                                                                                            08/09/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 18, 2019 Session

         SIMEON T. TRENDAFILOV V. WILLIAM E. BITTERMAN

                    Appeal from the Circuit Court for Knox County
                      No. 3-151-17    Deborah C. Stevens, Judge


                             No. E2018-01289-COA-R3-CV


This appeal follows a jury trial in which the plaintiff was awarded $6,500 for damage to
his automobile. The plaintiff raises several issues for our consideration. Two of the issues
pertain to pretrial evidentiary rulings made by the trial court; however, the plaintiff failed
to raise these issues in his motion for new trial. Because the plaintiff failed to raise these
issues in his motion for new trial, they are waived under Rule 3 of the Tennessee Rules of
Appellate Procedure. The remaining issues concern whether the trial court properly
admitted the defendant’s valuation evidence at trial and whether the evidence at trial was
sufficient to support the jury’s verdict. Although the plaintiff raised these issues in his
motion for new trial, he failed to provide this court with a transcript of the evidence or a
statement of the evidence. Without a fair and accurate record of what transpired at trial,
we are unable conduct a review of these issues. Therefore, we affirm the judgment of the
trial court in all respects.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J., and THOMAS R. FRIERSON II, J., joined.

Simeon T. Trendafilov, Fort Walton Beach, Florida, Pro Se.

James C. Cone and Hannah S. Lowe, Knoxville, Tennessee, for the appellee, William E.
Bitterman.

                                         OPINION

       On September 12, 2016, William Bitterman (“Defendant”) was driving his vehicle
down a street in Knoxville, Tennessee, when he collided with a parked and unoccupied
2002 BMW 330 Ci owned by Simeon Trendafilov (“Plaintiff”). In March 2017, Plaintiff
had a civil warrant issued against Defendant by the Knox County General Sessions Court
to recover compensatory damages for the repair and loss of use of his car. Plaintiff acted
pro se throughout the proceedings below, and Defendant was represented by counsel.
After a trial in April 2017, Plaintiff’s claim was dismissed with prejudice.1 Plaintiff
perfected an appeal to the Knox County Circuit Court, and Defendant filed a demand for
a 12-person jury trial. Defendant acknowledged his liability for the property damage;
therefore, the only question for the jury was the proper measure of damages and the
amount.

       During the discovery process, Plaintiff filed a motion to compel Defendant to
provide documents from Defendant’s insurance company which would show that the
repair of Plaintiff’s car was unreasonably delayed due to a disagreement with
Defendant’s insurance provider. Plaintiff intended to use the documents to prove loss of
use damages at trial. Defendant opposed the motion and moved for a protective order on
the basis that Defendant’s insurance provider’s claim file was not discoverable. After a
hearing on the matter, the trial court denied Plaintiff’s motion to compel, finding that
because the action was not a direct action against Defendant’s insurance company, the
existence of insurance was inadmissible at trial. The court then instructed both Plaintiff
and Defendant “not to discuss the Defendant’s insurance or the claim handling of the
insurance company for any reason.”

        Defendant then filed a motion in limine, seeking to prevent Plaintiff from
presenting evidence of the cost of repair and loss of use of his vehicle. Defendant
contended that Plaintiff’s claimed cost of repair exceeded the fair market value of the
vehicle, which meant the vehicle was not capable of being repaired. Therefore, Defendant
argued that the correct measure of damages was the difference between the fair market
value of Plaintiff’s car immediately before the accident and immediately after the
accident. Plaintiff filed a response opposing the motion. After a hearing, the trial court
denied the motion, in part, ruling that Plaintiff would be permitted to present evidence at
trial of “the before and after value of his motor vehicle” and “the cost of repair, and loss
of use.” The jury would then determine the correct measure of damages and the amount.
However, the court ruled in favor of Defendant, in one respect, by limiting Plaintiff’s
proof of damages for loss of use “to the value of the use of the vehicle for a reasonable
amount of time that would be required to repair the vehicle.”

       The case was tried before a jury on February 5, 2018, and because Defendant
stipulated to his liability, the trial proceeded only on the issue of compensatory damages.
After a one-day trial, the jury returned a verdict in favor of Plaintiff for $6,500.

        1
          In his brief, Defendant claims that Plaintiff first had a civil warrant issued on November 23,
2016, shortly after the accident, but after a trial on February 13, 2017, the general sessions court
dismissed Plaintiff’s claim without prejudice. However, the civil warrant from November 2016 and the
court’s subsequent decision are not a part of the record on appeal.


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       Plaintiff timely filed a motion for new trial, arguing that (1) the NADA valuation
of Plaintiff’s vehicle introduced into evidence by Defendant was inadmissible hearsay;
(2) the testimony of witness, Mark Latham, regarding the repair of the vehicle “was
confusing and may have prejudiced the jury;” and (3) the jury’s verdict was not supported
by the evidence.

       First, Plaintiff argued that the NADA valuation was inadmissible hearsay because
it was “an unpublished . . . custom valuation . . . obtained through the use of NADA
software.” Plaintiff conceded that he did not object to the evidence when Defendant
introduced it through Plaintiff’s witness. Nevertheless, Plaintiff took issue with the fact
that the trial court sustained Defendant’s objection to the admission of Plaintiff’s
valuations on the same ground. Plaintiff argued that if Plaintiff’s valuations were
inadmissible hearsay, then Defendant’s valuation was also inadmissible hearsay.

       Second, Plaintiff contended that Mark Lantham’s testimony that Plaintiff’s car
was “totaled” was confusing to the jury because it left the jury with the false impression
that Plaintiff wanted the vehicle repaired despite the fact that it was totaled. Plaintiff
claimed that Mr. Lantham never informed Plaintiff that the vehicle was totaled when
Plaintiff asked Mr. Lantham to repair the vehicle. And, finally, Plaintiff argued that the
jury award of $6,500 was not supported by the evidence presented at trial under either
formula for calculating damages—(1) cost of repair and loss of use or (2) the difference
in value of the car before and after the accident.

