                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Assigned on Briefs November 30, 2012

     ROSE A. CHAPMAN, ET AL. v. WELLMONT HOLSTON VALLEY
                      MEDICAL CENTER

                    Appeal from the Law Court for Sullivan County
                        No. C37742(C)    E.G. Moody, Judge


            No. E2012-01163-COA-R3-CV-FILED-DECEMBER 21, 2012


Rose A. Chapman and Alfred C. Chapman (“Plaintiffs”) sued Wellmont Holston Valley
Medical Center (“the Hospital”) regarding a fall Ms. Chapman suffered while a patient at the
Hospital. The Trial Court entered judgment upon the jury’s verdict finding and holding that
the Hospital was not at fault. Plaintiffs appeal raising one issue regarding whether the Trial
Court erred in granting the Hospital’s motion in limine to exclude testimony about an
apology and offer to pay bills allegedly made by one of the Hospital’s nurses. We find this
issue has been waived, and we affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Law Court Affirmed;
                                 Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.

Wendal D. Jackson, Bristol, Tennessee, for the appellants, Rose A. Chapman and Alfred C.
Chapman.

Russell W. Adkins, Kingsport, Tennessee, for the appellee, Wellmont Holston Valley
Medical Center, a member of Wellmont Health System.
                                              OPINION

                                            Background

              Ms. Chapman was admitted to the Hospital suffering from anemia. She
underwent an endoscopy and a colonoscopy. After the colonoscopy, Ms. Chapman was
taken back to her hospital room where she received assistance from an employee of the
Hospital in getting to the bathroom and on to the toilet. While on the toilet, Ms. Chapman
had a vagal response wherein her heartbeat slowed and stopped. She fainted and fell off the
toilet. Ms. Chapman suffered injuries from the fall including bruising and an alleged injury
to her knee.

              Plaintiffs sued the Hospital alleging that the nursing staff had been negligent
in leaving Ms. Chapman unattended on the toilet. The case was tried before a jury and the
Trial Court entered judgment upon the jury’s verdict on April 11, 2012 finding and holding
that the Hospital was not at fault. Plaintiffs filed a motion for new trial, which the Trial
Court denied. Plaintiffs appeal to this Court.

                                             Discussion

             Although not stated exactly as such, Plaintiffs raise one issue on appeal:
whether the Trial Court erred in granting the Hospital’s motion in limine 1 to exclude
testimony about an apology and offer to pay bills allegedly made by Nurse Gay Gillis for the
Hospital.

                As this Court discussed in Hampton v. Braddy:

                An erroneous exclusion of evidence requires reversal only if the
        evidence would have affected the outcome of the trial had it been admitted.
        Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987). Reviewing
        courts cannot make this determination without knowing what the excluded
        evidence would have been. Stacker v. Louisville & N. R.R. Co., 106 Tenn.
        450, 452, 61 S.W. 766 (1901); Davis v. Hall, 920 S.W.2d 213, 218 (Tenn. Ct.
        App. 1995); State v. Pendergrass, 795 S.W.2d 150, 156 (Tenn. Crim. App.
        1989). Accordingly, the party challenging the exclusion of evidence must
        make an offer of proof to enable the reviewing court to determine whether the
        trial court’s exclusion of proffered evidence was reversible error. Tenn. R.


        1
         The Hospital filed multiple motions in limine. We discuss only the motion in limine pertinent to
this appeal.

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        Evid. 103(a)(2); State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986); Harwell
        v. Walton, 820 S.W.2d 116, 118 (Tenn. Ct. App. 1991). Appellate courts will
        not consider issues relating to the exclusion of evidence when this tender of
        proof has not been made. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct.
        App. 2001); Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App.
        1997); Shepherd v. Perkins Builders, 968 S.W.2d 832, 833-34 (Tenn. Ct. App.
        1997).

                As stated, an offer of proof must contain the substance of the evidence
        and the specific evidentiary basis supporting the admission of the evidence.
        Tenn. R. Evid. 103(a)(2). These requirements may be satisfied by presenting
        the actual testimony, by stipulating to the content of the excluded evidence, or
        by presenting an oral or written summary of the excluded evidence. Neil P.
        Cohen, et al. Tennessee Law of Evidence § 103.4, at 20 (3d ed. 1995). Since
        we are unable to determine the substance of … [the excluded] testimony and
        whether that testimony would have affected the outcome of the trial, the failure
        of the defendant to make an offer of proof constitutes a waiver of the right to
        challenge the exclusion of this testimony. Hatton v. CSX Transportation, Inc.,
        2004 Tenn App LEXIS 412, Tenn. App. No. E2003-01831-COA-R3-CV, 2004
        WL 1459391 (Tenn. Ct. App. June 29, 2004).

