Richard Arnold and his wife, Barbara Arnold v. The Metropolitan Government of Nashville and Davidson County ( 2001 )

RICHARD ARNOLD and )
BARBARA ARNOLD, his wife, )
)
Plaintiffs/Appellees, ) Appeal No.
) 01-A-01-9505-CV-00203
v. )
) Davidson Circuit
GLORIA FORD, ) No. 93C-1575
)
Defendant/Appellee, )
and
)
)
)
FILED
THE METROPOLITAN GOVERNMENT OF ) December 14,
NASHVILLE AND DAVIDSON COUNTY, ) 2001
)
Defendant/Appellant. )
Cecil Crowson, Jr.
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MARIETTA M. SHIPLEY, JUDGE
JAMES R. OMER, JR.
James R. Omer & Associates
430 Third Avenue North, Suite 200
Trial Lawyers Building
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFFS/APPELLEES
DAVID L. COOPER
Cannon, Cannon & Cooper, P.C.
1000 Northchase Drive
P. O. Box 749
Goodlettsville, Tennessee 37070-0749
ATTORNEY FOR DEFENDANT/APPELLEE, GLORIA FORD
JAMES L. MURPHY, III The Department of Law of
Director of Law The Metropolitan Government
of Nashville and Davidson
County
FRANCIS H. YOUNG 204 Metropolitan Courthouse
CRISTI E. SCOTT Nashville, Tennessee 37201
Metropolitan Attorneys ATTORNEYS FOR METROPOLITAN
GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This is an appeal by defendant/appellant, Metropolitan
Government of Nashville and Davidson County ("Metro"), from the
judgment of the trial court against it in favor of plaintiffs/
appellees, Richard and Barbara Arnold, and cross-
defendant/appellee, Gloria Ford.
Metro presented three issues on appeal. They are as
follows: 1) "Whether it was error for the trial court to fail to
sever the bench trial on the issue of the Metropolitan Government's
liability from the jury trial on the issue of Mrs. Ford's
liability"; 2) "Whether a new trial should be granted due to the
inconsistent, irreconcilable judgments entered on one body of
evidence"; and 3) "Whether the trial court's use of the remittitur
procedure was improper."
This case arose out of an automobile accident that occurred
in May 1992 in Davidson County, Tennessee. The accident involved
the Arnolds and Mrs. Ford and occurred at the intersection of State
Route 45 and Rio Vista Drive in Nashville. A different accident
had occurred at this same intersection shortly before the Arnold
and Ford vehicles collided. Metropolitan police officers, J. B.
Hale and Marsha Brown, were directing traffic around the first
accident.
The Arnolds' claim against Metro was that the negligence of
Officer Hale in giving improper hand signals to Mrs. Ford
proximately caused the accident. Metro filed a cross-claim against
Mrs. Ford for indemnification, and the court later dismissed this
cross-claim. Mrs. Ford filed a cross-claim against Metro also
alleging negligence on the part of Officer Hale.
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On the morning of the first day of trial, during the pre-
trial conference between counsel and the trial court in chambers,
counsel for Metro made an oral motion. Pursuant to Tennessee Code
Annotated section 29-20-313(b)1, Metro asked the court to sever the
bench trial on Metro's liability from the jury trial on the
Arnolds' claim against Mrs. Ford The court overruled Metro's
motion. The bench trial as to Metro's liability to the Arnolds and
Mrs. Ford proceeded contemporaneously with the jury trial as to
Mrs. Ford's liability to the Arnolds.
At the conclusion of the evidence and the arguments of
counsel, the court charged the jury, and they retired to
deliberate. Later, the jury returned and announced its verdict.
The jury found Mrs. Ford 65% at fault and Metro 35% at fault and
fixed the Arnolds' total damages at $255,696.95. Upon dismissing
the jury, the trial court handed to counsel its memorandum
regarding the non-jury claims of the Arnolds and Mrs. Ford against
Metro. The court found Metro 60% at fault and Mrs. Ford 40% at
fault and fixed the Arnolds' total damages at $360,000.00. In
addition, the court awarded Mrs. Ford $37,000.00 on her cross-
claim.
