                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   March 20, 2003 Session

                   RANDELL COOK v. FRANK HANNER, ET AL.

                 Direct Appeal from the Circuit Court for Robertson County
                             No. 9529    Ross H. Hicks, Judge



                     No. M2002-01083-COA-R3-CV - Filed May 20, 2003


This case involves allegations of an improper verdict form and jury instructions. As Appellants
failed to make timely objections concerning these issues, and failed to file a motion for a new trial
based on these perceived irregularities, we affirm the judgment of the trial court.

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

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

Dana C. McLendon, III, Franklin, Tennessee, for the appellants, Frank Hanner, Betty Hanner,
B & E Motors, ABC Auto Rentals, and Webcars, Inc.

Michael W. Edwards, Hendersonville, Tennessee, for the appellee, Randell Cook.

                                            OPINION

       Appellee purchased a truck from Appellants who are in the business of selling used autos.
The vehicle at issue, a truck, was purchased by Appellant, Mr. Frank Hanner, at an auto auction at
which time the vehicle had approximately 208,000 miles on the odometer. Subsequent to the
purchase, Appellants replaced the instrument panel, including the speedometer. The replacement
odometer read 87,707 miles, which was the mileage Appellants recorded on the title. Appellants did
not check the box on the title to reflect that the mileage shown on the odometer was not the actual
mileage of the vehicle.

        Approximately three months after the purchase, Appellee, Randall Cook, began having
problems with the truck at which time he took it to a dealer for service. The dealer performed a
check on the history of the vehicle, and it was at this point that Appellee became aware of the true
mileage on the vehicle. The Appellee subsequently filed suit against Appellants alleging violations
of the Federal Motor Vehicle Information and Savings Act, the Tennessee Consumer Protection Act
(TCPA), and common law fraudulent misrepresentation. After a jury trial a verdict was returned for
Appellee which resulted in a final judgment of $50,500.00.1

        Appellants claim that the jury instructions, as well as the verdict form, were confusing, thus
necessitating a new trial. Appellee avers that the jury instructions and the verdict form were proper.
Additionally, Appellee asserts that Appellants, by failing to object to the proposed verdict form and
jury instructions at the time of trial, as well as not making a timely motion for a new trial, have
waived these issues on appeal. In answer to this claim, Appellants contend that this Court may
entertain the appeal, despite these procedural defects. Appellants claim that they were precluded
from filing a timely motion for a new trial as the transcripts from the underlying proceedings were
not made available to him until after the time allowed for filing such a motion had passed.2

                                                           Issues

        The specific issues presented by Appellants are as follows:

        1.          Whether the trial court committed reversible error because the verdict form
                    did not require the jury to specify whether it based the award of punitive
                    damages upon a common law claim?

        2.          Whether the trial court committed reversible error by failing to
                    instruct the jury that punitive damages could not be awarded under
                    the Tennessee Consumer Protection Act?

        3.          Whether the trial court committed reversible error because the
                    instructions contained irreconcilable explanations of the burden of
                    proof exacerbated by careless use of the terms negligent and/or
                    fraudulent misrepresentation, intentional misrepresentation or
                    misrepresentation by concealment as if they were interchangeable?

        4.          Whether the trial court committed reversible error by flatly misstating the law
                    with respect to election of remedies?

        5.          Whether the trial court committed reversible error by omitting key
                    definitional terms, such as “intentional” and “reckless” despite those terms
                    being used on the Verdict Form to trigger punitive damages?




        1
          This figure represents $13,500 actual damages and $37,000 punitive damages. Appellee was also awarded
$83 5.75 in discre tionary costs.

        2
            The attorney representing Ap pellants on ap peal did no t represent them at trial.

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        6.      Whether the evidence preponderates against the jury’s award of damages for
                misrepresentation?

                             Errors and Omissions in Jury Instructions

        Appellants assert that the trial court erred both by omitting “key definitional terms” from the
jury instructions, as well as providing the jury with various erroneous, or inaccurate, instructions.
As discussed, Appellants did not make a contemporaneous objection to either the errors or
inaccuracies they now ask this Court to consider, nor did they raise these issues in a timely motion
for a new trial.

