                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                SEPTEMBER 3, 2008 Session

  JULIE A. BELLAMY v. CRACKER BARREL OLD COUNTRY STORE,
                  INC. and PAUL LUDOVISSIE

                  Direct Appeal from the Chancery Court for Wilson County
                          No. 06145    Charles K. Smith, Chancellor



                   No. M2008-00294-COA-R3-CV - Filed December 30, 2008


In this appeal, we are asked to determine whether the trial judge erred by failing to exercise his role
as thirteenth juror in denying Appellant’s motion for a new trial. In support of her argument,
Appellant urges this Court to consider comments the trial judge made in ruling on Appellees’
motions for a directed verdict; the Statement of the Evidence, Response, Reply, and Surreply; and
Appellees’ proposed order, in which the trial judge struck certain language. Appellees, however,
contend that this material is either not properly reviewable by this Court or does not bear on the issue
of whether the thirteenth juror standard was met. We reverse and remand for a new trial.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                        Remanded

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which HOLLY M. KIRBY , J., and
J. STEVEN STAFFORD , J., joined.

Douglas B. Janney, III, Nashville, TN, for Appellant

Robert W. Horton, Leslie Goff Sanders, Nashville, TN, for Appellees
                                                 OPINION

                                  I. FACTS & PROCEDURAL HISTORY

        Julie Bellamy (“Appellant” or “Ms. Bellamy”) was employed by Cracker Barrel Old Country
Store, Inc. (“Appellee” or “Cracker Barrel”) as a Restaurant Manager or as a General Manager from
June 2003 until March 17, 2006. Paul Ludovissie (“Appellee” or “Mr. Ludovissie”) was also
employed by Cracker Barrel as a District Manager and had supervisory authority over Ms. Bellamy
after her promotion to General Manager. On May 3, 2006, Ms. Bellamy filed an Amended
Complaint in the Chancery Court for Wilson County against both Cracker Barrel and Mr. Ludovissie
(collectively “Appellees”) for damages for gender discrimination, hostile work environment
harassment, and retaliation under the Tennessee Human Rights Act,1 the Tennessee Public Protection
Act,2 and Tennessee common law. Appellant contended that Ludovissie maintained a hostile and
abusive working environment by “inquir[ing] into [Appellant’s] personal and private life during
work hours, ask[ing] who she was dating, t[elling] her not to date certain individuals, and tr[ying]
to exercise control over [her] personal life.” Furthermore, Appellant’s Amended Complaint alleged
that Mr. Ludovissie “treated [her] differently and less favorably than similarly situated male
employees because she [was] female[,]” “frequently yelled and cursed at [Appellant] while she was
at work[,]” “made belittling and inappropriate statements to [Appellant,]” “threatened [Appellant]
and her continued employment[,]” and “knocked over chairs, struck objects, and threw objects in
[Appellant’s] presence and vicinity.” Appellant stated that when she reported Mr. Ludovissie’s
conduct, “[Appellees] retaliated against [her] and took steps to ensure that she would be fired for
reporting Ludovissie’s conduct.” According to Ms. Bellamy’s Amended Complaint, Cracker Barrel
stated that her termination was due to “specific reasons related to her job performance[;]”however,
“other managerial employees [who had] engaged in the same or worse alleged conduct . . . [had] not
been fired.”

        In their Answer, Appellees denied that Appellant was entitled to the relief requested. Instead,
Appellees maintained that it was only after Cracker Barrel suspended Appellant pending an
investigation “into numerous allegations of wrongdoing at the Cracker Barrel restaurant under her
management, including sexual harassment and drug dealing[,]” that Appellant complained about Mr.
Ludovissie’s conduct. Appellees further noted that Cracker Barrel “conducted a thorough
investigation into [Appellant’s] complaints” and that none of the witnesses identified by Appellant
corroborated her allegations.

