Lester Eugene Siler v. Charles Scott ( 2019 )

05/30/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 16, 2019 Session
LESTER EUGENE SILER ET AL. v. CHARLES SCOTT ET AL.
Appeal from the Circuit Court for Campbell County
No. 12792 Paul G. Summers, Senior Judge1
No. E2017-01112-COA-R3-CV
This case arises out of an incident in 2004 when five Campbell County deputy sheriffs
went to the plaintiffs’ residence. The officers ordered the wife of Lester Eugene Siler, and
his son, Dakota Siler, to leave the house. The deputies then proceeded to beat and torture
Mr. Siler for more than two hours in an attempt to get him to sign a search warrant. Their
efforts were to no avail. They arrested Mr. and Mrs. Siler and charged them at the jail
with offenses. These charges were ultimately dismissed. Subsequently, plaintiffs sued
the five deputies. In addition, the suit named as defendants, Chief Deputy Charles Scott,
Sheriff Ron McClellan, and Campbell County. The trial court granted separate motions
to dismiss filed by Scott and McClellan, finding them to be immune from suit. Following
a lengthy delay, a jury trial took place in 2016. At the beginning of the trial, the
defendants admitted liability on all of plaintiffs’ claims. The jury awarded Lester Siler a
total of $90,000 against the individual defendants, and $10,000 against Campbell County.
The trial court suggested, and Campbell County accepted, an additur to the awards
against the county, increasing them to $25,000. In a pre-trial ruling, the court held this
amount to be the maximum liability against the county for each plaintiff, based on its
ruling that sovereign immunity was waived but only to the extent of the $25,000 sheriff’s
surety bond. The jury awarded zero damages to Jenny Siler and Dakota Siler. Plaintiffs
raise numerous issues on appeal, asserting, among other things, that the trial court erred
in refusing their request to change venue, improperly conducting jury selection, making
several errors in the admission and preclusion of evidence, dismissing Scott and
McClellan, limiting Campbell County’s liability to $25,000 total per plaintiff, incorrectly
instructing the jury, and declining their request for attorney’s fees. Plaintiffs further
argue that the verdicts were below the range of reasonableness. We affirm the trial
court’s judgment.
1
Sitting by designation.
-1-
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Herbert S. Moncier, Knoxville, Tennessee, and Kristie N. Anderson, Jacksboro,
Tennessee, for the appellants, Lester Eugene Siler, Jenny Siler, and Dakota Siler.
Arthur F. Knight, III, Knoxville, Tennessee, for the appellee, Campbell County,
Tennessee.
Robert L. Bowman and Brandon L. Morrow, Knoxville, Tennessee, for the appellee,
Western Surety Insurance Company.
No brief filed by appellees Gerald David Webber, Samuel Reed Franklin, Joshua James
Monday, Shayne Christopher Green, William Carroll, Charles Scott, and Ron McLellan.
OPINION
I.
On July 8, 2004, deputies William Carroll, Shayne Green, Samuel Franklin,
Gerald Webber, Jr., and Joshua Monday went to the home of Lester Eugene Siler in Duff,
Tennessee, to execute an arrest warrant for a probation violation. They were all in plain
clothes. Because of suspicions that Mr. Siler was engaged in continuing drug trafficking
activities, the deputies agreed beforehand that they would threaten, intimidate, and
physically assault Mr. Siler in order to obtain consent to search his residence. Upon their
arrival at the Silers’ residence, the defendants told Mr. Siler to go inside his house. They
handcuffed him. They then ordered Jenny and Dakota Siler to leave the home so they
would not witness the “mess” that was about to ensue. Unbeknownst to the officers,
Jenny Siler made a partial audio recording of the interaction with a recording device she
turned on before she left the home. It was able to capture about forty-three minutes of the
incident. The whole incident lasted approximately two and a half hours.
The specific nature of the abuse is detailed by the recording and transcript, and the
stipulations of fact entered into by the deputies, in conjunction with their federal guilty
pleas. When the recording begins, and even before Mr. Siler was first asked to consent to
a search, the “slapping, striking, or hitting sounds” commenced. Although Mr. Siler
remained handcuffed for at least part of the time and offered no physical resistance, he
was repeatedly beaten and threatened with serious bodily harm and even death.
-2-
Meanwhile, Jenny and Dakota Siler remained outside the home at the end of their
driveway.
Lester Siler’s physical abuse, at the hands of the deputies, included slapping,
punching, and kicking (resulting in cuts, bruises and a fractured nose) and striking him
with a slapjack and a plastic baseball bat. They attached wires from a battery charger to
him and threatened to electrocute him. They attempted to force his head into a fish tank
full of water, and into an overflowing toilet. The deputies burned Mr. Siler with a
cigarette lighter. They threatened to break his fingers and cut off his testicles. They put a
pistol in his mouth and set off a firecracker. During the ordeal, the deputies confiscated
or stole various items of the Silers’ personal property, including a laptop computer,
jewelry, money, two security cameras, and a Sony PlayStation. Other personal items in
the house were damaged or destroyed. Lester Siler never consented to the search. He
and his wife were ultimately arrested and taken to jail. Eventually, all charges against the
plaintiffs were dismissed.
The TBI investigated Mr. Siler’s allegations of abuse. All five defendants gave
sworn written statements to the TBI denying any wrongdoing. The deputies’ stories
changed when they were confronted with the audio recording. They were charged in
federal court with, pleaded guilty to, and received significant prison sentences for
conspiring to violate Siler’s civil rights under color of law.
On July 6, 2005, plaintiffs filed a civil complaint in federal court alleging “claims
under 42 U.S.C. § 1983 based on alleged violations of rights guaranteed by the United
States Constitution.” Siler v. Webber, No. 3:05-cv-341, 2009 WL 10680025, at *1 (E.D.
Tenn., filed Jan. 27, 2009). They also asserted eighteen causes of action “based purely on
Tennessee state law.” Id. at *3. The next day, plaintiffs filed their complaint in the
instant action, alleging,
assaults and batteries; malicious harassment; trespass; false
arrest; false imprisonment; abuse of process; malicious
prosecution; intentional infliction of emotional distress; and
violations of their constitutional rights guaranteed to them by
the Tennessee Constitution.
On March 27, 2008, nearly three years after the complaint was filed in this case,
plaintiffs filed a motion for change of venue, arguing that “due to prejudice and publicity
existing in Campbell County . . . a fair and impartial jury trial cannot occur.” In their
brief, plaintiffs assert that
-3-
[a] one-half day evidentiary hearing was held before
Campbell County Circuit Court Judge John D. McAfee . . . on
the Silers’ [m]otion for [c]hange of [v]enue. However,
toward the end of the hearing, Judge McAfee recused himself
for being too close to interested individuals and did not render
a ruling. The exhibits and recording of that hearing were lost
by the [c]lerk and were not available for future hearings when
conducted on the Silers’ motion for change of venue.
There is no order from Judge McAfee in the record, nor is there anything else pertaining
to the hearing. On May 2, 2008, the Supreme Court designated Senior Judge Walter C.
Kurtz to hear the case.
On July 14, 2008, the trial court entered an order staying the proceedings pending
the outcome of plaintiffs’ federal lawsuit. The federal district court subsequently entered
an order declining to exercise supplemental jurisdiction over plaintiffs’ state law claims.
Siler v. Webber, No. 3:05-cv-341, 2009 WL 10680025, at *11. The district court ruled
that “[p]laintiffs may litigate all of their state law claims against the same defendants in
the concurrent, parallel case in the Campbell County Circuit Court.” Siler v. Webber,
2009 WL 10680026, at *6 (E.D. Tenn., filed Mar. 5, 2009). Shortly thereafter, the
district court granted Campbell County summary judgment on plaintiffs’ federal 42
U.S.C. § 1983 claims. Siler v. Webber, 2009 WL 10680020, at *28 (E.D. Tenn., filed
Apr. 21, 2009). The Sixth Circuit affirmed this decision. Siler v. Webber, 443 Fed.
Appx. 50, 51 (6th Cir. 2011).
On July 30, 2010, the trial court granted motions to dismiss filed by defendants
McClellan and Scott. The trial court held that these defendants were granted immunity by
Tenn. Code Ann. §§ 29-20-310(b) and 8-8-301, a ruling that will be discussed at length
later in this opinion.
On April 7, 2011, the trial court entered an order granting defendants summary
judgment on claims brought under the Governmental Tort Liability Act, Tenn. Code Ann.
§ 29-20-205 (2012) and the Tennessee Constitution. The court denied Campbell
County’s motion for summary judgment on claims based on Tenn. Code Ann. § 8-8-302
(2016), stating,
the only claims that remain against the County are those
brought under Tenn. Code Ann. § 8-8-302 for the non-
negligent, intentional acts of Webber, Franklin, Monday,
Green and Carroll.
-4-
On October 28, 2011, the trial court entered an order denying a change of venue,
stating, in pertinent part, as follows:
[p]laintiffs state that their motion for change of venue was
never ruled upon. . . . It was heard by the prior judge, who
never ruled upon it before he recused himself. The Court is
of the opinion that it is appropriate to attempt to seat a jury.
If prior knowledge of the case by persons in Campbell
County makes it difficult to seat a jury, then the motion may
be renewed. The motion for change of venue is, at this time,
DENIED.
(Footnote in original omitted; capitalization in original.) Senior Judge Kurtz retired on
December 31, 2012, and was replaced by Senior Judge Paul G. Summers.
On August 3, 2015, the trial court entered an order stating, in pertinent part, that
The Court finds that Campbell County has waived
governmental immunity for the acts of each individual
deputy, acting under the color of office, but only up to an
aggregate damage value of $25,000. Such waiver is per
claimant. This finding is irrespective of the numbers of actors
and number of violations; $25,000 is the maximum exposure
of the County to each plaintiff or claimant.
Plaintiffs filed a motion in limine to exclude from the venire all Campbell County
residents who paid property or sales taxes, arguing that they “have more than a de
minimus financial interest in the public funds of Campbell County.” The trial court
denied the motion.
Jury selection took place on October 19, 2016. After the jury was selected and the
trial court gave preliminary instructions, all of the defendants informed the trial court in a
chambers conference that they were admitting liability on all of the causes of action. For
Mr. Siler, these claims were for assault and battery, false arrest, false imprisonment,
trespass, abuse of process, malicious prosecution, and failure and neglect to perform
duties as a deputy sheriff in violation of their oath of office. Ms. Siler asserted the same
claims except assault and battery. Dakota Siler alleged intentional infliction of emotional
distress, trespass, and failure and neglect to perform duties as a deputy sheriff. The next
morning, the trial court informed the jury that the defendants admitted liability on all
claims and consequently, the jury’s role was to determine damages, if any.
-5-
The jury returned a verdict in favor of Mr. Siler against the individual defendants
in the following amounts: William Carroll, $15,000; Samuel Franklin, $15,000; Shayne
Green, $20,000; Joshua Monday, $20,000; Gerald Webber, $20,000. The jury awarded
Mr. Siler $10,000 against Campbell County. Mrs. Siler and Dakota Siler were awarded
no damages. The trial court approved the verdicts against the individual defendants and
suggested an additur of $15,000 to Mr. Siler’s verdict against Campbell County. The
county accepted the additur, resulting in a judgment against it in the amount of $25,000.
Plaintiffs filed numerous post-trial motions, including a motion to amend their
complaint to add Western Surety Insurance Company, which issued surety bonds for the
Campbell County Sheriff and deputies, as “a necessary and interested party.” A decade
earlier, Western Surety had been dismissed from the case by agreed order entered on
January 19, 2006, finding it “not a necessary party.” The trial court denied the motions
and plaintiffs’ request for attorney’s fees. Plaintiffs timely filed a notice of appeal.
