                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 25, 2001 Session

     STEVE MAIROSE, ET AL. v. FEDERAL EXPRESS CORPORATION

                 Direct Appeal from the Chancery Court for Shelby County
                  No. 104974-1; The Honorable Walter Evans, Chancellor


                     No. W2000-00076-COA-R3-CV - Filed July 24, 2001


This appeal arises from a breach of contract claim brought by the Appellants against the Appellee.
Following a six week jury trial, the jury entered a verdict in favor of the Appellants. The Appellee
filed a motion for a judgment notwithstanding the verdict and, in the alternative, a motion for a new
trial. The Chancery Court of Shelby County granted the Appellee’s motion for a judgment
notwithstanding the verdict and, in the alternative, granted a conditional new trial.

        The Appellants appeal the grant of the Appellee’s motion for a judgment notwithstanding
the verdict and the grant of a conditional new trial by the Chancery Court of Shelby County. For the
reasons stated herein, we affirm in part, reverse in part, and remand this case for a new trial in
accordance with this opinion.


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

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

Kenneth Roberts, Larry Kelly, Denver, CO; Robert L. J. Spence, Jr., M. Scott Willhite, Memphis,
TN, for Appellants

R. Larry Brown, Colby S. Morgan, Memphis, TN; E. Scott Smith, Andrew D. McClintock, Atlanta,
GA, for Appellees




                                            OPINION
                                        I. Facts and Procedural History

        The Appellee, Federal Express Corporation (“FedEx”), is a multi-billion dollar corporation
which provides air and ground overnight express delivery services. Prior to the acquisition which
is the subject of this appeal, FedEx delivery routes were limited mainly to the United States, and
FedEx employed approximately 1,000 pilots (“pilots” or “crewmembers”).

         Employment conditions of the pilots are established by the Flight Crewmember Handbook
(“FCH”). (Exhibit 1). The FCH is “a legal and binding agreement between each flight crewmember
and Federal Express Corporation.” FedEx and the pilots agree that the FCH is an individual contract
between FedEx and each pilot. The FCH governs pilots’ seniority, which regulates pilots’ pay rates,
flight schedules, vacations, and retirement benefits. FedEx operates under a date-of-hire seniority
system so that the seniority number a pilot receives on his first date of employment establishes his
position on the FedEx master seniority list. The goal of a FedEx pilot is to advance higher on the
list, closer to the number one position.1 A pilot advances on the list when pilots ahead of him on the
list resign, retire, or are terminated. The FCH establishes the following provisions for seniority:

                   1-85     Crewmember Seniority

                   1-86     Seniority will begin to accrue on the date a pilot is employed
                            by the Company as a crewmember and begins Initial Training
                            and Basic Indoctrination. It will continue to accrue during his
                            entire employment period.

                   1-88     As of October, 1972, and henceforth, the date of employment
                            as a crewmember will establish a crewmember’s position on
                            the Master Seniority List. Effective June 1, 1981, when two
                            or more crewmembers are employed on the same date, they
                            will be placed on the Master Seniority List according to the
                            highest number represented by the last four digits of their
                            social security number, i.e. the crewmember having the
                            highest number (9999) will receive the lowest seniority
                            number. When two or more crewmembers are employed on
                            the same data and have the same last four digits, their relative
                            seniority position will be determined by drawing lots.

                   1-89      A crewmember will retain his seniority until he resigns or
                             retires from the Company, or is terminated under any
                             provision of this manual.



         1
             The pilot in the number one position on the master seniority list has the first pick of the planes and routes to
fly, the first pick of mo nthly schedule s, and the first pick of vacations.

                                                            -2-
               1-90    Seniority will govern all crewmembers in cases of promotion
                       or demotion, retention in case of a reduction in personnel,
                       assignment or reassignment due to expansion or reduction in
                       schedules or equipment, and choice of Vacancies.

In July, 1988, a revision was made to the FCH which added section 1-96 to address the status of the
pilots’ seniority if FedEx acquired another airline.

               1-96    In the event the Company acquires or merges with another
                       airline employing Flight Crewmembers, any such
                       crewmembers selected for retention will be awarded seniority
                       in accordance with FCH 1-85, Crewmember Seniority, with
                       the exception of FCH 1-88.

        On December 16, 1988, FedEx entered into an agreement with Tiger International (“Tiger”)
which called for the acquisition of a majority interest in Tiger, of which Flying Tiger Line was a
wholly owned subsidiary, by FedEx. By acquiring Tiger, FedEx acquired Tiger’s international
routes, allowing FedEx to deliver internationally. After entering into the agreement, FedEx
immediately notified its pilots of the acquisition. The Tiger pilots became FedEx employees on
August 7, 1989, referred to as “T-Day.”

