### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 23, 2003 Se ssion CHRISTOPHER G. RYAN

V 

### . JAMES W. SURPRISE AND 

### JOHNSON, GRUSIN, KEE & SURPRISE

Appeal from the Circuit Court for Shelby County No. 305916-6 T.D. George H. Brown, Jr., Judge

No. W2001-02853-COA-R3-CV - Filed August 27, 2003

This case involves discovery sanctions. The plaintiff sued the d

efenda nts, a lawye

r and his l aw firm, for legal malpractice. The plaintiff requested certain documents from the defendants at lea st three times, whi ch were no t produce d. The tri al court ordere d produc tion of the document s at a depositi on. T he documents were not produced at the deposition. Twenty -eight day s after the deposition, on the eve of a hearing on the defendants’ alleged discover y abuses, the documents were produced. In response to the plaintiff’s request for sanctions, the trial court ordered that the defenda nts pay the plain tiff’s a ttorney a moneta ry sanction . The def

endants appeal, arguing

that the imposition of the sanction was an abuse of discreti on, beca

use there was no evidence indicating the amount of attorn ey time spent on the alleged discovery abuse and, therefore, no evidentiary basis for the amount of

the sanc tion. We va

cate the order of the trial court an d rema

nd for further proceedings, because the r ecord does not support the trial court’s award. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Vacat ed and Remanded
H OLLY M. K IRBY , J., delivered the opini on of the c ourt, in whi ch W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.
Richard Glassman and Douglas Hanson, Memphis, Tennessee, f or the appellant, James W. Surprise and Johnson, Grusin, Kee & Surprise.
R. Sadler Bailey

and Christopher

M. Robinson, Memphis, Tennessee, for the appellee, Christopher G. Ryan.1 Rule 30.02(6) of the Tenness ee Rules of Civil Procedure. -2- OPINION
In 1988, Plaintiff/appellee Christopher G. Ryan (“Ryan” ) en gaged Defenda nt/appellant James W. Surpris e (“Su rprise”), a Memphis attorney , to represent him in a lawsuit to collect on a promissory

note. Surprise obtained a judgment on the pro missory

note in favor

of Ry an. Surpr

ise told Rya n that the judgmen t would be

valid for only ten y ears an d that, to

remain enforceable bey

ond the ten-yea

r period, it would have to be revived prior to the ten-y ear expiration date.
In 1998, Ry an alleg es that he contact ed Surpri se by

te lephone a nd mail regarding the judgmen t, which was soon to expire. Ryan contends that Surprise did not respond to Ry an’s attempts to contact

him, and the judgment lapsed prior to being revived. As a result, Ry an filed a lawsuit against Surprise and his law firm, alleging legal malpractice and seeking $500,00 0 in compensatory

damage s and $500 ,000 in pun itive dama

ges join tly and severally

from Surprise and his firm.
In a request for production of docume nts made on December 13, 1999, Ry an’s counsel requested certain billing documents from Surprise’s counsel. The documents were pertinent to the issue of whether a continuing attorney-client relation ship existed

betwee n Ry an and Sur

prise at the time the judg ment lapsed. The doc uments pr oduced b y Sur

prise in response to the request did not include the billing records.
On May 19, 2000, Ryan notified S urprise thathis deposition would be taken on May 25, 2000. The notice requested that Surprise produce the billing records sought in the prior request for document s. Surprise

did not bri ng the r

equeste d billing

record s to the de

position. I

n respons e to questions in the dep osition, ho wever, Surprise testifie d that he h ad revie wed the b illing records in preparation for his deposition testimony.
In May 2001, Ryan served on Surprise a “Notice to Ta ke De position of Rule 30(B)(6) Corpora te Representative Duces Tecum,” wh i ch aga in sough t the same

billing r ecords. Surprise filed a motion to quash certain portions of the notice. On June 20, 2 001, after a hearing, the trial judge ordered

that the disputed billing documents be produced at the Rule 30(b)(6) 1 deposition. At the Rule 30(b)(6) deposition on August 22, 2001, the disputed documents were not produced. Following Surprise’s failure to produce the documents as set

forth in the trial court’s June 20, 2001 order, Ryan

moved for discovery

sanctions, including default judgment. The hearing on the s anctions was scheduled for September 20, 2001. On the afte rnoon of September 19, 2 001 , Surprise’s attorne

