Heritage Operating, LP v. Henry County Propane Gas, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 24, 2012 Session
HERITAGE OPERATING, LP v. HENRY COUNTY PROPANE GAS, INC.,
ET AL.
Direct Appeal from the Chancery Court for Henry County
No. 20641 Ron E. Harmon, Chancellor
No. W2011-01162-COA-R3-CV - Filed July 23, 2012
The trial court entered an order granting Plaintiff’s motion to compel discovery and for
discovery sanctions, and stated that the order was final under Tennessee Rules of Civil
Procedure 54.02. Defendant did not file a notice of appeal within 30 days of entry of the trial
court’s order. Plaintiff subsequently filed a notice of voluntary nonsuit. Defendants filed a
notice of appeal within 30 days of the trial court’s entry of an order of voluntary dismissal,
and appeal the trial court’s award of discovery sanctions to Plaintiff. We hold that the order
awarding sanctions was not an effective final judgment under Rule 54.02. Defendants’
appeal accordingly is timely. We vacate the award of sanctions and remand for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Anthony Michael Noel, Brian F. Walthart and George H. Rieger, II, Nashville, Tennessee,
for the appellants, Henry County Propane Gas, Inc., Estate of Danny Blakemore and Gorman
Hines.
Kevin C. Baltz, R. Charles Wilkin, III and Kara E. Shea, Nashville, Tennessee, for the
appellee, Heritage Operating, LP.
OPINION
The facts relevant to our disposition of this matter on appeal are not disputed.
Plaintiff/Appellee Heritage Operating, LP, (“Heritage Operating”) is an operating subsidiary
of Energy Transfer Partners, LP, a Delaware limited partnership. Heritage Operating, in turn,
does business as Trigas Propane Company (“Trigas”; hereinafter, Plaintiff will be referred
to as “Heritage.”). In September 2007, Heritage filed a complaint and petition for injunction
relief against Henry County Propane Gas, Inc. (“HCPG”), and HCPG employees Danny
Blakemore (Mr. Blakemore) and Gorman Hines (Mr. Hines); (collectively “Defendants”) in
the Chancery Court for Henry County. In its complaint, Heritage alleged that Mr. Blakemore
and Mr. Hines were former Heritage delivery drivers who, upon accepting employment with
Heritage, had agreed to “refrain from disclosing certain confidential information, including,
but not limited to, ‘marketing research, pricing information and sales programs.’” Heritage
asserted claims against Defendants for misappropriation of trade secrets and tortious
interference with business relationships. It prayed for an injunction enjoining HCPG from
communicating with Heritage customers and an award of damages. Defendants answered
in December 2007, denying allegations of wrong-doing.
Discovery ensued and on April 8, 2009, Heritage sent notices of depositions to be
taken on April 21 and 22, 2009, at Tennessee counsel’s office in Nashville. Following the
April 22 deposition of HCPG’s general manager, on June 2, 2009, Heritage filed a motion
to compel discovery under Tennessee Rules of Civil Procedure 37.01 and 37.04. In its
motion, Heritage alleged that HCPG had failed to produce a witness for the April 22
deposition who was knowledgeable about topics identified in Heritage’s notice of deposition.
It requested an order compelling discovery and prayed for relief, including the reimbursement
of costs, in the amount of $7,087.98. Following responsive pleadings, the matter was heard
by the trial court on September 15, 2009. The trial court granted Heritage’s motion, and on
or about September 22, 2010, Heritage submitted a proposed order granting the motion and
purporting to make the judgment final pursuant to Tennessee Rule of Civil Procedure 54.02.
On October 2, 2009, HCPG filed an objection to Heritage’s proposed order, asserting that,
without giving Defense counsel an opportunity to approve the order, Heritage sought to make
the order final under Rule 54.02. HCPG asserted that the trial court had made neither finding
nor ruling that the order should be entered as a final judgment.
On December 14, 2009, the trial court entered an order granting Heritage’s motion to
compel and awarding it attorney’s fees and costs in the amount of $7,087.98. The trial court
reserved other matters and stated, “[p]ursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure, this award of costs and attorney[’s] fees shall be considered a final judgment in
favor of Trigas against HCPG.”
On January 14, 2010, HCPG filed a notice of appeal and bond by the Estate of Mr.
