1 Rule 10 (C ourt of Appeal s). - (b) Me mora ndum Opinio n. The Court, with the concurrence of al l judges partici pating in the case, may aff irm, rever

se or modify t

he actions

of the tr ial court by memorandum opinion when a formal opini on would have no precedent ial val ue. When a case i s decided by memorandum opini on it shal

l be designated “MEMORA NDUM OPINION ,” shall not be publi shed, and sha ll not be cited or relied on f

or any reason

in a subsequent unrelated cas e. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON June 18, 2001 Session ALFRED LEE BOWLING v. DOBBS BROTHERS BUICK-PONTIAC, I NC., d/b/a DOBBS BROS. BUICK-PONTIAC/MITSUBI SHI, INC.
Direct Appeal from the Chancery Court for Shelby County No. 107946-2 Floyd Peete, Chancellor

No. W2000-01476-COA-R3-CV - Filed August 3, 2001

This appeal arises from the trial court’s denial of a motion in limine . Employee w as fired from his position at Company. A t a pre-tria

l deposition , Manager testified on behalf of Company that Employee

was terminated du

e to Ma na ger’s observa

tion of Employ

ee’s lack of sal

es skills. Employee

filed a motion seek

ing to bar testimon

y of other Co

mpany employ

ees during the tr

ial. These employees were to testify on Empl oyee’s lac k of sales skills. Emp

loyee arg ued that this testimonywould be inconsistent with Company’s pre-trial deposition that Employee was terminated due to Manager

’s observation of

his lack of sales s

kills. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Chancery

Court Affirmed;

and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which ALAN E. H IGHERS andH OLLY K. L ILLARD , J.J., joined.
Connie Westbrook, Memphis, Tennessee, for the appellant, Alfred Lee Bowling.

James Step hen Ki ng, Memphis, Tennessee, for the appellee, Dobbs Brothers Buick-Pontiac, Inc., d/b/a Dobbs Bros. Buick-Pontiac/Mitsubishi, Inc.

MEMORANDUM OPIN ION 1
On April 16, 1996, Alfred Lee Bowling was fired from his position as Finance a nd Insurance Manager (F&I

Manager) at Dobbs Brothers Buick-Pontiac, Inc. ( Dobbs Brothers). Mr.2 The point of contenti on in this

appeal is

Mr. Pirtl

e’s tes timony on behalf of Dobbs Brothers. All references in this opinion to M r. Pirtle’s testimony actually refer to th e testimony of the Dobbs Br others cor poration and our decision to refer to it as M r. Pirtle’s testimo ny is only used for c larity.

3 The federal c ases cited w ere federa l court interp retations of Rule 30 (b)(6) of the Fede ral Rules o f Civ i l Proced ure.
-2- Bowling argued that he was fired because he was re quired to perform jury duty the previous day

. Dobbs Brothers s

tated that Mr. Bow

ling was termina

ted from the F&I

Manager positio

n because his sales skills were inadequate; he had trouble processing paperwork; and he did not have the ability to perform his duties. After the termination, Dobbs Brothers offered Mr. B owling a car sales position. Mr.

Bowling rejec

ted this offer an

d filed a suit for w

rongful discha

rge against Dobbs Brothers. At a pre-trial deposition, Jack Pirtle, the general manager of Dobbs Brothers, testified on behalf of the corporation. 2 Mr. Pirtle stated that he had personally observed Mr. Bowling’s lack of sales skills and that these observations played a role in Mr. Bowling’s termination. The remainder of Mr. Pirtle’s testimony was a point of contention between the parties. Mr. Bow ling argued that Mr. Pirtle testified that his termination was based solely on the personal observations of Mr. Pirtle. Dobbs Brothers argued that Mr. Pirtle also touched on several other issues during his deposition, including Mr. Bowling’s lack of sales skills and his failure to process all required paperwork. In addition, Dobbs Brothers claims that Mr. Pirtle testified that other employ ees had observed Mr. Bo

wling’s problems

. Upon this case going to trial, Alfred Bowling filed a motion in limine seeking to bar Dobbs Brothers from presenting any testimony that was “inconsistent” or “contradictory” to Mr. Pirtle’s statements on behalf of the company. He filed this motion based upon federal case la w that states that a corporation is required to provide representatives at depositions to offer binding tes tim ony. 3 Mr. Bowling argued that testimony by other Dobbs Brothers employees as to his lack of sales skills or his lack of ability to do required paperwork was inconsistent with Mr. Pirtle’s statements that it w

