                                                                                       04/16/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs December 2, 2019

 JOHNATHON CUDDEFORD F/K/A JOHNATHON BOYER v. ADAM M.
                      JACKSON

                  Appeal from the Circuit Court for Henry County
              No. 40CC1-2015-CV-3841         Donald E. Parish, Judge
                     ___________________________________

                          No. W2019-00539-COA-R3-CV
                      ___________________________________


This is an appeal from the judgment in a personal injury action in which the plaintiff
sought to recover damages incurred in a motorcycle accident. Following the plaintiff’s
failure to comply with the defendant’s discovery requests, the trial court sanctioned the
plaintiff by prohibiting him from introducing a portion of the defendant’s deposition
testimony at trial. The case was tried before a jury with the sanctions in place, and the
jury returned a verdict in the defendant’s favor. This appeal followed. Discerning no
reversible error, we affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

David V. Oakes, Paducah, Kentucky, for the appellant, Johnathon Cuddeford.

Shawn L. Caster, Nashville, Tennessee, for the appellee, Adam M. Jackson.


                                       OPINION

                               I.     BACKGROUND

      The appellant Johnathon Cuddeford (“Plaintiff”) commenced this action on
December 30, 2015, alleging that the appellee, Adam Jackson (“Defendant”), backed out
of a driveway into Plaintiff’s path thereby causing Plaintiff “to lose control of the
motorcycle he was riding and crash.” Plaintiff alleged that Defendant was negligent by
failing to yield the right of way and by failing to keep a proper lookout. Plaintiff sought
damages for his past and future medical expenses, pain and suffering, lost income, and
loss of enjoyment of life. In his answer, Defendant denied the allegations in the
complaint, affirmatively averred “that he had not reached the end of his driveway when
he saw Plaintiff come off the roadway and lay down his motorcycle,” and asserted the
affirmative defense of comparative negligence on Plaintiff’s part.

        On February 2, 2016, Defendant propounded interrogatories and a request for
production of documents, pursuant to Tennessee Rules of Civil Procedure 26 and 33.
Plaintiff did not respond to the requested discovery, despite Defendant’s good faith
efforts over a few months to obtain it. Consequently, on May 26, 2016, Defendant filed a
motion to compel discovery pursuant to Tennessee Rule of Civil Procedure 37. During
the motion hearing, the parties announced their agreement to a consent order compelling
discovery. Upon a finding that Plaintiff had “failed and refused to answer” discovery for
“no good and sufficient reason,” the trial court entered the consent order for Plaintiff to
respond to the interrogatories and request for production of documents by July 6, 2016.

        After party depositions in April 2017, Plaintiff moved to amend the complaint,
citing Defendant’s perjury as grounds for amendment. In his amended complaint,
Plaintiff reasserted his original claims and added Count II, a claim for punitive damages
based on his allegation that Defendant lied in his deposition testimony about the distance
his truck was from the road at the time Plaintiff crashed his motorcycle. Plaintiff
attached to the amended complaint a photograph of Defendant’s truck partially in the
roadway. He claimed that the photo captured the scene “immediately after Plaintiff
crashed and was injured and before any police investigators arrived.” Plaintiff had not
produced the photograph during discovery, despite Defendant’s specific request for
“copies of any photographs . . . relating to the accident scene.” Rather, Plaintiff’s counsel
showed the photograph to Defendant after Defendant’s deposition testimony. On May
24, 2018, Defendant moved the court to enter judgment on the pleadings to dismiss Count
II of the amended complaint. Defendant also moved the court to order that the
photograph of the truck “not be used at the trial of this matter,” pursuant to Tennessee
Rule of Civil Procedure 37.02. In his response to these motions, Plaintiff argued that his
failure to timely produce the photograph “was an inadvertent oversight” and also argued
excusable neglect.1 The trial court rejected these arguments, found Defendant’s motions
“well taken,” dismissed count II of the amended complaint, and “ordered, pursuant to
TRCP 37.02, that any deposition testimony of the Defendant regarding the position of his
truck at the time of the incident complained of is excluded from use for any purpose due
to the failure of Plaintiff to timely produce the photograph of the truck taken by Plaintiff
immediately after the incident.” The photograph itself was not excluded.

1
 As grounds for support of his excusable neglect argument, Plaintiff cited counsel’s wife’s “substantial
health issues in recent years,” her “weeks-long hospital stays,” counsel’s role “as Guardian for one of his
brothers-in-law,” and counsel’s obligation to meet concurrent deadlines in two pending federal cases.
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       Following a jury trial held on October 3, 2018, the jury unanimously answered
“No” to the question, “Do you find the defendant to be at fault?” The trial court entered
judgment on the verdict. Plaintiff moved the court to set aside the judgment and to grant
a new trial, asserting that Defendant “procured his verdict by making false statements of
material fact about the events leading up to plaintiff’s injury.” Citing Defendant’s
deposition testimony that his truck was probably fifteen feet away from the roadway at
the time of the accident, Plaintiff further contended that it was “very likely that if the jury
had been allowed to see [Defendant’s] deposition testimony, they would have drawn very
different conclusions regarding the defendant’s fault.” Following a hearing, the court
denied Plaintiff’s motion for a new trial. This appeal followed.

                                         II.     ISSUE

        We restate the sole issue on appeal as follows: Whether the trial court erred in
excluding a portion of Defendant’s deposition testimony as a sanction for Plaintiff’s
failure to comply with discovery.