Blakemore, Mr. Hines, and HCPG. On January 15, 2010, Defendants filed a motion to
accept late appeal. On March 8, 2010, Defendants filed a Tennessee Rule of Civil Procedure
60.02 motion to vacate the trial court’s December order granting Heritage’s motion to
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compel. In their motion, Defendants asserted that, as a matter of law, the trial court’s
December order was not a final judgment because the court did not make an express finding
that there was no just reason for delay and did not expressly direct entry of a final judgment.
They further argued that there was neither factual nor legal basis upon which to certify the
order as a final judgment.
On March 17, 2011, Heritage filed a notice of voluntary dismissal without prejudice
pursuant to Tennessee Rule of Civil Procedure 41. The trial court entered an order of
voluntary dismissal on April 11, 2011, and Defendants filed a timely notice of appeal to this
Court.
Issues Presented
Defendants, (hereinafter, collectively, HCPG) present four issues for our review. The
issues presented, as we perceive and reword them are:
(1) Whether the trial court’s order of December 14, 2009, was a final
judgment which HCPG failed to timely appeal.
(2) Whether the trial court erred in awarding Heritage discovery sanctions
against HCPG.
Discussion
We must first determine whether we have jurisdiction over this appeal. We have no
jurisdiction over an untimely filed appeal. See, Tenn. R. App. P. 2; Tenn. R. App. P.4(a); see
also, Cobb v. Beier, 944 S.W.2d 343, 344 n. 2 (Tenn. 1997). Heritage asserts that, because
HCPG failed to timely appeal the trial court’s December 2009 order, which purported to be
a final judgment under Rule 54.02 of the Tennessee Rules of Civil Procedure, we do not have
jurisdiction over this appeal. HCPG, on the other hand asserts that the trial court’s December
2009 order was ineffective as a final judgment, and that we accordingly have jurisdiction
where HCPG filed a notice of appeal within 30 days of the trial court’s April 11, 2011,
judgment. Thus, we turn first to whether the trial court’s December 14, 2009, order was a
final and appealable judgment under Tennessee Rule of Civil Procedure 54.02.
Tennessee Rule of Civil Procedure 54.02
HCPG asserts the trial court’s December 2009 order was not an appropriate final
judgment and that, even if a request for discovery sanctions can be considered a claim for the
purposes of Rule 54.02, the order was ineffectual as a final judgment where it did not comply
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with the express requirements of Rule 54.02. Heritage, on the other hand, contends that an
order granting sanctions on the basis of a party’s conduct is appropriately entered as final
under Rule 54.02 where it resolves what is “essentially . . . a claim for damages.” Relying
on federal court interpretations of Federal Rule 54(b), it further contends that the trial court’s
failure to make an express finding that there is no just reason for delay of the order as a final
judgment does not “doom[] its effect.”
Rule 54.02 of the Tennessee Rules of Civil Procedure provides an exception to the
“final order” rule in an action that involves more than one claim for relief and/or multiple
parties. It states:
When more than one claim for relief is present in an action, whether as
a claim, counterclaim, cross-claim, or third party claim, or when multiple
parties are involved, the Court, whether at law or in equity, may direct the
entry of a final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just reason for delay
and upon an express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties, and the order or other form of decision is subject to
revision at any time before the entry of the judgment adjudicating all the
claims and the rights and liabilities of all the parties.
As Heritage asserts, the language and purpose of Rule 54.02 closely track its federal
counterpart, Federal Rule of Civil Procedure 54(b). E.g., Mann v. Alpha Tau Omega
Fraternity, No. W2010–02316–SC–R11–CV, --- S.W.3d ----, 2012 WL 2553534, at *5
(Tenn. July 3, 2012). However, under Tennessee Rule 54.02,
“as an absolute prerequisite to an interlocutory appeal from such final
judgment, the trial judge must certify, first, that the court has directed entry of
final judgment as to one or more, but fewer than all of the parties, and, second,
make an express determination that there is no just reason for delay.”
