### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 17, 200 8

BILLY WAL LS DBA 

### B. S. WAL LS C ONS TRU CTION v. JEFF REY S. CONNER, ET AL 

### . Appeal from t he Circuit Court for Knox County No. 3-606-06 WheelerA. Rosenbalm, Judge

No. E2007-01917-COA-R 3-CV - FILED OCTOB ER 27, 2008

This liti gation arises out of the re novation of and a ddition to a 100-year old house. While suit was pending, the plaintiff, Billy S. Walls dba B.S. Walls Construction (“Contra ctor” ) fa iled to respond to interrogatories with re s p ect to requested information rega rding expe rts. He likewise did not respond to a motion to compel responses t o the i nterrogatories and an order of the c ourt compelling response s. As a conse quence of C ontrac tor’s i naction, the trial court refused to allow his two expert witnesses to testify. At trial, Contractor obje cted to the testim o n y o f an ex p ert tende red by the defe ndants, Jeff

rey S. Conner a nd Tresia Conner (“ Homeowne rs”) . The trial c ourt over ru l ed the objection. Contractor

argue s in this court that the trial court a bused its discreti o n when it re fused to allow his experts to testify and when it he ld that H omeowner s’ expert w as qualified to testify. We
a ff ir m. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Circuit Court Affir med; CaseRem anded

C H A RL ES D. S U SANO ,J R ., J., delivere d the opinion of the court, in which D. M I CHAEL S W I NEY , J., and S HAR ON G. L EE , S P

. J., joined.
Russell L. Egli, Knoxville, Tenne ssee, f or the a ppellant, Billy S . Walls dba B.S. Walls Construction
R. Loy Waldr op, Jr., Knoxvil le, Tennessee, for t he appe llees, Jef fre y S. Conner and Tre sia Conner

OP IN ION

I.

Contractor sue d in gener al sessions court s ee k i n g t o rec over monies a llegedly owed f or construction wor

k on Homeowne rs’ re sidence

. Homeowne rs counterclaimed, a lleging substandard workmanship – esse ntially breac h of contract . The ge nera l sessions court dismissed Cont rac tor’s
c la im a nda wa

rd e d H ome ow ne rs a

jud gme nt f

or $1 5, 00 0. Con tr a c tor

app e a le d to c ir c uit

c ou rt

.2

Tria l w a s se t in c ir c uit c ou rt fo r Ma y 7, 20 07

. On Ap ri l 3, 20 07 , H ome ow ne rs su bmi tte d to Contractor inter

rogatorie s and a r equest to produce documents. Five days befor e trial, Contrac tor filed a motion to continue. The motion was ba sed in part on Contrac tor’s asse rtion that his “expert [had] not c ompleted his r eport on the subject property.” The trial court r eset the matter for July 23, 2007.

On Ju ne 5, 20 07 , H ome ow ne rs fi le d a mot ionto c omp e l re sp on se s to the un a ns we re d A pril discovery. H omeowner s asked the court to direc t that Contractor’ s response s be made by June 22, 2007. Instead, the trial court e ntere d an orde r on June 18, 2007, giving C ontrac tor until July 2, 2007, to answer

. Contractor did not mee t the court’s deadline and waited until July 18 – five days before the new tria l date and 16 da

ys after the court-order ed re sponse date – to disclose inf ormation rega

rding his experts. The information that was disclose d was incompl et e an d d i d not comply with the require ments of Tenn. R. Civ. P. 26.

Homeowne rs filed a motion in limine and aske d that Contractor’ s two experts be prec luded from testifying. Th e m o tion was hea rd prior to the be ginning of the benc h trial. Contractor’ s attorney a rgued that Homeowner s’ attorney could have taken the depositions of the two expe rts. The
c ou rt re pli e d a s f

oll ow s: Well, they didn’t know you wer e going to call them. They didn’t eve n kn ow wh a t th e y w e re go ing to s a y. W hy sh ou ld the y be e xp e c te d to make a decision about taking a deposition until they know what the people a re going to say?