       Appellant voluntarily dismissed her gender discrimination and hostile work environment
claims and a jury trial was held from November 26, 2007 through November 30, 2007 on
Appellant’s retaliation claim. The jury returned a verdict for the Appellees answering “no” to the
following question: “[D]o you find by a preponderance of the evidence that plaintiff actually and


       1
           Tenn. Code Ann. § 4-21-101, et seq.

       2
           Tenn. Code Ann. § 50-1-304.


                                                   -2-
reasonably believed that the conduct of Paul Ludovissie about which she complained was based on
her gender[.]” Following the trial, on January 7, 2008, the Chancellor entered an Order accepting
the finding of the jury and dismissing with prejudice Appellant’s retaliation claims under the
Tennessee Human Rights Act, the Tennessee Public Protection Act, and Tennessee common law.

        Appellant filed a Motion for New Trial on December 11, 2007, providing several grounds,
including that the verdict was “against the weight of the evidence” and “contrary to the law.” After
a hearing, the Chancery Court denied Appellant’s motion and entered an Order Denying Plaintiff’s
Motion for a New Trial on January 11, 2008.3 This appeal followed.

                                             II. ISSUES PRESENTED

         Appellant has timely filed her notice of appeal and presents the following issue for review:
1.       Whether the Court must reverse the trial court’s judgment denying Plaintiff-Appellant’s
         motion for a new trial and remand this case for a new trial where the trial court made
         statements and took action demonstrating that it misconceived and failed to perform its
         function as thirteenth juror.
         Additionally, Appellee presents the following issues for review:4
2.       Whether this Court may properly review the trial court’s comments during the hearing on the
         motion for a directed verdict;

3.       Whether this Court may properly review the proposed order;
4.       Whether this Court may properly review the trial court’s statements during the hearing on
         the motion for a new trial as the Statement of the Evidence, Response, Reply, and Surreply
         provide conflicting accounts of the hearing.

For the following reasons, we reverse the decision of the chancery court.




         3
             This Order Denying Plaintiff’s Motion for a New Trial, dated January 11, 2008, was re-entered on January
16, 2008.

         4
           Although the portion of Appellees’ appellate brief entitled Statement of Issue Presented for Review lists only
the issue presented by Appellant, Appellee’s Statement of the Facts and Summary of Argument sections raise these
additional sub-issues which must be answered in order to resolve Appellant’s issue.


                                                          -3-
                                    III.   STANDARD OF REVIEW

        This Court will set aside a jury’s findings of fact only if there is no material evidence to
support the verdict. Tenn. R. App. P. 13(d). “‘When addressing whether there is material evidence
to support a verdict, an appellate court shall: (1) take the strongest legitimate view of all the evidence
in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all
reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.’” Mabey
v. Maggas, No. M2006-02689-COA-R3-CV, 2007 WL 2713726, at *4 (Tenn. Ct. App. Sept. 18,
2007) (quoting Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006)). This Court, in considering
a jury verdict, must not reweigh the evidence or decide where the preponderance lies. Crabtree
Masonry Co., Inc. v. C & R Constr. Inc., 575 S.W.2d 4, 5 (Tenn. 1978). Instead, we “are limited
to determining whether there is material evidence to support the verdict.” Id. “If there is any
material evidence to support the verdict, it must be affirmed, or else the parties would be deprived
of their constitutional right to a trial by jury.” Mabey, 2007 WL 2713726, at *4 (citing Crabtree,
575 S.W.2d at 5).

                                           IV. DISCUSSION

        “The duty of a trial judge to act as thirteenth juror in a civil trial in Tennessee is well
established.” Holden v. Rannick, 682 S.W.2d 903, 904-05 (Tenn. 1984). Our Supreme Court in
Cumberland Telephone Co. v. Smithwick, 79 S.W. 803, 804 (1904), described the rule by stating:

                [T]his is one of the functions the circuit judge possesses and should
                exercise–as it were, that of a thirteenth juror. So it is said that he
                must be satisfied, as well as the jury; that it is his duty to weigh the
                evidence; and if, he is dissatisfied with the verdict of the jury, he
                should set it aside.

