Hobbs Purnell Oil Company, Inc. v. Thomas Butler ( 2017 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 4, 2016
HOBBS PURNELL OIL COMPANY, INC. ET AL. v.
THOMAS BUTLER ET AL.
Appeal from the Circuit Court for Lawrence County
No. CC-2625-12 David L. Allen, Judge
No. M2016-00289-COA-R3-CV – Filed January 12, 2017
This contract action was initiated by the plaintiff oil company, Hobbs Purnell Oil
Company, Inc. (“Hobbs Purnell”), alleging that the defendants, Gedith Butler and
Thomas Butler, individually and d/b/a GG‟s Market (collectively, “the Butlers”),
breached their contract with Hobbs Purnell by failing to pay three invoices for fuel,
which had been provided to the Butlers on a consignment basis. The Butlers filed a
counterclaim against Hobbs Purnell and a third-party complaint against the president of
the oil company, Tommy Porter. Prior to trial, the trial court granted Hobbs Purnell‟s
motion in limine and excluded all invoices that were not listed in the Butlers‟ discovery
response. At trial, the Butlers chose to proceed in the action pro se following the trial
court‟s grant of their previous counsel‟s motion for withdrawal. During a bench trial, the
trial court excluded the testimony of the Butlers‟ expert witness upon finding that they
had failed to qualify him as an expert. Ultimately, the trial court entered a judgment in
favor of Hobbs Purnell and against the Butlers in the amount of $46,135.93, which
included $27,059.10 for the three unpaid invoices plus prejudgment interest in the
amount of $19,076.83. The trial court dismissed the Butlers‟ counterclaim and third-
party complaint. The Butlers thereafter filed two pleadings that were treated collectively
by the trial court as a motion for new trial, alleging that the trial judge had violated the
Code of Judicial Conduct. The trial court denied the motion for new trial. The Butlers
have appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Thomas Butler, Collinwood, Tennessee, Pro Se.
Gedith Butler, Collinwood, Tennessee, Pro Se.
Alan C. Betz, Lawrenceburg, Tennessee, for the appellees, Hobbs Purnell Oil Company,
Inc., and Tommy Porter.
OPINION
I. Factual and Procedural Background
In 2001, the Butlers and Hobbs Purnell entered into a written contract in which
Hobbs Purnell agreed to provide fuel products for the Butlers to sell on a consignment
basis. The Butlers were to receive $0.04 per gallon on fuel products sold at their market.
On a weekly basis, Mr. Porter, in his capacity as then-president of Hobbs Purnell, would
submit an invoice to the Butlers based on the amount of fuel sold at their market for that
week.
It is undisputed that the Butlers never questioned the amount or calculation of any
invoice until November 2011. In November 2011, the Butlers challenged Hobbs
Purnell‟s billing practices, alleging that Hobbs Purnell had been overcharging them.
Consequently, the Butlers did not pay three invoices from November 2011, which
resulted in Hobbs Purnell initiating the current action. The three unpaid invoices were as
follows:
 November 15, 2011 $9,359.97
 November 22, 2011 $9,107.41
 November 29, 2011 $8,591.63
$27,059.01
Hobbs Purnell initiated this action in Lawrence County General Sessions Court by
causing a summons to be issued for the Butlers and filing an “Affidavit of Sworn
Account” by Mr. Porter, who stated he was “in charge of keeping the books and records
for [Hobbs Purnell].” The affidavit alleged that the Butlers owed Hobbs Purnell a total of
$27,059.10.1 The Butlers retained the law firm of Hale and Hale, PLC, as counsel, who
filed a notice of appearance on January 11, 2012.
Subsequently, the Butlers filed an “Application for Removal of Action,”
requesting that the cause be transferred to the Lawrence County Circuit Court. In the
application, the Butlers stated their intent to file a counterclaim against Hobbs Purnell,
1
We note that the total of the three invoices equals $27,059.01, instead of the $27,059.10 claimed by
Hobbs Purnell and ultimately awarded by the trial court. Neither party raised this nominal difference of
$0.09 as an issue on appeal; therefore, we consider it waived by the parties.
2
seeking damages in excess of the jurisdictional limits of the general sessions court.
Thereafter, the Butlers filed their “Answer, Counterclaim and Third-Party Complaint” in
which the Butlers denied the averments in the civil summons and “Affidavit of Sworn
Account.” The Butlers also filed a counterclaim against Hobbs Purnell and a third-party
complaint against Mr. Porter, alleging breach of contract, negligence, breach of the duties
of good faith and fair dealing, negligent misrepresentation, and intentional and fraudulent
misrepresentation.
Interrogatories and requests for production of documents were propounded to the
Butlers on two occasions by Hobbs Purnell. The first set of interrogatories and request
for production of documents was submitted in March 2012. The Butlers responded in
May and June 2012. On August 9, 2012, Hobbs Purnell filed a “Motion to Compel and
Alternatively to Serve Additional Set of Interrogatories,” claiming that the Butlers‟
responses were “evasive and incomplete.” Following a hearing, the trial court granted
the motion on August 28, 2012, affording the Butlers forty-five days to respond to Hobbs
Purnell‟s second set of interrogatories and request for production of documents.
The Butlers subsequently submitted a response and supplemental response to the
second set of interogatories and request for production of documents. In response to a
request to “itemize each invoice [they] contend contains an overcharge,” the Butlers
included several invoices listed in their supplemental response but stated: “The Butlers
assert that there are many overcharges that occurred which are undocumented or have not
yet been discovered.” The Butlers then reserved the right to supplement their responses
with additional information upon discovery.
On April 29, 2014, the Butlers‟ attorney filed a motion to withdraw as counsel of
record. On June 3, 2014, the trial court granted the motion to withdraw and allowed the
Butlers forty-five days to retain new counsel. The Butlers subsequently filed a motion to
proceed pro se in this matter. At a hearing on that motion, the trial court ruled, inter alia,
that the Butlers were allowed to proceed pro se; that the Butlers‟ demand for a jury trial
was withdrawn; and that, upon motion, Hobbs Purnell was allowed to amend its
complaint.
During depositions taken on September 24, 2014, the Butlers were asked to
identify any additional invoices they contended were incorrect. The trial court
subsequently granted the Butlers time to supplement their responses with those invoices.
