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Hobbs Purnell Oil Company, Inc. v. Butler

Court of Appeals of Tennessee, Nashville

January 12, 2017


          Assigned on Briefs October 4, 2016

         Appeal from the Circuit Court for Lawrence County No. CC-2625-12 David L. Allen, Judge

         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 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.

          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.



         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, 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 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. 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.

         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.
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 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 ...

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