Thus, when a motion for a new trial is filed, the trial court is required to “independently weigh the
evidence and determine whether the evidence ‘preponderates’ in favor of or against the verdict.”
Blackburn v. CSX Transp., Inc., No. M2006-01352-COA-R10-CV, 2008 WL 2278497, at *6 (May
30, 2008) (citing Woods v. Walldorf & Co. Inc., 26 S.W.3d 868, 873 (Tenn. Ct. App. 1999); Shivers
v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996); Witter v. Nesbit, 878 S.W.2d 116, 121
(Tenn. Ct. App. 1993)). If, in the trial judge’s opinion, the verdict is “against the weight of the
evidence or contrary to law,” the trial judge must grant a new trial, “and he cannot refuse it to save
time or avoid the expense of another trial.” Wakefield v. Baxter, 297 S.W.2d 97, 99 (Tenn. Ct. App.
1956) (citing State ex rel. Richardson v. Kenner, 109 S.W.2d 95, 97 (Tenn. 1937); Turner v. Turner,
3 S.W. 121 (Tenn. 1887)). In 2003, our Supreme Court, in Davidson v. Lindsey, 104 S.W.3d 483,
488 (Tenn. 2003), “reaffirmed” the thirteenth juror standard “that had been the law in Tennessee




                                                   -4-
[for] almost 100 years[,]”5 Blackburn, 2008 WL 2278497, at *6-7, and examined the rule’s
rationale:

                          The reasons given for the rule are, in substance, that the
                  circuit judge hears the testimony, just as the jury does, sees the
                  witnesses, and observes their demeanor upon the witness stand; that,
                  by his training and experience in the weighing of testimony, and the
                  application of legal rules thereto, he is especially qualified for the
                  correction of any errors into which the jury by inexperience may have
                  fallen, whereby they have failed, in their verdict, to reach the justice
                  and right of the case, under the testimony and the charge of the court
                  ....

Id. (quoting Cumberland Tel. & Tel. Co., 79 S.W. at 804).
        Before approving a verdict, a trial judge must always weigh the evidence and determine that
the evidence preponderates in favor of the verdict, such that the trial judge is “independently
satisfied” with the verdict. Mabey, 2007 WL 2713726, at *6 (citing Holden, 682 S.W.2d at 906).
However, the trial judge is not required to expose his mental processes in exercising his role as
thirteenth juror. “In deciding [a motion for a new trial], the . . . judge is not bound to give any
reasons, any more than the jury itself is bound to do so.” Wakefield, 297 S.W.2d at 99. He is not
required to “make an express statement that the preponderance of the evidence supported the
verdict.” Mabey, 2007 WL 2713726, at * 7 (citing Taylor v. Jones, Greene Law No. 148, 1991 WL
69049, at *3 (Tenn. Ct. App. W.S. Apr. 30, 1991)). If the trial judge simply approves the verdict
without comment, this Court “must presume that the trial judge . . . weighed the evidence and
adequately performed his function as the thirteenth juror.” Mabey, 2007 WL 3713726, at *6 (citing
Holden, 682 S.W.2d at 905; Gordon’s Transps., Inc., 294 S.W.2d at 321). It is for this reason that
we suggested in Miller v. Doe, 873 S.W.2d 346, 349 (Tenn. Ct. App. 1993), that “when a trial judge
overrules a motion for new trial, . . . he simply state that he has reviewed the evidence relevant to
the issues and approves the verdict. Anything more unnecessarily runs the risk of an unwanted new
trial.”

        When a trial judge fails to heed our advice and offers comments concerning a motion for a
new trial, we must determine whether the trial judge, after reviewing the evidence, was satisfied with
the verdict. Mabey, 2007 WL 2713726, at *6 (citing Heath v. Memphis Radiological Prof’l Corp.,
79 S.W.3d 550, 554 (Tenn. Ct. App. 2001)). “If it appears from any reasons assigned or statements
made in passing on a motion for a new trial that the trial judge was not actually satisfied with the
verdict, it is the duty of the appellate courts to grant a new trial . . . .” Id. (citing Holden, 682 S.W.2d
at 905; James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613, 615 (Tenn. 1977); Shivers, 937



         5
            The thirteenth juror rule, with respect to criminal cases, was judicially abandoned in this state for a time in
State v. Cabbage, 571 S.W .2d 832 (Tenn. 1978), but was reinstated by Tenn. R. Crim. P. 33(f) in 1991. State v. Moats,
906 S.W .2d 431, 434, 434 n.1 (Tenn. 1995).


