HOBBS PURNELL OIL COMPANY, INC. ET AL.
THOMAS BUTLER ET AL.
Assigned on Briefs October 4, 2016
from the Circuit Court for Lawrence County No. CC-2625-12
David L. Allen, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Butler, Collinwood, Tennessee, Pro Se.
Butler, Collinwood, Tennessee, Pro Se.
C. Betz, Lawrenceburg, Tennessee, for the appellees, Hobbs
Purnell Oil Company, Inc., and Tommy Porter.
R. Frierson, II, J., delivered the opinion of the court, in
which Andy D. Bennett, J., and J. Steven Stafford, P.J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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.
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
• November 15, 2011
• November 22, 2011
• November 29, 2011
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. The Butlers retained the law firm of Hale
and Hale, PLC, as counsel, who filed a notice of appearance
on January 11, 2012.
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, 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
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.
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.
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.
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
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 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."
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. 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.
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.
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. 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.
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.
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.
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.
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. The trial court entered judgment
accordingly on November 25, 2015.
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
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.
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
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,
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.
Standard of Review
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).
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 its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
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
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.
Deficiencies in the Butlers' Brief
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 ...