                                                                                           08/09/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 18, 2019 Session

         REGINA SMITH ET AL. v. BENIHANA NATIONAL CORP.

                   Appeal from the Circuit Court for Shelby County
                     No. CT-001573-14 Gina C. Higgins, Judge
                      ___________________________________

                           No. W2018-00992-COA-R3-CV
                       ___________________________________


        In 2010, Decedent became ill while dining at the Benihana restaurant in Memphis,
Tennessee; despite being transported to the hospital, Decedent quickly died. Surviving
relatives of Decedent thereafter filed suit against the restaurant alleging, inter alia, that
the restaurant negligently served Decedent seafood or shellfish in spite of a known
allergy. After several years of pretrial disputes, the case eventually proceeded to a jury
trial. The jury determined that the restaurant was not liable for the death of Decedent and
awarded the plaintiffs no damages. The plaintiffs filed no post-trial motions, but filed a
timely notice of appeal to this Court. Discerning no error in the jury’s verdict and
concluding that several of the issues raised on appeal are waived, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and CARMA DENNIS MCGEE, JJ., joined.

Terrell Lee Tooten, Memphis, Tennessee, for the appellants, Regina Smith, and Lekeitha
Moore.

Lauren L. Holloway, Molly A. Glover, and William David Irvine, Jr., Memphis,
Tennessee, for the appellee, Benihana National Corp.

                                        OPINION

                                      BACKGROUND

      At the outset we note that the factual and procedural history of the present case
can only be described as tortuous. This matter arose after the death of Elliott Smith
(“Decedent”) on or about December 4, 2010, after Decedent dined at the Benihana1
restaurant located in Memphis, Tennessee. As a result, Regina Smith and Lekeitha
Moore,2 on behalf of Decedent’s minor children (collectively, “Appellants”) filed suit
against Benihana of Tokyo, Inc. on November 14, 2011. The basis of this suit was that
Decedent suffered from an allergy to all seafood and allegedly passed away as a result of
ingesting seafood or seafood particles while dining at the Memphis Benihana on the
evening in question. The initial case was voluntarily dismissed and timely refiled in April
of 2014 in the Shelby County Circuit Court (“trial court”). In the refiled complaint,
Appellants alleged causes of action for negligence, gross negligence, loss of consortium,
premises liability, res ipsa loquitur, intentional infliction of emotional distress, and
negligent infliction of emotional distress. Essentially, this complaint averred that
Benihana of Tokyo was responsible for Decedent’s death by failing to properly prepare
Decedent’s meal without seafood in it, and by failing to protect Decedent “against
ingestion and/or exposure to allergens” that were present in the restaurant and harmful to
Decedent. Benihana of Tokyo moved to dismiss the complaint, arguing that it did not
operate or control the Memphis Benihana.

       Appellants thereafter filed an amended complaint on July 21, 2014, naming
Benihana, Inc.3 and Benihana National Corp. (“Appellee”) as defendants. The amended
complaint asserted largely the same allegations regarding the death of Decedent. The
Appellee moved to dismiss the amended complaint alleging that service of process was
not appropriately carried out. In the meantime, Appellants filed a motion for partial
summary judgment on December 7, 2016, wherein they asserted that Appellee caused
Decedent’s death “by failing to ensure that his meal was not contaminated with seafood”
and by failing to ensure that Decedent “was not exposed to a dangerous amount of smoke
which contained seafood elements.” Appellants essentially urged that Appellee was
negligent in either allowing seafood to contaminate Decedent’s meal, or by failing to
protect Decedent from inhaling aerosolized seafood particles while dining.4 Appellants
attached to this motion the affidavit of Dr. Donald Accetta, who opined that Decedent
had died from a massive, deadly “reaction called anaphylaxis due to contamination of the
food that he was eating at the Benihana restaurant.” Eventually, the trial court held a
hearing on the various pending motions and concluded that the amended complaint
        1
          Benihana restaurants are ones in which patrons dine at “hibachi tables” such that the patrons
may watch the preparation of their food directly in front of them on a large grill. The menu of the
Benihana restaurant at issue here is contained in the record and reflects that many of the available items
contain seafood and/or shellfish.
        2
          Regina Smith is the mother of Decedent, and Lekeitha Moore is the biological mother of
Decedent’s two children, both of whom were minors at the time of the filing of the original complaint.
        3
          Benihana, Inc. was eventually dismissed from this case entirely on the basis that it was not a
proper party to the action. Benihana National Corp. was the only defendant at trial and is the only
defendant participating in the present appeal.
        4
          Importantly, Appellants made an allegation in their motion for partial summary judgment that
was not present in the operative complaint; specifically, Appellants asserted that Appellee was also liable
for Decedent’s death on the basis of products liability.
                                                   -2-
should be dismissed with prejudice.5 An order was entered April 4, 2017, dismissing
Appellants’ claims entirely.

