Xiaohua Jiang v. Kevin Furness d/b/a Premium Auto Repair

11/19/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 1, 2024

XIAOHUA JIANG v. KEVIN FURNESS d/b/a PREMIUM AUTO REPAIR

Appeal from the Circuit Court for Davidson County

No. 19c1836 Thomas W. Brothers, Judge

___________________________________

No. M2023-01554-COA-R3-CV

___________________________________

The pro se plaintiff asserted claims against the defendant for negligence and violations of

the Tennessee Consumer Protection Act, alleging faulty repair work on her vehicle. After

the plaintiff presented her proof at a jury trial, the defendant moved for a directed verdict

on all claims. The trial court granted the motion, finding that the plaintiff failed to present

enough evidence to establish a prima facie case to show that the defendant was negligent

or violated the Tennessee Consumer Protection Act. As such, the plaintiff’s claims were

dismissed. The plaintiff appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Xiaohua Jiang, Nashville, Tennessee, pro se.

Steven G. Fuller, Goodlettsville, Tennessee, for the appellee, Kevin Furness d/b/a Premium

Auto Repair.

OPINION

I. FACTS & PROCEDURAL HISTORY

We begin by noting that Xingkui Guo, the husband of current plaintiff, Xiaohua

Jiang, instituted this lawsuit by filing a civil warrant in general sessions court. Plaintiff

Xiaohua Jiang was eventually substituted as the real party in interest as the owner of the

vehicle at issue in this litigation. For clarity, we will simply refer to “Plaintiff” throughout

this opinion.

Plaintiff’s pro se civil warrant alleged two claims against Kevin Furness d/b/a

Premium Auto Repair. First, it alleged “Deceptive Advertising,” citing various provisions

of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101, et seq. Second,

it asserted negligence by Mr. Furness in his repair of Plaintiff’s vehicle. The civil warrant

contains a notation indicating that the case was dismissed after trial. Plaintiff then appealed

to circuit court.

In circuit court, Plaintiff filed a motion to set a trial date and a “Motion for Directed

Verdict,” accompanied by numerous exhibits. The circuit court subsequently held a

pretrial conference and entered a pretrial order, explaining that a Rule 50.01 motion for a

directed verdict may be made at the close of the evidence offered by an opposing party or

at the close of the case, and therefore, Plaintiff’s motion was untimely. The circuit court

noted that Plaintiff’s motion did not comply with Rule 56, so the court had determined that

it was not appropriate to consider it as one for summary judgment. Consequently,

Plaintiff’s motion for a directed verdict was denied without prejudice. This same order

scheduled the case for a jury trial.

A jury trial was held on October 23, 2023, and both parties appeared pro se. At the

conclusion of Plaintiff’s proof, Mr. Furness moved for a directed verdict, which the trial

court granted. For the negligence claim, the trial court explained that, “even taking the

strongest legitimate view of the evidence in Plaintiff’s favor,” she still failed to carry her

burden of showing that Mr. Furness was negligent. The trial court explained that Plaintiff’s

theory of liability was that Mr. Furness used the wrong part when repairing her vehicle.

The trial court noted that Plaintiff did not present any expert testimony to show that Mr.

Furness’s work on her vehicle was improper or negligent or that the turbocharger part at

issue was improperly installed or the wrong part. Viewing the evidence that was presented

in Plaintiff’s favor, the court found that “[t]he only connection shown by Plaintiff was a

temporal coincidence between Defendant’s work and Plaintiff’s alleged damages.” Thus,

the trial court concluded that Plaintiff had not presented sufficient proof to show causation

to establish a prima facie case of negligence.

Next, the trial court considered Plaintiff’s TCPA claim for violation of Tennessee

Code Annotated section 47-18-104(b)(6), which states that it is an unlawful or deceptive

act to represent “that goods are original or new if they are deteriorated, altered to the point

of decreasing the value, reconditioned, reclaimed, used or secondhand[.]” The trial court

explained that Plaintiff presented evidence at trial in the form of an invoice from Mr.