        The acquisition agreement contained a provision that stated that FedEx would adopt labor
protective provisions (“LPPs”). The relevant sections of the LPPs, sections three and thirteen, state,
in pertinent part:

               Section 3. Insofar as the merger affects the seniority rights of the
               carriers’ employees, provisions shall be made for the integration of
               seniority lists in a fair and equitable manner, including, where
               applicable, agreement through collective bargaining between the
               carriers and the representatives of the employees affected. In the
               event of failure to agree, the dispute may be submitted by either party
               for adjustment in accordance with Section 13.

               ****

               Section 13. (a) In the event that any dispute or controversy . . .arises
               with respect to the protections provided herein which cannot be
               settled by the parties within 20 days after the controversy arises, it
               may be referred by any party to an arbitrator selected from a panel of
               seven names furnished by the National Mediation Board for
               consideration and determination.




                                                 -3-
FedEx claims that had it not agreed to adopt the LPPs, specifically sections three and thirteen, the
acquisition of Tiger would not have occurred.

        FedEx immediately recognized that there could be a conflict between section 1-96 of the
FCH and the LPPs unless section 1-96 was eliminated or suspended from the FCH before the
acquisition. FedEx claims that the FCH was at all material times expressly amendable. The
introduction section to the FCH states, in pertinent part:

               This Handbook sets forth the work rules and policies regarding flight
               crewmembers employed by Federal Express Corporation . . .these
               work rules and policies are in effect as of the date of publication of
               this Handbook, are a commitment on all parties involved, and remain
               in effect until formally revised (ref FCH Revision Procedure).

The FCH designates two methods by which a work rule or policy of the FCH can be modified: the
revision process and the bulletin process. The revision process is a permanent change to the FCH.
The bulletin process is a temporary change to the FCH. The bulletin process cannot be used to
effectuate a permanent change to the FCH. A Notice of Exception bulletin, one of three types of
bulletins, permits exceptions to certain provisions of the FCH.

               Where an operational need exists, either as a singular occurrence or
               one which spans a temporary and specific period of time, the
               Revision Committee may issue a bulletin to except certain provisions
               of the FCH in order to accommodate this need. A N o t i c e o f
               Exception must specify an effective date and will include a date of
               initiation and expiration. A Notice of Exception is in no way
               intended to abrogate the provisions in the FCH or to make arbitrary
               changes in its content without the use of the Revision Process.

        The Revision Committee proposed a revision to section 1-96 which intended to delete section
1-96 from the FCH. The Flight Advisory Board (“FAB”) approached flight management and
proposed, in place of a revision, a bulletin to section 1-96 which would suspend application of
section 1-96 for purposes of the Tiger acquisition only. On August 4, 1989, the Revision Committee
approved a bulletin exception, Bulletin 89-25, to section 1-96 of the FCH. (Exhibit 1). Bulletin 89-
25 provides, in pertinent part:

               The existing provisions of FCH 1-96 shall remain unchanged except
               for the purpose of the merger of the Federal Express/Flying Tigers
               Flight Deck Crewmembers Master Seniority Lists. The terms of a
               fair and equitable merged Federal Express/Flying Tigers Flight Deck
               Crewmember Master Seniority List(s) including any and all
               conditions, restrictions and priorities applicable thereto and deemed



                                                -4-
                  a part thereof, shall be constructed in accordance with Sections 3 and
                  13 of the LPPs and are incorporated herein.

The pilots argue that the bulletin process could not be used to abrogate their seniority under the
master seniority list. The pilots also argue that seniority was not adjustable, revisable, or modifiable
under the FCH because it was not considered a “work rule or policy.” Additionally, the pilots argue
that the FAB never had the authority to bind them to a bulletin exception to section 1-96.

        The FedEx and Tiger Merger Committees were unable to negotiate an integrated seniority
list pursuant to section three of the LPPs. Pursuant to section thirteen of the LPPs, the Merger
Committees selected an arbitrator, George Nicolau (“Nicolau”) to merge the two pilot seniority lists.
Representatives of FedEx and the Merger Committees executed a Tripartite Agreement which stated
that the Merger Committees had authority to represent the pilot groups of FedEx and Tiger and that
Nicolau’s award would be binding. After thirty-one days of arbitration hearings, Nicolau created a
merged seniority list and issued an opinion and award on May 26, 1990. A copy of the opinion and
award was delivered to each pilot. The merged seniority list became effective, for bidding purposes,
in July, 1990. FedEx claims that the pilots took no immediate legal action to challenge the
arbitration award until the filing of this lawsuit. FedEx contends that the pilots continued to work
for FedEx and benefitted from the acquisition due to the opportunity to fly international routes and
make more money. The pilots argue that the FedEx Merger Committee never had the authority to
bind them to an arbitration agreement.

