                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE

                      JULIE A. BELLAMY v.
          CRACKER BARREL OLD COUNTRY STORE, INC. ET AL.

              Appeal by Permission from the Court of Appeals, Middle Section
                           Chancery Court for Wilson County
                         No. 06145 Charles K. Smith, Chancellor


                    No. M2008-00294-SC-R11-CV - Filed December 7, 2009



JANICE M. HOLDER, C.J., dissenting

        I applaud the majority’s willingness to decide this case in an expeditious manner. I disagree,
however, that this case presents the appropriate opportunity to suspend the rules of appellate
procedure to do so. Moreover, I disagree that the Court of Appeals erred in considering the
conflicting statements of evidence. The Court of Appeals identified a statement made by the trial
court that was dispositive of the issue and that was not in dispute. Based on this statement, the Court
of Appeals correctly remanded this case for a new trial.

        This appeal arises from Ms. Bellamy’s retaliation claim against her employer and manager.
The jury’s verdict was in favor of the defendants, and Ms. Bellamy filed a motion for a new trial.
During a hearing, the trial court denied the motion. No court reporter was present at the hearing, and
both parties provided the trial court with statements of the proceedings pursuant to Tennessee Rules
of Appellate Procedure 24(c) and (e). Even though the parties’ respective statements present
differing versions of what transpired during the hearing, the defendants’ own statement of the
proceedings acknowledges:

               The [trial] Court expressed displeasure at being required to either
               agree or disagree with the jury’s verdict and having to state that the
               preponderance of the evidence was in favor of the defendants, noting
               that if the Plaintiff had wanted a bench trial, she should not have
               asked for a jury trial and that it seemed inappropriate to him to have
               to essentially independently rule on the case when the parties had
               requested a jury trial.

        Ms. Bellamy appealed alleging that the trial court did not properly exercise its role as the
thirteenth juror because it failed to weigh the evidence and indicate its agreement or lack of
agreement with the verdict. The Court of Appeals agreed and remanded the case for a new trial. A
majority of this Court concludes that the Court of Appeals erred in not reconciling the parties’
statements of the proceedings and remands this case to the trial court to reconcile the statements and
to certify and transmit a supplemental record to the Court of Appeals in accordance with Tennessee
Rule of Appellate Procedure 24. I disagree that a remand is appropriate.

         Since the parties agree that the trial court did not exercise its role as thirteenth juror,
disagreements about what precisely transpired during the hearing on the motion for a new trial are
irrelevant. As the Court of Appeals recognized, the proper remedy in this case is a remand for a new
trial, not a remand to exercise the trial court’s role as thirteenth juror. As this Court explained in
State v. Moats, 906 S.W.2d 431 (Tenn. 1995), in discussing this very issue:

                The trial judge is in a difficult position to make a thirteenth juror
                determination after a remand which would not occur until after the
                case works its way through the appellate courts. By that time, the
                trial judge is unlikely to have an independent recollection of the
                demeanor and credibility of all the witnesses. The “human
                atmosphere” of the trial forum would be lost, and the trial court
                would be in no better position to evaluate the weight of the evidence
                than an appellate court.

Id. at 435 (emphasis omitted); see also Woolfork v. Hampton Inns., Inc., No.
02A01-9411-CV-00266, 1996 WL 50971, at *6 (Tenn. Ct. App. Feb. 7, 1996) (applying Moats in
a civil case).

        Rule 1 of the Rules of Appellate Procedure declares that the rules “shall be construed to
secure the just, speedy, and inexpensive determination of every proceeding on its merits.”
Remanding to the trial court to resolve an irrelevant disagreement about which statement of the
proceeding is accurate is neither just, speedy, or inexpensive, and it is unnecessary to a determination
of the merits when the record shows clearly that an error requiring a new trial occurred. See Holden
v. Rannick, 682 S.W.2d 903, 905 (Tenn. 1984) (“If a trial judge, in discharging his duty as a
thirteenth juror, makes comments which indicate that he has misconceived his duty as a thirteenth
juror, an appellate court must reverse the trial judge and remand for a new trial.”); Nashville,
Chattanooga & St. Louis R.R. Co. v. Neely, 52 S.W. 167, 168 (Tenn. 1899).

        Moreover, as interesting as these facts may be, they do not present good cause to suspend the
briefing requirements under Rule of Appellate Procedure 11(f). Rule 2 grants us discretion to
suspend any rule of appellate procedure for “good cause, including the interest of expediting decision
upon any matter.” In this case, only the Rule 11(a) and (d) application and response were filed, and
the opinion has been released contemporaneously with the grant of the application. This case would
have benefitted from briefing beyond the bare-bones application for permission to appeal and the
two-page response of the appellee. Moreover, permitting the parties to brief the issues would not
have precluded us from expediting the case if we desired to do so. After granting an application for
permission to appeal we may suspend rules of appellate procedure and “order proceedings in



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accordance with [our] discretion” to alter the time in which briefs can be filed, set cases on dockets
as needed, or suspend oral argument altogether pursuant to Rule 2.

       I respectfully dissent.



                                                       ___________________________________
                                                       JANICE M. HOLDER, CHIEF JUSTICE




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