                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                       May 6, 2003 Session

                ROBERT FRED JONES, JR., ET AL. v. VICK IDLES

               Interlocutory Appeal by Permission from the Court of Appeals
                            Circuit Court for Anderson County
          No. 98LA0255     William E. Lantrip, Chancellor, Sitting by Interchange




                     No. E2001-02833-SC-S09-CV - Filed September 8, 2003


We granted this appeal to determine whether the chancellor correctly granted a new trial after finding
that the jury’s allocation of ninety percent of the fault to the plaintiffs and ten percent of the fault to
the defendant was against the weight of the evidence and that the evidence supported “a defense
verdict for both sides.” A majority of the Court of Appeals concluded that the chancellor correctly
granted a new trial on both the plaintiffs’ claim and the defendant’s counterclaim and affirmed the
judgment of the trial court. After reviewing the record and applicable authority, we agree with the
Court of Appeals and hold that the chancellor properly granted a new trial after finding that the jury’s
allocation of fault was against the weight of the evidence in his role as the thirteenth juror.
Accordingly, we affirm the judgment.

   Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Court of Appeals Affirmed

E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Jerry Shattuck, Clinton, Tennessee, for the appellant, Vick Idles.

Terrill L. Adkins, Knoxville, Tennessee, for the appellees, Robert Fred Jones and Virginia Leigh
Jones.


                                               OPINION

        On March 31, 1998, at approximately 1:45 p.m., the plaintiff, Robert Fred Jones, was driving
a 1988 Dodge automobile approaching the intersection of Charles Seivers Boulevard with Longmire
Road in Clinton, Anderson County, Tennessee. At the same time, the defendant, Vick Idles, was
driving a 1996 GMC truck toward the same intersection, which was controlled by a traffic light. The
vehicles collided in the intersection. Thereafter, Jones and his wife, Virginia Leigh Jones, filed a
complaint in the Circuit Court of Anderson County, alleging that Idles had failed to stop at the red
light and collided with their automobile, causing personal injuries and loss of consortium for which
they sought damages. Idles filed a counterclaim alleging in turn that Robert Jones had run the red
light and had failed to keep a proper lookout, which caused him injuries and damages.

        Later, at a trial on the issue of liability, 1 the jury allocated ninety percent of the fault to Jones
and ten percent of the fault to Idles. The chancellor entered an order after the verdict dismissing the
complaint filed by Robert and Virginia Jones and finding that the counter complaint filed by Idles
was “sustained by the proof.” After a hearing on the Jones’s motion for a new trial, however, the
chancellor decided:

                   [A]cting as the 13th juror, the Court finds that the 90 percent, 10
                   percent there – I thought that they were credible witnesses for both
                   sides to be quite honest with you. And that it would have been an
                   impossible job for this jury to come back with anything but a defense
                   verdict for both sides of the complaint.

                            For that reason, and that reason alone, the Court grants a new
                   trial.

(Emphasis added).

        Likewise, the chancellor’s order granting the new trial stated that “the Court further finds,
in the exercise of its function as the thirteenth juror, that neither the plaintiffs [Robert and Virginia
Jones] nor the counter plaintiff [Vick Idles] carried the burden of proof in this cause and it would
have been an impossible job for the jury to come back with anything but a defense verdict for both
sides.” Accordingly, the chancellor granted a new trial “with all issues in the Complaint and Counter
Complaint to be retried.”

       Idles filed an application for interlocutory review, which was granted by both the Chancery
Court and the Court of Appeals. Tenn. R. App. P. 9.2 After argument, a majority of the Court of
Appeals held that the chancellor correctly granted both parties a new trial after finding that the
chancellor disagreed with the jury’s verdict in his capacity as the thirteenth juror. The dissent,
however, concluded that Robert and Virginia Jones failed to establish any basis for relief under
comparative fault principles because the jury’s verdict and the chancellor’s findings indicated that
Robert Jones was at least fifty percent or more at fault.

         We granted the defendant’s application for permission to appeal.

         1
           The trial court had entered an “Order of Bifurcation” stating that the liability issues between the parties would
be tried separately from issues reg arding dam ages.

         2
            Idles argued that the trial court erred in granting a new trial on the Jon es’s complaint, but he did not contest
the trial court’s grant of a new trial on his counterclaim.

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                                                   ANALYSIS

        The defendant, Vick Idles, argues that the plaintiffs, Robert and Virginia Jones, were not
entitled to a new trial because they failed to establish any basis for relief on their complaint. Idles
reasons that because the jury found that Robert Jones was ninety percent at fault and the chancellor
implicitly found that Jones was at least fifty percent at fault, the plaintiffs are not entitled to a second
opportunity to establish that their percentage of fault was less than fifty percent to recover under
comparative fault principles. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Conversely,
the plaintiffs argue that the chancellor properly granted a new trial because a trial court is not
allowed to reallocate the percentages of fault determined by the jury once it disagrees with the weight
of the evidence as the thirteenth juror. See Tenn. R. Civ. P. 59.06.

         In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), this Court adopted a system of
modified comparative fault under which a trier of fact must apportion fault among the parties to a
lawsuit. Under this system, a plaintiff may recover damages only where a trier of fact determines
that the plaintiff’s percentage of fault is less than that of the defendant, and the plaintiff’s recovery
of damages must be reduced in proportion to his or her percentage of fault. McIntyre, 833 S.W.2d
at 57. In contrast, a plaintiff who has been determined by the trier of fact to be fifty percent or more
at fault may not recover any damages at all. Id.

