IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 13, 2011 Session
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, ET AL. v. BFI WASTE SERVICES, LLC, ET AL.
Direct Appeal from the Circuit Court for Davidson County
No. 05C-390 Joe Binkley, Jr., Judge
No. M2011-00586-COA-R3-CV - Filed March 22, 2012
After Metro’s waste-to-energy facility was damaged/destroyed by fire, Metro and the
facility’s insurer filed suit against Defendants. Prior to trial, Defendants’ expert was
precluded from testifying regarding the facility’s value, its condition prior to the fire, and the
alleged pre-fire plans to discontinue its operation. A jury returned a verdict in favor of
Plaintiffs, and Defendants appeal. On appeal, Defendants challenge the exclusion of certain
evidence, the jury charge regarding damages, and an adverse inference jury instruction given
as a sanction against Defendants. Additionally, Plaintiffs challenge the denial of
prejudgment interest. We affirm the trial court in all respects.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S.,, delivered the opinion of the Court, in which D AVID R.
F ARMER, J., and H OLLY M. K IRBY, J., joined.
Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellants, BFI Waste Services,
LLC and Allied Waste North America, Inc.
Donald Capparella, Nashville, Tennessee; James L. Warren, III, Alexandra F. Markov,
Jackson, Mississippi, for the appellees, Metropolitan Government of Nashville and Davidson
County and Travelers Property Casualty of America
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
The Nashville Thermal Transfer Corporation (“NTTC”)1 waste-to-energy facility (the
“Facility”) owned by the Metropolitan Government of Nashville and Davidson County
(“Metro”) provided steam and chiller water to certain downtown Nashville buildings for
heating and cooling. On May 23, 2002, the Facility was damaged/destroyed by fire.
Travelers Property Casualty Company of America (“Travelers”), which insured the Facility,
and Metro (collectively “Plaintiffs”) filed suit, in the Davidson County Circuit Court, against
multiple defendants including BFI Waste Services, LLC (“BFI”) and Allied Waste North
America, Inc. (“Allied”) (collectively “Defendants”), alleging negligence, gross negligence,
professional negligence, breach of contract, breach of warranties and negligent
misrepresentation. Defendants answered, denying the allegations against them and asserting
the comparative negligence of Metro.
On August 26, 2010, Plaintiffs filed a motion in limine to exclude, among other
things, any references at trial to (1) Metro’s alleged pre-fire plan to discontinue waste-to-
energy operations at the Facility; or to (2) the Facility’s alleged negligible or negative value
at the time of the fire. Specifically, Plaintiffs sought to exclude the testimony of Defendants’
expert Jonathon C. Held, who provided the following opinion in an April 12, 2010 report:
The building was a special purpose property which was substantially obsolete
at the date of the loss, and as such, only had utility for a limited period of time,
and thus has negligible value.
Because the plant had limited utility and a finite life at the time of the loss, the
loss can be no more than the amount expended under the extra expense portion
of the adjusted loss by Travelers in the amount of $1,694,274.00.
Plaintiffs argued that Mr. Held’s opinion should be excluded because he did not conduct an
appraisal of the Facility either before or after the fire, and furthermore, that he was not
qualified to do so as he is not a licensed real estate appraiser. As a sanction for Defendants
alleged repeated failure to reply to discovery requests, the Plaintiffs further sought both an
order prohibiting Defendants from introducing, as part of their defense, evidence regarding
their policies or procedures as well as an adverse inference jury instruction.
1
NTTC is a separate, non-profit entity which operates the Facility.
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Following a hearing on September 20, 2010, the trial court issued an order precluding
Mr. Held from testifying about the Facility’s value “because this constitutes an appraisal
opinion, which he is not qualified to give.” It further precluded him from testifying regarding
the future plans for the Facility or his opinion regarding its obsolescence, finding such
testimony irrelevant, and even if relevant, concluding that “the probative value of the
evidence, if any, is outweighed by its prejudicial effect.” Without competent proof of the
Facility’s value, the trial court found that the appropriate measure of damages was confined
to the reasonable cost of repair. Because it found Metro’s pre-fire plans for the Facility and
the pre-fire condition of the Facility irrelevant to reasonable repair costs, the trial court
further excluded evidence regarding such. Similarly, the trial court found irrelevant, and
therefore inadmissible, Metro employee Harvey Gershman’s testimony regarding the
estimated demolition costs of the Facility prior to the fire. Finally, the trial court granted
Plaintiffs’ motion for an adverse inference jury instruction for Defendants’ failure to comply
with Plaintiffs’ discovery requests and the court’s orders instructing it to do so.
On September 27, 2010, a six-day trial commenced. On October 5, 2010, the jury
returned a $7,200,000.00 verdict for Plaintiffs based upon Defendants’ negligence and
breach of contract. Plaintiffs then moved for pre-judgment and post-judgment interest. On
December 3, 2010, the trial court entered judgment against Defendants in the amount of
$6,850,000.00 representing a $350,000.00 deduction for prior settlement proceeds. The trial
court granted Plaintiffs’ request for post-judgment interest, but it denied their request for pre-
judgment interest.