                                                           -5-
S.W.2d at 947; Miller, 873 S.W.2d at 348; Sherlin v. Roberson, 551 S.W.2d 700, 700 (Tenn. Ct.
App. 1976)); see also Miller, 873 S.W.2d at 347 (“[I]f in discharging his duty as thirteenth juror, the
trial judge makes comments which clearly indicate that he has misconceived his duty or clearly has
not followed it, this court must reverse and remand the case for a new trial.”).

        After reviewing a number of cases involving challenges to a trial judge’s execution of his role
as thirteenth juror, this Court finds two inter-related primary errors often made by trial judges in
ruling on motions for a new trial. First, many trial judges have erred by simply deferring to the jury.
For example, in Miller, 873 S.W.2d at 347-48, the trial judge, in ruling on a motion for a new trial,
stated:

                Well, what makes the judge any smarter than the jury in this case; I
                mean, you had a sympathetic client. I have to say that. No person,
                judge included, would feel other than empathy toward the situation
                in which [plaintiff’s] found herself . . .

                Well, the jury in this case had the benefit of two prepared and good
                lawyers, which isn’t always the case. The case was well presented.
                I think the issues were clear, although obviously contested.

                I’m not inclined to interfere with the verdict of the jury, and I approve
                the verdict of the jury. I understand your arguments, but the jury
                heard all these things and the jury decided the case against you. Your
                motion for a new trial is respectfully overruled.

Although the trial judge at one point stated, “I approve the verdict of the jury[,]” this court found that
the “remark [could] not be dissociated from the surrounding comments by the trial court . . . all of
which indicate[d] that . . . he simply deferred to the verdict of the jury without independently
weighing the evidence and fulfilling his role in passing on the issues presented to the jury.” Id. at
349-50. Thus, because the trial judge neglected his duty under the thirteenth juror standard, we
remanded the case for a new trial. Id. Likewise, in McLaughlin v. Broyles, 255 S.W.2d 1020, 1022-
23 (Tenn. Ct. App. 1953), in ruling on the plaintiff’s motion for a new trial, the trial judge
commented, “In these cases where the evidence is in sharp conflict the Court does not feel that he
has a right to interfere with the verdict of the jury, and overrules the motions.” In remanding for a
new trial, this Court explained, “It affirmatively appears that the learned trial judge did not exercise
that exclusive and independent judgment required of him as the thirteenth juror. . . . The trial judge
cannot evade or avoid his duty in this respect by placing the responsibility upon the jury.” Id. at
1023. Finally, in Holden, our Supreme Court remanded for a new trial where the trial judge
appeared to “approve[] the verdict because he felt that the case was fairly presented and he was not
shocked by the verdict, rather than because he reached the same verdict as the jury after
independently weighing the evidence and passing upon the issues.” 682 S.W.2d at 905-06 (“Twice
the trial judge stated that the court does not substitute its judgment for that of the jury. Because the
trial judge stopped short of making an independent decision on the issues presented by the case, and


                                                   -6-
deferred to the judgment of the jury, he failed to perform his duty as thirteenth juror.”). These cases
clearly show that by deferring to a jury’s verdict, a trial judge fails in his duty to independently weigh
the evidence and to ensure his satisfaction with the verdict, as required by the thirteenth juror
standard.

          The second primary error commonly committed by trial judges in ruling on motions for a new
trial is indicating indifference to the jury’s verdict. For example, in Holden, 682 S.W.2d at 905, the
trial judge commented that “[he] would just as readily have agreed with the verdict the other way.
The verdict neither way would have shocked the Court frankly.” We found that “[a]lthough the trial
judge said that he agreed with the verdict for the defendant, he indicated that he would also have
agreed with a verdict for the plaintiff[,]” and this “position [was] inconsistent with his duty to weigh
the evidence and pass on the issues.” Id. Similarly, in Sherlin, 551 S.W.2d at 700-01, the trial judge
stated:

                I can’t say the jury reached the wrong verdict. I can’t say that they
                reached the right verdict. Before I would as a thirteenth juror . . . set
                the verdict aside, it would have had to have been a verdict that I
                couldn’t live with, and that was not the case in this case. I thought it
                was a case that could have gone either way, very much so. . . . I can’t
                say that I can’t agree with what the jury did.

