                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   April 23, 2014 Session

     DONRIEL A. BORNE v. CELADON TRUCKING SERVICES, INC.

                Direct Appeal from the Circuit Court for Shelby County
                     No. CT-003273-10      Robert S. Weiss, Judge


                  No. W2013-01949-COA-R3-CV - Filed July 31, 2014




J. STEVEN STAFFORD, J., DISSENTING IN PART:

        I concur with the majority Opinion’s rulings with regard to the procedural issues in
this case, as well as its reversal of the trial court’s remittitur of the loss of earning capacity
damages. However, because I disagree with the majority’s procedure in further remitting the
jury’s verdict with regard to loss of enjoyment of life damages, I must respectfully dissent,
in part, from the majority Opinion.

       My disagreement in this case stems from the majority’s suggestion of remittitur with
regard to the loss of enjoyment of life damages. As discussed by the majority Opinion, the
jury awarded the Plaintiff $750,000.00 in damages for loss of enjoyment of life. The trial
court suggested a remittitur of $350,000.00, which results in a loss of enjoyment of life
award of $400,000.00. The majority, however, suggests a further remittitur in which
Plaintiff is only awarded $50,000.00 for loss of enjoyment of life, a reduction of
$700,000.00 from the initial jury award. This represents an over ninety-three percent
reduction in the jury’s verdict on this type of damages.

      To support its suggested remittitur, the majority cites several cases that it contends
support its decision. Many of these cases are inapposite to the case-at-bar. First, Huskey v.
Rhea County, No. E2012-02411-COA-R3-CV, 2013 WL 4807038,(Tenn. Ct. App. Sept. 10,
2013) perm. app. denied (Tenn. Jan. 14, 2014), involved a bench trial, rather than a jury trial.
Id. at *17. Thus, the question of remittitur was not at issue in Huskey.

       In other cases cited by the majority, this Court affirmed the jury’s verdict, rather than
a remittitur suggested by the trial court. For example in Rippy v. Cintas Corp. Services, Inc.,
No. M2010-00034-COA-R3-CV, 2010 WL 3633469 (Tenn. Ct. App. 2010), this Court
declined to grant a remittitur of the jury’s verdict awarding $40,000.00 for loss of enjoyment
of life. Id. at *5. Although the jury’s verdict in Rippy and the remitted amount suggested by
this Court are similar, I fail to see how a Court’s decision to refuse to disturb a jury’s verdict
can be used to support the majority’s action in this case.

        In a similar case cited by the majority, Riley v. Orr, No. M2009-01215-COA-R3-CV,
2010 WL 2350475 (Tenn. Ct. App. W.S. June 11, 2010), this Court also affirmed the trial
court’s refusal to remit the jury’s verdict with regard to loss of enjoyment of life damages.
Id. at *9. In doing so, the Court noted the fact that in order to suggest a remittitur, the Court
must not only disagree with the jury’s calculation of damages, but also the trial court’s:

               [A]n appellate court must not only have great respect for the
               verdict of the jury, it must likewise take into consideration the
               fact that the Trial Judge, experienced in observing persons
               testifying, is in a better position to determine whether a party
               who has been injured is exaggerating the result of such injury
               to his body, either from some psychological reaction or
               purposely in order to influence the jury verdict, . . . and the
               appellate courts must likewise have great respect for the
               evaluation of damages fixed by the Trial Judge or approved by
               him as relates to the verdict.

Id. (quoting Stark v. Yost, 334 S.W.2d 954, 958– 59 (Tenn. Ct. App. 1959)). Here, the
Court does not appear to discuss the appropriate deference that should be accorded the trial
court’s decision.

       The question of what deference should be accorded the trial court’s decision is
important to the resolution of this issue. Indeed, the Tennessee Supreme Court recently
examined this issue in detail in Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414
(Tenn. 2013), a seminal case on the authority of the appellate court to suggest a remittitur.
The Meals Opinion, however, is not cited by the majority in its determination that a further
remittitur of the loss of enjoyment of life damages is warranted in this case. Meals
concerned the appellate court’s suggestion of a remittitur where the trial court wholly
approved the jury verdict. In that circumstance, the Tennessee Supreme Court held that the
appellate court’s authority to suggest remittitur was very limited:

                       Where the trial judge has approved the verdict in its role
               as thirteenth juror . . . the Court of Appeals’ review of the
               verdict and its ability to suggest a remittitur is limited to a
               review of the record to determine whether the verdict is
               supported by material evidence. Poole v. Kroger Co., 604