The Butlers did not supplement their responses with any additional invoices.
On November 20, 2015, Hobbs Purnell filed a motion in limine, requesting that
the trial court enter an order restricting the Butlers‟ proof at trial to only the specific
invoices itemized in the Butlers‟ supplemental response to the second set of
3
interogatories and request for production of documents. The Butlers filed a “Motion to
Deny [Hobbs Purnell‟s] Motion to Limine,” claiming that “there were many invoices
undocumented and too voluminous in nature to be propounded on The Court and in the
answer to [Hobbs Purnell‟s] question” and asking the trial court to allow all invoices into
evidence at trial “in the interest of justice and fair play.”
The trial court conducted a bench trial on November 23, 2015, addressing the
motion in limine first and ruling that the Butlers could only present as evidence those
invoices listed in their discovery response to Hobbs Purnell. The court then heard
evidence regarding Hobbs Purnell‟s amended complaint. Hobbs Purnell presented the
sworn deposition testimony of the Butlers, which included their respective admissions
that they had not paid the three unpaid invoices from Hobbs Purnell to the Butlers for fuel
products. Hobbs Purnell then rested its case in chief. According to the statement of the
evidence certified by the trial court, Ms. Butler also testified at trial and admitted that the
Butlers had not paid the three invoices while stating that she believed Hobbs Purnell
“owed them” due to the billing overcharges. Following Ms. Butler‟s testimony, Hobbs
Purnell moved for a directed verdict, which was granted by the trial court. 2 With regard
to Hobbs Purnell‟s claims, the trial court concluded that Hobbs Purnell was entitled to a
judgment against the Butlers in the amount of $46,135.93, which included $27,059.10 for
the three unpaid invoices and prejudgment interest in the amount of $19,076.83.
The trial court next heard evidence concerning the Butlers‟ counterclaim and
third-party complaint. All invoices not included by the Butlers in their pre-trial discovery
responses were excluded from evidence. Mr. Porter‟s son, Brian Porter, who worked
periodically for Hobbs Purnell, was the first witness for the Butlers. Brian Porter testified
that while working at Hobbs Purnell, he would prepare multiple invoices when there
existed price changes during the week. He also stated that he was unaware of how his
father prepared invoices. On cross-examination, Brian Porter indicated that he knew two
of the invoices presented to be correct. According to Brian Porter, Hobbs Purnell would
not have tried to “cheat” the Butlers.
The Butlers‟ accountant, Steve Newell, testified regarding a meeting with the
Butlers, Mr. Porter, and Mr. Porter‟s wife, Joyce Porter. According to Mr. Newell, Mr.
2
We note that directed verdicts are not available in bench trials but only in jury trials. See Boelter v.
Reagan, No. M2010-01354-COA-R3-CV, 2011 WL 1886573, at *2 (Tenn. Ct. App. May 18, 2011)
(“„[M]otions for directed verdicts have no place in bench trials . . . .‟”) (quoting Burton v. Warren
Farmers Co-op., 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002). Neither party has raised this as an issue;
therefore, we deem that issue as waived on appeal. See Tenn. R. App. P. 27(a)(7); Sneed v. Bd. of Prof’l
Responsibility, 301 S.W.3d 603, 617 (Tenn. 2010) (determining an issue to be waived when the appellant
failed to argue the issue or cite any legal authority in support of his position).
4
Porter acknowledged during the meeting that there was a possibility of incorrect billing
and stated, “I may owe it. If I do, you prove it.” Mr. Newell testified that Ms. Porter was
also in the office when the statement was made. Ms. Porter explained that she was
present at this meeting but denied that Mr. Porter made the above statement. Mr. Porter
also denied making this statement during his testimony.
Thereafter, the Butlers called Mark Henry, a certified public accountant and
forensic accountant, as a potential expert witness. We note that the Butlers have not filed
a transcript of the trial proceedings but have filed a statement of the evidence, modified
and certified by the trial court pursuant to Tennessee Rule of Appellate Procedure 24(c)
and (e). According to the statement of the evidence and the judgment, the Butlers failed
to qualify Mr. Henry as an expert in his field. Ergo, the trial court excluded his
testimony.
Mr. Porter also testified regarding a discussion he had with Ms. Butler at the
Butlers‟ market. According to Mr. Porter, he instructed Ms. Butler to gather her receipts
so they could be matched with Hobbs Purnell‟s paperwork. Upon finding the receipts,
she informed Mr. Porter that she was going to the bank to get him a check. Ms. Butler,
however, did not return. Mr. Porter eventually called Ms. Butler, who informed him that
she was not going to pay the outstanding invoices. Mr. Porter related that he
subsequently removed the pump key and locked the fuel pumps to prevent the Butlers
from dispensing any more of Hobbs Purnell‟s fuel.
According to Mr. Porter, if there were multiple price changes during the week, he
typically would average the prices on the invoice. He indicated that the prices never
changed more than $0.25 in one week and that “it all averaged out in the long run.” Mr.
Porter stated that the Butlers never questioned or complained about the billing prices until
November 2011. He also stated that he had instructed the Butlers to check the invoices
each week. Mr. Porter testified that he and Ms. Porter had carefully reviewed each
invoice between 2006 and 2011, determining that the most the Butlers could have been
overcharged was $1,800.00. He asserted that he did not believe the Butlers had been
overcharged on any of the invoices from 2006 through 2011.
Following Mr. Porter‟s testimony, the Butlers rested their case. The Butlers did
not testify on their own behalf regarding their counterclaim and third-party complaint.
Hobbs Purnell then moved for a directed verdict on the counterclaim and third-party
complaint, which the trial court granted, dismissing the Butlers‟ claims.3 The trial court
entered judgment accordingly on November 25, 2015.
3
See footnote 2.
5
Following entry of the judgment, the Butlers filed an “Objection to Judgment” on
December 2, 2015, wherein the Butlers claimed that “[j]ustice cannot be obtained through
the ruling of the court” due to evidentiary and procedural defects at trial. The Butlers
subsequently filed an “Affirmative Defense in Response to Judgment” on December 31,
2015, claiming that the trial judge, David L. Allen, “failed to comply with Rule 10,
Canon 2, Rules 2.2-2.4 of Tenn, Code of [Judicial] Conduct” and “made a prejudice[d],
biased, and unfair judgment in favor of the Porters.” The Butlers claimed, inter alia, that
the trial judge came into court without his robe on the morning of trial and spoke to Mr.