In remanding for a new trial, this Court noted:

                With deference to the trial judge, it seems to us that when he said he
                could not say the verdict of the jury was right there was a clear
                disavowal of approval. The statement immediately following, that he
                could not say the verdict was wrong, cannot be taken as neutralizing
                the first statement. Taking the two statements and considering them
                together would indicate that the judge had no opinion either way.
                These statements considered in context with the pro forma approval
                of the verdict with which he concluded his remarks seem to show
                that, notwithstanding his lack of conviction, the court was deferring
                to the verdict of the jury and disclaiming any opinion of his own.
                When he stated he could not say the verdict was right he failed to do
                precisely what he must do before rendering judgment on the verdict.
                . . . [The judge’s remarks] make it appear he disassociated himself
                from the deliberative process which is the peculiar and exclusive
                province of the jury of which the presiding judge is as much a
                member as jurors sitting in the jury box. . . . To say . . . that before the
                trial judge, acting as thirteenth juror, should set aside a verdict it
                would have to be a verdict that he could not live with would be to
                adopt a standard relieving the judge of the duty to take an unbiased
                and dispassionate view of the evidence, weigh it and determine


                                                    -7-
                whether the evidence preponderates in favor of the plaintiff or
                defendant or is equally balanced. If the judge abdicates this important
                duty justice could often miscarry.

Sherlin, 551 S.W.2d at 701. Additionally, this Court, in Craig v. Dison, No. M2003-00419-COA-
R3-CV, 2004 WL 1756056, at *3 (Tenn. Ct. App. Aug. 5, 2004), found that the thirteenth juror
standard had not been complied with where the trial judge stated that he “could not disagree with the
verdict.” We found that this statement indicated the trial judge’s failure to make an independent
evaluation of the verdict’s correctness. Id. Finally, in another case, our Supreme Court remanded
for a new trial where the trial judge acknowledged that he “[could not] say that the verdict was
unreasonable in light of the evidence presented by both sides in this case.” Jakobik, 554 S.W.2d at
615. The Court found that “the trial judge affirmatively predicated his ruling upon a finding that
there was some evidence to support the verdict and that viewing all of the evidence[,] the verdict was
not unreasonable[,]” such that the thirteenth juror standard was not satisfied. Id. at 616.

         On appeal, Appellant asserts that the chancery court made statements and took action
demonstrating that it misconceived and failed to perform its function as thirteenth juror. The
appellant carries the burden of affirmatively proving that the trial judge failed to exercise his function
as thirteenth juror. Mabey, 2007 WL 2713726, at *6 (citing Gordon’s Transps., Inc. v. Bailey, 294
S.W.2d 313, 321 (Tenn. Ct. App. 1956)). Appellant points to three pieces of evidence that she
claims show the Chancellor failed to fulfill his duty as thirteenth juror: (1) the Chancellor’s
comments following Appellees’ Motions for Directed Verdict; (2) Cracker Barrel’s Proposed Order;
and (3) Appellant’s Statement of the Evidence, Defendant’s Response, Plaintiff’s Reply, and
Defendant’s Surreply. We address the admissibility and substance of each, in turn.

                                     A. Chancellor’s Comments

         Appellant asks this Court to consider statements the trial judge made in denying Appellees’
motions for a directed verdict. The transcript of the excerpt of the trial proceedings reveals that the
trial judge did make several statements in ruling on Appellees’ motion for a directed verdict at the
close of Appellant’s case. However, at the close of all proof, when Appellees renewed their motion,
the trial judge simply stated that “I’m going to deny it on the same reason that I stated the other day.”
Appellant contends that these comments demonstrated that “the court disagreed with the position
that the evidence presented did not establish that the conduct [Appellant] reported was based at least
in part on sex or gender” and thus disagreed with the jury’s finding that the plaintiff did not actually
and reasonably believe that Mr. Ludovissie’s conduct was based on Appellant’s gender. The
pertinent comments, made at the close of Appellant’s proof, are as follows:

                I just . . . don’t believe [Mr. Ludovissie] would have . . . there’s proof
                in here that he didn’t do that toward any men. And I can’t imagine
                that happening toward a man anyway, wanting to know who they
                were going to be dating afterwards or getting upset because this guy



                                                   -8-
                told him he wasn’t going to go out with some particular girl and did
                go out with the girl.