Hampton v. Braddy, 270 S.W.3d 61, 65 (Tenn. Ct. App. 2007) (quoting Thompson v. City
of LaVergne, No. M2003-02924-COA-R3-CV, 2005 WL 3076887, at *9 (Tenn. Ct. App.
Nov. 16, 2005), perm. app. denied April 24, 2006).

                 To begin, we note that the record on appeal does not contain the Trial Court’s
order ruling upon the motion in limine at issue. The record contains an order entered on
March 20, 2012 disposing of several other motions in limine, which states, in pertinent part:
“The Court defers ruling on Defendant’s motion in limine number 5 2 .” A careful and
thorough review of the record on appeal reveals no order, oral or written, disposing of this
motion in limine. As such, we are unable to determine the Trial Court’s decision with regard
to this motion in limine. We do note, however, that the Hospital states in its brief on appeal
that “undersigned counsel recollects that the Court later granted Wellmont’s Motion in
Limine Number 5, and that an Order to that effect was circulated among counsel. However,
the Technical Record does not contain any Order disposing of the Motion.” The lack of an
order in the record with regard to the Trial Court’s disposition of motion in limine number
5 is fatal to the issue raised by Plaintiffs on appeal. This Court will not assume that the Trial


        2
         Motion in limine number 5 is the motion in limine to exclude testimony about an apology and offer
to pay bills allegedly made by Nurse Gay Gillis for the Hospital.

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Court granted a motion without some proof in the record thereof.

               Even if we assume that the Trial Court granted the Hospital’s motion in limine
to exclude testimony about an apology and offer to pay bills allegedly made by Nurse Gay
Gillis for the Hospital, Plaintiffs still lose on appeal. Plaintiffs made no offer of proof
regarding the substance of the excluded evidence and the specific evidentiary basis
supporting its admission.

               Plaintiffs argue in their brief on appeal that an offer of proof was unnecessary
because the substance of the excluded evidence can be gleaned from statements made by
opposing counsel in the Hospital’s motion in limine. The Hospital’s motion in limine states,
in pertinent part: “In her discovery deposition, Mrs. Chapman testified that Ms. Gillis ‘said
that the hospital took full responsibility, and they would pay my bills.’ Plaintiffs’ counsel
informs counsel for Defendant that other family members will testify about that purported
conversation.” This statement does give us some clue as to what the substance of the
excluded evidence would have been.

               Plaintiffs, however, failed to show the specific evidentiary basis supporting the
admission of this evidence. Plaintiffs assert in their brief on appeal that the testimony about
the alleged statements made by Ms. Gillis are admissible as a statement against interest. As
pertinent to this issue, Tenn. R. Evid. 803 provides:

       Rule 803. Hearsay exceptions. – The following are not excluded by the
       hearsay rule:

                                             ***

       (1.2) Admission by Party-Opponent. – A statement offered against a party that
       is (A) the party’s own statement in either an individual or a representative
       capacity, or (B) a statement in which the party has manifested an adoption or
       belief in its truth, or (C) a statement by a person authorized by the party to
       make a statement concerning the subject, or (D) a statement by an agent or
       servant concerning a matter within the scope of the agency or employment
       made during the existence of the relationship under circumstances qualifying
       the statement as one against the declarant’s interest regardless of declarant’s
       availability, or ….

Tenn. R. Evid. 803.

              Plaintiffs failed to show that the testimony about an apology and offer to pay

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bills allegedly made by Nurse Gay Gillis for the Hospital fits within any of the categories of
Tenn. R. Evid. 803 (1.2). We cannot, and will not, simply assume that Nurse Gay Gillis was
authorized by the Hospital to make a statement against the Hospital’s interests or that the
Hospital adopted any of her alleged statements. The record is devoid of any proof or offer
of proof that Nurse Gay Gillis was acting in a representative capacity, was authorized by the
Hospital to make any such statements, or that the alleged statements concerned a matter
within the scope of Nurse Gay Gillis’s agency or employment. The fact that Nurse Gay
Gillis was employed by the Hospital is insufficient by itself to show that the evidence was
admissible pursuant to Tenn. R. Evid. 803 (1.2).

             In summary, we are unable to tell from the record before us exactly what
evidence would have been admitted as we cannot assume that the evidence would have been
admissible. We, therefore, are unable to determine that such evidence would have affected
the outcome of the trial. Given all of the above, this issue has been waived.

                                        Conclusion

              The judgment of the Trial Court is affirmed and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Rose A. Chapman and Alfred C. Chapman, and their surety.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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