       Thereafter, Appellants filed a motion to alter or amend the April 4, 2017 order
dismissing their complaint, arguing that counsel for Appellants had not been made aware
that the motion to dismiss was set for hearing the day it was heard. Further, they alleged
that the trial court failed to appropriately state the basis for the dismissal or otherwise
specify the facts and law relied upon in deciding to dismiss the case.

       On September 1, 2017, the trial court entered several orders. First, the trial court
set aside its April 4, 2017 order dismissing the case with prejudice; the trial court based
this decision on “the need to review all available material information, facts, and for the
Court to consider the arguments of counsel in relation to the interpretation of the facts in
this case.” After setting the previous order aside, the trial court reconsidered Appellee’s
motion to dismiss, and determined that certain claims should indeed be dismissed.
Specifically, the trial court dismissed the loss of consortium claims of Regina Smith and
Lekeitha Moore,6 as well as the causes of action based upon premises liability and res
ipsa loquitur. The trial court concluded that the action would thus “proceed solely under
the Wrongful Death statute.” Accordingly, Appellee’s motion to dismiss was denied in
part and granted in part, and the case proceeded. Trial was set for May 21, 2018.

       At this time, Appellants’ motion for partial summary judgment remained pending.
Appellee responded to this motion by asserting that disputed issues of material fact
remained surrounding the cause of Decedent’s death. In support, Appellee produced
Decedent’s death certificate that indicated that Decedent died from severe bronchial
asthma, rather than from an allergic reaction to seafood or seafood particles. However,
Appellee later filed its own motion for summary judgment in April of 2018, wherein it
sought dismissal of all claims on the basis that no genuine issues of material fact
remained. Specifically, Appellee argued that it could not be liable for negligently serving
Decedent seafood because Decedent was aware of the danger of seafood exposure at
Benihana, as Decedent undisputedly dined at Benihana on a regular basis. With regard to
Appellants’ argument that Decedent may have died from inhaling aerosolized seafood
particles while dining at Benihana, Appellee asserted that it had no duty to protect
Decedent from “steam emanating off the grill at Benihana” because injury from such
steam would have been entirely unforeseeable by the Appellee. Essentially, Appellee
asserted that Appellants could not satisfy their burden of proof as to any of the claims at
issue.


       5
          The trial court issued the oral ruling granting the Appellee’s motion to dismiss on March 31,
2017, at a hearing which the Appellants’ counsel did not attend.
        6
          This order stated that this ruling did not affect any loss of consortium claims by Decedent’s
minor children.
                                                 -3-
        Protracted litigation continued, including various discovery disputes between the
parties. Finally, on May 4, 2018, the trial court entered an order denying Appellants’
motion for partial summary judgment, noting that there were significant issues of
material fact outstanding and that “causation for the death [of Decedent] was a huge issue
in terms of whether the cause of death was due to an allergy versus asthma.” The trial
court eventually held a hearing on Appellee’s motion for summary judgment on May 11,
2018; however, the trial court did not rule on the motion that day. Rather, the trial court
revisited Appellee’s motion at another hearing on May 18, 2018, at which time the trial
court again did not expressly rule on Appellee’s motion for summary judgment. The trial
court did, however, state that “this tortured case needs to just get to trial so we can get
this behind us. . . . Win lose or draw, you all need to let these individuals in that box
make determinations as to where this case is going to go.” As such, it appeared as if
Appellee’s motion for summary judgment was denied, as the trial court concluded that a
trial on the merits would go forward; however, no written order relating to the Appellee’s
motion for summary judgment was ever entered. The case proceeded to trial on May 21,
2018.

        Despite the fact that both parties filed numerous motions in limine in an attempt to
exclude one another’s expert witnesses, the trial court ultimately allowed both parties to
present testimony from their respective expert witnesses. After the close of evidence, the
trial court refused to instruct the jury on, inter alia, punitive damages, gross negligence,
or Appellants’ theory that the inhalation of seafood particles caused Decedent’s death.
The jury eventually returned a verdict in favor of Appellee, finding that it was not liable
for Decedent’s death. Appellants filed no post-trial motions; however, they filed a notice
of appeal to this Court on May 31, 2018.

