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

RICHARD ARNOLD and )

BARBARA ARNOLD, his wife, )

)

Plaintiffs/Appellees, ) Appeal No.

) 01-A-01-9505-CV-00203

v. )

) Davidson Circuit

GLORIA FORD, ) No. 93C-1575

)

Defendant/Appellee, )

and

)

)

)

FILED

THE METROPOLITAN GOVERNMENT OF ) December 14,

NASHVILLE AND DAVIDSON COUNTY, ) 2001

)

Defendant/Appellant. )

Cecil Crowson, Jr.

Appellate Court Clerk

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

JAMES R. OMER, JR.

James R. Omer & Associates

430 Third Avenue North, Suite 200

Trial Lawyers Building

Nashville, Tennessee 37201

ATTORNEY FOR PLAINTIFFS/APPELLEES

DAVID L. COOPER

Cannon, Cannon & Cooper, P.C.

1000 Northchase Drive

P. O. Box 749

Goodlettsville, Tennessee 37070-0749

ATTORNEY FOR DEFENDANT/APPELLEE, GLORIA FORD

JAMES L. MURPHY, III The Department of Law of

Director of Law The Metropolitan Government

of Nashville and Davidson

County

FRANCIS H. YOUNG 204 Metropolitan Courthouse

CRISTI E. SCOTT Nashville, Tennessee 37201

Metropolitan Attorneys ATTORNEYS FOR METROPOLITAN

GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE

O P I N I O N

This is an appeal by defendant/appellant, Metropolitan

Government of Nashville and Davidson County ("Metro"), from the

judgment of the trial court against it in favor of plaintiffs/

appellees, Richard and Barbara Arnold, and cross-

defendant/appellee, Gloria Ford.

Metro presented three issues on appeal. They are as

follows: 1) "Whether it was error for the trial court to fail to

sever the bench trial on the issue of the Metropolitan Government's

liability from the jury trial on the issue of Mrs. Ford's

liability"; 2) "Whether a new trial should be granted due to the

inconsistent, irreconcilable judgments entered on one body of

evidence"; and 3) "Whether the trial court's use of the remittitur

procedure was improper."

This case arose out of an automobile accident that occurred

in May 1992 in Davidson County, Tennessee. The accident involved

the Arnolds and Mrs. Ford and occurred at the intersection of State

Route 45 and Rio Vista Drive in Nashville. A different accident

had occurred at this same intersection shortly before the Arnold

and Ford vehicles collided. Metropolitan police officers, J. B.

Hale and Marsha Brown, were directing traffic around the first

accident.

The Arnolds' claim against Metro was that the negligence of

Officer Hale in giving improper hand signals to Mrs. Ford

proximately caused the accident. Metro filed a cross-claim against

Mrs. Ford for indemnification, and the court later dismissed this

cross-claim. Mrs. Ford filed a cross-claim against Metro also

alleging negligence on the part of Officer Hale.

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On the morning of the first day of trial, during the pre-

trial conference between counsel and the trial court in chambers,

counsel for Metro made an oral motion. Pursuant to Tennessee Code

Annotated section 29-20-313(b)1, Metro asked the court to sever the

bench trial on Metro's liability from the jury trial on the

Arnolds' claim against Mrs. Ford The court overruled Metro's

motion. The bench trial as to Metro's liability to the Arnolds and

Mrs. Ford proceeded contemporaneously with the jury trial as to

Mrs. Ford's liability to the Arnolds.

At the conclusion of the evidence and the arguments of

counsel, the court charged the jury, and they retired to

deliberate. Later, the jury returned and announced its verdict.

The jury found Mrs. Ford 65% at fault and Metro 35% at fault and

fixed the Arnolds' total damages at $255,696.95. Upon dismissing

the jury, the trial court handed to counsel its memorandum

regarding the non-jury claims of the Arnolds and Mrs. Ford against

Metro. The court found Metro 60% at fault and Mrs. Ford 40% at

fault and fixed the Arnolds' total damages at $360,000.00. In

addition, the court awarded Mrs. Ford $37,000.00 on her cross-

claim.