Porter and Ms. Porter by their first names only. Based on the reasons set forth in this
filing, the Butlers requested a new trial. The trial court thereby treated such filing as a
motion for new trial.
According to the statement of the evidence, Judge Allen‟s memory of the morning
in question was “admittedly somewhat vague.” Judge Allen stated that he recalled
entering the courtroom prior to trial and greeting Mr. and Ms. Porter and their counsel,
but he did not recall greeting them by their first names. Judge Allen further recalls
greeting the Butlers with at least a “good morning.” According to the trial court‟s order
denying a new trial, Judge Allen later informed the parties that he had no personal
relationship with Mr. or Ms. Porter, did not socialize with the Porters, was not in any
organizations with the Porters, and did not know the Porters. The trial court‟s order
reflects that the Butlers acknowledged that they knew of no facts establishing any
relationship between Judge Allen and the Porters. The trial court denied the Butlers‟
motion for new trial.
Hobbs Purnell subsequently filed a motion for discretionary costs in the amount of
$2,426.50, which was granted by the trial court in an order entered on January 13, 2016.
The Butlers timely appealed.
II. Issues Presented
The Butlers present five issues for our review in the “Statement of the Issues
Presented for Review” section of their brief, see Tenn. R. App. P. 27(4), which we have
restated as follows:
1. Whether the trial court erred by granting Hobbs Purnell‟s motion in
limine, which excluded invoices that the Butlers had not produced
during pre-trial discovery.
2. Whether the trial court erred by excluding from evidence the
testimony and report of the Butlers‟ expert witness, Mr. Henry.
6
3. Whether the trial court erred by failing to assign fault to Hobbs
Purnell when applying the comparative fault doctrine to the Butlers‟
claims.
4. Whether the trial court erred by denying the Butlers‟ motion for new
trial in which they requested that such retrial be conducted by a
judge from another jurisdiction.
5. Whether the trial court erred by submitting its own statement of the
evidence without approval from the Butlers.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law, including those of statutory construction, de novo
with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate
Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224
S.W.3d 675, 678 (Tenn. Ct. App. 2006). Questions of construction involving the
Tennessee Rules of Civil Procedure are likewise reviewed de novo with no presumption
of correctness. See Green v. Moore, 101 S.W.3d 415, 418 (Tenn. 2003). The trial court‟s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
We review a trial court‟s denial of a motion for new trial under an abuse of
discretion standard. Melton v. BNSF Ry. Co., 322 S.W.3d 174, 181 (Tenn. Ct. App.
2010). We also review a trial court‟s decisions regarding the admission or exclusion of
evidence under an abuse of discretion standard. Brown v. Crown Equip. Corp., 181
S.W.3d 268, 274 (Tenn. 2005). Our Supreme Court has elucidated the following analysis
regarding abuse of discretion:
Under the abuse of discretion standard, a trial court‟s ruling “will be upheld
so long as reasonable minds can disagree as to propriety of the decision
made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland,
22 S.W.3d 266, 273 (Tenn. 2000). 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.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The
abuse of discretion standard does not permit the appellate court to substitute
7
its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998).
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
Furthermore, with regard to pro se litigants, this Court has explained:
Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se
litigant who is unschooled in the intricacies of evidence and trial practice
can be difficult. Oko v. Rogers, 125 Ill. App. 3d 720, 81 Ill. Dec. 72, 75,
466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to
appreciate and be understanding of the difficulties encountered by a party
who is embarking into the maze of the judicial process with no experience
or formal training.
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Parties
proceeding without benefit of counsel are “entitled to fair and equal treatment by the
courts,” but we “must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
IV. Deficiencies in the Butlers‟ Brief
As a threshold matter, Hobbs Purnell and Mr. Porter contend that the Butlers‟
principal brief should be disregarded and their appeal dismissed because the brief fails to
meet the requirements provided in Tennessee Rule of Appellate Procedure 27 and
Tennessee Court of Appeals Rule 6. Tennessee Rule of Appellate Procedure 27 states in
pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically
arranged), statutes and other authorities cited, with references
to the pages in the brief where they are cited;
***
8
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the
case, the course of proceedings, and its disposition in the court
below;
(6) A statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including
the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate
references to the record (which may be quoted
verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the
discussion of the issue or under a separate heading
placed before the discussion of the issues) . . . .
(8) A short conclusion, stating the precise relief sought.
Similarly, Tennessee Court of Appeals Rule 6 provides in pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action
of the trial court which raises the issue and a statement by the
appellee of any action of the trial court which is relied upon
to correct the alleged error, with citation to the record where
the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably
called to the attention of the trial judge with citation to that
part of the record where appellant‟s challenge of the alleged
error is recorded.
9
(3) A statement reciting wherein appellant was prejudiced by
such alleged error, with citations to the record showing where
the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon with
citation to the record where evidence of each such fact may
be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
We recognize that the Butlers are pro se litigants and respect their decision to
proceed self-represented. The Butlers‟ appellate brief, however, contains numerous
deficiencies with regard to the above-listed requirements. The Butlers‟ brief completely
lacks a table of authorities. See Tenn. R. App. P. 27(a)(2). The Butlers‟ statement of the
case and statement of facts included in their principal brief contain very few references to
the record. See Tenn. R. App. P. 27. The argument section appears to introduce issues to
be presented for review that were not included in the “Statement of the Issues Presented
for Review” section while issues included in the “Statement of the Issues Presented for
Review” section lack argument. In fact, the issues presented for review are not included
in the argument section.
As this Court has previously explained with regard to deficiencies in an appellate
brief:
While a party who chooses to represent himself or herself is entitled
to the fair and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43
S.W.3d 918, 920 (Tenn. Ct. App. 2000) (citing Paehler v. Union Planters
Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)), “[p]ro se
litigants are not . . . entitled to shift the burden of litigating their case to the
courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App.
2000) (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C. Cir.
1983)). Pro se litigants must comply with the same substantive and
procedural law to which represented parties must adhere. Hodges, 43
S.W.3d at 920-21.
