                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 16, 2011 Session1

                      KAREN JOHNSON
                            v.
      BEVERLY NUNIS AND FARMER’S INSURANCE EXCHANGE

                      Appeal from the Circuit Court of Shelby County
                        No. CT-004080-08 Gina Higgins, Judge


                   No. W2011-01493-COA-R3-CV - Filed April 27, 2012



This appeal involves remittitur of a jury verdict. The defendant driver caused a vehicular
accident that resulted in substantial personal injuries to the plaintiff. At trial, several
witnesses testified to the amount of the plaintiff’s economic damages as well as the non-
economic impact of her injuries. After a trial, the jury returned a special verdict with awards
for various categories of economic and non-economic damages. The trial court denied the
defendant insurance company’s motion for a new trial but suggested an overall remittitur as
to the total verdict. The plaintiff accepted the remittitur under protest and filed this appeal.
We affirm the denial of a new trial, reverse the suggestion of remittitur, and reinstate the
original jury verdict.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P. J.
W.S., and J. S TEVEN S TAFFORD, J. joined.

Martin W. Zummach, Germantown, Tennessee for Plaintiff/Appellant, Karen Johnson

Christopher M. Myatt, Memphis, Tennessee for Defendant/Appellee, Beverly Nunis

Robert L. Gatewood, Jr., Memphis, Tennessee for Appellee/Cross-Appellant, Farmer’s
Insurance Exchange


1
 The appeal in this case was held in abeyance while the case was on remand to the trial court to decide a
pending motion for new trial, as discussed in the Opinion.
                                          OPINION

                             F ACTS AND P ROCEEDINGS B ELOW

On January 11, 2008, about 7:45 a.m., Appellant Karen Johnson (“Johnson”) was driving to
work for her job as a comptroller for the Southaven Pontiac GMC car dealership. While
Johnson was driving south on Riverdale, Rodney Mitchell (“Mitchell”) and
Defendant/Appellee Beverly Nunis (“Nunis”) were traveling north on the same street. While
Mitchell’s truck was stopped for a red light, the vehicle driven by Nunis violently struck
Mitchell’s vehicle from the rear. The force sent Mitchell’s truck across several lanes of
traffic to hit Johnson’s SUV. Johnson’s vehicle was propelled off the roadway, through
storm fencing, and into a ten foot deep concrete culvert. Johnson sustained severe injuries
in the crash and was hospitalized. After discharge, Johnson received months of continuing
treatment and physical therapy. She eventually lost her job at the car dealership.

On October 8, 2008, Johnson filed the instant lawsuit against Mitchell,2 Nunis, and Nunis’s
insurance provider, Appellee Farmer’s Insurance Exchange (“Farmer’s”), seeking
compensatory damages for the injuries she sustained as a result of the crash. Both Nunis and
Farmer’s filed answers denying liability. Discovery ensued.

In November 2010, Johnson and Nunis entered into a Stipulation (“Stipulation”). They
stipulated that the $13,439.22 in medical bills incurred by Johnson were caused by the
accident, were medically necessary, and were reasonable and customary in the Memphis
community.

The jury trial in this matter began on November 29, 2010 and continued through December
1, 2010. Prior to trial, counsel for Farmer’s made an oral motion “that there be no reference
to insurance provider or insurance carrier in this matter.” This motion was granted. Counsel
for Farmer’s participated in the trial; in the lawyers’ opening statements, he told the jury only
that he represented “the defendant.” Farmer’s was not mentioned during the trial.

At trial, several witnesses testified to Johnson’s damages. They included Johnson,
Johnson’s mother, a former co-worker, and Johnson’s treating physician.

Johnson testified that, after the crash, she was taken by ambulance to the Regional Medical
Center. For several days after she was released, she experienced dizziness, headaches,
confusion, and soreness, and was unable to walk. After the accident, Johnson went to see

2
 Upon the motion of Johnson, Mitchell was subsequently dismissed from this lawsuit with prejudice
pursuant to a consent order reached between the parties on November 29, 2010.

                                               -2-
her family practitioner, Marlah Mardis, M.D. (“Dr. Mardis”), several times. Dr. Mardis
prescribed several medications for Johnson’s pain, instructed Johnson to work only half days,
and prescribed weekly physical therapy. Despite this, Johnson continued to have back and
neck pain as well as numbness in her left hand. Johnson also had a constant ringing in her
ears and continuous pain in her left side and lower back. The pain medication she took for
these conditions made her groggy. Despite continued physical therapy at home, Johnson said
that her pain had stayed the same, and she just learned to live with it.