Furness, which stated that the part used in the repair work was new. The trial court

acknowledged that Plaintiff “also attempted to present evidence” to show that the part Mr.

Furness used was reconditioned and “not actually new,” but the trial court had excluded

this evidence on the basis of hearsay. The trial court explained that the excluded evidence

could not be considered by the court when deciding the motion for a directed verdict. The

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court also noted that Plaintiff presented no expert proof to show that the part was somehow

deteriorated, altered to the point of decreasing its value, reconditioned, reclaimed, or

secondhand, within the meaning of the statute. Thus, the trial court concluded that Mr.

Furness was entitled to a directed verdict on this TCPA claim.

Finally, the trial court addressed Plaintiff’s claim for deceptive acts or practices

under the TCPA “based on her belief that the name of Defendant’s business, Premium Auto

Repair, was misleading.” The trial court found that Plaintiff made no showing at trial of

any causal connection between the name of the business and her claim for damages.

Therefore, it found that Mr. Furness was entitled to a directed verdict on this TCPA claim

as well. All of Plaintiff’s claims were accordingly dismissed. Plaintiff timely filed a notice

of appeal to this Court.

II. ISSUES PRESENTED

Plaintiff presents the following issues for review on appeal:

(1) Whether the trial court erred in granting Defendants’ motion for directed

verdict;

(2) whether the Plaintiff presented enough evidence to create an issue of fact

for a jury to resolve.

(3) Whether the Plaintiff presented sufficient facts to constitute a prima facie

case regarding Defendants’ liability.

(4) Whether an expert witness testimony is necessary in this case.

For the following reasons, we affirm the decision of the circuit court.

III. DISCUSSION

At the outset, we must address the state of Plaintiff’s pro se brief on appeal,

particularly with respect to her failure to cite to the appellate record. Tennessee Rule of

Appellate Procedure 27 governs the content of briefs and provides, in pertinent part:

(a) Brief of the Appellant. The brief of the appellant shall contain under

appropriate headings and in the order here indicated:

...

(6) A statement of facts, setting forth the facts relevant to the issues presented

for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, setting

forth:

(A) the contentions of the appellant with respect to the issues presented, and

the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate references

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to the record (which may be quoted verbatim) relied on[.]

...

(g) Reference in Briefs to the Record. Except as provided in rule 28(c),

reference in the briefs to the record shall be to the pages of the record

involved.

(emphasis added). In addition, “internal rules of the intermediate appellate courts state that

no trial error will be considered on appeal if briefs do not cite pages of the trial record

where the alleged error occurred.” Tenn. R. App. P. 27, Adv. Comm’n Cmt. Specifically,

Rule 6 of the Rules of the Court of Appeals of Tennessee provides, in relevant part:

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action of the trial

court which raises the issue and a statement by the appellee of any action of

the trial court which is relied upon to correct the alleged error, with citation

to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to the

attention of the trial judge with citation to that part of the record where

appellant’s challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged

error, with citations to the record showing where the resultant prejudice is

recorded.

(4) A statement of each determinative fact relied upon with citation to the

record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be

considered on appeal unless the argument contains a specific reference to

the page or pages of the record where such action is recorded. No assertion

of fact will be considered on appeal unless the argument contains a reference

to the page or pages of the record where evidence of such fact is recorded.

(emphasis added).

We note that the appellate record contains a CD-ROM recording of the proceedings

in the trial court filed pursuant to Supreme Court Rule 26, § 3.01. In such cases, the

applicable rules provide the following procedure to be used on appeal:

4.01. References to Electronic Recordings. The provisions of Rule 27,

Tennessee Rules of Appellate Procedure, shall apply except that reference to

a volume of the trial record which is an electronic recording shall be to

volume number, month, day, year, hour, minute and second at which the

reference begins as recorded on the recording. (For example: “Vol. 2,

10/27/92; 02:24:05p”.) If the recording covers only a single day, the month,

day and year may be omitted.