                                   ISSUES PRESENTED

       Appellants raise several issues for review, which we have taken verbatim from
their appellate brief:

       1.     The trial court erred in denying [Appellants’] motion for partial
              summary judgment.
       2.     The trial court erred in dismissing [Appellants’] claim for premises
              liability and negligence based upon the theory of inhalation of
              seafood.
       3.     The trial court erred in dismissing [Appellants’] claims under the
              theories of gross negligence and product liability based upon the
              theory of ingestion and inhalation of seafood.
       4.     The trial court erred in granting [Appellee’s] motion for summary
              judgment.
       5.     The trial court erred in failing to exclude [Appellee] witnesses
              Stephen Taylor, Dr. Marco Ross, and Dr. David Amrol.
                                           -4-
       6.     The trial court erred in denying [Appellants’] request to instruct the
              jury on the claim of negligence due to inhalation and in denying [sic]
              request for jury instruction on punitive damages.

       The Appellee raises no additional issues for review.

                                  STANDARD OF REVIEW

       Regarding the review of a trial by jury, we have previously explained that
       [w]ith the constitutional underpinning of the right to a jury trial framing the
       appellate process, Tennessee Rule of Appellate Procedure 13(d) narrowly
       limits the role of appellate courts in reviewing the factual findings of a
       jury. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct.
       App. 2013). When the factual foundation of a jury verdict is challenged on
       appeal, it will only be set aside when there is no material evidence to
       support it. Tenn. R. App. P. 13(d). Nevertheless, we review the trial court’s
       conclusions     of    law    de     novo with        no presumption of
       correctness. See Elchlepp v. Hatfield, 294 S.W.3d 146, 149 (Tenn. Ct. App.
       2008).

In re Estate of Link, 542 S.W.3d 438, 451 (Tenn. Ct. App. 2017).

                                        DISCUSSION

       As an initial matter, we must discuss the state of the briefing in this case. Although
both parties’ briefs comply with the minimum mandates of Rule 27 of the Tennessee
Rules of Appellate Procedure, the arguments of the parties, particularly Appellants, are
often difficult to discern and unsupported by the record on appeal. However, we will
attempt to address the arguments raised by Appellants as best we are able.

                                              I.

        Appellants first argue that the trial court erred in denying their pre-trial motion for
partial summary judgment filed in December of 2016. “Summary judgment is a
procedural mechanism for avoiding the time and expense of trial by concluding cases that
can be resolved on dispositive legal issues alone.” In re Estate of Link, 542 S.W.3d at
453 (citing Messer Griesheim Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d 588, 608
(Tenn. Ct. App. 2001)). Accordingly, when a motion for summary judgment is denied on
the basis that disputed material facts exist, the denial of that motion is not appealable
after a trial on the merits has occurred. Id; (citing In re Estate of Blackburn, 253 S.W.3d
603, 611 (Tenn. Ct. App. 2007)); see also Hobson v. First State Bank, 777 S.W.2d 24,
32 (Tenn. Ct. App. 1989) (“When the trial court’s denial of a motion for summary
judgment is predicated upon the existence of a genuine issue as to a material fact, the
                                               -5-
overruling of that motion is not reviewable on appeal when subsequently there has been a
judgment rendered after a trial on the merits.”).

       In light of the foregoing, we decline to address Appellants’ contention that the trial
court erred in denying Appellants’ motion for partial summary judgment. Here, the trial
court clearly stated in its order denying the motion that the case was fraught with
“multiple disputed issues of material fact[,]” noting specifically that the cause of
Decedent’s death remained “a huge issue.” Because Appellants’ motion was denied on
the basis of outstanding disputes of material fact, and the case indeed proceeded to a trial
on the merits, the trial court’s denial of Appellants’ motion is not an appealable issue. See
In re Estate of Link, 542 S.W.3d at 453.

                                             II.

        We next address Appellants’ second issue for review, which appears to be
twofold. We perceive Appellants’ assertion here to be that (1) the trial court erred in
dismissing Appellants’ premises liability claim pretrial, and (2) that the trial court also
erred in dismissing Appellants’ common law negligence claim based upon the theory of
inhalation of seafood. Consequently, we will address both of these assertions
individually, beginning with the trial court’s pretrial dismissal of Appellants’ premises
liability claim.

       Appellants’ claim based upon premises liability was dismissed for failure to state a
claim for which relief could be granted. As such, we consider the appeal of this issue
under the standard of review applicable to motions to dismiss pursuant to Tennessee Rule
of Civil Procedure 12.02(6). A Rule 12.02(6) motion to dismiss tests the legal
sufficiency of the complaint. Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). It
admits the truth of all relevant and material allegations, but asserts that such allegations
do not constitute a cause of action as a matter of law. See Riggs v. Burson, 941 S.W.2d
44, 47 (Tenn.1997). When considering such a motion, we are limited to an examination
of the complaint alone. Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708, 710
(Tenn. Ct. App. 1990).