On January 3, 2011, Defendants filed a “Motion for Judgment Notwithstanding the
Verdict, Motion for New Trial, and Motion for Suggestion of Remittitur.” The trial court
denied all requested relief, finding that, among other things, credible material evidence
existed to support the jury’s verdict, the evidence preponderated in favor of the jury’s verdict,
and the jury’s verdict “was within the range of reasonableness in light of the evidence and
testimony presented.”
Defendants filed a notice of appeal to this Court on March 9, 2011. On June 7, 2011,
Defendants filed a “Motion to Stay Further Appellate Proceedings and to Remand
Jurisdiction to the Circuit Court for Davidson County, Tennessee for Consideration of Newly
Rendered Relevant Precedent” based upon the decision of City of Pulaski v. Morris, No.
M2010-00047-COA-R3-CV, 2010 WL 3732161 (Tenn. Ct. App. Sept. 23, 2010), which this
Court denied.
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II. I SSUES P RESENTED
Defendants BFI and Allied present the following issues for review, as summarized:
1. Whether the trial court erred in excluding evidence regarding: (1) the value of the
Facility at the time of the fire; (2) the Facility’s pre-fire condition; and (3) the future
plans for the Facility;
2. Whether the trial court allowed all properly preserved offers of proof;
3. Whether the trial court erred in charging only the reasonable cost to repair as
damages; and
4. Whether the trial court erred in ordering an adverse inference jury instruction
sanction.
Additionally Plaintiffs Metro and Travelers present the following issues, as summarized:
1. Whether Defendants waived appellate consideration of the trial court’s exclusion of
Facility value opinions from Mr. Held; and
2. Whether the trial court abused its discretion in denying prejudgment interest.
For the following reasons, we affirm the trial court in all respects.
III. S TANDARD OF R EVIEW
The standard of review of a jury verdict is set forth in Tennessee Rule of Appellate
Procedure 13(d), which provides that “[f]indings of fact by a jury in civil actions shall be set
aside only if there is no material evidence to support the verdict.” Evidentiary rulings,
including decisions regarding the admissibility of expert testimony, however, are reviewed
under the abuse of discretion standard. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257,
263 (Tenn. 1997) (citing State v. Ballard, 855 S.W.2d 556, 562 (Tenn. 1993)); Danny L.
Davis Contractors, Inc. v. Hobbs, 157 S.W.3d 414, 418-19 (Tenn. Ct. App. 2004) (citing
Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992)). “‘The abuse of
discretion standard requires us to consider: (1) whether the decision has a sufficient
evidentiary foundation; (2) whether the trial court correctly identified and properly applied
the appropriate legal principles; and (3) whether the decision is within the range of
acceptable alternatives.’” Danny L. Davis Contractors, 157 S.W.3d at 419 (quoting Crowe
v. First Am. Nat’l Bank, No. W2001-00800-COA-R3-CV, 2001 WL 1683710, at *9 (Tenn.
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Ct. App. Dec. 10, 2001)). Under the abuse of discretion standard, “we will not substitute our
judgment for that of the trial court merely because we might have chosen another
alternative.” Id.
Once an abuse of discretion in the admission or exclusion of evidence is shown, the
party claiming error must also show that the erroneous admission or exclusion “more
probably than not affected the verdict.” See id. at *8 (citing Tenn. R. App. P. 36(b) (“A final
judgment from which relief is available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process.”)).
We review a trial court’s conclusions of law, including the construction of a statute,
under a de novo standard upon the record with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)); Robinson v.
LeCorps, 83 S.W.3d 718, 722-23 (Tenn. 2002) (citing Ivey v. Trans Global Gas & Oil, 3
S.W.3d 441, 446 (Tenn. 1999)).
IV. D ISCUSSION
A. Exclusion of Evidence
As stated above, prior to trial, the trial court granted Plaintiffs’ motions in limine to
exclude evidence regarding the value of the Facility, as well as evidence concerning the pre-
fire condition of the Facility and the pre-fire future plans for it. On appeal, Defendants
contend that such exclusions allowed the jury to hear only a “truncated version of the
evidence” and that the exclusions “formed the basis of a virtual directed verdict for the
Plaintiffs.” We address the evidentiary exclusions appealed below.
1. Construction Expert Jonathon Held’s Valuation Opinions
Defendants retained construction expert Jonathon Held to determine “the amount of
loss” to the Facility from the May 2002 fire. The trial court, however, excluded his valuation
opinions of the Facility concluding that he was not qualified to give such opinions.2
Moreover, it excluded his opinions regarding the future plans for, and obsolescence of, the
Facility concluding that such opinions were irrelevant and even if relevant, that they were
prejudicial.
I. Waiver
2
The trial court did not exclude his repair cost opinions.