Loyd v. State Farm Mut. Auto. Ins. Co., 521 S.W.2d 556, 558 (Tenn. 1975)(quoting Frame
v. Marlin Firearms Co., Inc., 514 S.W.2d 728, 729-730 (Tenn. 1974)). “‘[T]he orderly
administration of justice prevents our circumventing mandatory requirements for such
interlocutory review.’” Id. (quoting Frame, 514 S.W.3d at 730). The courts of this State
have continued to adhere to the clear requirements of Rule 54.02 that a trial court may direct
the entry of a final order as to fewer than all of the claims or parties only if it expressly
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directs that the order be made final under the rule and makes an express finding that there is
no just reason for delay. E.g., Carr v. Valinezhad, No. M2009-00634-COA-R3-CV, 2010
WL 1633467, at *2 (Tenn. Ct. App. April 22, 2010).
Even if we were to accept Heritage’s contention that the trial court’s order granting
it attorney’s fees and costs as discovery sanctions disposed of a “claim” for the purposes of
Rule 54.02, the trial court’s December 2009 order was ineffective as a final judgment under
the rule. We will dismiss an appeal of an order that does not contain the required express
finding that no just reason for delay exists. Id. (citing Fagg v. Hutch Mfg. Co., 755 S.W.2d
446, 447 (Tenn. 1988)). Accordingly, HCPG did not fail to timely appeal a final judgment,
but filed a timely notice of appeal following entry of the trial court’s final judgment on April
11, 2011. We accordingly turn to whether the trial court erred by awarding Heritage
discovery sanctions in excess of $7,000.
The Award of Sanctions
We review a trial court’s decision regarding the imposition and choice of discovery
sanctions under an abuse of discretion standard. Langlois v. Energy Automation Sys., Inc.,
332 S.W.3d 353, 356 (Tenn. Ct. App. 2009)(citations omitted). Under this standard, we will
uphold a trial court’s ruling “‘so long as reasonable minds can disagree as to propriety of the
decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000)). An abuse of discretion occurs when the trial court “‘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.’” Id. (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
Under the abuse of discretion standard, the appellate court may not substitute its judgment
for the judgment of the trial court. Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
(Tenn. 1998)). The trial court’s discretionary decision to award sanctions will not be set
aside unless the trial court has misapplied or misconstrued the controlling legal principles or
its determinations are inconsistent with the substantial weight of the evidence. Id. (citation
omitted).
The trial court’s discretion however, does not free it from its “responsibility to
exercise reason and judgment.” Langlois, 332 S.W.3d at 357. We have recognized that a
trial court’s discretionary decisions “‘are not left to a court's inclination, but to its judgment;
and its judgment is to be guided by sound legal principles.’” Id. (quoting Pegues v. Ill. Cent.
R.R. Co., 288 S.W.3d 350, 353 (Tenn. Ct. App. 2008)(quoting State v. Lewis, 235 S.W.3d
136, 141 (Tenn. 2007)). “A discretionary decision will not stand if the trial court fails to
apply the relevant statutory, legal, or procedural framework intended to guide its
determination.” Id. (citing id.).
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In its June 2009 motion to compel discovery, Heritage alleged that, on April 8, 2009,
Tennessee counsel for Heritage issued a deposition notice to Eric Small (Mr. Small),
president of HCPG, requesting that he appear on April 21, 2009, at 9:00 a.m., at counsel’s
office in Nashville to provide deposition testimony. It further alleged that, also on April 8,
2009, Tennessee counsel for Heritage issued a deposition notice to HCPG requesting that a
representative(s) of HCPG appear on April 22, 2009, at 9:00 a.m. at counsel’s office in
Nashville to provide deposition testimony concerning a list of topics contained in exhibit A
to the deposition notice. Exhibit A contained a list of 50 topics. Heritage asserted that, on
April 19, 2009, Heritage counsel Brian L. Mitchell (Mr. Mitchell) traveled from Oklahoma
to Tennessee to depose Mr. Small and a representative of HCPG, and that at approximately
1:55 p.m. on April 21, 2009, counsel for HCPG (“Defense counsel’) contacted Mr. Mitchell
in Nashville to advise him that he was reviewing the deposition notice and that HCPG
claimed privilege with respect to several of the items contained in Exhibit A. Heritage
alleged that discussion ensued between counsel with respect to the topics asserted as
privileged, and that Defense counsel stated that he had not sought a protective order from the
trial court, but hoped that questioning about topics asserted as privileged could be limited.