II.
Plaintiffs raise the following issues, as paraphrased from their brief:
1. Did the trial court err in granting defendants summary
judgment on plaintiffs’ GTLA claims?
2. Did the trial court err in dismissing plaintiffs’ claims
against McClellan and Scott in their individual and official
capacities?
3. Did the trial court err in granting summary judgment on
claims for alleged violations of the Tennessee Constitution?
4. Did the trial court in its pre-trial ruling that the liability of
Campbell County was limited to the amount of $25,000 per
plaintiff?
5. Did the trial court err in denying plaintiffs’ motion for
change of venue?
6. Did the trial court err in declining to rule that all Campbell
County taxpayers were disqualified as having a financial
interest in the outcome of the case?
-6-
7. Did the trial court deny plaintiffs their right to examine
potential jurors during voir dire to establish challenges for
cause and make meaningful decisions regarding their
peremptory challenges?
8. Were plaintiffs denied their “right to a meaningful
preliminary statement, voir dire and opening statement” by
the trial court’s failure to instruct the jury, at an earlier point
in the proceedings, that defendants had admitted liability and
the only issue to be decided by the jury was damages?
9. Did the trial court err in refusing plaintiffs’ request for late
discovery of Mr. Siler’s prison psychiatric records?
10. Did the trial court err in refusing to allow plaintiffs to
present evidence they deemed as pertinent to damages?
11. Did the trial court err in allowing irrelevant evidence of
the individual defendants’ punishment and restitution in
federal court?
12. Did the trial court err by making improper comments on
the evidence?
13. Did the trial court err by providing the jury “incorrect,
inconsistent, misleading and confusing instructions”?
14. Did the trial court by refusing to hold that the amounts of
the jury’s verdicts for damages were below the range of
reasonableness, and denying plaintiffs’ motion for a new trial
on that ground?
15. Did the trial court err in refusing to award plaintiffs their
attorney’s fees?
16. Did the trial court err in refusing to add Western Surety
Insurance Company as a party after the trial was concluded?
17. Did the trial court err by refusing plaintiffs’ request to
include in its final judgment “the conduct Defendants
-7-
admitt[ed] and findings necessary for the [j]udgments against
Defendants to be non-dischargeable in bankruptcy”?
III.
“We review questions of law, including those of statutory construction, de novo
with no presumption of correctness” accorded to the trial court. Duke v. Duke, 563
S.W.3d 885, 894 (Tenn. Ct. App. 2018). We review a jury verdict under the material
evidence standard, which requires us to “review the record and ‘take the strongest
legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence
that supports the verdict, allow all reasonable inferences to sustain the verdict, and
discard all countervailing evidence.’ ” Borne v. Celadon Trucking Servs., Inc., 532
S.W.3d 274, 298 (Tenn. 2017) (quoting Akers v. Prime Succession of Tenn., Inc., 387
S.W.3d 495, 501 (Tenn. 2012)).
IV.
A. Summary Judgment for Campbell County on GTLA Claims
Plaintiffs argue that the trial court erred in granting Campbell County summary
judgment on their claims brought under the Governmental Tort Liability Act. Our
standard of review of a grant of summary judgment is as stated by the Supreme Court:
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Tenn. R.
Civ. P. 56.04. We review a trial court’s ruling on a motion
for summary judgment de novo, without a presumption of
correctness.
* * *
[I]n Tennessee, as in the federal system, when the moving
party does not bear the burden of proof at trial, the moving
party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving
-8-
party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or
defense. . . . The nonmoving party must demonstrate the
existence of specific facts in the record which could lead a
rational trier of fact to find in favor of the nonmoving party.
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).
The GTLA, Tenn. Code Ann. § 29-20-101 et seq., applies to claims regarding
alleged negligent acts by county employees. Hughes v. Metro. Gov’t of Nashville &
Davidson County, 340 S.W.3d 352, 368 (Tenn. 2011); Limbaugh v. Coffee Med. Ctr., 59
S.W.3d 73, 79 (Tenn. 2001); Doe v. Pedigo, No. E2002-01311-COA-R3-CV, 2003 WL
21516220, at *2 (Tenn. Ct. App., filed June 30, 2003); Swanson v. Knox County, No.
E2007-00871-COA-R3-CV, 2007 WL 4117259, at *4-5 (Tenn. Ct. App., filed Nov. 20,
2007). Plaintiffs alleged generally that Campbell County Sheriff’s Department
employees were negligent in providing inadequate training and supervision of the
deputies who committed intentional torts against them. The GTLA provides, in pertinent
part, that
[i]mmunity from suit of all governmental entities is removed
for injury proximately caused by a negligent act or omission
of any employee within the scope of his employment except
if the injury arises out of:
(1) The exercise or performance or the failure to exercise or
perform a discretionary function, whether or not the
discretion is abused;
(2) False imprisonment pursuant to a mittimus from a court,
false arrest, malicious prosecution, intentional trespass, abuse
of process, libel, slander, deceit, interference with contract
rights, infliction of mental anguish, invasion of right of
privacy, or civil rights[.]
Tenn. Code Ann. § 29-20-205. As an initial matter, we note that the claims brought by
Jenny Siler and Dakota Siler all fall within section 205(2). Thus the General Assembly
has expressly excepted their claims from the general removal of immunity for negligent
acts or omissions of government employees. We affirm the trial court’s summary
judgment against Jenny and Dakota Siler on the ground that Campbell County is immune
under the GTLA.
-9-
Lester Siler also brought a claim for negligence resulting in his assault and battery.
The Supreme Court has held on at least two occasions that “a governmental entity, under
appropriate circumstances, c[an] be held liable for an assault and battery by an
employee.” Hughes, 340 S.W.3d at 368 (citing Limbaugh, 59 S.W.3d at 84). However,
the trial court granted Campbell County summary judgment on the ground that Mr.
Siler’s claim is a “civil rights” claim, from which the county is immune. The court
stated, in pertinent part, as follows:
Recent cases have made the ability to recover against the
County fairly difficult in police assault cases involving
allegations of “civil rights” violations. Immunity is granted
the County under the GTLA when the cause of action
contends violation of “civil rights.” Tenn. Code Ann. § 29-
20-205 (2).
In Campbell v. Anderson County, 695 F. Supp. 2d 764 (E.D.
Tenn. 2010), the plaintiff contended that she was sexually
assaulted by a reserve deputy sheriff while being transported
from a crime scene. She brought suit against Anderson
County under the federal civil rights act, 42 U.S.C. § 1983, as
well as the GTLA. In addressing the GTLA state law claim,
the court stated[,]
In the alternative, there is a different reason
why Campbell’s claims against the County for
false imprisonment, assault and battery,
intentional infliction of emotional distress, and
negligence should be dismissed. These torts are
alleged to have been committed solely in the
context of the violation of Campbell’s civil
rights ‒ this is in essence a civil rights suit.
Tenn. Code Ann. § 29-20-205(2) provides that
immunity from suit of all governmental entities
is removed or waived for injury proximately
caused by a negligent act or omission of any
employee within the scope of his employment
except if the injury arises out of “civil rights.”
It is fair and reasonable to interpret the plain
language in § 29-20-205(2) as meaning that
-10-
civil rights claims are a type of intentional tort.
Brooks v. Sevier County, 279 F. Supp. 2d 954,
960 (E.D. Tenn. 2003). This court construes
the term “civil rights” in § 29-20-205(2) as
meaning and including claims arising under the
federal civil rights laws, e.g., 42 U.S.C. § 1983
and the United States Constitution.
Campbell’s tort claims of false imprisonment,
assault and battery, intentional infliction of
emotional distress, and negligence brought
against the County under Tennessee law are
predicated on the alleged violation of her civil
rights by Graham. The contention that former
Reserve Deputy Graham committed false
imprisonment, assault and battery, and
intentional infliction of emotional distress
clearly arise out of and directly flow from the
allegations that he deprived Campbell of her
civil rights by sexually assaulting her. Because
Campbell asserts her claims against the County
in the context of a civil rights case, her alleged
injuries arise out of “civil rights” and the
County is entitled to immunity from suit on
these claims pursuant to the “civil rights”
exception in Tenn. Code Ann. § 29-20-205(2).
Campbell, 695 F. Supp. 2d at 778. The holding in Campbell
was adopted by a recent Court of Appeals case. See Jackson
v. Thomas, 2011 WL 1049804, at *7 (Tenn. Ct. App. Mar.
23, 2011).
Since 2011, when the trial court entered summary judgment, both the federal
courts addressing the GTLA civil rights exception and this Court have followed and
applied the principles espoused in Campbell. See Howard v. Knox County, No. 3:15-
CV-6-TAV-CCS, 2016 WL 9455169, at *10-11 (E.D. Tenn., filed Sept. 7, 2016); Lundy
v. Knox County, No. 3:13-CV-588-TAV-HBG, 2014 WL 1491235, at *4 (E.D. Tenn.,
filed Apr. 15, 2014); Dillingham v. Millsaps, 809 F. Supp. 2d 820, 852 (E.D. Tenn. 2011);
Johnson v. City of Memphis, 617 F.3d 864, 871 (6th Cir. 2010); Merolla v. Wilson
County, No. M2018-00919-COA-R3-CV, 2019 WL 1934829, at *4 (Tenn. Ct. App.,
filed May 1, 2019); Lankford v. City of Hendersonville, No. M2016-02041-COA-R3-
-11-
CV, 2018 WL 1559971, at *8 (Tenn. Ct. App., filed Mar. 29, 2018); Cochran v. Town of
Jonesborough, No. E2018-01512-COA-R3-CV, 2019 WL 1399514, at *8 (Tenn. Ct.
App., filed Mar. 27, 2019); but see Parker v. Henderson County, No. W2009-00975-
COA-R3-CV, 2010 WL 377044, at *4 (Tenn. Ct. App., filed Feb. 4, 2010).
In the recent Cochran opinion, this Court discussed at length the cases cited
above, recognizing that there is a split of authority in the opinions in that Parker, 2010
WL 377044, was decided contra to the others. The Parker Court declined to apply the
civil rights exception where the plaintiff was shot by a police officer, observing that the
plaintiff “neither pleaded nor argued in the present proceeding that the City or its officers
violated his federal civil rights.” Id. at *4. In Cochran, we stated that
[o]ther Tennessee cases, however, decide the issue
differently, and the federal courts of Tennessee have
consistently applied the civil rights exception in 29-20-205(2)
in the stricter manner urged by [the defendant town].
2019 WL 1399514, at *4. Choosing “to follow the greater weight of authority and
embrace the application of section 29-20-205(2) that preserves immunity,” Cochran
stated that “the injuries [plaintiff] alleges to have suffered stem from well-established
civil rights, regardless of how [plaintiff] chose to characterize those claims in his state
action.” Id. at *8, *7. The Cochran Court was:
unpersuaded by [plaintiff’s] argument that because the district
court dismissed [plaintiff’s] federal claims at the summary
judgment stage, there were no civil rights violations, and
section 29-20-205(2) is thereby inapplicable. . . . Nothing in
the language of section 29-20-205(2) indicates that there must
be an express finding that a civil rights violation occurred in
order for the exception to apply. Indeed, immunity offered by
section 29-20-205 is broad, preserving immunity for
negligence claims so long as the “injury arises out of . . . civil
rights.”
Id. at *8.
