                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 17, 2007 Session


      RAYMOND CLAYTON MURRAY, JR. v. JES BEARD, ESQUIRE


                     Appeal from the Circuit Court for Hamilton County
                        No. 04C-1490     William Dale Young, Judge



                 No. E2006-01661-COA-R3-CV - FILED AUGUST 29, 2007




D. MICHAEL SWINEY , J., concurring and dissenting.


                 I concur in the majority’s decision except that I, respectfully, dissent from the
majority’s holding “that the trial court abused its discretion by granting the [Plaintiff’s] amended
motion and limiting the trial to the issue of damages only.” I believe the Trial Court acted well
within its discretion in ordering this sanction. As discussed by the majority, Rule 37.04 clearly is
authority for a trial court’s “rendering a judgment by default against the disobedient party” because
that party failed to serve answers or objections to interrogatories. Tenn. R. Civ. P. 37.02(C). That
is exactly what the Trial Court did here.

               We review sanctions imposed by a trial court under Tenn. R. Civ. P. 37 for abuse of
discretion. Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988). Our Supreme Court discussed
the abuse of discretion standard in Eldridge v. Eldridge, stating:

                Under the abuse of discretion standard, a trial court’s ruling “will be upheld
       so long as reasonable minds can disagree as to [the] propriety of the decision made.”
       A trial court abuses its discretion only when it “applie[s] an incorrect legal standard,
       or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
       to the party complaining.” The abuse of discretion standard does not permit the
       appellate court to substitute its judgment for that of the trial court.


Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).


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                 Appellate courts ordinarily permit discretionary decisions to stand when reasonable
judicial minds can differ concerning their soundness. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,
709 (Tenn. Ct. App. 1999). A trial court’s discretionary decision must take into account applicable
law and be consistent with the facts before the court. Id. When reviewing a discretionary decision
by the trial court, the “appellate courts should begin with the presumption that the decision is correct
and should review the evidence in the light most favorable to the decision.” Id.


               As pertinent to this appeal, Tenn. R. Civ. P. 37 provides:


       37.02. Failure to Comply with Order. – If a deponent; a party; an officer, director,
       or managing agent of a party; or, a person designated under Rule 30.02(6) or 31.01
       to testify on behalf of a party fails to obey an order to provide or permit discovery,
       including an order made under Rule 37.01 or Rule 35, or if a party fails to obey an
       order entered under Rule 26.06, the court in which the action is pending may make
       such orders in regard to the failure as are just, and among others the following:

       (A) An order that the matters regarding which the order was made or any other
       designated facts shall be taken to be established for the purposes of the action in
       accordance with the claim of the party obtaining the order;

       (B) An order refusing to allow the disobedient party to support or oppose designated
       claims or defenses, or prohibiting that party from introducing designated matters in
       evidence;

       (C) An order striking out pleadings or parts thereof, or staying further proceedings
       until the order is obeyed, or dismissing the action or proceeding or any part thereof,
       or rendering a judgment by default against the disobedient party;

                                                 ***

       37.04. Failure of Party to Attend at Own Deposition or Serve Answers to
       Interrogatories or Respond to Requests for Inspection. –

               If a party or an officer, director, or managing agent of a party or a person
       designated under Rule 30.02(6) or 31.01 to testify on behalf of a party fails (1) to
       appear before the officer who is to take his or her deposition, after being served with
       a proper notice, or (2) to serve answers or objections to interrogatories submitted
       under Rule 33, after proper service of the interrogatories, or (3) to serve a written
       response to a request for inspection submitted under Rule 34, after proper service of
       the request, the court in which the action is pending on motion may make such orders
       in regard to the failure as are just, and among others it may take any action authorized


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       under paragraphs (A), (B), and (C) of Rule 37.02. In lieu of any order or in addition
       thereto, the court shall require the party failing to act or the attorney advising that
       party or both to pay the reasonable expenses, including attorney’s fees, caused by the
       failure, unless the court finds that the failure was substantially justified or that other
       circumstances make an award of expenses unjust.

              The failure to act described in this subdivision may not be excused on the
       ground that the discovery sought is objectionable unless the party failing to act has
       applied for a protective order as provided by Rule 26.03.

Tenn. R. Civ. P. 37.

                Under Tenn. R. Civ. P. 37.04, if a party fails to serve answers or objections to
interrogatories after proper service of the interrogatories, a trial court “may take any action
authorized under paragraphs (A), (B), and (C) of Rule 37.02.” Tenn. R. Civ. P. 37.04. Among other
things, a trial court may under Tenn. R. Civ. P. 37.02 enter an “order refusing to allow the
disobedient party to support or oppose designated claims or defenses; or prohibiting that party from
introducing designated matters in evidence;” or enter an order “rendering a judgment by default
against the disobedient party….” Tenn. R. Civ. P. 37.02.

                Discussing the sanction of default available under Tenn. R. Civ. P. 37.02(C), this
Court noted “that a trial court faced with a party who fails to obey an order to provide discovery may
render a judgment by default against the disobedient party. Although this sanction is extreme, it is
appropriate ‘where there has been a clear record of delay or contumacious conduct.’” Potts v.
Mayforth, 59 S.W.3d 167, 171 (Tenn. Ct. App. 2001) (quoting Shahrdar v. Global Housing, Inc.,
983 S.W.2d 230, 236 (Tenn. Ct. App. 1998)). This same sanction is available through Tenn. R. Civ.
P. 37.04 if a party fails to serve answers or objections to interrogatories.

