IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 20, 2010 Session
TY AMANNS, ET AL. v. JEFF GRISSOM, ET AL.
Appeal from the Circuit Court for Knox County
No. 1-652-04 Dale C. Workman, Judge
No. E2009-00802-COA-R3-CV - FILED JUNE 30, 2010
This suit was filed in Circuit Court after first being filed and then voluntarily non-suited in
Chancery Court. After multiple discovery abuses, the Trial Court entered an order pursuant
to Tenn. R. Civ. P. 37 dismissing the plaintiffs’ suit. Plaintiffs appeal to this Court. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Darren V. Berg, Martin L. Ellis, and Steven B. Johnson, Knoxville, Tennessee, for the
appellants, Ty Amanns and Kim Amanns.
Linda J. Hamilton Mowles, and Jimmy D. Holbrook, Jr., Knoxville, Tennessee, for the
appellees, Jeff Grissom, and Grissom Heat & Air, Inc.
John M. Neal, Knoxville, Tennessee, for the appellees, Jon Pence, and East Tennessee Gas
Products, Inc.
OPINION
Background
In November of 1997, Ty Amanns and Kim Amanns (“Plaintiffs”) sued Jeff
Grissom (“Grissom”) and Grissom Heat & Air, Inc. (“Grissom Heat & Air”) in the Chancery
Court for Knox County (“Chancery Court”) concerning the installation of a humidity control
unit in an indoor swimming pool room. At some point in time, Plaintiffs added Jon Pence
(“Pence”) and East Tennessee Gas Products, Inc. (“East TN Gas”) as additional defendants
in that suit.
In response to interrogatories propounded to Plaintiffs in the Chancery Court
suit, Plaintiffs produced several pages of photographs purporting to depict mold, among other
things. Several of these photographs appear to depict walls and window ledges, and two of
the photographs purport to depict mold on furniture. One of the photographs purports to
depict mold on a lampshade. In late April or early May of 2001, Plaintiffs filed a response
to interrogatories and requests for production propounded to them by Pence and East TN Gas
stating, in pertinent part:
5. Please itemize all economic losses which the Plaintiffs claim to have
suffered as a result of the wrongful acts of any of the Defendants. Please
produce copies of all documents in the possession or under the control of the
Plaintiffs which document such losses.
RESPONSE:
***
5.17 Loss of furniture, fixtures, appliances, equipment, clothing and
other personal effects – unknown at this time.
***
9. Please state the date of each alleged failure of the equipment which
is involved in this lawsuit and produce any documentation in the possession
or under the control of the Plaintiffs which would demonstrate the existence
of such failures.
RESPONSE: The de-humidification system failed for the purposes for
which it was intended to operate from the date of its startup on June 7, 1997
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and continuously thereafter due to the erroneous and wrongful calculations
made by the Defendants Grissom and Pence for the sizing of the de-
humidification unit that would be required to service the pool area within the
ranges requested by the Plaintiffs. Plaintiffs’ responses to Interrogatories Nos.
2, 4, 5, 6, and 7 are adopted and incorporated herein by reference.
Additionally, there are photographs showing fungi and mold that can be
viewed and/or copied at Defendants’ discretion at the offices of Plaintiffs’
counsel.
Plaintiffs voluntarily non-suited the Chancery Court suit in November of 2003.
In October of 2004, Plaintiffs sued Grissom, Grissom Heat & Air, Pence, East
TN Gas, and Dryline Systems, Inc. (“collectively Defendants”) in the Circuit Court for Knox
County (“Trial Court”). Plaintiffs’ Circuit Court complaint contained an ad damnum clause
of $1,500,000.00 in compensatory damages and $500,000.00 in punitive damages. It is this
suit now before us on appeal.
During the many years that Plaintiffs’ claims have been pending, first in
Chancery Court and then in Circuit Court, Plaintiffs have been represented by several
different attorneys. Trial dates have been set and then continued on more than one occasion.
In May of 2008, Plaintiffs’ counsel at that time was granted leave to withdraw as attorney of
record for Plaintiffs. At that time, trial was set for July of 2008. Plaintiffs’ current counsel
filed a Notice of Appearance on June 9, 2008. On June 20, 2008 Plaintiffs filed a motion
seeking to increase the ad damnum in their complaint to four million dollars due to alleged
medical problems caused by alleged exposure to mold.
