                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   August 23, 2013 Session

           JAMES L. MASSINGILLE v. G. WAYNE VANDAGRIFF1

                     Appeal from the Circuit Court for Coffee County
                         No. 37899    L. Craig Johnson, Judge


               No. M2012-01259-COA-R3-CV - Filed September 24, 2013


In this malicious prosecution action, the jury awarded the plaintiff compensatory damages
and punitive damages. The trial court affirmed the punitive damages award; the court
suggested a remittitur of the compensatory damages award, which the plaintiff accepted
under protest. The defendant appeals the finding of liability, the award of damages, the
admission of evidence, and the procedure followed by the court in affirming the punitive
damages award; the plaintiff appeals the remittitur of the compensatory damages award.
Finding that the court erred when it failed to follow the appropriate procedures in affirming
the punitive damages award, we vacate the award and remand the case for further
proceedings; in all other respects the judgment of the trial court is affirmed.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., and A NDY D. B ENNETT, JJ., joined.

Gerald. L. Ewell, Jr., Tullahoma, Tennessee, for the appellant, G. Wayne Vandagriff.

D. Andrew Saulters, Nashville, Tennessee, for the appellee, James L. Massingille.




       1
          At various places in the record, Defendant’s name is spelled Vandergriff, Vandagriff, and
Vandagrif. The Affidavit of Complaint which gave rise to this action was signed by G. W. Vandagriff;
consequently, we will use that spelling in this opinion.
                                         OPINION

I. F ACTS AND P ROCEDURAL H ISTORY

       This appeal arises out of a malicious prosecution suit brought by James Massingille,
who purchased a farm in 1977 in Coffee County which adjoined the farm owned by G.
Wayne Vandagriff. During the first year, Mr. Massingille had his land surveyed and markers
placed at the boundary between his property and the Vandagriff farm. Mr. Massingille then
began clearing his land on the side opposite the common boundary line in order to farm his
land. Several times over the next twelve years Mr. Vandagriff requested to purchase some
of the Massingille property near the boundary line in order to keep the Vandagriff property
wooded for privacy; Mr. Massingille declined to sell his property.

        In early 2009, in preparation to build a fence along the boundary line, Mr. Massingille
replaced one of the corner markers with a larger post. A confrontation arose between he and
Mr. Vandagriff after the marker was replaced, in which Mr. Vandagriff threatened to have
Mr. Massingille arrested and jailed. Days later Mr. Massingille resumed his work, attaching
a pink string to the back side of the post and stretching it from one corner marker to another.
Mr. Massingille had hired Vincent Griffin to cut twigs and brush along the property line;
while Mr. Griffin was working, Mr. Vandagriff called the Sheriff’s Department to have Mr.
Massingille arrested for cutting trees on the Vandagriff property. Deputy Toby Alonso came
to the scene and interviewed both parties; he declined to arrest Mr. Massingille, determining
that the dispute was a civil rather than criminal matter.

       On June 5, 2009, Mr. Vandagriff initiated a criminal prosecution, alleging that Mr.
Massingille committed criminal trespass in violation of Tenn. Code Ann. § 39-14-405. In
the Affidavit of Complaint he asserted:

       Affiant states for the past 3 months March-June 2009 subject has been on his
       property, 754 Toliver Lake Road, Manchester, Tn., tearing down property
       markers and has cut over 100 hundred trees on said property to erect a fence
       which is possibly on affiant’s property.

Mr. Massingille was served with the warrant on June 21, but was not arrested, photographed,
or fingerprinted. The case was to be heard on July 6, but was rescheduled to August 17 for
the District Attorney to perform further investigation. On the second court date the charge
was dismissed.

        On June 1, 2010, Mr. Massingille initiated the instant malicious prosecution action;
trial before a jury took place on October 12–13, 2011. The jury found in favor of Mr.

                                              -2-
Massingille and awarded $66,500.00 in compensatory damages, divided as follows:
$1,500.00 for attorney’s fees incurred by Mr. Massingille in the defense of the criminal
charge, $25,000.00 for mental anguish, and $40,000.00 for loss of enjoyment of life; the jury
also found that Mr. Massingille was entitled to punitive damages. In the punitive damage
phase of the trial the jury awarded $5,000.00.

