobbs Brothers). Mr.

        1
           Rule 10 (Court of Appeals). - (b) Me mora ndum Opinio n. The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be
designated “MEMORA NDUM OPINION ,” shall not be published, and shall not be cited or relied on for any reason in
a subsequent unrelated case.
Bowling argued that he was fired because he was required to perform jury duty the previous day.
Dobbs Brothers stated that Mr. Bowling was terminated from the F&I Manager position because
his sales skills were inadequate; he had trouble processing paperwork; and he did not have the
ability to perform his duties. After the termination, Dobbs Brothers offered Mr. Bowling a car
sales position. Mr. Bowling rejected this offer and filed a suit for wrongful discharge against
Dobbs Brothers.

        At a pre-trial deposition, Jack Pirtle, the general manager of Dobbs Brothers, testified on
behalf of the corporation.2 Mr. Pirtle stated that he had personally observed Mr. Bowling’s lack
of sales skills and that these observations played a role in Mr. Bowling’s termination. The
remainder of Mr. Pirtle’s testimony was a point of contention between the parties. Mr. Bowling
argued that Mr. Pirtle testified that his termination was based solely on the personal observations
of Mr. Pirtle. Dobbs Brothers argued that Mr. Pirtle also touched on several other issues during
his deposition, including Mr. Bowling’s lack of sales skills and his failure to process all required
paperwork. In addition, Dobbs Brothers claims that Mr. Pirtle testified that other employees had
observed Mr. Bowling’s problems.

         Upon this case going to trial, Alfred Bowling filed a motion in limine seeking to bar
Dobbs Brothers from presenting any testimony that was “inconsistent” or “contradictory” to Mr.
Pirtle’s statements on behalf of the company. He filed this motion based upon federal case law
that states that a corporation is required to provide representatives at depositions to offer binding
testimony. 3 Mr. Bowling argued that testimony by other Dobbs Brothers employees as to his lack
of sales skills or his lack of ability to do required paperwork was inconsistent with Mr. Pirtle’s
statements that it was his observations of Mr. Bowling’s lack of sales skills that led to his
termination. The court found such testimony was not inconsistent or contradictory and denied
the motion. As a result, Dobbs Brothers called Maureen Callahan, a business manager at Dobbs
Brothers, during the trial. Ms. Callahan testified that Mr. Bowling had trouble processing all the
paperwork necessary for his job. Dobbs Brothers also called several car sales personnel who
testified that they sought to avoid bringing potential customers to Mr. Bowling due to his lack of
skills. After completion of the trial, a jury found for Dobbs Brothers. This appeal followed.

         The issue, as presented by the Appellant, is as follows:

         Did the trial court err in denying Mr. Bowling’s motion in limine through its
         finding that Dobbs Brothers could introduce testimony by other employees as to
         Mr. Bowling’s lack of sales skills?


         2
           The point of contention in this appeal is Mr. Pirtle’s testimony on behalf of Dobbs Brothers. All references
in this opinion to M r. Pirtle’s testimony actually refer to th e testimony of the Dobbs Brothers corporation and our
decision to refer to it as M r. Pirtle’s testimo ny is only used for c larity.

         3
          The federal c ases cited w ere federa l court interp retations of Rule 30 (b)(6) of the Fede ral Rules o f Civil
Proced ure.

                                                           -2-
        To the extent that these issues involve questions of fact, our review of the trial court’s
ruling is de novo with a presumption of correctness. See Tenn. R. App. P. 13(d). Accordingly,
we may not reverse the court’s factual findings unless they are contrary to the preponderance of
the evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Tenn. R.
App. P. 13(d). With respect to the court’s legal conclusions, however, our review is de novo
with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis,
Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

                                                  Motion in Limine

        Mr. Bowling asks this court to reverse the trial court’s ruling that denied his motion in
limine. Mr. Bowling argues that Rule 30.02 (6) of the Tennessee Rules of Civil Procedure,
which details the procedure for taking the testimony of a corporation, should be interpreted by
this court in the same manner as Rule 30(b)(6) of the Federal Rules of Civil Procedure, which
details the same procedure.4 Mr. Bowling notes that under the federal courts’ interpretation of
Rule 30(b)(6) of the Federal Rules of Civil Procedure, corporations are required to provide
someone who will provide binding testimony on behalf of the corporation.5 Mr. Bowling, in his
motion in limine, sought to bind Dobbs Brothers to Mr. Pirtle’s pre-trial deposition and affidavit
and bar “evidence contrary to this position.”6

         We assume, arguendo, that Tennessee has adopted Mr. Bowling’s argument on the
proper interpretation of Rule 30.02 (6) of the Tennessee Rules of Civil Procedure. Is the
testimony of Ms. Callahan on Mr. Bowling’s failure to process paperwork, evidence contrary to
Mr. Pirtle’s testimony on behalf of Dobbs Brothers? Is the testimony of sales people who
bypassed Mr. Bowling to see another F&I manager contrary to Dobbs Brothers’ testimony?
Upon our review, we find that none of this testimony is contrary to the testimony Dobbs Brothers
offered at its deposition or affidavit. Even if we were to accept Mr. Bowling’s argument on the
proper interpretation of Rule 30.02(6), this court would still affirm the trial court’s finding that
the testimony was properly presented by Dobbs Brothers and did not represent evidence contrary
to its pre-trial testimony.7 As such, we hereby affirm the trial court’s ruling in this matter.



          4
              The extent to which a Rule 30.02(6 ) deposition bind s a corporation has not been determined by Tennessee
courts.

          5
          See Reilly v. Natwest Markets Group, Inc., 181 F.3d 253,268 (2 nd Cir. 1999 ); Protective Nat. Ins. v.
Com monw ealth Ins., 137 F.R.D. 267, 277-78 (D .Neb. 1989); King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D.Fla.
1995) ; Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70,75 (D. Neb. 19 95).

          6
          Mr. Bowling sought to restrict any testimony inconsistent with Mr. Pirtle’s pre-trial testimony on behalf of
Dobbs Brothers. Specifically, Mr. Bowling objected to any testimony during the trial in which it was suggested that
his termination w as based upo n anything o ther than Mr. P irtle’s observations.

          7
          This court stresses that we are making no interpretation on what extent Rule 30.02(6) of the Tennessee Rules
of Civil Procedure binds a corporation, as such an interpretation is not required to review this case.

                                                           -3-
                                          Conclusion

       Based upon the foregoing conclusions, we hereby affirm the trial court’s ruling. Costs on
appeal are assessed against the appellant, Alfred Lee Bowling, and his surety, for which
execution may issue if necessary.



                                                    ___________________________________
                                                    DAVID R. FARMER, JUDGE




                                              -4-
