                                                                                            12/13/2016




                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 16, 2016 Session

  CHARLESAN WOODGETT, ET AL. v. JOHN R. VAUGHAN, JR., ET AL.

               Direct Appeal from the Circuit Court for Maury County
                        No. 14898     Robert L. Jones, Judge


                             No. M2016-00250-COA-R3-CV


This appeal arises from a jury trial. The plaintiff filed a premises liability suit against the
defendant-homeowners after she allegedly fell and sustained injuries while viewing the
defendants’ home as a prospective buyer. After a two-day jury trial, the jury returned a
verdict in favor of the defendant-homeowners, finding that they were not at fault for the
plaintiff’s injuries. The plaintiff raises numerous issues on appeal. We affirm.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Terry Renease Clayton, Nashville, Tennessee, for the appellants, Charlesan Woodgett,
individually and as Administrator ad Litem for Reginald Woodgett, deceased.

Patrick Arnold Flynn and Seth Michael Lasater, Columbia, Tennessee, for the appellees,
John R. Vaughan, Jr. and Hilda Vaughan.

                                         OPINION

                           I. FACTS & PROCEDURAL HISTORY

      John and Hilda Vaughan (“the Vaughans”) owned a home in Maury County,
Tennessee and listed it for sale with a realtor. The Vaughans moved out of the home and
removed all of their belongings. Reginald and Charlesan Woodgett were interested in the
home and contacted the listing realtor to inquire about viewing it. Mr. Woodgett was
himself a realtor, so the listing realtor allowed the Woodgetts to view the home
themselves without accompanying them.
        During the viewing, Mrs. Woodgett allegedly fell and sustained injuries while
traversing down a step that provided access to an area of the attic. The attic doorway was
located in the wall of an upstairs bonus room. Below the doorway was a large landing or
platform that was raised 16.5 inches off the floor and measured 52 inches wide by 31
inches deep. To facilitate access to the raised landing, the Vaughans had engaged a
contractor to build a wooden box that would be used as a step up to the landing. The box
itself was 9.5 inches high, and it measured 39 inches wide and 10.75 inches deep. It was
constructed with “two-by-twelves” and covered in carpet. The Vaughans sometimes
moved the step in order to accommodate their furniture, so it was not fastened to the
landing itself. The Vaughans and their family members used the step for twenty years
without incident. However, according to Mrs. Woodgett, when she attempted to traverse
down the step, it “gave way” and caused her to fall.

       Mrs. Woodgett filed this lawsuit against the Vaughans alleging that the step
constituted a dangerous condition and that the Vaughans had a duty to warn her about its
potential danger.1 She further alleged that the Vaughans were negligent in failing to
properly secure the step in violation of county building codes.

       A jury trial was held over the course of two days in October 2015. At the
conclusion of the trial, the jury returned a verdict finding that the Vaughans were not at
fault. The trial court entered judgment on the jury verdict and dismissed the complaint.
Mrs. Woodgett filed a motion for judgment notwithstanding the verdict, to alter or
amend, or in the alternative for a new trial, but the trial court denied the motion. Mrs.
Woodgett timely filed a notice of appeal to this Court.

                                         II. ISSUES PRESENTED

      Mrs. Woodgett lists the following five issues in her brief on appeal, as slightly
reworded:

       1.     Whether the trial court erred in finding there was no evidence that an
       unsafe or dangerous condition existed;

       2.     Whether the trial court erred by allowing the jury to see the
       surveillance video;


1
 The complaint was originally filed by Mr. and Mrs. Woodgett, and it included a claim for loss of
consortium on behalf of Mr. Woodgett. Mr. Woodgett died during the proceedings below, and Mrs.
Woodgett was appointed as the administrator ad litem for Mr. Woodgett and substituted in his place as
plaintiff in these proceedings. For ease of reference, we will refer to Mrs. Woodgett as the singular
plaintiff for purposes of this opinion.
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      3.     Whether it was reversible error for defense counsel to ask the jurors
      to protect Maury County;

      4.     Whether it was reversible error for the trial judge to instruct the
      jurors that property owners are only liable to a guest if they had actual or
      constructive notice of a defect;

      5.     Whether the Tennessee Supreme Court’s decision in West v. Shelby
      County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) is limited to the
      hospital lien act or also applicable to personal injury actions filed against a
      tortfeasor.