10
***
Our Courts have “routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument
section of the brief as described by Rule 27(a)(7) constitutes a waiver of the
issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
In Bean, we went on to hold that “an issue is waived where it is simply
raised without any argument regarding its merits.” Id. at 56; see also
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(holding that the failure of a party to cite to any authority or to construct an
argument regarding his or her position on appeal constitutes waiver of that
issue). As we stated in Newcomb, a “skeletal argument that is really
nothing more than an assertion will not properly preserve a claim.”
Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
unsupported allegations in a party‟s brief or to research and construct the
party‟s argument. Bean, 40 S.W.3d at 56.
Despite the fact that [the appellant‟s] brief is woefully inadequate,
there are times when this Court, in the discretion afforded it under Tenn. R.
App. P. 2, may waive the briefing requirements to adjudicate the issues on
their merits.
Chiozza v. Chiozza, 315 S.W.3d 482, 487-489 (Tenn. Ct. App. 2009).
In the case at bar, although the Butlers‟ brief fails to fully satisfy the requirements
of Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we
determine that this is an appropriate case in which to exercise our discretion to waive the
briefing requirements in order to adjudicate only those issues specifically identified by
the Butlers as issues presented for review in their principal brief.4 See Tenn. R. App. P.
2.
V. Exclusion of Evidence
We note at the outset that “admissibility or exclusion of evidence rests within the
sound discretion of the trial court which should be reversed only for abuse of that
discretion.” Austin v. City of Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984); see
4
In the one-page argument section of their brief, the Butlers list several topics without providing this
Court with information regarding how the trial court allegedly erred. These are not specified as issues
presented for appeal in the “Statement of the Issues Presented for Review” section of the Butlers‟ brief.
Therefore, we decline to address these issues and consider them as waived for purposes of appeal. See
Tenn. R. App. P. 27(a)(7).
11
also In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005) (“[A] trial
court will be found to have „abused its discretion‟ only when it applies an incorrect legal
standard, reaches a decision that is illogical, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.”) (internal citations omitted).
A. Exclusion of Invoices
The Butlers contend that the trial court erred by granting the motion in limine
excluding several invoices from being admitted as evidence. In its judgment, the trial
court found in pertinent part:
Prior to taking proof in the case, the Court heard argument on
[Hobbs Purnell‟s] Motion in Limine to exclude any invoices from proof
which had not been supplemented beyond the invoices which were pointed
out in Butler‟s Collective Supplemental Response to [Hobbs Purnell‟s]
Second Set of Interrogatories and Request for Production of Documents.
After argument and due consideration, the Court finds that based on the
proof from the deposition of Gedith Butler and the record as a whole that
[Hobbs Purnell‟s] counsel attempted on numerous occasions to get the
Butlers to supplement their answer and they refused. The Court finds that
there had been a Motion to Compel where the Honorable Stella Hargrove,
Circuit Judge, had directed that the [Butlers] provide specific invoices
which contained overcharges. The Court finds that the Motion in Limine is
granted and that only the invoices which had been previously disclosed in
the Butler[s‟] Collective Supplemental Response to [Hobbs Purnell‟s]
Second Set of Interrogatories and Request for Production of Documents
containing specific proof of overcharges would be allowed to be presented
by the Butlers in their claim.
As this Court has previously explained regarding the exclusion of evidence due to
a party‟s failure to comply with discovery:
When matters have reached a point in a case where the trial judge
considers the sanction of preclusion, however, it will usually be because the
court has been unable to otherwise secure a party‟s compliance with the
discovery rules. As this court stated in Magness [v. Couser, No. M2006-
00872-COA-R3-CV, 2009 WL 204116 (Tenn. Ct. App. Jan. 24, 2008)], the
purpose of such a sanction is to deter others and punish the party who has
violated discovery rules. Although punitive by definition, sanctions do not
12
constitute an injustice to the complaining party on facts such as those
presented in this case.
The sanction in this case is admittedly harsh. But “harsh sanctions
have been used with some frequency to address a party‟s failure to comply
with discovery orders.” Howard v. Am. Indus. Serv., Inc., No. M2001-
02711-COA-R3-CV, 2002 WL 31769115, at *2 (Tenn. Ct. App. M.S. filed
December 11, 2002) (citing American Steinwinter v. American Steinwinter,
Inc., 964 S.W.2d 569 (Tenn. Ct . App. 1997)); Yearwood, Johnson, Stanton
& Crabtree v. Foxland, 828 S.W.2d 412 (Tenn. Ct. App. 1991); Potts v.
Mayforth, 59 S.W.3d 167 (Tenn. Ct. App. 2001). We hold that the trial
court‟s decision to preclude Contractor‟s experts from testifying does not
amount to an abuse of discretion.
Walls v. Conner, No. E2007-01917-COA-R3-CV, 2008 WL 4735311, at *7 (Tenn. Ct.
App. Oct. 27, 2008).
In this case, the record reflects that Hobbs Purnell requested on multiple occasions
that the Butlers produce all invoices within which the Butlers claimed they were
overcharged for fuel products. The Butlers included in their response to discovery
requests a list of several invoices that allegedly contained overcharges. The Butlers‟
response stated that there were “many overcharges that occurred which are
undocumented or have not yet been discovered.” Thereafter, Ms. Butler participated in
depositions, during which she was again asked if there existed additional invoices that
were not included in the discovery response. Ms. Butler replied that she had not
discovered any additional invoices not previously provided to Hobbs Purnell. The
Butlers did not supplement their discovery response prior to trial.
Due to the Butlers‟ failure to fully comply with discovery and provide the invoices
to Hobbs Purnell prior to trial, the trial court excluded all invoices that were not provided
in discovery. The trial court‟s decision to exclude the invoices not provided to Hobbs
Purnell in discovery is a sanction available to trial courts when parties have failed to
comply with discovery requests. See Walls, 2008 WL 4735311, at *7. We find no abuse
of discretion in the trial court‟s decision to exclude the invoices not provided by the
Butlers to Hobbs Purnell during discovery.
B. Exclusion of Expert Witness Testimony
The trial court in its judgment found the following regarding its exclusion of the
Butlers‟ proffered expert testimony:
13
The Butlers attempted to present expert testimony of Mark Henry, a
certified public accountant, as part of their proof in this cause of action.