y to ld counse

l for Ry an that the docume nts in ques ti on had been located. They we re de li ve re d t o R yan ’s co un se l t ha t d ay. At the hearing the following day , Ryan’s counsel a rgued stridently

that his client should be granted a default judgment based on the failure to produc e the oft-requested billing r ecords u ntil the-3-

eve of the he aring for sanctions. He a sserted that Surpr

ise’s counsel should be pena lized for t his latest in “a never ending stream of proble ms” notset forth

in the record, such as failing to produce documents on numerous occasions and improperly identifying e

xpert witnesses. Accusations and hyp erbole were ab undan t. Dur ing th e argume nt, t he tri al jud ge patiently admonished Ryan’s counse l to “talk a li

ttle more civil,” describe the prior events in “less melodramatic and more professional tones,” and “elevate [the conversation] just a l ittle bit more.” Indicating a reluctance to grant the request for default judgment, the trial court asked Ry an’s counsel what other sanc tions woul d be appropriate. In response, Ry an asked that one or both of Surprise’s exper ts be excl uded from testifying, a

nd also asked for “an extreme monetary sanction.”
In response

to Rya n’s arg ument, counsel for

Surprise explained

that the documents Surprise reviewed prior to h

is deposition were misfiled after he reviewed them. He asserted that, despite a diligent search , they

could not be loc ated unti l the day just before the hearing. He note d that counsel for Ryan did not file a motion to compel production of the documents, and the documents were not the subject of

a court order until the August 22, 2001 Rule 30(b)(6) deposition. Consequently, the document s were produced only twenty-eig

htday s after S urprise

was ordered by

the court to do so. Surprise’s counsel argued that the appropriate penalty , if any, should be monetary sanctions in the form of a ttorney ’s fees for oppos ing cou nsel’s tim e consume d pursuing

the docum

ents. Telling th e a tt or ne ys that he wa s not inclined to gr ant a def ault judg ment, the

trial cou rt aga in asked counsel for Ry an about suggested alternatives. Ry an’s counsel responded:
Mr. Bailey: I

want a monetary

sanction of $25,000. 00. Th at’s what I think is an appropr iate mone tary sanction for abus e that ha s been g oing on f or y ears. The Court : Well, how d

o yo u arrive at that?
Mr. Ba il ey: I arrive at that with basica lly if I were – if I we

re asked how many hours have been devoted

by my firm to all of these types of things, how many

hours coming down here, probably

50 hours total, oka

y, w hich at my

hourly rate of [$]250 would be $12,50 0.00, all r

ight.
I think there ought to be a lodestar application here that we ought to get more than our hourly rate

because I c an assure you that ther e are a lot better

ways to make $250.00 than to deal with these kinds of issues which are acrimonious, tension filled, difficult. . . .
* * *
This sanction needs to be significant enough to send them a message that you’r e not going to tolerate this any more. And that message would reverbe rat e through the halls o f this cou

rthouse a nd put a sto

p to a lot of

these things.2 Ryan al so fi led five motions i n limine, a motion to exclude expert witnes s testi mony as untimely and

unreasonabl e, and a motio n to strike ce rtain of the d efend ant’s sup plem ental re spo nses to interro gator ies. Surp rise, in addition to the motion for dis cretionary costs, also filed a “M otion to Q uash C ertain Portions of Plainti ff’ s Notice to Take De pos ition D uces T ecum and to Reliev e D efend ants of the Ob ligation to Co mply T herew ith.” -4- In response, counsel for

Surprise argued:
Mr. Glassman: Under

the issue of monetary

sanctions, the proper procedure I believe would be to have a writ of inquiry at some point in the future where Mr. Bailey can be examined about how much time he spent on this one issue.
He’s talking about a lot of different issues. He hasn’t spent a hundred hours on this one issue about these documents. He’s talking about everything

else that he’s filed in the case, and Your Honor hasn’t even hea

rd those motions yet. You may

find that they have no b asis or me

rit.
The tr ia l j ud ge co nt in ue d t he ar gu me nt to th e s ch ed ul ed da te of th e t ri al , t he fo ll ow in g M on da y, cautioni ng both a

ttorney s: As I indi cated to

you . . . a few

minutes ag o, the bar

for civil ity a nd courte sy is going to be way up he

re. And those who fall below it I’m telling you r ight no w I’m going to hit it whe

re it . . . h urts. And I know that y

ou lawyers a

re not hundred dollar an hour lawye

rs, so a hundre d dollars doesn’t mean much to y ou guys. So I have to, you know, up the ba r in order to get y our attention.
So I want y