Johnson testified about the effect the crash had on her career. Johnson worked for at least
sixteen years for Southaven Pontiac GMC car dealership, the last ten years as a comptroller
for the dealership. At the time of the accident, she was earning approximately $65,000 per
year. Johnson’s job included substantial filing, lifting, moving, and walking the 4.4 acre lot
to inventory the cars. Prior to the accident, Johnson had no trouble walking the lot, but after
the accident she was forced to stop halfway through the task and ask a co-worker to finish
it. She said that, when the owner of the dealership learned that a co-worker had been helping
Johnson with her duties, he began giving Johnson “dirty looks” and would not talk to her the
rest of the day. Johnson testified that her lost work time after the accident resulted in $7,000
in lost wages.

In April 2010, Johnson testified, the owner of the car dealership finally terminated her
employment. Over a hearsay objection by counsel for Farmer’s, Johnson testified that the
dealership owner told her that her “work performance wasn’t like it was and that it hadn’t
been for a while.” Johnson said that the termination of her employment surprised her
because she had been an excellent employee.

Prior to the accident, Johnson testified, she engaged in outside activities for additional
income, such as a catering business. These brought in approximately $100-$200.3 After the
accident, Johnson could not continue these activities and lost that additional income. After
Johnson’s employment at the car dealership ended, she was out of work for approximately
four months. She eventually got a job as a manager-in-training at a payday advance center,
with an annual salary of $22,100, without benefits.

A former dealership co-worker of Johnson’s, Bridget Calhoun, testified about the impact of
the accident on Johnson’s career. Calhoun worked with Johnson at the dealership for sixteen
years. She described Johnson as “always working.” After the crash, Calhoun said, it was
“always a problem” for the dealership owner when Johnson had to leave work to go to
physical therapy or a doctor appointment. Over another hearsay objection by counsel for
Farmer’s, Calhoun explained that when Johnson left for physical therapy, the dealership

3
    The record does not specify how often these outside activities brought in additional income.

                                                      -3-
owner would make Calhoun call Johnson to come back, claiming that Johnson needed to sign
some papers or go to the bank immediately, things supposedly more important than Johnson’s
medical treatment.

Calhoun testified about Johnson’s overall decline after the accident. Prior to the crash,
Calhoun said, Johnson’s activities outside of work included a catering business, a dealership
softball team, walking, and some matchmaking as well. Before the accident, Calhoun said,
Johnson was “an upbeat person, enthusiastic about everything,” and she “[a]lways had a
smile on her face . . . .” After the accident, Johnson could no longer engage in the outside
activities she enjoyed. In addition, there were changes in Johnson’s personality after the
accident; she gained over fifty pounds, she was depressed, and she was in a lot of pain.
Calhoun said, “you could tell on a day-to-day basis that this wasn’t the same person.”

Johnson’s mother corroborated Calhoun’s testimony about her daughter’s decline after the
accident. Johnson’s mother testified that she used to call her daughter “a road runner”
because Johnson “loved to go places, go shopping . . . and just different places and different
activities that she enjoyed.” After the accident, she said, Johnson no longer engaged in such
activities.

Johnson’s family practitioner, Dr. Mardis, testified that the $13,439.22 in medical services
that Johnson incurred for her injuries was reasonable and necessary. Dr. Mardis testified that
Johnson is “more likely than not” going to have “flare ups” and future pain from the injuries
sustained in the accident, specifically neuralgia in her forearm. Dr. Mardis said that there
was really nothing more that Johnson could do to avoid this future pain.

Neither Nunis nor Farmer’s put on any evidence as to Johnson’s damages, but instead relied
on cross-examining Johnson’s witnesses. This concluded the evidence presented on
Johnson’s economic and non-economic damages.

At the conclusion of the trial, the jury returned a verdict in favor of Johnson, finding that
Nunis was 90% at fault for the accident and Mitchell was 10% at fault. The jury awarded
Johnson a total of $116,493.22 in compensatory damages, categorized as follows:

       Non-Economic Damages:
            a. Pain and Suffering - Past: $20,000
            b. Pain and Suffering - Future: $10,000
            c. Permanent Impairment: $10,000
            d. Loss of the Ability to Enjoy Life:
                   Past: $15,000
                   Future: $0

                                             -4-
       Economic Damages:
            e. Medical Care - Past: $13,493.22
            f. Medical Care- Future: $3,000
            g. Loss of earning capacity
                   Past: $10,000
                   Future: $35,000

On December 6, 2010, the trial court entered an order approving the jury verdict in the
amount of $116,493.22. As Nunis was found to be 90% at fault, judgment was entered
against Nunis for $104,843.90.

On January 5, 2011, Farmer’s filed a motion pursuant to Rule 59 of the Tennessee Rules of
Civil Procedure for a new trial or, in the alternative, for remittitur. Farmer’s argued that the
jury verdict was contrary to the law and the evidence, particularly the award of $10,000 for
permanent impairment. Farmer’s also asserted that it was entitled to a new trial because the
trial court erred in overruling its objections to hearsay evidence. Farmer’s contended that the
objectionable evidence was the basis for the jury’s award of $10,000 in past lost wages and
$35,000 in future lost wages. Farmer’s also claimed that the trial court erred in presenting
the Stipulation between Nunis and Johnson to the jury, asserting that Farmer’s had not been
aware of the Stipulation until a few days before trial and that it had not agreed to its terms.