The instant case bears many similarities to Cochran and other cases where a
plaintiff alleged police misconduct or assault. Mr. Siler alleged violation of his federal
civil rights in his federal action. A claim of excessive force by law enforcement officers
often involves the implication of a civil rights violation. See Cochran, 2019 WL
1399514, at *7, and cases cited therein; Merolla, 2019 WL 1934829, at *5. Following
-12-
the lines of authority culminating most recently in Cochran and Merolla, we are
compelled to conclude that the county’s immunity is preserved under the civil rights
exception, Tenn. Code Ann. § 29-20-205(2). As Cochran observed,
[i]mportantly, our holding today is in keeping with the well-
established principle that “statutes permitting suits against the
State must be strictly construed.” Moreno v. City of
Clarksville, 479 S.W.3d 795, 809–10 (Tenn. 2015); see also
Limbaugh, 59 S.W.3d at 83 (“[A]s the legislature created [the
GTLA] in derogation of the common law . . . the Act must be
strictly construed.”) (citing Lockhart ex rel. Lockhart v.
Jackson-Madison Cty. Gen. Hosp., 793 S.W.2d 943 (Tenn.
Ct. App. 1990)); Hughes v. Metro. Gov’t of Nashville and
Davidson Cty., 340 S.W.3d 352, 361 (Tenn. 2011) (quoting
Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001)) (“The
GTLA’s waiver of immunity is ‘narrowly confined in its
scope.’ ”).
Id. at *8 (brackets in original). We hold that the plaintiffs’ claims against Campbell
County fall under the “civil rights” exception and are barred by the county’s immunity.
B. Dismissal of Claims Against McClellan and Scott
Former Sheriff McClellan and former Chief Deputy Scott filed a Tenn. R. Civ. P.
12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted
“based upon their immunity as governmental entity employees.” The plaintiffs’
complaint alleges that McClellan and Scott “failed and neglected to perform the duties
required of [them] to train, supervise, and discipline” their subordinate officers. Plaintiffs
argue that the trial court erred in granting the motion to dismiss McClellan and Scott in
their individual and official capacities on immunity grounds.
In Jenkins v. Loudon County, 736 S.W.2d 603, 605 (Tenn. 1987), overruled on
other grounds by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83-84 (Tenn. 2001), the
Supreme Court, reviewing the history of law enforcement officer liability in Tennessee,
noted that “[a]t common law, the sheriff was personally liable to persons aggrieved by
official wrongs of his deputy.” (Internal quotation marks omitted). Regarding defendant
Scott, plaintiffs cite no authority stating or suggesting that a person with the title of “chief
deputy” may be held personally liable for the acts of subordinate deputies. The Jenkins
Court further observed that
-13-
[a]s the office of the sheriff has evolved, statutory provisions
have modified this common law liability, and in 1972, . . .
T.C.A. §§ 8–8–301, et seq., was enacted, providing that “[n]o
sheriff, whether elected or appointed, nor any surety on his
bonds, shall be liable for any wrongs, injuries, losses,
damages or expenses incurred as a result of any act or failure
to act on the part of any deputy appointed by said sheriff,
whether said deputy is acting by virtue of office, under color
of office or otherwise.”
Id. At the same time, Tenn. Code Ann. § 8-8-302 shifted liability “to the county to a
limited extent,” id., providing that
[a]nyone incurring any wrong, injury, loss, damage or
expense resulting from any act or failure to act on the part of
any deputy appointed by the sheriff may bring suit against the
county in which the sheriff serves; provided, that the deputy
is, at the time of such occurrence, acting by virtue of or under
color of the office.
Section 8-8-301(a) immunizes former Sheriff McClellan from liability for non-negligent
acts of intentional misconduct by his deputies. O’Neal v. DeKalb County, 531 S.W.2d
296, 298 (Tenn. 1975); Jenkins, 736 S.W.2d at 608; Hensley v. Fowler, 920 S.W.2d 649,
651 (Tenn. Ct. App. 1995); Swanson, 2007 WL 4117259, at *4. The Supreme Court has
held that the GTLA supersedes Tenn. Code Ann. § 8-8-301 et seq. regarding actions for
negligent conduct. Jenkins, 736 S.W.2d at 609; accord Hensley, 920 S.W.2d at 652;
Swanson, 2007 WL 4117259, at *4; Warnick v. Carter County, No. E2002-00833-COA-
R3-CV, 2003 WL 174754, at *2 (Tenn. Ct. App., filed Jan. 27, 2003).
The trial court dismissed the claims against McClellan and Scott before it ruled
that Campbell County was entitled to summary judgment on its GTLA claims, stating,
the Court finds that, under the facts as alleged in the
[c]omplaint, T.C.A. §§ 29-20-310(b) and 8-8-301 confer
immunity from suit upon the former sheriff, Ron McClellan
and former chief deputy, Charles Scott, and that Defendant
Campbell County is the proper party to be named as a
defendant as to Plaintiffs’ negligence claims under the
Tennessee Governmental Tort Liability Act, T.C.A. §§ 29-20-
101 et seq., and under T.C.A. § 8-8-302 as to Plaintiff’s
claims of non-negligent conduct.
-14-
Tenn. Code Ann. § 29-20-310(b) provides immunity for a county employee when the
county’s immunity under the GTLA has been removed. It states, in pertinent part, that
[n]o claim may be brought against an employee or judgment
entered against an employee for damages for which the
immunity of the governmental entity is removed by this
chapter unless the claim is one for health care liability
brought against a health care practitioner.
The trial court’s judgment in McClellan and Scott’s favor under this section must
also be construed as a ruling that Campbell County was not immune to liability from a
claim that the negligence of its employees was the proximate cause of an assault and
battery. See Hill v. City of Germantown, 31 S.W.3d 234, 238 (Tenn. 2000) (section
310(b) “giv[es] the employee absolute immunity in cases where the municipality’s
immunity was removed”) (quoting Erwin v. Rose, 980 S.W.2d 203, 206 (Tenn. Ct. App.
1998)); Fitzgerald v. Hickman County Gov’t, No. M2017-00565-COA-R3-CV, 2018
WL 1634111, at *6 (Tenn. Ct. App., filed Apr. 4, 2018) (“where the governmental
entity’s immunity is removed, no claim may lie as to an individual employee. . . [O]nly
when the governmental entity is immune may the employee be sued under the provisions
of section 29–20–310(c).”). While this proposition is generally correct “under
appropriate circumstances,” Hughes, 340 S.W.3d at 368 (citing Limbaugh, 59 S.W.3d at
84), as already discussed, in this case alleging police assault and battery, the civil rights
exception applies to preserve immunity. Because the trial court later granted summary
judgment to the county on immunity grounds under the civil rights exception, Tenn. Code
Ann. § 29-20-310(b) does not cloak McClellan and Scott with personal immunity.
Regarding claims for negligence against a government employee, Tenn. Code Ann
§ 29-20-310(c) provides, in pertinent part, as follows:
No claim may be brought against an employee or judgment
entered against an employee for injury proximately caused by
an act or omission of the employee within the scope of the
employee’s employment for which the governmental entity is
immune in any amount in excess of the amounts established
for governmental entities in § 29-20-403, unless the act or
omission was willful, malicious, criminal, or performed for
personal financial gain[.]
In Autry v. Hooker, 304 S.W.3d 356, 363 (Tenn. Ct. App. 2009), this provision was
summarized or interpreted as follows:
-15-
An individual employee of a governmental entity is immune
when the governmental entity for which he works is immune
from suit, unless the employee’s act or omission was willful,
malicious, criminal, or performed for personal financial gain.
Accord Fitzgerald, 2018 WL 1634111, at *7 (quoting Autry). If this interpretation is
correct, then McClellan and Scott were correctly dismissed under section 310(c), because
plaintiffs did not allege that their conduct was “willful, malicious, criminal, or performed
for criminal gain.” Plaintiffs only alleged that those individuals were negligent in hiring,
training and/or supervision of the defendant deputies.
However, the Supreme Court has interpreted section 29-20-310(c) differently than
Autry. In Hill, 31 S.W.3d at 238, the High Court stated,
Reading [§ 29–20–310(b) and (c)] together, it is obvious that
the legislature wished to limit the exposure of municipal
employees while it selectively removed the immunity of the
municipality itself. It did so in two ways: (1) by giving the
employee absolute immunity in cases where the
municipality’s immunity was removed (subsection (b)), and
(2) by limiting the employee’s liability in cases in which the
municipality was yet immune to the limits in Tenn. Code Ann.
§ 29–20–403 ‒ unless the employee’s acts were willful,
malicious, criminal, or performed for personal financial gain
(subsection (c)).
(Quoting and “finding to be correct” Erwin, 980 S.W.2d at 206; emphasis added;
brackets in original). Thus, section 310(c) does not provide immunity for an employee
alleged to be negligent; it only limits his or her potential liability to the monetary caps
provided at Tenn. Code Ann. § 29-20-403.
Consequently, we must examine the negligence claims against McClellan and
Scott personally to determine if the trial court correctly dismissed them. Because this
review requires examination of matters outside the pleadings, we apply the summary
judgment standard in making this determination. See Tenn. R. Civ. P. 12.02.
In ruling on the GTLA claims, the trial court in this case noted that Campbell
County “contends that the record shows no negligent act by Sheriff’s officials.” The trial
court, in evaluating this argument, quoted and adopted the findings of the federal district
-16-
court, Siler, 2009 WL 10680020, at *17, *25, *27, which addressed similar facts in a
similar context. The trial court found that
[w]hile the plaintiff has referred to a great deal of non-
material facts, conclusions, and inferences, the Court believes
that Judge Edgar, in viewing much the same record, correctly
made these salient findings:
There is no probative evidence that prior to July
8, 2004, McClellan and Scott had any
knowledge of the propensity of Webber,
Franklin, Monday, Green and Carroll towards
violence and use of excessive force. There is no
evidence that prior to July 8, 2004, McClellan
and Scott were aware of any similar incidents
and complaints concerning Webber, Franklin,
Monday, Green and Carroll using excessive
force or committing acts of violence against
criminal suspects or citizens. There is no
evidence that prior to July 8, 2004, it was ever
necessary for McClellan and Scott to take
action to reprimand, discipline, train, and
supervise these five deputies to correct and
control violent behavior or use of excessive
force. There is no evidence that McClellan
directed and instructed deputies Webber,
Franklin, Monday, Green and Carroll to use any
unlawful means or excessive force [to] “get”
Lester Siler.
* * *
This is not a case where Campbell County and
the CCSD [Campbell County Sheriff’s
Department] failed to provide supervision for
untrained deputies. When Monday, Green, and
Carroll went to the Siler residence on July 8,
2004, they were under the direct supervision of
experienced, veteran police officers Webber and
-17-
Franklin who were well trained and capable of
providing expert guidance and instructions on
how to perform the necessary police duties.
McClellan and the CCSD did not send
inadequately trained deputies Monday, Green,
and Carroll to the Siler residence on July 8,
2004, without supervision. The problem was
that Webber and Franklin failed to provide
proper supervision.
* * *
Plaintiffs have failed to produce sufficient
evidence to create genuine issues of material
fact on th[e] third element of causation.
Plaintiffs cannot show that inadequacy in the
CSSD police training program is closely related
to or actually caused their injuries. The subject
of police training in this case concerns
appropriate law enforcement methods for
obtaining voluntary consent from a drug
trafficking suspect to search his residence. It
does not require any special training for a police
officer or any reasonable person to know that
the extraordinary methods used by the five
deputies at the Siler residence on July 8, 2004
were without a doubt unlawful. Whether
deputies Monday, Green and Carroll received
extensive police training or no training, their
understanding of the illegality of their actions
would have been the same.