The trial court entered final judgment against Metro in

favor of the Arnolds and Mrs. Ford on 24 October 1994. It then

entered final judgment on the Arnolds' claim against Mrs. Ford on

25 October 1994. Metro then moved for a new trial, and Mrs. Ford

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(b) When suit is brought in circuit court in a case in which

there are multiple defendants, one (1) or more of which is a

governmental entity or a governmental entity employee whose

liability or lack thereof is to be determined based upon the

provisions of this chapter and one (1) or more of which is not such

governmental entity or governmental entity employee, the case shall

be heard and decided by a jury upon the demand of any party.

Nothing in this section shall be construed to abridge the right of

any party to a trial by jury otherwise granted by the state or

federal constitution or any statute.

Tenn. Code Ann. § 29-20-313(b)(Supp. 1994).

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filed a motion for judgment in accordance with her motion for

directed verdict or alternative motion for a new trial. The trial

court entered its memorandum opinion on 22 December 1994 suggesting

remittitur as to the Arnolds' judgment against Mrs. Ford. On 9

January 1995, the trial court entered an order making its 22

December 1994 memorandum opinion an order of the court. Later, the

Arnolds accepted the trial court's suggested remittitur. Mrs. Ford

satisfied the Arnolds' judgment against her, and the court entered

an order of satisfaction of judgment and release.

Metro filed its notice of appeal on 19 January 1995. It

appealed the final judgment entered against it on 24 October 1994,

the final judgment entered against Mrs. Ford on 25 October 1994,

and the 9 January 1995 order making the 22 December 1994 memorandum

opinion an order of the court. In its brief, Metro stated that

when it filed its notice of appeal it was unaware that the court

had entered an order, making the memorandum opinion an order of the

court, on 9 January 1995.

The facts out of which this controversy arose are as

follows.

On 28 May 1992, the Arnolds were in their Plymouth Voyager

headed west on State Route 45 in Davidson County. Mrs. Ford was

traveling north on Rio Vista Drive in her Plymouth Laser

approaching the intersection of State Route 45. Before either the

Arnolds or Mrs. Ford arrived at the intersection, an accident had

occurred. Metro police officers, J. B. Hale and Marsha Brown, were

directing traffic around the wrecked automobiles and the emergency

vehicles that had responded to the earlier accident. The officers

had agreed between themselves that Officer Brown would stop the

east bound traffic on State Route 45 in an attempt to allow Officer

Hale to direct north bound traffic on Rio Vista Drive to turn right

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and head east on State Route 45.

Many cars heading north on Rio Vista Drive followed Officer

Hale's instructions and turned right to head east on State Route

45. Mrs. Ford pulled her car up directly in front of Officer Hale

and indicated that she wanted to go straight across State Route 45.

Officer Hale alleged that she repeatedly motioned Mrs. Ford to turn

right and head east because she did not have control over west

bound State Route 45. According to the testimony of Officer Hale,

Mrs. Ford refused to turn a number of times. Officer Hale decided

she had to get Mrs. Ford's vehicle out of the way so traffic behind

her could continue to flow out of the intersection. She motioned

Mrs. Ford to pull up and over to the side. Officer Hale then left

Mrs. Ford's car and resumed directing traffic.

The testimony of Mrs. Ford and several other witnesses was

at odds with that of Officer Hale. Mrs. Ford testified that

Officer Hale motioned her to go straight across. Witness Cohen saw

Officer Hale motion for the car to come through the intersection.

Witness Spicer testified that Officer Hale waived Mrs. Ford out

into the intersection. Witness Travaglini believed that Officer

Hale meant for Mrs. Ford to get moving, and witness Whitaker saw

Officer Hale motion Mrs. Ford's car across State Route 45.

Although the reason why Mrs. Ford entered the intersection is in

dispute, the fact that her doing so resulted in a collision

involving her car and the Arnolds' mini-van is not.

