source: Caselaw Access Project

author: FRANK F. DROWOTA, III, C.J.,

license: Public Domain

text:
    Frank Fetzer MILLS, Jr., et al. v. Luis L. WONG, M.D., et al.
    Supreme Court of Tennessee, at Memphis.
    Nov. 9, 2004 Session.
    Feb. 16, 2005.

      Richard J. Myers, Memphis, Tennessee, for the appellants Frank Fetzer Mills, Jr. and Rebecca Smith Mills.
    William H. Haltom, Jr. and Joseph M. Clark, Memphis, Tennessee, for the appel-lee Charter Lakeside Behavioral Health System, Inc.
    Robert B.C. Hale, and John T. Moses, Memphis, Tennessee, for the appellees Janet K. Johnson, M.D., Yvette Marion and Miriam Johnson, as co-executors of the estate of Janet K. Johnson, M.D., and Kenneth F. Tullís, M.D.
    Michael L. Robb, and Kevin Baskette, Memphis, Tennessee, for the appellee John F. O’Connell, M.D.
   OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR. and JANICE M. HOLDER, JJ., joined. WILLIAM M. BARKER, J., did not participate.

The plaintiffs in this medical malpractice action filed their complaint approximately three weeks after the three-year medical malpractice statute of repose, TenmCode Ann. § 29-26-116(a)(3) (1980), had expired. The defendants moved to dismiss the action as time-barred. In response, the plaintiffs argued that their action should not be time-barred because the primary plaintiff was mentally incompetent during most of the repose period. Specifically, the plaintiffs contended that due process requires tolling of the statute of repose during the period of a plaintiffs mental, incompetency. In support of their conténtion, the plaintiffs relied on Seals v. State, 23 S.W.3d 272 (Tenn.2000), and other precedents which provide for tolling of the Post-Conviction Procedure Act statute of limitations, TenmCode Ann. § 40-30-102(a) (2003), on the basis of a petitioner’s mental incompetency. The lower courts granted summary judgment in favor of the defendants. We affirm. We hold that due process does not require tolling of the medical malpractice statute of repose during the period of a plaintiffs mental incompetency. The legislature has the constitutional power to place reasonable temporal limitations on rights of action in tort. By contrast, a post-conviction petition, despite its procedurally civil nature, is available only to a person who is in custody following a criminal conviction and sentence; such a petition thus implicates life and liberty interests in a way that materially differentiates it from civil actions. Therefore, the precedents which require tolling for mental incompetence in the context of post-conviction petitions are inapposite to questions of tolling statutes of repose in civil tort actions.

I. Factual and Procedural Background

Frank Fetzer Mills, Jr. (“Mr. Mills”) was suffering from depression, insomnia and other mental and physical ailments. On November 17, 1994, he sought professional care at defendant Charter Lakeside Behavioral Health System, Inc. (“Charter”). Mr. Mills was admitted to one of Charter’s treatment facilities where he was hospitalized at least until November 27, 1994 and possibly until December 3, 1994. He subsequently received care at one of Charter’s rehabilitation facilities until December 29,1994. During this period, defendants John F. O’Connell, M.D. (“Dr. O’Connell”), Kenneth F. Tullís, M.D. (“Dr. Tullís”), and Janet K. Johnson, M.D. (“Dr. Johnson”) provided Mr. Mills with psychiatric and medical care. After his treatment at Charter ended, Mr. Mills continued to experience mental and neurological problems such as depression, speech abnormality, decreased physical coordination, headaches and tremors. When treatment by other physicians failed to improve his condition, in January 1997, he consulted Lee Stein, M.D. (“Dr. Stein”), who performed upon Mr. Mills a general physical examination and a variety of tests. On February 7, 1997, Dr. Stein performed an ophthalmological exam which revealed for the first time that Mr. Mills’ condition was caused by Wilson’s Disease, a treatable genetic disorder which ultimately proves fatal if left untreated. Shortly after this diagnosis, Mr. Mills obtained specialized treatment for the disease.

On January 21, 1998, Mr. Mills and his wife, Rebecca Smith Mills (“Mrs. Mills”) (collectively the “plaintiffs”), filed a medical malpractice suit against Charter and Drs. O’Connell, Tullís, and Johnson (collectively the “defendants”), alleging that the defendants negligently failed to discover that Mr. Mills was suffering from Wilson’s Disease. The plaintiffs alleged that the defendants’ failure to discover the disease in 1994 caused Mr. Mills to suffer irreversible damage to his brain and to certain internal organs which could have been reduced or avoided by a proper diagnosis. Mrs. Mills also claimed that she suffered damages such as loss of her husband’s services and consortium.

The defendants filed motions to dismiss the plaintiffs’ claims, maintaining that the plaintiffs’ initial complaint was not filed within the three-year statute of repose for medical malpractice actions. See Tenn. Code Ann. § 29-26-116(a)(3) (1980). Considering the record in a light most favorable to the plaintiffs, the last date on which the defendants could have committed a negligent act or omission as to Mr. Mills was December 29, 1994, their final day of treating him. The plaintiffs did not file their initial complaint until January 21, 1998, approximately three years and three weeks later.

In response to the motions to dismiss, the plaintiffs supplied affidavits of experts who concluded that, as a result of Wilson’s Disease, Mr. Mills had been mentally incompetent from at least November 17, 1994 until approximately July 1997. The plaintiffs argued that due process requires the medical malpractice statute of repose to be tolled for the period of Mr. Mills’ mental incompetency. The plaintiffs relied upon precedents which have tolled on the basis of mental incompetency the one-year statute of limitations for post-conviction petitions, contending that these precedents should apply in the present case.

Treating the motions to dismiss as motions for summary judgment, the trial court granted summary judgment in favor of the defendants. The Court of Appeals affirmed. Following this Court’s decision in Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn.2000), the Court of Appeals held that there is no statutory basis for tolling the medical malpractice statute of repose during the period of Mr. Mills’ mental incompetency. The Court of Appeals further held that due process does not require tolling of the medical malpractice statute of repose, stating:

While post-conviction relief may be characterized as a civil action, all the substantive rights involved are those stemming from a criminal action and protected by rules of criminal procedure. This Court is not willing to extend the due process analysis ... to a case involving the civil medical malpractice statute of repose.

Given these holdings, the Court of Appeals found to be moot the question of whether the statute at issue in the Post-Conviction Procedure Act cases is a statute of limitations or of repose. We granted the plaintiffs’ application for permission to appeal.

II. Analysis

The primary issue now before us is whether due process requires tolling of the medical malpractice statute of repose during the period of a plaintiffs mental incompetency. In order to resolve this question, we must first address preliminary statutory matters.

A. Medical Malpractice Statute of Repose

We begin by describing the medical malpractice statutes of limitations and repose. Tennessee Code Annotated section 29-26-116(a)(1) — (2) (1980) provides that “[t]he statute of limitations in malpractice actions shall be one (1) year ...,” except that “[i]n the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.” This statute places a temporal procedural boundary on the bringing of a medical malpractice action. See Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn.1995) (“[S]tat-utes of limitation are merely procedural, extinguishing only the remedy.”).

However, the statute of repose sets an absolute limit on the time in which a plaintiff may bring a medical malpractice action. This statute provides:

In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant!)] in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.

Tenn.Code Ann. § 29-26-116(a)(3) (1980) (emphasis added). As with the Tennessee Products Liability Act statute of repose, TenmCode. Ann. § 29-28-103 (2000), the emphasized language expresses a legislative intent to place an absolute three-year bar beyond which no medical malpractice right of action may survive. See Penley v. Honda Motor Co., 31 S.W.3d 181, 185 (Tenn.2000). The running of the statute of repose thus has a substantive effect. See Cronin, 906 S.W.2d at 913 (“[Statutes of repose are substantive and extinguish both the right and the remedy-”).

B. Statutory Tolling of the Statute of Repose

By statute, the absolute temporal bar imposed by the medical malpractice statute of repose may be tolled only in exceedingly limited circumstances. The statute of repose itself expressly provides for tolling on the basis of fraudulent concealment, Tenn.Code Ann. § 29-26-116(a)(3), but it says nothing about tolling on the basis of mental incompetency. The absence of an express tolling provision for mental incompetency when tolling is expressly provided for on another ground indicates legislative intent not to provide for tolling on the basis of mental incompetency. See Penley, 31 S.W.3d at 185-86.

Moreover, this Court held in Penley that the general legal disability statute provided in Tennessee Code Annotated section 28-1-106 (1980) does not serve to toll statutes of repose on the basis of mental incompetency. 31 S.W.3d at 186-89. The legal disability statute states:

If the person entitled to commence an action is, at the time the cause of action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that ease within three (3) years from the removal of such disability.