The thirteen-volume technical record in this case contains excerpts of depositions
of all the defendants and Mr. and Ms. Siler. McClellan and Scott also each submitted an
affidavit. Having reviewed all these materials in the light most favorable to plaintiffs,
and drawing all reasonable inferences in their favor, we hold that there is no basis upon
which a trier of fact could impose personal liability on McClellan or Scott for negligence.
As the trial court observed, there is no proof suggesting that either defendant was aware
that the incident was going to take place as it did. Neither is there a showing of previous
-18-
incidents of excessive force that would arguably make foreseeable the unlawful acts of
the deputies. The two officers in charge, Webber and Franklin, were well-trained and
seasoned veterans capable of supervising the lesser-trained deputies. In short, the
evidence supports the findings of fact made by the trial court and the federal district
court.
Regarding the claims against Scott and McClellan in their official capacity, the
following principle, recognized in Doe v. Pedigo, 2003 WL 21516220 at *4, applies here:
The United States Supreme Court addressed the difference
between individual or personal-capacity claims and official-
capacity claims as follows in the case of Kentucky v.
Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114
(1985):
Personal-capacity suits seek to impose personal
liability upon a government official for actions
he takes under color of state law. Official-
capacity suits, in contrast, “generally represent
only another way of pleading an action against
an entity of which an officer is an agent.” As
long as the government entity receives notice
and an opportunity to respond, an official-
capacity suit is, in all respects other than name,
to be treated as a suit against the entity. It is not
a suit against the official personally, for the real
party in interest is the entity. Thus, while an
award of damages against an official in his
personal capacity can be executed only against
the official’s personal assets, a plaintiff seeking
to recover on a damages judgment in an
official-capacity suit must look to the
government entity itself.
(Internal citations omitted); see also Autry, 304 S.W.3d at 364 (“ ‘Official-capacity’ suits
are in essence another way of pleading an action against the entity represented by the
individual defendant.”). Thus, whether plaintiffs’ action under the GTLA proceeded
against Scott and McClellan “in official capacity,” or simply against Campbell County, is
of no consequence to the outcome or analysis, because the “real party in interest,” Doe,
2003 WL 21516220 at *4, and the one liable for damages, if any, would be Campbell
County, which is immune. “[I]n circumstances where [the] GTLA immunizes a
-19-
governmental entity, it follows that an officer is also immune when sued in his official
capacity.” Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008-02744-COA-R3-
CV, 2010 WL 1241550, at *4 (Tenn. Ct. App., filed Mar. 31, 2010). Accordingly, the
trial court’s judgment dismissing McClellan and Scott is affirmed.
C. Claims for Violation of Tennessee Constitution
The trial court granted summary judgment to the defendants on plaintiffs’ state
constitutional claims, stating that “Tennessee appears to not recognize actions for
damages based on violations of the Tennessee Constitution” and citing Bowden Bldg.
Corp. v. Tenn. Real Estate Comm’n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999). In
Bowden, we stated that “Tennessee . . . has not recognized any . . . implied cause of
action for damages based upon violations of the Tennessee Constitution.” Accord, e.g.,
Conley v. Tenn. Farmers Ins. Co., No. W2017-00803-COA-R3-CV, 2018 WL 3561725,
at *7, n.9 (Tenn. Ct. App., filed July 24, 2018); Farrar v. State, No. M2011-02559-COA-
R3-CV, 2012 WL 3893522, at *5 (Tenn. Ct. App., filed Sept. 7, 2012); Crowe, 2010 WL
1241550, at *8.2
Plaintiffs recognize the holding in Bowden, but argue that “this Court is not bound
by Bowden because of a later reported opinion of this court in Mercer v. HCA Health
Services of Tenn., Inc., 87 S.W.3d 500 (Tenn. Ct. App. 2002).” We disagree. Mercer
did not discuss the principle stated in Bowden and so many other opinions, and it did not
recognize an implied cause of action for damages based upon a Tennessee constitutional
violation. We affirm the trial court’s judgment on this issue.
D. Maximum Liability of County under Tenn. Code Ann. § 8-8-303
Campbell County filed a pre-trial motion for partial summary judgment asking the
trial court to determine its maximum potential liability under Tenn. Code Ann. § 8-8-303,
which the court considered as “a request for declaratory judgment on the issue of
maximum liability of a sovereign.” As already stated, Tenn. Code Ann. § 8-8-302 allows
a person who suffers injury resulting from the non-negligent act of a deputy acting “by
virtue of or under color of” the office to sue the county. Section 303(a) limits the extent
of the waiver of sovereign immunity, however, providing, as follows:
2
Our research on Westlaw indicates that there are some 53 other judicial opinions that quote or
cite Bowden for this proposition. We will not cite them all, but note that this amount of authority
supports the statement made in one of the cases that “it is well established that Tennessee does not
recognize an implied private cause of action for damages based upon violation of the Tennessee
Constitution.” Wooley v. Madison County, Tennessee, 209 F. Supp. 2d 836, 844 (W.D. Tenn. 2002).
-20-
The governmental immunity of the county in which the
sheriff serves is waived for purposes of § 8-8-302, but to an
extent not in excess of the amount of the surety bond
executed for that county’s sheriff pursuant to § 8-8-103.
The interpretation of this provision is at issue here. The surety bond limit in this case is
$25,000. Plaintiffs argue that a $25,000 limit should be applied per claimant, for each
deputy tortfeasor, and for each separate act of battery. Campbell County argues that the
trial court correctly held that the county was potentially liable for $25,000 per claimant,
but that limit cannot be multiplied by the number of deputy tortfeasors or the number of
batteries committed against Mr. Siler.
This issue has not been addressed or decided by a Tennessee court. A couple of
courts have described section 302 only in general terms. See Grundy County v. Dyer,
546 S.W.2d 577, 580 (Tenn. 1977) (stating section 302 “waives the immunity of the
county as to such suits but only to the extent of the amount of the sheriff’s surety bond”
and observing that “the act is not a model of clarity and its draftmanship leaves much to
be desired”) (emphasis in original); Currie v. Haywood County, No. W2010-00453-
COA-R3-CV, 2011 WL 826805, at *6 (Tenn. Ct. App., filed Mar. 10, 2011) (“a county’s
liability for purposes of section 8–8–302 is waived only to the extent of the amount of the
sheriff’s surety bond”).
As an initial matter, for the purposes of section 302, we view what happened at the
Siler residence as a single “incident” or “event.” Although it lasted several hours, the
abuse inflicted on Mr. Siler was continuous and unbroken in time. If the deputies had
returned to the Siler residence on multiple occasions to abuse him, for instance, our
analysis would likely be different, because we arguably would be dealing with several
“incidents.” A different statutory maximum liability limit might well apply in such a
situation.
Second, we have no hesitancy holding that the $25,000 limit cannot be applied to
each separate battery inflicted on Mr. Siler. If that were the case, the county’s potential
liability would likely easily run into the millions of dollars. Such a result could not
reflect the intention of the legislature, because it would effectively eviscerate the statute.
As the trial court noted, if plaintiffs’ interpretation is correct, “[i]t is not difficult to
construct a scenario in which the County could be subjected to extreme and virtually
unlimited liability for the acts of multiple officers acting in concert.”
The question of the effect of multiple tortfeasor deputies acting in concert on the
amount of maximum potential liability for the county is admittedly a much closer one.
Does the presence of five deputy defendants, each of whom admitted to committing
-21-
intentional torts against Mr. Siler, mean that the liability is capped at five times $25,000,
or $125,000 total? Or does the $25,000 sheriff’s bond limit cap the amount of liability at
that amount, regardless of the number of deputy tortfeasors? The trial court held the limit
was $25,000, reasoning that
[t]here is no part of Tenn. Code Ann. § 8-8-303(a) which
implies the liability limit amount is per deputy or per injury
and the language is clear and unambiguous. The limiting
language, “but . . . to an extent not in excess of the amount of
the surety bond executed for that county’s sheriff pursuant to
§ 8-8-103,” does not imply that the limit is per perpetrator . . .
It rather establishes a simple numerical limit on the waiver of
liability to a given claimant. The County has waived
sovereign immunity but only to the total dollar amount equal
to a bond compelled by the County and posted by the sheriff.
Plaintiffs’ argument on this point is not illogical or unreasonable. In fact, as the trial
court recognized, an opinion of the Attorney General, Tenn. Op. Atty. Gen. No. 84-121,
1984 WL 186183, at *3, *8, expressed a view in accord with plaintiffs’ position.
However, a reading of that opinion reveals that the Attorney General’s office simply
stated the conclusion that governmental immunity is waived “to the extent of $25,000 as
to each deputy,” without further analysis or citation to authority. Id. at *8.
Although plaintiffs’ position is not without merit, we believe the following well-
established principles expressed by the Supreme Court ultimately carry the day on this
issue. First, “statutes which waive immunity of the governmental entity from suit are to
be construed strictly in favor of the sovereign.” Hughes, 340 S.W.3d at 361 (quoting
McMahon v. United States, 342 U.S. 25, 27, 72 S. Ct. 17, 96 L. Ed. 26 (1951); internal
brackets omitted). Second,
courts will interpret a statute as waiving the State’s sovereign
immunity only if the legislation waives sovereign immunity
“in ‘plain, clear, and unmistakable’ terms.” Mullins, 320
S.W.3d at 283 (quoting Northland Ins. Co. v. State, 33
S.W.3d 727, 731 (Tenn. 2000)). A “waiver of sovereign
immunity must be explicit, not implicit.” Colonial Pipeline
Co. v. Morgan, 263 S.W.3d 827, 853 (Tenn. 2008). In other
words, statutes waiving sovereign immunity must “clearly
and unmistakably” express the General Assembly’s intent to
permit claims against the State. Davidson, 227 S.W.3d at 19
(quoting Scates v. Bd. of Comm'rs of Union City, 196 Tenn.
-22-
274, 265 S.W.2d 563, 565 (1954)). In determining whether a
statute satisfies this standard, we focus “on the actual words
chosen and enacted by the legislature.” Mullins, 320 S.W.3d
at 283. Courts lack authority to abrogate the State’s
sovereign immunity and must avoid inadvertently broadening
the scope of legislation authorizing suits or claims against the
State. Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868, 869
(1956).
Smith v Tenn. Nat’l Guard, 551 S.W.3d 702, 709 (Tenn. 2018). Under these principles,
if a governmental entity’s potential liability under Tenn. Code Ann. § 8-8-303 is the
amount of the sheriff’s surety bond multiplied by the number of deputy tortfeasors in a
given incident, it properly falls to the General Assembly to “clearly and unmistakably”
say so. Id. We affirm the judgment of the trial court on this issue.
E. Denial of Motion for Change of Venue
Plaintiffs argue that the trial court erred in refusing to grant their motion to change
venue out of Campbell County. The pertinent statute, Tenn. Code Ann. § 20-4-201
(2009), provides that “venue may be changed, at any time before trial, upon good cause
shown, as prescribed in this part.” Tenn. Code Ann. § 20-4-202 states that “venue may
be changed by the plaintiff or defendant, or both, but not more than once by each, except
for causes not in existence when the first change was taken.” The procedure for
requesting a change of venue is set forth in Tenn. Code Ann. § 20-4-203 as follows:
The party applying for a change of venue shall make a
statement of facts, in writing, under oath or affirmation, that
the party verily believes that, owing to prejudice, or other
causes then existing, the party cannot have a fair and
impartial trial in the county, or before the general sessions
judge, where the cause is pending, the truth of which
statement shall, in a court of record, be verified and supported
by the oath of at least three (3), and before a general sessions
judge, of one (1) or more, respectable and disinterested
persons.