Isn’t that why we have a provision in Rule 26 for so-ca lled ex p ert interrogatories, identification of expert witnesses and identification of the ba sis upon which their opinion is render ed?

I mea n, I’m troubled a

littl e bit about this. Because , firs t of all, we have a rule h e r e in th is Co u r t, inth is c ir c u it , p r o v id in g th a t i f y ou don’t answe r interr ogatories or discovery reque sts and the other side wishes to comp el t h at , all they’ve go to do is file a motion and a proposed or der.
And if it lays here ten days without an objec tion, the Judge enters the order co m p el ling a response . Of c ourse, you shouldn’t have to do that. Lawye rs ought to answe r these things. That’ s why they’r e in the bo ok s.
And it seems a bit unfa ir, doesn’t it, to put [Homeow ners] to trial here , when you furnished [their lawyer ] the information th at ’s the
su bs ta nc e of

yo ur la ws uit , w hat, f

ive days be fo re tr ia l?3

Con tr a c tor ’s a tto rn e y th e n a rg ue d th a t th e e xpert s’ te sti mon y d id n ot g o to the su bs ta nc e of his original complaint, but rather to his defense of the c ounterc laim. Refer ring to Homeowne rs’ e xpert wh o te sti fi e d in ge ne ra l se ssi on s c ou rt , Co ntr a c tor ’s la wy e r sa id that his ex pe rt s w e re “ in r e sp on se to the surprise witness that oc curr ed at Ge nera l Sessions . . . .” The trial court then said:

But you’re ge tting int o all these de tails about who did what and who didit righ t a nd wh o did it wr on g. Th a t's wh y w e ’r e ha vin g a la ws uit

. But thi s wh o l e idea of

discovery is to find out what pe ople know befor ehand to let e verybody a dequate ly prepa re. Why? You know, you shoul d have answere d these interr ogatories timely or gotten relief

and an ex t en s i o n of time to do so, which the Cou rt gla dly wo uldha ve gr a nte d y ou if yo u h a d r e a so n f

or it.

But , n ow , w hy sh ou ld I come i n h e re a ndlis te n to —th e se are jus t
excuse s for your ow n delay, a ren’ t they? I me an, you could ha ve avoided a ll this if you would have done what you should ha ve done.
If somebody is ca lling an expert—I’ve seen experts come and go by the thousands, and some of them will say anything. People nee d an op po rtun ity to q uiz the m a nd pr e pa re

. An d I’ ve ne ve r pu t a ny bo dy to trial aga inst the t estimony of an expe rt that they didn't have an op po rtun ity to e xp lor e if

the y w ishto d o th a t.

I think that’s what the c ivil rules require

. T h at’s what fundamenta l fairne ss require s. So I’m a little bit—how can I —
At this juncture, Contractor ’s lawye r interr u pted the court to explain that he hadn’ t disclosed one expert because t h e fu n ds were not available to pay the expe rt. The c ourt then inquired of Ho me ow ne rs ’ atto rney whe the r the pr ob le m c ou ld b e so lve d b y a c on tin ua nc e . H ome ow ne rs ’ attorney state d that he wa s not asking for a c ontinuance. He noted that there had alr eady be en one continuance . He sa id that he had used an expert in gener al sessions court so Contrac tor’s attorne y, who had a

transcript of that testimony, had known for months what Home owner s’ expe rt could be expec ted to testify at trial. He added that he had no idea what Contractor’s w itnesses would say and that, f urthe rm or e , Cont

ra c tor ha d ha d his ex pe rt ’s re po rt fo r two mon ths a nd ha d fa ile d to dis c los e it. Cont rac tor’s attorne y then told the court that he didn’t get t h e court’s or der of June 18, 2007, even though the order contains the certificate of t he court cler k that it had been m ailed to him. He
re- emphasize d that h e could not rele ase the report and disclose the e xpert until there w ere funds available to pay for the expert; he orally moved for a continuance. The court then ma de it’s ruling
on the ma tte r a s f

oll ow s: Now, these people have been put thr ough the expense of getting rea dy fo r t h i s c a s e t w i c e

. Y o u k n o w , y o u a l l d o t h e s e t h i n g s , a n d I t ry to work with you as—I try to bend over backw ards, I believe.4 But if I d on ’t e nf or c e the se ru le s, the y’ re a moc ke ry . T he y’ re jus t so
muc h c ra p o n p ape r. An d I ’v e a lw a ys sa id fo r a lon g ti me I b e lie ve in strongly enforc ing. I think cases a re ove rly discover ed, but that do e sn 't m ake a ny dif

fe re nc e wh a t I thi nk

abo ut that.