ou to think about it over the weekend and ask yourselves how much is it worth t

o yo u to direc t your barbsand dis parag ements to the other individua l. And to the extent to which you want to do it, I’m going to let y ou do it, but it’s going to be like a cash reg ister. It’s going

to go ch a-chin g, cha-c hing, cha-ch ing. All righ t. At that point, the proceedings were conclude d.
The record before

this Court does not include a transcript of the proceedings the following Mo nd ay, the sche duled tria l da te. From the record, however, it appe ars that, among other determin ations, 2 the trial court denied Rya n’s counsel’s request for default judg ment, and Ryan voluntari lydis missed his lawsuit. Subsequently, Surprise moved for discre tionary costs in the amount of $2,282.85, pursuant to Rule 54.04 of the Tennessee Rules of Civil Procedure. The-5-

hearing on the alleged discovery abuse that is the subject of this appeal was apparently postponed until October 2, 2001.
At the Octob er 2, 200 1 hearin g, denu nciation and bomba st were a

gain ple ntiful. I n the cour se of a lengt hy i nvective

on his eff

orts t o bring the case to trial and Surprise’s alleg ed repeated obstruction of these efforts, counsel for Ry an addressed on occasion the issue of the amount

of time he spent o n the disc overy abuse at issue in thi s appeal : Mr. Bailey: Judge , I can’t begin to describe the amount of work that is required in a case such as this, because of the extent of the discovery abuse. So I don’t know.
* * *
I think, You

r Honor, that the sa

nction ne eds to be just like you said, it needs to b e w here

it h ur ts a nd w here it g et s thei r a

tte nti on. Ok ay ?
How much legal work have I devoted to this case, andI’m basically nowhere as I stand here today ? I don’t know ; $ 100,000 worth of legal work, probably , has been devoted to fighting Mr. Glassman.
How many hours ca

n I ab solutely , positively

say ought to b e attribu

table to jus t thes e disc ove

ry iss ue s he re ? I thi nk 6 0. O

ka y ?
* * *

. . . So if all you want to do is award sanctions, you know, at lea st $25,000, $50,000. I mean, what do y ou think it would take to stop this kind of stuff? I don’t know how much money it takes.
* * *
We have done absolutely

nothing wrong, and we stand here practically br

oke, beat, whip ped, beh

ind the ei ght ball , every

thing we could say . My

client is

– exasperated

would be a very

mild term, and so am I. A lawy er who’s trying to take a case and just do the right thing and g et to the truth should not be faced with this. Surprise’s counsel responded:

Every law yer is wrong

except Mr. Bailey . Mr. Bailey is always rig

ht. Mr. Bailey files more motions in these courts than a doz en other lawy ers put together, plaintiff or defe nse. Mr. B ailey

needs to adjust his attitude and his method of trying lawsuit. He needs to take a vacation. He nee ds to relax. H e needs t o try his lawsuits-6-

and not get c aught u

p in his – I

hate to use the word hatred, but it’s al most that, o f me and other lawyers that h

e pract ices ag ainst.
If Mr. Bailey

leaves this courtroom and would slip and fall, I would be to his aid. If he had a fla

t tire, I would stop and he lp hi m chan ge that, bec ause we are all lawyers a t the bar. Counsel for Surprise argued that Ry an did not take a non-suit because of the discovery issues, but for other unknown reasons, and emphasized that the dispu ted documents were produced twenty -eight da ys after the trial court’s order required their produc tion. He again asked for a writ of inquiry on the amount of time Ryan’s counse l spent on the discovery a buse at issue.
The trial judge tried once again to find out from Ry an’s attorney a basis for an amount of sanction s: The Court: Well, let me just – th e questio n in my mind now is, as y ou read, last Thursda y I indicate d an incli nation wit h . . . reg ard to sa

nctions. Mr. Bailey : Yes, sir.
The Court: And

then we s et it

today. The question is: How should it be computed?

