Jennifer L. Al-Athari v. Luis A. Gamboa

07/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 23, 2017 Session
JENNIFER L. AL-ATHARI, ET AL. v. LUIS A. GAMBOA, ET AL.
Appeal from the Circuit Court for Davidson County
No. 13C5327 Thomas W. Brothers, Judge
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No. M2016-01310-COA-R3-CV
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Following two appeals, this negligence action was resolved in a jury trial. The jury
returned a verdict finding for Defendant; Plaintiffs appealed and, discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.
Jennifer L. Al-Athari and Haider G. Al-Athari, Hermitage, Tennessee, Pro Se.
Steven D. Parman, Nashville, Tennessee, for the appellees, Morgan Southern Inc.
Dixie W. Cooper and Matthew H. Cline, Nashville, Tennessee, for the appellees, Victor
W. Isaac, M.D. and Pain & Spine Consultants, P.C.
MEMORANDUM OPINION1
I. FACTUAL AND PROCEDURAL HISTORY
This case and these parties come before this Court for a third time. Facts pertinent
to the instant appeal are set forth in the opinion in the second appeal:
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Rule 10 of the Rules of the Court of Appeals of Tennessee states:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
On June 2, 2010, Haider Al-Athari and Jennifer Al-Athari (“Plaintiffs” or
“Mr. and Ms. Al-Athari”) filed suit against Luis Gamboa and Morgan
Southern Inc. (“Defendants” or “Morgan Southern”) to recover for injuries
allegedly sustained by Jennifer Al-Athari when the car she was driving was
involved in an accident with a truck being driven by Luis Gamboa and
owned by Morgan Southern; Haider Al-Athari claimed damages from loss
of consortium. On January 14, 2013, the trial court granted four motions in
limine filed by Defendants and on January 18, entered an order dismissing
the case without prejudice for failure to prosecute. Mr. and Mrs. Al-Athari
appealed, and we affirmed the judgment of the trial court on the motions in
limine and the dismissal of the complaint on December 30, 2013; we also
held the appeal was frivolous and remanded the case to determine the
amount of damages owed to Morgan Southern pursuant to Tenn. Code Ann.
§ 27-1-122.[2]
Al-Athari v. Gamboa, et al., No. M2015- 00278-COA-R3-CV, 2016 WL 4199099, at *1
(Tenn. Ct. App. August 5, 2016) (no perm. app. filed).
Following the dismissal of the first complaint, Mr. and Mrs. Al-Athari refiled the
action seeking damages for the June 2010 accident. In the second appeal, Mr. and Mrs.
Al-Athari raised issues relating to the dismissal of the first complaint and the grant of
Morgan Southern’s motions in limine; inasmuch as those issues had been resolved in the
first appeal, we determined that they were barred by res judicata. Id. We considered all
remaining issues, including: whether the trial court was impartial; whether the award of
damages for the first appeal was appropriate; and whether the denial of their “Motion to
Correct Errors” pursuant to Tenn. R. Civ. P. 60 and “Motion to Correct the Liability
Agreement Order” was proper. Id. After reviewing the record, we affirmed the trial
court’s denial of Mr. and Mrs. Al-Athari’s motion to correct errors; found Mr. and Mrs.
Al-Athari’s motion to correct the liability agreement and argument that the trial judge
was impartial were without merit; determined Mr. and Mrs. Al-Athari’s appeal was
frivolous; and remanded the case for a determination of damages pursuant to Tennessee
Code Annotated section 27-1-122. Id. at *2, *3-*4.
Mr. and Mrs. Al-Athari’s second complaint was set for a jury trial on April 4,
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2016. The court entered an order on April 6 resetting the trial to May 9, stating that one
of the plaintiffs had been admitted to the hospital. On April 25, Mr. and Mrs. Al-Athari
2
On remand, “[t]he trial court entered an order on April 16, 2014, awarding Morgan Southern judgment
in the amount of $5,346.89. No appeal was taken from the judgment.” Al-Athari v. Gamboa, et al., No.
M2015-00278-COA-R3-CV, 2016 WL 4199099 (Tenn. Ct. App. August 5, 2016) (no perm. app. filed).
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On March 9, 2016, the trial court granted Morgan Southern’s Motion for Partial Summary Judgment
and dismissed Mr. and Mrs. Al-Athari’s claims under the theories of res ipsa loquitur, negligent hiring,
and negligent entrustment.