We first discuss Metro's issue of whether it was error for

the trial court to fail to sever the bench trial from the jury

trial of Mrs. Ford's liability.

The Tennessee Governmental Tort Liability Act, Tennessee

Code Annotated title 29 chapter 20, provides that the court shall

5

give a governmental entity a bench trial and that the judge shall

hear the case without the intervention of a jury. Tenn. Code Ann.

§§ 29-20-307, -313(b) (1980 & Supp. 1994). The trial court

conducted a bench trial for Metro on all of its issues.

Nevertheless, it is Metro's insistence that the statute prohibits

a trial judge from conducting a bench trial for a governmental

entity while it conducts a jury trial for a private defendant.

We are of the opinion that the trial court followed the

dictates of the Act. The court heard the evidence, saw and heard

the witnesses testify, and issued its memorandum opinion that

incorporated its finding of fact and conclusions of law. Metro

relies on Austin v. County of Shelby, 640 S.W.2d 852 (Tenn. App.

1982), to support its contention that section 29-20-313(b) required

the trial court to sever the jury and non-jury portions of the

case. In actuality, the holding in Austin does require severance,

but it is silent as to any specific procedures for a trial court to

use in granting separate trials. Austin, 640 S.W.2d at 854. In a

later case, this court permitted the trial court to consider non-

jury issues while simultaneously allowing the jury to decide other

issues. Betty v. Metropolitan Gov't of Nashville and Davidson Co.,

835 S.W.2d 1 (Tenn. App. 1992). The trial court, in the instant

case, considered the evidence separate and apart from the jury and

rendered a verdict on Metro's liability. Both the trial court and

this court gave Metro an opportunity to cite authority supporting

multiple trials, but Metro failed to do so.

We now turn to Metro's second issue of whether this court

should grant it a new trial? Metro put forth two arguments in

support of its position. First, Metro argued that the inconsistent

verdicts require that this court remand for a new trial. It is

this court's opinion, however, that the verdict of the trial court

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on the non-jury issue was not inconsistent with the jury's verdict.

"A verdict is inconsistent when a jury on a single set of facts and

circumstances reaches differing conclusions of fact and law."

McCall v. Owens, 820 S.W.2d 748, 752 (Tenn. App. 1991). In the

instant case, the trial court found that both Metro and Mrs. Ford

were guilty of negligence and were the proximate causes of the

accident. The jury also found that both Metro and Mrs. Ford were

guilty of negligence and were the proximate causes of the accident.

Under the definition of an inconsistent verdict as set forth in

McCall, this result is not inconsistent. Similarly, the percentage

of negligence ascribed to Metro by the court and the jury was

different, but not inconsistent. Therefore, Metro's first argument

is without merit.

Second, Metro argued that the trial court's misapplication

of Tennessee Rule of Civil Procedure 59.06, the Thirteenth Juror

Rule, entitled it to a new trial. The premise of Metro's argument

was that the trial court could not approve a verdict containing

findings of percentages of fault which were different than the

trial court's own findings. Rule 59.06 applies to jury verdicts,

not trial court decisions. See Cumberland Tel. & Tel. Co. v.

Smithwick, 112 Tenn. 463, 79 S.W. 803 (1904) (discussing the role

of the judge as the thirteenth juror and the purpose behind such a

role). Because the trial court decided the issues of Metro's

liability exclusively, the Rule is inapplicable.

In addition, note that appellate courts "will not reverse

for immaterial errors." State v. Delinquent Taxpayers, 26 Tenn.

App. 62, 69, 167 S.W.2d 690, 693 (1942). Where the trial court has

jurisdiction of the subject matter and the parties, mere

irregularities in the exercise of that jurisdiction will not render

the proceedings void in the absence of prejudice. See Ridgley v.

7

Bennett, 81 Tenn. 210, 217-19 (1884). Metro neither alleged nor

demonstrated any prejudice as a result of the procedure used in the

trial of this case. Metro has failed to point to anything in the

record that constitutes error sufficient to compel this court to

grant it a new trial.