        The merged seniority list placed hundreds of Tiger pilots ahead of FedEx pilots and caused
FedEx pilots to fall hundreds of positions on the master seniority list. The pilots argue that the Tiger
pilots were hired effective on T-Day such that they held junior dates of hire to the FedEx pilots and
should have been “end-tailed” on the master seniority list in accordance with section 1-96 of the
FCH. The pilots claim that the loss of positions on the master seniority list impacted their rates of
pay, causing them to sustain damages for which they were not compensated.

        Beginning in May, 1994, approximately one hundred fifty pilots filed complaints in five
related cases against FedEx in the Chancery Court of Shelby County. 2 The pilots alleged that they
sustained damages when FedEx breached their contracts by abrogating their seniority protections
guaranteed in the FCH. The five cases were consolidated. In September, 1996, the parties filed
cross motions for summary judgment. On January 20, 1997, the trial court denied the pilots’ motion
for summary judgment and granted FedEx’s motion for summary judgment. The pilots filed a
motion for reconsideration. On May 1, 1997, the trial court granted the pilots’ motion for
reconsideration and denied FedEx’s motion for summary judgment.



         2
            Gary J. Lovan et al. v. Fede ral Express Corp., No. 10420 3-1 (M ay, 1994 ); Mairose et al. v. Federa l Express
Corp., No. 10 4974-1 (Decem ber, 199 4); Smith et al. v. Federal Express Corp., No. 105026-2 (Decem ber, 1994); Allen
et al. v. Federal Express Corp., No. 105222-1 (February, 1995); Albanese v. Federal Express Corp., No. 10 6772-2
(December, 1995).

                                                           -5-
        On August 16, 1999, the parties submitted a joint pre-trial order, which designated, for trial
purposes, ten representative plaintiffs from the consolidated cases. The following ten plaintiffs were
named: Pete Camerota (“Camerota”), Dana Cockrell (“Cockrell”), Craig Covic (“Covic”), Ed Davis,
Jr. (“Davis”), Charles Hohensee (“Hohensee”), Gary Lovan (“Lovan”), Steve Mairose (“Mairose”),
Lance Nightwalker (“Nightwalker”), Jim Sullivan (“Sullivan”), and David Tripp (“Tripp”). The jury
trial commenced on September 8, 1999. At the close of the pilots’ proof on October 4, 1999, FedEx
moved for a directed verdict. The trial court granted FedEx’s motion for a directed verdict only with
respect to the pilots’ claims of good faith and fair dealing, activation pay, and passover pay. The
trial court stated that it would reserve its decision on the remaining issues until after the jury made
its determination.

       On October 14, 1999, the jurors returned a verdict in favor of the pilots, finding specifically:

       1)      The FCH was not properly changed, excepted to, in accordance with its terms by
               Bulletin 89-25 to effectively suspend the application of Section 1-96 and other
               relevant provisions involving crewmembers’ seniority rights for the purpose of the
               Tiger merger.
       2)      FedEx did violate, breach, the plaintiffs’ contractual rights under Section 1-96 and
               other relevant provisions of the FCH involving crewmembers’ seniority rights by
               abrogating and incorporating into the FCH the merged seniority list issued by
               Arbitrator Nicolau in May, 1990.
       3)      None of the plaintiffs were barred from recovering money damages from FedEx. The
               plaintiffs did sustain monetary damages. The plaintiffs did not waive their right to
               challenge the arbitration process and merged seniority list awarded due to any
               inaction, ratification, or failure to file their objections or suits for judicial relief
               within a reasonable time.
       4)      The plaintiffs sustained damages for which they should recover from August, 1989
               to May, 1999.
       5)      Monetary damages should be awarded to each of the ten plaintiffs for damages
               sustained by each for breach of their FCH contract by FedEx in the following
               amounts:
               Camerota        $462,730.00
               Cockrell        $299,738.00
               Covic           $377,763.00
               Davis           $393,427.00
               Hohensee        $501,417.00
               Lovan           $237,249.00
               Mairose         $391,257.00
               Nightwalker $314,000.00
               Sullivan        $430,384.00
               Tripp           $231,192.00




                                                 -6-
On October 29, 1999, FedEx filed a motion for a judgment notwithstanding the verdict and, in the
alternative, a motion for a new trial. On December 15, 1999, the trial court granted FedEx’s motion
for a judgment notwithstanding the verdict and, in the alternative, granted a conditional new trial.
This appeal followed.