Tenn.Code Ann. § 28-1-106 (1980). In Penley, we explained that “the references to the accrual and the bringing of a cause of action indicate that this section is only applicable to extend the running of a statute of limitations, and we will not interpret the legal disability statute to give it effect beyond the fair import of its terms.” 31 S.W.3d at 186. Thus, we clearly refused to extend the legal disability statute to allow for tolling of the statute of repose on the basis of mental incompetency. Id. at 188. Relying on Penley, the Court of Appeals in this case held correctly that “no ... statutory exception exists for [tolling] the statute of repose” on the basis of mental incompetency.

C. Constitutional Tolling of the Statute of Repose

Given the lack of any statutory basis for tolling the medical malpractice statute of repose for mental incompetency, the plaintiffs in this case have advanced a constitutional basis for tolling. Specifically, they contend that due process requires tolling of the medical malpractice statute of repose during the period of Mr. Mills’ mental incompetency. The plaintiffs accurately point out that we did not squarely address this constitutional issue in Penley.

It is correct to say that the plaintiffs’ vested right of action for medical malpractice in this case enjoys constitutional protection. Mr. Mills’ cause of action accrued in February 1997, when the plaintiffs first discovered that he had Wilson’s Disease. A vested right of action in tort is a cause of action which has accrued, thereby becoming presently enforceable. See Jones v. Morristown-Hamblen Hosp. Assoc., Inc., 595 S.W.2d 816, 820-21 (Tenn.Ct.App.1979). Vested rights of action in tort may be classified as constitutionally-protected property interests. “[A] vested right of action is as much property as are tangible things ... and enjoys the full protection of the due process clauses of the Federal and State Constitutions.” Morris v. Gross, 672 S.W.2d 902, 905 (Tenn.1978); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (“[A] cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause.”). The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law....” The Law of the Land Clause of the Tennessee Constitution correspondingly states that no person “shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” Art. I, § 8. Analysis under the Fourteenth Amendment and the Law of the Land Clause are to be treated synonymously, Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 743 (1965), although “[i]n the interpretation of the Tennessee Constitution, this Court is always free to expand the minimum level of protection mandated by the federal constitution,” Doe v. Norris, 751 S.W.2d 834, 838 (Tenn.1988) (citing Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979)).

Although common law rights of action in tort receive constitutional protection, they are not fundamental rights which demand heightened due process protection under the federal and Tennessee constitutions. See Crier v. Whitecloud, 496 So.2d 305, 310 (La.1986) (“[T]he right to recover in tort is not a fundamental right....”); King-Bradwell P’ship v. Johnson Controls, Inc., 865 S.W.2d 18, 21-22 (Tenn.Ct.App.1993) (holding that application of Tennessee’s products liability statute of repose “involve[d] neither a fundamental right nor a suspect class.”); see also United States v. Kras, 409 U.S. 434, 445, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (applying rational basis review to economic legislation); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514, 522 (1982) (“[W]e see no basis for treating a law that abrogates a tort remedy differently from any other law that regulates economic activity” and which thus receives rational basis review.). As the United States Supreme Court has explained, property interests “are not created by the Constitution. Rather[,] they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Consequently, the Tennessee General Assembly has the sovereign power prospectively to limit and even to abrogate common law rights of action in tort as long as the legislation bears a rational relationship to some legitimate governmental purpose. See Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 83-84, 88 n. 32, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (applying rational basis review to economic legislation and stating that no person has a vested interest in the common law itself); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (“[L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.”); Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929) (“[T]he Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.”); Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.1986) (“If the court is able to conceive of a rational basis for [a] statute that is reasonably related to a legitimate state purpose, the court cannot further question the wisdom of the legislation.”).

Absent any retroactive application, once an applicable repose period has run, a rationally-based statute of repose validly extinguishes not only unaccrued causes of action, but also causes of action which have already accrued and vested as rights. As stated above, “the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” Silver, 280 U.S. at 122, 50 S.Ct. 57. In Tennessee, the common law right of action for medical malpractice is inherently limited from its inception by Tennessee Code Annotated section 29-26-116(a) (1980), which provides that “[i]n no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred....” The property right which may vest in a plaintiff is thus by its very definition a right which may exist only for a limited time. Cf. Martinez v. California, 444 U.S. 277, 282 n. 5, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (“[T]he [statutory] immunity defense, like an element of the tort claim itself, is merely one aspect of the State’s definition of that property interest.”); Ferri v. Ackerman, 444 U.S. 193, 199, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979) (“[W]hen state law creates a cause of action, the State is free to define the defenses to that claim.... ”); Crier, 496 So.2d at 308 (“[A] state has the right to fashion and limit the causes of action that it recognizes .... As a result, persons who do not file suit within th[e] time limit [provided by the Louisiana medical malpractice statute of repose] have no cause of action and thus no vested property right in bringing suit”).

In reasonably limiting a tort right of action via a statute of repose, the legislative process provides all the process that is due. See Logan, 455 U.S. at 432-33, 102 5.Ct. 1148 (“[T]he [statutory] grant of immunity [from tort claims] arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process .... [T]he legislative determination provides all the process that is due.”) (citations omitted); cf. Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486-87, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (noting that a state’s involvement in the self-executed running of a statutory limitations period falls short of the kind of state action required to implicate procedural due process). The Tennessee General Assembly itself has the power to weigh and to balance competing public and private interests in order to place reasonable limitations on rights of action in tort which it also has the power to create or to abolish. Cf. Texaco, Inc. v. Short, 454 U.S. 516, 526, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982) (“We have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.”).

Notwithstanding, the plaintiffs contend that our precedents which hold that due process requires tolling of the Post-Conviction Procedure Act statute of limitations on the basis of mental incompetency are applicable to civil tort actions. Specifically, the plaintiffs attempt to rely upon Burford v. State, 845 S.W.2d 204 (Tenn.1992), Seals v. State, 23 S.W.3d 272 (Tenn.2000), and their progeny as support for their position. In order to decide whether these precedents should apply in the case at bar, it is instructive to review their relevant holdings.

Under the Post-Conviction Procedure Act, a person “in custody under a sentence of a court of this state,” Tenn.Code Ann. § 40-30-102(a) (2003) (formerly § 40-30-202(a)), is given the opportunity to mount a collateral attack on a criminal conviction or sentence when “the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2003). The Post-Conviction Procedure Act includes a one-year statute of limitations for bringing a claim. See TenmCode Ann. § 40-30-102(a) (2003) (formerly § 40-30-202(a)). In Seals, this Court held that within the context of post-conviction proceedings, due process may require tolling of the statute of limitations on the basis of a petitioner’s mental incompetency. 23 S.W.3d at 279; see also Burford, 845 S.W.2d at 209-10 (holding that the post-conviction statute of limitations shall be tolled when due process so requires). The constitutional concern expressed in Seals has been summarized as follows: “While rejecting a facial challenge to the constitutionality of [Tennessee Code Annotated section 40-30-102(a) ], we concluded that its application may violate due process if it denies mentally incompetent petitioners a reasonable opportunity to raise a claim in a meaningful time and in a meaningful manner.” State v. Nix, 40 S.W.3d 459, 462 (Tenn.2001). Seals further explains:

In determining what procedural protections a particular situation demands, three factors must be considered: (1) the private interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and finally, (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

23 S.W.3d at 277 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn.1993)).

The plaintiffs in this case argue that divestiture of their tort claim via application of the medical malpractice statute of repose deprives them of a constitutionally-protected property right without fair process. They compare their situation to that of a mentally-incompetent prisoner who has been deprived of a constitutional liberty interest without the opportunity to be heard at a meaningful time and in a meaningful manner. We find this comparison to be inapposite.

Although post-conviction petitions are procedurally civil in nature, Watkins v. State, 903 S.W.2d 302, 305 (Tenn.1995), superseded by Tenn.Code Ann. § 40-30-102, the opportunity to bring a post-conviction petition applies only where “a person in custody under a sentence of a court of this state” seeks relief from a criminal sentence or conviction, Tenn.Code Ann. § 40-30-102(a). Post-conviction petitions thus necessarily implicate fundamental due process interests in life or in freedom from bodily restraint in a way that materially differentiates such petitions from civil tort claims. As the Court of Appeals noted, “While post-conviction relief may be characterized as a civil action, all the substantive rights involved are those stemming from a criminal action and protected by rules of criminal procedure.” “In criminal litigation, where an alleged infringement of a constitutional right often affects life or liberty, conventional notions of finality associated with civil litigation have less importance.” Burford, 845 S.W.2d at 209 (citing Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (“Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.”)). Our precedents from the post-conviction procedure context are thus inapplicable to questions concerning the tolling of civil statutes of repose.