               The Trial Court had the power under Tenn. R. Civ. P. 37 to impose the sanction
chosen. Given the Trial Court’s specific findings that Attorney Beard “is unwilling or unable to
comply by producing responses to Expert Interrogatories, and the Court finding the time for
responding has expired and the Court further finding that the continuance of the case from February
3, 2006 to June 28, 2006 and defendant has still failed to comply …,” I cannot say that the Trial
Court abused its discretion in imposing the sanction establishing liability.

                The majority correctly set forth the abuse of discretion standard as the standard to be
applied by this Court in reviewing a trial court’s imposition of Tenn. R. Civ. P. 37 sanctions.
Applying that standard, I believe it to be clear that we should not hold that the Trial Court abused
its discretion. The Trial Court did not apply an incorrect legal standard. The Trial Court did not
reach a decision that was against logic or reasoning that caused an injustice to Attorney Beard. The
Trial Court’s decision was such that reasonable minds could disagree as to the propriety of that
decision. The sanction was severe, but I do not believe it fits any of the requirements to be classified
as an abuse of discretion by the Trial Court, and we should not substitute our judgment for that of


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the Trial Court.

               Attorney Beard as the appellant bears the primary responsibility of seeing that the
record is complete when it comes to this Court. However, the record before us contains neither
Plaintiff’s amended motion for Rule 37 sanctions nor a transcript of any hearing, if there was one,
on that motion. What we do have in the record is the transcript of the argument on Attorney Beard’s
motion to reconsider, which the Trial Court heard on the day of trial. During this hearing, the Trial
Court announced:

        Over the years I’ve prided myself in being fair. I like to think I have been fair to
        litigants and to lawyers, but it’s especially dear to my heart to be fair to lawyers.
        We’re all brothers. But there comes a time when enough is enough. And, after all,
        the plaintiffs are entitled to fair treatment as the defendants are entitled to fair
        treatment, and I have to look at the whole, and not just what I’d like to do.

                The Court’s of the opinion and finds that for whatever reason Mr. Beard has
        not cooperated in the expeditious handling of this lawsuit. The fact that this Judge
        is from out of town really has nothing to do with it. It’s my pleasure to come down
        here. So that really has nothing to do with it. But if I had this case on my docket
        back in Blount County, it would have been heard a long time ago.

               An old saying, and I don’t think it’s an equitable saying at all; but justice
        delayed is justice denied. I, I believe that, that principle. So we need to go forward.
        The Court reaffirms its ruling from yesterday, with all due respect.

                 For all we know, there could have been other things pled, argued, and considered by
the Trial Court that led to the Trial Court’s finding that “Mr. Beard has not cooperated in the
expeditious handling of this lawsuit.” What we do know is that the Trial Court in deciding to
reaffirm its ruling prohibiting Attorney Beard from contesting liability found and held that the time
had come because of Attorney Beard’s actions that “enough is enough” and fairness to the Plaintiff
required the Trial Court to act. We also note that the Trial Court specifically stated that it had “to
look at the whole, and not just what I’d like to do.” It was only after looking at the “whole” that the
Trial Court, in exercising its discretion, affirmed its decision to limit the trial to the issue of damages.

               In addition, the Trial Court had the power to amend or alter its decision regarding the
sanctions at any time prior to a final order in the case. Under Tenn. R. Civ. P. 54.02:

        When more than one claim for relief is present in an action, whether as a claim,
        counterclaim, cross-claim, or third party claim, or when multiple parties are involved,
        the court, whether at law or in equity, may direct the entry of a final judgment as to
        one or more but fewer than all of the claims or parties only upon an express
        determination that there is no just reason for delay and upon an express direction for
        the entry of judgment. In the absence of such determination and direction, any


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        order or other form of decision, however designated, that adjudicates fewer than all
        the claims or the rights and liabilities of fewer than all the parties shall not terminate
        the action as to any of the claims or parties, and the order or other form of decision
        is subject to revision at any time before the entry of the judgment adjudicating
        all the claims and the rights and liabilities of all the parties.

Tenn. R. Civ. P. 54.02 (emphasis added).

                  Likewise I respectfully find the majority’s reasoning unpersuasive that the Trial
Court’s granting of the default sanction “would necessarily (1) hamper [Attorney Beard] in any
possible settlement strategy and (2) significantly change the ‘landscape’ of his defense posture and
trial strategy.” As neither I nor the majority have any way of knowing what Attorney Beard’s
possible settlement strategy, if any, may have been, I am not comfortable in making the leap to hold
that the Trial Court’s decision “necessarily” hampered this unknown and perhaps nonexistent
settlement strategy. As to changing the “landscape” of Attorney Beard’s defense posture and trial
strategy, it is true that the issues to be decided at the trial were fewer in number after the Trial Court
exercised its discretion. However, no new issue was raised at the last minute resulting in an ambush
to any party.

                I concur in the remainder of the majority’s decision. However, as I find no abuse of
discretion by the Trial Court, I would affirm the judgment of the Trial Court in its entirety.




                                                         ____________________________________
                                                         D. MICHAEL SWINEY, JUDGE




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