                                        II. Law and Analysis

        The following issues, as we perceive them, are presented for our review:

1) Whether all ten plaintiffs involved in the case below are proper parties to this appeal.
2) Whether the trial court applied the correct standard of review to the Appellee’s post-trial motion
for a judgment notwithstanding the verdict.
3) Whether the trial court erred by granting the Appellee’s post-trial motion for a judgment
notwithstanding the verdict.
4) Whether the trial court erred by granting the Appellee’s motion for a conditional new trial.
5) Whether the trial court erred by limiting the Appellants’ claim for future damages.
6) Whether the trial court erred by denying the Appellants’ motion for class certification.
We will examine each of these issues in turn.


                                             Jurisdiction

        The first issue presented for our review is whether all ten plaintiffs involved in the case
below are proper parties to this appeal. The Appellee argues that eight plaintiffs, Camerota,
Cockrell, Covic, Davis, Hohensee, Nightwalker, Sullivan, and Tripp, are not proper parties to this
appeal because they are not named in the notice of appeal. The Appellee requests that this Court
dismiss an attempt at appeal by any plaintiff other than Mairose and Lovan. A notice of appeal was
filed with the trial court on January 5, 2000, naming Mairose, et al. and Lovan in the heading to the
document. The text of the notice of appeal stated, “Notice is hereby given that the above named
plaintiffs hereby appeal to the Court of Appeals from the final judgment entered in this action on the
15th day of December, 1999.” The names of Camerota, Cockrell, Covic, Davis, Hohensee,
Nightwalker, Sullivan, and Tripp do not appear in the notice of appeal. We must determine whether
the phrase “et al.” in the heading of a notice of appeal preserves the right of a co-party’s appeal when
the notice of appeal fails to specifically state a co-party’s name.

        Rule 4(a) of the Tennessee Rules of Appellate Procedure states that a notice of appeal shall
be filed with the clerk of the trial court within thirty days after the date of entry of judgment. See
TENN. R. APP . P. 4(a). Rule 2 of the Tennessee Rules of Appellate Procedure prohibits the extension
of time for filing a notice of appeal as prescribed by Rule 4. See TENN. R. APP . P. 2. Rule 3(f) of
the Tennessee Rules of Appellate Procedure states that “[t]he notice of appeal shall specify the party
or parties taking the appeal . . . . An appeal shall not be dismissed for informality of form or title of
the notice of appeal.” TENN. R. APP . P. 3(f).


                                                  -7-
        In Town of Carthage, Tennessee v. Smith County, No. 01-A-01-9308-CH00391, 1995 WL
92266, at *1 (Tenn. Ct. App. Mar. 10, 1995), the court determined whether “the absence of a party’s
name from a notice of appeal is the type of informality that will not affect the party’s standing as an
appellant.” Id. at *3. The court cited the United States Supreme Court case of Torres v. Oakland
Scavenger Co., 487 U.S. 312 (1988), in which the Supreme Court construed Rule 3(c) of the Federal
Rules of Appellate Procedure, a rule identical, in pertinent part, to Rule 3(f) of the Tennessee Rules
of Appellate Procedure.3 The petitioner in Torres argued that the use of the phrase “et al.” in the
notice of appeal sufficiently indicated his intention to appeal. In rejecting his argument, the Supreme
Court stated:

                   The purpose of the specificity requirement of Rule 3(c) is to provide
                   notice both to the opposition and to the court of the identity of the
                   appellant or appellants. The use of the phrase et al.,” which literally
                   means “and others,” utterly fails to provide such notice to either
                   intended recipient. Permitting such vague designation would leave
                   the appellee and the court unable to determine with certitude whether
                   a losing party not named in the notice of appeal should be bound by
                   an adverse judgment or held liable for costs or sanctions. The
                   specificity requirement of Rule 3(c) is met only by some designation
                   that gives fair notice of the specific individual or entity seeking to
                   appeal.

Id. at 318.

The Torres court held that “[the failure to name a party in a notice of appeal is more than excusable
‘informality’; it constitutes a failure of that party to appeal.” Id. at 314. The Town of Carthage court
adopted the reasoning of the Torres court, stating, “[t]o be considered an appellant, a party must file
a timely notice of appeal in its own name, or it must be named as an appellant in a timely joint notice
of appeal filed in accordance with Tenn. R. App. P. 16(a). Parties who do neither are simply not
before the court as appellants.”4 Town of Carthage, 1995 WL 92266, at *4.




