                      IN THE COURT OF APPEALS OF TENNESSEE
                                                                                      FILED
                                                                                    March 08, 1999

                                          AT KNOXVILLE                             Cecil Crowson, Jr.
                                                                                   Appellate C ourt
                                                                                       Clerk

ALVIN UNDERWOOD,                                   )   C/A NO. 03A01-9809-CV-00288
                                                   )
            Appellant/Cross-Appellee,              )   KNOX CIRCU IT
                                                   )
v.                                                 )   HON. WHEELER ROSENBALM,
                                                   )   JUDGE
CHARTER FEDER AL SAVINGS                           )
BANK,                                              )   AFFIRMED
                                                   )   AND
            Appellee /Cross-A ppellant.            )   REMANDED


DAVID DA Y, Cookeville, for Appellant/Cross-Appellee.

GREGORY C. LOGUE and MICHAEL J. KING, WOOLF, McCLANE, BRIGHT,
ALLE N & C ARPE NTER , PLLC ., Knoxville , for App ellee/Cross-A ppellant.




                                             O P I N IO N


                                                                      Franks, J.


                   This is an appeal in an action for damages for wrongful execution,

where th e jury awarde d $105,0 00.00 in co mpensa tory damage s, and $42 0,000.00 in

punitive damages, and the Trial Judge suggested a remittitur of $200,000.00 on the

punitive damages award.

                     By way of background, in 1988, appellee Charter Federal Savings

Bank (“Charter Federal”)1 brought suit against Randy Underwood to collect on two

promissory notes. Default judgment was taken as to Randy and a garnishment was

issued to his fath er, plaint iff Alv in Und erwoo d d/b/a U nderw ood A utomo tive Par ts.

                   Alvin answered the garnishment, stating that Randy did not work for

him, but the answer w hich was filed with th e Clerk ap parently did no t immediate ly


     1
         Charter Federal was later acquired by First American Bank.
appear in the file at the Clerk’s office. On August 5, 1988, Charter Federal petitioned

for a scire facias to secure a c onditional ju dgemen t against Alv in based u pon his

failure to answer the garnishment. The petition was served upon Randy, who

apparently did not advise Alvin of its issuance.

                On September 6, 1988, a final judgment was entered against Alvin, and

on Octo ber 17, 198 8, representa tives from C harter Fede ral and the K nox Co unty

Sheriff’s Department went to Underwood A uto Parts and levied on vehicles, tools,

auto parts and other items at the business location. On October 26, Alvin filed a

motion to set aside the judgment, contending that he had properly answered the

garnishment, but on N ovember 9, 198 8, the seized property was sold. T he Chancery

Court granted Alvin’s motion to set aside the judgment and awarded him the proceeds

of the sale, finding that Alvin had timely answered the garnishment. This court, on

appeal of that action, affirmed.2

                This suit followed.

                Charter Federal contends that it is entitled to a new trial based on juror

misconduct. One juror apparently maintained a checking account with First American

that had become overdrawn. At the time of the trial he no longer maintained the

account, although a co llection agency was appa rently still seeking to recover a

deficiency from the juror. Du ring voir dire, the trial court asked all prospective juro rs

the following question:

                Are any of you employed at this time or any family member
                employed by the bank in any capacity or do any kind of business
                with the bank, such as selling supplies to the bank or providing
                any kind of services to them for which you receive compensation
                or payment?

                Charter F ederal con tends that this ju ror’s failure to respond to this

   2

         Charter Federal Savings Bank v. Underwood, (Tenn. App. Eastern Section filed May 3,
1991.)

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questio n and o thers co nstitutes juror m iscond uct.

               Failure to disclose information during voir dire must be based upon a

materia l questio n reaso nably calc ulated to produ ce an a nswe r. State v. Atkins, 867

S.W.2d 3 50, 356 (T enn.Crim .App. 199 3). The T rial Court ca refully conside red this

issue, and said:

               The Co urt’s looked very carefully at the questions th at it
               propounded to perspective jurors and must conclude that those
               questions were designed to elicit information from jurors about
               their conne ction at the pre sent time, that is a t the time of th e trial,
               and that the Court in no instance delved into any prior
               connections, although the parties through their counsel did ask
               about some prior connections including whether any juror had
               been sued by a bank.