The rule s provide for

full and fr ee disc overy, a llowing it to be ca rried
on to e xcess out of prec aution, that everybody be f u l l y prepa

red. Now, these people have bee n put through trial and come down her e. I don’t know what these people do, but I p re s u m e t h ey have jobs they’re away from taking time to deal with this matter.

I take note—it doesn’t make any differ ence to me [if] I have to try the
c a se a ll o ve r a ga in. But

I t ake no te that the y got a j ud gme nt o n th e ir
c ou nte rc la im i n Ge ne ra l Sess ion s Court, I thin k, fo r $15 ,0 00 , th e fu ll limit of the Ge nera l Sessions C ourt jurisdiction.
So, you know, I don’t see how I c an grant a continuanc e . . . . All right. The motion in limine fi le d b y th e [H omeow ne rs ] i n th is
case is respec tfully sustained. The author s of the re port that wer e not provided in a timely fa shion for what ev er re ason will be pre cluded from testifying in this cause.
This matter then proc eede d to trial. When it came time for Home owners ’ ex p er t t o testify, Contractor obje cted that the e xpert wa s not qua lified. This objection was ove rruled. T he trial c ourt found that Homeow ners’ expert was “quite a dequate ly qualified to testify.” At the conclusion of the bench trial, the court dismi ssed Contractor ’s claims and enter ed a judgment aga inst Cont rac tor for $55,000. Contractor a

ppeals.

II.

Con tr a c tor

raise s tw o is su e s o n a

pp e a l:

1. Did the t rial court abuse its discre tion in precluding Contractor’ s two expert witnesses from testifying?

2. Di d th e tr ia l c ou rt

abu se its dis c re tio n in ru lin g th a t H ome ow ne rs ’ expert witness was qualified to testify?

III

. Our r e vie w i s de novo upon the record of the proc eeding s below; howeve r, that re cord c omes to us with a presumption that the trial court’s factua l findings a re c orre ct. T enn. R. App. P . 13(d). We m us t ho no r t

his pr e sumpt ion

un le ss w e fi nd

tha t th e e videnc e pr e po nd e rate s a g a ins t th os e5

finding s. Id. ; Hass v. Kni ghton , 676 S.W .2d 554, 555 (Tenn. 1984). Our review of the trial cour t’s
c on c lus ion s o n matte rs of law, ho we ve r, is de novo with no presumption of corr ectne ss. Taylor v. Fe ze ll , 158 S.W .3d 352, 357 (Tenn. 2005) . We likewise review the tria l court’s a pplication of law to t he fa c ts d e novo , with no presumption of corr ectne ss. State v. Thacker , 164 S.W .3d 208, 248 (Tenn. 2005) (citation omitted).

Trial courts have wide discretion with re spect to the issue of the ad m i s s i o n or re jection of evidenc e. A tria l court’s decision in this rega rd is overturne d on appea l only if there is an a buse of d is cre tion. B ro nson v. Umphries , 138 S.W.3d 844, 851 (Tenn. Ct. App. 2003). See Otis v. Cambridge Mu t. Fire In s. Co. , 850 S.W.2d 439, 442 (Tenn. 1992) . In addition, a trial c ourt’s decision conc erning a n appropriate s anction will not be overturned a bsent an a

buse of discr etion. Ly le v . Ex xo n Cor p ., 746 S.W.2d 694, 699 (Tenn. 1988) (citing Brooks v. United Uniform Co. , 682 S.W.2d 913 (Tenn. 1984) ).