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4.02. Optional Appendix to Briefs. Rule 28, Tennessee Rules of Appellate

Procedure, allows the optional filing of an appendix to a party’s appellate

brief. Thus, in any case in which the trial court proceeding was electronically

recorded pursuant to this Rule 26, a party may include in an appendix a

transcript of the evidence or any portion thereof. There shall appear,

however, at the beginning of each segment of evidence so transcribed, and at

intervals of not greater than ten minutes of court time, a cross-reference to

the electronic recording which corresponds to that point of the transcription.

(See the example set out in Section 4.01 for the format of such cross-

references.)

Tenn. Sup. Ct. R. 26 §§ 4.01, 4.02.

Here, Plaintiff filed a pro se brief on appeal that spans 38 pages but contains only

isolated references to the appellate record. Her statement of the case and statement of the

facts do not contain a single citation to the appellate record. Mr. Furness notes this

deficiency in his brief, stating that he “objects to Appellant’s Statement of Facts found in

Appellant’s Brief in that no stated alleged facts are cited to the record on appeal before this

Court but, rather, are Appellant’s opinions cloaked as factual assertions arguing and or

asserting facts that are not properly a part of the record and before this court.”

The argument section of Plaintiff’s brief does contain some limited citations to the

appellate record. However, it is important to note that Plaintiff does not cite to any of the

testimony presented during the jury trial, nor does she attempt to reference the record at all

in connection with what occurred at the jury trial. We will briefly summarize the few types

of citations to the appellate record utilized by Plaintiff.

First, Plaintiff cites the three exhibits that were presented by her during the jury trial.

Thus, we will consider these exhibits in the context of resolving Plaintiff’s issues on appeal

regarding whether the trial court erred in granting the motion for directed verdict. Next,

Plaintiff cites to the location in the technical record of her pretrial motion for a directed

verdict, which the trial court denied without prejudice, and the various exhibits that were

attached to it. Plaintiff attempts to portray these exhibits as proof that supported her claims,

as she argues that these documents constituted “evidence presented by Plaintiff . . .

sufficient for creating a legal issue for a jury to decide[.]” However, we cannot consider

these exhibits in the technical record as proof, as they are attached to a pretrial motion for

directed verdict rather than exhibits from trial. Finally, Plaintiff cites to the location in the

technical record of a subpoena and to a few pages from a deposition. We will consider

these documents to the extent that they are relevant. However, any arguments that are not

supported by citations to the appellate record are waived. See, e.g., Gates v. Switzer, No.

M2021-01552-COA-R3-CV, 2023 WL 6296290, at *3 (Tenn. Ct. App. Sept. 27, 2023)

(“Wife’s arguments on issues four, five, and nine fail to include any citations to the record

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and are therefore waived pursuant to Rule 27 and Rule 6.”); Little v. City of Chattanooga,

650 S.W.3d 326, 348, 352-53 (Tenn. Ct. App. 2022) (deeming various issues waived for

failure to cite to the record and explaining that “this Court is not charged with the

responsibility of scouring the appellate record for any reversible error the trial court may

have committed”) (quotation omitted); Cnty. of Sumner v. Kalbes, No. M2020-01119-

COA-R3-CV, 2021 WL 4192319, at *2 (Tenn. Ct. App. Sept. 15, 2021) (“[O]ur courts

have routinely held that the failure to make appropriate references to the record as required

by Rule 27(a)(7) constitutes a waiver of the issue.”) (quotation omitted).1

With these limitations in mind, we now turn to the substantive issues raised on

appeal. The Tennessee Supreme Court has described the standards that apply when

reviewing a decision on a motion for a directed verdict:

“A motion for a directed verdict may be made at the close of the evidence

offered by an opposing party or at the close of the case.” Tenn. R. Civ. P.

50.01. Appellate courts must conduct a de novo review of a trial court's

ruling on a motion for a directed verdict, applying the same standards that

govern the trial court’s determination. Brown v. Crown Equip. Corp., 181

S.W.3d 268, 281 (Tenn. 2005) (citing Gaston v. Tenn. Farmers Mut. Ins. Co.,

120 S.W.3d 815, 819 (Tenn. 2003)). For a directed verdict to be

appropriately granted, the evidence must be “susceptible to only one

conclusion.” Id. (citing Childress v. Currie, 74 S.W.3d 324, 328 (Tenn.

2002)). If “reasonable minds could ... differ as to the conclusions to be drawn

from the evidence,” the motion must be denied. Eaton v. McLain, 891

S.W.2d 587, 590 (Tenn. 1994). On appeal, courts must take the strongest

legitimate view of the evidence in favor of the non-moving party,

disregarding all countervailing evidence. Brown, 181 S.W.3d at 281;

Gaston, 120 S.W.3d at 819.

Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47, 67 (Tenn. 2013). “A motion for directed

verdict requires the trial court to determine whether, as a matter of law, the evidence is

sufficient to create an issue for the jury to decide.” Dickson v. Kriger, No. W2013-02830-

COA-R3-CV, 2014 WL 7427235, at *3 (Tenn. Ct. App. Dec. 30, 2014) (quoting White v.

Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999)).

“A trial court may direct a verdict where the plaintiff’s evidence fails to establish a

prima facie case.” Spann v. Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999). Thus,

1

For instance, Plaintiff’s brief quotes two sentences from what she describes as a “publication”

called “‘TRANSPORT PROBLEMS’ 2013, Volume 8 Issue 2.” Her brief states that the trial court “allowed

[her] to read this paragraph,” although she does not cite to any location in the record to support this

assertion. From our review of the record, this treatise was referenced by Plaintiff during oral argument on

the motion for directed verdict. In the absence of any citation to the record to show that this treatise was

presented as proof at trial, we will not consider it as evidence.

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“[u]nder Rule 50 of the Tennessee Rules of Civil Procedure, to circumvent a motion for a

directed verdict, the nonmoving party must present enough evidence to establish a prima

facie case on every element of its case.” Messerli v. Williams, No. E2018-01807-COA-

R3-CV, 2019 WL 4464261, at *2 (Tenn. Ct. App. Sept. 18, 2019); see also Goree v. United

Parcel Serv., Inc., 490 S.W.3d 413, 429-30 (Tenn. Ct. App. 2015) (explaining that “the

nonmoving party must present some evidence on every element of its case—enough

evidence to establish at least a prima facie case”). A claim for negligence requires the

plaintiff “to establish, among other things, that the conduct complained of . . . was the cause

in fact of the [p]laintiff[’s] injuries.” Lake, 405 S.W.3d at 67. Accordingly, for a

negligence claim, the plaintiff must include, in his or her evidence, a prima facie showing

of causation, and a failure to do so will subject him or her to a motion for directed verdict.

See Kellon v. Lee, No. W2011-00195-COA-R3-CV, 2012 WL 1825221, at *5 (Tenn. Ct.

App. May 21, 2012); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 562 (Tenn. Ct.

App. 1985).

We note, however, that “this initial burden differs from the ultimate burden in that

it does not require a preponderance of evidence, but only requires any material evidence in

the record to support a verdict for the plaintiff[.]” Kellon, 2012 WL 1825221, at *5

(quotations omitted). Thus, “the plaintiff does not bear the burden of proving all elements

of his claim by a preponderance of the evidence at the directed verdict stage.” Dickson,

2014 WL 7427235, at *3 (citing Kellon, 2012 WL 1825221, at *5). “The trial court does

not consider the preponderance of the evidence upon a motion for directed verdict; but . . .

whether there was any material evidence to support a verdict.” Jones v. Noel, 204 S.W.2d

336, 338 (Tenn. Ct. App. 1947) (emphasis added). As such, a directed verdict is proper

when “no material evidence exists on one or more elements that the non-moving party must

prove.” Goree, 490 S.W.3d at 430 (citing Brown v. Christian Bros. Univ., 428 S.W.3d 38,

50 (Tenn. Ct. App. 2013)). “Whether the trial court should have directed a verdict presents

[the appellate court] with the legal question of whether material evidence was introduced

on every element sufficient to create a jury issue.” Id. (quoting Brown, 428 S.W.3d at 50).