                         You know, I see a sexual overtone here, and I think the jury
                . . . could draw that.

                ....
                I believe almost anybody with any common sense . . . because he
                apologized for asking about who – the only thing he could have
                apologized about was, he apologized to her about, [“]who are you
                going to stay with . . . that’s more important than the team and spend
                the night with[”] . . . . He apologized for that.

                        Well, obviously Mr. Warner [Mr. Ludovissie’s supervisor, to
                whom Ms. Bellamy complained] . . . knew that she was complaining
                about him treating her differently – about him treating her or asking
                her about – invading her privacy or sex life or gender or whatever this
                is here. He knew that or he wouldn’t have called and told him,
                [“]You don’t need to do that.[”]

                        It was obviously about that. He knew – Warner is not an
                idiot. He knew what was going on.

                ....

                        Well, now, I find – this is what I find. [Ms. Bellamy] put the
                company on notice of this conduct . . . when she called Warner and
                said to Warner . . . [“]Look, this guy is prying into my personal life.
                He wants to know who I’m going to be going out with, who I’m
                going to be staying with, and who it’s more important for me to be
                staying with than his group in blue.[”]

                        I don’t like that. I don’t think [Mr. Ludovissie] has a right to
                do that. And see . . . Warner knew that she was complaining about
                that, and that put him on adequate notice of that conduct.

         We find that the trial judge’s statements made in the context of the motion for a directed
verdict do not indicate that he failed to apply the thirteenth juror standard. In Mabey, 2007 WL
2713726, at *7, we found the trial judge’s statements in denying appellant’s motions for directed
verdict, that “I believe there’s a continuing issue of material fact for the jury to decide,” and “I think
it is a jury question[,]” did not suggest that the trial judge failed to perform his duty as thirteenth
juror. Instead, we noted that the judge was “merely recogniz[ing] that there was ample evidence for
the case to go to the jury because reasonable minds could differ as to the conclusion to be reached.”


                                                   -9-
Id. Likewise, we find in the instant case, as these statements were made in the context of a motion
for directed verdict, that the trial judge was merely explaining his grounds for denying Appellees’
motions–that there existed “material evidence in the record which would support a verdict for the
plaintiff.” Jamestown on Signal, Inc. v. First Fed. Savs. & Loan Ass’n, 807 S.W.2d 559, 564
(Tenn. Ct. App. 1990).

                                        B.    Proposed Order

        Additionally, Appellant asks this Court to consider, as evidence of the trial judge’s failure
to exercise his duty as thirteenth juror, Appellees’ proposed order in which the trial judge crossed
through the sentence, “As thirteenth juror, the Court agrees with the jury verdict and agrees that the
preponderance of the evidence is in favor of the defendants.” Both parties agree that at the
conclusion of the hearing, after the trial court denied Appellant’s Motion for a New Trial, Appellees
asked the trial court to sign an order that read:

                This cause came to be heard on [Appellant’s] motion for a new trial,
                memoranda, and statements of counsel, and the entire record in this
                case, from all of which it appears that the motion is not well taken
                and should be denied. As thirteenth juror, the Court agrees with the
                jury verdict and agrees that the preponderance of the evidence is in
                favor of the defendants. (emphasis added).

Although there is dispute as to why, both parties agree that the trial court struck the last sentence of
the proposed order, and instead entered an order reading:

                This cause came to be heard on [Appellant’s] motion for a new trial,
                memoranda, and statements of counsel, and the entire record in this
                case, from all of which it appears that the motion is not well taken
                and should be denied.

Appellant maintains that after marking through the last sentence of the proposed order, “[t]he Court
then expressly stated that it did not agree with the order as it was written.” However, Appellees
contend that the court merely “expressed reluctance at including the [last] sentence[,]” as “he thought
the standard was inappropriate.”

         In their brief, Appellees maintain that this Court should not consider the proposed order as
it is not a “pleading,” “deposition or other discovery,” or an “evidentiary filing . . . authenticated or
stipulated to by the parties.” We need not consider whether the proposed order is appropriate for
appellate review. Because Appellant’s Statement of the Evidence and Appellees’ Response dispute
the trial judge’s motive for striking the language, we cannot determine whether such action was
taken because the trial judge did not agree that the preponderance of the evidence was with
Appellees or because he simply believed the language superfluous. Thus, proving that the trial



                                                  -10-
judge struck a portion of the proposed order does not meet Appellant’s burden of “affirmatively
proving that the trial judge failed to exercise his function as thirteenth juror.”