       Mr. Vandagriff filed a Motion for New Trial and/or to Alter or Amend Judgment on
November 23, and amended the motion on November 28. On April 6, 2012, the court
entered an order and opinion stating that:

       “The jury verdict was excessive as to an award for Mental Anguish and a
       separate $40,000 for Loss of Enjoyment of Life. The verdict for Loss of
       Enjoyment of Life was outside the bounds of reasonableness and not supported
       by the evidence. The Court suggests a Remittitur that removes the $40,000
       verdict for Loss of enjoyment of Life but upholds all other aspects of the Jury
       verdict to include punitive damages.”

Mr. Massingille filed a notice of acceptance of remittitur under protest and appeal on May
10; Mr. Vandagriff filed his notice of appeal on June 6.

        Mr. Vandagriff contends that the evidence is insufficient to support the jury’s finding
of liability and award of damages; he also complains that the court erred in admitting certain
evidence and in failing to follow the procedural safeguards attendant to an award of punitive
damages. Mr. Massingille appeals the remitittur of the verdict.

II. A NALYSIS

       A. Finding of Liability

        In order to succeed on a malicious prosecution claim, a plaintiff must demonstrate that
1) a prior lawsuit or judicial proceeding was brought against the plaintiff without probable
cause; 2) the prior lawsuit or judicial proceeding was brought against the plaintiff with
malice; and 3) the prior lawsuit or judicial proceeding terminated in the plaintiff’s favor.
Parrish v. Marquis, 172 S.W.3d 526, 530 (Tenn. 2005) (citing Christian v. Lapidus, 833
S.W.2d 71, 73 (Tenn. 1992)). Mr. Vandagriff does not dispute that a prior judicial
proceeding took place and terminated in Mr. Massingille’s favor; the dispute is whether the
action was brought without probable cause and with malice.

      The determination of whether the defendant in a malicious prosecution action had
probable cause to initiate the criminal proceeding is a question for the jury. Roberts v.

                                              -3-
Federal Express Corp., 842 S.W.2d 246, 248–249 (Tenn. 1992). Similarly, the decision of
whether a defendant acted with malice is a question for the jury. Residents Against Industrial
Landfill Expansion, Inc. v. Diversified Systems, Inc., No. 03A01-9703-CV-00102, 1998 WL
18201, at *4 (Tenn. Ct. App. 1998). When a jury has rendered a verdict, our task is to
determine whether there is any material evidence to support the jury’s verdict. Harper v.
Watkins, 670 S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson, 588 S.W.2d 315,
317 (Tenn. Ct. App. 1979); Tenn. R. App. P. Rule 13 (d). We do not reweigh the evidence.
Electric Power Bd. v. St. Joseph Valley Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn.
1985).

                1. Probable Cause

        Tennessee courts have defined probable cause as “the existence of such facts and
circumstances as would excite in a reasonable mind the belief that the person charged was
guilty of the crime for which he was prosecuted.” Smith v. Harford Mutual Insurance
Company, 751 S.W.2d 140, 143 (Tenn. Ct. App. 1987). Probable cause is to be determined
solely from an objective examination of the surrounding facts and circumstances. Roberts,
842 S.W.2d at 248– 249.

      Mr. Vandagriff charged Mr. Massingille with violation of Tenn. Code Ann. § 39-14-
405, which states in pertinent part:

        (a) A person commits criminal trespass if the person enters or remains on
        property, or any portion of property, without the consent of the owner.

        Evidence from which the jury could determine that Mr. Vandagriff lacked probable
cause to initiate the prosecution for criminal trespass included: his acknowledgment that he
did not know if the property markers were correct or whether Mr. Massingille had cut
vegetation on Mr. Vandagriff ’s land when the criminal trespass proceedings were initiated;
that before commencing the prosecution Mr. Vandagriff’s counsel advised him to obtain a
land survey, but he did not have the survey performed until four months after initiating the
prosecution2 ; and Deputy Alonso’s testimony that he advised Mr. Vandagriff in March 2009
that the dispute was civil in nature and not criminal.3

        2
          The survey which Mr. Vandagriff procured was introduced at trial by Mr. Massingille ’s counsel
and demonstrated that Plaintiff did not alter the original position of the corner markers distinguishing his
property from Mr. Vandagriff ’s property.
        3
        Mr. Vandagriff cites the testimony of Mr. Massingille and Deputy Alonso that they believed that
Mr. Vandagriff thought Mr. Massingille had cut vegetation on the Vandagriff land in support of his
                                                                                         (continued...)