Stated differently, we must decide “whether the plaintiff has presented sufficient evidence

to create an issue of fact for the jury to decide.” Twenty Holdings, LLC v. Land S. TN,

LLC, No. M2018-01903-COA-R3-CV, 2019 WL 4200970, at *6 (Tenn. Ct. App. Sept. 5,

2019) (citing Burton v. Warren Farmers Co-Op., 129 S.W.3d 513 (Tenn. Ct. App. 2002)).

To survive the motion for directed verdict, the plaintiff must have presented “some

evidence from which a reasonable juror could find all the required elements of the

plaintiff’s cause of action.” Wortham v. Kroger Ltd. P’ship I, No. W2019-00496-COA-

R3-CV, 2020 WL 4037649, at *6 (Tenn. Ct. App. July 16, 2020).

In her brief on appeal, Plaintiff argues that she presented sufficient evidence, in the

form of her three trial exhibits, to withstand the motion for directed verdict at the jury trial.

At the outset, we note that exhibit number three appears in the record but was marked with

the notation “ID.” As previously discussed, the trial court specifically noted in its final

order that Plaintiff “attempted to present evidence” regarding the part at issue, but it

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“consisted of hearsay and was excluded by the Court pursuant to the Tennessee Rules of

Evidence,” so it “cannot be considered by the Court on a Motion for Directed Verdict.”

Our review of the record confirms that the trial court excluded exhibit three and marked it

for identification only. Thus, like the trial court, we cannot consider the third exhibit

presented at trial because it was excluded on the basis on hearsay. Cf. Williams v. Brown,

860 S.W.2d 854, 857 (Tenn. 1993) (concluding that certain evidence was not admissible

and then reviewing “the remaining evidence in the record” to determine whether a directed

verdict was appropriate); Cardwell v. Bechtol, 724 S.W.2d 739, 754 (Tenn. 1987) (finding

that the trial court did not err in granting a motion for directed verdict on the issue of

malpractice because, at the close of the plaintiff’s proof, “no admissible expert testimony

existed on the record” regarding the standard of care).

The first exhibit that was admitted at trial was Plaintiff’s window sticker from her

vehicle at the time of purchase. Plaintiff argues on appeal that this sticker establishes the

vehicle manufacturer, model, year, engine size, and VIN number. She notes that the

window sticker identified the vehicle as a Saab “2011 9-5 TURBO4 SEDAN . . . ENGINE

2.0L. Next, Plaintiff relies on trial exhibit number two, which was the bill or invoice she

received from Mr. Furness at Premium Auto Repair. She notes that this invoice contained

a heading at the top for “Vehicle Info” with the typed notation “2009 Saab 9.5” It also

stated:

Description Quantity/Hours Price/Rate ... Amount

R&R Tubo 4.00 $85.00 $340.00

New Tubo 1.00 $498.00 $498.00

Coolant 1.00 $18.99 $18.99

...

Total $936.26

Taken together, Plaintiff argues that these exhibits prove that Mr. Furness “obtained the

incorrect auto components” for her vehicle. Specifically, she argues that the invoice

“misidentified” her vehicle as a 2009 Saab instead of a 2011 Saab, which, she claims,

proves that Mr. Furness “utilized the incorrect year to obtain[] the auto part[.]”

To survive a motion for directed verdict, Plaintiff had to introduce evidence during

her case in chief to establish a prima facie case of negligence against Mr. Furness. This

means that she had to introduce “material evidence” to establish causation. See Goree, 490

S.W.3d at 430. Again, in analyzing Plaintiff’s claim for negligence, the trial court found

that “even taking the strongest legitimate view of the evidence in Plaintiff’s favor,” she had

not presented “sufficient proof to show causation” and establish that Mr. Furness was

negligent. The court noted that there was no expert testimony to show that the work was

improper or negligent, or that “the wrong part was used” or the turbocharger “was

improperly installed.” The trial court found that the “only connection shown by Plaintiff”

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was the temporal proximity between the work and her alleged damages. Thus, the trial

court found that Plaintiff had not presented sufficient proof of causation to establish a prima

facie case of negligence.2

Plaintiff insists that she provided material evidence in the form of the trial exhibits.