Following the filing of a properly supported petition, Tenn. Code Ann. § 20-4-204
provides that “[i]f the presiding judge, on due consideration, is of the opinion that the
cause set forth is good, and the truth of the cause set forth is evident and credibly
supported, the presiding judge shall allow the change asked for.”
-23-
In this action, Ms. Siler filed a motion for change of venue3 stating in pertinent
part as follows:
Plaintiff, Jenny Siler, makes oath that due to prejudice and
publicity existing in Campbell County, Tennessee Plaintiffs’
a fair and impartial trial in this County cannot occur [sic].
* * *
The press coverage concerning events in this case has
saturated the Campbell County community;
The Campbell County community is in inalterably [sic]
prejudiced against Plaintiff Jenny Siler because of her
recording of the conduct of the Defendants in this case.
All of the Defendants[’] families live in Campbell County,
Tennessee and families of Defendants have actively retaliated
against Plaintiff Jenny Siler for her participation in the
prosecution of the Defendants;
Defendants McCellan [sic] and Scott are both highly visible
public figures in Campbell County, Tennessee and the
Campbell County community is both persons [sic] prejudiced
in their favor or against their favor and have preconceived
opinions about this case;
3
The motion was filed almost three years after the complaint. On appeal, Campbell County
argues that it was not timely filed, citing Tenn. Gas Transmission Co. v. Oakley, 249 S.W.2d 880, 881
(Tenn. 1952), wherein the Supreme Court stated:
Ordinarily there is no particular set time that a petition for a change of
venue should be filed. It should though be filed at the first opportunity
after knowledge of the facts upon which the petition is based come to
those filing said petition. When this knowledge is shown to have been in
the hands of those seeking a change in venue for some days and weeks
prior to the request thereof, and under the facts of this case, we think that
the petition for a change comes entirely too late.
While we see the merit in the county’s argument, it appears it was not raised in the trial court, and
therefore our ruling on the venue issue is not based on the ground of untimeliness.
-24-
Even if a jury in Campbell County could be seated in this
case, because of the circus like atmosphere that will occur in
Campbell County during a trial of this case those jurors
cannot be sequestered from that atmosphere.4
(Footnote added).
According to plaintiffs’ brief, a full hearing took place before Judge McAfee.
Plaintiffs describe the events of that hearing as follows:
Exhibits consisting of news coverage; census materials; and
witnesses testified as to the saturation of the Campbell
County residents regarding the events and the general
hostility of Campbell County residents toward the Silers for
getting the deputies in trouble and sent to prison.
Blue ribbons had been placed throughout Campbell County in
support of the Defendants although the horrendous acts they
committed recorded on the tape hit national news and they
plead guilty to violations of constitutional rights in federal
court. Evidence was offered that Jenny Siler was asked to
leave places she lived and was turned down employment
because she was being blamed by the community for what
happened to the officers. A journalist testified that he had
covered the events and that in his opinion Jenny Siler could
not get a fair trial in Campbell County. Evidence was offered
that even the Court Clerk had written [a] letter supporting one
of the defendants.
Although the hearing was allegedly recorded, none of this evidence is in the record,
because, according to plaintiffs, “the recording and exhibits were left with the clerk in
Claiborne County but were lost.” There is no indication that plaintiffs made any effort to
reproduce or refile any of the above-described proof. Judge McAfee reserved ruling on
the venue request and then recused himself.
When the change of venue issue resurfaced some three and a half years later, the
trial court denied it, saying that “[i]f prior knowledge of the case by persons in Campbell
4
In their brief, plaintiffs admit that “[t]here were not three . . . verifying the petition, unless Jenny
Siler is counted,” contrary to the requirements of Tenn. Code Ann. § 20-4-203. Plaintiffs also correctly
state that “[t]hat there were only two . . . verifying the petition was never raised by a defendant.”
-25-
County makes it difficult to seat a jury, then the motion may be renewed.” In November
of 2015, more than four years later, the trial court ruled that the venue issue “will not be
reconsidered unless and until the Court is unable to seat a jury and the motion is
subsequently renewed by the Plaintiff[s].” In a pre-trial conference, plaintiffs again
brought up the issue, and the trial court responded as follows:
With all due respect, Mr. Moncier, I think it’s inaccurate to
say you haven’t had a hearing. And this court, whether it’s
Judge Kurtz, or whether it’s Judge McAfee, or whether it’s
me, has at one time or another given you a say on this issue.
Now, apparently, on one of your says, [sic] back about eight
or nine years ago, you had a lot of evidence; newspaper
recordings and newspaper exhibits and maybe recordings and
pictures, maybe, and yellow ribbons and evidence and
petitions and all that. I don’t know what happened to that. I
have never seen that. But some judge, whether it was
McAfee or Kurtz, with this court ruled on all that evidence. I
don’t know where it is now. But that wasn’t the Court’s
responsibility to keep up with that. That would have been
your responsibility to keep up with that. If you were going to
appeal it or reserve it for appeal.
But be that as it may, that was eight or nine years ago. We
are talking about 2016, and what people may or may not
know or may or may not feel. Some of the people that
probably report to jury duty next Wednesday morning may
not have even been out of elementary school when this
happened. They may not even know about what happened.
Also, I have got enough confidence in Campbell County and
those people on that jury that they will tell the truth. And I
will allow you plenty of opportunity to voir dire and explore
to find out whether or not they are irrevocably bent on doing
something for or against any of the defendants. If during this
voir dire we find out we cannot pick a jury in Campbell
County, then I will reconsider.
But this is the last time we are going to hear this. And this
motion, for both reasons, number one; that you can’t pick a
fair jury and, number two; that any juror would be irrevocably
biased against your client because they are a taxpayer in
Campbell County, I have got more faith in the folks of this
-26-
county that they will tell me the truth next Wednesday, and
will tell you the truth, and will tell the lawyers the truth than,
apparently, you do. Therefore, your motion is, once again,
quadruply denied.
“Whether to grant a motion for change of venue rests within the discretion of the
trial court.” State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012); State v. Rogers, 188
S.W.3d 593, 621 (Tenn. 2006) (appendix). In State v. Hoover, 594 S.W.2d 743, 746
(Tenn. Crim. App. 1979), the Court set forth the “[r]elevant factors to be considered in
determining whether to grant a change of venue” as follows:
1. Nature, extent, and timing of pre-trial publicity.
2. Nature of publicity as fair or inflammatory.
3. The particular content of the publicity.
4. The degree to which the publicity complained of has
permeated the area from which the venire is drawn.
5. The degree to which the publicity circulated outside the
area from which the venire is drawn.
6. The time elapsed from the release of the publicity until the
trial.
7. The degree of care exercised in the selection of the jury.
8. The ease or difficulty in selecting the jury.
9. The veniremen’s familiarity with the publicity and its
effect, if any, upon them as shown through their answers on
voir dire.
10. The defendant’s utilization of his preemptory challenges.
11. The defendant’s utilization of challenges for cause.
12. The participation by police or by prosecution in the
release of publicity.
-27-
13. The severity of the offense charged.
14. The absence or presence of threats, demonstrations or
other hostility against the defendant.
15. Size of the area from which the venire is drawn.
16. Affidavits, hearsay or opinion testimony of witnesses.
17. Nature of the verdict returned by the trial jury.
See also Rogers, 188 S.W.3d at 621 (adopting and applying Hoover factors); Sexton, 368
S.W.3d at 387 (same).
With respect to factors 1, 2, 3, 4, 5, and 12, all pertaining to pre-trial publicity,
there is no evidence in the record other than the bare and conclusory few statements in
Jenny Siler’s affidavit. Although, as noted, plaintiffs’ counsel has endeavored to describe
what this evidence, once presented to the trial court but then “lost,” was, we cannot
consider what is not in the technical record. See Levine v. March, 266 S.W.3d 426, 439
(Tenn. Ct. App. 2007) (“Parties have the responsibility to see to it that the record contains
the evidence necessary to support their arguments on appeal”); Church v. Perales, 39
S.W.3d 149, 160 (Tenn. Ct. App. 2000) (“We cannot take judicial knowledge of . . .
testimony, even if parts of it are cited in the briefs, because it is outside the record”).
Similarly, there is no other testimony by any other witness (factor 16), nor proof
regarding “threats, demonstrations, or other hostility” towards a party (factor 14).
Regarding factors 7, 8, 9, 10, and 11, all of which involve the jury selection process, the
trial court was careful and thorough in its attempts to insure that no member of the venire
or jury was unduly biased by pre-trial knowledge or conceptions about the case. Jury
selection and the voir dire process is further discussed in Section IV(G) below. Factor 6,
the “time elapsed from the release of the publicity until the trial,” weighs in favor of
denying change of venue. As the trial court observed, a very long time ‒ more than
twelve years ‒ elapsed between the incident and the trial.
As the Supreme Court has stated,
in order to obtain relief on a claim that the trial court
improperly denied a motion for a change of venue, a
“defendant must demonstrate that the jurors who actually sat
were biased or prejudiced against him.” Rogers, 188 S.W.3d
at 622 (appendix) (citing State v. Evans, 838 S.W.2d 185,
192 (Tenn.1992)). “The mere fact that jurors have been
-28-
exposed to pretrial publicity will not warrant a change of
venue.” Rogers, 188 S.W.3d at 621 (appendix) (citing State
v. Mann, 959 S.W.2d 503, 531–32 (Tenn.1997)).
“[P]rejudice will not be presumed on the mere showing of
extensive pretrial publicity.” Rogers, 188 S.W.3d at 621
(appendix) (citing State v. Stapleton, 638 S.W.2d 850, 856
(Tenn.Crim.App.1982)).
Sexton, 368 S.W.3d at 387; State v. Davidson, 121 S.W.3d 600, 612 (Tenn. 2003).
Plaintiffs have not shown that the jurors were actually prejudiced against them, nor have
they shown the “clear abuse of discretion” required to reverse a trial court’s venue
decision. Id. We affirm the trial court’s denial of a change of venue.
F. Denial of Motion to Disqualify All Campbell County Taxpayers
Plaintiffs argue that the trial court erred in refusing to disqualify all Campbell
County taxpayers under Tenn. Code Ann. § 22-1-104, which provides that “[n]o person
may act as a juror in any case in which the person is interested.” They state that this is a
question of first impression in Tennessee. The trial court reasoned that if all taxpayers
were disqualified, “it would be virtually impossible to have a jury venire who is not some
kind of taxpayer in Campbell County” and “it would be impossible to pick a jury in
Campbell County.” Plaintiffs also asked members of the venire if they were Campbell
County taxpayers and unsuccessfully tried to challenge them for cause on the ground that
they had a financial interest in the outcome of the case. The sole authority plaintiffs cite
in support of their argument is Parks v. Alexander, 608 S.W.2d 881 (Tenn. Ct. App.
1980), which dealt solely with the question of a taxpayer’s standing to bring a lawsuit,
and has no bearing on the issue of juror disqualification.
Although no Tennessee court appears to have addressed this issue, we note that
courts in other jurisdictions have almost universally rejected this argument, in the
absence of some other factor additional to the simple assertion of taxpayer status. See
Wanda Ellen Wakefield, Annotation, Change of Venue as Justified by Fact that Large
Number of Inhabitants of Local Jurisdictions Have Interest Adverse to Party to State
Civil Action, 10 A.L.R. 4th 1046 (1981) and cases collected and cited therein. As many of
these opinions have noted, to accept plaintiffs’ argument would be to assume that no fair
trial can be conducted in a county or municipality where the governmental agency is a
party, among other things. We decline to adopt this as a principle of law in Tennessee.
We affirm the trial court’s judgment on this issue.