On April 25, 2011, the trial court sent counsel for the parties a letter ruling on the motion of
Farmer’s. The letter ruling suggested a substantial remittitur of the jury’s verdict:

       Having presided over the trial, heard all of the evidence, read and listened to
       the allegations of errors in the trial, this Court is of the opinion that the
       judgment in favor of the Plaintiff is excessive, is not supported by the proof,
       and should be reduced. Accordingly, the court suggests a remittitur to Plaintiff
       in the amount of $45,000.00 which thereby, reduces the award from
       $116,493.22 to $71,493.22. Said award is further reduced by the 10% fault
       allocated to Rodney Mitchell ($7,149.32), resulting in a final award of
       $64,363.90 to Plaintiff.

Thus, the trial court suggested a remittitur of $45,000 of the overall amount awarded by the
jury.

On April 28, 2011, the trial court entered a written order on the motion filed by Farmer’s,
to the same effect as its letter ruling. The order first acknowledged that Farmer’s asserted
numerous errors as justification for a new trial or for remittitur. It then stated: “After careful
review and consideration, this honorable court determined that the judgment in favor of the

                                               -5-
Plaintiff, Karen Johnson, was excessive, was not supported by the proof, and should,
therefore, be reduced.” As with the letter ruling, the order suggested a remittitur of $45,000.
Johnson’s total award was thus reduced to $71,493.22, with Farmer’s and Nunis liable for
$64,343.90. Johnson accepted the suggestion of remittitur under protest, pursuant to
Tennessee Code Annotated § 20-10-102(a).

An order on the suggestion of remittitur and Johnson’s acceptance under protest was entered
on June 13, 2011. It was certified as a final judgment pursuant to Rule 54 of the Tennessee
Rules of Civil Procedure. Although the trial court had ruled on the request for remittitur, it
expressly reserved its ruling on the request in the alternative for a new trial. Johnson filed
a notice of appeal on June 30, 2011. Farmer’s also filed a notice of appeal on July 8, 2011.

                      ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Johnson argues that the trial court erred in suggesting a remittitur of the jury
verdict in the amount of $45,000.

In response, Farmer’s argues that the trial court did not err in suggesting such a remittitur.
Although the trial court did not initially decide the motion by Farmer’s for a new trial,
Farmer’s argues that this Court should decide that it is entitled to a new trial because the
jury’s verdict was contrary to the weight of the evidence, outside the range of reasonableness,
and resulted from passion, prejudice or unaccountable caprice.

Farmer’s further contends that it should be granted a new trial because the trial court
erroneously presented to the jury a Stipulation by only Johnson and Nunis. It also asserts that
the trial court abused its discretion in overruling the hearsay objections by counsel for
Farmer’s and allowing testimony concerning statements by Johnson’s former employer.
Farmer’s argues that this hearsay evidence was prejudicial to both Farmer’s and Nunis; it
notes that the jury awarded Johnson $10,000 in past lost wages and $35,000 in future lost
wages, purportedly with no evidence of these damages other than the objectionable hearsay
testimony. If it is not granted a new trial, Farmer’s asserts, the trial court’s suggestion of
remittitur in the amount of $45,000 should be affirmed.

On appeal, Nunis argues that the trial court’s suggestion of remittitur should be affirmed
because there was no proof to support the award for permanent impairment or future loss of
earning capacity.

This Court is to review the action of the trial court in suggesting a remittitur using the
standard of review provided for in Rule 13(d) of the Tennessee Rules of Appellate
Procedure, applicable to decisions of the trial court sitting without a jury. Tenn. Code Ann.

                                              -6-
§ 20-10-102(b) (2009). Thus we review the trial court’s suggestion of remittitur de novo,
accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d).

A trial court’s decisions regarding the admission of evidence such as the alleged hearsay
testimony and the Stipulation are discretionary. Therefore, this Court reviews such decisions
under an abuse of discretion standard. Davis v. McGuigan, 325 S.W.3d 149, 168 (Tenn.
2010). The trial court’s decision to admit or exclude evidence will be overturned on appeal
“only when it ‘applies an incorrect legal standard, or reaches a decision which is against logic
or reasoning that causes an injustice to the party complaining.’ ” Mercer v. Vanderbilt Univ.
Inc., 134 S.W.3d. 121, 131 (Tenn. 2004) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001)).