                                                    -4-
                2. Malice

         In a malicious prosecution case, any improper motive is sufficient to constitute malice;
ill will or personal hatred is not needed. Kelley v. Tomlinson, 46 S.W.3d 742, 746 (Tenn. Ct.
App. 2001). Malice may be inferred from the absence of probable cause. Odom v. Gray, 508
S.W.2d 526, 529 (Tenn. 1974). The element of malice involves a question of subjective
intent. Roberts 842 S.W.2d at 248.

       Evidence from which the jury could conclude that Mr. Vandagriff acted with malice
included: Mr. Massingille’s testimony that Mr. Vandagriff did not want the woods on his
property cleared and became upset when Mr. Massingille refused to sell him a portion of the
Massingille land to act as a buffer; that Mr. Vandagriff threatened to have Mr. Massingille
arrested and jailed for removing a corner marker, which Mr. Massingille replaced; and
Deputy Alonso’s testimony that Mr. Vandagriff requested that he arrest Mr. Massingille for
trespassing and cutting trees on the Vandagriff land in March 2009. As evidence of his
subjective intent, Mr. Vandagriff testified:

        Q. Okay. Isn’t it true, Mr. Vandagriff, that you wanted your neighbor and
        former friend arrested and put in jail? Is that true?
        A. I didn’t care if he was put in jail. All I wanted was to get some restitution
        for my damages to get him to go and leave me alone. I didn’t know – they said
        if I would take him to court and they prosecuted him, he would have to make
        restitution and just stay off my property. That’s all I was after.

        Q. You set the process in motion, didn’t you?
        A. I was just setting the process in motion where maybe he would leave me
        alone.
        ***
        Q. When you met with the district attorney they told you that this could result
        in jail time for Mr. Massingille, true?
        A. They said it could, but they said it wouldn’t be much. They said it was
        really a civil matter and go back and sue him yourself.




        3
          (...continued)
contention that Mr. Massingille did not present any proof to establish the lack of probable cause. The
subjective thoughts of a witness, however, are immaterial to the determination of whether probable cause
exists at the time criminal charges are commenced. See Roberts, 842 S.W.2d at 248.


                                                  -5-
      Sufficient evidence exists to support the jury’s conclusion that Mr. Vandagriff lacked
probable cause and acted with malice when he initiated the criminal prosecution.

       B. Damages

        In a malicious prosecution action a party may recover damages which “proximately
result to plaintiff, his person, property, or reputation.” Ryerson v. American Surety Company
of New York, 373 S.W.2d 436, 437 (Tenn. 1963); Pullen v. Trexton Inc., 845, S.W.2d 777,
780 (Tenn. Ct. App. 1992). In addition, damages may be granted for humiliation, mental
suffering, and punitive damages. Thompson v. Schulz, 240 S.W.2d 252, 256 (Tenn. Ct. App.
1949); Odom, 508 S.W.2d at 532; Hodges v. S. C. Toof & Co., 833 S.W.2d 896 at 901 (Tenn.
1992). When a jury has awarded compensatory damages, our task is to determine whether
there is material evidence to support the jury’s verdict. Harper, 670 S.W.2d at 631; Tenn.
R. App. P. Rule 13 (d). We take the strongest legitimate view of all the evidence to uphold
the verdict, assuming the truth of all that tends to support it. Harper, 670 S.W.2d at 631. We
are bound to allow all reasonable inferences to sustain the verdict and if there is material
evidence to support the verdict, we must affirm. Id. We do not reweigh the evidence.
Electric Power Bd., 691 S.W.2d at 526.