In light of the foregoing analysis, we hold that due process does not require tolling of the medical malpractice statute of repose during the period of a plaintiff’s mental ineompeteney. We thus affirm the Court of Appeals, which refused “to extend the due process analysis used in Seals to a case involving the civil medical malpractice statute of repose.” Although a rule which extinguishes medical malpractice rights of action even though a plaintiff was mentally incompetent may be harsh, it is fully within the constitutional power of the legislature so to provide, and thus it is not our place to debate its wisdom. See Harrison v. Schrader, 569 S.W.2d 822, 828 (Tenn.1978). As Harrison held, the Tennessee General Assembly had a rational basis for enacting the medical malpractice statute of repose. Id. at 824-28. Just as the medical malpractice statute of repose validly extinguishes undiscovered causes of action which have yet to accrue, it also validly extinguishes even accrued and vested rights of action. See supra.

D. Summary Judgment

Summary judgment requires a demonstration that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). Because the record in this case, viewed in the light most favorable to the plaintiffs, Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn.1998), establishes that the plaintiffs filed suit approximately three years and three weeks after the last date on which the defendants could possibly have committed negligence, the plaintiffs’ right of action is barred by the three-year statute of repose provided in Tennessee Code Annotated section 29-26-116(a)(3) (1980). Therefore, as to the plaintiffs Mr. and Mrs. Mills, we affirm summary judgment in favor of the defendants Charter, Dr. O’Connell, Dr. Tullís and the estate of Dr. Johnson.

III. Conclusion

For the reasons explained herein, we hold that due process does not require the three-year medical malpractice statute of repose to be tolled during the period of a plaintiffs mental incompetency. In this regard, we affirm the judgment of the Court of Appeals. Based on this holding, we also affirm summary judgment as to the plaintiffs Mr. and Mrs. Mills in favor of the defendants Charter, Dr. O’Connell, Dr. Tullís and the estate of Dr. Johnson. Costs of this appeal are taxed to the plaintiffs, Mr. and Mrs. Mills, for which execution may issue if necessary.

WILLIAM M. BARKER, J., did not participate.

      . Wilson's Disease precludes one's body from excreting copper, with the result that copper accumulates in the body thereby causing serious internal, neurological, and psychiatric problems.

      . Dr. Johnson died on November 1, 1998. Subsequently, the co-executors of her estate, Yvette Marion and Miriam Johnson (“estate of Dr. Johnson”), were substituted for Dr. Johnson as parties to this litigation.

      .In their complaint, the plaintiffs included other defendants who are not relevant to this appeal.

      . Some courts use the terms "cause of action” and "right of action” interchangeably. See 1 Am Jur.2d Actions § 40 (2004).

      . The disturbance of vested rights through retroactive legislation, see, e.g., Morris v. Gross, 572 S.W.2d 902 (Tenn.1978), implicates a different constitutional question which is not at issue in this case.

      . Given our holding herein, see infra, we need not determine whether Tennessee Code Annotated section 40-30-102 is technically to be characterized as a statute of limitations or a statute of repose.

      . The statute of limitations provides:
      Except as provided in subsection (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or in equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file such an action and is a condition upon its exercise. Except as specifically provided for in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
      Tenn.Code. Ann. § 40-30-102(a) (2003) (formerly § 40-30-202(a)).

      . The Burford decision concerned a prior version of the Post-Conviction Procedure Act statute of limitations. See Tenn.Code Ann. § 40-30-102 (1990), repealed by Post-Conviction Procedure Act, 1995 Tenn. Pub. Acts ch. 207, § 1; Burford, 845 S.W.2d at 206.

      . In pointing out this distinction, we in no way disturb our prior holding that the opportunity to bring a petition for post-conviction relief is not itself a fundamental constitutional right. See Seals, 23 S.W.3d at 277-78; Burford, 845 S.W.2d at 207.

      . Our holding that mental incompetency does not toll the medical malpractice statute of repose renders moot the question of whether Mrs. Mills' individual claims must be treated separately from those of Mr. Mills.


author: BRIAN QUINN, Justice.

text:
    Bobby Richard WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0110-CR.
    Court of Appeals of Texas, Amarillo.
    Jan. 31, 2005.
    C. Tony Wright, Wright Law Firm, P.L.L.C., Dallas, for appellant.
    James R. Horton, Dist. Atty., Dimmitt, for state.
    Before QUINN, REAVIS and CAMPBELL, JJ.
   BRIAN QUINN, Justice.

Bobby Richard White (appellant) appeals his conviction for possessing a controlled substance, namely methamphetamine, in an amount greater than four grams but less than 200 grams. Via three issues, appellant contends that 1) the manner in which the officers executed their search warrant was improper and 2) the evidence was legally and factually insufficient to support his conviction. We affirm.

Issue One — Execution of the Search Wairant

To reiterate, appellant initially contends that the police officers who discovered the drugs improperly executed the search warrant. They purportedly did so by failing to knock on the door of the trailer in which appellant lived and announce their presence before forcibly entering it. Indeed, the evidence shows that the officers broke through both the storm and front door of the abode upon their arrival at the scene. They did not announce their presence until they had entered.

At the same time the officers were entering the trailer, another group was attempting to search a barn that was also on the property. Before entering it, however, the officers knocked and (when no one answered) kicked on its door to make their presence known. Eventually, appellant; who was in the barn, opened the door. After a search of the barn was conducted and burned foil was discovered, which the officers deemed drug paraphernalia, the officers took appellant to the trailer.

At the trailer, a search was conducted of appellant’s person. It resulted in the discovery of three packets of methamphetamine. A “torch” and cigarette lighter had also been seen to have fallen from his pocket. A search of the trailer itself uncovered marijuana in a bedroom wherein Jamie White was found, drug paraphernalia in a nylon bag in the kitchen, and a plastic bag containing methamphetamine in the bathroom Unen closet hidden between some towels.

The United States Supreme Court has recognized, as part of the Fourth Amendment to the United States Constitution, the obligation of police officers to knock and announce their presence before entering an abode when executing a search warrant. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997). Yet, the requirement has its exceptions. It need not be satisfied if the officers have reasonable suspicion to believe that knocking and announcing then-presence, under the particular circumstances, would be dangerous or futile or would inhibit the effective investigation of the crime. Id.; Brown v. State, 115 S.W.3d 633, 638 (Tex.App.-Waco 2003, no pet.). Moreover, the standard of reasonable suspicion set by Richards is not high and must be evaluated as of the time of the search. Id.

Here, the record contains evidence illustrating that 1) the officers had probable cause to believe that appellant possessed methamphetamine at the locale to be searched, 2) appellant personally consumed that drug, 3) methamphetamine caused erratic and violent behavior, 4) the officers knew appellant possessed firearms in the trailer, and 5) the officers announcing their presence may afford the occupant time to dispose of the contraband. Moreover, precedent has long acknowledged the link between drugs, guns and violent behavior. See Wilson v. State, 132 S.W.3d 695, 698 (Tex.App.-Amarillo 2004, pet. ref'd.) (deeming as “well-settled” the nexus between drugs, weapons, and violence). So too has the link provided basis for policemen not only to reasonably suspect that their safety may be endangered but also for conducting pat-down searches. Id. Given this and the evidence of record, we hold that reasonable grounds existed upon which the trial court could have found that the officers at bar need not have knocked and announced their presence before executing their search warrant at the trailer. Consequently, issue one is overruled.

Issues Two and Three — Sufficiency of the Evidence

In his final two points, appellant contends that the evidence was both legally and factually insufficient to link him with the methamphetamine found in the trailer. We overrule each issue.

That appellant had in his pockets the same drug found in the trailer (ie. methamphetamine), that he lived in and exercised control over the trailer, that he was known to abuse methamphetamine, that drug paraphernalia was found not only in the barn whereat the officers initially encountered him but also in the trailer and on his person, and that the methamphetamine found in the trailer was in a place to which he had access (ie. the master bedroom) together constitute sufficient evidence upon which a rational factfinder could reasonably conclude that appellant possessed the methamphetamine found in the trailer. And, merely because Jamie White also was in and had joint use of the trailer when the search occurred would not overwhelm the finding or render it manifestly unjust. Simply put, the evidence was both legally and factually sufficient to support his conviction, as those standards are described in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex.Crim.App.2003), Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003), and King v. State, 29 S.W.3d 556 (Tex.Crim.App.2000).

Having overruled each point of error, we affirm the judgment of the trial court.


author: Justice FRANCIS.

text:
    Timothy CARENDER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-04-00644-CR, 05-04-00645-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 15, 2005.

      Pamela McGraw, Sherman, for appellant.
    Robert T. Jarvis, County Atty., Joseph D. Brown, Grayson County Attorney, Ker-ye Ashmore, Sherman, for State.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion by

Justice FRANCIS.

Appellant pleaded guilty to charges of engaging in organized criminal activity (forgery) and possession of methamphetamine in an amount of one gram or more but less than four grams, both third-degree felonies. See Tex. Pen.Code Ann. §§ 32.21(d), 71.02(a)(1), (b) (Vernon Supp. 2004-05); Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(c) (Vernon 2003 & Supp.2004-05). Appellant also pleaded true to one enhancement paragraph. After hearing punishment evidence, the trial judge sentenced appellant to twenty years in prison in each case.