                                   C. Statement of the Evidence

        Finally, Appellant asks this Court to find, based on the trial judge’s statements at the hearing
on the motion for new trial, that the trial judge failed to exercise his duty as thirteenth juror.
Tennessee Rule of Appellate Procedure 24(b) provides that “the appellant shall have prepared a
transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.”
However, if no transcript is available, “the appellant shall prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s recollection.” Tenn. R. App.
P. 24(c).

         We must note that this Court has not been provided a transcript of the hearing on Appellant’s
motion for a new trial. Appellant, under Rule 24(c), did submit a Statement of the Evidence from
such hearing. However, pursuant to Rule 24(c), Appellees filed a Response to Appellant’s Statement
of the Evidence, essentially providing their own statement of evidence, by objecting to Appellant’s
recollection of the proceeding, and setting forth Appellees’ version of the hearing. Rather than
reconciling the contradictory versions, as contemplated by Rule 24(e) and requested by Appellees,
the trial court merely certified both Appellant’s and Appellees’ accounts by certifying the record,
which included the Statement of the Evidence, Appellees’ Response, Appellant’s Response, and
Appellees’ Surreply.

        This Court has considered the difficult situation when the trial court approves both parties’
statements of the evidence or fails to settle inconsistencies between a party’s statement of the
evidence and the objections to it. In Armstrong v. Armstrong, No. D13665-1, 1988 WL 5679, at *1
(Tenn. Ct. App. W.S. Jan. 28, 1988), after the appellant filed his statement of the evidence, the
appellee initially filed an objection, but later filed her own statement of the evidence. Subsequently,
both parties submitted a consent order asking the trial court to approve both parties’ statements of
the evidence, as they were not inconsistent. Id. The trial court did so. Id. On appeal, this Court
acknowledged that “[t]he filing of two countervailing statements of the evidence in the trial court
and their submission, with the approval of the trial court, to the appellate courts of this state is
unknown to and outside of the intent and purpose of the Rules of Appellate Procedure.” Id. at *2.
We further noted:

               In proposing to the chancellor that he approve both statements of the
               evidence to be included in the record on appeal, [appellant’s] counsel
               lured the trial court into a trap and then in turn jumped into the trap
               with him. In our opinion, having two proposed statements of the
               evidence such as we have here is the same as having none.



                                                 -11-
Id. Because the appellant provided no transcript, and the differing statements of the evidence
equated to having none, this Court affirmed the trial court’s ruling. Id. (“Our Courts have held on
numerous occasions that in the absence of a transcript or statement of the evidence, it is conclusively
presumed that the action of the trial court was supported by the evidence.” Id. (citing Brooks v.
United Unif. Co., 682 S.W.2d 913 (Tenn. 1984); Rhea v. Marko Constr. Co., 652 S.W.2d 332 (Tenn.
1983); Reagor v. Dyer County, 651 S.W.2d 700 (Tenn. 1983); In re Rockwell, 673 S.W.2d 512
(Tenn. Ct. App. 1983)).

        In this case we are faced with the unenviable tasking of analyzing Appellant’s Statement of
the Evidence, Appellees’ Response, Appellant’s Reply, and Appellees’ Surreply, to determine what,
if anything, the parties agree transpired at the hearing on the motion for a new trial. Appellant
contends that there are no “significant differences” between her Statement of the Evidence and the
Appellees’ Response. We disagree.

