                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 February 5, 2014 Session

         LEONA RUTH SALYER, ET. AL. v. COURTNEY L. LINNEN

                   Appeal from the Circuit Court for Sullivan County
                    No. C3492 Hon. John S. McLellan, III, Judge




                  No. E2013-01546-COA-R3-CV-FILED-MAY 6, 2014


This is a personal injury action in which Plaintiff sued Defendant for injuries she sustained
as a result of a two-vehicle accident. The jury found the parties equally at fault, and the trial
court affirmed the jury’s verdict. On appeal, Plaintiff argues that the verdict was contrary
to the weight of the evidence and that the trial court erred in limiting testimony concerning
Defendant’s acceptance of fault at the scene of the accident. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and D. M ICHAEL S WINEY, J., joined.

Thomas C. Jessee and Thomas D. Dossett, Kingsport, Tennessee, for the appellants, Leona
Ruth Salyer and Jack Salyer.

Jack M. Vaughn and Cory Swainston, Kingsport, Tennessee, for the appellee, Courtney L.
Linnen.

                                          OPINION

                                     I. BACKGROUND

       This case arises from an automobile accident involving two vehicles on August 7,
2009. The accident occurred at the intersection of U.S. 11-E and Allison Road in Sullivan
County, Tennessee. Leona Ruth Salyer (“Plaintiff”) was traveling South on U.S. 11-E and
preparing to turn right onto Allison Road, while Courtney L. Linnen (“Defendant”) was
traveling North on U.S. 11-E and preparing to turn left onto Allison Road. The vehicles
collided as each party made her respective turn.

        Thereafter, Plaintiff and her husband, Jack Salyer, filed a negligence complaint
against Defendant. Plaintiff and Mr. Salyer (collectively “Plaintiffs”) sought $150,000 in
compensatory damages for Plaintiff’s injuries and $14,000 in compensatory damages for the
property damage to the vehicle and Mr. Salyer’s loss of consortium. Plaintiffs subsequently
amended their complaint by reducing the claim for damages to $75,000 in compensatory
damages for Plaintiff’s injuries and $7,500 in compensatory damages for the property
damage to the vehicle. Defendant filed a counter-complaint against Plaintiffs, asserting that
Plaintiff was negligent. Defendant sought dismissal of the complaint and compensatory
damages.

        A jury trial was conducted on July 31 and August 1, 2012, at which several witnesses
testified and portions of Defendant’s deposition testimony were read into the record. In her
deposition, Defendant testified that she was familiar with the intersection where the accident
occurred. She recalled that she had just attended her great-aunt’s funeral when she stopped
at McDonald’s to retrieve her fiancé. She returned to the roadway and approached the
intersection while driving approximately 10 miles per hour. She claimed that the traffic light
was green but that she came to a complete stop at the intersection because the light was not
displaying the left-turn arrow. She asserted that she did not see Plaintiff’s vehicle until the
accident occurred. She denied telling Plaintiff or the investigating officer that the accident
was her fault. She acknowledged that she had the obligation to yield the right-of-way to
oncoming traffic and that she would have yielded if she had seen Plaintiff’s vehicle.

       Officer David Nelson, who was the Chief of Police for the Bluff City Police
Department at the time of the accident, testified that he was dispatched to investigate the
accident. He recalled that Plaintiff and Defendant appeared nervous and upset but were not
injured as a result of the accident. He claimed that Defendant admitted that she hit Plaintiff’s
vehicle and that she was in a hurry to return home after having attended a funeral. After
reviewing the police report, he stated that the damage to Plaintiff’s vehicle was on the front
driver’s side, while the damage to Defendant’s vehicle was “back toward the rear right side.”
He asserted that the accident occurred underneath the traffic light on Allison Road.

        Officer Jamie Dunbar, the assistant police chief for the Bluff City Police Department,
testified that he also investigated the accident and confirmed that the front of Plaintiff’s
vehicle was damaged, while the rear of Defendant’s vehicle was damaged.