The trial court entered final judgment against Metro in
favor of the Arnolds and Mrs. Ford on 24 October 1994. It then
entered final judgment on the Arnolds' claim against Mrs. Ford on
25 October 1994. Metro then moved for a new trial, and Mrs. Ford
1
(b) When suit is brought in circuit court in a case in which
there are multiple defendants, one (1) or more of which is a
governmental entity or a governmental entity employee whose
liability or lack thereof is to be determined based upon the
provisions of this chapter and one (1) or more of which is not such
governmental entity or governmental entity employee, the case shall
be heard and decided by a jury upon the demand of any party.
Nothing in this section shall be construed to abridge the right of
any party to a trial by jury otherwise granted by the state or
federal constitution or any statute.
Tenn. Code Ann. § 29-20-313(b)(Supp. 1994).
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filed a motion for judgment in accordance with her motion for
directed verdict or alternative motion for a new trial. The trial
court entered its memorandum opinion on 22 December 1994 suggesting
remittitur as to the Arnolds' judgment against Mrs. Ford. On 9
January 1995, the trial court entered an order making its 22
December 1994 memorandum opinion an order of the court. Later, the
Arnolds accepted the trial court's suggested remittitur. Mrs. Ford
satisfied the Arnolds' judgment against her, and the court entered
an order of satisfaction of judgment and release.
Metro filed its notice of appeal on 19 January 1995. It
appealed the final judgment entered against it on 24 October 1994,
the final judgment entered against Mrs. Ford on 25 October 1994,
and the 9 January 1995 order making the 22 December 1994 memorandum
opinion an order of the court. In its brief, Metro stated that
when it filed its notice of appeal it was unaware that the court
had entered an order, making the memorandum opinion an order of the
court, on 9 January 1995.
The facts out of which this controversy arose are as
follows.
On 28 May 1992, the Arnolds were in their Plymouth Voyager
headed west on State Route 45 in Davidson County. Mrs. Ford was
traveling north on Rio Vista Drive in her Plymouth Laser
approaching the intersection of State Route 45. Before either the
Arnolds or Mrs. Ford arrived at the intersection, an accident had
occurred. Metro police officers, J. B. Hale and Marsha Brown, were
directing traffic around the wrecked automobiles and the emergency
vehicles that had responded to the earlier accident. The officers
had agreed between themselves that Officer Brown would stop the
east bound traffic on State Route 45 in an attempt to allow Officer
Hale to direct north bound traffic on Rio Vista Drive to turn right
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and head east on State Route 45.
Many cars heading north on Rio Vista Drive followed Officer
Hale's instructions and turned right to head east on State Route
45. Mrs. Ford pulled her car up directly in front of Officer Hale
and indicated that she wanted to go straight across State Route 45.
Officer Hale alleged that she repeatedly motioned Mrs. Ford to turn
right and head east because she did not have control over west
bound State Route 45. According to the testimony of Officer Hale,
Mrs. Ford refused to turn a number of times. Officer Hale decided
she had to get Mrs. Ford's vehicle out of the way so traffic behind
her could continue to flow out of the intersection. She motioned
Mrs. Ford to pull up and over to the side. Officer Hale then left
Mrs. Ford's car and resumed directing traffic.
The testimony of Mrs. Ford and several other witnesses was
at odds with that of Officer Hale. Mrs. Ford testified that
Officer Hale motioned her to go straight across. Witness Cohen saw
Officer Hale motion for the car to come through the intersection.
Witness Spicer testified that Officer Hale waived Mrs. Ford out
into the intersection. Witness Travaglini believed that Officer
Hale meant for Mrs. Ford to get moving, and witness Whitaker saw
Officer Hale motion Mrs. Ford's car across State Route 45.