        The elements of the jury’s award included: the amount Mr. Massingille paid his
counsel to defend him on the criminal charge, compensatory damages for mental anguish and
loss of enjoyment of life, and punitive damages. Mr. Vandagriff does not raise an issue with
respect to the award for reimbursement of the counsel fee; rather, he contends that the
evidence does not support an award for mental anguish and that the trial court erred in
approving the award of punitive damages.

               1. Damages for Emotional Distress

       The court’s instruction on damages included the following:

       Mental suffering. Mental suffering is reasonable compensation for any mental
       suffering, and mental discomfort suffered by the plaintiff. Mental suffering
       includes anguish, grief, shame, or worry.

Pursuant to this instruction, the jury awarded Mr. Massingille $25,000.00, which the court
termed “mental anguish” in its order.4 In reliance on Rogers v. Louisville Land Co., 367


       4
        “Mental suffering” and “mental anguish” are interchangeable terms. BLACK’S LAW
DICTIONARY (9th ed. 2009). “Emotional distress”, defined as a highly unpleasant mental reaction due to
                                                                                        (continued...)

                                                 -6-
S.W.3d 196 (Tenn. 2012), Mr. Vandagriff contends that there was no proof of “severe mental
injury” and, consequently, the issue of emotional distress should not have been submitted to
the jury.

        Mr. Vandagriff misconstrues the holding of Rogers, which was a suit to recover for
breach of contract, intentional infliction of emotional distress and outrageous conduct arising
out of alleged inadequate maintenance of a cemetery. The court in Rogers was reviewing the
law pertaining to the tort of intentional infliction of emotional distress and noted that “serious
mental injury” was an element of an intentional infliction of emotional distress claim; the
court’s discussion of the term was entirely in that context. Rogers, 367 S.W.3d at 205.5


        4
         (...continued)
another person's conduct, is likewise interchangeable with “mental suffering” and “mental anguish”. Id.
        5
            The Court stated:

        Ms. Rogers' claim is based on the tort of intentional infliction of emotional distress. The
        elements of an intentional infliction of emotional distress claim are that the defendant's
        conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized
        society, and (3) resulted in serious mental injury to the plaintiff.

Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012). In further discussing the “severe mental
injury” element, the court noted:

        To summarize the preceding review of the law in Tennessee regarding the “severe mental
        injury” element of the torts of intentional infliction of emotional distress and negligent
        infliction of emotional distress, the following nonexclusive factors inform the analysis and
        are pertinent to support a plaintiff's claim that he or she has suffered a serious mental injury:
        (1) Evidence of physiological manifestations of emotional distress, including but not limited
        to nausea, vomiting, headaches, severe weight loss or gain, and the like;
        (2) Evidence of psychological manifestations of emotional distress, including but not limited
        to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug
        and/or alcohol abuse, and unpleasant mental reactions such as fright, horror, grief, shame,
        humiliation, embarrassment, anger, chagrin, disappointment, and worry;
        (3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or
        psychiatric disorder such as post-traumatic stress disorder, clinical depression, traumatically
        induced neurosis or psychosis, or phobia, and/or was prescribed medication;
        (4) Evidence regarding the duration and intensity of the claimant's physiological symptoms,
        psychological symptoms, and medical treatment;
        (5) Other evidence that the defendant's conduct caused the plaintiff to suffer significant
        impairment in his or her daily functioning; and
        (6) In certain instances, the extreme and outrageous character of the defendant's conduct is
        itself important evidence of serious mental injury.

                                                                                                   (continued...)

                                                      -7-
Rogers does not stand for the proposition that recovery for emotional distress, mental
suffering, or mental anguish, suffered as a result of a tortious act other than the tort of
intentional or negligent infliction of emotional distress, must be based on proof of a severe
mental injury.

       The instruction given the jury in this case was similar to that set forth in the Tennessee
Pattern Jury Instructions.6 Evidence from which the jury in this case could conclude that Mr.
Massingille was entitled to damages for mental suffering included: Mr. Massingille’s
testimony that he felt anxious, upset, and “worried to death” prior to the first court date
because he did not know what was going to happen to him; that he felt embarrassed and
humiliated after informing his superiors within the Coffee County School system 7 , his pastor,
and Sunday school teacher; that his name appeared in the local paper under the “criminal
charges” section; and that he suffered from sleepless nights and went on a “quick diet”. In
addition, Mr. Massingille’s wife testified that he suffered from anxiety due to the criminal
charges against him.