                                           A NALYSIS

                                   Rule 54.02 Certification

As a threshold matter, we must address the procedural posture of this case when it was
appealed. After trial, Farmer’s filed a motion pursuant to Rule 59 of the Tennessee Rules
of Civil Procedure, seeking a new trial or, in the alternative, remittitur of the jury verdict.
The trial court entered an order on the request for remittitur, suggesting a remittitur of
$45,000. However, the trial court expressly reserved its ruling on the request for a new trial
filed by Farmer’s. The trial court’s written order acknowledging that Johnson accepted the
suggestion of remittitur under protest, was made final pursuant to Rule 54.02 of the
Tennessee Rules of Civil Procedure. This left Johnson little choice but to file an immediate
appeal, despite the fact that the request for a new trial remained unresolved.

Once the procedural posture of the case was ascertained by this Court, the appellate court
entered an order finding that the trial court’s order on remittitur was improvidently certified
as final under Rule 54.02. Normally, of course, parties have a right of appeal only as to
orders and judgments that are final under Rule 3 of the Tennessee Rules of Appellate
procedure, i.e. orders that resolve all of the claims of all of the parties, leaving “nothing else
for the trial court to do.” Tenn. R. App. P. 3 (2011), In re Estate of Henderson, 121 S.W.3d
643, 645 (Tenn. 2003) (quoting State, ex rel. McAllister v. Goode, 968 S.W.2d 834, 840
(Tenn. Ct. App. 1997)). Tenn. R. Civ. P. 54.02 is an exception to Rule 3 that permits the trial
court, without permission from the appellate court, to certify an order as final and appealable,
even if parts of the overall litigation remain pending in the trial court. However, under the
express language in Rule 54.02, such certification may be done only in limited
circumstances. Rule 54.02 states that a trial court may certify as final an order that may
direct the entry of a final judgment “as to one or more but fewer than all of the claims or

                                               -7-
parties” that is, certify an order that resolves an entire claim as to all parties or resolves all
claims as to a particular party.4 Christus Gardens, Inc. v. Baker, Donelson, Bearman, et
al., No. M2007-01104-COA-R3-CV, 2008 WL 3833613, at *4-5, Tenn. App. 2008 LEXIS
480, at *11-14 (Tenn. Ct. App. Aug. 15, 2008); Shofner v. Shofner, 181 S.W.3d 703, 713
(Tenn. Ct. App. 2004).

The order certified as final in this case, of course, did neither. Because the trial court did not
decide the request by Farmer’s for a new trial, the order in fact left all claims against all
parties unresolved. Thus, the trial court’s order granting the request for remittitur, but
reserving the issue of a new trial, was not a proper subject for certification under Rule 54.02.5

Thus, this Court determined that the trial court improvidently certified the order suggesting
remittitur as final under Rule 54.02, while reserving its ruling on a new trial. However,
instead of dismissing the appeal on this basis, the appellate court entered an order holding
the appeal in abeyance and remanding the case to the trial court for the express purpose of
allowing the trial court to decide the motion for a new trial.




4
    54.02. Multiple Claims for Relief.

           When more than one claim for relief is present in an action, whether as a claim,
           counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the
           court, whether at law or in equity, may direct the entry of a final judgment as to one or more
           but fewer than all of the claims or parties only upon an express determination that there is
           no just reason for delay and upon an express direction for the entry of judgment. In the
           absence of such determination and direction, any order or other form of decision, however
           designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer
           than all the parties shall not terminate the action as to any of the claims or parties, and the
           order or other form of decision is subject to revision at any time before the entry of the
           judgment adjudicating all the claims and the rights and liabilities of all the parties.

Tenn. R. Civ. P. 54.02 (2011).
5
 Parenthetically, in some instances, the trial court may choose to grant the parties permission to appeal an
interlocutory order pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Unlike Tenn. R. Civ.
P. 54.02, under Rule 9, the parties must also obtain the permission of the appellate court for the appeal.
However, it is unlikely that an appellate court would grant permission for an interlocutory appeal of an order
such as the order being appealed in this case. If, for example, the appellate court were to reverse the trial
court’s suggestion of remittitur, the decision of the appellate court could be rendered ineffective if, on
remand, the trial court then decided to grant the request for a new trial. So Rule 9 would also likely not be
a vehicle for an interlocutory appeal of a suggestion of remittitur if the motion for a new trial remained
pending.

                                                        -8-
On remand, the trial court entered an order denying the motion for a new trial filed by
Farmer’s. This made the matter final and appealable under Rule 3 of the Tennessee Rules
of Appellate Procedure. This Court then reinstated the appeal.

We now address the substantive issues raised by the parties on appeal.

                                   Motion for New Trial

In the original procedural posture of this case, Farmer’s argued that it was entitled to a new
trial for a variety of reasons, even though the motion for a new trial was still pending in the
trial court. It would, of course, be improper for this Court to address these arguments by
Farmer’s when the same issues remained pending in the trial court. However, now that the
trial court has entered an order denying the motion for a new trial, we may address the issues
raised by Farmer’s.