Although the reason why Mrs. Ford entered the intersection is in
dispute, the fact that her doing so resulted in a collision
involving her car and the Arnolds' mini-van is not.
We first discuss Metro's issue of whether it was error for
the trial court to fail to sever the bench trial from the jury
trial of Mrs. Ford's liability.
The Tennessee Governmental Tort Liability Act, Tennessee
Code Annotated title 29 chapter 20, provides that the court shall
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give a governmental entity a bench trial and that the judge shall
hear the case without the intervention of a jury. Tenn. Code Ann.
§§ 29-20-307, -313(b) (1980 & Supp. 1994). The trial court
conducted a bench trial for Metro on all of its issues.
Nevertheless, it is Metro's insistence that the statute prohibits
a trial judge from conducting a bench trial for a governmental
entity while it conducts a jury trial for a private defendant.
We are of the opinion that the trial court followed the
dictates of the Act. The court heard the evidence, saw and heard
the witnesses testify, and issued its memorandum opinion that
incorporated its finding of fact and conclusions of law. Metro
relies on Austin v. County of Shelby, 640 S.W.2d 852 (Tenn. App.
1982), to support its contention that section 29-20-313(b) required
the trial court to sever the jury and non-jury portions of the
case. In actuality, the holding in Austin does require severance,
but it is silent as to any specific procedures for a trial court to
use in granting separate trials. Austin, 640 S.W.2d at 854. In a
later case, this court permitted the trial court to consider non-
jury issues while simultaneously allowing the jury to decide other
issues. Betty v. Metropolitan Gov't of Nashville and Davidson Co.,
835 S.W.2d 1 (Tenn. App. 1992). The trial court, in the instant
case, considered the evidence separate and apart from the jury and
rendered a verdict on Metro's liability. Both the trial court and
this court gave Metro an opportunity to cite authority supporting
multiple trials, but Metro failed to do so.
We now turn to Metro's second issue of whether this court
should grant it a new trial? Metro put forth two arguments in
support of its position. First, Metro argued that the inconsistent
verdicts require that this court remand for a new trial. It is
this court's opinion, however, that the verdict of the trial court
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on the non-jury issue was not inconsistent with the jury's verdict.
"A verdict is inconsistent when a jury on a single set of facts and
circumstances reaches differing conclusions of fact and law."
McCall v. Owens, 820 S.W.2d 748, 752 (Tenn. App. 1991). In the
instant case, the trial court found that both Metro and Mrs. Ford
were guilty of negligence and were the proximate causes of the
accident. The jury also found that both Metro and Mrs. Ford were
guilty of negligence and were the proximate causes of the accident.
Under the definition of an inconsistent verdict as set forth in
McCall, this result is not inconsistent. Similarly, the percentage
of negligence ascribed to Metro by the court and the jury was
different, but not inconsistent. Therefore, Metro's first argument
is without merit.
Second, Metro argued that the trial court's misapplication
of Tennessee Rule of Civil Procedure 59.06, the Thirteenth Juror
Rule, entitled it to a new trial. The premise of Metro's argument
was that the trial court could not approve a verdict containing
findings of percentages of fault which were different than the
trial court's own findings. Rule 59.06 applies to jury verdicts,
not trial court decisions. See Cumberland Tel. & Tel. Co. v.
Smithwick, 112 Tenn. 463, 79 S.W. 803 (1904) (discussing the role
of the judge as the thirteenth juror and the purpose behind such a
role). Because the trial court decided the issues of Metro's
liability exclusively, the Rule is inapplicable.
In addition, note that appellate courts "will not reverse
for immaterial errors." State v. Delinquent Taxpayers, 26 Tenn.
App. 62, 69, 167 S.W.2d 690, 693 (1942). Where the trial court has
jurisdiction of the subject matter and the parties, mere
irregularities in the exercise of that jurisdiction will not render
the proceedings void in the absence of prejudice. See Ridgley v.