         3
             Prior to its 19 93 amen dment, Ru le 3(c) of the Federal Rules of Appellate Procedure stated that “the notice
of appeal sha ll specify the party or parties taking the appeal . . . . An appeal shall not be dismissed for informality of form
or title of the notice of appeal.” FE D R. A PP . P. 3(c).

         4
            The co urt also cited with approval decisions from other sta te courts which conclude d that appe llate courts
do not have jurisdiction over parties not specified in the notice of ap peal. See id. (citing Ozark Acoustical Contractors,
Inc. v. National Bank of Commerce, 786 S.W .2d 813 , 814 (Ar k. 1990 ); Manzi v. Montgomery Elevator Co., 865 P.2d
902, 904-05 (Colo. Ct. App. 1993); Stewart Props., Inc. v. Brennan, 807 P.2 d 606, 6 08 (Ha w. Ct. App . 1991); Cummings
v. City Counc il, 551 N.E.2d 46, 49 (M ass. App. C t. 1990); Malone v. Johnson, 866 S.W.2d 935, 940 (Mo. Ct. App.
1993) (dicta); Seipelt v. Motorists Mut. Ins. Co., 611 N.E.2d 917, 918 (Ohio Ct. App. 1 992); Tinker Inv. & Mortgage
Corp. v. City of Midw est City, 873 P.2 d 1029 , 1036 n.2 8 (Okla. 1 994); Ford M otor Cred it Co. v. M ills, 418 N.W.2d
14, 16 (Wis. Ct. App. 1987)).

                                                              -8-
        In 1993, Congress amended Rule 3(c) of the Federal Rules of Appellate Procedure to state
that the notice of appeal must

               specify the party or parties taking the appeal by naming each one in
               the caption or body of the notice, but an attorney representing more
               than one party may describe those parties with such terms as “all
               plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all
               defendants except X”. . . . An appeal must not be dismissed for
               informality of form or title of the notice of appeal, or for failure to
               name a party whose intent to appeal is otherwise clear from the
               notice.

FED R. APP . P. 3(c).

The notes to the 1993 amendment to Rule 3(c) stated that the amendment was in direct reaction to
litigation spawned by the Supreme Court’s decision in Torres. See FED . R. APP . P. 3(c), advisory
committee’s note, 1993 amendment. “[I]n order to prevent the loss of a right to appeal through
inadvertent omission of a party’s name or continued use of such terms as ‘et al.,’ . . . the amendment
allows an attorney representing more than one party the flexibility to indicate which parties are
appealing without naming them individually.” Id. The notes to the 1993 amendment further explain
that the test to determine whether a designation in a notice of appeal is sufficient under Rule 3(c) is
“whether it is objectively clear that a party intended to appeal.” Id. Federal courts construing Rule
3(c) in light of the 1993 amendment have found use of the phrase “et al.” sufficient to confer
jurisdiction and held the reasoning of Torres to be effectively overruled. See Frey v. City of
Herculaneum, 44 F.3d 667, 670 (8th Cir. 1995); Cleveland v. Porca Co., 38 F.3d 289, 293-94 (7th Cir.
1994); Dodger’s Bar & Grill, Inc. v. Johnson County Bd. of County Comm’rs, 32 F.3d 1436, 1440-
41 (10th Cir. 1994); Ford v. Elsbury, 32 F.3d 931, 933-34 (5th Cir. 1994).

        Inasmuch as Rule 3(f) of the Tennessee Rules of Appellate Procedure has not been similarly
amended, we find the interpretation of Rule 3(f) based on the construction of pre-amendment Rule
3(c) of the Federal Rules of Appellate Procedure under Torres applicable. Accordingly, use of the
phrase “et al.” in the notice of appeal in the case at bar fails to provide notice to the Appellee and
this Court of the identity of the intended appellants. Therefore, we find that Mairose and Lovan
alone are proper parties to this appeal. This Court does not have jurisdiction over an appeal by
Camerota, Cockrell, Covic, Davis, Hohensee, Nightwalker, Sullivan, and Tripp because they were
not specifically named as appellants in the notice of appeal.