. . . I think I hear Mr. Glassman sug gesting that a hearing in the nature of an inquiry would be in order to determineexactly how much t

ime was sp ent on tha

t. Addre ss that. . . .
Mr. Bail ey : Well, Judge , if the Court

wants me to swear under oath as to what I ’ve done, and tell you how much work I ’ve devoted to this, I’ll do the best I can. I have not real ly k

ept hours

. The Court : I und

erstand that.
At that point, the trial judge issued his ruling. He first denied Surprise’s motion for discretionary

costs and ordere d Surprise

to pay Ryan’s cou nsel $ 6,000 in san ction s. The trial judge stated:
I’m

going to first deny Mr. Glassman’ s motion for discretionary c osts. Based on all that I ’ve hea

rd about t he whole – this matter of

dis covery

and the f ailure to respond and who did what and who fai led to do what, the Court is going to levy sanctions against . . . the defendant, Mr. Surprise in theamount of $6,000, with the provisothat each of y ou parties will have an opportunity a t a l ater time , if

you so choose, to submit to t

he Court w

hy t hat amoun

t should be that a mount, or s hould

be an incre ased amount, or a l esser a mount.-7- And, of course, you la

wyers a lso have the power to remove that question from the bosom of

the Court through your

own cooperation – y ou see hope springs eternal

–and dete

rmi ne whatev er or how ever tha t ought to be dealt with, whic

h makes it academic for you to come back before me.
The wri tten o rder wa s ente red on Octob er 15, 2001, stati ng: 1) Defendant

Surprise is required to pay sa

nctions in the amount of $6,000.00 to Pl ai nt if f’ s c ou ns el , R . S ad le r B ai le y. 2) The Defendant has the right to file a memoran dum and to

seek a reduction of the amount of

these sanctions, with a deadline for filing of Tuesday , October 9, 2001. 3) The Plaintiff

has the r ight to f ile a reply memoran dum and to s eek an increase of these sanctions, with a deadline for filing of Tuesda y, October 16, 2001. Thus, the trial court awarded Rya n’s couns el $6,000

in discove

ry abuse sanctions and allowed each party to submit a brief arguing for an incr ease or decrease in the amount of the sa nction. The record does not indicate any subseque nt changes in the trial court’s October 15, 2001 o rde r. From that order, Surprise appeals.
On appeal, Surprise argues that the amount of the sanctions was excessive and arbitrary and that the trial judge had no basis for the amoun

t of the a ttorney ’s fees awarde d. He als o assert s that he should have been given the opportunity to cross-examine Ryan’s counse l regarding the eff

orts he expended to procure the billing documents at issue. Ry an c onte nds that the monetary sanction should be affirmed. On

cross-appeal, he submits that the trial court er red in re fusing t o gran t him a default judgment pursuant to Rule 37 of the Tennessee Rules of Civil Procedur e. Trial courts are afforded great latitude in fashioning discovery sanctions. Vanderbilt Univ. v. Techgem Diamond Tools, Inc. , No. M2001-02505-COA-R3-CV, 2002 Tenn. App. LEXI S 929, at *9 (Tenn. Ct. App. Dec. 31, 200 2); Pettus v. H urst , 882 S.W.2d 783, 787 (Tenn. Ct. App. 1993); see also Benton v. Snyder , 825 S.W.2d 409, 416 (Tenn. 1992). On appeal, the exercise of the trial court’s broaddiscretion will notbe overturned absent an abuse of that discre tion. Potts v. Ma

yforth , 59 S.W.3d 167, 171 (Tenn. Ct . App. 200 1); see Shahrdar v. Global Hous., Inc. , 983 S.W.2d 230, 236 (Tenn. Ct. App. 1998).
Rule 37.02 of th

e Tenne ssee Rule s of Civil Pr ocedure address es sanct

io ns for dis c overy abuse. I t states: If a deponent; party ; an officer, director, or manag ing agent of a party ; or, a person designated under Rule 30.02(6) or 31.01 t o te stify on behalf

of a par ty f ails to obey an order to provide or permit discovery , including an order made under Rul e-8-

37 .01 or Rule 35, or if a party fails to obey an orde

r entered under Rule 26.06, t h e court in which the action is pending may make such orders in regard to the failure as are jus t, and among o thers the fo llow ing: (A ) An order

that the ma

tters re gardin g which

the orde r was ma de or an y other designated facts shall be taken to be established f or the purposes of

the action in accordance with the claim of the party obtaining the order; (B) An order

refusin g to allo w the disob edient p arty to s upport or oppose designated

claims or defense s, or prohibiting that party from introduc ing designated matters in evidence; (C) An order