      Material evidence exists to support the jury’s award to Mr. Massingille for mental
anguish.

                    2. Punitive Damages

        Punitive damages may be awarded when there is a finding, by clear and convincing
evidence, that a defendant has acted either (1) intentionally; (2) fraudulently; (3) maliciously;
(4) or recklessly. Hodges, 833 S.W.2d at 901. When the jury has awarded punitive damages,
the trial judge must review the award giving consideration to all matters on which the jury
was instructed and set forth the reasons for approving or decreasing the award in findings of




         5
             (...continued)
Id. at 209-10.

         6
              Tennessee Pattern Instruction 14.01, Compensatory Damages, states in pertinent part:

         Physical pain and mental suffering. Physical pain and suffering is reasonable compensation
         for any physical pain and suffering, physical and mental discomfort suffered by the plaintiff,
         [and the present cash value for pain and suffering likely to be experienced in the future.]
         Mental suffering includes anguish, grief, shame, or worry.

Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 14.01 (2013 ed.).
         7
              Mr. Massingille is a teacher at Coffee County High School.

                                                      -8-
fact and conclusions of law. Id. at 902.8 In order “to clearly demonstrate a consideration of
all relevant factors”, the court’s findings and conclusion should explicitly refer to each of the
factors listed in Hodges, as well as to any other facts supporting the award of punitive
damages. Culbreath v. First Tennessee Bank National Association, 44 S.W.3d 518, 529
(Tenn. 2001) (citing Hodges, 833 S.W.2d at 902).

        The jury found that Mr. Massingille was entitled to an award of punitive damages in
the amount of $5,000.00. The trial court approved the award; however, the court did not
state its findings relative to the relevant Hodges factors or other facts to support the award.
In the absence of such findings and conclusions, we cannot adequately review the award of
punitive damages. Culbreath, 44 S.W.3d at 528. Consequently, we must vacate the award
and remand the case for the trial court to enter a supplemental order setting forth its findings
as to the Hodges factors and the reasons supporting the award of punitive damages. See, e.g.,
Coffey v. Fayette Tublar Products, 929 S.W.2d 326 (Tenn. 1996).




        8
           As explained in Hodges, when a party seeks punitive damages, the trial court, upon motion, is to
bifurcate the trial. Hodges, 833 S.W.2d at 901. During the first phase, the fact finder determines (1) liability
for, and the amount of, compensatory damages and (2) liability for punitive damages; evidence of the
defendant’s financial affairs is not admissible. Id. In the second phase of the trial, the fact finder determines
the amount of punitive damages. Id. During the second phase, the following factors should be considered
to the extent relevant:

        (1) The defendant’s financial affairs, financial condition, and net worth;
        (2) The nature and reprehensibility of defendant’s wrongdoing, for example
                 (A) The impact of defendant’s conduct on the plaintiff, or
                 (B) The relationship of defendant to plaintiff;
        (3) The defendant’s awareness of the amount of harm being caused and defendant’s
        motivation in causing the harm;
        (4) the duration of defendant’s misconduct and whether defendant attempted to conceal the
        conduct;
        (5) The expense plaintiff has borne in the attempt to recover the losses;
        (6) Whether defendant profited from the activity, and if defendant did profit, whether the
        punitive award should be in excess of the profit in order to deter similar future behavior;
        (7) Whether, and the extent to which, defendant has been subjected to previous punitive
        damage awards based upon the same wrongful act;
        (8) Whether, once the misconduct became known to defendant, defendant took remedial
        action or attempted to make amends by offering a prompt and fair settlement for actual harm
        caused; and
        (9) Any other circumstances shown by the evidence that bear on determining the proper
        amount of the punitive award.

                                                      -9-
       C. Evidentiary Issues

       Mr. Vandagriff contends that the trial court erred in allowing the following testimony:
Deputy Alonso to opine that the dispute between the parties was a civil matter; Assistant
District Attorney Felicia Walkup to “give a ‘what if’ description of what could happen if an
arrest warrant had been issued”; and Mr. Massingille “to testify what it was like to be Mr.
Vandagriff’s neighbor.”