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At the outset, we must consider Plaintiffs’ argument that Defendants failed to properly
preserve the exclusion of Mr. Held’s valuation testimony for our review by failing to raise
the issue in their motion for new trial. “It has long been the rule in this state that in order to
preserve errors for appeal, the appellant must first bring the alleged errors to the attention of
the trial court in a motion for new trial.” Fahey v. Eldridge, 46 S.W.3d 138, 141 (Tenn.
2001) (citing Memphis St. Ry. Co. v. Johnson, 114 Tenn. 632, 88 S.W. 169 (1905)). “This
requirement was initially imposed . . . to make more efficient the process of reviewing ‘the
ever increasing number of appeals,’ and . . . this practice significantly aids the functions of
the appellate courts by limiting and defining the issues for review.” Id. at 141-42 (quoting
Board of Equalization v. Nashville, C. & St. L. Ry., 148 Tenn. 676, 680, 257 S.W. 91, 93
(1923)). More importantly, though, motions for a new trial provide the trial judge with “an
opportunity to consider or to reconsider alleged errors committed during the course of the
trial or other matters affecting the jury or the verdict[.]” Id. (quoting McCormic v. Smith, 659
S.W.2d 804, 806 (Tenn. 1983)).
The requirements for a motion for new trial are set forth in Tennessee Rule of
Appellate Procedure 3(e), which provides in relevant part:
in all cases tried by a jury, no issue presented for review shall be predicated
upon error in the admission or exclusion of evidence, jury instructions granted
or refused, misconduct of jurors, parties or counsel, or other action committed
or occurring during the trial of the case, or other ground upon which a new
trial is sought, unless the same was specifically stated in a motion for a new
trial; otherwise such issues will be treated as waived.
Rule 3(e) requires that the grounds upon which a new trial is sought must be “specifically
stated,” but “the Rule is silent as to how specific these grounds must be.” Fahey, 46 S.W.3d
at 142. Prior Tennessee Supreme Court decisions have “stated the standard for specificity
as being ‘as specific and certain as the nature of the error complained of will permit.’” Id.
(citing Johnson, 114 Tenn. at 643, 88 S.W. at 170; McCormic, 659 S.W.2d at 805); see also
State v. Ashburn, 914 S.W.2d 108, 114 (Tenn. Crim. App. 1995) (“Tennessee courts have
held that the grounds for relief set out in a motion for new trial must be as specific and
certain as the nature of the error will permit.”) (citation omitted). Although the Court has
acknowledged that “this standard says little more than does Rule 3(e) itself, several principles
may be determined from the Rules and case law as to the degree of specificity needed in a
motion for new trial to properly preserve issues for appeal.” Id. (footnote omitted).
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First, the motion should contain a concise factual statement of the error,
“sufficient to direct the attention of the court and the prevailing party to it.”
Johnson, 114 Tenn. at 644, 88 S.W. at 170–71. Under this standard, it is
clearly improper to simply allege, in general terms, that the trial court
committed error, either by taking some action or by admitting or excluding
evidence; rather, the motion should identify the specific circumstances giving
rise to the alleged error so that it may be reasonably identified in the context
of the entire trial. See . . . Ashburn, 914 S.W.2d [at] 114 . . . . Accordingly,
a well-drafted motion alleging improper admission or exclusion of testimony,
for example, should identify the witness giving the testimony and provide a
short and plain summary of the testimony improperly admitted or excluded.
Moreover, a well-drafted motion alleging error in the jury instructions should
set forth the language of the instruction given by the court and the language of
the instruction rejected by the court if an alternative instruction was requested.
Id. at 142-43 (internal footnote omitted). Additionally, a motion for new trial should set
forth a specific legal ground for the alleged error, a “general objection” typically being
insufficient. Id. at 143 (citing Tenn R. Evid. 103(a)(1); Jack M. Bass & Co. v. Parker, 208
Tenn. 38, 48, 343 S.W.2d 879, 883 (1961)). Thus, “in addition to setting forth a concise
statement of the factual grounds, a well-drafted motion for a new trial should also identify,
with reasonable clarity, the legal ground upon which the trial court based its actions and
contain a concise statement asserting the legal reasons why the court’s decision was
improper.” Id.
Tennessee Rule of Appellate Procedure 1 states that the Rules “shall be construed to
secure the just, speedy, and inexpensive determination of every proceeding on its merits.”
Thus, Appellate courts should view motions for a new trial in the light most favorable to the
appellant, resolving any doubt in favor of preserving the issue to avoid needlessly favoring
“technicality in form” over substance. Id. at 143. Still, “courts cannot find error where none
has been actually alleged, no matter how liberal a construction is given to the motion.” Id.
