Carol Strong v. Timothy Strong

• Court: Court of Appeals of Tennessee
• Decided: August 18, 1997
• Docket: 02A01-9701-CV-00005
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________

CAROL STRONG, Shelby Circuit No. 152659 R.D. C.A. No. 02A01-9701-CV-00005 Plaintiff, Hon. George H. Brown, Jr., Judge v.

TIMOTHY RALPH STRONG,

Defendant. FILED CAREN DANTZKER, Memphis, Attorney for Plaintiff. August 18, 1997 G. KEITH ROGERS, JR., Memphis, Attorney for Defendant. Cecil Crowson, Jr. Appellate C ourt Clerk AFFIRMED AND REMANDED

Opinion filed: ______________________________________________________________________________

MEMORANDUM OPINION1

TOMLIN, Sr. J.

This case presents a procedural issue involving T.R.C.P. 37.01. Carol Strong

(hereafter “Wife”) filed suit for divorce in the Circuit Court of Shelby County against

Timothy Ralph Strong (hereafter “Husband”). Subsequently, Wife served Husband

with a set of eighteen interrogatories. Husband filed an answer to the complaint as well

as responses to the interrogatories. W ife thereafter filed a Motion to Compel Discovery

pursuant to T.R.C.P. 37.01, contending that Husband’s responses to four of the

interrogatories were incomplete and insufficient. The trial court granted Wife’s motion

to compel and ordered Husband to answer the four interrogatories. In addition, the trial

court ordered Husband and his counsel to pay W ife $500.00 as sanctions for failure to

cooperate with discovery. Husband’s sole issue on appeal is whether the trial court

erred in ordering Husband and his counsel to pay Wife the $500.00 pursuant to Rule 37

T.R.C.P.. In addition, Wife asks this court to find Husband’s appeal to be frivolous

1 Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. pursuant to T.C.A. § 27-1-122. For the reasons hereafter stated, we affirm the trial

court, find the appeal to be frivolous and remand.

It is well established in this state that regarding a motion to comply the trial

court has the ability to order the party necessitating the m otion, and/or the party’s

attorney, to pay reasonable attorney fees for services that were necessary to in order to

obtain the order. Furthermore, on appeal this court will not disturb the ruling of the

trial court in imposing sanctions and awarding costs, unless there is a clear, affirmative

showing by the appealing party that the trial court abused its discretion. Benton v.

Snyder, 825 S.W .2d 409, 416 (Tenn. A pp. 1992).

Husband has the burden of proving that the trial judge abused its discretion. In

his attempt to carry this burden, Husband has set forth five different reasons as to why

the trial court was in error. First, Husband contends that he was not allowed a hearing

on W ife’s M otion to Compel Discovery, and in violation of T.R.C.P. 37.01(4). It is

undisputed that counsel for both parties were present at a hearing before the trial court

on the motion to com pel and that counsel for H usband took part in the arguments

before that court. While Husband m ay have been absent, there is no proof in the record

as to any restraint being placed upon him to prevent him from attending the hearing,

nor was there any request by counsel for a continuance of the hearing. This argument

is without m erit.

Husband’s next contention is that the trial court failed to set forth the basis for

the amount of the sanction and to state that the levy was made to reimburse W ife for

reasonable expenses and attorney fees. Wife’s motion to comply specifically called for

the award of attorney fees for the failure of Husband to com ply, and the trial court so

found. This contention is without m erit.

Next, Husband contends that the trial court failed to make any finding that

Husband failed to answer any of the interrogatories properly or that his responses w ere

either evasive or incomplete. T.R.C.P. 37.01(3) states that an evasive or incom plete

answer is to be treated as a failure of the party to answer. The court ordered Husband

to answer four of the interrogatories. While not expressly stated in the order, the

existence of this order is a clear finding that the H usband’s previous responses were

2 inadequate.

Next, Husband contends that the interrogatories w hich H usband was ordered to

answer were irrelevant to Wife’s divorce action. The trial court obviously determined

that the interrogatories did call for discoverable inform ation. This contention presents

no abuse of discretion.

Lastly, Husband contends that two of the interrogatories, number 15 and 17,

which he allegedly gave vague answers to, were themselves vague. From a reading of

these interrogatories it is clear that they both were specific questions dealing with

specific subjects. This contention is without m erit.

In conclusion, we find that under these circum stances this appeal is frivolous.

Accordingly, this cause is remanded to the Circuit Court of Shelby County for further

proceedings pursuant to T.C.A. § 27-1-122, to ascertain the am ount of attorney fees to

be paid by Husband to W ife for her attorney’s services in connection with this appeal.

The judgment of the trial court is affirmed. Costs in this cause on appeal are taxed to

Husband, for which execution may issue if necessary.

________________________________________ TOMLIN, Sr. J.

________________________________________ FARMER, J. (CONCURS)

________________________________________ LILLARD, J. (CONCURS)