In three issues, appellant argues (1) his pleas were not the result of an agreement to punishment such that he is subject to the requirements of Texas Rule of Appellate Procedure 25.2 and (2) his pleas were involuntary. We conclude appellant’s plea agreements do fall within the purview of rule 25.2. We further conclude we do not have the power to address appellant’s complaints regarding voluntariness of his pleas. Accordingly, we dismiss those issues regarding voluntariness and affirm the trial court’s judgments.

In each of these cases, the State alleged (either in the indictment or by written notice of intent to enhance punishment) that appellant had two prior consecutive felony convictions, which increased the range of punishment to twenty-five to ninety-nine years or life in prison. See Tex. PeN.Code Ann. § 12.42(d) (Vernon Supp.2004-05). In exchange for appellant’s pleas of guilty, the State agreed to withdraw one of those allegations, which reduced the punishment range to two to twenty years in prison. See id. at 12.42(a)(3).

In his first issue, appellant asserts this agreement goes solely to the nature of the charge and not to punishment. We must decide whether the plea agreement is one in which the prosecutor “recommended” and appellant agreed to “punishment” such that appellant is subjected to the requirements of Texas Rule of Appellate Procedure 25.2(a)(2). We conclude it is.

There are two basic kinds of plea bargains that affect punishment: (1) sentence bargaining and (2) charge bargaining. Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003). Sentence bargaining may be for binding or nonbinding recommendations to the court on sentences, including a recommended “cap” on sentences and a recommendation for deferred adjudication community supervision. Id. Charge bargaining involves questions of whether the defendant will plead guilty to the offense that has been alleged or a lesser or related offense and whether the prosecutor will dismiss or refrain from bringing other charges. Id. Both sentence bargaining and charge bargaining affect punishment. Id.

Here, the State and appellant agreed the State would withdraw a punishment enhancement allegation, which in effect reduced appellant’s range of punishment to that of a second-degree felony. Without the agreement, appellant faced a minimum twenty-five-year sentence, five years greater than the maximum sentence that could be imposed under the plea bargain agreements. Under these circumstances, we conclude the plea bargain agreements in these cases effectively put a “cap” on punishment. Because appellant pleaded guilty and the “punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant,” we conclude appellant was bound by the requirements of rule 25.2. Appellant’s first issue is without merit.

Having reached this conclusion, we must next determine whether this Court has authority to consider appellant’s complaints regarding voluntariness of his pleas. Rule 25.2 governs the perfection of appeals in criminal cases and requires that the trial court certify an appellant’s right to appeal. Tex.R.App. P. 25.2(a)(2). Pursuant to rule 25.2, appellants in plea bargain cases are limited to appealing pretrial rulings on written motion unless the trial court grants permission to appeal. Id. In each of appellant’s cases, the trial court certified that “the appeal is not a plea-bargain case, and the defendant has the right of appeal.” Irrespective of the trial court’s assertion, rule 25.2 requirements recited in a certification must be true and supported by the record. See Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App.2005) (certification not supported by record is defective); Ajagbe v. State, 132 S.W.3d 491, 491 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).

Here, appellant is not appealing a pretrial ruling nor does he have the trial judge’s permission to appeal. In two issues, he argues his pleas were involuntary for one of three alternative reasons: (1) the State breached the agreements when the prosecutor urged the trial court to consider the allegations that the State withdrew for enhancement purposes; (2) the pleas were conditioned by a term that could not be fulfilled “because the prosecutor lacked the power to deprive the court of the right to consider” allegations contained in the second enhancement provision; and (3) there is no consensus of what constituted the terms of the agreements between appellant, the State, and the court. Because appellant did not obtain the trial court’s permission to appeal the voluntariness of his pleas, we do not have the power to address his complaints. See Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App.2001) (holding former rule 25.2(b)(3) did not permit plea-bargaining defendant to appeal voluntariness of plea); Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App.2002) (explaining that timely notice of appeal invokes court’s jurisdiction, but court may nonetheless be without “power” to address merits of complaint). We therefore dismiss his second and third issues.

We affirm the trial court’s judgments.


author: DAVID R. FARMER, J.,

text:
    Brenda J. SNEED v. Thomas G. STOVALL, M.D., et al.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 20, 2004 Session.
    April 1, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 8, 2004.
    Robert L. Green and Bruce Kelley, Jr., Memphis, Tennessee, for the Appellant, Brenda J. Sneed.

      William H. Haltom, Jr., for the appel-lees, Thomas Stovall, M.D., and University-Physician Foundation d/b/a U.T. Medical Group, Inc.
    William W. Dunlap and Tabitha F. McNabb, Memphis, Tennessee, for the ap-pellee, Guy Voeller, M.D.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

Plaintiff filed suit against Defendants alleging that Defendants committed medical malpractice. At the conclusion of the trial, the jury returned a verdict in favor of Defendants. Plaintiff appeals the trial court’s limiting Plaintiffs voir dire concerning his medical expert, denial of Plaintiffs renewed motion in limine, refusal to include proposed jury instructions, and refusal to strike a third party opinion from the deposition of Plaintiffs expert. We affirm the decisions of the trial court.

This Court first addressed this case in Sneed v. Stovall, 22 S.W.3d 277 (Tenn.Ct.App.1999):

[Brenda J. Sneed] Plaintiff [ (Plaintiff) ] filed a complaint on November 23, 1992, against Dr. Thomas G. Stovall [ (Dr. Stovall) ], University Physicians Foundation, d/b/a UT Medical Group, Inc. [ (UT Medical Group) ], and Dr. Guy R. Voeller [ (Dr. Voeller, or collectively with Dr. Stovall and UT Medical Group as the Defendants) ], alleging that the defendants committed medical malpractice in their care and treatment of the plaintiff. On May 10, 1996, counsel for the defendants took the discovery deposition of plaintiffs medical expert, Dr. David Swan [ (Dr. Swan) ]. During the course of the deposition, defense counsel examined Dr. Swan about the status of his medical license, and whether he had been the subject of any disciplinary proceedings. Dr. Swan responded that he had not. Several months later, however, defense counsel learned that Dr. Swan had been the subject of investigations and hearings before the Kentucky State Board of Medical Licensure (KSBML). Plaintiff filed a Motion in Limine on October 15, 1997, to prohibit defendants from “making a disclosure of any disciplinary action taken by the Board of Medical Licensure for the State of Kentucky against [David S. Swan, M.D.], during the voir dire of the jury or at any time during the trial of the cause.”
The facts leading up to the investigation by the KSBML are as follows: David Swan, M.D., is board-certified in obstetrics and gynecology. In June 1995, an “initiating grievance” was filed with the [KSBML] alleging that Dr. Swan engaged in inappropriate sexual behavior with some of his patients. On September 26, 1995, Dr. Swan gave a statement to Doug Wilson, a KSBML investigator regarding the complaints and grievances against him. Swan admitted that between early 1975 and late 1981, he engaged in inappropriate sexual behavior with some of his patients. On February 15, 1996, [t]he KSBML held a hearing regarding the complaints and grievances against Dr. Swan. The Board’s Inquiry Panel asked that Dr. Swan enter into an Agreed Order of Probation to avoid issuing an Administrative Complaint against Dr. Swan’s Kentucky medical license. Dr. Swan entered into an Agreed Order of Probation on June 24, 1996, which, among other things, put Swan on probation for five years.
Upon consideration of the evidence, the trial court denied plaintiffs Motion in limine. The order denying the motion states: “The Court is of the further opinion because of Dr. Swan’s untruthfulness, that at the trial of this cause counsel for the defendants shall be permitted to inquire into the alleged facts underlying Dr. Swan’s disciplinary proceeding.” Plaintiffs motion in the trial court for interlocutory appeal pursuant to T.R.A.P. 9 was granted, and this Court granted plaintiffs application for permission to appeal.

Sneed, 22 S.W.3d at 278-79. In addressing the Plaintiffs first issue of whether the court erred in concluding that Dr. Swan had exhibited a “pattern of untruthfulness,” this Court held:

Considering the record before us, we conclude that the trial court did not err. At the time of the deposition on May 10, 1996, Dr. Swan knew that a complaint had been filed against him in the past with the Grievance Committee of the Fayette County Kentucky Medical Society alleging improper sexual contact with a patient and that the Medical Society issued an Opinion on October 31, 1978, finding that his conduct was inappropriate. Dr. Swan was also aware that a complaint was filed with the Kentucky State Board of Medical Licensure on June 15, 1995. He was also aware that he gave a statement on August 8, 1995 to Mr. Doug Wilson, an investigator of the KSBML, regarding the complaints against him and that on September 26,1995, Swan submitted a report to Mr. Wilson responding to the specific allegations in the complaint. Based on the foregoing, it is apparent that Swan knew he was under investigation by the licensing board.... Simply stated, Dr. Swan answered untruthfully at his deposition.