-29-
G. Right to Examine Prospective Jurors
Plaintiffs argue that the trial court denied them their “statutory absolute right” to a
meaningful opportunity to examine members of the venire to “establish challenges for
cause and to make meaningful decisions as to the exercise of their peremptory
challenges.” They cite Tenn. Code Ann. § 22-3-101 (2009), which provides that
[p]arties in civil and criminal cases or their attorneys shall
have an absolute right to examine prospective jurors in such
cases, notwithstanding any rule of procedure or practice of
court to the contrary,
and Tenn. R. Civ. P. 47.01, which states,
[t]he court shall permit the parties or their attorneys to
conduct the examination. . . . The court, upon motion of a
party or on its own motion, may direct that any portion of the
questioning of a prospective juror be conducted out of the
presence of the tentatively selected jurors and other
prospective jurors.
The trial court refused plaintiffs’ request to provide a written questionnaire to the
prospective jurors. The court also denied their request to individually question certain
members, out of the presence of the presence of the rest of the venire, about their views
of, and opinions about, the case.
In Sexton, the Supreme Court provided the following pertinent principles:
All defendants are entitled to a trial by a jury free of “bias or
partiality toward one side or the other of the litigation.” State
v. Schmeiderer, 319 S.W.3d 607, 624 (Tenn. 2010)
(appendix). To achieve this goal of fair and impartial juries,
voir dire permits questioning by the court and counsel so that
certain potential jurors can be properly challenged and
stricken. See State v. Akins, 867 S.W.2d 350, 354
(Tenn.Crim.App. 1993). Trial courts are vested with
considerable discretion in conducting the voir dire process.
Schmeiderer, 319 S.W.3d at 625 (appendix); State v. Howell,
868 S.W.2d 238, 247 (Tenn. 1993).
368 S.W.3d at 390.
-30-
In this case, jury selection took the entire first day of trial. The potential jurors
were asked if they had any preconceived opinions about the case, and those that did were
asked if they could lay those opinions aside and decide the case solely on the facts
established by the evidence. The trial court instructed the venire not to share their
opinions in front of the other potential jurors, and further instructed them as follows:
We all walk in here with certain opinions about certain things
and that’s fine. That’s life.
The question is can you come in here and have a clean slate
so far as what the facts are? That is, can you make sure that
you follow the instructions of the Court, and can you make
your decision based on the facts that you hear and not on
some kind of previous opinion or notion that you may have
heard before Court? Can you come in here and do that?
Everybody.
Is that ‒ can you come in here and follow the instructions of
this Court and can you be a juror like you would want to have
sitting with a blank slate free from any prejudices or free from
any opinions like you would want to have sitting if your
brother or sister was either a plaintiff or a defendant? Can
you do that? Let the record reflect that all ten jurors
answered that last question in the affirmative.
Plaintiffs’ attempts to challenge potential jurors for cause on the ground that they
were taxpayers were routinely denied. Plaintiffs used all six of their peremptory
challenges on potential jurors who said that they had an opinion about the case, but
affirmed that they could set it aside and follow the law as set forth above. Two members
of the venire said generally that they believed it would be difficult or unlikely to set aside
their preconceived opinions. The trial court granted plaintiffs’ requests to strike them for
cause.
According to the Sexton Court,
As stated, the manner in which voir dire is conducted rests
within the sound discretion of the trial court. Howell, 868
S.W.2d at 247. The goal of voir dire is to empanel a jury that
is competent, unbiased, and impartial. State v. Hugueley,
185 S.W.3d 356, 390 (Tenn. 2006) (appendix); State v.
-31-
Cazes, 875 S.W.2d 253, 262 (Tenn. 1994); Howell, 868
S.W.2d at 247. A juror’s prior knowledge about a case does
not automatically result in constitutional error. Murphy, 421
U.S. at 799–800, 95 S. Ct. 2031; Hugueley, 185 S.W.3d at
390 (appendix). The fundamental inquiry “in determining a
juror’s acceptability is whether his exposure is to matters . . .
‘so prejudicial as to create a substantial risk that his or her
judgment will be affected.’ ” Hugueley, 185 S.W.3d at 390
(appendix) (quoting Tenn. R.Crim. P. 24(c)(2)(B)). A trial
court’s determination as to the impartiality of a prospective
juror can be overturned only if there has been an abuse of
discretion. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn.
Crim. App. 1989). Appellate courts must uphold a trial
court’s ruling with respect to the impartiality of prospective
jurors absent a finding of manifest error. Patton v. Yount, 467
U.S. 1025, 1031, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984);
Hugueley, 185 S.W.3d at 390 (appendix).
* * *
Because mere exposure to extrajudicial information does not
automatically disqualify prospective jurors, trial courts must
assess whether they can serve fairly and impartially given
their knowledge of outside information. See Hugueley, 185
S.W.3d at 390 (appendix). In making this determination, the
trial court must assess the level of potential prejudice arising
from the extrajudicial information, as well as the believability
of the juror’s promise to remain impartial. See State v.
Shepherd, 862 S.W.2d 557, 569 (Tenn. Crim. App. 1992).
Given the wide-ranging availability of information in today’s
world, it is “quite likely jurors have some level of pre-trial
exposure to the facts and issues involved in a case.”
Hugueley, 185 S.W.3d at 390 (appendix).
368 S.W.3d at 395-96 (ellipses in original); accord Rogers, 188 S.W.3d at 621 (appendix)
(“Jurors may possess knowledge of the facts of the case and may still be qualified to
serve on the panel”).
Plaintiffs rely on the following statement made by the Supreme Court in 1902:
-32-
It is well settled that, if a person is disqualified as a juror, he
should not be accepted because he states that, notwithstanding
his opinion, he will render an impartial verdict. Rice v. State,
1 Yer. 432. When disqualified, he cannot render himself
“impartial” by expressing the belief that he can render a fair
and impartial verdict according to the law and the proof,
notwithstanding the opinion in his mind.
Turner v. State, 69 S.W. 774, 779 (Tenn. 1902). The jury selection process in this case
did not run afoul of this principle, however. The jurors selected were never
“disqualified.” It is apparent that the trial court carefully assessed the venire members in
the manner prescribed by Sexton. In McDonald v. Shea, No. W2010–02317–COA–R3–
CV, 2012 WL 504510, at *20 (Tenn. Ct. App., filed Feb. 16, 2012), we observed that
The trial court may, within its discretion, dismiss a juror for
cause even if the juror maintains that he or she will be able to
set aside the circumstance raising a question as to the juror’s
impartiality.
(Emphasis added; citing Turner, 69 S.W. at 779). Plaintiffs have cited no authority
suggesting that their “absolute right” granted by Tenn. Code Ann. § 22-3-101
encompasses an absolute right to have the venire answer written interrogatories, or to
question the potential jurors individually and privately. These are matters left to the
sound discretion of the trial court. In summary, we find no abuse of the trial court’s
discretion in its decisions made during the jury selection process.
H. Timing of Trial Court’s Instruction that Defendants Admitted Liability
Plaintiffs argue that they “were denied their right to a meaningful preliminary
statement, voir dire and opening statement by [the trial court] failing to instruct [the] jury
that defendants had admitted liability and the jury’s duties were only to establish
damages.” This argument is predicated on the assertion in their brief that “[d]uring a
chambers conference before jury selection, Senior Judge Summers was informed that all
defendants would admit liability on each claim pleaded by Lester, Jenny and Dakota
Siler.” The transcript reveals that this statement is inaccurate. The chambers conference
took place after jury selection, not before. The trial court informed the jury that all
defendants had admitted liability at the earliest reasonable time it could have. Even if it
had not, it is difficult to see how, if this would be error, it would be prejudicial or
reversible error. This issue is without merit.
-33-
J. Refusal to Allow Late Discovery5
Plaintiffs argue that the trial court erred “in denying Lester Siler’s motion to
provide discovery of psychical [sic] and medical records and take depositions for proof
from psychiatric and medical experts.” There is very little in the record pertaining to this
issue. If the plaintiffs made such a motion, it is not included in the record. Nor is the
trial court’s order ruling on it. In their brief, plaintiffs state,
The recording of the first hearing before Senior Judge
Summers on July 20, 2016, stopped before the hearing was
completed hearing [sic]. Accordingly, Counsel cannot
present the account of what transpired regarding the Silers’
request to provide discovery of Lester Siler’s psychiatric and
medical records after a prior discovery deadline created when
Senior Judge Summers was designated.
At trial, defendant Franklin, acting pro se, asked Mr. Siler about his psychiatric records
during cross-examination. This triggered a bench conference at which the following
colloquy occurred:
PLAINTIFF’S COUNSEL: [A]fter we appeared before you
on June, July 25th or June 25th, and I notified you that I had
received information that he had been treated and received
psychiatric care for post-traumatic stress syndrome while he
was in prison, I recall you telling me that the time has come
and passed for that.
However, I issued a subpoena, went through the whole
process with regard to getting those records from Davidson
County. And, in fact, through the Commissioner and a
subpoena, I was able to obtain the psychiatric records,
approximately 1,750 pages, and I sent that to all the
Defendants in this case.
* * *
5
In order to prevent confusion between the letters and the roman numerals used in this opinion,
we have skipped the letter “I.”
-34-
THE COURT: But basically you’re talking about records that
you ‒ were you attempting to introduce them into evidence?
PLAINTIFF’S COUNSEL: I was until you ‒ I wanted to until
you ruled that it was too late to do that and I could not take a
deposition for proof or ‒
THE COURT: That rule stands.
PLAINTIFF’S COUNSEL: I understand that, but my point is
that I’ve got those records, and I presented those records to all
the Defendants because I knew what he was going to testify
to and he was going to testify to the psychiatric. They have
them. I sent them to them.
* * *
DEFENSE COUNSEL: He’s testifying to 1,750 medical
records. He’s backdooring his way into trying to say that
these psychiatric records were solely related to this incident
and they are not, and that is completely improper. He could
have called a psychologist, psychiatrist or anybody at any
time over these 12 years and we could have gone into this and
cross-examined.
THE COURT: I agree. Your question ‒ the question’s
improper. Do not repeat, do not ask any more questions
about psychiatric records. If you had wanted to call
somebody about psychiatric records, if you were to call
witnesses, you had that opportunity.
This is the only information in the record that sheds light upon the discovery ruling issue,
which plaintiffs characterize as “failing to allow late discovery.”
“Because decisions regarding pretrial discovery are inherently discretionary, they
are reviewed using the ‘abuse of discretion’ standard of review.” Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010); Funk v. Scripps Media, Inc., 570 S.W.3d
205, 210 (Tenn. 2019); West v. Schofield, 460 S.W.3d 113, 132 (Tenn. 2015) (“When
there is a pretrial discovery dispute, the trial court is afforded discretionary authority”).
-35-
As a result of this “broad discretion over discovery matters, . . . on appeal, that discretion
will not be disturbed absent an affirmative showing that the trial court abused its
discretion.” Parks v. Mid-Atlantic Fin. Co., 343 S.W.3d 792, 802 (Tenn. Ct. App.
2011); Artist Bldg. Partners v. Auto-Owners Mut. Ins. Co., 435 S.W.3d 202, 220 (Tenn.
Ct. App. 2013) (“The decision of the trial court in discovery matters will not be reversed
on appeal unless a clear abuse of discretion is demonstrated.”) (quoting Benton v.
Snyder, 825 S.W.2d 409, 416 (Tenn. 1992)). Plaintiffs have not made an affirmative
showing that the trial court clearly abused its discretion. We affirm the trial court’s
judgment on this issue.
