                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   June 8, 2010 Session

                  LIMMIE R. WALLS v. BOBBY G. HOPKINS

                   Appeal from the Circuit Court for Sumner County
                         No. 30247-C      C.L. Rogers, Judge


              No. M2009-01416-COA-R3-CV - Filed November 22, 2010


This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a
negligence theory and sought damages. After a jury trial, the jury equally allocated fault
between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court
denied the motion. On appeal, plaintiff argues that the jury’s verdict is not supported by
material evidence and that the trial court erred in permitting testimony regarding plaintiff’s
intention to use a shortcut. 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 H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

Kirk L. Clements, Goodlettsville, Tennessee, for the appellant, Limmie R. Walls.

M. Allen Ehmling, Gallatin, Tennessee, for the appellee, Bobby G. Hopkins.

                                         OPINION

                             I. FACTUAL BACKGROUND

        This case arose from an automobile accident involving two vehicles. On August 28,
2003, the accident occurred on Gallatin Road near the Center Point Road intersection in
Hendersonville, Tennessee. At the time of the accident, there was heavy traffic on Gallatin
Road, and Bobby G. Hopkins proceeded to exit the parking lot of the Dodge Store by making
a left turn into the center turning lane. Mr. Hopkins only proceeded with the left turn after
vehicles in both travel lanes stopped to permit him to exit. Upon reaching the center turning
lane, Mr. Hopkins’s vehicle collided with the vehicle driven by Limmie R. Walls. Mr. Walls
was traveling south on Gallatin Road in the center turning lane because he intended to turn
left into the Mapco parking lot. The impact of the collision caused Mr. Walls to lose
consciousness, and he was taken to the emergency room at a local hospital by ambulance.

        Thereafter, Mr. Walls filed a negligence complaint against Mr. Hopkins seeking
$200,000 in compensatory and punitive damages. A jury trial was conducted on March 2,
2009. At trial, testimony was received from the parties and Corporal James L. Barnes, the
patrol officer who appeared at the accident scene, additionally, the deposition of Dr. Walter
Wheelhouse, Mr. Walls’s treating physician, was read into evidence. Corporal Barnes
related the applicable laws regarding proper use of a motor vehicle and observed that,
pursuant to the ordinances of the City of Hendersonville (“the City”), it is unlawful for a
driver to cut through a business’s parking lot to arrive at Center Point Road. He also testified
that under state law, it is illegal for a driver to enter the center turning lane and drive for
approximately half a mile to arrive at the intersection at Center Point Road.

        After hearing the evidence, the jury returned a unanimous verdict, finding both Mr.
Walls and Mr. Hopkins fifty percent at fault for the accident. Mr. Walls then filed a motion
for a new trial and argued that the jury’s verdict was not supported by the evidence. The trial
court denied the motion. Mr. Walls filed a timely notice of appeal challenging the jury’s
verdict.

                                         II. ISSUES

       Mr. Walls raises the following issues on appeal, which we restate:

       1. Whether the jury’s verdict allocating fifty percent of fault to Mr. Walls is
       supported by material evidence.

       2. Whether the trial court erred in allowing the jury to hear testimony
       regarding plaintiff’s intention to take a short cut through the Mapco parking
       lot.

                              II. 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).



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                                     IV. DISCUSSION

       Mr. Walls contends that the jury’s verdict is not supported by material evidence. He
argues that there was no evidence demonstrating that he was fifty percent at fault in causing
the accident. In Mr. Walls’s view, the only possible explanation for the jury’s finding is: (1)
he entered the center turning lane too soon, or (2) he intended to cut through the Mapco
parking lot to arrive at Center Point Road in violation of the City’s ordinance. He claims that
there was no permissible evidence to support the jury’s verdict for either reason.

       Mr. Walls’s challenge of a jury verdict means that he faces a heavy burden on appeal.
Explaining the standard of review for a jury verdict on appeal, the Tennessee Supreme Court
explained:

       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. Construction Co.,
575 S.W.2d 4, 5 (Tenn.1978)).

