                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                       ASSIGNED ON BRIEFS AUGUST 8, 2002

   STATE OF TENNESSEE, ON RELATION OF THE COMMISSIONER,
   DEPARTMENT OF TRANSPORTATION, FOR AND ON BEHALF OF
          SAID DEPARTMENT v. DEBORAH GAY RAINEY

                   Direct Appeal from the Circuit Court for Shelby County
                           No. 131558 T.D.    Rita L. Stotts, Judge



                   No. W2002-00010-COA-R3-CV - Filed January 27, 2003


This appeal arises from a condemnation proceeding. The trial court awarded the Appellant $38,
040.00 as the fair market value of the property taken and zero dollars for incidental damages to the
remaining property. Appellant raises a single issue on appeal. For the following reasons, we dismiss
the appeal.

         Tenn. R. App. P. 3; Appeal as of Right; Appeal Dismissed, Case Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Charles E. Waldman, Memphis, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Nashville, TN; Larry M. Teague, Deputy Attorney
General, Jackson, TN, for Appellee

                                            OPINION

                                  Facts and Procedural History

        The property at issue in this proceeding is a 15.739 acre parcel of land owned by Deborah
Gay Rainey (“Ms. Rainey”) and located in a residential area of Southeast Memphis. On August 23,
1990, the State of Tennessee (the “State”) filed a Petition for Condemnation, seeking the
condemnation and appropriation of a 0.951 acre portion of Ms. Rainey’s property. In accordance
with Tennessee Code Annotated section 29-17-802, the State deposited $53,850.00 in the care of the
Circuit Court Clerk of Shelby County. After conducting a hearing, the trial court granted the State’s
petition and entered an Order of Condemnation and Appropriation on October 12, 1990. On March
7, 1991, the trial court entered a Consent Order of Disbursement, authorizing the clerk of the court
to disburse $53,850.00 to Ms. Rainey.
       Subsequently, the State constructed a drainage ditch within the easement as well as a 15-foot
high concrete wall on the easement as a sound-barrier. In early 1992, the State Department of
Transportation commissioned an additional appraisal of the area. This appraisal was prepared by
Jamison Walter Allen (“Mr. Allen”). According to Mr. Allen, the best use of the land on October
12, 1990 was institutional and the fair market value of the land was $40,000 per acre. Mr. Allen
concluded that the value of the 0.951 acre easement as of October 12, 1990 was $38,040.00 and that
there were no damages to the remainder of Ms. Rainey’s property.

         The condemnation proceeding was tried on December 3, 4 and 5 of 2001. At the conclusion
of the trial, the jury returned a verdict awarding Ms. Rainey $38,040.00 as the fair market value of
the 0.951 acre easement and found that she was entitled to no incidental damages to her remaining
property. On January 10, 2002, the trial court filed its Judgment and Final Decree, upholding the
jury’s verdict. The court ordered that Ms. Rainey was to recover $38,040.00 from the State, of
which $53,850.00 had already been deposited and disbursed to Ms. Rainey in accordance with a
previous order of the court. This left a balance of $15,810.00 due to the State, which Ms. Rainey
was ordered to refund to the State.

        On appeal, Ms. Rainey contends that the trial court failed to distinguish between the fair
market value of the land at the time of the taking, October 12, 1990, and the fair market value of the
land after the drainage ditch and sound barrier wall were constructed. Specifically, Ms. Rainey
argues that the trial court gave an incorrect date during the jury instructions and that any confusion
caused by the trial court’s failure to use the correct date resulted in the denial of her right to recover
incidental damages. Ms. Rainey now asks this Court to vacate the judgment of the trial court and
remand the case for a new trial.

                                                  Issue

        The parties raise the following issue for our review:

        1.      Whether the trial court erred in failing to give the jury the correct year on at least two
                occasions in the jury instruction phase of a condemnation proceeding.

                                         Standard of Review

        With respect to findings of fact by a jury in a civil action, our review is limited to
determining whether there is any material evidence to support the verdict. TENN. R. APP . P. 13(d).
“Thus, absent a reversible error of law, we will set aside a judgment on a jury verdict only where the
record contains no material evidence to support the verdict.” Brown v. Chesor, 6 S.W.3d 479, 482
(TN Ct. App. 1999) (citing Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988)).




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                                          Law and Analysis

        Ms. Rainey presents one issue for our review. A review of the record, however, shows that
Ms. Rainey did not file a motion for new trial in this proceeding. “It has long been the rule in this
state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the
attention of the trial court in a motion for a new trial.” Fahey v. Eldridge, 46 S.W.3d 138, 141
(Tenn. 2001). The purpose behind this rule is to make the appeal process more efficient and to give
the trial judge an opportunity to “consider or to reconsider alleged errors committed during the
course of the trial or other matters affecting the jury or the verdict. . . .” Id. at 142. This rule is
enumerated in Tennessee Rule of Appellate Procedure 3(e), which provides in pertinent part:

      [I]n 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.
TENN. R. APP . P. 3(e).

Although she had opportunity to do so, Ms. Rainey did not file a motion for new trial. Thus, the
issue she has presented for our review is “treated as waived.” See TENN. R. APP . P. 3(e); see also
Fahey, 46 S.W.3d at 141.

                                              Conclusion

        For the foregoing reasons, we dismiss the appeal. The matter is remanded to the trial court
for enforcement of the judgment. Costs are taxed to the Appellant, Deborah Gay Rainey, and her
surety, for which execution may issue if necessary.




                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE




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