Heritage asserted that Mr. Mitchell advised Defense counsel that he would not agree to
continue the deposition and advised him to seek a protective order or raise whatever
objections he deemed appropriate during the deposition.
Heritage further asserted in its motion to compel that Kenneth E. Walker (Mr. Walker)
appeared as the HCPG representative at the April 22, 2009, deposition. It asserted that a 30
minute break was taken at the beginning of the deposition for Defense counsel to meet with
Mr. Walker to discuss the scope of Mr. Walker’s knowledge of the deposition topics; that
Mr. Walker had not discussed the deposition topics with anyone other than counsel; and that
Mr. Walker had not reviewed the deposition notice and list of topics until the afternoon of
April 21, 2009, the day before the deposition. Heritage alleged that Mr. Walker testified that
he was not knowledgeable and prepared to testify about 13 of the 50 deposition topics
contained in Exhibit A. It further alleged that Defense counsel acknowledged that Mr.
Walker was unable to testify to these topics, and that there were additional HCPG
representatives who would have to testify to these topics. Heritage alleged that it had
incurred attorney’s fees and costs in the “aggregate sum” of $7,087.98, and argued that it was
entitled to reimbursement of this amount under Tennessee Rules of Civil Procedure “3701
and 3704.” Heritage prayed the court to grant its motion to compel and for an award of any
and all other relief to which it may show itself to be entitled. It attached Mr. Walker’s
deposition to its motion.
HCPG filed a response in opposition of Heritage’s motion on July 14, 2009. In its
response, HCPG asserted that Heritage “unilaterally terminat[ed]” the April 22 deposition
and that, contrary to Heritage’s assertions, HCPG fulfilled its duties under Tennessee Rule
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of Civil Procedure 30.02(6) to provide a knowledgeable and well-prepared witness. HCPG
asserted that the deposition was terminated as a result of “Heritage’s failure to specify the
[d]eposition topics with reasonable particularity, as well as by unreasonable deposition tactics
on the part of its lawyer.” HCPG submitted that Heritage issued a deposition notice on April
8, 2009, requiring HCPG to provide a witness or witnesses to testify to a “staggering 50
items” that “broached virtually every issue that may be relevant to the case.”
HCPG asserted that Defense counsel received the deposition notice on or about April
15, 2009. It asserted that, in preparation for the April 22 deposition, Defense counsel met
with Mr. Walker and HCPG corporate counsel for more than six hours to review the
allegations, defenses, and more that 890 pages of discovery documents previously generated
in the case. HCPG asserted that meetings to prepare for the deposition followed prior
meetings with Mr. Walker earlier in the course of the litigation. HCPG asserted that Mr.
Walker had been employed by HCPG’s parent company, United Propane Gas, Inc. (“UPG”)
for more than 20 years, and that for the previous 10 years he had been the general manager
of UPG and HCPG. HCPG argued that Mr. Walker had testified at the deposition that his
answers would be binding on HCPG.
In its response, HCPG contended that Heritage’s counsel “lost his composure early
in the [d]eposition and was never able to regain it.” HCPG argued that counsel for Heritage
spent much of the four hour deposition questioning Mr. Walker’s preparation rather than on
the topics contained in Exhibit A. It further argued that Heritage’s out-of-town counsel
should not be awarded expenses and travel costs because the parties had contemplated
additional depositions and because counsel undisputedly had traveled from Oklahoma for
additional, unrelated matters.
It is undisputed that HCPG produced the general manager of UPG and HCPG, Mr.
Walker, to testify at the April 22 deposition. It also is undisputed that Mr. Walker testified
that he first saw the notice of the deposition the day before the deposition was scheduled to
occur, and that he was told that he would appear as HCPG’s witness approximately 10 days
prior to the deposition. When asked at the deposition whether he was knowledgeable and
prepared to testify to each one of the topics contained on Exhibit A, Mr. Walker replied,
“[t]here are certain topics here which I do not have the knowledge to testify to.” Mr. Walker
stated that he was unable to testify to items 28, 29, 30, 31, 32, 35, 41, 42, 43, 47, 48, 49, and
50. These items are:
(28) Knowledge relating to any Trigas customer solicited by HCPG from
September 11, 2006 to present.