        A trial court has a wide degree of latitude in its determination of whether to admit or
exclude evidence. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). A trial
court's evidentiary ruling will only be overturned on appeal upon a showing of abuse of
discretion. Otis v. Cambridge Mutual Fire Insurance Co., 850 S.W.2d 439, 442 (Tenn.
1992). A discretionary decision will be set aside only when the deciding court applied
incorrect legal standards, reached an illogical conclusion, decided the case on a clearly
erroneous assessment of the evidence, or employed reasoning that will cause injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton County Hospital Authority, 249
S.W.3d 346, 358 (Tenn. 2008).

               1. Testimony of Deputy Alonso

       Citing Tenn. Rule Evid. 702, governing opinion testimony by expert witnesses, Mr.
Vandagriff contends that the court erred in allowing Deputy Alonso to testify that “cutting
bushes or trees on the property of another was a civil matter”. We do not agree that the
testimony at issue, viewed in context, was an opinion within the scope of Rule 702. 9

        The testimony occurred when Mr. Massingille’s counsel asked Deputy Alonso about
the conversation Deputy Alonso had with Mr. Vandagriff when responding to the call in
March 2009 that Mr. Massingille was trespassing on the Vandagriff land. Deputy Alonso
testified:

       Q. All right. Do you recall what you told him? Why did you tell him that you
       were not going to arrest Mr. Massingile?
       A. For one, he [Mr. Massingile] wasn’t on his [Mr. Vandagriff] property when
       I was there, and for two, it’s not a criminal matter.
       Q. Okay.



       9
          Mr. Vandagriff has not cited to the testimony of Deputy Alonso he contends was inappropriate;
we have reviewed the entirety of Deputy Alonso’s testimony and have quoted the testimony which pertains
to Mr. Vandagriff’s argument.

                                                 -10-
       A. He [Mr. Massingile] didn’t have criminal intent to come on his [Mr.
       Vandagriff] property to harm him.
       Q. All right. And you told Mr. Vandagriff that?
       A. Yes, I told him he needed to hire a lawyer, it’s a civil matter.

      This testimony is factual, not opinion testimony as Mr. Vandagriff asserts; Deputy
Alonso merely testified as to what he told Mr. Vandagriff when asked to place Mr.
Massingille under arrest. The trial court did not err in allowing this testimony.

              2. Testimony of Assistant District Attorney Felicia Walkup

        The testimony of Assistant District Attorney Walkup to which Mr. Vandagriff objects
was elicited as Mr. Massingille’s counsel asked General Walkup to explain the procedure by
which Mr. Vandagriff obtained the criminal warrant and initiated the prosecution. General
Walkup explained that there are two processes for initiating a criminal proceeding in Coffee
County: (1) a law enforcement officer presents facts to a judicial commissioner who then
issues an arrest warrant, allowing the individual to be arrested; and (2) a private citizen
presents facts alleging a crime to a commissioner and, if appropriate, the commissioner will
issue a criminal summons, which will require the individual to present themselves to the jail
to be booked. General Walkup testified that when Mr. Vandagriff filed his affidavit of
complaint, an arrest warrant was initially issued, but was later changed to a criminal
summons by Gene Taylor, the supervising commissioner.

       Mr. Vandagriff contends that the court erroneously overruled his objections to the
following testimony:

       Q. All right. And if it had not been changed to a criminal summons Mr.
       Massingile would have been arrested by a law enforcement officer, is that
       true?
       A. Well, again, I can’t tell you what would have happend.
       Q. Is that what typically happens?
       A. That’s what typically happens.

       Mr. Ewell: I’m going to object to what typically would have happened. She
       said she can’t say what would have happen.

       The Court: She’s an assistant district attorney. She can testify to what
       typically happens.

       ***

                                            -11-
       Q. All right. Ms. Walkup, when a criminal arrest warrant issues, if it is not a
       summons, if it’s an arrest warrant how does it then go to an arresting officer?
       Mr. Ewell: Again, Your Honor, this has nothing to do with Mr. Vandagriff–
       The Court: He can ask the process.
       Mr. Ewell: –can influence that.
       The Court: He can ask the process. He can ask the process.