After objection by counsel, the Court finds that the Butlers failed to
properly qualify Mark Henry as an expert witness to where his testimony
could be considered by the Court and sustains [Hobbs Purnell‟s] objection
and therefore excludes any testimony of Mark Henry from consideration in
this action.
***
The Court also finds that since the Mark Henry report was excluded from
evidence, any invoices listed on Schedule 5 of the Henry report were not
properly before the Court.
As our Supreme Court has explained regarding the admissibility of expert witness
testimony:
Generally, questions pertaining to the qualifications, admissibility,
relevancy, and competency of expert testimony are matters left to the trial
court‟s discretion. McDaniel [v. CSX Transp., Inc.], 955 S.W.2d [257,]
263 [(Tenn. 1997)]. We may not overturn the trial court‟s ruling admitting
or excluding expert testimony unless the trial court abused its discretion.
Id. at 263-64. A trial court abuses its discretion if it applies an incorrect
legal standard or reaches an illogical or unreasonable decision that causes
an injustice to the complaining party. State v. Stevens, 78 S.W.3d 817, 832
(Tenn. 2002).
Tennessee Rules of Evidence 702 and 703 govern the admissibility
of expert testimony in Tennessee. Rule 702 states that “[i]f scientific,
technical, or other specialized knowledge will substantially assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Rule 703
provides:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence. The court shall
14
disallow testimony in the form of an opinion or inference if
the underlying facts or data indicate lack of trustworthiness.
The trial court, therefore, must determine that the expert testimony is
reliable in that the evidence will substantially assist the trier of fact to
determine a fact in issue and that the underlying facts and data appear to be
trustworthy. In addition to these specific rules, evidence generally must be
relevant to be admissible. See Tenn. R. Evid. 401, 402.
Brown, 181 S.W.3d at 273-74.
The record on appeal contains no transcript from which this Court can review the
trial proceedings pertinent to this issue. The statement of the evidence approved by the
trial court states as follows regarding the exclusion of the expert‟s testimony:
The [Butlers] then called Mark Henry, a certified public accountant
and forensic accountant, as a witness. Counsel for [Hobbs Purnell]
addressed the Court as to Mark Henry‟s role and advised the Court that he
had not stipulated to Mark Henry being an expert witness and would object
to any testimony of Mark Henry that was attempted to be presented to the
Court outside of the Rules of Evidence. The Court admonished Gedith
Butler that in order for Henry‟s testimony to be considered by the Court
that she would have to follow the Rules of Evidence. Henry was sworn as a
witness and presented his curriculum vitae and list of cases in written form
for review by the Court. [Hobbs Purnell‟s] counsel objected to the
consideration of the curriculum vitae as being premature and that objection
was sustained.
Henry testified that he was contacted in January of 2012 by the
[Butlers] and their attorneys Hale and Hale to review financial
documentation differences in gas sales versus purchases in dealings
between [the Butlers] and [Hobbs Purnell].
Henry testified that in October 2012 he prepared a schedule to his
report which was a summary of invoices from Hobbs Purnell for each year
from 2004 through 2011 and a summary of the sales tax returns filed by the
[Butlers].
Counsel for [Hobbs Purnell] moved the Court to exclude the
testimony of Mark Henry as the [Butlers] had failed to properly qualify
Henry as an expert witness and had failed to follow the Rules of Evidence
15
to allow Mark Henry‟s testimony to be considered by the Court. The Court
sustained the objection and Henry‟s report was not admitted into evidence
and his testimony was excluded from consideration by the Court.
We have been provided no other information in the appellate record by which we can
evaluate the Butlers‟ claim that Mr. Henry‟s testimony was improperly excluded. The
Butlers made no offers of proof during trial and have not supplemented the record with
Mr. Henry‟s curriculum vitae, report, or deposition testimony reflecting his credentials to
determine whether Mr. Henry is an expert in the field in which the Butlers were seeking
qualification.5
This Court addressed a similar issue in Wells v. Illinois Cent. R. Co., No. W2010-
01223-COA-R3-CV, 2011 WL 6777921 (Tenn. Ct. App. Dec. 22, 2011), in which this
Court determined:
“This Court's review is limited to the appellate record and it is
incumbent upon the appellant to provide a record that is adequate.”
Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (per. app.
denied, May 20, 2010) (citing Jennings v. Sewell-Allen Piggly Wiggly, 173
S.W.3d 710, 713 (Tenn. 2005)). The appellant has a duty to prepare an
appellate record that conveys an accurate and complete account of the trial
court proceedings regarding the issues that are the basis of the appeal.
Flack v. McKinney, No. W2009-02671-COA-R3-CV, 2011 WL 2650675,
at *2 (Tenn. Ct. App. July 6, 2011) (citing In re M.L.D., 182 S.W.3d 890,
894 (Tenn. Ct. App. 2005)). This Court's authority to review a trial court's
decision is limited to issues for which it is provided an adequate appellate
record. Am. Gen. Fin. Servs., Inc. v. Goss, No. E2010-01710-COA-R3-CV,
2011 WL 1326234, at * 2 (Tenn. Ct. App. Apr. 7, 2011) (citations omitted).
“Absent the necessary relevant material in the record an appellate court
cannot consider the merits of an issue.” Flack, 2011 WL 2650675, at *3
(quoting State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993)). The
appellate court is precluded from addressing an issue on appeal when the
appellate record does not include relevant documents. Chiozza, 315
S.W.3d at 492 (citation omitted). The failure of the appellant to ensure that
documents necessary to consider a particular issue raised on appeal are
included in the appellate record constitutes an effective waiver of the
appellant‟s right to appeal that issue. Id.
5
The record contains an excerpt consisting of three pages of Mr. Henry‟s deposition testimony. The
testimony provided does not reference Mr. Henry‟s credentials.
16
Here, the transcript of the trial court‟s hearing on the motions in
limine indicates that the trial judge carefully reviewed Dr. Kress‟s
deposition testimony before deciding to exclude it from the evidence
presented at trial. On appeal, this Court has not been provided the
deposition testimony so carefully reviewed by the trial court, which is
obviously essential to any meaningful review of the trial court‟s decision.