(29) Knowledge relating to any Trigas customer that switched service to
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HCPG from September 11, 2006 to present.
(30) Knowledge relating to the gross income received by HCPG relating to
any Trigas customer that switched service to HCPG from September
11, 2006 to present.
(31) Knowledge relating to the net income received by HCPG relating to any
Trigas customer that switched service to HCPG from September 11,
2006 to present.
(32) Knowledge relating to the price per gallon charged by HCPG to any
Trigas customer that switched service to HCPG from September 11,
2006 to present.
(35) Knowledge relating to the methodology utilized by HCPG to determine
the price per gallon to charge customers [sic] Trigas customers that
switched service to HCPG from September 11, 2006 to present.
(41) Knowledge relating to any Trigas business information either submitted
to or discussed with HCPG by Danny Blakemore.
(42) Knowledge relating to any Trigas business information either submitted
to or discussed with HCPG by Gorman Hines.
(43) Knowledge relating to the Trigas Code of Business Conduct.
(47) Knowledge relating to the HCPG preapproved weekly or monthly rate
per gallon from January 1, 2006 to present.
(48) Knowledge relating to Exhibit Nos. 1-11 of the Deposition of Gorman
Hines taken on or about April 15, 2008.
(49) Knowledge relating to any instance in the last thirty-six (36) months of
UPG, HCPG or any entity with substantially common ownership
advertising propane below its laid-in cost in the State of Tennessee.
(50) Knowledge relating to any instance in the last thirty-six (36) months of
UPG, HCPG or any entity with substantially common ownership selling
propane below its laid-in cost in the State of Tennessee.
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Mr. Mitchell next questioned Defense counsel regarding whether there was a witness
available at the deposition who was able to testify to those items, and Defense counsel
responded that he and Mr. Walker had covered “most everything” the day before and that he
would have knowledge about some of the topics. A somewhat lengthy conversation ensued
between counsel with respect to the extent of Mr. Walker’s knowledge and understanding
of Mr. Mitchell’s question, followed by Mr. Mitchell’s questioning of Mr. Walker with
respect to his preparation for the deposition.
Upon review of the deposition, we note that a lengthy deposition then ensued with
respect to whether HCPG had access to or utilized any confidential information of Heritage
to which Mr. Blakemore or Mr. Hines might have had access. When asked whether he had
any proof that HCPG did not use Trigas’s customer payment history information to solicit
Trigas customer’s, Mr. Walker replied, “I have no proof that we did not.” When asked
whether HCPG used information concerning Trigas’s pricing strategies to solicit customers,
Mr. Walker replied, “Not to my knowledge.” When questioned whether he had any evidence
that HCPG did not use Trigas’s pricing strategies to solicit Trigas’s customers, Mr. Walker
replied, “I have no way of saying ---- we deny that we did.” Additionally, Mr. Walker
testified that the prices at which competitors were selling their product was generally known,
and that HCPG prices were set by Mr. Small based on strategies set by him. Mr. Walker also
testified that HCPG could not determine the price Trigas charged a particular individual
customer without being provided the information by the customer, and that such knowledge
might give a competitor an advantage. When asked whether HCPG had at any time used
information concerning Trigas customer gas usage to solicit the business of Trigas customers,
Mr. Walker replied, “Not to my knowledge.” When asked how HCPG could determine what
a competitor is charging for propane gas, Mr. Walker replied, “[p]ick up the phone and call
them. . . . anybody can find out what your competition is doing.”
When asked “what are the names of all the Trigas customers that switched service to
HCPG from September the 11th of ’06 to present,” Mr. Walker replied that he did not have
a list other than that which was provided in documents by counsel. Mr. Walker stated that
he could not “name them off the top of [his] head,” and that he did not have a list other than
that provided in the documents submitted. Mr. Mitchell then chose to discontinue the
deposition, stating it was “clear that Mr. Walker [wasn’t] prepared to testify to the topics []
contained in the Notice of Deposition.”