Taking the strongest legitimate view of the evidence in favor of Plaintiff, we conclude that

it is susceptible to only one conclusion, and reasonable minds cannot differ as to the

conclusions to be drawn from the evidence. Lake, 405 S.W.3d at 67. A reasonable juror

could not find causation from this window sticker and repair bill. See Miller v. Beaty

Lumber, Inc., No. M2007-00253-COA-R3-CV, 2007 WL 4523098, at *4 (Tenn. Ct. App.

Dec. 20, 2007) (“Reasonable minds could only draw but one conclusion that there is

absolutely no evidence of a causal connection . . . . Absent pure speculation, there is no

evidence what, if any, negligent conduct caused the accident . . . The plaintiff’s evidence

must go beyond mere speculation that the defendant’s conduct caused the harm.”); Robbins

v. Memphis Little Theatre Players, No. 02A01-9601-CV-00018, 1997 WL 585743, at *1,

*5 (Tenn. Ct. App. Sept. 23, 1997) (affirming the grant of a motion for directed verdict

based on a lack of evidence of causation where “the evidence was insufficient to permit the

jury to find that the Theatre caused the alleged dangerous condition”); Stone v. K-Mart,

Inc., No. C.A. 134, 1989 WL 109479, at *2 (Tenn. Ct. App. Sept. 20, 1989) (“The

inferences pointed out by the Plaintiff upon which a jury could infer negligence, even if

taken as true for purposes of a directed verdict, simply do not rise beyond the level of pure

speculation. We realize that to withstand a motion for a directed verdict a plaintiff need not

meet the burden of preponderance of the evidence, but by the same token there must be

some material evidence beyond speculation or guess work.”). Plaintiff therefore did not

establish a prima facie case in the trial court, and the trial court did not err in granting Mr.

Furness’s motion for directed verdict on the negligence claim. 3

2

On appeal, Plaintiff cites various legal authorities regarding the tort of negligent

misrepresentation. However, she does not cite to any location in the record to show that a cause of action

for negligent misrepresentation was asserted in the trial court. See, e.g., Grogan v. Uggla, 535 S.W.3d 864,

869 (Tenn. 2017) (concluding that a plaintiff’s complaint “fairly raise[d] both negligent misrepresentation

(by way of his allegation that the defendant home inspector failed to report negligent construction) and

ordinary negligence (by way of his other allegations that amount to a claim that the defendant home

inspector negligently performed the inspection)”); Littleton v. TIS Ins. Servs., Inc., No. E2014-00938-COA-

R3-CV, 2015 WL 443740, at *2 (Tenn. Ct. App. Feb. 3, 2015) (observing that the plaintiffs asserted

“separate causes of action” for “negligence” and “negligent misrepresentation”).

3

We note that the trial court’s order explained that the only connection Plaintiff showed was the

temporal proximity between the work on her vehicle and her damages, and Plaintiff had “not established a

prima facie case of her claim.” This is the correct standard for a motion for directed verdict. However, the

court also stated that “even taking the strongest legitimate view of the evidence in Plaintiff’s favor, the

Court find[s] that Plaintiff has failed to carry her burden to show Defendant was negligent by a

preponderance of the evidence.” This statement reflects an incorrect standard. See Dickson, 2014 WL

7427235, at *3.