striking out plead

ings or p arts t

he reof, or stay

ing further procee dings until the order is obeyed, or dismissing the action or proceeding or any pa rt th er eo f, or re nd er in g a ju dg me nt by d ef au lt ag ai ns t t he di so be di en t p ar ty; (D) In lieu o f any of th e forego ing orders or in addition thereto, an order treating as a cont

empt of c ourt the f

ailure to obey any orders e xcept an or

der to submit to a physical or mental examination; (E) Whe re a party

has failed to comply with an or der under Rule 35 .0 1 requiring the party to produc e another f or exami nation, su ch order s as are listed in paragraphs (A), (B), and (C) of this rule, unless the

party failing to comply shows that he or she is unable to produce such person for examination.
In lieu o f any of th e forego ing orders or in addition there to, the court shall require the party fa

iling to obey the order

or the attorney

advising the party

or both to pay the re asonable e

xpenses , includin g attorney ’s fees, caused b y the failu re , unless the court finds that the failur e w as substantially justified or that other circumst ances ma ke an aw ard of e

xpenses unj ust.
Tenn. R. Civ. P. 37.02 (emp hasis add ed). Thu s, Rule 37. 02 give s the tria l judge c onsidera

ble discretion, stating

that the tr ial cour t “may make such ordersin rega

rd to the failure [to obey an or der to provide or permit discovery ] as are just.” It enumerate s several type s of appropriat e sancti o ns. The enumerated sanctions do not expre ssly include m

onetary sanction s. Rule

37.02 further states that “in lieu” of

the enume

rated sa nctions, or “in addition” to them, the trial court “shall require” the sanctioned party

or his attorney

“to pay the rea sonable

expenses, including attorney ’s fees, caused by t he failu re,” unl ess such a

n award would be u

njust.
We first address the issue of whether a sanction was wa rranted in the case at bar. Here , Ryan filed a reque st

for the documents seeking, inter alia , the billing records, on December 13, 1999. The billing records were sought once a gain at Surprise’s deposition, held on May 25, 200 0. Surpri se indicated in his deposition that he reviewed the billing records prior to his deposition; however, they3 Surprise cit es numerous cases r egarding an award of att orney’ s fees not purs uant t o Rule 37, su ch as an award of attor ney’s fees a s an elem ent of d ama ges. T hese c ases ar e inap pos ite. -9- were purportedly misfiled there after and he was unable to provide them to Ry an’s counsel. The document s were requested a third time in the

notice f or the Rule

30(b)(6 ) deposit

ion, held o n August 22, 2001. At th at time, there wa s a court order in place r equiring producti on of the b illing records. They were not produced at the Rule 30(b)(6) deposition. Twenty -eight day s after the deposition, the day before the trial court held a hearing on Ry an’s motio n for disc overy sanction s, the billing records were finally

produce d. Conside

ring all o f the cir

cumstances, we cannot find that the trial court abusedits discretion in determining that a sanction for failure to timely produce the billing r ecords was warranted. Ryan argues that the trial court erred i n declini ng his re

quest for a default judgme

nt against Surprise as a sanction for Surprise’s failure to timely produce the docum

ents. We f

ind no abu se of discretion in the trial court’s decision not to enter a default judgment a gainst Surprise.
We next address the issue of whether the record supports an aw ard to Ryan’s c ounsel of $6,000. The $6,000 award appears in this case to be an aw ardof attorney’ s fees for the discovery abuse, although it could be argued that it was simply a monetary sa

nction. Rule 37.02 o f the Tennessee Rules of Civil Procedure contemplates, and the ca selaw supports, a monetary aw ard of “reaso nable

expenses, including attorney ’s fees, caused by the failure [to produce the documents].” See Tipton v. Q uinn , No. M1998-00951-COA-R3-CV, 2001 Tenn. Ap p. LEXI S 211, at *47-49 (Tenn. Ct. App. Mar. 28, 2001) (finding no abuse of discretion in the trial court’s order to pay $750 in attorney’s f

ees “for the preparation and ar gument of the Motion for Sanction s against the Defendant.”); Rave nwood Phase II Homeowners Ass’n v. Franklin Prop. I, Ltd. , No. 03A01-9705- CV-00156, 1997 Tenn. App. LEXI S 566, at *3-4, 7-8 (Tenn. Ct. App. Aug. 26, 1997) (finding that the trial court did not abuse its discretion in awarding one party and i ts at to rn ey $ 1,976.70 i n sanction s) Mansfield