as his observation

s of Mr. Bowling ’s lack of sales s kills that led to his termination. The court found such testimony was not inconsistent or contradictory and denied the motion. As a result, Dobbs Brothers called Maureen Callahan, a business manager at Dobbs Brothers, during the trial. Ms. Callahan testified that Mr. Bowling had trouble processing all the paperwork necessary for his job. Dobbs Brothers also c alled several car sales personnel who testified that they sought to avoid bringing potential customers to Mr. Bowling due to his lack of skills. After completion of the trial, a jury found for Dobbs Brothers. This appeal followed. The issue, as pre

sented by the

Appellant, is as fo

llows: Did the trial court err in denying Mr. Bowling’s motion in limine through its finding that Dobbs Brothers could introduce testimon

y by oth er employe

es as to Mr. Bowling’s la

ck of sales skills?4 The extent to which a Rule 30.02(6 ) deposition bind s a corporation has not been dete rmined by Tennessee courts.

5 See Reilly v. Natwest Markets Group, Inc. , 181 F.3d 253,268 (2 ndCir. 1999 ); Protective Nat. Ins. v . Com monw ealth Ins. , 137 F.R.D. 267, 277-78 (D .Neb. 1989); King v. Pratt & Whitney , 161 F.R.D. 475, 476 (S.D.Fla. 1995) ; Dravo Corp. v. Liberty Mut. Ins. Co. , 164 F.R.D. 70,75 (D. Neb. 19 95).

6 Mr. Bowling sought to rest rict any t estimony inc onsiste

nt with Mr. Pi

rtle’ s pre-tr

ial te stimony on behal

f of Dobbs Brothers.

Specifi cally,Mr. Bowling objec ted to any t

estimony duri

ng the trial

in which it was suggeste d that his termination w as based upo n anything o ther than Mr. P irtle’s observations.

7 This court stresses that we are making no inter pretati on on what extent

Rule 30.02(6)

of the Tennessee Rules of Civil Procedure binds a corporation, as s

uch an interpretat

ion is not requir

ed to review this cas

e. -3- To the extent that these issues involve questions of fact, our review of the trial court’s ruling is de novo with a presumption of correctness. See Ten n. R . Ap p. P . 13 (d) . Ac cord ingl y, we may not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (T enn. 1996); Tenn.

R. App. P. 13(d). With re

spect to the court

’s legal conclu

sions, however, o

ur review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icar

d, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

Motion in Limine Mr. Bowling asks this court to reverse the trial court’s ruling that denied his motion in limine . Mr. Bowling argues that Rule 30.02 (6) of the Tennessee Rules of Civil Procedure, which details the procedure for taking the testimony of a corpor ation, should be interpreted by this court in the same manner as Rule 30(b)(6) of the Federal Rules of Civil Procedure, which details the same procedure. 4 Mr. Bowling notes that under the federal courts’ interpretation of Rule 30(b)(6) of the Federal Rules of Civil Procedure, corporations are required to provide someone who will provide binding testimony on behalf of the corporation. 5 Mr. Bowling, in h is motion in limine, sought to bind Dobbs Brothers to Mr. P irtle’s pre-tria

l deposition and af

fidavit and bar “evidence contrary to this position.” 6
We assume, arguendo , that Tennessee has adopted Mr. Bowling’s argument on the proper interpretation of Rule 30.02 (6) of the Tennessee Rules of Civil Procedure. Is the testimony of M

s. Callahan on Mr. B owling’s failur e to process pape

rwork, evidence

contrary t

o Mr. Pirtle’s testimony on behalf of Dobbs Brothers? Is the testimony of sales people who byp asse d Mr. B owlin

g to s ee an other F&I mana ger c ontra ry t o Dobbs Bro

ther s’ testimo ny? Upon our review, we find that none of this testimony is contrary to the testimony Dobbs Brothers offered at its deposition or affidavit. Even if we were to accept Mr. Bowling’s ar gument on the proper interpretation of Rule 30.02(6), this court would still affirm the trial court’s finding that the testimony was properly presented by Dobbs Brothers and did not represent evidence contrary to i ts p re-t ria l te sti mon y. 7 As such, we hereby affirm the trial court’s ruling in this matter.-4- Conclusion Based upon the foregoing conclusions, we hereby affirm the trial court’s ruling. Costs on appeal are assessed against the appellant, Alfred Le e Bowling, and his surety, for which
exe cut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE