                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 25, 2012 Session

METROPOLITAN DEVELOPMENT and HOUSING AGENCY v. TOWER
               MUSIC CITY II, LLC, ET AL.

                   Appeal from the Circuit Court for Davidson County
                     No. 09C3636     Joseph P. Binkley, Jr., Judge


                  No. M2012-00108-COA-R3-CV - Filed April 30, 2013




F RANK G. C LEMENT, J R., J., concurring.

       I write separately to address two issues. The first pertains to jury instruction T.P.I.
11.15 and the failure to give a curative instruction when requested by the jury.

        The majority concluded that “T.P.I. 11.15 correctly charges the jury that value is to
be determined from the opinions of witnesses and other evidence bearing on value and that,
in its deliberations, the jury is to determine the weight to be given to each opinion and to
consider the factual basis of the opinion.” I agree, to a point, that the instruction is “correct”
but I submit it is ambiguous and confusing. I am of the opinion that the jury was confused
by the wording of T.P.I. 11.15; which is evident from the jury’s question: “Does the fair
market value have to be the exact amount of one of the appraisers or can it be any amount
between the highest and lowest amount appraised?” I submit T.P.I. 11.15 should be revised
to make certain that future juries are not confused. As we explained in Grissom v.
Metropolitan Government of Nashville, Davidson County, 817 S.W.2d 679, 685 (Tenn. Ct.
App. 1991):

       The trial court is the jury’s sole source for the legal principles to guide their
       deliberations. State ex rel. Myers v. Brown, 351 S.W.2d 385, 388 (Tenn. 1961).
       Thus, trial courts must give accurate instructions with respect to the parties’
       respective theories, Street v. Calvert, 541 S.W.2d 576, 584 (Tenn. 1976), and
       must frame the instructions in plain words that average jurors will understand.
       Gross v. Nashville Gas Co., 608 S.W.2d 860, 872 (Tenn. Ct. App. 1980);
       Martin v. CastnerKnott Dry Goods Co., 181 S.W.2d 638, 642 (Tenn. Ct. App.
       1944).
        Therefore, I submit, instead of instructing the jury: “You may not find the market
value of the property . . . if any, to be less than or more than that testified to by any witness,”
T.P.I. 11.15 should provide, in pertinent part:

       You may not find the market value of the property to be less than or more than
       that testified to by any witness, although you may find the market value of the
       property to be between the lowest and highest values testified to by any
       witness.

       The foregoing notwithstanding, I concur with the majority’s ruling that the instruction
and the decision to not give a curative instruction do not constitute reversible error in this
case because the appellant waived the issue at trial. This is due to the fact the appellant did
not object to the T.P.I. 11.15 instruction at trial and the appellant expressly agreed that no
curative instruction should be given.

        The second issue I wish to address pertains to the trial judge’s duty as the thirteenth
juror. I respectfully submit the judge’s repeated statements that the applicable standard was
whether he “reasonably disagreed” with the jury, standing alone, may have constituted
reversible error. Nevertheless, I have concluded that the judge cured the possible error with
the statement that followed: “And I do not find that the evidence preponderates against the
verdict. I approve the verdict.”

        This is consistent with the Tennessee Supreme Court’s ruling in Turner v. Jordan, 957
S.W.2d 815 (Tenn. 1997), that: “As the thirteenth juror, the trial court must grant a new trial
if the verdict is contrary to the weight of evidence.” Id. at 823 (citing Tenn. R. Civ. P. 59.06).
Further, if the trial court makes comments in fulfilling its role as the thirteenth juror, we are
to examine the comments, but “only for the purpose of determining whether the trial court
properly reviewed the evidence, and was satisfied or dissatisfied with the verdict.” Miller v.
Doe, 873 S.W.2d 346, 347 (Tenn. Ct. App. 1993).

               While the Trial Judge’s statement concerning his normal inclination as
       to when to intervene or not to intervene with a jury’s decision is troublesome,
       it is not what is at issue. What is at issue is what did the Trial Judge do in this
       case, not what his usual inclination is or is not.

               This Court’s role is to examine all the comments of the Trial Judge to
       determine whether he properly reviewed the evidence and was satisfied or
       dissatisfied with the verdict. Miller at 347. The Trial Judge’s later specific
       statement that he had made an independent examination of the evidence
       presented and concluded that it preponderated in favor of the verdict states

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       what was required of him as the thirteenth juror. Taken as a whole, the Trial
       Judge’s remarks do not show that he misconstrued his duty as the thirteenth
       juror, but instead show that he fulfilled that duty. The Trial Judge’s comments,
       all of them taken together, clearly show that the Trial Judge did weigh the
       evidence independently, pass upon the issues, and decide that the verdict was
       supported by the evidence, all as required of him to satisfy his obligations as
       the thirteenth juror. See Ladd v. Honda Motor Co. LTD. 939 S.W.2d 83, 105
       (Tenn. Ct. App. 1996).

Jones v. Pearl, No. 01A01-9901-CV-00019, 1999 WL 722658, at *3 (Tenn. Ct. App. Sep.
17, 1999).

       For the above reasons, I concur with the majority that the trial judge’s comments, all
of them taken together, do not constitute reversible error.




                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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