                            III.   STANDARD OF REVIEW

        This court reviews a trial court’s choice and imposition of discovery sanctions
under an abuse of discretion standard. Alexander v. Jackson Radiology Assocs., 156
S.W.3d 11, 14 (Tenn. Ct. App. 2004) (citing Lyle v. Exxon Corp., 746 S.W.2d 694, 699
(Tenn. 1988)). An abuse of discretion occurs where the trial court has applied an
incorrect legal standard or where its decision is illogical or unreasoned and causes an
injustice to the complaining party. See Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121,
131 (Tenn. 2004). “We are not permitted to substitute our judgment for that of the trial
court.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007).

                                   IV.     DISCUSSION

       Trial courts have broad authority in discovery matters, including the scope of
discovery, Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992), the time permitted for
discovery, Payne v. Ramsey, 591 S.W.2d 434, 436 (Tenn. 1979), and the imposition of
sanctions for abuse of discovery, Brooks v. Uniform Co., 682 S.W.2d 913, 915 (Tenn.
1984). The authority to impose sanctions for abuse of the discovery process derives from
the rules and the court’s inherent powers. Lyle, 746 S.W.2d at 698-99.

       Tennessee Rule of Civil Procedure 37.02 authorizes a trial court to impose
penalties for violation of pretrial procedures contained in Rules 26 through 36.
Subsection (B) authorizes the trial court to 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.” Tenn. R. Civ. P. 37.02(B). See
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also Tenn. R. Civ. P. 37.03(1) (providing that “[a] party who without substantial
justification fails to supplement or amend responses to discovery requests as required by
Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial . . .
any . . . information not disclosed”).

       On appeal, Plaintiff repeats the argument he set forth in his motion for new trial:2

       To the best of counsel’s recollection, the court disallowed use of the
       deposition based upon concern that there may have been some unfairness to
       defendant insofar as his recollection may have been legitimately assisted by
       viewing the photo[] before his testimony. This concern should be set aside
       based upon the defendant’s testimony at trial, wherein he asserted, without
       any hesitation, that the photo[] did not affect his memory in any way. It is
       very likely that if the jury had been allowed to see [Defendant’s] deposition
       testimony, they would have drawn very different conclusions regarding the
       defendant’s fault.

Plaintiff also relies on Pegues v. Ill. Cent. R.R. Co., 288 S.W. 3d 350 (Tenn. Ct. App.
2008), to argue that the sanction at issue here was too harsh. In Pegues, the trial court
ordered Mr. Pegues to produce two doctors for deposition within forty-five days of entry
of its April 26, 2007 order. Id. at 352. Because Mr. Pegues was unable to do so, the
railroad moved to dismiss the case under Tennessee Rule of Civil Procedure 37.02(C).
Id. In response to the railroad’s motion, Mr. Pegues stated that one doctor’s counsel had
advised that the doctor was unwilling to sit for deposition and would assert his Fifth
Amendment right to refuse to answer any questions which might be posed in a
deposition. Id. at 353. Mr. Pegues also stated that the second doctor had been
unavailable for deposition due to illness and attached correspondence in which the second
doctor stated that he anticipated being available from August 1, 2007. Id. The trial court
granted the railroad’s motion and dismissed entirely Plaintiff’s cause of action under Rule
37.02(C) for failure to comply with a pretrial discovery order. Id. On appeal, we noted
that Mr. Pegues had attempted to comply with the trial court’s order and that discovery
was within the bounds of the trial court’s April 2007 scheduling order. Id. at 355. We
determined that, based on the totality of the record, dismissal was too drastic a sanction,
so we vacated the trial court’s order and remanded for further proceedings. Id.

       The facts before us now are distinguishable from those of Pegues. Here,
Plaintiff’s counsel demonstrated no efforts to participate in discovery, even after
Defendant’s counsel twice renewed his request for interrogatories and production of
documents, and agreed to extend the response deadline. Despite the trial court’s order to

2
  At trial, Plaintiff made an oral motion for permission to cross-examine Defendant using Defendant’s
deposition testimony. The court denied the motion and upheld its previous ruling excluding the
testimony. However, at trial, Plaintiff used the photograph during his cross-examination of Defendant.
                                                -4-
answer interrogatories and produce documents, including photographs, by July 6, 2016,
Plaintiff failed to provide the photograph until many months later during depositions. On
July 20, 2016, Defendant received Plaintiff’s responses to interrogatories, but no response
to the request for production of documents other than a medical authorization was
provided. Plaintiff does not dispute these facts. Moreover, the sanction of outright
dismissal in Pegues was drastic compared to the underlying facts. The same cannot be
said here. Plaintiff was still permitted to use the photograph during his cross-examination
of Defendant at trial.

       Again, we will not disturb the trial court’s choice and imposition of a discovery
sanction absent an abuse of discretion. Langlois v. Energy Automation Sys., Inc., 332
S.W.3d 353, 356 (Tenn. Ct. App. 2009) (citing Pegues, 288 S.W.3d at 353). “‘We will
reverse a trial court’s decision to impose sanctions only if the court ‘has acted
unreasonably, arbitrarily, or unconscionably.’” Langlois, 332 S.W. 3d at 356 (quoting
Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000)). Plaintiff has
not so argued, nor do we so find, based on this record. Given Plaintiff’s failure to comply
with the relevant Rules of Civil Procedure and with the trial court’s order, the trial court
acted within its discretion to impose sanctions pursuant to Rule 37.02(B) excluding
Plaintiff’s use of a portion of Defendant’s deposition testimony. Accordingly, we find no
error with the trial court’s decision.

                                   V.     CONCLUSION

       The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal
are taxed to the appellant, Johnathon Cuddeford, for which execution may issue if
necessary.


                                                 _________________________________
                                                 JOHN W. MCCLARTY, JUDGE




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