Finally, this court will not interfere with a trial court's

findings of fact unless the evidence preponderates against such

findings. Tennessee Rule of Appellate Procedure 13(d) provides:

"review of findings of fact by the trial court in civil actions

shall be de novo upon the record of the trial court, accompanied by

a presumption of the correctness of the finding, unless the

preponderance of the evidence is otherwise." As previously noted,

there was conflicting testimony about whether Officer Hale directed

Mrs. Ford's vehicle to go through the intersection and cross State

Route 45. Officer Hale testified that she motioned for Mrs. Ford

to pull up and over to the side. Mrs. Ford testified that Officer

Hale motioned her to go straight across the intersection. Witness

Cohen saw Officer Hale motion for the car to come through the

intersection. Witness Spicer testified that Officer Hale waived

Mrs. Ford out into the intersection. Witness Travaglini believed

that Officer Hale meant for Mrs. Ford to get moving. Witness

Whitaker saw Officer Hale motion Mrs. Ford's car across State Route

45 where Mrs. Ford collided with the Arnolds' vehicle. Clearly,

the evidence does not preponderate against the judgment of the

trial court, but does preponderate in favor of the Arnolds and

against Metro.

Metro's third issue of whether the trial court's use of

remittitur was proper is without merit as well. The Tennessee

Supreme Court has consistently approved the use of remittitur to

cure excessive jury verdicts. Pitts v. Exxon Corp., 596 S.W.2d

8

830, 835 (Tenn. 1980). In Pitts, the court stated as follows:

Where either remittitur or additur is used, the

choice of a new trial and new jury or appellate

review is available to the party in whose favor the

adjustment is made, and appellate review is

available to the other party where the appellate

courts may either adjust the verdict to conform to

the evidence if statutorily and judicially

authorized to do so, and, where not, a new trial

may be granted.

Id. at 836. Thus, it is apparent that appellate review of

remittitur or additur is available to those plaintiffs and

defendants who are parties to the court's proposed agreement. In

this case, Metro had absolutely nothing to do with the remittitur.

The court's suggested remittitur applied only to the liability of

Mrs. Ford to the Arnolds as decided by the jury. Thus, Metro did

not have standing to raise this issue on appeal.

Mrs. Ford presents the issue of whether "this is a frivolous

appeal which warrants the Court to award Ford her costs, expenses

and reasonable attorney's fees." Tennessee Code Annotated section

27-1-122 provides:

When it appears to any reviewing court that the

appeal from any court of record was frivolous or

taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just

damages against the appellant, which may include

but need not be limited to, costs, interest on the

judgment, and expenses incurred by the appellee as

a result of the appeal.

Tenn. Code Ann. § 27-1-122 (1980). Mrs. Ford insists that the

issues raised on appeal by Metro have no merit and that the trial

court's decision was well grounded in law and fact and reached

without "the intervention of a jury." Metro has failed to point to

any error or prejudice in the record that would justify an appeal

as to Mrs. Ford.

We have reviewed this record and are of the opinion that as

to defendant/appellee, Gloria Ford, this was a frivolous appeal.

9

Therefore, we remand this case to the trial court for a

determination of the amount of damages to which Mrs. Ford would be

entitled as a result of this appeal.

We are of the opinion that the trial court followed the

dictates of Tennessee Code Annotated section 29-20-307 and section

29-20-313(b) and determined the issues of fault and damages raised

in the claims. Metro has failed to show any error committed by the

trial court other than a difference in the verdicts; however, these

differences were the result of Metro's own legal maneuvering.

The judgment of the trial court is affirmed, and the cause

is remanded to the trial court for further proceedings in

conformity with this opinion. Costs on appeal are assessed to

defendant/appellant, Metro.

__________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________

HENRY F. TODD, P.J., M.S.

_________________________________

BEN H. CANTRELL, J.

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