Id. at 279-80.

In addressing Plaintiffs second issue of whether the trial court erred in denying her motion in limine thereby allowing Defendants to present proof regarding Dr. Swan’s past conduct, this Court stated: Specifically, plaintiff asserts that the specific instances of inappropriate sexual conduct committed by Dr. Swan are excluded by Tennessee Rules of Evidence, 608(b), which provides:

Rule 608. Evidence of character and conduct of witness.
(b) Specific Instances of Conduct.— Specific instances of conduct of a witness for the purpose of attacking or supporting- the witness’s credibility, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness’s character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination about such conduct probative solely of truthfulness -or untruthfulness are:
(1) The court upon request must hold a hearing outside the jury’s presence and must determine that the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry;
(2) The conduct must have occurred no more than ten years before commencement of the action or prosecution, but evidence of a specific instance of conduct not qualifying under this paragraph (2) is admissible if the proponent gives to the adverse pai’ty sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of that evidence, supported by the specific facts and circumstances, substantially outweighs its prejudicial effect

TenmR.Evid. 608(b).

Plaintiff also argues that the conduct occurred more than seventeen years ago, that the conduct is not “probative solely of truthfulness or untruthfulness,” and that the probative value of such evidence does not “substantially outweigh its prejudicial effect.”

Defendants assert that Tenn. R. Evid. 608(b) is not applicable in this case, but Rule 402 and Rule 403, Tenn. R. Evid., are the appropriate rules:

Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.
All relevant evidence is admissible except as provided by the Constitution of the United States, the Constitution of Tennessee, these rules, or other rules or laws of general application in the courts of Tennessee. Evidence which is not relevant is not admissible. Rule 403. Exclusion of Relevant evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue,delay, waste of time, or needless presentation of cumulative evidence.

Tenn.R.Evid. 402 and 403.

Defendants assert that 608(b) deals with impeachment of a witness by cross-examination concerning a witness’s “pri- or bad acts” and that they are not seeking to impeach Dr. Swan’s credibility by evidence of prior convictions, prior bad acts, subsequent convictions, or subsequent bad acts. They argue that they will present evidence regarding his current medical licensure, medical status, and medical practice. However, defendants acknowledge that cross-examination and extrinsic evidence regarding Swan’s medical licensure will include evidence of Dr. Swan’s past misconduct. Defendants also argue that the current state of Dr. Swan’s medical licensure and the history and circumstances regarding it are relevant issues in this case. They further, point out that even though the misconduct occurred sixteen years ago, the restrictions on his license are in place now.

Tennessee Law of Evidence provides: § 608.1. Overview.
It prescribes when ... specific instances of conduct, other than criminal convictions, may be used to impeach or rehabilitate a witness by proving the truthful or untruthful character of that witness. It should be obvious that Rule 608 is an exception to the general principle of Rule 404(a) that character evidence is inadmissible ... Rule 608 is based on the idea that sometimes character evidence should be admitted. By implication, the rule accepts the idea that a person’s character is both a relevant and important factor in assessing that person’s credibility. But it should be noted that Rule 608 opens the door to proof of only certain aspects of a person’s character. This rule authorizes proof of a person’s character for truthfulness or untruthfulness. Proof of other facets of character is not affected by Rule 608.

Neil P. Cohen, et al., Tennessee Law of Evidence § 608.1 at 345 (3d ed.1995).

As above noted, the trial court correctly determined that Dr. Swan answered untruthfully in his discovery deposition and that the defendants can question him concerning the inconsistencies. Plaintiff asserts that no inquiry should be made to elicit evidence of Dr. Swan’s specific acts with patients because: these acts occurred more than ten years before the commencement of this action; they do not constitute untruthful behavior; and, in any event, the probative value of the evidence does not substantially outweigh its prejudicial effect. Where the cross-examination leads will, of course, depend on the witness’s answer. Under 608(b), Dr. Swan’s specific acts may only be inquired into on cross-examination and may not be established by extrinsic evidence. Consequently, if Dr. Swan is questioned about the specific acts and denies them occurrence, the question would arise as to whether extrinsic evidence is appropriate.

Defendants assert that Rule 608(b) is not applicable to this case, because the appellees are not attempting to impeach Dr. Swan’s credibility as to the specific “prior bad acts.” Rather, they seek to impeach his credibility because of his untruthful answers under oath concerning prior disciplinary proceedings, and they seek to show his current status as a practicing physician.

The trial judge has wide discretion in the matter of qualification of expert witnesses. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 489 (Tenn.1992). However, “credibility is to be distinguished from the testimonial competency of a witness.” 81 Am.Jur.2d, Witnesses See. 1027 at p. 841.

Essentially the same basic tests which are commonly applied in the evaluation of ordinary evidence should be used in judging the weight and sufficiency of expert and opinion testimony.

31 Am.Jur.2d Expert and Opinion Evidence Sec. 129 at p. 137.

In the instant case, Dr. Swan’s role as a witness will be to establish the standard of care for practicing physicians in the community and that the conduct of the defendants breached or violated that standard of care. Obviously, there will be countervailing proof concerning the standard of care and the violation thereof, and the jury must give the testimony of every witness who testifies the weight, faith, and credit that the testimony deserves. Certainly, the truthfulness of the witness will be a matter of grave concern for the jury in making this determination. Dr. Swan was bound by the ethical rules of his profession, and yet engaged in a practice of deception for a number of years even though he knew that his acts could constitute grounds for revocation of his license. His veracity as a witness should surely be questioned by virtue of this conduct.

Moreover, we must consider the context of Dr. Swan’s role. He is, in effect, pronouncing a judgment as to the conduct of fellow physicians. It seems to this Court that one who undertakes such a task is exposed to a determination of his own view of the profession by virtue of his own conduct. Dr. Swan’s conduct could be construed to show disdain for a physician’s obligation to practice the profession on the highest ethical plane with an ongoing deception during the continuance of the activities.

In short, the jury must determine whether Dr. Swan’s testimony concerning the conduct of the defendants is truthful and in giving weight to his testimony, the jury should have the benefit of evidence concerning his veracity and character.

The trial court obviously determined that defendants’ proposed cross-examination would elicit relevant evidence, and that the probative value of the evidence, under the facts of this case, substantially outweighs its prejudicial effect. The trial court did not abuse its discretion in denying the motion in li-mine.
Accordingly, the order of the trial court is affirmed, and this case is remanded for such further proceedings as may be necessary. Costs of the appeal are assessed against the appellant.

Sneed, 22 S.W.3d at 280-82. Plaintiff subsequently filed an application for appeal to the Tennessee Supreme Court which was denied on May 22, 2000. Id. at 277.

Upon remand, the evidentiary deposition of Dr. Swan was taken. Plaintiff filed a motion in limine to strike any testimony from the evidentiary testimony concerning the trial court’s or court of appeals’ opinion of Dr. Swan’s truthfulness. In its order on Plaintiffs motion in limine, the trial court found that six portions of the deposition that referenced either the trial court’s or court of appeals’ opinion of Dr. Swan’s truthfulness should be stricken.

During the voir dire of this case, Plaintiffs counsel attempted to ask the jurors about Plaintiffs expert, Dr. Swan. Upon the Defendants’ objection, the trial court precluded Plaintiffs counsel from asking the jurors any further questions concerning Dr. Swan.

At the conclusion of proof, Plaintiff filed with the court six requested special jury instructions which the trial court denied. The jury returned a verdict in favor of the Defendants and the trial court entered a judgment on the jury’s verdict. Plaintiff filed a motion for new trial which was denied by the trial court. Plaintiff timely filed her notice of appeal.

Issues Presented

Plaintiff appeals and raises the following issues, as we restate them, for our review:

1. Whether the trial court erred in limiting Plaintiffs voir dire as to the jurors’ bias or prejudice toward Plaintiffs medical expert, Dr. Swan, because he had, in the past, engaged in improper sexual behavior and because he had erroneously responded to a question in a discovery deposition;
2. Whether the trial court erred in denying Plaintiffs renewed motion in limine to disallow testimony about Dr. Swan’s sexual acts with his patients that occurred over twenty years before the trial;
8. Whether the trial court erred in re- . fusing to charge the jury with Plaintiffs proposed jury instructions;
4. Whether the trial court erred in refusing to instruct the jury on how they should consider evidence of Dr. Swan’s prior sexual misconduct and allegations that Dr. Swan had lied under oath; and
5. Whether the trial court erred in refusing to strike from Dr. Swan’s evi-dentiary deposition a statement made by Dr. Swan that he had been determined by others to have been untruthful in a prior discovery deposition.

Voir Dire

Plaintiff first argues that the trial court erred in limiting Plaintiffs voir dire concerning its expert, Dr. Swan. “The scope and extent of the jury examination are within the sound discretion of the trial judge.” State v. Poe, 755 S.W.2d 41, 45 (Tenn.1988) (citing State v. Jefferson, 529 S.W.2d 674, 682 (Tenn.1975)). Accordingly, we will not reverse the trial court’s decision to limit Plaintiffs voir dire unless the trial court abused its discretion.