In their motion for new trial, Defendants allege the following errors:
A. The Adverse Inference Jury Instruction Arising from the Court’s Decision to
Sanction BFI for Alleged Discovery Violations Clearly Outweighs the Offense
Committed, Improperly Punishes BFI for an Offense Beyond its Control and
Allowed the Jury to Draw an Inference that Contradicts Existing Evidence
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B. Plaintiffs Failed to Produce an Essential Element Of Their Cause Because
Although BFI’s Duties Arose Under Contract, No Contractual Duties Were
Introduced Into Evidence At Trial; Indeed, Metro Never Introduced Any
Evidence Establishing Duties Owed By BFI
C. The Jury Instruction As To The Determination Of The Value Of Loss Was
Inconsistent With Tennessee Law And Defendants Should Have Been
Permitted to Introduce Evidence of The Pre-Loss Plan for Nashville Thermal
D. The Court Must Allow BFI the Opportunity to Present Offers of Proof on
Those Evidentiary Matters Subject to The Court’s September 20, 2010 Order
Limiting BFI’s Presentation of Evidence
E. The Verdict Was Excessive, Against the Weight Of the Evidence and Contrary
To Principles of Justice
Mr. Held is not named in Defendants’ motion for new trial or supporting
memorandum, nor is the exclusion of his valuation testimony expressly alleged as error in
either. Despite this omission, Defendants contend that by raising the allegedly erroneous jury
instruction regarding damages in their motion, that Mr. Held’s exclusion was preserved
because “[t]he jury instruction issue inherently encompasses Mr. Held’s exclusion and the
trial court’s interpretation of [§ 62-39-101, et seq.] since it is for that reason that only part
of the instruction was given to the jury.” Defendants also point to their brief in support of
their motion for new trial,3 which cited various evidence excluded by the trial court’s
September 9, 2010 order4 –including Mr. Held’s testimony regarding the Facility’s value, its
future plans, and its obsolescence–and argued that offers of proof should have been allowed
3
Defendants’ motion for new trial specifically incorporated their brief in support of the motion.
Thus, we find it appropriate to treat the memorandum as part of the motion for new trial. See Filson v. Wells
Fargo Home Mortg. Inc., No. M2007-01842-COA-R3-CV, 2008 WL 3914899, at *6-7 (Tenn. Ct. App. Aug.
25, 2008) (citing Johnson v. Allstate Ins. Co., No. M1999-01639-COA-R3-CV, 2000 WL 1156642 (Tenn.
Ct. App. Aug. 16, 2000)).
4
In their brief and memorandum accompanying their motion for new trial, Defendants “request that
the Court allow [them] a new trial so that the evidence which was excluded originally [in the September 9,
2010 order] can be included in the evidence which the jury uses in its deliberation.” This general allegation
of error, however, is insufficient to preserve an error for appeal. See Fahey, 46 S.W.3d at 143.
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with regard to these exclusions.5 Finally, Defendants argue that Mr. Held’s exclusion was
preserved for appeal based upon their so-called oral requests for reconsideration of his
exclusion throughout the trial.
Applying the above-cited principles to the case at bar, we cannot agree with
Defendants’ assertion that their objection to jury instructions and requests for offers of proof
preserved the issue of the exclusion of Mr. Held’s valuation testimony for appeal.
Defendants’ alleged persistent calls for reconsideration of his exclusion throughout the trial
do not obviate Rule 3(e)’s requirement that grounds be “specifically stated” in a motion for
new trial, and instead, the reconsideration requests only bolster the conclusion that Mr.
Held’s exclusion could have been specifically alleged as error in Defendants’ motion. See
Ashburn, 914 S.W.2d at 114 (citing State v. King, 622 S.W.2d 77, 79 (Tenn. Crim. App.
1981) (“Tennessee courts have held that the grounds for relief set out in a motion for new
trial must be as specific and certain as the nature of the error will permit.”)). We recognize
that motions for new trial should be reviewed in a light favorable to preserving the issues,
but we “cannot create an error where none has been legitimately preserved.” Fahey, 46
S.W.3d at 146. Because Defendants’ motion is substantively deficient, see Malibu
Equestrian Estate, Inc. v. Sequatchie Concrete Serv., Inc., No. M2005-02954-COA-R3-
CV, 2007 WL 2200171, at *4 (Tenn. Ct. App. July 30, 2007)), we find that the issue of Mr.
Held’s valuation testimony exclusion is waived on appeal.
2. Evidence of Pre-Fire Condition, Future Plans & Demolition Costs
Based upon its exclusion of Mr. Held’s valuation testimony, the trial court deemed
irrelevant and/or prejudicial, Mr. Held’s testimony regarding the pre-fire condition of, and
future plans for, the Facility.6 According to Defendants, the trial court also limited other
witnesses from testifying regarding the Facility’s current condition, its alleged impending
demolition, and the costs of such demolition. Specifically, Defendants claim the following
testimonial limitations: Barry Burcham, owner of former co-defendant Classic Pride, Metro
employee Chace Anderson, and Facility manager Floyd Mitchell were prevented from
testifying regarding future demolition of the Facility; Metro employee David Manning was
5
An offer of proof was allowed regarding Mr. Held.
6
Plaintiffs contend that the trial court’s exclusion of evidence regarding pre-fire plans was based
upon uncertainty regarding demolition. However, based upon the trial court’s statements, we cannot agree
with this assessment. For example, the trial court stated its belief that future demolition could be proved and
it further seemed to opine that demolition was unrelated to repair costs.