               But it does not appea r that [the juror in question] or other jurors w ere
               specifically asked about controversies between them and other banks
               other than lawsuits, and the Court simply cannot conclude from the
               questions that were propounded and the responses given by the
               prospectiv e jurors that the questions th at the Cou rt asked abo ut in
               connections between jurors and the bank were sufficient to cause [the
               juror in que stion] to revea l his prior exp erience w ith the defen dant in
               this case, and the Court does not believe that there has been a showing
               of any intent or neglect on his part to conceal his prior banking
               experience with the defendant, and must most respectfully conclude that
               there’s been no show ing of juror bias sufficie nt to impug n the verdic t in
               this case and grant a new trial.

               The record supports the Trial Judge’s conclusions. Some questions

directed specifically to other jurors and not the juror in question, arguably could have

provoked a respo nse from this juror, but non e of those questions ad dressed this juror’s

course of conduct with the bank. We find no merit in this issue.

               Charter Federal further contends that the Trial Court improperly allowed

the plaintiff to relitigate certain issues, and insists that an issue may not be relitigated

if it is “actually and necessarily determined” in a former action between the parties as

ruled in King v. Brooks, 562 S.W.2d 42 2, 424 (Tenn. 197 8).

               Charter Federal contends the Trial Court erred in admitting evidence

concerning its alleged w rongful conduc t regarding the answe r to the garnishment. In

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the original Chancery Court action, both the Trial Judge and this Court determined

that plaintiff timely filed an answer and that the answer was legally sufficient. These

were the only issues that were actually and necessarily determined. In its findings, the

Chancery Court did note that a scire facias was issued “upon the failure of an Answer

of Underwood Auto Parts to be docketed in the Court’s file . . .”. Additionally, the

Chance llor noted tha t Charter Fe deral presen ted eviden ce that the an swer w as not in

the file or computer system when judgment was originally entered. The Court stated

that “[h]owever this may be,” plaintiff did answer. Thus, the presence of the answer

in the file was not a nece ssary finding. Further, evidence ab out Charter Federal’s

wrongf ul conduc t or indepen dent know ledge of th e answe r was not n ecessary to

dete rmin e wh ethe r the Plaintiff had actu ally an swe red the garnishm ent. A ccor ding ly,

the plain tiff wa s entitled to introd uce the dispute d evide nce.

               Charter Federal also argues that the Trial Court erred in permitting

eviden ce con cerning suffici ency of s ervice o f proce ss and o ther pro cedura l defec ts.

As noted previously, these issues were not actually and necessarily determined in the

prior pro ceed ing. T hus, the T rial C ourt did n ot err in permitting this testim ony.

               Charter Federal maintains that it is entitled to a new trial because the

jury’s award was excessive. First, it argues that the evidence does not support the

jury’s award of $105,000.00 in compensatory damages. Plaintiff claimed damages

based up on the valu e of the inv entory, equipm ent sold, lost pro fits, damag e to

reputation a nd emotio nal distress. Th e record ref lects that the T rial Judge ca refully

scrutinized the award and properly fulfilled its duty to act as the thirteenth juror and

approved the jury’s verdict. Charter Federal presented its own evidence, including

expert testimony, concerning damages. The jury found plaintiff’s claims to be

cred ible a nd awar ded dam ages acco rdingly.

               The record con tains sufficient material evidence o f damages to sup port

                                               4
the jury’s verdict, and we affirm.

               Charter F ederal furth er argues th at the plaintiff failed to mitig ate his

damages because he did not stop the execution sale from going forward. The plaintiff

believed that allowing the sale to continue would be better because his inventory and

equipment had been damaged after the seizure. Charter Federal had the burden of

proof on the is sue of mitigatin g dam ages. Price v. Osborne, 147 S.W.2d 412

(Tenn.A pp. 1940 ), and the jury w as properly instru cted on this iss ue and ap parently

believed the plaintiff acted properly. The Trial Court did not err in approving the

award of compensatory damages.