                             Judgment Notwithstanding the Verdict

        The second and third issues presented for our review are (1) whether the trial court applied
the correct standard of review to the Appellee’s post-trial motion for a judgment notwithstanding the
verdict; and (2) whether the trial court erred by granting the Appellee’s post-trial motion for a


                                                 -9-
judgment notwithstanding the verdict. A post-trial motion for a judgment notwithstanding the
verdict is governed by Rule 50.02 of the Tennessee Rules of Civil Procedure. Rule 50.02 states:

               Whenever a motion for a directed verdict made at the close of all the
               evidence is denied or for any reason is not granted, the court is
               deemed to have submitted the action to the jury subject to a later
               determination of the legal questions raised by the motion. Within 30
               days after the entry of judgment a party who has moved for a directed
               verdict may move to have the verdict and any judgment entered
               thereon set aside and to have judgment entered in accordance with the
               party’s motion for a directed verdict; or if a verdict was not returned,
               such party, within 30 days after the jury has been discharged, may
               move for a judgment in accordance with such party’s motion for a
               directed verdict. A motion for a new trial may be joined with this
               motion, or a new trial may be prayed for in the alternative. If a
               verdict was returned, the court may allow the judgment to stand or
               may reopen the judgment and either order a new trial or direct the
               entry of judgment as if the requested verdict had been directed. If no
               verdict was returned the court may direct the entry of judgment as if
               the requested verdict had been directed or may order a new trial.

TENN. R. CIV . P. 50.03.

        In ruling on a motion for a judgment notwithstanding the verdict, the standard applied by
both the trial court and the appellate court is the same as that applied to a motion for a directed
verdict made during the trial. See Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977); ROBERT
BANKS , JR. & JUNE F. ENTMAN , TENNESSEE CIVIL PROCEDURE § 12-1(c) (1999). In ruling on a
motion for a directed verdict, both the trial court and the appellate court are required to review the
record, discard all countervailing evidence, take the strongest legitimate view of the evidence in
favor of the non-moving party, and allow all reasonable inferences in his favor. See Williams v.
Brown, 860 S.W.2d 854, 857 (Tenn. 1993) (quoting Cecil v. Hardin, 575 S.W.2d 268, 271 (Tenn.
1978)); Jones v. Zayre, Inc., 600 S.W.2d 730, 731 (Tenn. Ct. App. 1980). “The court may grant the
motion only if, after assessing the evidence according to the foregoing standards, it determines that
reasonable minds could not differ as to the conclusions to be drawn from the evidence.” Eaton v.
McLain, 891 S.W.2d 587, 590 (Tenn. 1994). When reviewing a motion for a judgment
notwithstanding the verdict, the trial court and the appellate court may not assess the credibility of
the witnesses. See Mullins v. Seaboard Coastline Ry. Co., 517 S.W.2d 198, 201 (Tenn. Ct. App.
1974).

        A motion for a judgment notwithstanding the verdict and a motion for a new trial are subject
to separate and distinct standards of review. See Fye v. Kennedy, 991 S.W.2d 754, 766 (Tenn. Ct.
App. 1998). In ruling on a motion for a judgment notwithstanding the verdict, the trial court and the
appellate court may not weigh the evidence or determine the preponderance of the evidence, which


                                                -10-
is the proper inquiry when ruling on a motion for a new trial. See id. at 765; ROBERT BANKS , JR. &
JUNE F. ENTMAN , TENNESSEE CIVIL PROCEDURE § 12-1(c) (1999). Furthermore, unlike a motion for
a new trial, the trial judge does not assume the role of the thirteenth juror when ruling on a motion
for a judgment notwithstanding the verdict. See Fye, 991 S.W.2d at 766. As our supreme court
explained in Holmes v. Wilson, 551 S.W.2d 682 (Tenn. 1977):

                  When dual motions are presented, i.e. motions for a directed verdict
                  and for a new trial, two standards of consideration are involved. On
                  motion for judgment n.o.v., the sole concern of the trial judge is the
                  existence of material evidence in accordance with the above criteria
                  whereas on motion for a new trial he has a substantially wider, though
                  not unbridled, latitude and may set the verdict aside when it is against
                  the weight of the evidence or when the interests of justice would be
                  served thereby.

See id. at 685.