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S.W.2d 52, 54 (Tenn. 1980); see also Thrailkill, 879 S.W.2d at
841; Ellis, 603 S.W.2d at 129. Material evidence is “evidence
material to the question in controversy, which must necessarily
enter into the consideration of the controversy and by itself, or
in connection with the other evidence, be determinative of the
case.” Knoxville Traction Co. v. Brown, 115 Tenn. 323, 331,
89 S.W. 319, 321 (1905). An appellate court is required to take
“the strongest legitimate view of all the evidence in favor of the
verdict, assume the truth of all evidence that supports the
verdict, allowing all reasonable inferences to sustain the verdict,
and to discard all countervailing evidence.” Akers v. Prime
Succession of Tenn., Inc., 387 S.W.3d 495, 501–02 (Tenn.
2012) (quoting Barkes v. River Park Hosp., Inc., 328 S.W.3d
829, 833 (Tenn. 2010)). The material evidence analysis is very
deferential to the award by the jury and the judgment of the trial
court when it affirms the verdict as the thirteenth juror. See
Ellis, 603 S.W.2d at 129 (“[W]hen the trial judge has approved
the verdict, the review in the Court of Appeals is subject to the
rule that if there is any material evidence to support the award,
it should not be disturbed.” (emphasis added)). “It matters not
a whit where the weight or preponderance of the evidence lies
under a material evidence review.” Hohenberg Bros. Co. v.
Mo. Pac. R.R. Co., 586 S.W.2d 117, 119–20 (Tenn. Ct. App.
1979). “It is simply a search of the record to ascertain if material
evidence is present to support the verdict.” Id. Because the
material evidence standard lies at the foundation of the right to
trial by jury, if there is material evidence to support a jury
verdict, the appellate courts must affirm it. See Tenn. Const. art.
I, § 6; Truan v. Smith, 578 S.W.2d 73, 74 (Tenn.1979)
(quoting D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 508, 206
S.W.2d 897, 901 (1947)); Crabtree Masonry Co., 575 S.W.2d
at 5; City of Chattanooga v. Ballew, 49 Tenn.App. 310,
316–17, 354 S.W.2d 806, 808–09 (1961); see also Grandstaff
v. Hawks, 36 S.W.3d 482, 497 (Tenn. Ct. App. 2000) (“We
have a duty to uphold a jury's verdict whenever possible.”).
        The Court of Appeals’ authority to suggest a remittitur
when the trial court has affirmed the verdict is far more
circumscribed than that of the trial court. Coffey v. Fayette
Tubular Prods., 929 S.W.2d 326, 331 & n.2 (Tenn. 1996); see
also Ellis, 603 S.W.2d at 129. If the Court of Appeals suggests

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              a remittitur, the plaintiff may either accept the remitted amount,
              opt for a new trial, or accept the remitted amount under protest
              and apply to this Court for permission to appeal. Tenn. Code
              Ann. § 20-10-103(a).

Meals, 417 S.W.3d at 422–23. As explained by Judge Kirby in her dissent in the Court of
Appeals Opinion in Meals:

                      Tennessee caselaw emphasizes how reluctant an
              appellate court should be to suggest a remittitur in the first
              instance, where the trial court has approved the jury’s verdict.
              See Riley v. Orr, No. M2009-01215-COA-R3-CV, 2010 WL
              2350475, at *9 (Tenn. Ct. Ap. June 11, 2010) (the appellate
              court must accord “great respect” to the trial court’s approval of
              the damages awarded by the jury). This is especially true where
              the jury award at issue is for non-economic damages, as for pain
              and suffering and loss of enjoyment of life:

                      [T]he determination on such non-pecuniary losses
                      as pain and suffering damages involves a
                      subjective element not present in the
                      determination of ordinary facts. The jury trial
                      guarantee requires that the subjective element
                      involved be that of the community and not of
                      judges. . . . When appellate courts are called upon
                      to review a jury’s award of non-economic
                      damages, it is not their prerogative to determine
                      whether the award strikes them as too high or too
                      low.

              Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-
              02026-COA-R3-CV, 2009 WL 482475, at *21 (Tenn. Ct. App.
              Feb. 24, 2009) (perm. app. den. March 10, 2011) (citations
              omitted).

Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *23–24
(Tenn. Ct. App. April 13, 2012) (J. Kirby, dissenting), rev’d, 417 S.W.3d 414 (Tenn. 2013).

     I acknowledge that the situation presented in this case differs materially from Meals.
Where in Meals, the trial court affirmed the jury’s verdict in toto, the trial court in this case

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determined that the jury’s verdict was excessive and suggested a remittitur. While the
majority Opinion acknowledges the Meals “material evidence standard,”1 it does not discuss
whether the Meals standard should apply in this case. At least two cases have suggested that
the appellate courts should give considerable deference to a damages award in a jury trial,
whether the award was based on damages awarded by a jury and affirmed in toto by the trial
court, or on an “evaluation of damages fixed by the Trial Judge” See Riley, 2010 WL
2350475, at *9; Stark, 334 S.W.2d at 958–59. The issue of whether the Meals standard
applies to this situation is an issue of first impression in this Court. Thus, I believe that to
decide this issue without resolving whether the Meals standard is applicable is in error.