“Appellate courts must conduct a de novo review of a trial court’s ruling on a motion for a directed

verdict, applying the same standards that govern the trial court’s determination.” Twenty Holdings, LLC,

2019 WL 4200970, at *6. On appeal, we have determined that no material evidence was presented to

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Next, we consider Plaintiff’s TCPA claim under Tennessee Code Annotated section

47-18-104(b)(6), which states, “The following unfair or deceptive acts or practices

affecting the conduct of any trade or commerce are declared to be unlawful and in violation

of this part: . . . Representing that goods are original or new if they are deteriorated, altered

to the point of decreasing the value, reconditioned, reclaimed, used or secondhand[.]”

Again, Plaintiff argues on appeal that she presented sufficient material evidence to support

this claim based on the trial exhibits. She argues that the window sticker and invoice show

that Mr. Furness “fraudulently asserted the reconditioned turbocharger as ‘New’ condition”

because “[t]he invoice stated ‘New Tubo’ while it is a reconditioned Turbo.” However, as

the trial court found, Plaintiff “attempted to present evidence to show the turbocharger was

not actually new and had been reconditioned,” but that evidence was excluded. Thus, we

are left with the invoice introduced as exhibit two, which simply states that the turbocharger

was new. The trial court further noted that Plaintiff presented no expert proof to show that

the turbocharger that was installed was “somehow deteriorated or altered to the point of

decreasing the value, reconditioned, reclaimed, or secondhand,” within the meaning of the

statute. Ultimately, the court found that Plaintiff had failed to establish a prima facie claim

pursuant to section 47-18-104, entitling Mr. Furness to a directed verdict. We agree and

affirm the trial court’s ruling on this issue.

Plaintiff also complains on appeal that Mr. Furness “had no evidence to refute

Plaintiff’s allegations” at trial and did not have an expert to “testify in court to prove that

the turbocharger he purchased would work on Plaintiff’s 2011 Saab 9-5.” However, it was

Plaintiff’s burden to present material evidence in support of her claims, and the trial court

directed a verdict at the close of Plaintiff’s proof due to her failure to meet that burden.

Thus, she cannot complain about the lack of evidence presented by Mr. Furness.4

establish the essential element of causation for a prima facie case of negligence. As such, the trial court’s

misstatement is harmless. See Kellon, 2012 WL 1825221, at *6 (“Appellants first argue that comments

made by the trial court demonstrate a misinterpretation of the standard of proof required to show causation,

as well as an improper weighing of the evidence . . . [E]ven with these misstatements by the trial court, the

burden remains on the Appellants to present expert testimony . . . that SMC’s breach of duty was more

likely than not the cause in fact of Mrs. Kellon’s injuries. Accordingly, if there is no such evidence in the

record, the misstatements by the trial court [regarding the directed verdict standard] were harmless.”);

Jenkins v. Brown, No. M2005-02022-COA-R3CV, 2007 WL 4372166, at *8 (Tenn. Ct. App. Dec. 14, 2007)

(agreeing with the appellants that the trial court applied an incorrect legal standard when granting a Rule

50.02 motion for judgment notwithstanding the verdict when it stated that the plaintiffs “failed to prove, by

a preponderance of the evidence,” their claim, but “notwithstanding this error, we can address the question

. . . using the correct standards” and determine if “the trial court reached the correct result even if its

reasoning was flawed”).

4

Plaintiff also argues in her brief on appeal that Mr. Furness “failed to provide Plaintiff with the

12-month warranty for turbocharger replacement.” However, the only citation to the record she provides

in support of this assertion references Mr. Furness’s deposition, in which he testified that he “guarantee[s]

everything one year,” and although it was not printed “on the paper” it was “printed on the wall.”

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Next, Plaintiff argues that the “ultimate issue” of whether using the wrong

turbocharger could damage an engine can be answered “based on case law” due to this

Court’s decision in Godwin Aircraft, Inc. v. Houston, 851 S.W.2d 816, 818 (Tenn. Ct. App.

1992). Plaintiff cites this Court’s discussion of the testimony of a mechanic who had

inspected an airplane in that case and testified that “parts of the turbo charger and exhaust

system were cracked and missing and exhaust gasses had scarred the left engine support

beam which could cause the engine to fail.” Id. Plaintiff argues that her car had “the same

issues.” She also cites a federal case that involved a “grain combine powered by a turbo-

charged diesel engine.” See Wheeler v. John Deere Co., 935 F.2d 1090, 1094 (10th Cir.