       In this case, Mr. Walls filed a motion for a new trial raising similar arguments in that
motion as he does on this appeal. In denying the motion for a new trial, the trial court
approved the jury’s verdict. When a motion for a new trial is filed, the trial court must then
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. “Where the trial court
simply approves the jury’s verdict without further comment, we presume the court adequately
performed its function as thirteenth juror.” Gibson v. Francis, No. E2003-02226-COA-R3-
CV, 2004 WL 1488541, at *2 (Tenn. Ct. App. E.S., June 30, 2004) (citing Ridings v. Norfolk
S. Ry. Co., 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994)). 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. M.S., Jan. 30, 2009), and this
court employs the material evidence rule as outlined in the Forrester and Crabtree cases.
Gibson, 2004 WL 1488541, at *2. 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).

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       In taking the strongest legitimate view of all the evidence in the record in favor of the
verdict, we conclude that there is material evidence to support the jury’s equal allocation of
fault between Mr. Walls and Mr. Hopkins.

       Mr. Walls testified that the accident occurred on Gallatin Road in the area of the Trail
West store, the Mapco gas station, and the Dodge Store. Mr. Walls was traveling south on
Gallatin Road towards the Rivergate Mall area. The accident occurred approximately 400
feet away from the intersection of Center Point Road and Gallatin Road. In describing the
accident, Mr. Walls testified:

       And as I was traveling down Gallatin Road, I saw that traffic was backed up
       and so I decided to take a shortcut like I do often times when traffic’s backed
       up and cutting those fields over there. And when I got into the center lane, I
       don’t know what happened. I just went out like a light. I heard a big bang and
       I went out. I was knocked unconscious.

Mr. Walls further testified that he originally intended to turn left at the intersection onto
Center Point Road on the day of the accident.

        Mr. Hopkins’s testimony also attested to the heavy traffic on Gallatin Road on the day
of the accident. Mr. Hopkins testified that he was attempting to exit the parking lot of the
Dodge Store by making a left turn into the center turning lane in order to travel north on
Gallatin Road. He stated that the two lanes of traffic stopped, permitting him to exit the
parking lot. As Mr. Hopkins eased his vehicle out of the parking lot, the moment he crossed
the yellow line, the front end of his truck collided with Mr. Walls’s vehicle. Mr. Hopkins
testified that he never saw Mr. Walls’s vehicle approaching.

       The above testimony provides sufficient facts for a jury to determine that both parties
were equally at fault for the accident. The jury did hear evidence to support Mr. Walls’s
position, but 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. M.S.,
July 12, 2007) (citing City of Chattanooga v. Ballew, 354 S.W.2d 806, 806 (Tenn. Ct. App.
1961)). In this case, the trial testimony of Mr. Walls and Mr. Hopkins furnished evidence
supporting the verdict.

      From our review of the record, it appears that the jury disregarded Mr. Walls’s version
of how the accident occurred. Mr. Walls’s credibility was likely damaged by the

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inconsistencies in his trial testimony and his deposition testimony. In his deposition, Mr.
Walls testified that he intended to cut through at Trail West’s parking lot, but at trial he
changed his testimony. During Mr. Walls’s direct examination, the following exchange
occurred:

       Q. My question is where were you turning in? Where were you intending to
       turn in?

       A. I intended to turn left at the Mapco station on – Boot Country [Trail West]
       but the driveways are kind of like together – run together. Because there’s no
       opening through the Boot Country where – on the Mapco side. I’ve done that
       before.

       But that morning, everything was going fast. And I was gonna turn left at
       some point. Where I was gonna turn at exactly at that time, it could have made
       a difference how the traffic was backed up that morning.

       Q. All right. Is there a through – is there a passage from the Boot Country
       [Trail West] parking lot to the Mapco parking lot?

