TENNESSEE FARMERS COOPERATIVE, ET AL.
TED D. RAINS
Assigned on Briefs April 1, 2019
from the Circuit Court for Perry County No. 2015-CV-17
Michael W. Binkley, Judge.
in a debt collection case appeals the entry of judgment
against him, contending that the court erred in setting the
case for trial with only two days' notice, in granting a
motion in limine on the day of trial, and in its
award of attorney's fees to the Plaintiff. We modify the
judgment to reduce the amount of attorney's fees awarded;
in all other respects, we affirm the judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Modified in Part and Affirmed
A. Thorne, Lexington, Tennessee, for the appellant, Ted D.
R. Cheadle, Jr., and Mary Barnard Cheadle, Nashville,
Tennessee, for the appellee, Tennessee Farmers Cooperative.
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C.J., and Arnold B. Goldin, J.,
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
appeal involves an attempt to collect a debt on an open
credit account. In June 2001, Ted Rains, doing business as Ag
Services ("Defendant"), completed an application
for revolving credit and deferred payment with Tennessee
Farmers Cooperative, doing business as Co-op Financial
Solutions ("Plaintiff"), to purchase goods and
products for his business. Over the next 14 years, Ag
Services made charges on the account and purchased goods on a
cash basis. On December 14, 2015, Plaintiff filed suit
against Defendant to recover the balance due on the credit
account of $104, 517.41; Plaintiff also sought 1.5 percent
interest per month on the outstanding balance and
attorney's fees incurred in collecting the account.
Defendant answered, admitting that "certain amounts of
money are owing to Plaintiff" but disputing the amount
alleged in the complaint.
filed a motion for summary judgment on March 14, 2016,
accompanied by a statement of 16 material facts in accordance
with Rule 56.03 of the Tennessee Rules of Civil Procedure;
Defendant responded, disputing 8 of the statements. On July
11, the court entered an order granting partial summary
judgment to Plaintiff, holding that Defendant owed a balance
on the account but that the amount owed was a disputed
material fact to be determined at trial.
moved for summary judgment a second time on July 31, 2017,
again seeking judgment in the amount of $104, 517.41; the
motion was supported by a Rule 56.03 statement of undisputed
material facts as well as an affidavit signed by Terry
Skelton, Plaintiff's manager, which had been filed with
the first summary judgment motion. In response, Defendant
filed two affidavits of Mr. Rains and Defendant's
responses to Plaintiff's various discovery requests. The
court heard the motion on October 10 and entered an order
denying the motion on November 14. Pertinent to this appeal,
the court held that the case had been pending for two years,
that the parties had ample time to complete discovery, and
that the case would be tried before the end of the year.
parties were unable to agree on a trial date, and on November
21, 2017, the Plaintiff moved to set the case for trial; the
court heard the motion on December 18 and set the trial for
December 20. On December 19, the Defendant filed a pretrial
memorandum, attaching copies of cancelled checks that had
been drawn on Defendant's bank account between March 7,
2014, and August 6, 2015. The Defendant asserted in the
memorandum that he paid Plaintiff $81, 423.57 that had not
been credited to his account. At the December 20 hearing, the
Plaintiff moved in limine to exclude the checks on
the ground that they had not been produced previously; the
court granted the motion, but allowed the Defendant to make
the checks a part of the record by offer of proof.
court entered an order on March 7, 2018, granting Plaintiff a
judgment in the amount of $144, 102.31 for the unpaid
invoices and finance charges. On March 12, Plaintiff's
counsel filed an affidavit requesting attorney's fees of
$50, 000; the court awarded $48, 514.50 by order entered May
timely filed a notice of appeal. Defendant argues that the
trial court erred in scheduling the trial on two days'
notice, in hearing and granting the motion in limine
in contravention of the Local Rules of Court, and in granting
attorney's fees in the amount of $48, 514.50.
this case was tried without a jury, the review of the trial
court's factual findings is de novo upon the
record, accompanied by a presumption of correctness, unless
the preponderance of the evidence is otherwise. Tenn. R. Civ.
P. 13 (d). Our review of the trial court's conclusions of
law is de novo with no presumption of correctness.
Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn.
2008). Resolution of the appeal also requires that we apply
the abuse of discretion standard of review, as set forth in
Lee Medical, Inc. v. Beecher:
Discretionary decisions must take the applicable law and
relevant facts into account. An abuse of discretion occurs
when a court strays beyond the applicable legal standards or
when it fails to properly consider the factors customarily
used to guide the particular discretionary decision. A court
abuses its discretion when it causes an injustice to the
party challenging the decision by (1) applying an incorrect
legal standard, (2) reaching an illogical or unreasonable
decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.
312 S.W.3d 515, 524 (Tenn. 2010) (internal citations
Setting of Trial Date
first address Defendant's contention that "setting
the trial on two (2) days' notice when Local Rule
requires at least fifteen (15) days served no judicial
purpose, and worked to prejudice the Appellant, who could
have produced definitive evidence to support his defense in
advance of trial." In response, Plaintiff contends that
the trial date was scheduled in accordance with the fifteen
(15) day requirement in Rule 7.02 of the Rules of the Circuit
and Chancery Courts for the Twenty-First Judicial
filed its motion to set the case for trial on November 27,
with a hearing date of December 18; Defendant does not
contend that he did not receive a copy of the motion or that
he was not aware that the motion would be heard on December
18. The record does not show that Defendant filed a response
or objection to the motion, and there is no transcript of the
December 18 hearing or a statement of evidence from that
hearing showing that Defendant opposed the motion when it was
heard; on December 18, the court entered the order setting
the case for trial on December 20. The case was set for trial
more than fifteen days after the motion to set was filed,
consistent with Local Rule 7.02. The trial court did not
abuse its discretion in setting the trial for December 20.
Motion in Limine
Local Rule 5.01, Defendant argues that the trial court abused
its discretion in hearing Plaintiff's motion in
limine on the morning of trial; the motion sought to
exclude copies of checks from March 7, 2014, to August 6,
2015, from Defendant's business bank account that
Defendant intended to offer into evidence. With respect to
this motion, the Statement of the Evidence approved by the
trial court states:
In granting [Plaintiff's] motion in limine, the
Court addressed the fact that [Defendant] had been given
multiple opportunities to "put up or shut up." The
Court noted that in denying [Plaintiff's] second motion
for summary judgment, the Court allowed [Defendant] one last
chance to get his proof together. The Court observed that the
cancelled checks which [Defendant] only provided on the eve
of trial were easily obtainable. [Defendant] should have been
motivated to obtain this information since [Defendant] was
aware that he was being charged finance charges during the
pendency of this case. The Court questioned what it finally
would take for someone to defend themselves by getting
information that was so easy to obtain. The Court held that
the Court had given [Defendant] ...