Farmer’s argues first that the trial court erred in presenting to the jury the Stipulation
executed by Johnson and Nunis. The Stipulation reflected the agreement by Johnson and
Nunis that the medical treatment received by Johnson was reasonable and necessary and
related to the accident. Farmer’s notes that it was not a party to the Stipulation and claims
that it was unaware of the Stipulation until three days before the trial.

Farmer’s contends that because it did not receive timely notice of the Stipulation, the reading
of the Stipulation to the jury, coupled with the jury instruction on the Stipulation, amounted
to surprise testimony that adversely impacted its ability to present a defense to Johnson’s
medical treatment or argue that the treatment was unreasonable, unnecessary, or unrelated
to the accident. Farmer’s contends that this denied it due process and basic fairness.
Farmer’s points out that it had separate and distinct interests from Nunis. It cites, as
persuasive authority, an Arizona Supreme Court case, United Services Auto. Assoc. v.
Morris, 741 P.2d 246 (Ariz. 1987) suggesting that an insurer should not be bound by factual
stipulations made by the insured if the insurer had no knowledge of the stipulation.

After carefully considering these arguments and the cited cases by Farmer’s, we find these
arguments are without merit. At oral argument, counsel for Farmer’s conceded that, even
though it learned of the Stipulation three days before the trial was to commence, at no time
did it ask the trial court for a continuance. Therefore, Farmer’s waived any objection to the
Stipulation based on its claimed lack of notice. Farmer’s points out that it has separate and
distinct interests from those of the named defendant, Nunis, and disputes the trial court’s
description of the Stipulation as being between “the parties,” arguing that its separate
interests were thereby undermined. We observe, however, that counsel for Farmer’s in fact
introduced himself to the jury as an attorney for “the defendant,” which the jury could only

                                              -9-
have understood as a reference to Nunis. Thus, Farmer’s clearly elected to defend in Nunis’s
name.

Most importantly, Farmer’s can point to no way in which it was prejudiced by the admission
of the Stipulation. The information contained within the Stipulation, specifically the amount
of Johnson’s medical expenses and the reasonableness of those expenses, was identical to
Dr. Mardis’s testimony. Farmer’s was permitted to cross-examine Dr. Mardis on these
topics. Farmer’s in fact points to no proof that it was prevented, by virtue of the Stipulation,
from presenting to the jury. Farmer’s is not entitled to a new trial if it is unable to
demonstrate prejudice resulting from the presentation of the Stipulation to the jury.
Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn. 1987) (“[T]he admission of improper
evidence of a fact in issue is harmless where the verdict or judgment is supported by
sufficient competent evidence. . . or where the fact is undisputed.”).

Farmer’s also argues that the trial court abused its discretion by permitting testimony by
Johnson and Johnson’s co-worker, Calhoun, as to the behavior of the owner of the car
dealership toward Johnson when she had to leave work for medical treatment for her injuries
or when Johnson got assistance on the job from co-workers, and the reason given by the
dealership owner for terminating Johnson’s employment. After reviewing the testimony in
the record, the objections made, and the trial court’s ruling, we find that much of the
testimony to which Farmer’s objects was behavior by the dealership owner, and was not
hearsay. As to any testimony about the reason for termination stated by the dealership owner,
any error by the trial court would be harmless error. Johnson presented undisputed testimony
that she had been employed by the car dealership for many years, and her job performance
prior to the crash was good. Testimony by numerous witnesses supported Johnson’s
contention that, after the crash, her injuries left her unable to fully perform her job duties,
she often had to rely on co-workers for assistance, she often had to leave work for medical
treatment or physical therapy, and the dealership owner appeared displeased with Johnson
because of this. Even without the testimony on the dealership owner’s statements, the jury
could reasonably infer that Johnson’s employment was terminated for reasons related to the
injuries she sustained in the crash. Under Rule 36(b) of the Tennessee Rules of Appellate
Procedure, an error that is harmless does not require reversal of a final judgment. Blackburn,
737 S.W.2d at 533. Rule 36 states that a final judgment “shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36(b) (2011). Thus considering the record as a whole, we affirm the trial court’s denial
of the motion by Farmer’s for a new trial based on the alleged hearsay.

Farmer’s also contends that the trial court erred in denying its motion for a new trial because,
without the alleged hearsay, there was no evidence to support the jury’s award for past and

                                              -10-
future lost wages. As outlined above, even without the alleged hearsay, there was ample
evidence for the jury to find that Johnson lost her job at the car dealership as a result of the
injuries she suffered in the accident. Johnson testified that, even while employed at the
dealership, she lost wages due to absences for medical treatment and physical therapy, and
was unable to engage in outside income-producing activities such as catering. After her
employment at the dealership ended, Johnson became employed in a job that pays some
$40,000 per year less than her prior position with the dealership. Thus, there is ample
evidence that Johnson lost past compensation on account of the injuries from the crash, and
that she will lose compensation in the future as well. This argument is without merit.

For all of these reasons, we affirm the trial court’s denial of the motion for a new trial.

