Tomlin Ex Rel. Cockerham v. Warren ( 1997 )

LISA NICOLE TOMLIN, a minor, )
by her next friend and parent, )
GWENDOLYN S. COCKERHAM and )
GWENDOLYN S. COCKERHAM, )
individually, )
)
Plaintiffs/Appellants, )
) Appeal No.
VS. ) 01-A-01-9702-CV-00067
)
DONNA F. WARREN, ) Davidson Circuit
Defendant/Appellee,
)
)
)
No. 95C-2623
FILED
and ) July 16, 1997
ALPHONSO BOWERS and )
PATRICIA DUNN, ) Cecil W. Crowson
) Appellate Court Clerk
Defendants. )
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE BARBARA N. HAYNES, JUDGE
MARK M. MIXELL
1808 West End Avenue
Suite 915
Nashville, Tennessee 37203
Attorney for Plaintiffs/Appellants
JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee 37201
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The question in this appeal is whether the owner of a mobile home is
liable to a third party who was accidentally shot by a guest of a tenant. The Circuit
Court of Davidson County granted summary judgment to the owner. We affirm.
I.
The defendant Donna Warren owned a mobile home which was
occupied by Patricia Dunn. On May 11, 1995, Gwendolyn Cockerham and her
daughter, Lisa Tomlin, were visiting Patricia Dunn at the trailer. At approximately 8:00
p.m. Alphonso Bowers, armed with a sawed-off shotgun, arrived at the trailer and said
he had been hired to protect the trailer and to act as a bodyguard. About 7:00 the
next morning, Mr. Bowers accidentally discharged the shotgun, striking Lisa Tomlin
in the foot.
Ms. Cockerham sued Bowers, Dunn, and Warren on behalf of herself
and her daughter. Her theories as to Ms. Warren were (1) that Mr. Bowers was Ms.
Warren’s employee and agent, and (2) that Ms. Warren, as owner in possession of
the premises, violated a duty of care to Lisa Tomlin by allowing an armed man to
occupy the premises. On appeal the appellant also argues that Ms. Warren was
negligent per se in allowing a sawed-off shotgun to be possessed on the premises.
Ms. Warren moved for summary judgment and supported her motion
with copies of her own deposition and the depositions of Ms. Cockerham and Lisa
Tomlin. Ms. Warren said that she had moved from the trailer before the May 12
incident and had leased the trailer to Patricia Dunn in a transaction Ms. Warren
described as “lease to own.” Patricia Dunn was to pay a sum of money each month
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as rent and when the payments reached a certain amount the trailer would be hers.
Ms. Warren denied hiring Mr. Bowers, denied knowing he was on the premises with
a gun, and specifically denied being on the premises herself on the date in question.
She denied ever seeing either of the appellants. She said she was living in Linden,
Tennessee in May of 1995.
In opposition to these facts the plaintiffs rely on their own depositions
and an admission from Ms. Warren that she knew who Mr. Bowers was because she
had seen him at the trailer after Ms. Dunn moved in. Ms. Cockerham testified in her
deposition that Ms. Warren was present at the trailer on the evening of May 11, 1995;
that she took a shower there and changed into some clothes she had in the back
room; and that she was present when Mr. Bowers was on the premises. When
pressed to describe Ms. Warren, Ms. Cockerham described her as a black woman
with peroxide blonde hair. Ms. Warren is white.
Ms. Cockerham also stated that Mr. Bowers told her that he had been
hired by Ms. Warren and Ms. Dunn to guard them and the trailer.
II.
The appellants argue that the facts bearing on their theories of liability
are in dispute. We disagree, and find that the undisputed facts justify summary
judgment in favor of Ms. Warren.
a. The Employee Relation
To Ms. Warren’s sworn denial that she hired Mr. Bowers the appellants
have offered only their hearsay testimony of what Mr. Bowers said to them. Rule
56.05 Tenn. R. Civ. Proc., however, requires that affidavits supporting or opposing
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summary judgments shall set forth facts “admissible in evidence.” The testimony of
appellants as to Mr. Bowers’ statement about who hired him is not admissible
because it fits the definition of hearsay, Tenn. R. Evid. 801(c) and is excluded by Rule
802.
Therefore, there is no admissible evidence that Mr. Bowers was not Ms.
Warren’s employee or agent.
b. Possession of the Premises
Against Ms. Warren’s sworn denial that she was in possession of the
premises or was present on the evening of May 11, 1995, the appellants offer their
sworn testimony that Ms. Warren was present on that night and that Ms. Warren
admitted knowing Mr. Bowers. The appellants also argue that Ms. Warren’s testimony
about leasing the trailer to Ms. Dunn is suspect because there are no documents to
show the transaction took place.
We do not think any of the above makes a disputed question of fact on
the control of the premises on May 11, 1995. No inference can be drawn from the fact
that the trailer was leased in an oral transaction. It is not uncommon for this court to
see oral transactions of a much larger magnitude between highly sophisticated
parties. So, Ms. Warren’s testimony about the lease is unrebutted and it is obvious
who had control of the premises. After all, the appellants were there at the invitation
of Ms. Dunn.
The appellants’ testimony about seeing Ms. Warren at the trailer on May
11, 1995 is obviously a case of mistaken identity. They described Ms. Warren as a
black woman with peroxide blonde hair. Ms. Warren is white.
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c. Negligence Per Se
Our decision with respect to the employment of Mr. Bowers and who
was in control of the premises also disposes of the plaintiffs’ claim that Ms. Warren
allowed a sawed-off shotgun on the premises in violation of the law.
For another reason, however, this claim should be dismissed. The
appellants failed to raise it in the court below. Since this court’s jurisdiction is
appellate only, Irvin v. Binkley, 577 S.W.2d 677 (Tenn. App. 1978), we cannot
consider issues not brought to the attention of the trial court.
We affirm the judgment of the trial court and remand this cause for any
further proceedings necessary. Tax the costs on appeal to the appellants.
________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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