Duncan v. Duncan

• Decision Date: 31 January 1990
• Citation: 789 S.W.2d 557
• Parties: Angelia Nicholson DUNCAN, Plaintiff/Appellant, v. Joseph Frank DUNCAN, Sr., Defendant/Appellee. 89-107-II.
• Court: Tennessee Court of Appeals

Page 557

789 S.W.2d 557

Angelia Nicholson DUNCAN, Plaintiff/Appellant, v. Joseph Frank DUNCAN, Sr., Defendant/Appellee.

89-107-II.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Jan. 31, 1990.

Permission to Appeal Denied by

Supreme Court May 14, 1990.

John W. Nolan, III, Philip W. Duer, Nashville, for plaintiff, appellant.

Charles H. Warfield, James G. Martin, III, Farris, Warfield & Kanaday, Nashville, for defendant, appellee.

OPINION

KOCH, Judge.

This appeal involves a wife's protracted efforts to obtain post-judgment relief from the valuation placed on her husband's business during divorce proceedings in the Circuit Court for Davidson County. Upon discovering that her husband sold his business shortly after the divorce for much more than it had been valued at trial, the wife filed a Tenn.R.Civ.P. 60 motion seeking to set aside the value originally placed on the business. The trial court denied the motion, and the wife has appealed to this court. We have determined that the wife has not made out a case for post-judgment relief and, therefore, affirm the dismissal of her motion.

I.

Angelia Duncan and Joseph Duncan were married in January, 1951. They raised three children and worked hard during the marriage, Mrs. Duncan in her family's dry cleaning business and Mr. Duncan in a security and alarm business he started in 1966. They separated in August, 1981 after Mr. Duncan became romantically involved with another woman. Mrs. Duncan filed for divorce three months later.

The trial court heard the proof in May and July, 1982. One of the most hotly contested issues during the trial was the value of Mr. Duncan's interest in the security and alarm business. Mr. Duncan did not give an opinion concerning the value of his company; however, his accountants testified that his share of the business was worth between $250,000 and $400,000. Mrs. Duncan's accountant testified that Mr. Duncan's share was worth $1.25 million.

In September, 1982, the trial court granted Mrs. Duncan a divorce on the grounds of cruel and inhuman treatment. The court awarded Mrs. Duncan property worth more than $790,000 as her share of the marital estate and as alimony in solido. It awarded Mr. Duncan the remainder of the marital estate which the court valued at $675,000, including his interest in the alarm business which the trial court valued at $400,000. The trial court did not award Mrs. Duncan alimony in futuro or attorney's fees.

Mrs. Duncan perfected an appeal to this court. While the appeal was pending, Mr. Duncan and the co-owner of the alarm business sold the company for $5.5 million. Mr. Duncan received approximately $2.5 million for his share of the business--six times more than the trial court's valuation of his interest. When Mrs. Duncan learned of the sale, she set in motion the legal proceedings that have taken the trial and the appellate courts the past six years to unravel.

Mrs. Duncan first filed a Tenn.R.App.P. 14 motion requesting this Court to consider the amount Mr. Duncan received from the sale of the business as a post-judgment fact. While retaining jurisdiction, this court remanded the case to the trial court "for the limited purpose of developing the facts in regard to an alleged sale by appellee of the Security Alarms and Services, Inc." ¹ The Tennessee Supreme Court granted Mr. Duncan's application for a Tenn.R.App.P. 10 appeal in July, 1983.

In August, 1983 while Mr. Duncan's appeal was awaiting disposition by the Supreme Court, Mrs. Duncan requested the trial court to grant her post-judgment relief from the portion of the original divorce decree that valued Mr. Duncan's portion of the alarm company at $400,000. The trial court declined to consider the motion as long as Mr. Duncan's appeal was pending.

In June, 1984, the Supreme Court reversed this court, holding that the details of the company's sale were "wholly outside the scope of Rule 14." Duncan v. Duncan, 672 S.W.2d 765, 769 (Tenn.1984). Four months later, this court affirmed the trial court's decision with only minor modifications relating to several items of personal property. In doing so, we specifically affirmed the trial court's valuation of Mr. Duncan's interest in the alarm company based on the evidence introduced at trial. Duncan v. Duncan, 686 S.W.2d 568 (Tenn.Ct.App.1984).