               Both parties have appealed the award of punitive damages. Plaintiff

contends that the damages as remitted were insufficient, while Charter Federal argues

that punitive damages were not justified or were excessive. To be entitled to punitive

damages, a plaintiff must prove by clear and convincing evidence that the defendant

acted e ither inte ntionall y, fraudu lently, mali ciously or reckles sly. Hodges v. S.C. Toof

& Co., 833 S .W.2d 896 (T enn. 19 92). A ddition ally, Hodges lists factors to consider

in assessing punitive damage awards. The record shows the Trial Court followed the

requirements of Hodges to decide whether punitive damages were justified. The

Court considered “the manner in which the plaintiff’s property was levied upon and

the conduct of the parties, particularly the defendant following that levy, and after

defendant was advised that the levy was inappropriate” in determining that the

evidence met the criteria of Hodges. The record supports the Trial Judge’s conclusion

finding that punitive damages were justified in this case.

               The Trial Court is required to review the jury’s award of punitive

damages and set forth reasons for its decision. In this case, the Trial Court reviewed

the eviden ce suppo rting an aw ard of pu nitive dam ages in light o f the factors stated in

Hodges, but plaintiff argues the Trial Court did not properly state its reasons for

                                               5
remitting the award. In analyzing the factors of Hodges, the Trial court noted

mitigating circ umstance s. For exam ple, the Co urt noted the re was no specific

evidence that Charter Federal profited from its conduct and the plaintiff’s answer was

not in th e file be fore the levy occu rred.

               The Tria l Court pro perly analyzed the jury’s award a nd set forth its

reasons for suggesting a remittitur. The award, as remitted, retains the integrity of the

jury’s verd ict. See Guess v. Maury, 726 S.W.2d 906 (Tenn.App. 1986). We affirm the

judgment of punitive damages as remitted.

               Finally, plaintiff arg ues that the T rial Court co mmitted er ror in

connection with its suggestion of a remittitur of the punitive damages award from

$420,00 0.00 to $22 0,000.00. T he plaintiff c laims that the T rial Court erro neously

gave him a choice o f accepting the remittitur of punitive da mages, or a new trial on all

issues, including lia bility. We believe the plaintiff has misconstrued what the Trial

Court did in this case.

               The Trial Court directed that its memorandum opinion be incorporated

into its Orde r addressing the defen dant’s post-tria l motions. T hat Opinio n provide s, in

part, as follows:

               . . . the Court is constrained to conclud e that the award of c ompensatory
               damage s in the amo unt of $1 05,000 is w arranted by the evidence in this
               case and that the evidence does not preponderate against that finding by
               the jury, and the court approves that verdict of $105,000 for
               compensatory damages in this case in all respects.

The Court’s Order makes three decrees:

               1. Defendant’s Motions except as to remittitur are denied, and the Court
               affirms the verdict of $105,000.00 in favor of the Plaintiff for
               compensatory damages.

               2. The Court orders that punitive damages are appropriate in this case,
               but suggests a remittitur in favor of the Defendant of $200,000.00, thus
               making the punitive damage award to be the sum of $220,000.00.

               3. The Plaintiff shall have fifteen (15) days from the entry of this Order

                                               6
               in which to accept the suggestion of remittitur or a new trial shall be
               granted.

(Emphasis added). While the order does not expressly limit the scope of the new trial

to the issue of punitive damages, we believe a fair reading of the entire order indicates

that this is what the Court intended to do. It is unlikely the Judge would have

approve d the verdic t as the thirteenth judge only to c onditionally gra nt a new tria l.

Moreover, assuming arguendo plaintiff’s interp retation of th e judgme nt is correct,

such judg ment wo uld be in the Trial Cou rt’s discretion. T his issue is w ithout merit.

               The judg ment of th e Trial Co urt is affirme d, and the c ost of the ap peal is

assessed one-half to each party, and the cause is remanded.




                                             __________________________
                                             Herschel P. Franks, J.

CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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