         In her Statement of the Evidence, Appellant stated that she asked the trial court to “place the
evidence on the scales,” to “independently weigh the evidence,” and, “as thirteenth juror,” “make
a ruling as to whether the evidence preponderated in favor of, or against, the jury’s lone finding.”
However, she claims the trial court “never stated or ruled that ‘the preponderance of the evidence
was in favor of [Appellees],’ or against Plaintiff[,]” but instead “stated that the parties ‘asked for a
jury and got a jury’ and ‘had a fair jury[,]’ . . . and [he] . . . was ‘going to let them decide.’”
However, Appellees contend that trial court did not indicate its failure to apply the thirteenth juror
standard, but instead merely expressed its dissatisfaction with the standard. According to the
Appellees, “[t]he Court expressed displeasure at being required to either agree or disagree with the
jury’s verdict and having to state that the preponderance of the evidence was in favor of the
[Appellees], noting that if the [Appellant] had wanted a bench trial, she would not have asked for
a jury trial and that it seemed inappropriate to him to have to essentially independently rule on the
case when the parties had requested a jury trial.” However, Appellant’s Reply disputed Appellees’
characterization of the judge’s comments as expressing dissatisfaction with the standard, and stated
that “[t]he tenor of the Court’s decision was not at all about its thoughts on ‘the standard[.]’” Again
in their Surreply, the Appellees indicated that the trial judge “absolutely voiced [his] concern about
the appropriate standard when faced with a motion for new trial and whether the appropriate standard
was not simply whether there was sufficient evidence to support the verdict of the jury.”

        Although the above language illustrates what we find to be “significant differences” between
Appellant’s and Appellees’ accounts of the hearing, we do find certain relevant actions and
statements upon which the parties are in agreement. In addition to the parties’ agreement that certain
language was struck from the proposed order, both parties also agree concerning a statement made
by the trial judge. Appellees’ Response claims that, after being presented with Appellees’ proposed
order, the trial judge “expressed reluctance at including the sentence ‘As thirteenth juror, the Court
agrees with the jury verdict and agrees that the preponderance of the evidence is in favor of the
defendants.’” However, in expressing this reluctance, Appellees contend that “[t]he [trial judge]
specifically noted that he was not saying that he agreed or disagreed with the jury’s decision, and that
he was not saying that he would have ruled in favor of Plaintiff[.]” Appellant, in her Reply, does not


                                                 -12-
dispute the substance of the trial judge’s statement, but asserts only that the “discussion occurred
before [Appellees] presented [their] proposed order to the Court.” Thus, despite a dispute as to the
timing of the statement, both parties agree that at the hearing on the motion for a new trial, the trial
judge stated “that he was not saying that he agreed or disagreed with the jury’s decision, and that he
was not saying that he would have ruled in favor of Plaintiff[.]”

        As we stated above, in considering a motion for a new trial, the trial judge must
“independently weigh the evidence,” Blackburn, 2008 WL 2278497, at *6, to ensure that he is
independently satisfied with the verdict, Mabey, 2007 WL 2713726, at *6, and if he finds the verdict
to be “against the weight of [that] evidence or contrary to [the] law,” he must grant a new trial.
Wakefield, 297 S.W.2d at 99. If he simply denies the motion for a new trial, we must presume that
he has satisfied his role as thirteenth juror. Mabey, 2007 WL 2713726, at *7 (citing Kear v.
Birdwell, No. 03A01-9301-CV-00089, 1993 WL 262910, at *2 (Tenn. Ct. App. E.S. July 13, 1993)).
However, if he chooses to comment on the motion, we must review his comments to ensure they do
not evidence a failure to comply with the thirteenth juror standard. See id. at *6.

         We find the trial judge’s comment “that he was not saying that he agreed or disagreed with
the jury’s decisions, and that he was not saying that he would have ruled in favor of [Appellant]”
evidences a misconception of his duty as thirteenth juror, thus requiring a new trial. As the thirteenth
juror, the trial judge must do precisely what the trial judge failed to do in this case–agree with the
jury’s verdict. Because “it appears from . . . statements made in passing on a motion for a new trial
that the trial judge was not actually satisfied with the verdict,” Mabey, 2007 WL 2713726, at *6
(citations omitted), or at least “stopped short of making an independent decision concerning whether
the jury verdict was contrary to the weight of the evidence,” Craig, 2004 WL 1756056, at * 3, we
are required to grant Appellant a new trial.

                                         V. CONCLUSION

        For the aforementioned reasons, we reverse the decision of the chancery court and remand
the case for a new trial. Costs of this appeal are taxed to Appellees, Cracker Barrel Old Country
Store, Inc. and Paul Ludovissie, for which execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, P.J., W.S.




                                                 -13-