During discovery, Defendants sought to depose Helen Lilly, Kim Amanns’
grandmother. On August 21, 2007 Plaintiffs filed a motion to quash the subpoena alleging
that Ms. Lilly was unable to be deposed as she “is 91 years of age, in failing health and is
believed to suffer from mild dementia.” Defendants later discovered that the real property
at issue in the subject suit was deeded to Kim Amanns by Ms. Lilly, but was not deeded to
Ty Amanns. Pence and East TN Gas moved to strike the claims of Ty Amanns with regard
to alleged damages to the house.
In July of 2008, Ms. Lilly executed a Correction Warranty Deed which states,
in pertinent part:
THIS CONVEYANCE IS BEING MADE FOR THE PURPOSE OF
ADDING THE NAME OF TY AMANNS, HUSBAND OF KIMBERLY S.
AMANNS, AS A GRANTEE WHICH NAME WAS ERRONEOUSLY
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OMITTED IN THE WARRANTY DEED DATED 4 JANUARY 1995, OF
RECORD IN BOOK 1168, PAGE 789, IN THE REGISTER’S OFFICE FOR
ANDERSON COUNTY, TENNESSEE. IT IS THE INTENT OF THIS
CONVEYANCE TO RELATE BACK AND TAKE AFFECT [sic] FROM
THE DATE OF THE ORIGINAL DEED DATED 4 JANUARY 1995.
Pence and East TN Gas then sought an order requiring Ms. Lilly to submit to a mental
examination to determine her capacity to execute legal documents.
After a hearing, the Trial Court entered an order, inter alia, granting
Defendants permission to take the deposition of Ms. Lilly and ordering Plaintiffs to provide
Defendants with copies of Ms. Lilly’s medical records before her deposition. During Ms.
Lilly’s deposition, Ms. Lilly was asked specifically whether she suffered from any form of
dementia or whether she ever had been diagnosed with dementia, and she answered in the
negative. It is clear from reading her deposition testimony that Ms. Lilly does not, and never
has, suffered from dementia.
On July 25, 2008 the Trial Court held a hearing on several pending motions
including a motion to exclude Plaintiffs’ expert Dr. Johanning. During the hearing, the Trial
Court ruled that it would hold a Tenn. R. Evid. Rule 705 hearing prior to allowing Dr.
Johanning to testify before the jury in order to determine if Dr. Johanning was qualified to
testify. As soon as the Trial Court made this oral ruling, Plaintiffs orally moved to continue
the trial set to begin within the next week. The Trial Court granted the request to continue
but specifically stated: “We won’t start all over again.” Plaintiffs’ counsel assured the Trial
Court:
No, Your Honor, we’ll go with the experts we’ve listed, we’ll go with the
experts that have been discovered. You know, in the unlikely event something
happens and additional diagnostic tests are needed - - …. You know what I
mean. I mean, we’d have to clean that up. We’re not going to go with a new
array of witnesses.
Trial was re-set for April of 2009.
Despite the Trial Court’s clear direction and Plaintiffs’ counsel’s statement in
response to the Trial Court’s direction at the July 25, 2008 hearing, on September 2, 2008
Plaintiffs filed a supplemental witness list and a supplemental Rule 26 disclosure listing not
one, but ten new expert witnesses. Defendants moved the Trial Court to exclude Plaintiffs’
new experts. The Trial Court held a hearing and entered an order on September 26, 2008
excluding all ten of Plaintiffs’ newly disclosed experts and reiterating that “Plaintiffs shall
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be limited to the experts which had been disclosed prior to Plaintiffs’ oral Motion for
Continuance on July 25, 2008.”
On October 31, 2008 Plaintiffs filed a response to interrogatories propounded
by Pence and East TN Gas. Plaintiffs responded to interrogatory number 4 of the Pence and
East TN Gas interrogatories (“Interrogatory 4") stating, in pertinent part:
4. Please itemize the $46,202 in personalty which plaintiffs claim to
have lost as a result of alleged moisture and mold damage to their home.
Please state the manner by which the value was calculated. Please produce
every piece of documentary evidence including, but not limited to, sales
tickets, invoices, charge receipts and checks which demonstrate how much
plaintiffs paid for the personalty. Please produce copies of all receipts, checks
and charges, together with every other piece of documentation in plaintiffs’
possession which demonstrates how much plaintiffs paid for the replacements
to the allegedly lost personalty.