       A. You mean do they join and open?

       Q. Yes.

       A. No. No.

       Q. Well, were you lying to Mr. Ehmling when you told him that you were
       going into the Boot Country [Trail West?]

       A. No. No, I wasn’t. I could have misjudged that particular event there
       because it’s just right there together. . . .

When asked again on cross examination about the change in his trial testimony from his
deposition, Mr. Walls claimed that he was “confused.” Additionally, during Mr. Walls’s
direct testimony, he was vague in describing how long he was in the center turning lane and
his vehicle’s distance from the intersection of Center Point Road and Gallatin Road. On
cross examination, Mr. Walls admitted that he didn’t know the speed in which he traveled
and he also conceded that he was not sure how far his vehicle was from the intersection.




                                            -5-
      In its role as the fact finder, the jury evaluates the credibility and veracity of a
witness’s testimony. As this court has previously observed,

       It was the duty and prerogative of the jury to assess the credibility of the
       witnesses, and the jury was at liberty to either believe or disbelieve the
       plaintiff’s subjective complaints. The jury apparently chose not to believe the
       plaintiff’s testimony regarding her pain, its origin, and/or its effect on her. If
       the jury disbelieved the plaintiff – and apparently it did – then the plaintiff
       failed to establish her personal injury claim by a preponderance of the
       evidence. As a consequence of this, there is material evidence to support the
       jury’s verdict.

Gibson, 2004 WL 1488541, at *4. Here, Mr. Walls departed from his deposition testimony
at trial and suffered from memory lapses regarding key details concerning the accident.
Under these circumstances, we find that there is material evidence to support the jury’s
verdict.

       Next, Mr. Walls argues that the trial court erred in permitting the jury to hear
testimony concerning his intention to cut through the Mapco parking lot in order to arrive at
Center Point Road. Before trial, Mr. Walls filed a motion in limine to exclude any testimony
regarding his intention to cut through the Mapco parking lot, and the trial court denied the
motion. He claims that under Rules 402 and 403 of the Tennessee Rules of Evidence,
evidence that is irrelevant and “that may be confusing or prejudicial” to the jury should be
excluded. Mr. Walls contends that his intention to cut through the Mapco parking lot is
wholly irrelevant to the issue of liability in this case. He urges this court to set aside the
judgment pursuant to Rule 36 of the Tennessee Rules of Appellate Procedure.

        We reject Mr. Walls’s contentions concerning the inadmissibility of such testimony.
First, during his direct examination while describing the accident, Mr. Walls stated that “I
decided to take a shortcut like I do often times….” This testimony was not irrelevant because
it explained why Mr. Walls entered the center turning lane. Second, by explaining his reason
for entering the center turning lane, Mr. Walls essentially opened the door for the admission
of such evidence. To claim on appeal that his own testimony was somehow prejudicial and
inadmissible is an untenable position for Mr. Walls to adopt.

       Nevertheless, assuming arguendo, the trial court erred in permitting such testimony,
we find that such error was harmless. Our harmless error rule considers whether the error




                                              -6-
“more probably than not affected the judgment.” Tenn. R. App. P. 36(b).1 At trial, the jury
heard the testimony and evaluated the credibility of each witness. As described earlier in this
opinion, Mr. Walls’s credibility was likely damaged by the discrepancies in his trial and
deposition testimony and memory lapses regarding the accident. Therefore, we are not
inclined to agree with Mr. Walls that such testimony more probably than not affected the
jury’s verdict. Accordingly, we affirm.

                                           V. CONCLUSION

       The jury verdict equally allocating fault between Mr. Walls and Mr. Hopkins is
affirmed. This case is remanded for enforcement of the trial court’s judgment and for the
collection of costs assessed below, all pursuant to applicable law. Costs of this appeal are
taxed to the appellant, Limmie R. Walls.




                                                            _________________________________
                                                            JOHN W. McCLARTY, JUDGE




        1
          (b) Effect of Error. A final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process. When necessary to do
substantial justice, an appellate court may consider an error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.
Tenn. R. App. P. 36(b).

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