       After a hearing on April 27, 2018, the trial court entered an order denying
Plaintiff’s motion for new trial, ruling in pertinent part:

       There was conflicting testimony and proof about the fair market value of
       the vehicle and the cost of repairs . . . . There was competing testimony
       from the witnesses as to whether the vehicle appreciated in value or
       depreciated in value. The plaintiff objected at the hearing that the $5,700.00
       NADA book value presented at trial by the defendant was not actually a
       NADA book value; however, the plaintiff did not object to it at trial . . . .
       Furthermore, the plaintiff’s witness, Mark Latham, established a sufficient
       evidentiary foundation for the NADA pursuant to Rule 803(17), T.R.E.,
       and the Court feels that it did not abuse its discretion in allowing the
       NADA book value into evidence based on the testimony of the plaintiff’s
       witness . . . . The jury heard testimony and proof at trial regarding the rental
       value of the plaintiff’s vehicle and also heard testimony and saw exhibits
       regarding towing bills incurred by the plaintiff.

       The Court finds that the jury was told to listen to facts, examine the
       credibility of witnesses, and was free to accept or reject the testimony of the

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       witnesses and evaluate the evidence presented at trial. The Court finds that
       the jury reviewed all of the evidence and the testimony of the witnesses . . .
       . The Court finds that it is comfortable with its rulings on the admissibility
       of the testimony and evidence presented at trial.

       Finally, the Court, in its role as thirteenth juror, has independently weighed
       the evidence and testimony presented at trial, and the Court finds that the
       evidence presented at trial does not preponderate against the jury’s verdict
       awarding the plaintiff $6,500.00. Therefore, the Court finds that the
       plaintiff’s Motion for New Trial should be DENIED.

Plaintiff appealed.

                                                 ANALYSIS

       Plaintiff raises five issues on appeal, which we have consolidated into four issues
and rephrased as follows: Did the trial court err by (1) ruling that any evidence related to
Defendant’s automobile insurance was inadmissible at trial, (2) limiting Plaintiff’s proof
of damages for loss of use to the value of the use of the vehicle for the reasonable amount
of time required to repair the vehicle, (3) admitting the NADA valuation into evidence,
and (4) determining that the evidence was sufficient to support the jury’s verdict?2

     Because Plaintiff is pro se on appeal, he is granted a certain amount of leeway;
however, we may not excuse him from complying with the same substantive and

       2
           Plaintiff phrased the issues as follows:

       1. The court erred in not allowing the plaintiff access to evidence of his interactions with the
          insurance company of the defendant, namely the relevant parts of the claim file, for the
          purpose of proving additional consequential damages.

       2. The court erred in not allowing the plaintiff to present any evidence of his interactions with
          the insurance company of the defendant, for the purposes of proving additional consequential
          damages.

       3. The court erred in prohibiting the plaintiff and his witnesses from presenting any evidence in
          the claim for loss of use aside from the value of the use of the vehicle for the reasonable
          amount of time that would be required to repair the vehicle.

       4. The court erred in ruling the same evidence first inadmissible for the plaintiff and then
          admissible for the defendant during the trial.

       5. The court erred in accepting numbers invented by the jury for measuring the amount of
          damages.


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procedural requirements as represented parties or shift the burden of litigating the case to
the courts or his adversary. Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct.
App. 2003).

       Rule 3(e) of the Tennessee Rules of Appellate Procedure states in relevant part:

       [I]n all cases tried by a jury, no issue presented for review shall be
       predicated upon error in the admission or exclusion of evidence, jury
       instructions granted or refused, misconduct of jurors, parties or counsel, or
       other action committed or occurring during the trial of the case, or other
       ground upon which a new trial is sought, unless the same was specifically
       stated in a motion for a new trial; otherwise such issues will be treated as
       waived.

(Emphasis added). Plaintiff only addressed three issues in his motion for new trial: (1) the
admissibility of the NADA valuation; (2) the testimony of witness Mark Lantham; and
(3) the sufficiency of the evidence. Plaintiff did not ask the court to consider whether it
erred in excluding evidence of Defendant’s automobile insurance or whether it erred in
limiting Plaintiff’s evidence concerning the loss of use of his vehicle. Because those
issues are predicated upon alleged errors “in the admission or exclusion of evidence,”
those issues are waived. See id.

       While Plaintiff did raise the remaining two issues in his motion for new trial, we
cannot consider those issues either because we do not have a transcript of the evidence or
a statement of the evidence to review. Plaintiff is the appellant here, and the burden is on
the appellant to provide us with a transcript of the evidence or a statement of the
evidence. Tenn. R. App. P. 24(b) & (c); Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.
Ct. App. 1992). “The absence of either a transcript or a statement of the evidence
significantly ties the hands of the appellate court.” Chandler v. Chandler, No. W2010–
01503–COA–R3–CV, 2012 WL 2393698, at *6 (Tenn. Ct. App. June 26, 2012). “Where
the record is incomplete and does not contain a transcript of the proceedings relevant to
an issue presented for review , . . . an appellate court is precluded from considering the
issue.” State v. Ballard, 855 S.W.2d 557, 560–61 (Tenn. 1993).

                                     IN CONCLUSION

       Therefore, the judgment of the trial court is affirmed, and this matter is remanded
with costs of appeal assessed against Simeon Trendafilov.


                                                  ________________________________
                                                  FRANK G. CLEMENT JR., P.J., M.S.


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