       We discussed the effect of a parties’ failure to raise a contemporaneous objection to such
inaccuracies or omissions in Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. Ct. App. 2000), where we
noted

        parties who invite or waive errors at trial will not be entitled to invoke these errors
        to seek relief on appeal. See Tenn. R. App. P. 36(a) & cmt. a. The chief exception
        to this rule involves jury instructions. Trial courts have the duty to give accurate jury
        instructions. See Ladd v. Honda Motor Co., 939 S.W.2d 83, 93 (Tenn. Ct. App.
        1996). Accordingly, Tenn. R. Civ. P. 51.02 provides that a party may seek a new trial
        because of an inaccurate instruction, even if it did not object to the instruction at trial.
        See Rule v. Empire Gas Corp., 563 S.W.2d 551, 553 (Tenn. 1978).

                The issue . . . raise[d] on this appeal involves an error, as opposed to an
        omission, in the instructions. It [is] argue[d] that the trial court erroneously instructed
        the jury to include [an individual] in its allocation of fault. While [Appellant] did not
        object to these instructions during the trial, it took issue with them in its motion for
        new trial. Accordingly, it has preserved this error as required by Tenn. R. Civ. P.
        51.02, and it can raise this issue on appeal.

Grandstaff v. Hawks, 36 S.W.3d 482, 489 (Tenn. Ct. App. 2000).

         We further noted, in a footnote, that “[t]his exception applies only to erroneous instructions;
it does not relieve a party of the responsibility to bring the trial court's attention to material omissions
in the instructions.” Id. at 489 n.9 (citations omitted). Accordingly, it is clear that Appellants’
failure to raise a timely objection to the alleged omissions precludes our review of the issue.

        Further, while Appellants’ failure to raise a timely objection to the alleged inaccuracies
contained in the jury instructions could have been cured by noting such objections in a timely motion
for a new trial, such a motion was never presented to the trial court. “[I]n all cases tried by a jury,
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.” Tenn. R. App. P.
3(e). Despite this procedural omission, Appellants urge us, under Tenn. R. App. P. 2, to suspend the


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clear requirements of Tenn. R. App. P. 3(e) and consider the issues raised on appeal. This we
decline to do. While it is true that Tenn. R. App. P. 2 authorizes the suspension of all but Tenn. R.
App. P. 4, 11 and 12, such a suspension is warranted only where there is a showing of “a good
reason” for the suspension. See Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990);
Tenn. R. App. P. 2. Here, we have not been persuaded that such a “good reason” exists.

         Under Tenn. R. Civ. P. 59.02, Appellants had thirty (30) days after entry of the judgment to
file a motion for a new trial. Thirty (30) days “after the date of entry of the judgment appealed from”
is also the time allotted for filing an appeal to this Court. Tenn. R. App. P. 4. Appellants apparently
had no problem meeting the latter deadline, and they have failed to provide us with a reason for
missing the former which would warrant waiving this condition under Tenn R. App. P. 2. As we are
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[,]” Tenn. R. App. P. 36,
we decline to do so here.

                                      Errors in Verdict Form

       Appellants’ arguments relating to the verdict form are doomed to the same fate as those
concerning the jury instructions. This Court has stated that

       [c]ounsel should object promptly to a proposed verdict form. If possible, they should
       object to the form before its submission to the jury. However, if unaware of the
       form's substance, they should object before the jury returns its verdict. Failure to
       make a timely objection to a verdict form constitutes a waiver of the objection.

Keith v. Murfreesboro Livestock Mkt., Inc., 780 S.W.2d 751, 759 (Tenn. Ct. App. 1989) (internal
citations omitted).

        Accordingly, by failing to make a timely objection, Appellants failed to preserve these
errors for appellate review.

                      Propriety of Award of Damages for Misrepresentation

        Appellants urge us to consider “whether the evidence preponderates against the jury’s
award of damages for misrepresentation.” However, in their brief, Appellants assert that “it
seems the jury misunderstood the instructions or misapplied the instructions. The verdict form
on the issue of damages for common law misrepresentation is the result of inconsistent or
defective instructions; as such, it is highly suspect and should be vacated and remanded for a new
trial.” From this statement we conclude that this issue is, in reality, merely another allegation of
an erroneous jury instruction and verdict form. Accordingly, Appellants have waived this issue
on appeal by failing to file a timely motion for a new trial.




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                                        Frivolous Appeal

       Appellee urges us to consider this a frivolous appeal under Tenn. Code Ann. § 27-1-122
and award him attorney’s fees and costs as a result. After much deliberation, we respectfully
decline to label this a frivolous appeal.

                                           Conclusion

       For the foregoing reasons we affirm the judgment of the trial court. The costs of this
appeal are taxed to the Appellants and their surety, for which execution, if necessary, may issue.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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