       Plaintiff, who was 72 years old at the time of trial, testified that she had suffered from
extensive injuries and medical ailments prior to the accident but that her pain and suffering

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had increased since the accident. She recalled that she was on her way home from the post
office when she stopped at the intersection. After waiting for the traffic light to turn green,
she checked for oncoming traffic and then turned onto Allison Road. She claimed that she
never saw Defendant’s vehicle. She asserted that Defendant apologized for hitting her and
accepted fault for the accident. She believed that she was in front of Defendant when the
accident occurred but could not account for the fact that her vehicle was damaged on the
front left side, while Defendant’s vehicle was damaged on the rear right side.

       Defendant testified that she was “[a] little” upset on the day of the accident because
she had attended her great-aunt’s funeral. She recalled retrieving her fiancé from
McDonald’s, returning to the roadway, and then turning left onto Allison Road, where she
collided with Plaintiff. She insisted that she stopped at the intersection and checked for
oncoming traffic before she turned. She claimed that she did not see Plaintiff’s vehicle when
she began her turn onto Allison Road. She denied ever telling Plaintiff or the investigating
officers that the accident was her fault.

       After hearing the evidence, the jury returned a verdict, finding both Plaintiff and
Defendant 50 percent at fault for the accident. Plaintiff then filed a motion for new trial,
arguing that the verdict was contrary to the weight of the evidence and that the trial court
abused its discretion by limiting testimony from Officer Nelson regarding Defendant’s
statements at the scene of the accident. The trial court denied the motion and affirmed the
jury’s verdict. This timely appeal followed.


                                         II. ISSUES

       We consolidate and restate the issues raised on appeal by Plaintiff as follows:

       A. Whether the verdict was contrary to the weight of the evidence.

       B. Whether the trial court abused its discretion by limiting testimony from
       Officer Nelson regarding Defendant’s statements at the scene of the accident.

Defendant raised an issue on appeal that we restate as follows:

       C. Whether Defendant is entitled to attorney fees on appeal.




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                              III. STANDARD OF REVIEW

       In reviewing a jury verdict, “[f]indings of fact by a jury in civil actions shall be set
aside only if there is no material evidence to support the verdict.” Tenn. R. App. P. 13(d).
When this court reviews a judgment based on a jury verdict, we are limited to determining
whether there is material evidence to support the verdict. Forrester v. Stockstill, 869 S.W.2d
328, 329 (Tenn. 1994).

       Rulings on admissibility of evidence are within a trial court’s discretion, and an
appellate court will set aside such decisions “when the trial court has misconstrued or
misapplied the controlling legal principles or has acted inconsistently with the substantial
weight of evidence.” White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App.
1999). We review the decision of the trial court to determine: “(1) whether the factual basis
for the decision is supported by the evidence, (2) whether the trial court identified and
applied the applicable legal principle, and (3) whether the trial court’s decision is within the
range of acceptable alternatives.” Id. at 223. Improper admission or exclusion of evidence
requires a new trial if the outcome of the trial was affected. Tenn. R. App. P. 36(b); White,
21 S.W.3d at 222.

                                     IV. DISCUSSION

                                           A. & B.

        Plaintiffs assert that the verdict was contrary to the weight of the evidence and claim
that the trial court erred in limiting testimony concerning Defendant’s acceptance of fault.
They concede that the jury heard the relevant information. Defendant responds that the
verdict was supported by material evidence and that the court never limited any testimony.

       The challenge of a jury verdict means that Plaintiffs face a heavy burden. Explaining
the standard of review for a jury verdict on appeal, the Tennessee Supreme Court stated:

       The appellate court is required to take the strongest legitimate view of all the
       evidence in favor of the verdict, to assume the truth of all that tends to support
       it, allowing all reasonable inferences to sustain the verdict, and to discard all
       to the contrary. Having thus examined the record, if there be any material
       evidence to support the verdict, it must be affirmed; if it were otherwise, the
       parties would be deprived of their constitutional right to trial by jury.