IV.

A.

Te nn . R. Civ . P. 26 .0 2( 4) (A )( i) pr ov ide s a s f oll ow s: A p art y may thr ou gh int e rr og a torie s r e qu ir e a ny oth e r p art y to identify ea ch per son whom the other party expec ts to call as an e xpert wi tne ss at tria l, to st ate th e su bje c t matte r o n w hic h th e e xp e rt is expec ted to testify, and to state the substanc e of the fac ts and opinions to which t he expe rt is expec ted to testify and a summary of the grounds for e ach opinion.

In additi on, under the clea r l anguage of Tenn. R. Civ. P. 26.05(1), a pa rty is require d to supplement its int e rr og a tory r e sp on se s w ith re sp e c t to e xp e rt s.
In this case , on April 3, 2007, Homeowne rs s u b m i tted an interr ogatory, stating: “Ide ntify
eac h person that you intend to ca ll as an expe rt witness at any tria l of t his cause and for eac h such person pr ovide the information required by [ Tenn. R. Civ. P.] 26.” When the interrogatories wer e submitt ed to Con t ra ctor, the tria l was sche duled for May 7, 2007. Contractor did not answe r the interrogatories or re quest an e xtens ion of time within which to do so. On May 2, 2007, howeve r, Contractor move d for a

continuance , saying, among other things, “ [t]hat [Contrac tor’s] expert has not completed his report of t he subj ect property, report due on Friday May 4, 2007.” The case was continued by the c ourt to July 23, 2007.

Te nn . R. Ci v. P. 3 3, wh ic h g ov e rn s in te rr og a torie s to pa rt ie s, pr ov ide s th a t “ [t ]h e pa rt y su bmi tti ng the int e rr og a torie s may mov e fo r an o rd e r u nd e r [ Te nn . R. Civ . P. ] 3 7. 01 wi th r e sp e c t to any objec tion to or other fa ilure to answe r an inter rogatory.” Tenn. R. Civ. P. 33.01 (2007). On June 5, 20 07, H ome ow ne rs fi le d a mot ion un de r R ule 37 to c omp e l r e sp on se s to the dis c ov e ry se nt i n April, 2007.T h e ru l es a re fo r D i v i si o n s I, II an d III, b u t n o t D i v i si o n IV , w h i ch h an d l es d o m esti c m att ers. 1

Th e l angu age o f

t he T enness ee and f eder al r ul es bot h al l ow a pr ecl usi on of des i gn at ed m at t er s i n evi dence 2

as a s anc t i on.
6 The loca l rules of the c ircuit cour t s fo r Kn o x County state: “All Motions t o compel 1 discovery w ill be acc ompanied by a pr oposed Orde r which w ill be . . . entere d ten (10) c alenda r days afte r filing unless the adve rse party reque sts in writing a hearing prior to the expiration of the te n day period.” Contractor did not reque st a hearing and did not answe r the discove ry. The pr oposed orde r su bmi tte d b y H ome ow ne rs a sk e d th a t th e re sp on se s be fi le d by J un e 22 , 2 00 7. Inc omp lia nc e wi th the local r ule, the trial c ourt enter ed the or der on June 18, 2007, but se lected the date of July 2, 2007,
a s th e de a dli ne fo r f

ili ng the re sp on se s. Con tr a c tor didno t c omp ly with the c ou rt ’s or de r; no r d id he make any re sponse to the motion to compel or seek an extension of time.

On Ju ly 1 8, 20 07 , Co ntr a c tor pr ov ide d Ho me ow ne rs wi th a 52 -p a ge re po rt

ba se d o n a

ho us e inspection on April 2, 2007. The r eport wa s completed on May 9, 2007, and photographs and other in f o r mati o n w e r e a d d e d to th e r e p o r t o n M a y 1 7 , 2 0 0 7

. T h e in te rr o g a to r y a n s w e r s u p p li e d stated t h e n am es of two expert witnesse s that Contractor intende d to call at trial, but did not supply the oth e r i nf orma tio n r e qu ir e d u nd e r R ule 26 a ndre qu e ste d inthe int e rr og a tory c on c e rn ing e xp e rt s.