RESPONSE: See partial list attached as Exhibit 4 totaling
$66,670.06 for furniture only. This figure does
not include televisions, computers, printer, Sony
stereo and Bose speakers. The value of this
category is estimated at $15,000.00. Please note
that all receipts, checks or any other paper
documentation that were present in the subject
home at the time we vacated the premises which
would document the cost of the various items
contained within the home, were destroyed as
they had been contaminated by the mold in the
home. It is impossible to estimate the true value
of all items of personalty in the home that were
discarded. These items would include numerous
small items including all bedding, all bath and
kitchen towels, all food items, various cooking
and eating utensils and all photographs.
On October 31, 2008, Pence and East TN Gas filed a motion to compel
discovery which provided, in pertinent part:
Interrogatory number 4 addresses the allegedly lost personal property.
Plaintiffs’ response says they are seeking $66,670.06 for furniture alone,
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together with lost televisions, computers, printers, etc. in the amount of
$15,000. The Plaintiffs say that every shred of documentation which would
show what was actually in the house before the loss has been destroyed, so that
it is already impossible for the Defendants to verify what was actually removed
from the house. At the same time, Plaintiffs have failed to provide the
itemized receipts demonstrating what they purchased from Ethan Allen. They
have simply provided a number of billing invoices that reflect totals of the
purchases. Copies are attached for the Court’s information. Without more
detailed information, it is impossible for the Defendants to determine what
property was actually lost, or to determine whether the furniture purchased by
Plaintiffs was actually placed in their double-wide. The Defendants therefore
move the Court for an Order compelling Plaintiffs to produce clean,
unredacted copies of all of the documents produced in their discovery
responses, and also ordering Plaintiffs to itemize the property purchased at
Ethan Allen, and to produce each receipt for each item of furniture.
In November of 2008, Pence and East TN Gas filed a Motion for Sanctions
Arising From Spoliation of Evidence alleging that “Plaintiffs have, however, intentionally
destroyed all evidence that would allow Defendants to determine the nature and value of the
personal property supposedly damaged.” On December 4, 2008, Plaintiffs filed a response
to the motion for sanctions arising from spoliation along with an affidavit of Ty Amanns,
which stated, in pertinent part:
4. My wife, Kim Amanns, and I have never intentionally destroyed or
permitted the destruction of evidence in connection with this or the previous
litigations filed on our behalf involving exposure to mold. Prior to vacating
our home we disposed of only furnishings and personalty which had visibly
been contaminated with mold. On or after June 2000 and after vacating our
home we disposed of furnishings and personalty which we believed had been
contaminated by mold because of the symptomotology we were experiencing
in an attempt to alleviate or lessen these symptoms. We vacated the premises
and have not lived in the home since that time for this same reason.
5. In replacing any and all such furnishings and personalty which had
been disposed of, we always attempted replacement of any and all items with
items of like kind, nature, quality and if possible cost. This replacement
became necessary because we believed that it would be unhealthy to move
items which had been located in our home and exposed to mold into the mobile
home in which we now reside. Some furnishings and personalty exposed to
mold remain in the home which we vacated.
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***
10. My wife, Kim Amanns, and I have provided or will provide in a
timely fashion photographs and an inventory setting forth the estimated value
of any and all furnishings and personalty in our mobile home which was
bought to replace mold-contaminated furnishings and personalty in the home
we vacated.
On December 5, 2008, Plaintiffs filed a motion seeking to add yet another
expert witness/treating physician to their disclosure list. The Trial Court held a hearing on
several pending motions and entered an order on December 16, 2008 finding and holding,
inter alia:
2. With respect t[o] Defendants’ Motions for Entry to allow
photographing of Plaintiffs’ personal property and Defendants’ Motion to
Compel Discovery, the Court holds that the measure of damages for personal
property allegedly lost by Plaintiffs is the difference between the fair cash
market value of the property as it was before any damage or loss occurred and
the fair cash market value of the property after the loss occurred. The amounts
paid by Plaintiffs for replacement property, particularly the furniture purchases
from Ethan Allen, are not relevant to determination of Plaintiffs’ alleged loss
and proof of those expenses will not be allowed. Because Plaintiffs may not
introduce evidence of the sums paid for alleged replacement property,
Defendants’ Motions for Entry into Property and to Compel Discovery are
moot, and are, therefore, DENIED.