v. Mansfie ld , No. 01-A-01-9412-CH-00587, 1995 Tenn. App. LEXI S 723, at *15-23 (Tenn. Ct . App. Nov . 3, 1995) ; State v. Cox , 540 S.W.2d 357, 364-67 (Tenn. Ct. App. 1991); State v. Lehman , No. 01-A01-9011-CV-00396, 1991 Tenn. App. LEXI S 601, at*21-24 (Tenn. Ct. App. Aug. 2, 1991). Although the languag e of Rule 37.02 does not exclude a stand-alone monetary award as a sanction for discovery abuse, Ryan ha s cited no caselaw supporting such an awa rd under Rule 37.
In consider

ing an a ward of sanction s under Rule 37.02, Mansfield v. Mansfie ld , No. 01-A01-9412-CH-00587, 199 5 Te nn. App . LEX IS 723 (Tenn. Ct. App. Nov. 3, 1995), is instructive. 3 In Mansfield, the tri al court awarded the wife $5,580 in legal expenses incurred due to discovery abuses performed by

the husband and his former lawy er. Id. at *23. The Mansfield court fir st noted that the purposes of Rule 37.02 sanctions were “to secure a party’ s compliance with the discovery rules, . . . deter other litigants from violating the discovery rules, . . . punish parties who violate the discovery rules,” and

also to “provid[e] compensa tion for th e expense s caused

by t he inappr opriate conduct.” Id. at *14 (citi ng Elec. Data Sys. Corp. v. Tyson , 862 S.W.2d 728, 735 (Tex. Ct. App. 1993) and Carlucci v. Piper Aircraft Corp. , 775 F.2d 1440, 1453 (11th Cir. 1985) ). The a

ppellate-10-

court then state d tha

t “the appr opria te am ount o f leg al exp e nses should be determined using the re levant portions of [Tennessee Supreme Court Rule] 8, DR 2-106(B), the rule gene rally used by courts when they a

re required to award reasona ble attorneys’ f

ees.” Id. at *15. The Mansfield court then added that [w]hileTenn. R. Ci v. P. 37.01( 4) is limite d to the expenses incurred in obtaining an order c omp elling d

iscover y, Tenn. R. Civ. P. 37.02 br oadly extends to a

ll “reas onable ex pe nses, including attorney ’s fees, caused by the failure [to comply with the discovery order].” The “reasonable expenses” contemplated by the rule include the expe nses r equired to employ other means to obtain the information sought to be discovered. Thus, federal courts, apply ing a rule substantially

identical to Tenn. R. Civ. P. 37.02, have imposed sanctions for (1) thecosts of tak ing a second deposition when a party

improper ly r efuses t o file the first deposition, (2) the co sts o f taki ng a deposition a fter a party improperly destroyed a

report, and (3) the costs stemming from a lawy er’s discouraging witnesses to provide doc uments. Id. at *21-22

(emphas is added) (footnotes omitted). The court of appeals then we nton to find that
Ms. Mansfie

ld inc urred a

dditional l egal e

xpenses be cause of

Mr. Mansf

ield ’ s refusal to provide a ppropriate responses to her interroga tories and her request for production of documents. These expenses relate t o (1) drafting and presenting the the [sic] motions to c ompel, (2) drafting the orders granting the motions to compel, (3) pre paring and presenting the authorizations to obtain access to Mr. Mansfield’s accoun ts after he refused to produce his financ ial records, (4) examining and c atalog uin g the three boxes of unsorted documents belatedly provided by Mr. Mansfield, and (5) preparing the master list of missing documents ordered by the trial court. Ms. Mansfield’ s e vidence amply doc umented the cost of these services and provided the trial court with an am ple evidentiary ba sis to determine the reasona bleness of the claimed expenses in light of [Tennessee Supreme Court Rule] 8, DR 2-106(B). We find

that the rec ord suppo

rts the tr ial cour t’s decis ion that Ms. Mansfield incu rred $ 5,5 80 in additional legal expenses because of the discovery abuses attributable to Mr. Mansfield and his former lawy er. Id. at *22-23. Thus, the Mansfield court found ample evidentiary bases to support an award to the wife for additional leg al expense s incurr ed in obta ining the request ed infor mation an d documen

ts. Also instructi ve is Carl

ucci v. Piper Aircraft Corp. , 77 5 F. 2d 1 440 (11 th Ci r. 1 985 ). In Carlucci , the plain