        In the case at bar, the Appellants argue that the trial court misapprehend its role by granting
the Appellee’s motion for a judgment notwithstanding the verdict under a thirteenth juror/new trial
standard of review rather than the proper standard of review for a judgment notwithstanding the
verdict. On December 1, 1999, at the close of the hearing of the post-trial motions, Chancellor
Walter Evans stated, “[the Court is going to . . . render a considered opinion involving findings of
fact as a 13th juror and conclusions of law which the Court feels are applicable in ruling on the
various motions that are before the Court.” On December 3, 1999, Chancellor Evans rendered his
oral decision, findings of fact, and conclusions of law from the bench while reading a twenty-seven
page handwritten opinion.5 Again, Chancellor Evans stated that he assumed the role of 13th juror in
making his conclusions:

                  All of these assertions by the plaintiff to invalidate Bulletin 89-25 in
                  this Court’s considered opinion, as the 13th juror, are without merit
                  and cannot be sustained by the weight of the evidence. . . . And for all
                  of the above reasons, this Court grants the defendant’s motion for a
                  directed verdict and enters a judgment in favor of the defendant,
                  notwithstanding the jury verdict.

        In the two page judgment order entered on December 15, 1999, Chancellor Evans stated the
correct standard of review for granting the motion for a judgment notwithstanding the verdict “in

         5
            The Ap pellants prev iously filed a mo tion with this Court to supplement the record with Chance llor Evans’
twenty-seven page hand written opinio n. This Court de nied the Ap pellants’ motio n on June 2 8, 2000 . The Ap pellants
urge this Court to revisit the issue due to the exception al circumstan ces presen t in this case. We decline to reconsider
the denial of the Appellants’ motion. Chancellor Evans read his twenty-seven page handwritten opinion into the record
at the hearing on December 3, 1999. This Court has the transcript of the hearing, and thus the text of the handwritten
opinion, before us for our review.

                                                          -11-
viewing the material evidence most favorable to Plaintiffs.” The December 15, 1999, judgment
order incorporated a thirteen page document entitled Findings of Fact and Conclusions of Law on
Defendant’s Motion for Directed Verdict and/or Motion for New Trial. In the thirteen page
document, Chancellor Evans once again stated the incorrect standard and seemingly adopted a clear
and convincing standard of review for granting a motion for a judgment notwithstanding the verdict.
In concluding that the jury verdict would have to be set aside, Chancellor Evans stated, “THIS
COURT CONCLUDES AND SO HOLDS THAT THE RECORD, BY CLEAR AND
CONVINCING PROOF, ESTABLISHES THAT THE PLAINTIFFS SUSTAINED NO
ASCERTAINABLE DAMAGES AS A RESULT OF DEFENDANT’S ALLEGED BREACH OF
THE FCH.” Chancellor Evans further stated, “All of these assertions by the Plaintiffs to invalidate
Bulletin 89-25, in this Court’s considered opinion, by clear and convincing proof after providing all
legitimate reasonable inferences from the evidence, are without merit and cannot be sustained by the
evidence.”

        Case law in Tennessee holds that an appellate court must reverse and remand a trial court’s
ruling when the trial judge makes comments indicating he has misconceived his duty. See Shivers
v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996); Sholodge Franchise Sys., Inc. v. McKibbon
Bros., Inc., 919 S.W.2d 36, 41 (Tenn. Ct. App. 1995); Miller v. Doe, 873 S.W.2d 346, 347 (Tenn.
Ct. App. 1993). In Sholodge Franchise Systems, Inc. v. McKibbon Brothers, Inc., 919 S.W.2d 36
(Tenn. Ct. App. 1995), the court stated that an appellate court must presume that a trial judge
performed his function adequately when he simply approves a jury verdict without comment when
ruling on a motion for a new trial. However,

                [i]n the event that the trial court does state his reasons, an appellate
                court is to examine them only for the purposes of determining
                whether the trial court properly reviewed the evidence, and was
                satisfied or dissatisfied with the verdict. However, if in discharging
                his duty as thirteenth juror, the trial judge makes comments which
                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.

Id. at 41 (internal citations omitted).

From our review of the record, we conclude that Chancellor Evans misconceived his duty and
applied the incorrect standard in ruling on the Appellee’s motion for a judgment notwithstanding the
verdict. Additionally, after an independent review of the record, discarding all countervailing
evidence, taking the strongest legitimate view of the evidence in favor of the Appellants, and
allowing all reasonable inferences in their favor, we find the existence of material evidence in
support of the jury verdict. Accordingly, we reverse the trial court’s grant of the Appellee’s motion
for a judgment notwithstanding the verdict.