***
5. Plaintiffs’ Motion to Supplement Rule 26 Disclosures and add Dr.
Alvin Teirstein as an expert witness is DENIED. Consistent with the Court’s
prior rulings on the subject of additional experts, the time for attempting to add
new experts has expired.
On January 5, 2009, Plaintiffs filed a Supplement to Plaintiffs’ Rule 26
Disclosures disclosing new opinions given by two of Plaintiffs’ expert witnesses and stating:
“Both Mr. Daves and Mr. Weekly are available for depositions between now and the
deadline for discovery set out by the court to testify in more detail to their opinions and the
basis therefore.” On January 16, 2009 Grissom and Grissom Heat & Air filed a motion to
exclude Plaintiffs’ newly disclosed expert opinions and for sanctions.
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The Trial Court held a hearing on the motion to exclude expert opinions and
for sanctions and entered an order February 13, 2009 finding and holding, inter alia:
ORDERS, ADJUDGES, and DECREES that the Defendants’ Motion
to Exclude Expert Opinions and for Sanctions is GRANTED. Plaintiffs and
their experts are hereby prevented and excluded from presenting expert
opinions and/or any supporting data not previously formed and disclosed to the
Defendants prior to the July 25, 2008 date of this Court’s granting of a limited
continuance to the Plaintiffs.
This Court further finds that Plaintiffs and their counsel have repeatedly
disregarded this Court’s orders and directives concerning the conditions of the
limited continuance of this matter provided by this Court on or about July 25,
2008. The Plaintiffs have repeatedly filed new disclosures of additional
experts and/or expert opinions and have attempted to notice the disclosures of
additional experts and/or expert opinions and have attempted to notice the
depositions of new fact witnesses, all in contravention of this Court’s orders
and directives. This Court finds that the Defendants’ legal counsel had to
spend significant time to respond to the Plaintiffs’ several filings. In
accordance with the Affidavit of counsel for the Defendants, Jeff Grissom and
Grissom Heat & Air, Inc., this Court hereby further
ORDERS, ADJUDGES, and DECREES that the Plaintiffs are hereby
sanctioned in the amount of $11,555.00, which the Plaintiffs shall pay to and
reimburse the Defendants, Jeff Grissom and Grissom Heat & Air, Inc., c/o
their attorney ….
On January 21, 2009, Plaintiffs filed a supplement to their response to the
motion for sanctions arising from spoliation (“Supplement”). The Supplement, which was
provided in response to Interrogatory 4, had attached to it a voluminous inventory list
documenting items of personalty along with the date and place purchased and the cost. The
Supplement also had attached more than 150 pages of copies of receipts for purchases some
of which date back as far as the early 1990s, and some of which appear to have been charged
in Kim Amanns’ maiden name. Most of the more than 150 pages show more than one receipt
per page. The receipts are for all sorts of personalty including such items as soap and powder
purchased from Profitt’s in 1996. Also attached to the Supplement were copies of hundreds
of photographs of personalty and a voluminous list documenting what items of personalty
each of the photos depict along with the cost or value of each item. The more than 375 pages
of photographs show, among other things, items of clothing, household furnishings, kitchen
supplies, and artwork. The Supplement also had attached an inventory several pages long
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detailing items of personalty for which it was asserted that no photographs or receipts were
available along with their place of purchase and an asserted cost and/or value for most of the
items. This list included such items, among others, as a washer and dryer; a treadmill; fresh
pears, bananas, and plums; ketchup, mustard, and mayonnaise; and frozen vegetables.
Plaintiffs also filed an affidavit of Ty Amanns on January 21, 2009 which
states, in pertinent part:
2. As I stated in my previous affidavit, my wife and I disposed of mold
contaminated items based upon our symptomology and a desire to avoid
contamination of our new dwelling. Based upon the advice of David Weekly
pertaining to remediation, my wife and I chose to dispose of the majority of the
items of personal property, rather than clean them, because cleaning as set
forth by the guidelines provided by the Environmental Protection Agency
would have been cost prohibitive.
3. Additionally, as set forth in my previous affidavit, due to concerns
for cross-contamination of our new dwelling, we felt it necessary to dispose
of other items.
On February 27, 2009 Plaintiffs filed another affidavit of Ty Amanns which states, in
pertinent part:
25. As a result of the defendants’ motion on spoliation, Mr. Ellis and
Mr. Johnson met with Kim and I on or about December 23, 2008. Messrs.