       In short, a Rule 12.02(6) motion to dismiss seeks only to determine whether the
pleadings state a claim upon which relief can be granted, and challenges only the legal
sufficiency of the complaint, not the strength of the plaintiff’s proof. Edwards v. Allen,
216 S.W.3d 278, 284 (Tenn. 2007). In considering such a motion, the court should
construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact
therein as true. Cook ex. rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d
934, 938 (Tenn. 1994). This Court upholds the grant of a motion to dismiss only when it
appears that the plaintiff can prove no set of facts in support of a claim that will entitle
him or her to relief. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

                                            -6-
       The relevant claim here is premises liability, a form of negligence. In Tennessee,
“[b]usiness proprietors are not insurers of their patrons’ safety.” Parker v. Holiday Hosp.
Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (quoting Blair v. W. Town Mall,
130 S.W.3d 761, 764 (Tenn. 2004)). Property owners are, however, required to exercise
due care under all the circumstances. Blair, 130 S.W.3d at 764. “This general duty of due
care imposes upon a property owner the responsibility of either removing, or warning
against, any dangerous condition on the premises of which the property owner is actually
aware or should be aware through the exercise of reasonable diligence.” Parker, 446
S.W.3d at 350 (citing Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). A property
owner’s duty, however, does not include “the responsibility to remove or warn against
conditions from which no unreasonable risk was to be anticipated, or from those which
the occupier neither knew about nor could have discovered with reasonable care.” Rice v.
Sabir, 979 S.W.2d 305, 308–09 (Tenn. 1998) (citations and internal quotation marks
omitted).

       As such, “[t]he duty applicable to premises owners only requires them to remove
or warn against conditions that are, in fact, dangerous.” Newcomb v. State, No. M2014-
00804-COA-R3-CV, 2015 WL 3956038, at *3 (Tenn. Ct. App. June 26,
2015) (citing Parker, 446 S.W.3d at 350). Indeed, an owner or occupier of land cannot be
liable for failing “to exercise reasonable care to prevent injury to persons on their
property if there is no evidence of a dangerous or defective condition.” Nee v. Big Creek
Partners, 106 S.W.3d 650, 653 (Tenn. Ct. App. 2002). Therefore, in order to hold a
premises owner liable for an injury, there must be some evidence that a dangerous
condition actually existed on the premises. Id. at 654. “‘To hold otherwise would
necessarily cast the premises owner in the role of an absolute insurer of the social guest’s
safety, which is not contemplated by our negligence law.’” Steele v. Primehealth Med.
Ctr., P.C., No. W2015-00056-COA-R3-CV, 2015 WL 9311846, at *10 (Tenn. Ct. App.
Dec. 22, 2015) (citing Norfleet v. Pulte Homes Tenn. Ltd. P’ship, No. M2011-01362-
COA-R3-CV, 2011 WL 5446068, at *5 (Tenn. Ct. App. Nov. 9, 2011)).

       Here, Appellants asserted in the amended complaint that Appellee was liable for
Decedent’s death on the basis that Appellee “failed to act reasonably, responsibly and/or
with due care[,]” and that Appellee failed to adequately protect Decedent from “ingestion
and/or exposure to allergens that could harm [Decedent].” The complaint further alleges
that Appellee knew that Decedent suffered from some sort of seafood or shellfish allergy
yet “wholly failed to implement adequate safeguards at all times material hereto.”
Essentially, the gravamen of Appellants’ premises liability claim is that Appellee was
aware of Decedent’s alleged allergy, but nonetheless failed to take appropriate steps to
ensure that Decedent was not exposed to harmful allergens.




                                           -7-
        The trial court entered an order on September 1, 2017, stating that the premises
liability claim was dismissed with prejudice.7 On appeal, Appellants again assert that
Appellee was negligent in its preparation of Decedent’s meal on the evening of
December 4, 2010, and that Appellee was aware that customers could potentially suffer
an allergic reaction by inhaling the smoke from the hibachi grill at the restaurant. On
balance, Appellee avers in its appellate brief that none of the foregoing allegations
amount to a dangerous condition such that a premises liability claim is viable under the
circumstances, and that the trial court was thus correct to dismiss the premises liability
claim at the outset.