Ho m eo wn er s t h en filed a motion inli m ine asking that Contractor’ s experts be prec luded from testifying. Under Te nn. R. Civ. P . 37.02(B), an or der pr ohibiting a party from introducing matter s int o e vid e nc e is o ne of

the a va ila

ble re me die s f

or a vio la tio n of a n or de r m a de pu rs ua nt t o T e nn . R. Civ. P . 37.01, such as the one in this ca s e. T ennesse e courts have re cognize d and applied the sanctions permissibl e under Rule 37.02(B). See, e .g. , Cum mins Stati on, LLC v. Batey , No. M2005- 2508-COA-R3-CV, 2007 W L 1319262, at *5 (Te nn. Ct. App W.S. fil ed May 4, 2007) (trial court’s de c isi on to u ph oldde fa

ult jud gme nt f

or de lib e rate re fu sa l to c omp ly with disc ov e ry ru le s n ot a bu se of discre tion). This rule has been applied to pr eclude expert w itnesses in f eder al courts as well. See Jason H. Eaton, Annotation, Propriety of Exc lusion of Expe rt Testimony As Sanction under Fede ral Civil Procedu r e Rule 37(b)(2) (B) for Violati on of Discove ry Order , 151 A.L.R. F ED . 561 (1999) 2 (compre hensive re view of Rule 37 f eder al ca ses).

Even without the imprimatur of Rule 37, howe ver, the Supreme Court has r uled that “the inh e re nt p ow e r o f t

ri a l ju dg e s p e rm its the tr ia l ju dg e to t ake app ro pria te c or re c tiv e a c tio n a ga ins t a party for discovery a

buse.” Ly le v . Exxon Corp ., 746 S.W.2d 694, 699 (Tenn. 1988) (citing Stri ckland v. Stricklan d, 61 8 S. W .2 d 4 96 , 5 01 (Ten n. Ct. Ap p. 19 81 )) . “ Th us , th e a uth ority to impose sanctions for a

buse of the disc overy pr ocess de rives fr om the Rules and the court's inhere nt power s.” Sta te e

x re l. Gi bb ons v . Sm ar

t , No. W2007- 01768-COA-R3-CV, 2008 W L 4491729, at *10 (Tenn. Ct. App. W .S., filed October 8, 2008) (c iting Butler v. B u tl er , No. 02A01-9807- CH00184, 1999 WL 418351, at *4 (Tenn. Ct. App. W.S. filed June 22, 1999)).
In this appea l, Contractor re lies on Ly le , w hic h w a s a wo rk e rs ’ c omp e ns a tio n c a se a ga ins t Exxon Corporation. In Ly le , the plaintiff’s attorney did not identify experts until four days befor e trial. Ly le , 7 4 6 S. W

. 2 d a t 6 9 8

. E x x o n ’ s la w y e r f il e d a mo tion i n limine to prec lude one of the7

experts. Id. W h e n th e tria l b e g a n , th e tria l c o u r t o f f e r e d E x x o n ’ s la w y e r mo r e ti me , which he declined. Id. Th e la wy e r s ug ge ste d th a t th e tr ia l go fo rw arda ndhe mig ht voir dire the witness. Id

. When the expert w as called to te stify, E xxon’s lawyer rene wed his obje ction. Id

. The trial c ourt once again offere d more ti me. Id. Th e tr ia l c ou rt a llo we d the wi tne ss t o te sti fy a nda ft e r the wi tne ss finished his testimony on direct exa mination, Exxon’s lawyer did not ask for a dditional t i m e. Id

. Ex xo n th e n a

pp e a le d c la imi ng the e xp e rt sh ou ld ha ve be e n pr e c lud e d f ro m te sti fy ing . T he Sup re me Court held that the trial court did not abuse its discretion in offering the defe ndan t a continuanc e instead of pr ecluding the witness. Id . at 699.