Mr. Vandagriff argues that the testimony is irrelevant because Mr. Massingille was never
arrested and because Mr. Vandagriff had no control over whether a warrant or summons was
issued.

        Relevant evidence is admissible in accordance with Tenn. R. Evid. 402; it can be
excluded if the probative value is outweighed by the danger of unfair prejudice, confusion
of issues, misleading the jury, or waste of time. Tenn. R. Evid. 403. The trial court has
discretion in determining if evidence meets the test for relevancy. State v. Forbes, 918
S.W.2d 431, 449 (Tenn. Crim. App.1995). Assessing the probative value and danger of
unfair prejudice regarding the evidence also falls within the trial court's discretion. State v.
Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim. App.1993). This court will only reverse a
trial court's decision if the trial court abused that discretion. State v. Williamson, 919 S.W.2d
69, 78 (Tenn. Crim. App.1995).

        The trial court did not abuse its discretion in allowing this testimony. In addition to
generally informing the jury as to the manner in which a criminal prosecution is initiated by
a private citizen, the evidence was relevant to the issue of Mr. Vandagriff’s malice in
initiating the criminal trespass proceedings. Through cross-examination, Mr. Vandagriff ‘s
counsel elicited that Mr. Vandagriff had no control over the determination of whether a
warrant or a summons would be issued and Mr. Massingille testified that he had not been
arrested. Viewed in light of the entire evidence and issues in the case, the testimony of
General Walkup was relevant and the jury was entitled to give it such weight as the jury
deemed appropriate.

              3. Testimony of Plaintiff

       Mr. Vandagriff contends that the court erred in allowing certain testimony of Mr.
Massingille, which Mr. Vandagriff characterizes as “evidence of the perceived
unpleasantness of the plaintiff and defendant being neighbors and/or the ‘loss of their
friendship’” as an element of damages.

       The testimony cited by Mr. Vandagriff was Mr. Massingille’s testimony about his
relationship with Mr. Vandagriff after the charges were filed; specifically, that there was

                                              -12-
tension between the two, that he heard gun shots coming from the Vandagriff property, and
that he could no longer work on his land that bordered the Vandagriff property because he
feared Mr. Vandagriff would start shooting again. Mr. Vandagriff objected to the testimony
of gunshots as speculative and “as an attempt to inflame things.” The court found that this
testimony was admissible because Mr. Massingille was describing his state of mind.

        We are not persuaded that the court abused its discretion in allowing the testimony.
At the time it was offered, Mr. Massingille was testifying as to the nature of his relationship
with Mr. Vandagriff and as to events that had taken place after the criminal charges were
filed; he testified that he heard gunshots coming from the Vandagriff property on more than
one occasion and that, as a result, he and his wife were reluctant to have company, including
their grandchild. This testimony was further explanatory of the circumstances surrounding
the criminal prosecution and relevant as to whether Mr. Vandagriff’s conduct in initiating
and pursuing the prosecution rendered him liable for punitive damages.

       D. Remittitur of the Jury Award

        Mr. Vandagriff asserted in his motion for new trial that the verdict was excessive and
against the weight of the evidence; in his amended motion he requested, in the alternative,
that the court grant a remittitur. The court suggested a remittitur of $40,000.00–the amount
of the jury’s award for loss of enjoyment of life. The suggestion was accepted under protest
by Mr. Massingille; on appeal he contends that the evidence supported the award.

       Remittitur is governed by Tenn. Code Ann. § 20-10-102.10 In reviewing the trial
court’s suggestion of a remittitur, we employ a three-step process. First, we examine the


       10
            Tenn. Code Ann. § 20-10-102 provides:

       (a) In all jury trials had in civil actions, after the verdict has been rendered and on motion
       for a new trial, when the trial judge is of the opinion that the verdict in favor of a party
       should be reduced and a remittitur is suggested by the trial judge on that account, with the
       proviso that in case the party in whose favor the verdict has been rendered refuses to make
       the remittitur, a new trial will be awarded, the party in whose favor such verdict has been
       rendered may make such remittitur under protest, and appeal from the action of the trial
       judge to the court of appeals.