                                          Remittitur

Johnson argues on appeal that the trial court erred in suggesting a remittitur in the amount
of $45,000, reducing the jury’s total $116,493.22 verdict to $71,493.22. Citing the seminal
case of Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978), Johnson emphasizes the primary
role of the jury in assessing damages. Id. at 427 “It is the exclusive province of the jury to
assess damages within the range of reasonableness established by the credible proof . . . .”).
She points out that neither Nunis nor Farmer’s put on any countervailing proof on damages,
and argues that the evidence at trial supports the damage amounts awarded by the jury in all
categories. Johnson notes that the trial judge did not indicate which damage award on the
jury’s special verdict form was excessive or unsupported by the evidence, and contends that
the suggested remittitur destroys the jury’s verdict. Johnson asks this Court to restore the
jury’s verdict.

Nunis contends that the trial court’s suggested remittitur should be affirmed, arguing that
there was no evidence to support the award for permanent impairment and the only evidence
supporting the award for future lost wages is the allegedly inadmissible hearsay discussed
above.

Farmer’s likewise argues that the trial court did not err in suggesting a remittitur of $45,000,
because the only evidence supporting the jury’s awards for past and future lost wages is the
purportedly inadmissible hearsay relied on by Farmer’s in its motion for a new trial.
Farmer’s contends that the jury’s verdict is contrary to the weight of the evidence and outside
the range of reasonableness. Noting that the appellate court is also authorized by statute to
suggest a remittitur, Farmer’s contends that the total damage award as adjusted by the trial
court is still excessive and asks this Court to suggest a further remittitur.




                                              -11-
We consider first the request by Farmer’s that this Court suggest a further remittitur. While
an appellate court is authorized to suggest a remittitur, its authority to do so “is naturally
more circumscribed than that possessed by the trial courts.” Coffee v. Fayette Tubular
Products, 929 S.W.2d 326, 331 (Tenn. 1996). Unlike the trial court, the appellate court may
suggest a remittitur in the first instance only if there is no material evidence in the record to
support the jury’s damage award. Id. at 331 n.2. After reviewing the evidence in this record,
we find there is material evidence to support the jury’s damage award, and so decline the
request by Farmer’s that we suggest a further remittitur.

We now review the trial court’s suggestion of an overall $45,000 remittitur in this case. As
noted by Johnson, Tennessee caselaw emphasizes the primacy of the jury in determining the
damages to be awarded to a claimant. See Foster v. Amcon Int’l, 621 S.W.2d 142, 147
(Tenn. 1981); Smith, 569 S.W.2d at 426-27; Oglesby v. Riggins, No. W2010-01470-COA-
R3-CV, 2011 WL 915583, at *3 (Tenn. Ct. App. Mar. 17, 2011); Long v. Mattingly, 797
S.W.2d 889, 895 (Tenn. Ct. App. 1990). However, if the trial court finds that the jury’s
verdict is excessive, it has the “statutory prerogative” to “adjust damage awards to
accomplish justice between the parties and to avoid the time and expense of a new trial.”
Long, 797 S.W.2d at 896; see also Oglesby, 2011 WL 915583, at *3; Tenn. Code Ann. §§
20-10-101, -102 (2009). As outlined in Oglesby:

       If the party in whose favor the verdict has been rendered refuses to make the
       remittitur, the trial court must grant a new trial. If, however, the party accepts
       the remittitur under protest, the party may then appeal the trial court’s finding
       that the verdict was excessive.

Oglesby, 2011 WL 915583, at *3 (quoting Grandstaff v. Hawks, 36 S.W.3d 482, 499 (Tenn.
Ct. App. 2000) (internal citations omitted). See Tenn. Code Ann. § 20-10-102(a). In the
case at bar, Johnson accepted the trial court’s suggestion of remittitur under protest, and then
appealed to this Court.

On appeal, the role of this Court is “to determine whether the trial court’s adjustments were
justified, giving due credit to the jury’s decision regarding the credibility of the witnesses and
due deference to the trial court’s prerogatives as thirteenth juror.” Long, 797 S.W.2d at 896;
Burlison v. Rose, 701 S.W.2d 609, 611 (Tenn. 1985); see also Oglesby, 2011 WL 915583,
at *4. The appellate courts employ a “three-step review” of the trial court’s suggestion of
remittitur:

       First, we examine the reasons for the trial court’s action since adjustments are
       proper only when the court disagrees with the amount of the verdict. Second,
       we examine the amount of the suggested adjustment since adjustments that

                                              -12-
       “totally destroy” the jury’s verdict are impermissible. Third, we review the
       proof of damages to determine whether the evidence preponderates against the
       trial court’s adjustment.