Cont ra ct o r’ s reliance on Ly le is mispl ace d. First, thi s case is clear ly disti nguishable fr om Ly le on its fa cts. Further, in Ly le , the S upreme Court specific ally rec ognized that “[e] xcluding the testimony of an expert w itness may be an a ppropriate sanction for

failure to name the witness.” Id. Contractor a

rgues that the trial court in this case should have granted a continuance . But the Ly le Court noted that “other

sanctions [than pr eclusion] may be appropriate where the failure t o name a n expert witness is not knowing and deliber ate.” Id

. The violation in the inst ant ca se, howe ver, w as knowing. Thus, Ly le is inapposite. Here , Contractor a cknowledge s that he had his expe rts’ re port in May and knowingly did not provide it until jus t before trial on July 23, 2007.

Contractor c laims that no money was available to pay the e xperts’ bill, but the trial court clea rly questioned this explanation. In reaching its conclusion, t he court said, “The authors of the report that [was] not provided in a timely fashion for whate ve r reason will be prec luded from testifying in this c ause.” (Emphasis adde d.) In Ferrara v. B alistreri & DiMaio, In c. , 105 F.R.D. 147, 151 (D. Mass. 1985) , the court found t hat counsel could not esca pe sanctions by arguing that he could not provide expert reports until the expe rts made suc h reports available.

In ad d i t i o n , Contractor know ingly refuse d to avail himself of the r ules and re source s a va ila ble to s olv e his “ pr ob le m.” If a n ex pe rt wa s pur

po se fu lly ho ldi ng up de liv e ri ng a re po rt , th is is a matter that could have been taken up with the court. And the trial court in this case was ope n to being approa ched. For e xample, the court said, “[y] ou should have a nswere d these interr ogatories timely or gotten relief and an extension of time to do so, which the Court gla dly w ould have gr anted you if you had rea son for it.” I n Pa rk e r v . Fr e igh tline r Co rp ., 940 F.2d 1019, 1025 (7th Cir. 1991), the Se ve nthCir c uit

he ld that th e pr e c lus ionof plaint if f’ s exp ert wi tne sse s in a

pr od uc ts l ia

bil ity lawsuit was not an abuse of discretion. The court noted that the plaintiff willfully failed to a nswer interrogatories in violation of the court’ s order to do so. Id . T he c ou rt

wa s no t mo ve d b y e xc us e s, noting the lawyer

cre ated most of his discovery proble ms or failed to see k the trial court’s assistance in resolving any discove ry dispute. Id

. Th e same c a n b e sa id i n th is c ase. Th e tr ial co urt pu t it simply, “[Y]ou c ould have a voided all this if you would have done what you should have done.”

Contractor of

fer ed no expla nation for init ially failing to respond to int err ogatories or to seek an exte nsion of time to do so. He ac knowledged r ece iving the motion t o compel dis covery, but he offe red no e xplanation for f ailing to make a r esponse to that motion or for his failure to see k a hearing or an e xtension of time to r espond. He claims that he never rec eived a copy of the court’s order , but the court c lerk ha d certified on the order t hat a copy was sent to his counsel. He of fer s no explanation for fa iling to answe r Homeowners’ interrogatories by the deadline for responding to the motion t o co m p el , which motion he ac knowledges he rec eived. He offe rs no explanation for notC o n t rac t o r arg u es o n ap p ea l t h at, i n g en era l sessi o n s co u rt, H o m eo w n ers c alle d t h e ir ex p ert as a “ su rp ris e 3

w i t n ess.” U n l i k e a co u rt o f rec o rd i n w h i ch d i sco v ery is av ail ab l e, i n g en era l sessi o n s co u rt all w i t n esse s are su rp ris e
w i t n esse s.
8 answe ring the interr ogatories f ully and completely when he finally produce d a re sponse five days be fo re tr ia l.