Under the circumstances, we must deem this an effective waiver of this
issue on appeal.
Wells, 2011 WL 6777921, at *6.
In the case at bar, we are unable to determine from the record on appeal whether
the trial court correctly excluded Mr. Henry‟s testimony. The statement of evidence
indicates that the Butlers “had failed to properly qualify [Mr.] Henry as an expert witness
and had failed to follow the Rules of Evidence to allow Mark Henry‟s testimony to be
considered by the Court.” No other supporting documentation or transcript of the
proceedings is contained in the record. Inasmuch as the trial court‟s decision to exclude
evidence is a discretionary one, not to be disturbed absent an abuse of that discretion, and
the record is insufficient to allow us to review the trial court‟s decision, we deem this
issue effectively waived.
VI. Comparative Fault Doctrine
The Butlers argue that while the trial court ruled that the comparative fault
doctrine was applicable, the court “did not asse[ss] any fault to [Hobbs Purnell and
Tommy Porter].” In its judgment, the trial court found as follows regarding the
comparative fault doctrine:
The Court further finds that the doctrine of comparative fault would
apply to the negligence portions of the Butlers‟ claim and since the Butlers
failed to check the invoices when presented that their comparative fault
would outweigh any negligence of Hobbs Purnell Oil Company, Inc. or
Tommy Porter.
(Emphasis added.)
Under the modified comparative fault system adopted by Tennessee, a plaintiff
may recover from a defendant on a claim of negligence “so long as the plaintiff‟s
negligence remains less than the defendant‟s negligence.” McIntyre v. Balentine, 833
S.W.2d 52, 57 (Tenn. 1992). In the case at bar, the trial court specifically found that the
Butlers‟ negligence outweighed any negligence by either Hobbs Purnell or Tommy
17
Porter, which would preclude any recovery by the Butlers due to negligence. Upon our
careful review, we determine that the trial court made a proper and sufficient assessment
of fault under the comparative fault doctrine.
VII. Motion for New Trial
The Butlers sought a new trial based on their contention that Judge Allen was
biased in favor of Mr. Porter and Hobbs Purnell. The Butlers argue that the trial judge
greeted the Porters utilizing their first names on the day of trial, which led the Butlers to
believe that the judge had a personal relationship with the Porters. Although the Butlers
allege that the trial judge violated provisions of the Code of Judicial Conduct, they do not
provide a citation to a specific canon or rule in their brief. The Butlers do refer to their
“Affirmative Defense in Response to Judgment,” contained within the record, in which
they specifically cited to Supreme Court Rule 10, Canon 2, and Rules 2.2, 2.3, and 2.4 of
the Tennessee Code of Judicial Conduct. The trial court treated this pleading and the
Butlers‟ previously filed “Objection to Judgment” together as a motion for new trial
pursuant to Tennessee Rule of Civil Procedure 59 and ultimately denied the Butlers‟
motion.6
Rule 59.02 provides that “[a] motion for new trial and all other motions permitted
under this rule shall be filed and served within 30 days after judgment has been entered in
accordance with Rule 58.” Tenn. R. Civ. P. 59.02. Rule 59.04 further provides that “[a]
motion to alter or amend a judgment shall be filed and served within thirty (30) days after
the entry of the judgment.” Tenn. R. Civ. P. 59.04. “The purpose of Tenn. R. Civ. P. 59
motions is to prevent unnecessary appeals by providing the trial courts with an
opportunity to correct errors before a judgment becomes final.” Carbone v. Blaeser, No.
W2012-00670-COA-R3-CV, 2012 WL 5503862, at *2 (Tenn. Ct. App. Nov. 14, 2012)
(quoting Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998), Bradley
overruled on other grounds by Harris v. Chern, 33 S.W.3d 741, 744 (Tenn. 2000)). We
review a trial court‟s denial of a motion for new trial under an abuse of discretion
standard. Melton v. BNSF Ry. Co., 322 S.W.3d 174, 181 (Tenn. Ct. App. 2010).
As provided in Canon 2.2, “[a] judge shall uphold and apply the law, and shall
perform all duties of judicial office fairly and impartially.” Tenn. Sup. Ct. R. 10, Canon
2.2. Canon 2.3 further states that “[a] judge shall perform the duties of judicial office,
6
By considering these pleadings collectively as a motion for new trial, the trial court in essence treated
the “Affirmative Defense in Response to Judgment” as an amendment to the “Objection to Judgment.”
Neither party has addressed this as an issue on appeal; therefore, we will not disturb the trial court‟s
determination in this regard. We note that the trial court retained jurisdiction to rule on the motion for
new trial pursuant to Tennessee Rule of Civil Procedure 59 and Tennessee Rule of Appellate Procedure 4.
18
including administrative duties, without bias or prejudice.” Tenn. Sup. Ct. R. 10, Canon
2.3. Additionally, Canon 2.4 provides:
(A) A judge shall not be swayed by partisan interests, public clamor or
fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other
interests or relationships to influence the judge‟s judicial conduct or
judgment.
(C) A judge shall not convey or permit others to convey the impression
that any person or organization is in a position to influence the
judge.
Tenn. Sup. Ct. R. 10, Canon 2.4(A). “Adverse rulings and „the mere fact that a witness
takes offense at the court‟s assessment of the witness,‟ do not provide grounds for recusal
. . . in light of the „adversarial nature of litigation.‟” Watson v. City of Jackson, 448
S.W.3d 919, 929 (Tenn. Ct. App. 2014) (quoting Davis v. Liberty Mut. Ins. Co., 38
S.W.3d 560, 565 (Tenn. 2001)).
Following trial and entry of a judgment adverse to the Butlers, the Butlers
presented for the first time the allegation that Judge Allen had violated the Code of
Judicial Conduct. They alleged that the judgment in favor of Mr. Porter and Hobbs
Purnell was “prejudice[d], biased, and unfair,” because the court allowed a personal
relationship with Mr. and Ms. Porter to influence its ruling. In denying the Butlers‟
motion for new trial, the trial court specifically found:
[T]he Court makes the following findings and rulings on the allegations of
lack of impartiality and fairness.