K. Exclusion of Evidence
As already stated, all defendants admitted liability for all claims by all three
plaintiffs before presentation of evidence began. Consequently, the only issue left to
resolve by the jury was the amount of damages to be awarded each plaintiff. Plaintiffs
attempted to introduce portions of each individual defendant’s deposition. Some of what
plaintiffs attempted to get in was, by their own admission in a bench conference, an effort
to get before the jury evidence supporting their argument that Campbell County failed to
properly train its deputy sheriffs. The trial court excluded this evidence because it was
irrelevant to the question of damages, and cumulative to other proof that was admitted.
The admitted evidence included the playing of the gruesome and chilling audiotape
recording of the incident in its entirety. Mr. Siler was also given free rein to describe
what happened to him during the incident. Generally speaking, plaintiffs were provided a
full and fair opportunity to present their evidence pertinent to the issue of damages for the
admitted torts committed against them.
“The trial court’s decision to admit or exclude evidence will be overturned on
appeal only where there is an abuse of discretion.” Mercer v. Vanderbilt Univ., 134
S.W.3d 121, 131 (Tenn. 2004). Additionally, even if we were to find error, which we do
not, “[t]he erroneous exclusion of evidence will not require reversal of the judgment if
the evidence would not have affected the outcome of the trial even if it had been
admitted.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). We
do not find that the trial court abused its discretion in excluding the proffered evidence.
L. Evidence of Defendants’ Punishment and Restitution in Federal Criminal Court
Plaintiffs requested the trial court to take judicial notice of the individual
defendants’ federal indictments, guilty pleas and stipulations of fact. Over plaintiffs’
objection, Campbell County asked the trial court to also include the judgments reflecting
their sentences and restitution ordered, “as a matter of just completeness, it’s been before
-36-
the jury that they were convicted, the specifics of how long they served, that kind of
thing.” The trial court allowed the judgments to be entered, stating,
I think what is only fair is to complete the circle and just go
ahead and give the judgment, particularly since part of the
judgment is as to restitution.
The Court will instruct and has already instructed that you are
to have no sympathy, which includes if you spend time in the
federal or the state penitentiary for committing an act, then
that does not compensate for damages for the civil act that
you might also concomitantly commit.
We agree with plaintiffs that the evidence of defendants’ punishment in federal court was
not relevant to the issue of damages. However, the trial court provided a curative
instruction to the jury stating exactly that
[p]rior punishment of any Defendant has no bearing on your
award of compensatory damages to these Plaintiffs. You
shall not consider prior punishment in any manner when
considering an award of compensatory damages in a civil
case.
Plaintiffs admit in their brief that “the jury was correctly instructed that punishment in
federal court could not be considered.” Any error in the admission of irrelevant evidence
was cured by the correct jury instruction.
M. Trial Court’s Comments on the Evidence
Plaintiffs contend that by making certain comments during the trial, the court
violated Article VI, Section 9, of the Tennessee Constitution, which provides that “[t]he
Judges shall not charge juries with respect to matters of fact, but may state the testimony
and declare the law.” The Supreme Court has observed that
this Section was put in our Constitution to prohibit a practice
of “summing up” as was practiced in Great Britain. This
“summing up” was telling the jury not what was deposed to
but what was proved. The Constitution directly forbids such
a practice on the part of the trial court. Under this provision
of our Constitution it is error for the trial judge, in his charge
-37-
to the jury, to assume any fact as established, however clear it
may appear from the evidence.
Hooper v. State, 325 S.W.2d 561, 563-64 (Tenn. 1959). More recently, the Supreme
Court has provided this guidance:
Judges are prohibited from commenting upon the credibility
of witnesses or upon the evidence in a case. See Tenn. Const.
art. VI, § 9. . . Therefore, trial judges must be “very careful
not to give the jury any impression as to his [or her] feelings
or to make any statement which might reflect upon the weight
or credibility of evidence or which might sway the jury.”
State v. Suttles, 767 S.W.2d 403, 407 (Tenn. 1989); see also
Kanbi v. Sousa, 26 S.W.3d 495, 498–99 (Tenn. Ct. App.
2000). These restrictions apply to comments made when
ruling on an objection. Loeffler v. Kjellgren, 884 S.W.2d
463, 474 (Tenn. Ct. App. 1994).
Even though judges need to be circumspect in this area, not
every comment on the evidence made by a judge is grounds
for a new trial. Kanbi, 26 S.W.3d at 499. We must consider
the trial court’s comment in the overall context of the case to
determine whether the comment was prejudicial. State v.
Caughron, 855 S.W.2d 526, 536-37 (Tenn. 1993).
Mercer, 134 S.W.3d at 134 (brackets in original).
Plaintiffs state that at some point, the trial court said, “You’ve made your point.
Move on.” In our review of the 938-page transcript, we discovered the following
discussion that occurred out of the jury’s presence:
PLAINTIFFS’ COUNSEL: Specifically, what I’m referring
to is when you would speak after Mr. Knight had ‒ through
his cross-examination, and say, “I believe you've made your
point.” That is simply commenting and making comment on
the evidence because you agree that he had made the point
that he was doing, and you have approved of the point that he
was trying to make in that.
THE COURT: No, all I was ‒ I do remember what you say.
As a matter of fact, as a matter of fact, when I made that
-38-
comment about ‒ I think the comment was, “You’ve made
your picture,” not point.
PLAINTIFFS’ COUNSEL: That’s one of them, yes.
THE COURT: “You’ve made your picture,” not your point. I
was not agreeing that the point was well taken or that the
point or the picture was true. What I was trying to do is to
move him along so he would go on to something else.
We are of the view that no reasonable juror would interpret these two sentences uttered
by the trial court as indicating that the court agreed with the point being made and was
somehow making a ruling on a matter of fact. This argument is without merit.
N. Jury Instructions
Plaintiffs cite Ladd ex rel. Ladd v. Honda Motor Co., 939 S.W.2d 83 (Tenn. Ct.
App. 1996), for support of their proposition that the trial court committed reversible error
by sending its written jury instructions to the jury room. In Ladd, this Court stated,
[p]roviding the jury with a written copy of the instructions
can be quite helpful in civil cases. However, unlike the
procedure in felony cases, see Tenn. R. Crim. P. 30(c), juries
in civil cases are not entitled to take a written copy of the trial
court’s instructions into the jury room. While trial courts
must, on request, reduce their jury charge to writing for the
benefit of the attorneys in civil cases, Tenn. Code Ann. § 20–
9–501 (1994), they are not required to provide a written copy
of their instructions to the jury. In re Estate of Depriest, 733
S.W.2d 74, 77 (Tenn. Ct. App. 1986); Smith v. Steele, 44
Tenn. App. 238, 251, 313 S.W.2d 495, 501 (1956).
The Tennessee Supreme Court entered an order in 1991
proposing an amendment to Tenn. R. Civ. P. 51 to require
that juries in civil cases be provided with a written copy of
the instructions. The Court withdrew the proposed rule one
month later without explanation. Thus, the decision to
provide the jury with a written copy of the instructions in a
civil case remains discretionary with the trial court.
-39-
Id. at 104 (internal citations omitted). Apparently, plaintiffs interpret this statement as
establishing “the state of the law in Tennessee prohibiting a trial judge in civil cases
sending a copy of written instructions to the jury.” It clearly does not. Ladd states that
sending written instructions to the jury, while not required, is within the trial court’s
discretion. It certainly does not stand for the proposition that doing so amounts to
reversible error.
Plaintiffs take issue with the following jury instruction:
It’s your duty to find the facts from all the evidence in the
case. After you determine the facts, you must apply the law
that’s given to you whether you agree with it or not.
Plaintiffs argue that “[t]his charge to the jury was meaningless where, during the trial, the
Silers were not permitted to offer evidence of the facts in the case.” As can be seen, this
is nothing more than an attempt to repackage their earlier argument that the trial court
erred in excluding the evidence they attempted to get in.
Plaintiffs argue that the following instruction was misleading:
All Defendants, all six of them, have admitted liability to all
Plaintiffs, all three of them, as to all claims. The parties are
bound by this agreement. And in your consideration of the
evidence you are to treat these facts as proven.
Their argument and reasoning is contained in this cryptic sentence in their brief: “This
instruction was misleading to the jury by stating the facts of what each Defendant did to
each Plaintiff, was somehow established by the Defendants admitting liability to the legal
term used to describe the Plaintiffs[’] claims.” We are not sure what to make of this
argument, but we do note that in its jury instructions, the trial court went through,
defined, and explained every element of every legal claim, stating,
although these have already been proven, I think it’s only fair
to give you the elements of the different claims that have been
made. Remember, you don’t have to decide whether these
claims such as assault and battery have been made, but I think
it's only fair for me to describe what assault and battery is,
what trespass is, so on and so forth, so you will understand
what the law says about that, and these are in your
instructions.
-40-
“Under Tennessee law the jury charge will be viewed in its entirety and considered as a
whole in order to determine whether the trial judge committed prejudicial error.” Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992). We have done this,
considering plaintiffs’ arguments that the instructions were confusing or misleading. We
disagree and find no error in the jury instructions given by the trial court.
O. Reasonableness of Jury Verdicts
Plaintiffs argue that the trial court erred in refusing to hold that the amounts of the
jury’s verdicts were below the range of reasonableness, and denying their motion for a
new trial on that ground. Regarding the $25,000 award against Campbell County, in
Section IV(D) above, we have already held that amount to be the maximum amount
recoverable under Tenn. Code Ann. § 8-8-303. Because Campbell County retains
immunity from judgments above that limit, no argument Mr. Siler makes regarding the
reasonableness of the $25,000 verdict would avail him.
The jury awarded Mr. Siler $20,000 against three of the individual defendants, and
$15,000 against the other two. The trial court approved these verdicts as reasonable and
supported by the evidence. As stated by the Supreme Court,
To determine whether a verdict is within the range of
reasonableness, the trial judge must consider the credible
proof at trial regarding the nature and extent of the injuries,
pain and suffering, economic losses including past and future
medical bills, lost wages and loss of earning capacity, age,
and life expectancy.
Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 421 (Tenn. 2013). Moreover,
when a trial court approves a verdict in its capacity as thirteenth juror,
the Court of Appeals’ review of the verdict . . . is limited to a
review of the record to determine whether the verdict is
supported by material evidence. Poole v. Kroger Co., 604
S.W.2d 52, 54 (Tenn. 1980); see also Thrailkill, 879 S.W.2d
at 841; Ellis, 603 S.W.2d at 129. Material evidence is
“evidence material to the question in controversy, which must
necessarily enter into the consideration of the controversy and
by itself, or in connection with the other evidence, be
determinative of the case.” Knoxville Traction Co. v. Brown,
115 Tenn. 323, 331, 89 S.W. 319, 321 (1905). An appellate
court is required to take “the strongest legitimate view of all
-41-
the evidence in favor of the verdict, assume the truth of all
evidence that supports the verdict, allowing all reasonable
inferences to sustain the verdict, and to discard all
countervailing evidence.” Akers v. Prime Succession of
Tenn., Inc., 387 S.W.3d 495, 501–02 (Tenn. 2012) (quoting
Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833
(Tenn. 2010)). The material evidence analysis is very
deferential to the award by the jury and the judgment of the
trial court when it affirms the verdict as the thirteenth juror.
See Ellis, 603 S.W.2d at 129 (“[W]hen the trial judge has
approved the verdict, the review in the Court of Appeals is
subject to the rule that if there is any material evidence to
support the award, it should not be disturbed.” (emphasis
added)). “It matters not a whit where the weight or
preponderance of the evidence lies under a material evidence
review.” Hohenberg Bros. Co. v. Mo. Pac. R.R. Co., 586
S.W.2d 117, 119–20 (Tenn. Ct. App. 1979). “It is simply a
search of the record to ascertain if material evidence is
present to support the verdict.” Id. Because the material
evidence standard lies at the foundation of the right to trial by
jury, if there is material evidence to support a jury verdict, the
appellate courts must affirm it.