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prevented from testifying regarding Metro’s acquisition of bonds to build a replacement
facility; and Metro employee Harvey Gersham was prevented from testifying regarding
demolition costs. On appeal, Defendants contend that even if the appropriate measure of
damages is the cost to repair–that is, if Mr. Held’s valuation testimony was properly
excluded–that the pre-fire condition of the Facility and the future plans/costs to demolish the
Facility are, nonetheless, relevant to the cost to repair.
In their motion for new trial, Defendants alleged, as error, the exclusion of evidence
regarding “the pre-loss plan” for the Facility. However, they failed to challenge the
exclusion of evidence concerning the current condition of the Facility, and they alleged only
the erroneous exclusion of evidence related to demolition plans, as opposed to demolition
costs. Demolition costs were noted only to challenge the alleged failure to allow an offer of
proof regarding Mr. Gershman’s testimony. Accordingly, we find that Defendants may not
challenge, on appeal, the exclusion of Mr. Gersham’s demolition cost testimony nor the
exclusion of evidence related to the Facility’s pre-fire condition. See Tenn. R. App. 3(e).
We review the trial court’s exclusion of evidence regarding the Facility’s future plans, based
upon its conclusion that such evidence is irrelevant and/or prejudicial, under the abuse of
discretion standard. McDaniel, 955 S.W.2d at 263 (citations omitted).
Importantly, Defendants fail to identify how the alleged future plans to demolish the
Facility are relevant to Plaintiffs’ interest in the Facility at the time of the fire. Assuming
relevancy, arguendo, we, nonetheless, find that the prejudicial effect of such evidence greatly
outweighs its probative value, and threatens to “open a field of speculation and conjecture
that would cloud the issue of actual loss in a maze of collateral issues.” See Am. Ins. Co. v.
Treasurer, School District No. 37, McCurtain, Oklahoma, 273 F.2d 757, 758 (10 th Cir.
1959) (citation omitted). Accordingly, we conclude that the trial court did not abuse its
discretion in excluding evidence of the alleged future plans to demolish the Facility.
B. Jury Instruction Regarding Damages
At the conclusion of the trial, the trial court instructed the jury as follows with regard
to damages:
If, under the Court’s instructions, you find that the Plaintiff is entitled
to damages, then you must award Plaintiff damages that will reasonably
compensate the Plaintiff for the caused loss or harm which has been proven by
a preponderance of the evidence, provided you also find it was or will be
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suffered by the Plaintiff and was legally caused by the act or omission upon
which you base your finding of liability.
As previously instructed the parties have stipulated to reasonable repair
costs to the cranes and to the amount of the Plaintiff’s business losses.
You are also to determine damages in this matter by considering the
reasonable cost of repairing the damage to the Nashville Thermal plant.
Defendants contend that this charge was error, and that the proper measure of damages was
the lesser of the diminution in value caused by the fire and the cost to repair the Facility.
Plaintiffs contend that Defendants failed to meet their burden of proving the
diminution in value so that it could be offered as an alternative measure of damages. See
Conatser v. Ball, No. M1999-00583-COA-R3-CV, 2001 WL 873457, at *12 (Tenn. Ct. App.
Aug. 3, 2001) (“[T]he plaintiffs do not have the burden of offering alternative measure of
damages. The burden is on the defendant to show that the cost of repairs is unreasonable
when compared to the diminution in value[.]”). Based upon the exclusion of Mr. Held’s
valuation testimony, and the waiver of any challenge to this exclusion on appeal, we find the
trial court did not error in charging reasonable cost to repair as damages.
C. Adverse Jury Instruction
Next, we consider Defendants’ argument that the trial court erred in granting an
adverse jury instruction as a sanction for their alleged failure to comply with discovery
requests. Tennessee Rule of Civil Procedure 37.02 permits a trial court to sanction a party
for failure to comply with court-ordered discovery. Such sanctions may include “[a]n 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[.]” Tenn. R. Civ. P. 37.02(A). Sanctions imposed under Rule 37
are reviewed for abuse of discretion. Amanns v. Grissom, 333 S.W.3d 90, 97 (Tenn. Ct.
App. 2010) (citing Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988)). “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 decisions.’” Id. (quoting Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 709
(Tenn. Ct. App. 1999)).
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We begin our discussion of this issue with a recitation of the facts relevant to the
imposition of the sanction:7
On April 19, 2007, the Court entered a Scheduling Order. In the
Scheduling Order, Plaintiffs were ordered to provide a [Tennessee] Rule [of
Civil Procedure] 30.02(6) Deposition Notice to counsel for Allied Waste.
Allied Waste was ordered to designate the appropriate representative and
schedule the corporate deposition.
An Amended Scheduling Order was entered on August 24, 2007.
Again, Allied Waste was ordered to designate the appropriate representative
of Allied Waste to testify pursuant to Plaintiffs’ Rule 30.02(6) Deposition
Notice.
On November 15, 2007, Plaintiffs provided counsel for Allied Waste
with a draft 30.02(6) deposition notice and requested that the deposition be
scheduled in December or January. . . .
