Steven Belford v. J & J Plastering ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 27, 2002 Session
STEVEN R. BELFORD v. J & J PLASTERING, INC., ET AL.
Appeal from the Circuit Court for Hamilton County
No. 99C201 Jacqueline E. Schulten, Judge
FILED OCTOBER 30, 2002
No. E2001-02575-COA-R3-CV
Steven R. Belford (Plaintiff”) sued Danny W. Cox (“Cox”) and J & J Plastering, Inc., (“Company”)
after he was rear-ended by a vehicle owned by the Company and driven by Cox. The jury returned
a verdict for $9,000 in favor of Plaintiff. Plaintiff appealed to this Court without first filing a motion
for new trial. Plaintiff raises four issues on appeal, all of which center around the exclusion or
admission of evidence at trial. Because Plaintiff did not raise these issues in a motion for new trial,
we deem them to be waived and dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of
the Circuit Court Affirmed; Case Remanded.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and CHARLES D. SUSANO, JR., J., joined.
Morgan G. Adams, Chattanooga, Tennessee, for the Appellant Steven R. Belford.
Robert A. Crawford, Knoxville, Tennessee, for the Appellees J & J Plastering, Inc., and Danny W.
Cox.
OPINION
Background
This lawsuit arises out of an automobile accident which occurred on March 16, 1998,
in Hamilton County. Plaintiff claimed a vehicle being driven by Cox and owned by the Company
(collectively referred to as “Defendants”) collided with another vehicle which, in turn, “slammed”
into Plaintiff’s vehicle. Plaintiff alleged in his complaint that while there was no substantial property
damage to his vehicle, he suffered a whiplash type injury resulting in personal injury, lost wages, etc.
Pursuant to Tenn. Code Ann. § 24-5-113, Plaintiff attached to the complaint a copy of his medical
bills from Total Health Chiropractic. The parties later entered into an Agreed Stipulation of the
Parties pursuant to Tenn. Code Ann. § 24-5-113(a)(3), whereby it was stipulated Plaintiff was
entitled to a presumption that his medical bills of $3,959 were reasonable and necessary.
Prior to trial, Plaintiff filed a motion in limine seeking to prohibit Defendants from
questioning Plaintiff about the reasonableness and necessity of his medical bills. Plaintiff argued
that in light of the above-referenced stipulation, Defendants had the burden of proving the medical
bills were not reasonable or necessary. According to Plaintiff, since expert medical proof is required
to show medical bills are reasonable and necessary absent any presumption that they are, medical
proof also must be required to show that they are not reasonable and necessary if they are presumed
to be so. Since Defendants had no expert medical proof that the medical bills were not reasonable
or necessary, Plaintiff argued Defendants should not have been allowed to attempt to prove the
medical bills were not reasonable and necessary via cross-examination of Plaintiff. Plaintiff filed
a separate motion in limine seeking to prohibit Defendants from questioning Plaintiff as to how he
came to be treated by the chiropractor and when he retained his attorney. Both of the motions in
limine were denied by the Trial Court after voir dire of the jury was completed. At trial, Defendants
were allowed to question Plaintiff regarding: (a) his medical treatment; (b) how he came to be treated
by the chiropractor; and (c) when he retained his attorney.
Plaintiff also sought damages related to the towing and storage of his wrecked
vehicle. The Trial Court apparently concluded these were not recoverable items of damages and
limited testimony and recovery to the difference in value of the vehicle before and after the accident.
Plaintiff, therefore, made an offer of proof to the effect that the wrecker bill was $75 and the storage
fee was $10 per day. The wrecked automobile apparently remained in storage after the accident
because of Plaintiff’s claimed inability to pay the costs already incurred.
The jury returned a verdict for Plaintiff in the amount of $9,000 as compensation to
Plaintiff for his personal injury and property damage incurred in the accident. Court costs were taxed
to Plaintiff in the judgment entered by the Trial Court. Plaintiff filed a motion to alter or amend the
judgment claiming these costs should have been taxed to Defendants. Defendants apparently agreed,
and an Agreed Order was entered amending the judgment to tax the costs to Defendant. No other
post-trial motions were filed.
Plaintiff appeals, “contending that the trial court was in error for refusing to exclude
when the plaintiff hired his attorney, how the plaintiff found his doctor, and in allowing the plaintiff
to be examined on his medical treatment and the purpose of the treatment. [Plaintiff] further
contends that the economic loss associated with this wreck, the storage fees and towing charges,
should have been allowed to be presented to the jury.”
Discussion
The four issues raised by Plaintiff on appeal center around either the admission of
evidence (i.e. cross-examination of Plaintiff regarding his medical treatment, when he hired his
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attorney, and how he came to be treated by the chiropractor), or the exclusion of evidence and/or
refusal to charge the jury regarding the wrecker and storage charges incurred by Plaintiff.
In relevant part, Rule 3(e) of the Tenn. R. App. P. provides as follows:
[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or
counsel, or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the
same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived. Failure of an appellant to take
any step other than the timely filing of a notice of appeal does not
affect the validity of the appeal but is ground only for such action as
the appellate court deems appropriate, which may include dismissal
of the appeal. . . .
It is undisputed that Plaintiff did not file a motion for new trial raising these issues.
Inasmuch as all issues raised by Plaintiff on appeal center around the admission or exclusion of
evidence, pursuant to Tenn. R. App. P. 3(e), we deem these issues waived and dismiss this appeal.
See generally Fahey v. Eldridge, 46 S.W.3d 138, 141 (Tenn. 2001)(“It has long been the rule in this
state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the
attention of the trial court in a motion for a new trial.”).
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant Steven R.
Belford, and his surety.
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D. MICHAEL SWINEY, JUDGE
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