In thi s c ou rt , Co ntract or argue s th a t he de se rv e d a fair tr ia l a ndthat th e Rul e s o f C ivi l Procedur e must be applied s o as t o re s u l t in fundamental fairness. We agre e. But the conc ept of fundame ntal fairne ss applies to both plaintiffs and defendants. As the United States Supreme Court has said, “D iscovery . . . is not a one -wa y proposition.” Hickman v. Taylor , 329 U. S . 495, 507 (1957). Thus, Home owner s also deserved a f air trial with no undue sur prise. 3
Avoiding trial by ambush was a pri m ar y rea son for the a doption of the modern r ules of d i s co v er y

. In discussing the then re latively-new Rules of Civil P roce dure, the United States Supreme Court stated in Hickman : “Thus civil trials in the fede ral c ourts no longer need be c arried
on in the da

rk

. Th e way is now c le ar, c on sis te nt with re c og niz e d p ri vil e ge s, fo r the pa rt ie s to ob ta in the fullest possible knowledge of the issues and fa cts befor e the tria l.” Id . at 501.
As this court has noted, “ Discovery sanctions serv e a ‘t h re e-f old purpose: (1) to se cure a party’s c ompliance with the discovery rules, (2) to deter other li tigants from violating the discovery rules, and ( 3) to punish parties who violate disc overy ru l es.’ ” Magness v. Couser , No. M2006- 00872-COA-R3-CV, 2008 W L 204116, at *6 (Tenn. Ct. App. M.S., filed January 24, 2008) (quoting Ma nsf ie ld v . M ans fi e ld , No. 01A19412C H0058, 1995 WL 643329, at *5 (Tenn. Ct. App. M.S. filed November

3, 1995)). A trial court’s sa nction is not dist urbed a bsent an a buse of discr etion. The Tenne ssee Supre me Court s t at es: “A tria l court abuse s its dis cre tion when it applies an incor rec t legal standa

rd or r eac hes a de cision which is against l ogic or rea soning and which cause s an injustice to th e c o mp lain in g p ar ty.” M a g n es s v. Couser , at *6 (quoting Doe 1 e x rel. Doe 1 v . Roman Cat hol ic Di oc e se of

Na shv ill e , 154 S.W.3d 22, 42 (Tenn. 2005) ).

In this case , when the trial court sanctioned C ontrac tor and precluded his two experts from testifying, it made it possibl e, as a prac tical matter, f

or Homeow ners to make their ca se without any substantial opposing evidence . It is not argued that the court a ppli ed an incorre ct legal standa rd. And given the inher ent authority of the c ourt and the broad discre tion affor ded under Tenn. R. Civ. P. 37, we ca nnot find that the court’ s actions wer e without logic or re ason.
When matters have rea ched a poi nt in a case where the trial judge considers the sanction of prec lusion, however, it will usually be bec ause the cou rt h as been una ble to otherwise se cure a party’s c ompliance with the discovery r ules. As this court stated in Ma gne ss , the purpose of

such
a sanc tion is t o deter

others and punish the pa rty who h as v i o l ated discove ry rules. A lthough punitive by definition, sanctions do not constitute an inj ustice to the complaining party on fac ts such as those pre sented in this case

.9

Th e sa nc tio n in thi s c a se is a dmi tte dly ha rs h. But “ ha rs h s a nc tio ns ha ve be e n u se d w ithso me fre quency to ad d re s s a party’s f ailure to c omply with dis covery order s.” How ar d v . Am . I

ndus

. Se rv ., Inc ., No. M2001-02711-COA- R3-CV, 2002 WL 31769115, at *2 (Tenn. Ct. App. M.S. filed Dec ember

11, 2002) (c iting Ame ric an Ste inwi nte r v . Am e ric an Ste inwi nte r, Inc ., 964 S.W.2d 569 (Ten n. Ct. Ap p. 19 97 )) ; Ye ar woo d, Jo hnso n, St ant on & Cra btr

e e v . Foxla nd , 8 2 8 S. W .2d 412 (T e nn . Ct . A pp . 1 99 1) ; Po tts v . M ay fo rth , 59 S.W.3d 167 (Tenn. Ct. App. 2001). We hold that the tr ia l c ou rt ’s de c isi on to p re c lud e Con tr a c tor ’s e xp e rt s fr om te sti fy ing do e s n ot amou nt t o a n a bu se of discre tion.