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Bennett, 81 Tenn. 210, 217-19 (1884). Metro neither alleged nor
demonstrated any prejudice as a result of the procedure used in the
trial of this case. Metro has failed to point to anything in the
record that constitutes error sufficient to compel this court to
grant it a new trial.
Finally, this court will not interfere with a trial court's
findings of fact unless the evidence preponderates against such
findings. Tennessee Rule of Appellate Procedure 13(d) provides:
"review of findings of fact by the trial court in civil actions
shall be de novo upon the record of the trial court, accompanied by
a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise." As previously noted,
there was conflicting testimony about whether Officer Hale directed
Mrs. Ford's vehicle to go through the intersection and cross State
Route 45. Officer Hale testified that she motioned for Mrs. Ford
to pull up and over to the side. Mrs. Ford testified that Officer
Hale motioned her to go straight across the intersection. Witness
Cohen saw Officer Hale motion for the car to come through the
intersection. Witness Spicer testified that Officer Hale waived
Mrs. Ford out into the intersection. Witness Travaglini believed
that Officer Hale meant for Mrs. Ford to get moving. Witness
Whitaker saw Officer Hale motion Mrs. Ford's car across State Route
45 where Mrs. Ford collided with the Arnolds' vehicle. Clearly,
the evidence does not preponderate against the judgment of the
trial court, but does preponderate in favor of the Arnolds and
against Metro.
Metro's third issue of whether the trial court's use of
remittitur was proper is without merit as well. The Tennessee
Supreme Court has consistently approved the use of remittitur to
cure excessive jury verdicts. Pitts v. Exxon Corp., 596 S.W.2d
8
830, 835 (Tenn. 1980). In Pitts, the court stated as follows:
Where either remittitur or additur is used, the
choice of a new trial and new jury or appellate
review is available to the party in whose favor the
adjustment is made, and appellate review is
available to the other party where the appellate
courts may either adjust the verdict to conform to
the evidence if statutorily and judicially
authorized to do so, and, where not, a new trial
may be granted.
Id. at 836. Thus, it is apparent that appellate review of
remittitur or additur is available to those plaintiffs and
defendants who are parties to the court's proposed agreement. In
this case, Metro had absolutely nothing to do with the remittitur.
The court's suggested remittitur applied only to the liability of
Mrs. Ford to the Arnolds as decided by the jury. Thus, Metro did
not have standing to raise this issue on appeal.
Mrs. Ford presents the issue of whether "this is a frivolous
appeal which warrants the Court to award Ford her costs, expenses
and reasonable attorney's fees." Tennessee Code Annotated section
27-1-122 provides:
When it appears to any reviewing court that the
appeal from any court of record was frivolous or
taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just
damages against the appellant, which may include
but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as
a result of the appeal.
Tenn. Code Ann. § 27-1-122 (1980). Mrs. Ford insists that the
issues raised on appeal by Metro have no merit and that the trial
court's decision was well grounded in law and fact and reached
without "the intervention of a jury." Metro has failed to point to
any error or prejudice in the record that would justify an appeal
as to Mrs. Ford.
We have reviewed this record and are of the opinion that as
to defendant/appellee, Gloria Ford, this was a frivolous appeal.
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Therefore, we remand this case to the trial court for a
determination of the amount of damages to which Mrs. Ford would be
entitled as a result of this appeal.
We are of the opinion that the trial court followed the
dictates of Tennessee Code Annotated section 29-20-307 and section
29-20-313(b) and determined the issues of fault and damages raised
in the claims. Metro has failed to show any error committed by the
trial court other than a difference in the verdicts; however, these
differences were the result of Metro's own legal maneuvering.
The judgment of the trial court is affirmed, and the cause
is remanded to the trial court for further proceedings in
conformity with this opinion. Costs on appeal are assessed to
defendant/appellant, Metro.
__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
HENRY F. TODD, P.J., M.S.
_________________________________
BEN H. CANTRELL, J.
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