Tennessee Rule of Civil Procedure 47.01, examination of jurors, provides in pertinent part:

The court shall permit the parties or their attorneys to conduct the examination. At or near the beginning of jury-selection, the court shall permit counsel to introduce themselves and make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case.

Tenn. R. Civ. P. 47.01. Further, “a prospective juror may be examined for the purpose of showing that he is biased or prejudiced.” Chambers v. Bradley County, 53 Tenn.App. 455, 384 S.W.2d 43, 44 (1964). However, a party may not use voir dire to indoctrinate the jurors or exact a pledge from the jurors that they will vote a certain way. C.J.S. Juries § 463 (1997); see also Chambers, 384 S.W.2d at 44-45.

In this case, Plaintiffs counsel stated:

Now, ladies and gentleman, I have a couple of questions that I want to get into, and I want to preface the questions that I am going to be asking you by making this statement to you. In this case, Dr. David Swan, a physician who lives in the state of Kentucky, is going to testify by a video deposition. He is going to testify against Dr. Stovall and Dr. Voeller. He is going to say that in his opinion, these gentlemen did not comport with the standard of care ex-pécted of doctors in this community.
In this deposition that you’re going to see, you are going to learn that some 25 or 20 years ago back in 1975 or 1980 in that era that Dr. Swan was guilty of inappropriate sexual contact and conduct towards his patients. Dr. Swan ... is an OB/GYN. He has female patients. He is going to tell you in that deposition that he had a problem back at that time and that he sought psychological care for that and treatment for that problem. Will you, ladies and gentlemen, be able to accept that testimony from Dr. Swan?

At this point, Defendants asked to approach the bench. Defendants argued that Plaintiff was arguing his case to the jury and further that he was trying to extract a promise from the jurors. After hearing arguments from both parties, the trial court stated:

I’m going to disallow any further questioning about how the jury will approach Dr. Swan and his testimony because we’re going to get off track and we will never get back.

The trial court properly sustained Defendants’ objection as it could have construed Plaintiffs question as an attempt to exact a pledge from the jury that they would accept or believe Dr. Swan’s testimony. After the trial court sustained Defendant’s objection, the following transpired:

THE COURT:.... You may ask them if they are willing to listen to all of the proof and consider all aspects of a person’s testimony in rendering a decision. I don’t want anything more than a general question.
(Whereupon the bench conference ended.)
[Plaintiffs Attorney]: Ladies and gentlemen, let me ask this question: Will each and every one of you listen to all of the evidence in this case, whatever it might be and on whatever subjects it might be on? Will you listen to all of the evidence in this case and then give it what weight, faith and credit you feel it’s entitled to under Her Honor’s charge? Can each of you do that?
(No response given.)
[Plaintiffs Attorney]: Is there anybody on this panel that feels that they cannot listen to all the proof, whatever it might be, and then consider that along with everything else and return your verdict? You can all do that?
(No response given.)

As previously mentioned, a party may “make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case” and question jurors to determine if they are biased or prejudiced. Tenn. R. Civ. P. 47.01; Chambers, 384 S.W.2d at 44. In this ease, Plaintiff had the opportunity to inform the jurors that this was a medical malpractice case and preview Dr. Swan’s testimony concerning the Defendants’ actions. In addition, Plaintiff was able to inform the jurors of Dr. Swan’s prior sexual misconduct before the trial court sustained Defendants’ objection. Finally, after the jurors had heard all the information provided by Plaintiff, Plaintiff was allowed an opportunity to determine the jurors’ bias or prejudice by asking the jurors whether they would be able to listen to all of the evidence and testimony presented in the case including Dr. Swan’s prior misconduct before rendering a decision.

Plaintiffs argument that the trial court erred in limiting its voir dire is also based on the contention that Plaintiff was not allowed to ask whether, after hearing that Dr. Swan made an untruthful statement in a deposition, the jurors would be so prejudiced that they would not consider Dr. Swan’s medical testimony in rendering their decision. While the trial court could have allowed Plaintiff to ask permissible voir dire questions on this issue, we cannot find that the trial court abused its discretion. The trial court limited Plaintiffs voir dire in the interest of time. See 47 Am.Jur.2d Jury § 202 (1995) (citing Centamore v. State, 632 S.W.2d 778 (Tex.Ct.App.1982)). Further, Plaintiff admits that “[t]he issue of an untruthful answer [in] a deposition is a significant issue[ ] but the issue of inappropriate sexual conduct by a doctor with a patient is nothing less than emotional dynamite.” Plaintiff informed the jury about Dr. Swan’s prior sexual misconduct and after the jury learned of Dr. Swan’s conduct, Plaintiff was allowed to determine the jurors’ reaction to this “emotional dynamite.” Accordingly, the trial court did not commit reversible error in sustaining Defendants’ objection.

Motion In Limine

Plaintiff contends that the trial court erred in denying her renewed motion in limine. This Court affirmed the trial court’s initial denial of her motion in li-mine because the trial court did not abuse its discretion in finding that the probative value of Dr. Swan’s prior sexual misconduct and his untruthful statement given in a discovery deposition substantially outweighed its prejudicial effect. Sneed v. Stovall, 22 S.W.3d 277, 282 (Tenn.Ct.App.1999). Plaintiff contends that the initial motion was renewed because of a change in circumstances. Specifically, Plaintiff points to the fact that at the time of this Court’s prior decision, Dr. Swan’s medical license was placed on probation and under other restrictions. Plaintiff argues that the restrictions on Dr. Swan’s medical license were lifted by the time of Dr. Swan’s evidentiary deposition. However, ' the change in the status of Dr. Swan’s license does not change the fact that Dr. Swan was untruthful in his discovery deposition nor does it change the instances of sexual misconduct that led up to Dr. Swan’s probation. The trial court’s initial balancing test will not be disturbed as the probative value of this evidence remains the same. Accordingly, the trial court did not err in denying Plaintiffs renewed motion in li-mine.

Jury Instructions

Plaintiff next contends that the trial court committed reversible error by failing to include two of Plaintiffs requested jury instructions in the instructions actually given to the jury. Plaintiff requested the following jury instructions:

1. Specific instances of sexual conduct are not probative of truthfulness or untruthfulness.
2. Specific instance of misconduct by a witness may be used only to apply to that witnesses’ character. In deciding what weight and credibility should be given to such testimony, you should consider the length of time that has elapsed between the occurrence of the specific instances of misconduct and the date when the witness testified, whether the witness has shown remorse and/or is contrite for such acts and his conduct since those instances of misconduct.

The relevant portion of the trial court’s fifteen page jury instructions concerning the jury’s evaluation of witnesses and expert testimony provide:

15.04 Ordinary Observations and Experience Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience.
2.03 Weiyhiny Conñictiny Testimony Now, although you must consider all the evidence, you are not required to accept all of the evidence as true or accurate.
You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side.
2.20 Credibility of Witness You are the sole and exclusive judges of the credibility or believability of the witnesses who have testified in this case. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person’s testimony.
In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rales to use in deciding whether you believe a witness, but it may help you to think about the following questions:
7. Was the witness making an honest effort to tell the truth, or did the witness evade questions?
8. Did the witness have any interest in the outcome of the case?
9.Did the witness have any motive, bias or prejudice that would influence the witness’ testimony?
10. How reasonable was the witness’ testimony when you consider all of the other evidence in the case?
11. Was the witness’ testimony contradicted by what that witness has said or done at another time, by the testimony of other witnesses, or by other evidence?
12. Has there been evidence regarding the witness’ intelligence, respectability, or reputation for truthfulness?
13. Has the witness’ testimony been influenced by any promises, threats, or suggestions?
14. Did the witness admit that any part of the witness’ testimony was not true?
2.30 Expert Testimony — Determination of Weight Usually witnesses are not permitted to testify as to opinions or conclusion. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. These witnesses are often referred to as “expert witnesses.” In this case[,] several doctors, including the defendants, testified as expert witnesses.
6.18/6.05 Standard of Medical Care Determined by Expert Testimony It is your obligation to determine, from the testimony of these expert witnesses, the recognized standard of acceptable professional practice in each defendant’s profession for this or a similar community. This is also referred to as the “Standard of Care.” In this case you must determine the Standard of Care for both an Obstetrician and Gynecologist as well as a General Surgeon. In making this determination, you must only consider the opinions of the physicians, including the defendants, who have testified concerning this standard. If you find that the physicians disagree, then you must resolve the conflict by considering the following:
2.30 Expert Testimony — Determination of Weiyht
1. The education, qualifications, and experience of each doctor;
2. The credibility of each doctor;
3. The facts relied upon by each doctor to support his or her opinions; and
4.The reasoning used by each doctor to arrive at his or her opinions.
6.18 Standard (part 2) The testimony of a physician as to what that physician personally would do or would not do or the personal opinion of a physician of what should have been done or could not have been done does not prove the standard of care.