With this phase of the litigation at an end, Mrs. Duncan turned her attention to her motion for post-judgment relief that was still pending in the trial court. In June 1985, the trial court granted Mr. Duncan's motion to dismiss for failure to state a claim upon which relief could be granted. This court eventually reversed and remanded the case for a hearing on Mrs. Duncan's motion. ² Duncan v. Duncan, App. No. 85-264-II 1986 WL 15666 (Tenn.Ct.App. Oct. 1, 1986). The Supreme Court concurred in the results, holding that a Tenn.R.Civ.P. 12.02 motion "is an inappropriate response to a Rule 60 motion." Duncan v. Duncan, Davidson Law (Tenn. Jan. 5, 1987).

The trial court finally conducted an evidentiary hearing in September, 1988 and, in December, 1988 entered a memorandum and order denying post-judgment relief. Mrs. Duncan has again appealed to this court.

II.

We turn first to Mrs. Duncan's assertion that the trial court improperly restricted the scope of her discovery to support her Tenn.R.Civ.P. 60.02(2) motion. The discovery orders were premature and unduly restrictive. However, the defects in the orders do not require reversal because, as a practical matter, Mrs. Duncan obtained discovery from the persons who possessed the information relevant to her claims for post-judgment relief.

A.

The Tennessee Rules of Civil Procedure embody a broad policy favoring the discovery of any relevant, non-privileged evidence. See Tenn.R.Civ.P. 26.02(1); Vythoulkas v. Vanderbilt University, 693 S.W.2d 350, 357 (Tenn.Ct.App.1985). Evidence need not be admissible to be discoverable. Thus, rather than undertaking the impossible task of defining all the circumstances that might require discovery to be limited, the rules leave it to the trial court's discretion to decide upon the discovery restrictions that might become necessary in a particular case. Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn.Ct.App.1981); 4 J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice p 26.67 (2d ed. 1989); 8 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2036 (1970).

However, a trial court's discovery decisions are not immune from appellate review simply because they are discretionary. In light of the rules' broad policy favoring discovery, the party opposing discovery must demonstrate with more than conclusory statements and generalizations that the discovery limitations being sought are necessary "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Tenn.R.Civ.P. 26.03; Loveall v. American Honda Motor Co., 694 S.W.2d 937, 939 (Tenn.1985). A trial court should decline to limit discovery if the party seeking the limitations cannot produce specific facts to support its request.

A trial court should balance the competing interests and hardships involved when asked to limit discovery and should consider whether less burdensome means for acquiring the requested information are available. Marrese v. American Academy of Orthopaedic Surgeons, 706 F.2d 1488, 1493 (7th Cir.1983); Newsom v. Breon Laboratories, Inc., 709 S.W.2d 559, 560 (Tenn.1986). If the court decides to limit discovery, the reasonableness of its order will depend on the character of the information being sought, the issues involved, and the procedural posture of the case. Price v. Mercury Supply Co., 682 S.W.2d 924, 935 (Tenn.Ct.App.1984); 8 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2035 (1970).

B.

Mrs. Duncan first sought discovery in 1983 when she filed her motion for post-judgment relief. However, she conducted no discovery for approximately four years because Mr. Duncan would not consent to it and because the trial court declined to require it while the underlying divorce case was on appeal. After this court ordered the trial court to hold a hearing, but before Mrs. Duncan could conduct any discovery, Mr. Duncan sought a protective order to limit or curtail discovery. Mr. Duncan's motion contained no specific facts, or even conclusory allegations, pointing to the need for a protective order at that time.

The trial court's April 6, 1987 memorandum not only limited the scope of discovery but also undertook to decide in advance what types of evidence would be admissible at the hearing. ³ It limited Mrs. Duncan's discovery to: (a) evidence substantiating that fraud was practiced on the trial court, ⁴ including deliberately withholding facts at trial; (b) evidence of any negotiations pertaining to the sale of the alarm company entered into during the trial; ⁵ (c) evidence that Mr. Duncan had actual knowledge at the time of trial or immediately thereafter that his share of the business was worth more than $400,000; and (d) evidence in Mr. Duncan's possession at the time of trial concerning his stock's value and pending sale that was not introduced at trial. The trial court also stated repeatedly in its order that it would not consider any evidence that was "available" at the time of trial.

During the seventeen months between the discovery order and the hearing, Mrs. Duncan deposed five of the eight persons she originally sought to depose in 1983 and apparently could have deposed the remaining three. In addition, she deposed Mr. Duncan's secretary and two of the attorneys who were involved in the sale of the alarm company. She also obtained documents from Mr. Duncan and the company that bought his business relating to the negotiations and sale.

C.

The April, 1987 discovery order was premature for two reasons. First, Mrs. Duncan had not conducted any discovery with regard to her motion when the trial court entered the order. Second, Mr....