Hobbs Purnell Oil Co. v. Butler
| Decision Date | 12 January 2017 |
| Docket Number | No. M2016-00289-COA-R3-CV,M2016-00289-COA-R3-CV |
| Parties | HOBBS PURNELL OIL COMPANY, INC. ET AL. v. THOMAS BUTLER ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Lawrence County
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.
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.
OPINIONIn 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 ofinterogatories 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, 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...
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