        Further, while the Court applies the “three-step review” to determine whether the
trial court’s remittitur should be upheld, the majority fails to consider this review with regard
to its own remittitur. Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990). As
previously discussed, the majority’s remittitur of the loss of enjoyment of life damages
represents an approximately ninety-three percent reduction in the jury’s verdict for this type
of damages. My research has revealed several cases in which remittiturs of less than ninety-
three percent have been held to “totally destroy the jury verdict.” See, e.g., Adams v.
Leamon, No. E2012-01520-COA-R3-CV, 2013 WL 6198306 (Tenn. Ct. App. Nov. 25,
2013) (noting several Opinions in which a reduction of over seventy percent was held to
totally destroy the jury’s verdict) (citing Myers v. Myers, No. E2004-02135-COA-R3-CV,
2005 WL 1521952, at *5 (Tenn. Ct. App. June 27,2005) (holding that a remittitur of seventy
percent destroyed the verdict); Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. Ct. App.
1986), overruled on other grounds by, Elliott v. Cobb, 320 S.W.3d 246, 252 (Tenn. Sep 23,
2010) (holding that a remittitur of seventy-five percent destroyed the verdict)). For example
in a case cited by the majority, Adams v. Leamon,the trial court suggested a remittitur of the
jury’s $156.204.50 award for future loss of enjoyment of life to $25,000.00. Adams, 2013
WL 6198306, at *5 . The trial court also remitted the jury’s $120,476.00 award for future
pain and suffering to $25,000.00. While the Court of Appeals agreed that the jury verdict
was excessive, it did not agree with the trial court’s remittitur of approximately 71.5 percent
of the jury’s total verdict. Id. Thus, the appellate court concluded that “the reduction in the
case at bar was so substantial as to totally destroy the jury’s verdict,” id., even though the
evidence showed that the plaintiff “was able to work and perform most household tasks [and
h]is greatest limitation appeared to be that he could no longer fully enjoy his hobby of riding
motorcycles.” Adams, 2013 WL 6198306 , at *4. While Adams and the other cited cases
consider the destruction of the jury’s verdict with regard to the overall award, rather than
each award, individually, I believe that they are instructive as to what type of remittitur is

       1
          The majority Opinion described the “material evidence” standard as a “lesser” standard. In
contrast, I would describe Meals material evidence standard as a much higher burden on the appellate
court.

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permitted by a trial court, which remittitur is even more “circumscribed” when suggested by
the appellate court. See Meals, 417 S.W.3d at 423.

       I also take issue with the majority’s heavy reliance on “cases [it] ha[s] deemed
similar” to the case-at-bar. The Tennessee Supreme Court has expressed some concern as
to whether courts should reduce damage amounts solely on the basis of other purportedly
similar cases. According to the Court:

                 Our review of verdicts in similar cases must be approached with
                 some caution. First, we recognize that by reviewing verdicts in
                 published opinions, we are not reviewing the entire pool of
                 damage awards. Cases resolved by settlement and/or mediation
                 are not included in the pool of damage awards, and their
                 absence can skew the results. Second, we must take care to only
                 consider cases that are “similar”—presumably involving a
                 similar plaintiff with similar injuries. Third, courts should take
                 inflation and the reduced value of the dollar into account when
                 considering these verdicts. See S. Ry. Co. [v. Sloan], 56
                 Tenn.App. [380,] 392–93, 407 S.W.2d [205,] 211 [(Tenn.
                 1965)]. Finally, courts should be mindful that when looking at
                 other jury verdicts, each case must be judged on its own
                 particular facts. See Ellis [v. White Freightliner Corp.], 603
                 S.W.2d [125,] 129 (quoting S. Ry. Co., 56 Tenn.App. at
                 392–93, 407 S.W.2d at 211); Stark v. Yost, 47 Tenn.App. 28,
                 37, 334 S.W.2d 954, 958 (1959).

Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 425–26 (Tenn. 2013). Despite the
Tennessee Supreme Court’s admonition, the majority Opinion heavily relies on purportedly
similar cases, many of which involve circumstances distinct from the case-at-bar, as
discussed above.

       For the foregoing reasons, I must respectfully dissent from the majority’s further
remittitur of the loss of enjoyment of life damages.2


        2
          Although I do not disagree with the majority Opinion’s overall determination of the remittitur
suggested by the trial court, I do have concerns about the trial court’s lack of justification for the remittitur.
I recognize that this Court has often considered the remaining factors in the “three-step review,” Long, 797
S.W.2d at 896, notwithstanding the trial court’s failure to provide a sufficient justification for its action. See,
e.g., Adams, 2013 WL 6198306, at *5; Johnson v. Nunis, 383 S.W.3d 122, 133 (Tenn. Ct. App. 2012);
Myers v. Myers, No. E2004-021350COA-R3-CV, 2005 WL 1521952, at *3 (Tenn. Ct. App. June 27, 2005).

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                                                                     J. STEVEN STAFFORD, JUDGE




However, I would like to emphasize the considerable burden placed on appellate courts when trial courts fail
to make appropriate findings to support their rulings. In this situation, the better practice is for trial courts
to give appropriate justifications for their rulings, in order to facilitate appellate review.

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