        Under these circumstances, we tend to agree with Appellee. Turning to the
complaint, there are simply no allegations contained therein that suggest that “a
dangerous condition actually existed on the premises.” Nee, 106 S.W.3d at 653. While
the complaint appears to allege that the cause of Decedent’s death was Appellee’s failure
to properly prepare Decedent’s dinner, nowhere in the complaint is there an allegation
that this failure somehow amounts to a dangerous or hazardous condition on Appellee’s
premises. Rather, the allegations in the amended complaint suggest that the alleged harm
to Decedent was caused by conduct of Appellee’s employees in the course of preparing
Decedent’s food. As such, Appellants conflate premises liability, which stems from a
property owner’s “superior knowledge of conditions of the premises[,]” with a typical
common law negligence claim. Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998)
(emphasis added). To that point, Appellant has failed to cite to a single case, in Tennessee
or otherwise, in which a plaintiff successfully brought a premises liability action against a
restaurant after suffering an allergic reaction to that restaurant’s food; moreover, our
research has not revealed the existence of single case to support the claim that this
scenario is cognizable as a premises liability claim.

        While we are required to construe the complaint liberally in favor of Appellants, it
is not the duty of this Court “to create a claim that the pleader does not spell out in his
complaint.” Moses v. Dirghangi, 430 S.W.3d 371, 378 (Tenn. Ct. App. 2013) (citing
Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 704 (Tenn. 2002)).
Indeed, “[w]hen the Court is dealing simply with allegations in pleadings . . . [we are] not
free to construct additional facts or allegations.” Id. (citing Chism v. Mid-South Milling
Co., Inc., 762 S.W.2d 552 (Tenn. 1988)). Here, even giving all reasonable inference in
favor of Appellants, the complaint does not allege that a dangerous condition existed on
Appellee’s premises on the evening of Decedent’s passing. See Wolcotts, 807 S.W.2d at
710 (noting that we are limited to an examination of the complaint alone when
considering a failure to state a claim for which relief can be granted). Instead, it appears
that the gravamen of the complaint is that Decedent was harmed by the negligence of
Appellee’s employees in preparing his meal.8 Moreover, Appellants concede that

       7
           This order contained no accompanying analysis.
       8
           For example, Appellants asserted the following in support of their premises liability claim:
                                                    -8-
Appellant was a frequent diner at the Benihana restaurant and had never suffered an
injury until the night of December 4, 2010; nothing in the complaint indicates that the
condition of the restaurant changed between these prior visits and the night of Decedent’s
alleged injury—only the alleged conduct of Benihana employees. In the absence of both
proper allegations that it was a condition on the premises that caused Decedent’s injury,
rather than the negligence of an employee, as well as relevant authority to support this
claim, we decline to conclude that the trial court erred in dismissing this claim. Cf. Nee,
106 S.W.3d at 654 (“If no dangerous or defective condition exists, an owner or occupier
cannot be held liable for failing to take action in order to remedy the supposed
condition.”). Because we are not free to construct additional allegations on behalf of the
Appellants, we must conclude that the trial court correctly granted Appellee’s motion to
dismiss Appellants’ premises liability claim.

       We turn now to the next facet of the second issue presented for review.
Specifically, Appellants assert in their brief that the trial court “erred in dismissing
[Appellants’] claim for . . . negligence based upon the theory of inhalation of seafood.”
Respectfully, we are puzzled by this assertion. Appellants do not cite to the point in the
record at which the trial court dismissed Appellants’ negligence claim, nor has our own
review of the record revealed when such a dismissal occurred. On the contrary,
Appellants proceeded to a jury trial on their negligence claim, and the jury heard expert
testimony regarding the possibility that Decedent inhaled aerosolized seafood particles on
the evening he died. Accordingly, the assertion that the trial court somehow “dismissed”


        49. [Appellee] along with its chefs, supervisors and managers failed to act
        reasonably, responsibly and/or with due care at all times material herein.

        50. [Appellee] along with its chefs, supervisors and managers failed to provide
        adequate protection against ingestion and/or exposure to allergens that could harm [Decedent].

        51. [Appellee] along with its chefs, supervisors and managers failed to provide
        proper care and assistance to [Decedent] during and after his illness from exposure
        to the seafood or shell fish allergens.

                                                *         *      *

        57. [Appellee] wholly failed to implement adequate safeguards at all times material hereto.

        58. [Appellee’s] were in a superior position to that of [Decedent] to know the extent of past
        patrons who suffered allergic reactions on or about the premises of Benihana’s.

        59. [Appellee’s] were better equipped than [Decedent] and other patrons to take appropriate
        measures to eliminate harm and potential for harm.

As the foregoing demonstrates, the operative complaint alludes to Appellee’s failure to protect Decedent;
however, it is unclear what dangerous condition Appellee is supposed to have protected Decedent from.
                                                    -9-
Appellants’ negligence claim prior to trial is contrary to the record on appeal. As such,
this issue lacks merit.9

                                                     III.