       In Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997), this Court determined that a trial court
may not reallocate the percentages of fault that have been determined by a jury under the principles
adopted in McIntrye. Turner, 957 S.W.2d at 823-24. We reasoned that

                  [s]ince liability is inextricably bound up with the apportionment of
                  damages under the doctrine of comparative negligence, this matter
                  must be left to the jury. When the percentages of liability are contrary
                  to the manifest weight of the evidence, the trial court must treat this
                  defect as an error in the finding of liability itself.

Id. at 824 (quoting Rowlands v. Signal Const. Co., 549 So.2d 1380, 1382-83 (Fla. 1989)).3
Accordingly, we concluded that where a trial court disagrees with the weight of the evidence in its
role as the thirteenth juror, the “only remedy is to order a new trial on all issues affected by the
error.” Turner, 957 S.W.2d at 824.

         The Court of Appeals properly applied these principles in Fye v. Kennedy, 991 S.W.2d 754
(Tenn. Ct. App. 1998), a case in which the jury allocated ninety percent of the fault to a defendant
who had settled with the plaintiff, one percent of the fault to a co-defendant, and nine percent of the
fault to the plaintiff’s decedent. The trial court upheld the jury’s ninety percent allocation of fault
to the settling defendant but ordered a new trial to reapportion fault between the co-defendant and


         3
            W e distinguished a trial court’s statutory authority to correct an award of damages through remittitur and
add itur pro cedures. Turner, 957 S.W.2d at 824.

                                                         -3-
the plaintiff’s decedent. The Court of Appeals observed that the trial court’s ruling violated Turner
because it effectively reallocated the jury’s determination of the co-defendant’s fault:

                    We believe that Turner precludes even a partial reallocation of a
                    jury’s finding as to comparative fault. Under Turner, a trial judge,
                    who, in his or her role as the thirteenth juror, cannot approve some
                    part of the jury’s determination with respect to comparative fault is
                    limited to granting a new trial.

Fye, 991 S.W.2d at 762.4

        In our view, the Court of Appeals’ majority correctly applied the Turner and Fye decisions
in the present case. The chancellor reviewed the evidence in his role of thirteenth juror and clearly
found that the jury’s verdict was not supported by the weight of the evidence; indeed, the chancellor
twice stated that the evidence only “supported a defense verdict” on the complaint and the
counterclaim. Although the chancellor did not make specific findings, he ordered a new trial on “all
issues in the Complaint and [the] Counter Complaint.” In short, the chancellor’s actions as the
thirteenth juror were consistent with Turner.

        Idles’ argument that the chancellor erred in granting a new trial to both him and Jones is
misplaced. First, there is no reasonable basis upon which to conclude that Idles is entitled to a new
trial on the counterclaim but that Robert and Virginia Jones are not entitled to a new trial on their
complaint. Such a conclusion would require this Court to accept the chancellor’s finding that the
plaintiffs failed to establish their claim but ignore the chancellor’s identical finding that Idles failed
to establish his counterclaim. Moreover, as the Court of Appeals’ majority correctly observed, such
a holding would likely result in two separate trials before two separate juries allocating fault in the
same case between the same two parties with the potential for fault exceeding one hundred percent.
In short, the granting of a new trial for both parties under Turner prevents these absurd results.

         We also disagree with the Court of Appeals’ dissenting view that the procedural posture of
this case warrants a different rule than that expressed in Turner. On the contrary, once the chancellor
found that the jury’s verdict was against the weight of the evidence, the defect was an “error in the
finding of liability itself.” Turner, 957 S.W.2d at 824. The premise that the chancellor found
Robert Jones to be at least fifty percent at fault is inherently flawed since a trial court, after finding
that a jury’s verdict is against the weight of the evidence in its capacity as a thirteenth juror, may not
go further and reallocate the fault. Moreover, any inference that the jury and the chancellor found
that the claim was not established under comparative fault principles cannot be drawn. Similarly,
granting a new trial to both parties does not disturb the integrity of the jury’s verdict given that the
jury’s verdict was found by the chancellor to be against the weight of the evidence and therefore



         4
             As the Court of Appeals correctly observed, the trial court’s ruling was made prior to this Court’s decision
in Turner.

                                                           -4-
flawed. Instead, granting a new trial to both parties will permit a jury to consider the evidence and
determine the liability issues between the parties under comparative fault principles.

        Accordingly, we reiterate our conclusion expressed in earlier cases that where a trial court
acting as the thirteenth juror finds that the jury’s allocation of fault is unsupported by the weight of
the evidence, the only remedy is the granting of a new trial. The trial court may not reallocate the
percentages of fault between the parties either in whole or in part. The chancellor correctly granted
a new trial in the present case.

                                          CONCLUSION

        After reviewing the record and applicable authority, we agree with the Court of Appeals’
majority and hold that a new trial must be granted whenever the trial court, acting as the thirteenth
juror, disagrees with a jury’s comparative fault allocation. We therefore affirm the judgment. Costs
of the appeal are taxed to the appellant, Vick Idles, for which execution shall issue if necessary.


                                                        ___________________________________
                                                        E. RILEY ANDERSON, JUSTICE




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