After comparing the proposed instructions with the instructions actually given, we find that the substance of Plaintiffs proposed instructions were contained in the court’s instructions, particularly instruction 2.30 concerning the determination of weight for expert testimony. See Wilkerson v. Altizer, 845 S.W.2d 744, 748-49 (Tenn.Ct.App.1992). As a result, the trial court did not commit reversible error in excluding Plaintiffs requested instructions.

Plaintiff also contends that the trial court committed reversible error by not properly instructing the jury on how they should consider the evidence alleging Dr. Swan’s sexual misconduct and untruthfulness in a discovery deposition. This Court finds that the jury instructions given were sufficient instruction on how they should consider Dr. Swan’s prior misconduct and untruthfulness.

Testimony from Evidentiary Deposition

Plaintiff contends that the trial court erred by refusing to strike from the record testimony given by Dr. Swan at his evidentiary deposition. In Dr. Swan’s evi-dentiary deposition, after being asked by Defendants whether he admitted that the previous testimony given in the discovery deposition was untruthful, Dr. Swan responded:

I have testified, sir, that as I understood the question at the time, I felt that it was a truthful statement. I have also testified, sir, that subsequent to that, other opinions concerning the truthfulness of that statement have been reviewed by the Courts and I have [been] found to be untruthful in their interpretation of it. I have accepted their interpretation of that question and, therefore, on that basis, yes, sir, I was untruthful. At the time [of the discovery deposition] to the best of my ability I believe I was trying to answer that question in a truthful statement.

Plaintiff subsequently filed a motion in limine requesting the trial court to strike from Dr. Swan’s evidentiary deposition any testimony disclosing either the trial court’s or this Court’s opinion of Dr. Swan’s untruthfulness. In the trial court’s order on Plaintiffs motion in limine, the trial court struck from the above quoted portion of Dr. Swan’s testimony the words “by the Courts.”

Dr. Swan’s response to Defendants’ question was his way of admitting he lied. The trial court properly left this testimony in the deposition for the jury to hear. Further, Plaintiff cites no legal authority for his argument and this Court, based on the foregoing, finds this issue to be without merit.

Conclusion

In light of the foregoing, we affirm the decisions of the trial court. Costs of this appeal are taxed to the Appellant, Brenda J. Sneed, and her surety, for which execution may issue if necessary.


author: DAVID R. FARMER, J„

text:
    C. Vinson ALEXANDER, Jr., M.D. v. JACKSON RADIOLOGY ASSOCIATES, P.A., et al.
    Court of Appeals of Tennessee, at Jackson.
    April 20, 2004 Session.
    June 7, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 15, 2004.

      C. Barry Ward and Marc L. Schatten, Memphis, Tennessee, for the appellant, C. Vinson Alexander, Jr., M.D.
    Larry A. Butler, Lewis L. Cobb, Lisa A. Houston, Jackson, Tennessee, for the ap-pellees, Jackson Radiology Associates, P.A., Dr. Jim Ellis, Dr. Tim Crossett, Dr. Kevin Sentell.
   OPINION

DAVID R. FARMER, J„

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

The trial court imposed sanctions on Plaintiff, who undisputedly spoiled evidence and lied in a sworn deposition, and dismissed Plaintiffs cause of action. On appeal, Dr. Alexander argues that dismissal was improper. We affirm.

C. Vinson Alexander, Jr., M.D. (Dr. Alexander) is a radiologist and was president and one of the founders of Jackson Radiology Associates in Jackson, Tennessee. Jackson Radiology Associates terminated Dr. Alexander in June 1999, asserting as cause for termination Dr. Alexander’s verbal and physical abuse of others, including other physicians and employees. In March 2001, Dr. Alexander filed a wrongful termination action against Jackson Radiology Associates and its majority shareholders, individually, (collectively, “JRA”) in Madison County Circuit Court (the “Alexander lawsuit”).

In the meantime, JRA discovered what it believes to have been wrongful conversion and misappropriation of funds by Dr. Alexander. In November 2001, it accordingly filed a lawsuit against Dr. Alexander in circuit court to recover the funds (the “JRA lawsuit”). In May 2001, Dr. Alexander filed a separate suit against Jackson-Madison County General Hospital (“the Hospital”) in Madison County Chancery Court alleging wrongful termination of his staff privileges. This action was transferred to circuit court and the matters were consolidated by consent on July 9, 2002.

During the course of discovery in the Alexander lawsuit, counsel for JRA deposed Dr. Alexander on June 17, 18, and 19, and on July 30 and 31, 2002. During the deposition on June 17, Dr. Aexander was asked to calculate how he arrived at his monthly personal compensation amount. Dr. Aexander performed written calculations on a sheet of paper which was to become “exhibit 108” to his deposition. Dr. Aexander had difficulty with the calculations and was questioned about them for about 30 minutes, after which the deposition ended. However, the sheet of paper designated to become exhibit 108 could not be found.

When the deposition resumed on June 18, counsel for JRA repeatedly questioned Dr. Aexander about exhibit 108, specifically asking whether Dr. Aexander knew what had happened to the exhibit. Dr. Aexander repeatedly denied knowing what had happened to the exhibit and supplied “corrected” calculations which he had made in the interim. The deposition taken on June 17 had been videotaped, however, and it was evident from the tape that Dr. Aexander had taken exhibit 108 off the table and put it in his pocket. When counsel for JRA asked Dr. Aexander whether a videotape revealing that he had taken the sheet of paper off the table, wadded it up, and put it in his pocket would be a lie, Dr. Aexander paused for approximately two minutes before stating “I don’t guess it would.” After another extended pause, Dr. Alexander admitted to taking exhibit 108.

On July 8, 2002, JRA and the Hospital jointly moved for discovery sanctions against Dr. Alexander. The Hospital filed a separate motion for dismissal of Dr. Alexander’s action on the same day. On August 2, 2002, JRA also moved for dismissal of Dr. Alexander’s action. The trial court heard the motions on August 2, 2002, and granted Defendants’ motions to dismiss.

On August 8, Dr. Alexander filed a motion to reconsider before the formal order of dismissal was entered. He further moved for sanctions as to JRA and for dismissal of JRA’s claims on August 12, 2002. On August 30, the trial court filed an order granting Defendants’ motions for sanctions. This ruling was made final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Dr. Alexander filed a motion to alter or amend the judgment on September 6, 2002. On September 20, the court filed a consent order confirming that matters in controversy with the Hospital had been resolved. The order further stated that the court accordingly deemed Dr. Alexander’s motion to alter or amend the judgment with respect to the Hospital to have been withdrawn. On September 20, the trial court heard arguments pertaining to Dr. Alexander’s motion to alter or amend its judgment dismissing Dr. Alexander’s action against JRA. On October 24, the court denied Dr. Alexander’s motion and entered the final order of dismissal. Dr. Alexander filed a timely notice of appeal to this Court. JRA’s action against Dr. Alexander is pending.

Issues Presented

Dr. Alexander raises the following issues, as we.restate them, for review by this Court:

(1) Whether the trial court erred by dismissing Dr. Alexander’s cause of action in violation of Local Rule 19.01.
(2) Whether the trial court erred in dismissing Dr. Alexander’s cause of action under Rule 37 of the Tennessee Rules of Civil Procedure.
(3) Whether dismissal of Dr. Alexander’s cause of action was within the inherent power of the trial court.
(4) Whether the trial court erred in denying Dr. Alexander’s motion for sanctions against JRA.

Standard of Review

Appellate courts review a trial court’s decision to impose sanctions and its determination of the appropriate sanction under an abuse of discretion standard. Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn.1988). An abuse of discretion occurs where the trial court has applied an incorrect legal standard or where its decision is illogical or unreasoned and causes an injustice to the complaining party. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn., 2004). We review a trial court’s determinations on issues of law de novo, with no presumption of correctness. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

We begin our analysis by dispensing with Dr. Alexander’s assertion that the trial court dismissed his action against JRA in violation of Rule 19.01 of the Local Rules for the Twenty-Sixth Judicial District. Issues not raised in the trial court may not be raised for the first time on appeal. Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003). Having reviewed the voluminous record in this case, we find Dr. Alexander failed to raise local rule 19.01 at any point during the proceedings below. Therefore, he may not assert local rule 19.01 in this Court.

Additionally, Dr. Alexander’s argument that the trial court’s consideration of JRA’s motion along with that of the Hospital worked an unfair surprise is without merit. Although JRA’s motion to dismiss was more expansive than that of the Hospital, the trial court limited the August 2 hearing to matters common to all parties: Dr. Alexander’s conduct on June 17 and 18. These matters were set forth in the motion to dismiss filed by the Hospital on July 8, some three weeks before the August 2 hearing date. In essence, the trial court permitted JRA to join the Hospital’s motion, and limited the hearing accordingly. This worked no unfair surprise on Dr. Alexander, as he was not called upon to defend against matters other than those raised by the Hospital.