Ellis and Johnson made it absolutely clear that we were to search for and
attempt to locate anything and everything in our possession that might
arguably show what was contained as contents of our house. It was apparent
to us at that point that the photographs in the possession of Attorney Holbert
[one of Plaintiffs’ prior attorneys] had not been physically turned over through
Robert Pryor, Jr. to Mr. Ellis. Kim and I spent days looking through our
possessions, even going so far as to search through a storage building and,
much to our surprise, we were able to locate copies of photographs that had
previously been tendered to Ken Holbrook. It was these photographs that we
presented to Messrs. Ellis and Johnson on January 14, 2009. They were as
shocked and surprised as we were that these photographs existed. Once we
showed the photographs to Messrs. Ellis and Johnson, we were immediately
told to prepare an inventory, which Kim did, taking her several weeks to
complete. It was these photographs and inventory sheets that were attached to
the plaintiffs’ response to defendants’ Interrogatories and Requests for
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Production of Documents Propounded [sic] to the Plaintiffs.
***
30. Throughout the entire course of the litigation, from the time it was
filed in Knox County Chancery Court, through a hearing which went forward
on December 5, 2008 before the Honorable Dale C. Workman, we had been
advised by our counsel of record and, were under the impression, that the
measure of damages for personalty loss was the replacement cost of the
personalty and/or furnishings which had been damaged and/or destroyed.
On February 2, 2009, Defendants filed a Joint Motion to Dismiss alleging, in
part, that “Defendants have been severely and irreparably harmed and have been unable to
prepare a full and complete defense due to the actions of the Plaintiffs and their counsel.”
In the Joint Motion to Dismiss Defendants raised issues regarding difficulties in inspecting
and testing Plaintiffs’ real property, difficulties in attempting to depose Ms. Lilly, and
Plaintiffs’ withholding of evidence with regard to damages.
The Trial Court held a hearing on Defendants’ Joint Motion to Dismiss and on
March 17, 2009 entered its Final Order of Dismissal With Prejudice finding and holding:
This matter came before this Honorable Court on March 13, 2009 upon
the Defendants’ Joint Motion to Dismiss; and the Court having reviewed
pleadings and other submissions of the parties, having heard the arguments of
counsel, and having considered the entire record in this matter, finds that the
Defendants’ Joint Motion to Dismiss is well-taken and should be granted.
The Court finds that the record is replete with evidence that the
Plaintiffs have not and do not intend to comply with the orders and directives
of this Court; that the Plaintiffs have engaged in providing multiple
misrepresentations to this Court, including misrepresentations in their response
to the Defendants’ Joint Motion to Dismiss; that the Plaintiffs have failed to
participate in discovery in good faith, and have failed to provide the
Defendants accurate, timely, and complete discovery; that the Plaintiffs’
actions have prevented the Defendants from being able to present a full and
complete defense in this matter; that the Plaintiffs’ cause of action was first
filed in Knox County Chancery Court in 1997 until it was voluntarily
dismissed by the Plaintiffs in 2003, and then re-filed by the Plaintiffs in this
Court, where it has been pending since 2004; and that this Court has
previously admonished the Plaintiffs and has sanctioned the Plaintiffs short of
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dismissal in attempts to discourage their improper behavior before this Court,
to no avail; wherefore, it is hereby
ORDERED, ADJUDGED, and DECREED that the Plaintiffs’ cause of
action is DISMISSED with FULL PREJUDICE against the refiling of same;
and that costs are hereby taxed to the Plaintiffs, upon whom execution may
issue if necessary.
Plaintiffs appeal to this Court.
Discussion
Although not stated exactly as such, Plaintiffs raise four issues on appeal: 1)
whether the Trial Court erred in sanctioning Plaintiffs in the amount of $11,555.00; 2)
whether the Trial Court erred in dismissing Plaintiffs’ suit; 3) whether Plaintiffs were
deprived of due process and their day in court; and, 4) whether the Trial Court erred in
determining that one of the Defendants’ experts was a consulting expert and ordering that
Plaintiffs could not use this expert’s report.
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).
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.
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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;
***
37.03. Failure to Disclose or Refusal to Admit. – (1) 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, at a hearing, or on a motion any witness
or information not so disclosed. In addition to or in lieu of this sanction, the
court on motion may impose other appropriate sanctions. In addition to
requiring payment of reasonable expenses (including attorney fees) caused by
the failure, these sanctions may include any of the actions authorized under
Rule 37.02(A), (B), and (C) and may include informing the jury of the failure
to supplement or amend.