       The third issue on appeal as framed by Appellants is, again, two-fold. Specifically,
Appellants urge that the trial court erred in dismissing their claims for (1) gross
negligence, and (2) “product liability based upon the theory of ingestion and inhalation of
seafood.”

       We first address the averment that the trial court erred in dismissing Appellants’
claims under the theory of gross negligence. Here, Appellants yet again seem to
misunderstand the events of their own trial. There is no point in the record at which the
trial court outright dismissed any claim for gross negligence; rather, the trial court
rejected Appellants’ request, after the close of proof, for a jury instruction regarding
gross negligence. Specifically, the trial court stated to Appellants’ counsel that a jury
instruction on gross negligence would not “be a proper instruction based on” the evidence
presented at trial. Accordingly, although difficult to discern from the inartful manner in
which Appellants have framed this particular issue, we perceive Appellants to be
asserting that the trial court erred in its decision not to instruct the jury on gross
negligence.

        Tennessee Rule of Appellate Procedure 3(e) provides that

        in all cases tried by a jury, no issue presented for review shall be predicated
        upon error in 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, or other ground
        upon which a new trial is sought, unless the same was specifically stated in
        a motion for a new trial; otherwise such issues will be treated as waived.

(emphasis added). Consequently, “[i]n all civil cases tried to a jury, any ground not cited
in the motion for new trial has been waived for the purposes of appeal.” Waters v. Coker,
229 S.W.3d 682, 689 (Tenn. 2007) (citing Boyd v. Hicks, 774 S.W.2d 622, 625 (Tenn.
Ct. App. 1989)). Indeed, as is relevant here, “any issues concerning instruction given or
refused by the trial court are waived unless included in the motion for new trial.” Id.
(citing State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994)).


        9
          To the extent that this issue concerns the purported grant of summary judgment to Appellee, it is
discussed infra. Moreover, to the extent that this issue involves the trial court’s failure to instruct the jury
as to the Appellants’ inhalation theory, it is waived to the same extent as his claim for gross negligence,
also discussed infra.
                                                    - 10 -
       In the present case, Appellants declined to file a motion for new trial. While they
assert on appeal that a motion for new trial would have been futile under these
circumstances, they cite no legal authority to support this argument. In the absence of a
motion for new trial raising this issue or any support for their assertion that they were
excused from this requirement, the issue of whether the trial court erred in refusing to
instruct the jury on gross negligence is waived. See Tenn. R. App. P. 3(e); see also
Waters, 229 S.W.3d at 689; Fahey v. Eldridge, 46 S.W.3d 138, 143 (Tenn. 2001).

        The second portion of the third issue on appeal is Appellants’ averment that the
trial court erred in dismissing Appellants’ claim regarding “product liability based upon
the theory of ingestion and inhalation of seafood.” In their appellate brief, Appellants
discuss the requirements for bringing an action under the Tennessee Products Liability
Act (“TPLA”), found at Tennessee Code Annotated section 29-28-101, et seq.
Specifically, Appellants assert that they “made a prima facie showing under the TPLA”
by demonstrating that the meal served to Decedent by Appellee on the evening of
December 4, 2010 was “unreasonably dangerous.” Appellants further assert that there “is
clearly a genuine issue of material fact” in this regard.

        Appellants are not entitled to relief as to this issue for several reasons. First,
Appellants did not assert a products liability claim or any claim under the TPLA in the
operative complaint, but rather raised this issue for this first time upon filing their motion
for partial summary judgment in December of 2016.10 Accordingly, no products liability
claim was ever properly raised in the trial court, and Appellants are not entitled to relief
on this issue. See Tenn. R. App. P. 36(a) (noting that this Court is not required to grant
relief “to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”).

       Even assuming that Appellants’ products liability claim was viable, nothing in the
record suggests that this claim was dismissed by the trial court. Indeed, there is no order
of dismissal addressing such a claim, nor was any purported products liability action
disposed of upon motion for summary judgment.11 Further, Appellants did not seek jury
instructions regarding products liability, the TPLA, or negligence per se. Consequently, it
is simply impossible for this Court to discern what Appellants refer to in making the
assertion that the trial court erred in dismissing their products liability claim; indeed, it
seems that this claim was never properly raised in the trial court. As such, we need not
address the merits of this issue.


        10
           In the motion for partial summary judgment, Appellants couched their products liability claim
as “negligence per se,” therein asserting that “[the TPLA] gives rise to a cause of action against
[Appellee] . . . the [Appellee’s] failure to warn [Decedent] of the dangerous condition constitutes
‘negligence per se.’”
        11
            As discussed at length infra, there is no order in the record granting Appellee summary
judgment as to any issue.
                                                - 11 -
                                                  IV.