1. The Court finds no merit to the matters in #1 of the document
alleging that the Court openly exhibited a personal relationship with
Tommy Porter and Joyce Porter with a personal greeting using only
the Porters‟ first names. The Court does not recall addressing the
Porters by their first name as the Court did not know the Porters nor
have a personal relationship with the Porters. Any greeting to the
parties or persons in the courtroom was an attempt to be cordial and
courteous to those persons.
19
2. The Court finds that the Court had control of the proceedings and
did not follow attorney Alan Betz‟s lead in conducting courtroom
procedure but handled the trial in a professional manner.
3. The Court finds that there were no personal unfounded or
unprofessional comments toward the Butlers[‟] capabilities as pro se
attorneys. The Court in addressing the Butlers was making the point
that the Butlers had been previously represented by an attorney but if
the Butlers were going to represent themselves they would be bound
by the same rules and regulations as an attorney in conducting the
lawsuit. There was no attempt by the Court to question the abilities
of the Butlers in representing themselves, and the Court was cordial
toward the Butlers during the trial.
4. The Court finds that the allegations of failure to distribute critical
information or to not allow the Butlers[‟] objections on motions to
be heard and their questions about rulings to be answered is
unfounded. The Court finds that in conducting the trial, the Butlers
were held to the rules of evidence and procedure and the Butlers
failed to adequately qualify their expert witness to allow the expert
witness testimony to be considered by the Court. The Court finds
that the Butlers failed to meet the standards of the rules of evidence
for expert testimony and failed to follow those rules. The Court
finds that the Court was courteous on rulings on objections and did
not let either party cut corners on admission of evidence on Court
procedures.
5. The Court finds that it did not undermine the Butlers‟ credibility and
capabilities as pro se attorneys. The Court finds that the Butlers did
not ask for a continuance in order to get an attorney to represent
them and the Court did nothing to undermine the Butlers‟ credibility
or capabilities. The Court was courteous and professional to the
Butlers[,] ruling on the contested matters at trial.
6. Concerning the allegation that Tommy Porter admitted to intentional
wrongdoing and overcharging the Butlers a small amount in which
the Court did not take into consideration and wholly dismissed, the
Court finds that this testimony was taken into consideration in
making the ruling on the case in chief and that the Butlers wholly
failed to prove their case making this testimony immaterial at that
point in the proceedings.
20
7. The Butlers alleged that due to Judge Allen‟s personal acquaintance
with the Porters and the well-known business status of the Porters
that Judge Allen made a prejudiced, biased and unfair judgment in
favor of the Porters. The Court questioned the Butlers specifically at
the hearing on the motion, what knowledge the Butlers had of the
Court‟s personal acquaintance with the Porters. The Butlers
responded that they didn‟t know anything about the Court‟s
relationship with the Porters, and based that unfounded allegation on
the Court allegedly addressing the Porters by their first name in
Court. The Court finds this allegation is without merit as the Court
had no personal acquaintance with the Porters. The Butlers admitted
at the hearing that they had no knowledge of a personal acquaintance
between Judge Allen and the Porters and therefore the allegation was
unfounded.
8. The Court further gave the Butlers ample opportunity to raise any
other issues, whether they were included in the written motions or
not, for consideration of the Court prior to making a ruling on the
Butlers‟ motions.
9. The Court specifically finds that the Butlers‟ Motions should be
denied.
In the absence of a transcript, we must rely only on the appellate record before us,
including pleadings, orders, and the statement of the evidence, to determine whether the
trial court exhibited partiality in favor of Mr. and Ms. Porter, as the Butlers have alleged.
Moreover, we note that neither a transcript nor statement of the evidence was filed
regarding the hearing on the motion for new trial. Having no transcript of the evidence
presented or a statement of the evidence before us, we are compelled to assume that the
trial court‟s findings of the aforementioned facts as set forth in the trial court‟s Order
Denying Motion for New Trial, entered on January 13, 2016, were supported by the
evidence presented at the motion hearing. See Reid v. Reid, 388 S.W.3d 292, 295 (Tenn.
Ct. App. 2012) (concluding that “[w]ithout a complete record or sufficient statement of
the evidence from which to determine whether the trial court acted appropriately,” this
Court was “compelled to assume that the Circuit Court‟s decision in favor of Landlord
was supported by the evidence submitted at trial.”); see also Outdoor Mgmt., LLC v.
Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007) (concluding that there is a
“conclusive presumption that there was sufficient evidence before the trial court to
support its judgment” if no transcript or statement of the evidence is submitted). This
Court has held that “the burden is . . . on the appellant to provide the Court with a
21
transcript of the evidence or a statement of the evidence. . . .” Outdoor Mgmt, LLC, 249
S.W.3d at 378.
According to the trial court‟s Order Denying Motion for New Trial, the Butlers
acknowledged during the motion hearing that they had no knowledge of any personal
relationship between Judge Allen and the Porters. Upon our careful and thorough review
of the record, we discern no indication of bias or partiality expressed or implied by the
trial court judge. See, e.g., Watson, 448 S.W.3d at 932-33 (“Although we are cognizant
of the fact that the trial judge declined to grant any of [the appellant‟s] pro se post-trial
motions, it is well-settled that „[a]dverse rulings by a trial judge . . . are not usually
sufficient to establish bias.‟”) (quoting Ingram v. Sohr, No. M2012-00782-COA-R3-CV,
2013 WL 3968155, at *31 (Tenn. Ct. App. July 31, 2013)). Therefore, we affirm the trial
court‟s denial of the Butlers‟ motion for new trial.
VIII. Motion for Recusal
Additionally, in their “Affirmative Defense in Response to Judgment,” the Butlers
requested a new trial “with the trier of fact being from another jurisdiction in the great
State of Tennessee.” Inasmuch as the Butlers requested a new judge to preside over their
case, we review the trial court‟s denial of their request according to the requirements for a
motion for recusal pursuant to Tennessee Supreme Court Rule 10B. Section 1.01 of
Tennessee Supreme Court Rule 10B requires:
Any party seeking disqualification, recusal, or a determination of
constitutional or statutory incompetence of a judge of a court of record, or a
judge acting as a court of record, shall do so by a timely filed written
motion. The motion shall be supported by an affidavit under oath or a
declaration under penalty of perjury on personal knowledge and by other
appropriate materials. The motion shall state, with specificity, all factual
and legal grounds supporting disqualification of the judge and shall
affirmatively state that it is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation.