Tenn. R. Civ. P. 37.
Discussing the sanction of default available under Tenn. R. Civ. P. 37.02(C),
this Court has noted “that a trial court faced with a party who fails to obey an order to
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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 Hous. Inc., 983 S.W.2d 230, 236 (Tenn. Ct. App. 1998)
(internal citations omitted)). This same sanction is available through Tenn. R. Civ. P. 37.03
if a party fails to properly supplement discovery responses.
We first address whether the Trial Court erred in sanctioning Plaintiffs. In its
February 13, 2009 order the Trial Court found and held, inter alia:
that Plaintiffs and their counsel have repeatedly disregarded this Court’s orders
and directives concerning the conditions of the limited continuance of this
matter provided by this Court on or about July 25, 2008. The Plaintiffs have
repeatedly filed new disclosures of additional experts and/or expert opinions
and have attempted to notice the disclosures of additional experts and/or expert
opinions and have attempted to notice the depositions of new fact witnesses,
all in contravention of this Court’s orders and directives. This Court finds that
the Defendants’ legal counsel had to spend significant time to respond to the
Plaintiffs’ several filings.
A careful and thorough review of the record on appeal reveals that the Trial
Court had made it clear through its orders that it was granting a continuance but that, in the
Trial Court’s words: “We won’t start all over again.” Plaintiffs’ counsel acknowledged the
Trial Court’s direction. Thus, the Trial Court had entered an order setting limitations on
discovery pursuant to Tenn. R. Civ. P. 26.06. The Trial Court reiterated and clarified this
order in several subsequent orders. Plaintiffs, however, continued to attempt to add new
witnesses and, in particular, new expert witnesses. Defendants were forced to file several
motions seeking to force Plaintiffs to comply with the Trial Court’s order and seeking to
exclude the newly disclosed witnesses. On more than one occasion, the Trial Court entered
an order disallowing the use of Plaintiffs’ newly disclosed experts and expert opinions and
reiterating its order. Yet Plaintiffs continued to attempt to add new witnesses. After entering
multiple orders addressing these violations, the Trial Court finally decided to sanction
Plaintiffs pursuant to Tenn. R. Civ. P. 37 in an attempt to deter them from further violations.
We find no abuse of discretion in the Trial Court’s imposition of this sanction
because, as the Trial Court so aptly and succinctly stated, Plaintiffs had “repeatedly
disregarded this Court’s orders and directives concerning the conditions of the limited
continuance of this matter provided by this Court on or about July 25, 2008.” Certainly,
reasonable minds could disagree as to the propriety of the Trial Court’s decision to order this
sanction, the very essence of a discretionary decision. We will not substitute our judgment
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for that of the Trial Court. We affirm the sanctions.
We next address whether the Trial Court erred in dismissing Plaintiffs’ suit.
Plaintiffs argue, in part, that the Trial Court dismissed their suit even though Plaintiffs
engaged in no new contumacious behavior after they were sanctioned for $11,555. Plaintiffs
base this assertion, in part, upon the fact that Plaintiffs already had produced the hundreds
of pages of photographs and receipts prior to the Trial Court’s imposition of sanctions.
However, a careful and thorough review of the record on appeal reveals that
the Trial Court based its dismissal on the totality of the circumstances, not just on one
instance of behavior. Furthermore, when the Trial Court heard argument on the motion to
exclude expert opinions and for sanctions, it heard argument only with regard to Plaintiffs’
newly disclosed expert opinions. The Trial Court clearly stated that it did not have before
it a motion to dismiss with regard to a failure to fairly participate in discovery. Instead, the
Trial Court dealt at that time only with the issue of another violation of the Trial Court’s
orders with regard to the discovery of witnesses, and the motion for sanctions due to
spoliation.
Thus, the issue of Plaintiffs’ contumacious behavior with regard to the
production of hundreds of pages of photographs after failing to produce these documents
when requested and, in fact, representing to the Trial Court that such documents did not exist,
was not before the Trial Court at that time. The issue regarding this behavior was brought
before the Trial Court when it heard Defendants’ Joint Motion to Dismiss.