B.

Contractor asserts t hat t he trial court erre d in not sustaining his objection to the qualifications of Homeowners’ e xpert. Que stions concerning qualifications, admissibilit y, rele vance , and competenc y of expe rt testimony are w ithin the broad discre tion of the trial court. See McDaniel v. CSX Transp., In c. , 955 S.W.2d 257, 263-64 (Te nn. 1997); Sta te v . Ba lla rd , 855 S.W.2d 557, 562 (Tenn. 1993) . On re view by this court, the c ourt’s ruling ca nnot be overturne d exce pt f or abuse of discretion. Bal

lar d , 855 S.W.2d at 562 (c itation omit ted).

As Contractor c orre ctly notes, the broa d power s of discre tion of the tri al co u rt s in such matters ar e not absolute. W a l t e r s v . Glidw e ll , 572 S.W.2d 657, 658 (Tenn. Ct. App. 1978). T he discretionary nature of t he decision does result in a less rigorous appellate sc rutiny, howeve r. White v. Vanderbilt Uni v. , 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999) ( citations omitt ed).

In this case , in attempting to qualify as an expe rt, the witness t estified that he has a degre e fr om the Sc ho ol o f A rc hit e c tur e a t th e Un ive rs ity of Tennes see. He i s a

lic e ns e d a

rc hit e c t in Tenne ssee a nd Geor gia. He is a lso a licensed r esidential contra ctor in Tenne ssee. Both his f ather and grandf ather wer e homebuilder s. After he gra duated f

rom t h e Un i v ersity of Tennessee in 1973, he prac ticed ar chitectur e in Atl an ta for f our yea rs. He the n moved bac k to Tennesse e and de veloped residential subdivisions until 1995. He went into c ommercia l c onstruction in 1996, and he w orked in c omm e rc ia l c on str

uc tio n f or the 12 ye ars prior

to the tr ia l. Du ri ng the tim e the e xp e rt wa s invo lve d in re sid e nti a l con str uc tio n as a h ome bu ild e r, he bu ilt 300 houses. He a lso developed subdivisions. He does c ost estimates as a part of his job and stated, “I w ork with estimates almost daily.” He also is f amiliar with r esidential construction costs and ha d previously testified as a n expert witness a bout r esidential construction. He visited the residenc e that was the subject of the lawsuit twice. On both visits he inspecte d the prope rty and the home . He took photographs and prepa

red a report. H e has been president of the Knoxville Ho m eb u i lders Association and ha s prese nted seminars on c onstruction issues.

T he witness wa s then tender ed for v oir dir e

. O n ap p e a l , C o n tr a c t o r p o i n t s t o s e v e r a l f a c ts brought out during v oir

dir e , which he c ontends shows th at the trial court erre d in admitting t he wi tne ss’ e xp e rt

te sti mon y: ( 1) that H ome ow ne rs ' e xp e rt ha d n o e xp e ri e nc e re no vatin g 1 00 -y e ar o ld structure s; (2) t he expert had not perf ormed a renovation of an existing residential struc ture for nine year s; (3) the e xpert’s e xperie nce w as i n building new structures; and (4) the e xpert testified that he
c a lls his frie nd s a

bo ut p ri c ing in the fi e ld o f r e no vatin g h ome s.10

As the trial court noted, the fa cts brought out on voir dire of the witness go to the we ight and
cre dibili t y t o be given to the witness’ s testimony. We give the tria l court’s de terminations in that rega rd gre at def

ere nce on a

ppeal. See Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). We find that the trial court did n ot abuse its discretion in determining that the witness was qualified to testify and a dmitti ng his testimony.

V.

W e a ff ir m th e tr ia l c ou rt ’s jud gme nt. Cos ts of thi s app e a l ar e ta xe d to the app e lla nt, Bill y S. Walls. This case is re manded to the trial court for enfor ceme nt of the trial court’s judgment and for c ollection of costs asse ssed below, a ll pursuant to applicable la w.

_______________________________ CHARLES D. SUSANO, JR., JUDGE