        Appellants’ fourth issue for review is whether the trial court erred in granting
Appellee’s motion for summary judgment, filed April 11, 2018. Respectfully, this issue
once again contradicts the procedural history as reflected in the record on appeal. In their
brief, Appellants appear to argue that the manner in which Appellee’s motion for
summary judgment was set and heard was in error and prejudicial to Appellants;
Appellants also attempt to explain their failure to file a response to Appellee’s statement
of undisputed facts. However, Appellants’ explanation of this issue is largely unhelpful as
the brief fails to direct this Court to the point in the record at which the trial court actually
granted Appellee summary judgment as to any issue.12 In that vein, Appellee asserts in its
appellate brief that it was never granted summary judgment, and that the claims
remaining in the case in fact proceeded to a trial by jury. As such, the question of whether
the trial court intended to grant summary judgment to Appellee remains unclear.

        While there are various points in the record that allude to the possibility that the
trial court did grant summary judgment to Appellee as to some issues, there is also
colloquy between the parties and the trial court in the transcript that suggests that the trial
court simply denied all motions for summary judgment. Specifically, as previously
discussed, in a hearing held on May 18, 2018, at which the trial court considered
Appellee’s motion for summary judgment, the trial court made a statement indicating that
the case should be tried before a jury. On the other hand, at a different point in the
transcript, when the parties and the trial court are discussing jury instructions, the trial
court states the following: “At the time of the reading, arguing and ruling on the motion
for summary judgment, this Court is convinced that [Appellant] had not shown that the
defendants had a duty to warn as to inhalation. And that’s ultimately how that ruling
came about.” Troublingly, the foregoing statement suggests that summary judgment was,
at some point, orally granted. This confusion is exacerbated by the fact that the Appellee
asserted in its trial brief that it had been awarded summary judgment, and now on appeal
urges that no such motion was ever granted.13

       Again, the parties’ briefing and the record make it difficult for this Court to
discern what truly occurred in the trial court. Regardless, the fact that summary judgment
may well have been orally granted is of no consequence in this Court in the absence of a
written order memorializing that ruling. Indeed, “it is well-settled . . . that a court speaks
through its orders and not through the transcript.” Alexander v. JB Partners, 380 S.W.3d

        12
           In fact, Appellants in another portion of their brief concede that a written order granting
Appellee summary judgment was never entered by the trial court.
        13
           While we have frequently cited Appellants’ deficient briefing throughout this Opinion, on this
point, Appellee’s arguments are equally deficient. At different times in the trial court and on appeal,
Appellee has made conflicting statements with regard to the disposition of its motion for summary
judgment. These conflicting statements have only added to our difficulty in discerning the issues in this
case.
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772, 777 (Tenn. Ct. App. 2011) (citing Steppach v. Thomas, 346 S.W.3d 488, 522 (Tenn.
Ct. App. 2011)). “As we noted in Steppach, we review the trial court’s written orders on
appeal.” Id.; see also City of Oak Ridge v. Levitt, 493 S.W.3d 492, 503 (Tenn. Ct. App.
2015) (“In Tennessee, courts generally speak through written orders rather than oral
rulings.”); Kadivar v. Fathiamirkhiz, No. M2014-02353-COA-R3-CV, 2016 WL
2931121, at *5 (Tenn. Ct. App. May 13, 2016) (quoting Palmer v. Palmer, 562 S.W.2d
833, 837 (Tenn. Ct. App. 1977) (“No principle is better known than that which states that
a Court speaks through its orders and decrees entered upon the minutes of the Court.”)).
        In light of the trial court’s failure to enter a written order granting Appellee
summary judgment, and the fact that Appellants were allowed to proceed to a trial on the
merits of their negligence claim, we decline to conclude that the trial court committed
error in purportedly granting Appellee’s motion for summary judgment.

        Although certainly not framed in this way, again, Appellants’ issue could be
perceived as arguing that the trial court erred in refusing to allow a jury instruction on the
theory of inhalation of seafood as a cause of decedent’s death. Here, the trial court’s
ruling disallowing such an instruction does mention an earlier ruling granting summary
judgment on this claim on the basis of Appellants’ failure to show that a duty was owed
to Decedent under the circumstances. Although Appellants were permitted to present
evidence related to this theory, we can conceive that a litigant could be prejudiced by a
trial court’s failure to follow through with granting summary judgment by written order,
while using such a purported ruling to deny the litigant a jury instruction on a theory that
remained part and parcel of the case. Appellants’ failure to file a motion for new trial,
however, forecloses review on this issue.14 As previously discussed, Rule 3(e) requires
that an appellant file a motion for new trial in order to raise issues regarding jury
instructions. Tenn. R. App. P. 3(e). The purpose of a motion for new trial is to “help to
ensure that the trial judge might be given an opportunity to consider or reconsider alleged
errors committed during the course of the trial or other matters affecting the jury or the
verdict.” Fahey v. Eldridge, 46 S.W.3d 138, 142 (Tenn. 2001) (citing McCormic v.
Smith, 659 S.W.2d 804, 806 (Tenn. 1983)). Further, the practice of filing a motion for
new trial “significantly aids the functions of the appellate courts by limiting and defining