Furthermore, we note that the extremely voluminous record on appeal reveals
patterns of behavior on the part of Plaintiffs which can only be described as contumacious
or for purposes of delay. For example, the record reveals that Plaintiffs made
misrepresentations to the Trial Court with regard to Ms. Lilly’s mental capacity until it
became imperative for Ms. Lilly instead to be found competent in order to preserve Ty
Amanns’ claims. We find Plaintiffs’ argument that they never represented to the Trial Court
that Ms. Lilly had dementia but instead only that it was “believed” that she did to be,
charitably put, unpersuasive. Despite this claimed belief, they also “believed” Ms. Lilly to
be competent to execute a new deed on the property from Ms. Lilly to Ty Amanns in
response to the motion of Pence and East TN Gas to dismiss his claims as to the alleged
damages to the house.
The record on appeal also reveals that Plaintiffs on multiple occasions
represented that photographs of the personalty for which they claimed damages had been
destroyed up until the Trial Court ruled that they would not be allowed to present evidence
of the cost of the replacement items as their measure of damages, and they were facing a
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motion for sanctions due to spoliation. The record further reveals that although Plaintiffs
claim to have been surprised when they discovered the hundreds of pages of photographs,
they were aware that these photographs existed and had not forgotten their existence as
shown by the affidavit of Ty Amanns filed on February 27, 2009 which states: “It was
apparent to us at that point that the photographs in the possession of Attorney Holbert had
not been physically turned over through Robert Pryor, Jr. to Mr. Ellis.” The photographs to
which Mr. Amanns refers in his affidavit are the photographs which Plaintiffs in their
responses to discovery propounded in the Chancery Court suit represented were in the
possession of their attorney, who at that time was Attorney Holbert.
There are several important points which must be made with regard to the
photographs once in the possession of Attorney Holbert. First and foremost, the photographs
in Attorney Holbert’s possession were offered in response to discovery propounded in the
Chancery Court suit, a wholly separate suit from the instant suit. Although the Circuit Court
suit and the Chancery Court suit both involved the same parties and the same facts, they are
two separate lawsuits and Plaintiffs’ obligations to produce discovery when requested in the
Circuit Court suit cannot be satisfied by Plaintiffs’ assertion that they produced for viewing
such evidence in a totally separate action.
Furthermore, these photographs were offered in response to an interrogatory
and request to produce asking specifically about allegations concerning the de-humidification
equipment. In that very same discovery response, when asked about other economic
damages and requested to produce documentation of same, Plaintiffs answered: “Loss of
furniture, fixtures, appliances, equipment, clothing and other personal effects – unknown at
this time.” Importantly, Plaintiffs did not assert in response to the request for production
with regard to the equipment that photographs in their attorney’s possession would also
satisfy this particular request for production.
We also note that in responses to discovery in the instant suit, Plaintiffs
affirmatively represented to their current counsel and to the Trial Court that:
all receipts, checks or any other paper documentation that were present in the
subject home at the time we vacated the premises which would document the
cost of the various items contained within the home, were destroyed as they
had been contaminated by the mold in the home. It is impossible to estimate
the true value of all items of personalty in the home that were discarded.
These items would include numerous small items including all bedding, all
bath and kitchen towels, all food items, various cooking and eating utensils
and all photographs.
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Plaintiffs produced, or even attempted to locate, the hundreds of receipts and
photographs documenting alleged damages with regard to personalty only after the Trial
Court made it clear that Plaintiffs could not use the cost of replacement items as their
measure of damages, and Plaintiffs were faced with a motion for sanctions due to spoliation.
Yet Plaintiffs admitted in the affidavit of Ty Amanns filed in February of 2009 that they had
not forgotten about the existence of these photographs. This is simply another instance of
Plaintiffs making misrepresentations or withholding information until it suited their purposes
to do otherwise, and demonstrates “a clear record of delay or contumacious conduct.” Potts,
59 S.W.3d at 171.
The Trial Court considered the totality of the circumstances when it decided
to dismiss Plaintiffs’ case. At a minimum, reasonable minds could disagree as to the
propriety of the Trial Court’s decision, the very essence of a discretionary decision. We will
not substitute our judgment for that of the Trial Court. We affirm the Trial Court’s March
17, 2009 Final Order of Dismissal With Prejudice. Our determination regarding Plaintiffs’
first two issues renders the necessity of considering Plaintiffs’ remaining issues moot.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Ty Amanns and Kim Amanns, and their surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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