Long, 797 S.W.2d at 896; see Oglesby, 2011 WL 915583, at *4. We are also mindful that
“[t]he right to revise . . . the amount of the verdict by the process of suggesting a remittitur
is a delicate one and one that a court should be slow to adopt . . . .” Palanki v. Vanderbilt
Univ., 215 S.W.3d 380, 387 (Tenn. Ct. App. 2006) (quoting Jenkins v. Commodore Corp.
Southern, 584 S.W.2d 773, 778 (Tenn. 1979)) (italics in original).

To recap, the jury in this case returned a verdict form with itemized damage verdicts in the
following amounts:

       Non-Economic Damages:
            a. Pain and Suffering - Past: $20,000
            b. Pain and Suffering - Future: $10,000
            c. Permanent Impairment: $10,000
            d. Loss of the Ability to Enjoy Life:
                   Past: $15,000
                   Future: $0
       Economic Damages:
            e. Medical Care - Past: $13,493.22
            f. Medical Care- Future: $3,000
            g. Loss of earning capacity
                   Past: $10,000
                   Future: $35,000

These itemized damage amounts came to a total award of $116,493.22. This Court has
observed that “[r]eporting a verdict in this matter [with an itemized verdict form] . . . actually
facilitates the trial court’s ability to perform its role as the thirteenth juror, as well as the
appellate court’s ability to review the verdict for consistency and conformance with the
evidence.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 714 (Tenn. Ct. App. 1999). Thus,
where there is an itemized verdict form, remittitur should be suggested as to particular
itemized verdict amounts, because the jury has assigned “a separate monetary loss for each
type of damages requested” and the proof as to each type of damages must be considered
separately. Id. at 715, 718-19; Riley v. Orr, No. M2009-01215-COA-R3-CV, 2010 WL
2350475, at *7-10 (Tenn. Ct. App. June 11, 2010).

Under the “three-step review” outlined above, we look first at “the trial court’s motives for
reducing [the] verdict and whether those motives are supported by the record.” Oglesby,

                                              -13-
2011 WL 915583, at *5. Our ability to do so in this case is confounded by the manner in
which the trial court suggested the remittitur. First, the trial court suggested an overall
$45,000 remittitur of the total jury verdict, rather than suggesting a remittitur as to specific
itemized damage awards. Second, both the letter ruling and the written order on the
suggestion of remittitur stated only the trial court’s conclusion that “the judgment in favor
of [Johnson] is excessive, is not supported by the proof, and should be reduced.” 6 No
explanation for this conclusion was given. Though we are charged on appeal with the
responsibility to “examine the reasons for the trial court’s actions,” we are left perplexed as
to how this can be done in this case. Long, 797 S.W.2d at 896. See Johnson v. Sweat, 1985
Tenn. App. LEXIS 2938, at *6 (Tenn. Ct. App. June 4, 1985) (no case number in original)
(case not found on Westlaw) (reinstating a jury’s award of compensatory damages in part
because the trial court gave no reason for remittitur other than stating that the award was
excessive). We soldier on.

Next, we are to determine whether the trial court’s suggested remittitur totally destroys the
jury’s verdict. The trial court’s suggested remittitur amounts to a 43% reduction in the jury’s
overall verdict, a substantial reduction indeed. Given the proof at trial on Johnson’s
damages, this presents a close question. However, considering the record in its entirety, we
conclude that the suggested remittitur does not totally destroy the jury’s verdict. See Webb
v. Canada, No. E2006-01701-COA-R3-CV, 2007 WL 1519536, at *4 (Tenn. Ct. App. May
25, 2007) (citing cases in which remittiturs ranging from 40% to 59% were found to not
destroy jury verdict).

Finally, we must review the evidence in the record to determine whether it preponderates
against the trial court’s adjustment of the jury verdict. As noted above, the fact that the trial
court suggested a remittitur as to the overall jury verdict instead of suggesting remittitur of
particular itemized damage verdicts makes discharging this responsibility challenging, as we
have no idea which damage awards the trial court found excessive or unsupported by the
evidence. We do not know whether the trial court disagreed with some of the jury’s
credibility determinations, whether it perceived an absence of evidence on one or more of the
itemized awards, or had some other reason for its suggested remittitur. While we are to defer
to the trial court in its role as thirteenth juror, the absence of any specifics gives us little to
which we may defer.

Farmer’s argues energetically that we should surmise that the trial court based its suggestion
of remittitur on alleged lack of evidence of permanent impairment or past or future lost


6
 The trial court’s denial of the motion for a new trial, along with the suggestion of remittitur, indicates that
the trial court did not disagree with the jury’s finding on liability, only the amount of the damages. Myers
v. Myers, No. E2004-02135-COA-R3-CV, 2005 WL 1521952, at *3 (Tenn. Ct. App. June 27, 2005).

                                                     -14-
wages. We decline to guess at the trial court’s reasons for its decision. Instead, we will
review the evidence as to each of the itemized damage verdicts, giving full deference to the
jury’s credibility determinations, since the jury’s credibility assessment is the only one we
have.