1991). Plaintiff similarly attempted to present caselaw regarding turbochargers to the trial

court during her argument on the motion for directed verdict. The trial judge observed that

these cases demonstrated the weakness in Plaintiff’s case because those cases involved

expert testimony by a mechanic regarding turbochargers, while Plaintiff had no such proof

and merely suggested a “coincidental” connection based on timing and her speculation.

We agree with the trial judge that Plaintiff could not rely on this “testimony” that was not

presented at the jury trial in this case.

Finally, Plaintiff presents an issue regarding whether expert testimony was

necessary in this case. She argues that her negligence claim, regarding the repair of a

vehicle, was within the knowledge of ordinary jurors. Again, however, Plaintiff attempts

to rely on the excluded exhibit number three in an effort to show that this was a simple case

of ordering the wrong model year part, which she characterizes as an “obvious mistake.”

We cannot consider the excluded evidence. The other two exhibits she cites, the window

sticker and the invoice, simply do not show any “obvious mistake” by Mr. Furness. The

only other evidence Plaintiff cites is a single question from Mr. Furness’s deposition in

which he was asked if he had ever replaced a turbocharger on another Saab car and replied,

“Just yours[.]”

We note that the trial court did not impose any mandatory requirement of expert

testimony at trial such that Plaintiff was prevented from presenting proof of negligence in

the form of lay testimony and exhibits. During the pretrial conference with both of the pro

se litigants, Plaintiff explained her theory of negligence, and Mr. Furness made it clear that

he intended to testify that he performed the work correctly. The trial judge advised Plaintiff

that if her theory was that Mr. Furness installed the wrong part and this caused damage to

her engine, and Mr. Furness, as a mechanic, testified that this was untrue, then Plaintiff

would need an opinion from someone else to testify in order to combat Mr. Furness’s

testimony. At trial, however, the only witnesses called by Plaintiff were Plaintiff’s husband

and Mr. Furness.5

5

During his testimony, Mr. Furness acknowledged that the bill he gave to Plaintiff incorrectly

identified her vehicle as a 2009 Saab rather than a 2011 model year. However, he testified that he was

aware that the vehicle was a 2011, he did not mistakenly think it was 2009, and he ordered the necessary

part not from the information listed on the invoice but from the information on the tag on the original

turbocharger inside the vehicle. Thus, he testified that the turbocharger he ordered was for a 2.0L model

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In dismissing the negligence claim, the trial court did not flatly rely on the absence

of expert testimony and dismiss the claim outright. Instead, the court found that “even

taking the strongest legitimate view of the evidence in Plaintiff’s favor,” the “only

connection” she showed was a “temporal coincidence” between Mr. Furness’s work and

her alleged damages. (emphasis added). The court did note that Plaintiff did not present

expert testimony to show that the turbocharger was improperly installed or the wrong part.

However, it ultimately concluded that she had not presented sufficient proof to show

causation and establish a prima facie case for negligence. Thus, we interpret the trial

court’s ruling to mean that Plaintiff failed to prove causation with any evidence, expert or

not. We agree with this conclusion. See Steele v. Primehealth Med. Ctr., P.C., No. W2015-

00056-COA-R3-CV, 2015 WL 9311846, at *5-6 (Tenn. Ct. App. Dec. 22, 2015)

(concluding that a trial court erred to the extent that it held expert testimony regarding a

sidewalk was mandatory, but proceeding to consider the trial court’s additional finding that

the lay testimony presented was also insufficient to establish that a dangerous condition

existed).

IV. CONCLUSION

For the aforementioned reasons, the decision of the circuit court is hereby affirmed

and remanded. Costs of this appeal are taxed to the appellant, Xiaohua Jiang, for which

execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

9-5. When asked if he had any “evidence” to prove that he ordered the right part, he explained that it would

not fit otherwise.

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