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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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

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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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