For several months, Allied Waste failed to designate a corporate
representative for deposition or otherwise correspond with Plaintiffs regarding
this issue.
Plaintiffs filed a Notice of Rule 30.02(6) Deposition of Allied Waste’s
corporate representative(s) on January 7, 2008, seeking information regarding
specific topics enumerated within the deposition notice. Due to Allied Waste’s
failure to cooperate in scheduling the deposition, Plaintiffs unilaterally noticed
the deposition for January 24, 2008.
The parties ultimately agreed to re-schedule this deposition for March
25, 2008, and Allied Waste’s counsel agreed not to object to the taking of this
deposition after the February 1, 2008, discovery deadline in effect at that time.
The parties filed an Agreed Order memorializing this agreement, which was
entered on February 8, 2008.
7
This timeline of events is taken from Plaintiffs’ Motion for Sanctions, the accuracy of which
Defendants acknowledge.
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Counsel for Allied Waste contacted Plaintiffs’ counsel the week before
the Allied Waste corporate deposition was scheduled and advised Plaintiffs’
counsel that the individual who was designated to testify on behalf of Allied
Waste, Ms. Michelle Casey, did not possess sufficient corporate knowledge
regarding the Rule 30.02(6) deposition topics to provide much substantive
testimony. Allied Waste’s counsel further advised Plaintiffs’ counsel that Mr.
Wayne Gill would be Allied Waste’s main corporate designee. Based on this
representation, the parties agreed to reschedule the corporate deposition.
Pursuant to the parties’ agreement to reschedule the Allied Waste
corporate deposition, Plaintiffs made several attempts to obtain mutually
available dates to take Allied Waste’s corporate deposition. Counsel for Allied
Waste was again unresponsive to the multiple attempts made by Plaintiffs’
counsel to communicate regarding this issue.
Since counsel for Allied Waste did not respond to Plaintiffs’ counsel’s
attempts to agree on a date, Plaintiffs re-noticed the Rule 30.02(6) deposition
of Allied Waste on July 28, 2008, unilaterally setting the deposition for August
27, 2008.
Plaintiffs’ counsel also filed a Motion to Enforce Court’s Order and for
Appropriate Sanctions on August 6, 2008, requesting that the Court enter an
order requiring Allied Waste to comply with the previous Scheduling Orders
ordering it to designate a corporate representative for deposition. Plaintiffs
also sought sanctions for Allied Waste’s repeated failures to comply with the
Court’s orders.
Allied Waste’s continued failure to designate a corporate representative
was addressed in two Case Management Conferences with Special Master
Nichols on August 28, 2008 and September 2, 2008. Pursuant to those Case
Management Conferences, a Case Management and Scheduling Order was
entered on September 30, 2008, setting the corporate depositions of Allied
Waste for October 13 and 15, 2008.
Allied Waste designated Connie Gecich, Michel[l]e Casey, and Wayne
Gill as its corporate representatives. Allied purportedly determined which
corporate representative possessed knowledge regarding each of the topics
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listed in Plaintiff’s Rule 30.02(6) Deposition Notice and notified Plaintiffs’
counsel which deponent would testify regarding each topic. The corporate
depositions of Ms. Gecich and Ms. Casey were conducted telephonically on
October 13, 2008. The corporate deposition of Mr. Gill was conducted on
October 15, 2008, in Nashville, Tennessee.
The designated corporate deponents were unable to answer questions
regarding all of the deposition topics for which they were designated to
testify–a fact Allied Waste was aware of when it cancelled the previously
scheduled deposition of Michelle Casey in March 2008.
At a December 10, 2008, Case Management Conference, Plaintiffs
raised the issue of Allied Waste’s repeated failure to properly designate a
corporate deponent. Special Master Nichols ordered the parties to attempt to
resolve the discovery dispute regarding the completion of the Allied Waste
corporate deposition by December 30, 2008. If the parties were unable to
resolve the dispute, Plaintiffs were to file the appropriate discovery motion on
or before January 15, 2009.
Again, Allied Waste failed to designate a corporate deponent.
On January 15, 2009, Plaintiffs filed a Motion to Compel Discovery
from Allied Waste. The Court heard oral arguments on Plaintiffs’ Motion, as
well as other matters, on February 13, 2009.
After considering the procedural history of the case, the motion papers
filed by the parties and statements made in court, the Court entered an Order
on March 20, 2009, granting the Plaintiffs’ Motion to Compel and ordering
Allied Waste to identify a competent corporate representative who can
authenticate and knowledgeably discuss the documents produced by Allied
Waste. The Court granted Allied Waste 21 days from the entry of the Order,
or up to and including April 10, 2009, to comply with the Order.
....
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Yet again, Allied Waste failed to comply with an Order of th[e trial]
Court.
On January 15, 2009, Plaintiffs filed a Motion to Compel Discovery, seeking an order
compelling Allied Waste to immediately provide the name of its corporate designee(s) and
to identify dates of availability to conduct a deposition. Plaintiffs further sought attorney fees
and expenses associated with the motion. In a March 20, 2009 Order, the trial court granted
Plaintiffs’ Motion to Compel, and it requested further information regarding Plaintiffs’ fees
and expenses incurred.