In its brief, HCPG asserts that, despite Mr. Walker’s experience and counsel’s
assurances that he had knowledge of the topics itemized in Heritage’s notice of deposition,
counsel chose not to question Mr. Walker about most of the topics listed in Exhibit A,
including topics about which Mr. Walker clearly was knowledgeable. HCPG further asserts
that the line of questioning at the deposition was framed to ask Mr. Walker to prove a
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negative. HCPG additionally asserts that the recovery sought by Heritage includes amounts
incurred for travel on an unrelated legal matter, and that it also includes costs for the
deposition of Mr. Small. HCPG further asserts that Mr. Walker’s testimony indicates that
certain information requested by Heritage simply was not available to HCPG. Additionally,
HCPG challenges the reasonableness and clarity of the 50 item list, which includes
“knowledge relating to the Trigas Code of Business Conduct” and “knowledge relating to
all competitors of HCPG.”
We have held that the Rules provide trial courts with
broad discretion to fashion sanctions for discovery abuses that are
commensurate with the parties’ conduct . . . . The nature of the sanction
depends upon (1) the party’s reasons for failing to provide the requested
discovery, (2) the importance of the information sought to be discovered, and
(3) the time needed to respond effectively to the information.
Pettus v. Hurst, 882 S.W.2d 783, 787 (Tenn. Ct. App.1993) (citations omitted). In its
December 2009 order granting Heritage discovery sanctions, the trial court made no findings,
however, with respect to the alleged discovery abuses, the reasonableness of the process, or
the fees and costs attributable to the April 22 deposition. Additionally, the only ground for
the sanctions sought by Heritage was that HCPG had failed to produce a witness that could
testify at the April 22, 2009, deposition to each and every item on the list of 50 topics
attached to Heritage’s deposition notice. That list, according to the certificate of service
contained in the record, was served on HCPG on April 9, 2009, by United States mail.
Heritage does not dispute that it was received by Defense counsel on or about April 15, 2009.
The trial court made no findings with respect to the extent to which HCPG failed to provide
the requested discovery, the importance of the information sought, or the reasonableness of
the knowledge demanded.
As noted above, the deferential abuse of discretion review does not relieve the trial
court from, in fact, exercising its sound discretion. Upon review of the order contained in
the record, we are unable to determine the basis upon which the trial court based its decision.
The trial court made no findings of fact and did not provide any reasoning to support its
determination.
Rule 52.01 of the Tennessee Rules of Civil Procedure, as amended effective July 1,
2009, provides:
In all actions tried upon the facts without a jury, the court shall find the
facts specially and shall state separately its conclusions of law and direct the
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entry of the appropriate judgment. The findings of a master, to the extent that
the court adopts them, shall be considered as the findings of the court. If an
opinion or memorandum of decision is filed, it will be sufficient if the findings
of fact and conclusions of law appear therein. Findings of fact and conclusions
of law are unnecessary on decisions of motions under Rules 12 or 56 or any
other motion except as provided in Rules 41.02 and 65.04(6).
As the concurrence in Estate of Thompson recently observed:
This Court has previously held that the General Assembly’s decision to require
findings of fact and conclusions of law is “not a mere technicality.” In re:
K.H., No. W2008–01144–COA–R3–PT, 2009 WL 1362314, at *8 (Tenn. Ct.
App. May 15, 2009). Instead, the requirement serves the important purpose of
“facilitat[ing] appellate review and promot[ing] the just and speedy resolution
of appeals.” Id.; White v. Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App.2004);
Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App.1990). “Without such
findings and conclusions, this court is left to wonder on what basis the court
reached its ultimate decision .” In re K.H., 2009 WL 1362314, at *8 (quoting
In re: M.E.W., No. M2003–01739–COA–R3–PT, 2004 WL 865840, at *19
(Tenn. Ct. App. April 21, 2004)).
In re: Estate of Thompson, No. M2011–00411–COA–R3CV, 2012 WL 912859, at *19
(Tenn. Ct. App. Mar. 14, 1212)(Stafford, J., concurring). The judgment in this case simply
contains no findings or reasoning to demonstrate that the trial court exercised its discretion
in this case.
Holding
In light of the totality of this record, we vacate the order of the trial court insofar as
it awards sanctions to HCPG. We remand this matter to the trial court for findings and
further proceedings consistent with this Opinion. Costs of this appeal are taxed one-half
to the Appellee, Heritage Operating, LP, and one-half to the Appellants, Henry County
Propane Gas, the Estate of Danny Blakemore, and Gorman Hines, and their sureties, for
which execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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