        14
            We acknowledge that there are narrow instances in which the failure to raise an issue in a
motion for new trial is not fatal. See Waters v. Coker, 229 S.W.3d 682, 690 (Tenn. 2007) (“Typically, an
issue not brought to the trial court’s attention in the motion for new trial cannot be raised on appeal unless
it amounts to plain error seriously affecting the fairness, integrity, or public reputation of judicial
proceedings.”) (citations omitted). Here, however, Appellants have not asserted that the trial court
committed plain error in connection with the failure to enter an order on Appellee’s motion for summary
judgment and later denying Appellants’ requested jury instruction. In a similar circumstance, the
Tennessee Supreme Court declined to analyze plain error where “[t]here has been no specific allegation
of plain error in this instance and no argument addressing the factors permitting its application.” Id. at
690. In the absence of any argument in support of plain error, we likewise decline to relieve Appellants
from the waiver caused by their failure to file a motion for new trial.
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the issues for review.” Id.; see also Tenn. R. App. P. 3(e). Such a motion would have
been of particular importance in the case-at-bar.

       As such, to the extent that Appellants’ argument on this issue is construed as
contesting the trial court’s refusal to allow a jury instruction on the inhalation theory
given the trial court’s failure to enter an order granting summary judgment, such issue is
waived.

                                             V.

        Next, Appellants urge that the trial court erred in failing to exclude various expert
witnesses produced by Appellee at trial. The Tennessee Rules of Appellate Procedure
provide that “in all cases tried by a jury, no issue presented for review shall be predicated
upon error in the admission or exclusion of evidence . . . unless the same was specifically
stated in a motion for new trial; otherwise such issues will be treated as waived.” Tenn.
R. App. P. 3(e). Indeed, “[i]t 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 new trial.” Fahey, 46 S.W.3d at 142. With regard to witness
testimony, “a well-drafted motion alleging improper admission or exclusion of testimony
. . . should identify the witness giving the testimony and provide a short and plain
summary of the testimony improperly admitted or excluded.” Id. at 143. As we have
already discussed at length, no motion for new trial was filed in the present case, much
less an explanation as to why Appellee’s witnesses should have been excluded by the trial
court. Consequently, we conclude that Appellants failed to preserve this issue for
appellate review. See Tenn. R. App. P. 3(e); Fahey; 46 S.W.3d at 142.

                                            VI.

       Appellants’ sixth and final issue is waived on the same basis. Here, Appellants
take issue with the trial court’s decision not to give various instructions to the jury,
including an instruction on punitive damages. As mentioned supra, however, Tennessee
Rule of Appellate Procedure (3)(e) makes clear that “ no issue presented for review shall
be predicated upon error in . . . jury instructions granted or refused . . . unless the same
was specifically stated in a motion for a new trial.” Moreover, “a well-drafted motion
alleging error in the jury instructions should set forth the language of the instruction
given by the court and the language of the instruction rejected by the court if an
alternative instruction was requested.” Fahey, 46 S.W.3d at 143. As such, the failure of
Appellants to file a motion for new trial results in waiver of their sixth issue presented.

        Again, the manner in which these Appellants have framed their arguments on
appeal has made it burdensome for this Court to discern what actually occurred in the
trial court, much less whether the errors alleged by Appellants have merit. This difficulty
is compounded by the absence of a motion for new trial and an order adjudicating that
                                           - 14 -
motion. In light of the foregoing, we conclude that Appellants have raised no issues for
review that warrant relief. As the trial court aptly noted, the present matter is nothing if
not “tortured.” Considering the difficulty this Court experienced in divining the issues as
alleged by the Appellants, we would caution future litigants that the case-at-bar
highlights the great importance of filing a motion for new trial. See Tenn. R. App. P. 3(e);
Fahey, 46 S.W.3d at 142 (explaining that a motion for new trial “significantly aids the
functions of the appellate courts by limiting and defining the issues for review.”).

                                      CONCLUSION

      The verdict of the jury is affirmed. Costs of this appeal are taxed to Appellants,
Regina Smith and Lekeitha Moore, for which execution may issue if necessary.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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