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filed a motion for default judgment against Mr. Gamboa and stated in their motion “Mr.
Gamboa was served many times in this accident but he was not to be found in this county
or this state” and that “Mr. Gamboa has failed to plead or otherwise defend his side as
provided by the rules of this state.” After a hearing on April 29, 2016, the trial court
entered an order denying Mr. and Mrs. Al-Athari’s motion and holding service of process
was not effected on Mr. Gamboa.4
Trial was held on May 9 and 10. After Mr. and Mrs. Al-Athari presented their
proof, Morgan Southern moved for a directed verdict as to Mr. and Mrs. Al-Athari’s
claims for past and future medical expenses, future pain and suffering, future loss of
enjoyment of life, loss of earning capacity, and permanent impairment; the motion was
granted. Following their deliberations, the jury returned a verdict in favor of Morgan
Southern. Mr. and Mrs. Al-Athari appeal, raising a host of issues; though these issues are
not easily discernible, it is clear that Mr. and Mrs. Al-Athari dispute issues pertaining to
discovery, evidence that was admitted or denied admission at trial, and the testimony and
depositions of witnesses during the course of the trial; they also raise issues as to rulings
and events predating the trial and prior appeals.
II. ANALYSIS
It is a well-established rule in this State that appeals from jury trials must be
preceded by a motion for new trial when the error alleged is based on 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.” Tenn. R.
App. P. 3(e).
In Fahey v. Eldridge, this Court provided a succinct statement on the importance
of filing a motion for new trial:
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. This requirement was initially
imposed by this Court to make more efficient the process of reviewing “the
ever increasing number of appeals,” and we have recognized that this
practice significantly aids the functions of the appellate courts by limiting
and defining the issues for review. Moreover, and perhaps most
importantly, motions for a new trial also help to ensure that the trial judge
might be given an opportunity to consider or to reconsider alleged errors
committed during the course of the trial or other matters affecting the jury
or the verdict, such as alleged misconduct of jurors, parties, or counsel
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Morgan Southern assumed responsibility for any negligence on the part of Mr. Gamboa found by the
jury.
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which either occurred after the trial or could not reasonably have been
discovered until after the verdict.
Fahey v. Eldridge, 46 S.W.3d 138, 141-42 (Tenn. 2001) (internal citations and block
quotes omitted).
Mr. and Mrs. Al-Athari did not move for a new trial after the court entered
judgment on the verdict; consequently, they have waived any issues relating to the
evidence admitted at trial, juror misconduct, jury instructions, examination of witnesses,
and any other matter within the purview of Rule 3(a). Tenn. R. App. P. 3(e). As to the
remaining issues, the Al-Athari’s brief does not articulate a clear argument that the trial
court committed error in any way; further, it does not comply with Rule 27 of the
Tennessee Rules of Appellate Procedure in various ways, including Rule 27(a)(7).5 As a
consequence, we deem these issues waived as well. See Hodge v. Craig, 382 S.W.3d 325,
335 (Tenn. 2012) (citing Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 1999); Sneed v.
Board of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010) (noting that “an issue
may be deemed waived, even when it has been specifically raised as an issue, when the
brief fails to include an argument satisfying the requirements of Tenn. R. App. P.
27(a)(7).”). We affirm the ruling of the trial court.
Morgan Southern has asked that the Court declare this appeal frivolous and
authorize an award of damages pursuant to Tennessee Code Annotated section 27-1-122.
The statute is to be interpreted and applied strictly to avoid discouraging legitimate
appeals. Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2004); Davis v.
Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977) (discussing the predecessor of Tenn.
Code Ann. § 27-1-122). A frivolous appeal is one that is devoid of merit or has no
reasonable chance of success. Wakefield, 54 S.W.3d at 304. Upon consideration of the
entire record, the issues raised and resolved in the prior appeals, several of which the Al-
Atharis attempt to relitigate in this appeal, and the manifest deficiencies in their brief, we
conclude that the appeal is frivolous within the meaning of section 27-1-122.
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Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure requires that the brief of an appellant
contain:
(7) An argument . . . setting forth:
(A) the contentions of the appellant with respect to the issues to be presented, and
the reasons therefor, including the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate references to the record . . .
relied on . . .
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For the foregoing reasons, we affirm the decision of the trial court and remand the
case for a determination of damages due Appellee as a result of the frivolous appeal.
RICHARD H. DINKINS, JUDGE
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