(Emphasis added.)
We determine that the Butlers have waived this issue because their pleading
requesting a new judge does not comply with the requirements of Tennessee Supreme
Court Rule 10B in two aspects. First, the Butlers have filed no affidavit supporting their
motion to recuse as required by Tennessee Supreme Court Rule 10B, § 1.01. Second, the
Butlers have not affirmatively stated within their pleading that their motion is “not being
22
presented for any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation.” See id.
This Court recently addressed a similar failure to comply with Rule 10B in
Childress v. United Parcel Serv., Inc., No. W2016-00688-COA-T10B-CV, 2016 WL
3226316 (Tenn. Ct. App. June 3, 2016). This Court in Childress affirmed the trial court‟s
denial of the appellants‟ motion for recusal upon determining that the appellants “did not
provide the mandatory affidavit in support of their motion for recusal . . . .” Childress,
2016 WL 3226316, at *1. As this Court explained:
The record provided by the Appellants‟ does not contain an affidavit
as required by Section 1.01. The Tennessee Supreme Court has recognized
that when the word “shall” is used in a statute or rule, it is ordinarily
construed as being mandatory and not discretionary. Gabel v. Lerma, 812
S.W.2d 580 (Tenn. 1990); accord Stubbs v. State, 393 S.W.2d 150 (Tenn.
1965). In Elliott v. Elliott, No. E2012-02448-COA-10B-CV, 2012 WL
5990268 (Tenn. Ct. App. Nov. 30, 2012), this Court specifically held that
“it is imperative that litigants file their petitions for recusal appeal in
compliance with the mandatory requirements of Rule 10B in the first
instance,” and further stated that the Rule 10B “makes [the affidavit in
support of the motion for recusal] mandatory.” Id. at *3 (citing Tenn. Sup.
Ct. R. 10B, § 1.01).
Id. Likewise, we conclude that this issue is waived on appeal. See, e.g., Childress,
2016 WL 3226316, at *2-3 (“We . . . conclude that the record is insufficient to determine
the issues raised by the Appellants in this appeal.”).
IX. Statement of the Evidence
The Butlers also challenge the statement of the evidence adopted by the trial court.
Because no verbatim transcript of the proceedings was available, the trial court adopted a
statement of the evidence, pursuant to Tennessee Rule of Appellate Procedure 24. Both
Hobbs Purnell and the Butlers submitted separate proposed statements of the evidence.
However, the parties could not agree on the content of the statement of the evidence,
leaving the trial court to resolve any differences. See Tenn. R. App. P. 24(c), (e). The
court adopted the statement of the evidence provided by Hobbs Purnell but included
therein certain additional facts added from the Butlers‟ statement of the evidence.7
Tennessee Rule of Appellate Procedure 24 provides in relevant part:
7
The trial court did not adopt as findings the statements by the Butlers regarding bias and partiality of the
trial judge but included them to provide clarity for the appellate court.
23
(c) Statement of the Evidence When No Report, Recital, or
Transcript Is Available. If no stenographic report, substantially
verbatim recital or transcript of the evidence or proceedings is
available, or if the trial court determines, in its discretion, that the
cost to obtain the stenographic report in a civil case is beyond the
financial means of the appellant or that the cost is more expensive
than the matters at issue on appeal justify, and a statement of the
evidence or proceedings is a reasonable alternative to a stenographic
report, the appellant shall prepare a statement of the evidence or
proceedings from the best available means, including the appellant‟s
recollection. The statement should convey a fair, accurate and
complete account of what transpired with respect to those issues that
are the bases of appeal. The statement, certified by the appellant or
the appellant‟s counsel as an accurate account of the proceedings,
shall be filed with the clerk of the trial court within 60 days after
filing the notice of appeal. Upon filing the statement, the appellant
shall simultaneously serve notice of the filing on the appellee,
accompanied by a short and plain declaration of the issues the
appellant intends to present on appeal. Proof of service shall be filed
with the clerk of the trial court with the filing of the statement. If the
appellee has objections to the statement as filed, the appellee shall
file objections thereto with the clerk of the trial court within fifteen
days after service of the declaration and notice of the filing of the
statement. Any differences regarding the statement shall be settled
as set forth in subdivision (e) of this rule.
***
(e) Correction or Modification of the Record. If any matter properly
includable is omitted from the record, is improperly included, or is
misstated therein, the record may be corrected or modified to
conform to the truth. Any differences regarding whether the record
accurately discloses what occurred in the trial court shall be
submitted to and settled by the trial court regardless of whether the
record has been transmitted to the appellate court. Absent
extraordinary circumstances, the determination of the trial court is
conclusive. If necessary, the appellate or trial court may direct that a
supplemental record be certified and transmitted.
(Emphasis added.)
24
This Court has often recognized that a trial judge presiding over the subject
proceedings is in the best position to resolve any disputes regarding the statement of the
evidence. See Atrip v. Crilley, 688 S.W.2d 451, 453 (Tenn. Ct. App. 1985). By
approving a statement of the evidence, the trial judge certifies that such statement is
“true, fair and for appellate purposes, complete.” See id. Pursuant to Tennessee Rules of
Appellate Procedure 24(c) and (e), the trial court‟s determination with regard to the
record and statement of the evidence is conclusive “absent extraordinary circumstances.”
“Situations which may constitute such „extraordinary circumstances‟ include the death of
the trial judge or evidence of bias.” Williams v. Williams, No. M2013-01910-COA-R3-
CV, 2015 WL 412985, at *6 (Tenn. Ct. App. Jan. 30, 2015), perm. app. denied (Tenn.
June 12, 2015) (citing Atrip, 688 S.W.2d at 453). The Butlers have failed to show that
extraordinary circumstances exist in this matter. Having discerned no bias or partiality
by the trial court judge, we determine that the trial court‟s statement of the evidence is
conclusive for purposes of this appeal. See Tenn. R. App. P. 24.
X. Conclusion
For the reasons stated above, we affirm the judgment of the trial court. This case
is remanded to the trial court for enforcement of the judgment and collection of costs.
Costs on appeal are taxed to the appellants, Thomas Butler and Gedith Butler.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
25