We turn next to whether dismissal of Dr. Alexander’s action against JRA as sanction for destruction of evidence and lying under oath was within the power of the trial court. Dr. Alexander asserts that Rule 37.02 of the Tennessee Rules of Civil Procedure permits dismissal of an action only where a party has violated a court order to provide or permit discovery. He submits that since he did not violate such an order, dismissal under Rule 37.02 is inappropriate. Dr. Alexander further contends that dismissal was an abuse of the court’s inherent power as it was too drastic a sanction.

The provisions of Rule 37.02 primarily apply to sanctions for non-compliance with a court order. Lyle v. Exxon, 746 S.W.2d at 698-99. However, as this Court previously has observed, the rules governing discovery would be ineffectual absent the trial court’s authority to sanction their abuse. Mansfield v. Mansfield, No. 01A019412CH00587, 1995 WL 643329, at *5 (Tenn.Ct.App. Nov.3, 1995)(no perm, app. filed Xeiting 8A Charles A. Wright, et al. Federal Practice and Procedure § 2281 (2d ed.1994)). Thus, although the Rules do not explicitly provide for sanctions for discovery abuse absent a court order, trial courts possess the inherent authority to take actions to prevent abuse of the discovery process. Mercer, 134 S.W.3d 121, 133. Further, wide discretion is afforded to the trial courts to determine the appropriate sanction. Id. Although “reasonable judicial minds can differ concerning [its] soundness,” the trial court’s determination of the appropriate sanction will be set aside only where the court “has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence.” Id. (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999)).

We agree with Dr. Alexander that the powers of the court are not unlimited, and that the inherent powers of the court must be exercised with both restraint and discretion. We additionally agree with Dr. Alexander’s argument that, concisely stated, the punishment must fit the offense. As the trial court emphasized, the power to sanction “should be used sparingly. It should not be used like a sword and used frequently ... to do so would diminish the significance when sanctions are imposed.” However, the argument presented in Dr. Alexander’s brief to this Court regarding the role of the judicial branch and the separation of powers of the branches of government is not particularly helpful in this case. The issue before us, as we perceive it, is whether, under the circumstances of this case, the trial court abused its discretion when it determined that dismissal was the appropriate sanction. It did not.

We are not insensitive to the fact that Dr. Alexander was asked to perform calculations under pressure and over objection. However, a wide-range of options was available to him, including simply stating that he was unable to remember how he arrived at the compensation formula. As the trial court noted, however, the discovery abuse in this case involved the “surreptitious destruction of evidence” by Dr. Alexander on June 17 and blatant, inexcusable, repeated lying, under oath, when questioned the next day. Moreover, Dr. Alexander did not simply deny taking exhibit 108, but indignantly and aggressively expressed resentment at being questioned about its disappearance and whereabouts.

The transcript of the proceedings before the trial court on August 2 reflects the court’s consideration of the June 18 dialogue between counsel for JRA and Dr. Alexander.

Q. [Mr. Larry Butler, counsel for JRA, to Dr. Alexander]- Yesterday did you take that piece of paper off the table?
A. No, sir, I did not.
Q. Did you take that yellow sheet of paper that had those calculations on it from the room yesterday?
A. Why would I do that?
Q. My question is ...
A. I did not do that.
Q. Did you take that yellow piece of paper out there?
A. If [y’all] can’t find the paper, I don’t know what happened to it.
Q. Did you get up and walk out of here with that piece of paper in your pocket?
A. No, sir.
Q. At the end of that deposition, you were sitting there, and you knew that [we] were looking for that piece of paper to make it Exhibit 108. Do you remember that?
A. I know that. But I don’t know why you’re accusing me of that. I had no reason to do that, because I hadn’t completed the calculations on it, Mr. Butler.
Q. When we were looking for the exhibit, were you sitting right here?
A. I was sitting right here, yes, sir.
Q. And you knew that we did not find it?
A. I knew you didn’t find it, but I didn’t take it.
Q. You didn’t take it?
A. Why would I take it?
Q. You didn’t pull it off the table?
Q. Would you agree with me that if a person in this room took that off the table and put that in their pocket in the midst of what we were going through, that would be a very deceitful act; would it not?
A. I think that would be, but I’ve stated I did not take it.... There was no reason for me to take it. I’ve told you I wasn’t doing the calculations properly. So why would I take it? I wasn’t completed with it. I was having problems with it. I'didn’t do it.
Q. Well, isn’t it true that you took if off the table because there was information on there that you did not want this group to see?
A. Why would I bring this back? [Referring to calculations performed outside the deposition.]
Q. I don’t know why you would bring it back. Why would you try to hide and conceal that document from this deposition?
Q. Did you tell your lawyer that you took that piece of paper off this table and put it in your pocket?
A. No, no. I personally resent that inference. Now, how many times do I have to say this. I think that’s wrong. I’ve said so. There’s no purpose for me to take it.

Counsel for Dr. Alexander, who had interceded on behalf on his client during the course of the above dialogue, interjected, “Well, what did happen to it?” Counsel for JRA remarked, “Dr. Alexander knows what happened to it. Don’t you Dr. Alexander?”

A. No. What do you want me to do, Mr. Butler? I’ve said no.
Q. I want you to tell the truth.
A. That’s what I’m doing. I didn’t take it. Why would I take it? I have no purpose in taking it.
Q. You know how important this information is to the deposition; do you not?
A. I know that I brought information here that is correct.
Q. The information on Exhibit 108 is nothing near — this is the question-what was written on the piece of paper yesterday, was it?
Q. It’s totally different, isn’t it?
A. I’ve started with the same parameters you gave me. You asked me how I did this. Now, if you don’t want to know, then I can’t help that. But I didn’t think this was supposed to be argumentative when I’ve said no, no, no.
Q. Well, if the video tape from yesterday reveals that you pulled that piece of paper off the table, wadded it up and stuck it in your pocket, would that video tape be a lie?

After an extended silence, Dr. Alexander replied, “I don’t guess it would.”

Q. Don’t guess it would. Now, are you ready to change your testimony here about what you did with that piece of paper? Or are you just going to stand firm on this lie? What’s it going to be, Doctor? What’s it going to be?.... Why did you do that?

Another long period of silence followed before Dr. Alexander replied, “I have no answer for that.” When asked where the paper was, Dr. Alexander replied that he “just threw it away.”

In light of the foregoing, and having reviewed the videotape, we cannot agree with Dr. Alexander’s characterization of his subsequent behavior as a “recant” of his false statements or an apology for his actions. Dr. Alexander acknowledged that he had taken and destroyed exhibit 108 only after he was confronted with the fact that his actions were revealed on the videotape. This was not a conscience-driven admission, or even an admission made in fear of the consequences. Rather, Dr. Alexander had no choice but to acknowledge the actions revealed on videotape. Further, having reviewed the videotape, we cannot say that Dr. Alexander was in any way apologetic for his actions, although we are certain he regrets being “caught in the act.”

We have carefully considered the balancing which the court must undertake in determining what sanctions are appropriate under the circumstances. In light of the totality of the circumstances presented here, the trial court did not abuse its discretion when it dismissed Dr. Alexander’s lawsuit. We agree with the trial court that the totality of Dr. Alexander’s actions “offends the basic principles underlying our judicial system.” Clearly, dismissal of the action was within the range of sanctions available to the trial court, and we cannot conclude that dismissal was an abuse of discretion.

We finally turn to whether the trial court abused its discretion in denying Dr. Alexander’s motion for sanctions against JRA. In his motion, Dr. Alexander moved the trial court for an order dismissing JRA’s causes of action as sanction for discovery conduct. Dr. Alexander further moved, in the alternative, for an order imposing “other sanctions” upon Dr. Timothy Crossett (Dr. Crossett) and referring his deposition and that of Edward Hunter Welles III (Dr. Welles) to the District Attorney. Dr. Alexander’s motion is based on his assertion that Dr. Crossett gave false information regarding financial matters of JRA.

Having reviewed the record, we cannot say the trial court abused its discretion in denying Dr. Alexander’s motion for sanctions. The record indicates a question of fact regarding what Dr. Crossett believed about the financial matters in question and the basis for that belief. We agree with the trial court that there is a distinction between inconsistencies brought out by cross-examination, impeachment, and outright lying. Dr. Alexander has failed to carry his burden of demonstrating that the trial court abused its discretion in denying his motion for sanctions.

Holding

In light of the forgoing, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the Appellant, C. Vinson Alexander, Jr., M.D., and his surety, for which execution may issue if necessary.

      . The document was never found, and, therefore, was not made an exhibit. As it was to become "exhibit 108,” we refer to it as such in this opinion.