                                          Conditional New Trial


                                                  -12-
        The fourth issue presented for our review is whether the trial court erred by granting the
Appellee’s motion for a conditional new trial. Under Rule 50.03 of the Tennessee Rules of Civil
Procedure, when a motion for a judgment notwithstanding the verdict is joined with an alternative
motion for a new trial and the trial court grants the judgment notwithstanding the verdict, it must also
rule on the motion for a new trial by determining whether it should be granted if the judgment
notwithstanding the verdict is thereafter vacated or reversed. See TENN. R. CIV . P. 50.03. Rule
50.03 provides, in pertinent part: “If the motion for a new trial is thus conditionally granted and the
judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise
entered.” Id. Thus, the appellate court, upon determining that the trial court erroneously granted a
motion for a judgment notwithstanding the verdict, may remand the case for a new trial or may
reinstate the jury verdict. See Holmes, 551 S.W.2d at 685. The general rule, however, is to remand
the case for a new trial except in cases of exceptional circumstances and when the interest of justice
so requires. See id. at 687.

               [W]e believe the correct rule to be that in those cases wherein the trial
               court has granted judgment n.o.v. and has conditionally granted a new
               trial the appellate court, upon reversal of the judgment n.o.v., should,
               as a general rule, remand the action fora new trial. Appellate courts,
               however, may exercise a sound judicial discretion in the matter and
               may, under exceptional circumstances and in the interest of justice,
               reinstate the verdict of the jury where the trial judge erred in ruling on
               a controlling conclusion of law and has approved the verdict of the
               jury.

Id.

From our review of the record in the case at bar, we find no exceptional circumstances to warrant
a departure from the general rule. Accordingly, we affirm the trial court’s grant of the Appellee’s
motion for a conditional new trial.


                                              Damages

       The fifth issue presented for our review is whether the trial court erred by limiting the
Appellants’ claim for future damages. Because we affirm the trial court’s decision granting a
conditional new trial, we find it is unnecessary to discuss the issue relating to damages.

                                         Class Certification

        The final issue presented for our review is whether the trial court erred by denying the
Appellants’ motion for class certification. Lovan filed a motion for class certification in which he
sought to represent the entire group of pre-merger FedEx pilots, totaling approximately 1105 pilots.
On June 30, 1995, the trial court denied the motion for class certification. The Appellants argue that


                                                 -13-
the trial court improperly denied the motion because the prerequisites for Rule 23.01 of the
Tennessee Rules of Civil Procedure were met. Rule 23.01 states:

                One or more members of a class may sue or be sued as representative
                parties on behalf of all only if (1) the class is so numerous that joinder
                of all members is impracticable,(2) there are questions of law or fact
                common to the class,(3) the claims or defenses of the representative
                parties are typical of the claims or defenses of the class, and (4) the
                representative parties will fairly and adequately protect the interest of
                the class.

TENN. R. CIV . P. 23.01.

The party seeking class certification has the burden to show that the prerequisites of Rule 23.01 have
been satisfied. See Hamilton v. Gibson County Util. Dist., 845 S.W.2d 218, 225 (Tenn. Ct. App.
1992) (citing Albriton v. Hartsville Gas Co., 655 S.W.2d 153, 154 (Tenn. Ct. App. 1983)). The
decision to certify a class or to deny certification of a class is within the trial court’s sound discretion.
See Warren v. Scott, 845 S.W.2d 780, 782 (Tenn. Ct. App. 1992). Thus, we will reverse a trial
court’s decision to deny certification of a class only when the party seeking class certification has
demonstrated an abuse of the trial court’s discretion. See Hamilton, 845 S.W.2d at 225. We find
no abuse of discretion by the trial court in the case at bar. Accordingly, we affirm the trial court’s
denial of the Appellants’ motion for class certification.

         The Appellee raised the following issues for our review in the event this Court reversed both
the decision of the trial court granting the judgment notwithstanding the verdict and the decision of
the trial court granting a conditional new trial:

1) Whether the Appellee was entitled to a directed verdict pursuant to the affirmative defense of
arbitration and award.
2) Whether the Appellee was entitled to a directed verdict pursuant to the affirmative defense of
waiver.
3) Whether the Appellee was entitled to a new trial because the weight of the evidence preponderated
against the jury verdict.
4) Whether the Appellee was entitled to a new trial because the jury verdict was prejudiced by the
improper admission of parol evidence.
5) Whether the Appellee was entitled to a new trial because the jury verdict was prejudiced by the
failure of the trial court to give appropriate jury instructions.
Because we affirmed the trial court’s grant of a conditional new trial in favor of the Appellee, we
decline to address these issues.


                                             III. Conclusion



                                                    -14-
        For the foregoing reasons, the decision of the trial court is affirmed in part and reversed in
part, and the case is remanded for a new trial in accordance with this opinion. Costs of this appeal
are taxed equally against the Appellants, Steve Mairose and Gary Lovan, and the Appellee, Federal
Express Corporation, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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