Id. at 422-23.
The defendants’ conduct in this case was extremely egregious; of that, there is no
doubt or contention. Mr. Siler testified at some length regarding the injuries he suffered
from the beating and torture at their hands. He did not offer any proof of medical
treatment or expenses of any kind. No medical expert testimony was offered. At the
time of the incident, his income consisted of $550 per month disability payments, and his
revenues from illegally selling prescription drugs. “It has long been recognized that
‘[t]he amount of the verdict is primarily for the jury to determine, and next to the jury the
most competent person to pass upon the matter is the judge who presided at the trial and
heard the evidence.’ ” Borne v. Celadon Trucking Servs., 532 S.W.3d 274, 309 (Tenn.
2017) (quoting Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38, 39 (1928)). Affording
the jury the deference it is due in making the factual determination of damages, we
cannot say that the verdicts were so far below the range of reasonableness that an additur
or new trial should have been granted.
Regarding the verdict of zero to Jenny Siler, the trial court held that
-42-
Jenny Siler testified at length during the trial. Plaintiffs’
counsel was free to present any witnesses, or proof, of
specific, consequential, or incidental damages, but instead
relied on repeated attempts to demonstrate the egregiousness
of the incidents leading to liability. The Court reminded
plaintiffs’ counsel multiple times, on the record, that liability
was conceded; and the remaining case was about the amount
of damages only.
No proof or testimony of actual monetary damages was
presented. No proof of medical costs, lost wages, or of any
consequential or incidental costs was presented to the jury.
No expert testimony was presented regarding any
psychological or physiological harm, or costs related thereto,
caused by any defendant, to Ms. Siler.
After deliberation, the jury awarded no monetary damages,
from any defendant, to Jenny Siler. It is the plaintiff’s
responsibility to present proof sufficient to persuade the jury
to award monetary damages.
The Court cannot create a result that does not logically flow
from the proof presented at trial simply because the verdict of
the jury was not to the liking of a party.
We do not have much to add to this analysis. The trial court’s summary of Ms. Siler’s
proof, or lack thereof, is accurate. She did not witness the abuse of Mr. Siler. She did
not allege any resultant physical injury of her own. At the time of trial, Mr. Siler had
spent about ten of the twelve years since the incident incarcerated, and though they were
still legally married, the Silers had long since gone separate ways. Ms. Siler admitted
that she had been involved in several romantic relationships in the ensuing years.
Regarding Dakota Siler, who was eight years old at the time of the incident, the
trial court made similar findings:
Dakota Siler also testified during the case. The Court found
him to be a credible witness. The Court particularly notes
that, despite many drug related difficulties within his family
during his younger years, it appears that Dakota Siler has
overcome these challenges and grown into a promising young
man. He is presently serving our country in the U.S. Army.
-43-
Counsel for plaintiff was free to present any witnesses or
proof of specific, consequential, or incidental damages. No
evidence of even minimal monetary damages was presented.
No proof of medical costs, lost wages, or other incidental
costs was presented to the jury. No testimony was presented
regarding any physical or psychological harm, caused by any
defendant, to Dakota Siler. No proof regarding any amount
of monetary damages was presented.
After deliberation, the jury awarded no monetary damages,
from any defendant, to Dakota Siler. Based upon a dearth of
proof of any compensable damages to Dakota Siler, the Court
agrees with the determination of the jury.
Again, the determination of damages is the province of the jury. When the trial court
approves the verdict, we cannot lightly invade this province and disturb the jury’s
determination. We defer to the jury verdicts and affirm the trial court’s judgment.
P. Refusal to Award Attorney’s Fees to Plaintiffs
Plaintiffs requested an award of attorney’s fees, which the trial court denied. As
grounds for their request, plaintiffs relied upon 42 U.S.C. § 1988, which provides that
[i]n any action or proceeding to enforce a provision of section
. . . 1983 . . . of this title, . . . the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.
(Emphasis added.) 42 U.S.C. § 1983 provides, in pertinent part, that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen . . . to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress[.]
The complaint does not state a claim for violation of federal constitutional rights,
nor does it mention section 1988 or 1983. The trial court stated that it “did not hear any
-44-
42 U.S.C. § 1983 issues. Such issues were specifically dismissed by the federal court
prior to trial.” Plaintiffs cite Bloomingdale’s by Mail Ltd. v. Huddleston, 848 S.W.2d 52
(Tenn. 1992) for the proposition that these omissions are not necessarily fatal to their
claim for attorney’s fees. The Bloomingdale’s Court stated,
a state court that has subject matter jurisdiction may not deny
a party to such proceeding its federal rights. These Federal
rights include rights under the Commerce Clause of the U.S.
Constitution. If the party enforcing such rights is successful,
that party is entitled to receive an award of attorneys’ fees
under 42 U.S.C. § 1988, even though that party did not
specifically plead or rely on 42 U.S.C. § 1983 in prosecuting
its claim.
The provision that governs the award of attorneys’ fees in this
case is 42 U.S.C. § 1988. Under that provision, “the court, in
its discretion, may allow the prevailing party other than the
United States, a reasonable attorneys’ fees as part of the
costs.” Even though the Federal statute provides that a court
had discretion in awarding attorneys’ fees under 42 U.S.C. §
1988, the cases interpreting that statute state that the
prevailing party should receive an award, unless there are
“special circumstances” that would render an award unjust.
Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939, 103
L. Ed. 2d 67 (1989); Monroe v. County Board of Education,
583 F.2d 263 (6th Cir.,1978).
Id. at 56 (emphasis added).
Plaintiffs specifically brought a 42 U.S.C. § 1983 action against defendants in
federal court. As noted, the federal court granted Campbell County, McClellan, and
Scott summary judgment on these claims, Siler v. Webber, 2009 WL 10680020, at *28,
and the decision was affirmed on appeal. Siler v. Webber, 443 Fed. Appx. 50, 51 (6th
Cir. 2011). The record contains an order entered by the United States District Court for
the Eastern District of Tennessee on July 31, 2012, which recognizes that plaintiffs were
granted a voluntary nonsuit against the other individual defendants. The order grants the
motions of defendants Franklin, Webber, and Monday to dismiss with prejudice the re-
filed 42 U.S.C. § 1983 claims against them on the ground that the applicable statute of
limitations had expired. Thus, in this case, plaintiffs have not demonstrated that they are
“prevailing parties” in their § 1983 claims against any defendant. Under these particular
-45-
circumstances, we do not believe the trial court abused its discretion in declining to order
an award of attorney’s fees to plaintiffs.
Q. Western Surety Insurance Company, Issuer of Surety Bonds
Western Surety issued surety bonds for the Campbell County Sheriff and the
deputies. On January 19, 2006, the trial court entered an order reflecting the parties’
agreement that Western Surety should be voluntarily dismissed because it was not a
necessary party to the action. On September 27, 2013, plaintiffs filed a motion to amend
their complaint and join Western Surety as an interested party. The trial court denied the
motion. After trial, on December 2, 2016, plaintiffs again unsuccessfully tried to amend
their complaint to add Western Surety. Plaintiffs argue that the trial court erred in
denying their attempts to add Western Surety as a party. Western Surety apparently does
not deny its responsibility under the terms of the surety bonds issued, but argues that it
was not a necessary party and that plaintiffs’ attempts to reinstate it as a party, after
agreeing to its voluntary dismissal, were untimely.
Western Surety argues that plaintiffs’ attempts to add it were made long after the
one year allowed by the saving statute, Tenn. Code Ann. § 28-1-105(a)(2017), which
provides,
If the action is commenced within the time limited by a rule
or statute of limitation, but the judgment or decree is rendered
against the plaintiff upon any ground not concluding the
plaintiff’s right of action, or where the judgment or decree is
rendered in favor of the plaintiff, and is arrested, or reversed
on appeal, the plaintiff, . . . may, from time to time,
commence a new action within one (1) year after the reversal
or arrest.
Western Surety also relies on Frazier v. East Tenn. Baptist Hosp., Inc., 55 S.W.3d 925,
930 (Tenn. 2001), which held that
a plaintiff, having timely commenced an action, may take a
voluntary dismissal without prejudice (subject to the
restrictions of Rule 41.01 and Tenn. Code Ann. § 28–1–105)
with respect to one or all defendants in the action, and may
commence a new action against the same defendant or
defendants by filing a motion to amend and a proposed
amended complaint within one year of the order granting the
voluntary dismissal.
-46-
In this case, plaintiffs waited over seven years to file their first motion to amend. We
agree with Western Surety that this was too late.
Moreover, Western Surety’s potential role in this case is only as a surety pursuant
to Tenn. Code Ann. § 8-19-30, which states that
Every official bond executed under this code is obligatory on
the principal and sureties thereon:
(1) For any breach of the condition during the time the officer
continues in office or in the discharge of any of the duties of
such office;
(2) For the faithful discharge of the duties which may be
required of such officer by any law passed subsequently to
the execution of the bond, although no such condition is
expressed therein;
(3) For the use and benefit of every person who is injured, as
well by any wrongful act committed under color of such
officer’s office as by the failure to perform, or the improper
or neglectful performance, of the duties imposed by law.
In Ledbetter v. Knox County, No. 3:05-CV-248, 2006 WL 354200, at *2 (E.D. Tenn.,
filed Feb. 15, 2006), the federal district court addressed a similar situation and dismissed
a surety insurance company, stating that
Defendant Hartford Insurance Company contends that
plaintiff has made no allegations of wrongful conduct against
it, except that it is a surety on defendant Hutchison’s secured
bond pursuant to Tennessee Code Annotated §§ 8-8-103, 8-
19-301, and 8-19-302. Defendant Hartford Insurance
Company also contends that nothing in Tennessee law
authorizes a separate cause of action on the official bond. . . .
The Court has carefully reviewed plaintiff’s complaint and
can find no allegations against defendant Hartford Insurance
Company, except those contained in paragraphs 9, 66, and 68.
These paragraphs do not allege defendant engaged in
wrongful conduct. They only allege liability based upon the
-47-
bond. Tennessee law does not create a separate cause of
liability based upon the sheriff’s bond. See Waters v. Bates,
[227] F.Supp. [462,] 465-66 (E.D. Tenn. 1964). Thus,
plaintiff has failed to state a claim against defendant Hartford
Insurance Company for which relief may be granted.
Under the authorities cited above, we hold that the trial court did not err in refusing to
allow plaintiffs to amend their complaint to add Western Surety as a party defendant.
R. Request for Findings Pertinent to a Bankruptcy Ruling
Finally, plaintiffs’ last argument is that the trial court erred in denying their
request to make findings allegedly pertinent to a potential bankruptcy ruling.
Specifically, plaintiffs asked the court to make a “finding that the acts were, within the
meaning of the bankruptcy code 11 U.S.C. § 423(a)(6) [sic: 523(a)(6)] ‘willful and
malicious by the debtor to another entity or to the property of another entity’ thereby
making those judgments non-dischargeable in bankruptcy.” Plaintiffs cite no authority
requiring a trial court to make such a finding, and none holding it to be error to refuse
such a request. We are confident that should the issue arise in bankruptcy court, the court
will be able to handle it appropriately. We find no error on this issue.
V.
The judgment of the trial court is affirmed in its entirety. Costs on appeal are
assessed against the appellants, Lester Siler and Jenny Siler.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-48-