On April 17, 2009, Plaintiffs filed a Motion for Sanctions seeking reasonable
expenses incurred in enforcing discovery, including attorney fees, as well as the entry of a
default judgment for Allied Waste’s “disobedience” of court orders. In their August 26, 2010
Motion In Limine, Plaintiffs recounted their discovery difficulties and they informed the trial
court that they had deposed Defendant’s designee David Murphy, but he, like previous
designees, was unable to testify regarding the corporate procedures and guidelines in place
at the time of the fire. Plaintiffs then requested “that the Court enter an order prohibiting
Allied Waste/BFI from putting forth a defense to the claims asserted in this matter at trial[,]”
or alternatively, they requested “that the Court instruct the jury that it should draw a negative
inference from the absence of relevant Allied Waste policies and procedures, and/or any
other sanctions the Court deems appropriate.” Following a hearing, the trial court ordered
an adverse inference jury instruction as follows:
The Court instructs you that BFI was required by Court Order to produce
certain corporate policies and procedures and a witness to testify about them
in this lawsuit. Those policies and procedures relate to fire safety and the
hiring and management of subcontractors. BFI failed to comply with the
Court’s Order. Accordingly, the Court instructs you that you may infer that the
evidence that BFI failed to produce would have been unfavorable to it. You
are not, however, required to determine in what respect it would have been
unfavorable nor to give this adverse inference any particular weight in
comparison with other facts and circumstances. The inference to be drawn
from the conduct of BFI may well be a persuasive factor in the process of
weighing and interpreting the testimony offered by BFI.
On appeal, Defendants argue that the sanction was inappropriate because the policies
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and procedures, themselves, were produced to Plaintiffs, because the identity of Eileen
Shuler, who was ultimately identified in 2010 as the corporate representative who could
testify regarding the policies and procedures, was made known to Plaintiffs in October 2008
several years before the adverse jury instruction was requested, and because the jury
instruction was “overbroad and unrebuttable[.]” At trial, however, Defendants objected only
to the adverse inference jury instruction being given; they did not object to the language of
the jury instruction.8 Thus, on appeal we will not consider Defendants’ arguments regarding
the breadth and alleged unrebuttable nature of the instruction.
Defendants acknowledge that they failed to formally identify a corporate witness
under Rule 30.02(6) who could ably testify regarding the origin of company policies and
procedures until early September 2010, just weeks before trial commenced. However, they
assert that in her 2008 deposition, “[M]ichelle Casey could not answer all of Plaintiffs’
questions regarding policies and procedures, [but] she identified her co-employee, Eileen
Shuler, as the person who could.”9 Plaintiffs’ failure to depose Ms. Shuler, following her
identification by Ms. Casey, Defendants contend, renders sanctions inappropriate.
Tennessee Rule of Civil Procedure 30.02(6) provides in relevant part that
[a] party may in the party’s notice and in a subpoena name as the deponent a
public or private corporation or a partnership or association or governmental
agency and describe with reasonable particularity the matters on which
examination is requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for each person
designated, the matters on which the person will testify.
8
At trial, the following exchange was made:
Plaintiffs’ counsel: And so really the only issue that’s out there where there is a problem, it’s not about
the wording of the instruction anymore. It’s just about whether you should give one
at all.
In other words, the defendant still isn’t - - they’re not backing away from
“we shouldn’t have been sanctioned.” But with respect to the language of the
instruction, there is no objection on either side.
Defendants’ counsel: That’s a correct statement of the defendants[’] position.
9
It appears that Ms. Casey’s deposition is not included in the record before us. However, from the
parties’ briefs it appears that Ms. Shuler was identified by Ms. Casey as having information regarding the
policies and procedures at issue, but Ms. Shuler was never designated by Defendants as its corporate
representative.
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(emphasis added). Accordingly, the burden was on Defendants to designate Ms. Shuler.
Moreover, Plaintiffs cannot be responsible for failing to identify Ms. Shuler as the
appropriate corporate representative when Defendants, themselves, were admittedly unaware
that she was the appropriate designee.10 Furthermore, the production of corporate documents
does not satisfy the trial court’s order to designate a corporate representative for deposition
regarding such. In sum, we find that the trial court did not abuse its discretion in ordering
an adverse inference jury instruction as a sanction for Defendants’ failure to comply with
discovery orders.11
D. Prejudgment Interest
Finally, we address Plaintiffs’ argument that the trial court erred in refusing to award
prejudgment interest. We review a trial court’s decision to award or deny prejudgment
interest under the abuse of discretion standard. Post v. Post, No. M2008-01488-COA-R3-
CV, 2009 WL 1850880, at *4 (Tenn. Ct. App. June 26, 2009).