       (b) The court of appeals shall review the action of the trial court suggesting a remittitur
       using the standard of review provided for in T.R.A.P. 13(d) applicable to decisions of the
       trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the
       jury should not have been reduced, but the judgment of the trial court is correct in other
       respects, the case shall be reversed to that extent, and judgment shall be rendered in the
       court of appeals for the full amount originally awarded by the jury in the trial court.

                                                     -13-
reasons for the trial court’s actions since adjustments are proper only when the court
disagrees with the amount of the verdict. Burlison v. Rose, 701 S.W.2d 609, 611 (Tenn.
1985). Second, we evaluate the amount of the suggested adjustment since adjustments that
totally destroy the jury’s verdict are impermissible. Foster v. Amcon Int’l, Inc. 621 S.W.2d
142, 148 (Tenn. 1981); Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. Ct. App. 1986). Third,
we review the proof of damages to determine whether the evidence preponderates against the
trial court’s adjustments; the trial court enjoys a presumption of correctness regarding its
findings of fact, unless the evidence provides otherwise. Tenn. Code Ann § 20-10-102 (b);
Tenn. R. App. P. 13 (d).

        In suggesting the remittitur when ruling on the motion for a new trial, the court stated
that “[t]he verdict for Loss of Enjoyment of Life was outside the bounds of reasonableness
and not supported by the evidence.” In effect, the reason for the suggestion of remittitur was
the court’s belief that the evidence did not support any award for loss of enjoyment of life
and that, consequently, the $40,000.00 which the jury awarded for that particular element
made the entire $66,500.00 verdict unreasonable.11 Consequently, the inquiry before us is
whether the court correctly determined that the evidence did not support any award.

        Arguing in his brief that there was evidence in support of the award, Mr. Massingile
states: “[f]or over a year Massingille did not have the freedom to work on his property or
enjoy his land for fear of Vandergriff confronting him, calling the police on him or pressing
criminal charges against him, all of which he had previously done.” We have viewed the
testimony cited by Mr. Massingille in support of this contention and respectfully disagree that
it supports a claim for loss of enjoyment of life.

        The criminal prosecution was initiated on June 5, 2009 and terminated on August 17;
the matters about which Mr. Massingille testified predated and postdated this time span and
were not proximately caused by the prosecution of the trespass action. Rather, the fear of
working on his property, of having his grandchild and visitors over, concern regarding
shooting, and other similar matters are elements of mental anguish which we have discussed
earlier. Considering the entire evidence and the elements of the verdict, Mr. Massingille’s
argument that the evidence supports an award for loss of enjoyment of life is tenuous. The
evidence does not preponderate against the trial court’s determination.




        11
           We are led to this conclusion in light of the fact that the court did not suggest that the $40,000.00
award for loss of enjoyment of life be reduced rather than eliminated entirely.

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       E. Other Evidentiary Matters

       Without assigning particular error to any ruling or failure to rule on the part of the trial
court, Mr. Vandagriff complains that “plaintiff set upon a deliberate course to attempt to
introduce numerous irrelevant matters and claims not supported by admissible evidence
which forced defendant to object or waive the issue.” His brief contains several citations to
the court’s ruling on his objections to proffered testimony and jury out hearings to discuss
evidentiary matters, all occurring on the first day of trial.

       We have reviewed the citations to the transcript and find no impropriety in the manner
in which the matters were raised or handled by the court; as noted above, Mr. Vandagriff
does not assign error to any particular ruling. The record shows that when Mr. Vandagriff’s
counsel objected to the introduction of certain evidence, the court considered the objections,
sustained some and overruled others. Giving appropriate deference to the trial court’s
determinations regarding the admissibility of evidence, we find no abuse of discretion in any
ruling cited by Mr. Vandagriff.

III. C ONCLUSION

        For the foregoing reason, we vacate the award of punitive damages and remand the
case for the entry of a supplemental order setting forth the court’s findings as to factors set
forth in Hodges v. S. C. Toof & Co.; in all other respects the judgment of the trial court is
affirmed.




                                                      ____________________________________
                                                      RICHARD H. DINKINS, JUDGE




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