tiff move d for disc overy

sanction s. Id. at 1443, 1444. The district court awarded the plaintiff $10,000. Id. at 1446. The Eleventh Circuit Court of Appeals reversed and re manded the award b ecause

the distri ct court

“ failed to d etail the basis for arriving at the sum of $10,000.” Id. at 1453. The Carlucci court found that the district court must “set forth an acco unting a dequate to justify the figure it adopted” so

that a “ ‘meaningful review may be hadon appeal.’ ” Id. (quoting4 In po int of fact, the spec ter of suc h a de pos ition in the in stant cas e is abh orre nt. -11- Wilson v. Volkswagen of Am., Inc. , 561 F.2d 494, 505 (4th Cir. 197 7)). The Eleventh Circuit Court of Appeals continued:
The court on reman d, upon a f

ull accounting ma

y, i n its discreti on, deter

mine that a sanction greater

than $10, 000 is war ranted. It may also find that the fine is better deemed costs to be

paid in full or p art to Carlucc i and/or her attor ney to compen sate them f or their expenses. We simply are in no position to resolve that question on appeal. Rather, w e must rev erse an d remand on this issue

so that th e di strict court may create a recor d accounting fo

r costs adequa

te to susta in whatever sanction that court ultimately

decidesis justified in light of the repeated refusal of Anania to abide by that court’s discove

ry direc tives. Id. at 1454. Thus, the court reversed and remande d the award so that the

district c ourt coul d creat

e a record accounting of the c osts expended due to the defendant’s lawy er’s discovery

violations.
In the case at bar, the trial court made an earnest attem pt to elicit from Ry an’s atto rney a basis for an award of

attorney’s f

ees for his efforts in obtaining the disputed documents. Alas, none was forth comin g. Rya

n’s attor ney spoke at l ength

about a l itany of purported disc overy abuse s by Surprise, none of w

hich are containe d in the re cord bef ore this Court. His r

esponses to the t rial judge’s inquiriesrange d from “I want a mon

etary sanction of $25,00 0,” to a “ballpark” estimate of fifty hours spent on “all of these ty pes of th in gs ,” to “$ 10 0, 00 0 w or th of le ga l w or k, pr ob ab ly, has been devoted to fighting Mr. Glassman,” to an estimate of sixty hours on “just these discovery issues here,” to a state

ment that n o hours ha

d been ke pt by Rya n’s couns el on the c ase. We c an only surmise that the tr

ial judg e, believing an

award o f attorne

y’ s fees to

be an ap propria te sanc tion, awarded an amount that he believed reflected the amount of time actually spent to obtain t he disputed b illing records. Indeed, an award of $ 6,000 in a ttorney’s fe es may in fact be justified. Unfortunately, the record in this cas e givesthis Court n o basis for dete rmining this issue. Ryan’s response to the trial court’s inquiries on the additional hours spent to obtain the d oc uments at i ssue amou nted to litt

le more than arm-wavingand “ballparking.” I t was incumbent on him to provide the trial court wit h a sufficient evidentiary

basis for an award of attorney ’s fees, and he did not do so.
We decline, however, to adopt Surprise’s arg ument that he is entitled to a “wri tof in qu ir y” and the right to take

the depos ition of Ry

an’s cou nsel r egarding the amount of attorney ’s fees sought. 4 We are mindful that the trial court cannot permit an award of attorney ’s fees as a discovery sanction to become a time-consuming sideshow, in which an interminable amount of time is spent determining the amount of a sanction for a discovery a

buse that itself took

unnecessary

time from the court. Nevertheless, under Mansfield and Carlucci , some

evidentiary

basis is neededto support the trial court’s award.-12-

With reluctance and sy

mpathy to the trial court, the c ause mus t be r emanded to determine whether an adeq uate basis for an award of attorney ’s fees can be supplied, considering the factors set forth in Tenne ssee Supr

eme Court

Rule 8, DR2 -106(B ) as well as Mansfield

and Carlucci . If no such basis is supplied, the trial court may, in its di scretion, award another ty pe of sanction or decline to award any

sanction at all.
The decision of the trial court is vacated and rema nded as set forth above. Costs are taxed one-half to the app ellants, James W. Su rp ri se an d J oh ns on , G ru si n, Ke e & Su rp ri se , a nd th ei r s ur et y, and one-half to the appellee, Christopher G. Ry an, fo r wh ic h e xe cu ti on ma y is su e, if ne ce ss ar y.

___________________________________ HOL LY M. K IR BY, J.