As to Johnson’s economic damages, the jury awarded Johnson $13,493.22 for past medical
care and $3,000 for future medical care. The award for past medical care is clearly supported
by not only the Stipulation but also Dr. Mardis’s testimony that the medical expenses
incurred by Johnson were necessitated by her injuries and were reasonable and customary in
Shelby County. Johnson testified that she continues to require physical therapy, and
continues to need prescription pain medication for her injuries. Dr. Mardis indicated in her
testimony that she expects Johnson to continue to have pain and “flare ups.” The jury’s
award of $3,000 for future medical care is supported by the preponderance of the evidence
in the record.

The other itemized economic damage awards, $10,000 for past lost earning capacity or wages
and $35,000 for future lost earning capacity or wages, is discussed above. We have rejected
the argument by Farmer’s that the only evidence supporting both awards is the allegedly
inadmissible hearsay testimony on the car dealership owner’s statements about the reason he
terminated Johnson’s employment. Even without this testimony, there is ample evidence that
Johnson lost her job with the car dealership as a result of the injuries she received in the crash
caused by Nunis. Johnson testified as to the amount she earned in her job with the
dealership, her period of unemployment, her lost wages and other income, and her greatly
reduced compensation in her new job with the payday advance center. Considering the
evidence on these items of economic damages, we find that it preponderates in favor of the
jury’s award and against any remittitur.

We consider now the jury’s awards for non-economic damages. In doing so, we are
admonished to remember that “the determination of such non-pecuniary losses as pain and
suffering damages involves a subjective element not present in the determination of ordinary
facts. The jury trial guarantee requires that the subjective element involved be that of the
community and not of judges.” Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-
02026-COA-R3-CV, 2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011) (quoting
Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 211 n.34 (Tenn. Ct. App. 2008)).

In this case, the jury awarded Johnson $20,000 for past pain and suffering and $10,000 for
future pain and suffering. Johnson gave substantial testimony about her pain and discomfort
in the aftermath of the crash, the necessity of taking strong pain medications that left her
groggy, and her ongoing physical therapy. Her testimony was corroborated by the testimony
of Dr. Mardis about the significant medical care needed to treat Johnson’s injuries. At trial,

                                              -15-
Johnson testified that she continued to have pain from her injuries, again corroborated by Dr.
Mardis’s testimony that Johnson would likely continue to have “flare-ups” and enough pain
to require medication. The jury clearly credited this testimony. We find that the evidence
preponderates in favor of the jury’s award and against any remittitur.

The jury also awarded Johnson $15,000 for past loss of ability to enjoy life. This is fully
supported by the testimony of Johnson, Johnson’s mother, and Calhoun that the once-
energetic and upbeat Johnson became depressed, gained weight, and was unable to engage
in numerous activities she had once enjoyed. The evidence preponderates against any
remittitur of this award.

Finally, the jury awarded Johnson $10,000 for permanent impairment. This type of non-
economic damages has been described as follows:

       A permanent injury differs from pain and suffering in that it is an injury from
       which the plaintiff cannot completely recover. It prevents a person from living
       his or her life in comfort by adding inconvenience or loss of physical vigor .
       . . . Permanent injury may relate to earning capacity, pain, [or] impairment of
       physical function.

Overstreet, 4 S.W.3d at 715 (citations omitted). Farmer’s relies on a note in Johnson’s
medical record with a physician other than Dr. Mardis, indicating that he had given Johnson
a “0% impairment rating.” However, there is no reason to think that the jury credited such
a statement, and the trial court did not mention it in her order suggesting a remittitur.
Moreover, as discussed above, there is ample evidence of other types of permanent
impairment. There was substantial evidence that Johnson would continue indefinitely to
have pain and a loss of physical vigor as a result of the injuries suffered in the crash
precipitated by Nunis. Giving full deference to the jury’s credibility assessment, we hold that
the evidence preponderates against any remittitur of this award.

Thus, we must conclude that the evidence in the record preponderates against the trial court’s
suggestion of remittitur in this case. Under Section 20-10-102(b), if we find that

       . . . 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.

Tenn. Code Ann. § 20-10-102(b). In this case, we affirm the trial court’s denial of the
motion by Farmer’s for a new trial, but hold that the amount of damages awarded by the jury

                                             -16-
should not have been reduced. Therefore, under the statute, we must reverse the trial court’s
suggestion of remittitur and reinstate the jury’s full verdict, totaling $116,843.90.

                                        C ONCLUSION

The decision of the trial court is affirmed in part and reversed in part as set forth above, and
judgment is entered in favor of Appellant Karen Johnson in accordance with the original jury
verdict, without any remittitur. Costs on appeal are assessed one-half against Appellee
Beverly Nunis and one-half against Appellee/Cross Appellant Farmer’s Insurance Exchange,
for which execution may issue if necessary.




                                                            ___________________________
                                                              HOLLY M. KIRBY, JUDGE




                                              -17-