Forrester, 869 S.W.2d at 329-30 (citing Crabtree Masonry Co. v. C & R. Constr. Co., 575
S.W.2d 4, 5 (Tenn. 1978)).

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       In this case, Plaintiffs filed a motion for a new trial raising similar arguments in that
motion as they do on this appeal. The trial court approved the jury’s verdict by denying the
motion for new trial. When a motion for a new trial is filed, the trial court must
independently weigh the evidence and determine whether the evidence preponderates in
favor of or against the verdict. Woods v. Herman Walldorf & Co., 26 S.W.3d 868, 873
(Tenn. Ct. App. 1999) (citations omitted). Therefore, the trial judge acts as the “thirteenth
juror” when deciding whether the evidence supports a jury verdict. Once a trial court
approves a jury verdict, the standard of review on appeal is stringent. See Shropshire v.
Roach, No. M2007-02593-COA-R3-CV, 2009 WL 230236, at *3 (Tenn. Ct. App. Jan. 30,
2009). This court employs the material evidence rule as outlined in the Forrester and
Crabtree cases. Gibson v. Francis, No. E2003-02226-COA-R3-CV, 2004 WL 1488541, at
*2 (Tenn. Ct. App. June 30, 2004). Ultimately, our task is to review the record to determine
whether it contains material evidence to support the jury’s verdict. Reynolds v. Ozark Motor
Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994).

        In this case, the jury heard evidence to support Plaintiff’s testimony. Nevertheless,
the jury reached an opposite result. As this court has previously noted, “if there is material
evidence to support the verdict, the verdict and judgment must be affirmed, even if there is
testimony or evidence supporting the appellant’s position.” Dixon v. Cobb, No. M2006-
00850-COA-R3-CV, 2007 WL 2089748, at *4 (Tenn. Ct. App. July 12, 2007) (citing City
of Chattanooga v. Ballew, 354 S.W.2d 806, 806 (Tenn. Ct. App. 1961)). Each party asserted
that they turned when the traffic signal was green. Yet, both asserted that they did not see
the other party as they made their respective turns. Having reviewed the record, we conclude
that the testimony presented at trial provided material evidence for a jury to determine that
both parties were equally at fault for the accident.

       Relative to the alleged limitation of Officer Nelson’s testimony, the record reflects
that the trial court never limited the testimony. Plaintiffs conceded at trial that the police
report was inadmissible and never attempted to introduce the report. Instead, they asserted
that Officer Nelson was free to refresh his memory from the report while testifying. The trial
court and Defendant agreed. While testifying, Officer Nelson repeatedly referred to the
report and answered each question asked by Plaintiffs without any limitation from the trial
court. Even if the testimony had been limited as Plaintiffs suggest, any error was harmless
when Officer Nelson and Plaintiff testified that Defendant accepted fault at the scene of the
accident. This issue is without merit.




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                                             C.

       Defendant asserts that Plaintiffs’ appeal was frivolous and that she is entitled to
damages in the form of attorney fees and costs for having to defend against the appeal.
Tennessee Code Annotated section 27-1-122 provides for an award of damages, including
attorney fees, when an appeal is determined to be frivolous. To find an appeal frivolous, the
appeal must be wholly without merit and lacking in justiciable issues. See Davis v. Gulf Ins.
Group, 546 S.W.2d 583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901
S.W.2d 382, 385 (Tenn. Ct. App. 1995). An appellate court’s decision on this issue is
discretionary, and this court is generally reluctant to award such damages because we do not
want to discourage legitimate appeals. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn.
Ct. App. 2006). Following our review, we respectfully deny Defendant’s request for attorney
fees on appeal.

                                   V. CONCLUSION


      The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed equally to the appellants,
Leona Ruth Salyer and Jack Salyer.




                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




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