Tennessee Code Annotated section 47-14-123 allows for prejudgment interest “in
accordance with the principles of equity at any rate not in excess of a maximum effective rate
of ten percent (10%) per annum[.]” In Myint v. Allstate Insurance Co., 970 S.W.2d 920
(Tenn. 1998), our Supreme Court set forth the standard by which courts award prejudgment
interest. “Myint departed from prior decisions strictly limiting prejudgment interest awards
to cases involving substantial certainty in the existence and amount of an underlying
obligation and placed the principles of equity at the forefront of a court’s decision[.]” Poole
v. Union Planters Bank, N.A., 337 S.W.3d 771, 790 (Tenn. Ct. App. 2010). According to
Myint,
the court must decide whether the award of prejudgment interest is fair, given
the particular circumstances of the case. In reaching an equitable decision, a
court must keep in mind that the purpose of awarding the interest is to fully
compensate a plaintiff for the loss of the use of funds to which he or she was
legally entitled, not to penalize a defendant for wrongdoing.
10
Before the trial court in September 2010, Defendants’ counsel stated that “I didn’t know what to
say other than the fact things were going on, they got by me, I didn’t know about Ms. Schuler. Believe me,
I wish that I had known. It would have solved everybody a lot of problems.”
11
Based upon this conclusion, we find it unnecessary to discuss Defendants’ argument that the trial
court erred in allegedly refusing to permit them to make an offer of proof regarding the testimony of Ms.
Shuler.
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Id. (quoting Myint, 970 S.W.2d at 927 (citing Mitchell v. Mitchell, 876 S.W.2d 830, 832
(Tenn. 1994); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992)).
“This Court has interpreted the decision in Myint as effecting a sea change in the principles
guiding a trial court’s decision; equity and fairness, in almost all cases, now mandate full
compensation for losses that the defendant caused, including economic loss stemming from
the plaintiff’s inability to earn interest on funds he should have received.” Id. at 791 (citing
General Const. Contractors Ass’n, Inc. v. Greater St. Thomas Baptist, 107 S.W.3d 513, 526
(Tenn. Ct. App. 2002)). However, “[t]he fact that equity and fairness will frequently require
courts to award prejudgment interest does not suggest that the denial of such an award is
lightly overturned on appeal. A trial court’s decision is still reviewed under an abuse of
discretion standard and will stand so long as it finds support in the record and the applicable
equitable factors.” Poole, 337 S.W.3d at 791.
Equitable factors relevant to the decision to award or deny prejudgment interest
include: “(1) promptness in the commencement of a claim, (2) unreasonable delay of the
proceedings by either party, (3) abusive litigation practices by either party, (4) the certainty
of the existence of an underlying obligation, (4) the certainty of the amount in dispute, and
(5) prior compensation for the lost time value of the plaintiff’s money.” Id. (citing In re
Estate of Ladd, 247 S.W.3d 628, 647 (Tenn. Ct. App. 2007); Christmas Lumber Co. v.
Valiqa, 99 S.W.3d 585, 596 (Tenn. Ct. App. 2002); General Const.. 107 S.W.3d at 526;
Scholz v. S.B. Intern., Inc., 40 S.W.3d 78, 83-84 (Tenn. Ct. App. 2000)).
Plaintiffs maintain that each of the above-cited factors weighs in favor of awarding
prejudgment interest in this case. Specifically, Plaintiffs claim that prejudgment interest was
appropriate because Plaintiffs promptly pursued their claims against Defendants, because
Plaintiffs did not unreasonably delay the litigation of the matter, and because the amount of
recovery was certain. Plaintiffs seem to contend that the trial court ignored the applicable
factors, and instead based its finding solely upon “principles of equity.” This, they claim,
was an abuse of discretion.
The transcript from the hearing before the trial court, however, reveals that the trial
court appropriately considered the relevant factors. At the hearing, the trial judge stated as
follows:
Well, let me go ahead and rule on that. I don’t think this is an appropriate case
for prejudgment interest. I think the principles of equity, the degree to which
the principal amount is uncertain, the degree to which the principal amount is
in dispute are all the issues that were in this case. Arguments were well done
on these issues. I put more emphasis on principles of equity than I do the other
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two. The factors that are set out in Myint, those are not the only factors I can
consider in exercising discretion, I realize, but I’m going to stick to case law
and use those factors. But I weigh more heavily my decision on principles of
equity.
Even if Plaintiffs are correct that the “majority of the damages were stipulated” by
Defendants at trial, damages were highly contested until Mr. Held was excluded only days
before the commencement of trial. The trial court found it appropriate, under principles of
equity and the particular circumstances of the case, to give increased consideration to the
damage dispute. We find the trial court’s decision to deny Plaintiffs’ request for prejudgment
interest finds support in both the applicable legal principles and in the evidence contained
in the record. See Poole, 337 S.W.3d at 790. Accordingly, the trial court’s discretionary
determination must stand.
IV. C ONCLUSION
For the aforementioned reasons, we affirm the trial court in all respects. Costs of this
appeal are taxed to Appellants, BFI Waste Services, LLC and Allied Waste North America,
Inc., and their surety, for which execution may issue if necessary.
ALAN E. HIGHERS, P.J., W.S.
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