For the following reasons, we affirm the decision of the circuit court and remand for
further proceedings.

                                     III. DISCUSSION

                                A.    Defining the Issues

       At the outset, it is necessary to identify the issues properly raised and briefed by
Mrs. Woodgett on appeal in order to define the scope of our review on appeal. “‘Scope
of review’ defines the issues that may be reviewed by an appellate court when an order or
judgment has been properly appealed.” Hodge v. Craig, 382 S.W.3d 325, 333 n.2 (Tenn.
2012). It refers to the matters the appellate court is permitted to examine. Id. The scope
of our review depends largely on the issues properly presented on appeal. Id. at 333-34.
Issues are to be raised and presented in the manner prescribed by Tennessee Rule of
Appellate Procedure 27. Id. at 334. Appellants must include in their brief “a statement
of the issues they desire to present to the court and an argument with respect to each of
the issues presented.” Id. at 334-35 (emphasis added); see Tenn. R. App. P. 27(a)(4)
(providing that briefs must contain a “statement of the issues presented for review”).

       “The requirement of a statement of the issues raised on appeal is no mere
technicality.” Owen v. Long Tire, LLC, No. W2011-01227-COA-R3-CV, 2011 WL
6777014, at *4 (Tenn. Ct. App. Dec. 22, 2011). In Hodge, the Tennessee Supreme Court
emphasized the importance of properly presenting issues for review and indicated that “a
properly framed issue may be the most important part of an appellate brief.” Id. at 334
(citing Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading
Judges 83 (2008); David E. Sorkin, Make Issue Statements Work for You, 83 Ill. B.J. 39,
39 (Jan.1995)). “Rather than searching for hidden questions, appellate courts prefer to
know immediately what questions they are supposed to answer.” Id. (citing Bryan A.
Garner, Garner on Language & Writing 115 (2009); Robert L. Stern, Appellate Practice
                                            3
in the United States § 10.9, at 263 (2d ed. 1989)). “The issues should be framed as
specifically as the nature of the error will permit in order to avoid any potential risk of
waiver.” Id. at 335 (citing Fahey v. Eldridge, 46 S.W.3d 138, 143-44 (Tenn. 2001); State
v. Williams, 914 S.W.2d 940, 948 (Tenn. Crim. App. 1995)).

        Parties must also present an argument with respect to each of the issues. “It is not
the role of the courts, trial or appellate, to research or construct a litigant’s case or
arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.”
Sneed v. Bd. of Prof’l Responsibility of Sup.Ct., 301 S.W.3d 603, 615 (Tenn. 2010). “The
adversarial system of justice is premised on the idea that ‘appellate courts do not sit as
self-directed boards of legal inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.’” Malmquist v. Malmquist,
No. W2007-02373-COA-R3-CV, 2011 WL 1087206, at *11 n.21 (Tenn. Ct. App. Mar.
25, 2011) (quoting State v. Northern, 262 S.W.3d 741, 767 (Tenn. 2008) (Holder, J.,
concurring in part and dissenting in part)). “Parties must thoroughly brief the issues they
expect the appellate court to consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn.
2009).

       In sum, appellate courts may properly decline to consider issues that have not been
raised and briefed in accordance with the applicable rules. Id.

       An issue may be deemed waived, even when it has been specifically raised
       as an issue, when the brief fails to include an argument satisfying the
       requirements of Tenn. R. App. P. 27(a)(7). By the same token, an issue
       may be deemed waived when it is argued in the brief but is not designated
       as an issue in accordance with Tenn. R. App. P. 27(a)(4).

Hodge, 382 S.W.3d at 335 (citation omitted).

       The first issue listed in Mrs. Woodgett’s brief is “[w]hether the trial court erred in
finding there was no evidence that an unsafe or dangerous condition existed.” However,
she does not analyze this issue in the argument section of her brief. Because Mrs.
Woodgett failed to develop an argument regarding this issue, we deem the issue waived.
See Hodge, 382 S.W.3d at 335.


       Mrs. Woodgett’s brief also lists an issue regarding the trial court’s jury
instructions. The argument section of her brief contains the following section, which we
quote in full, to address this issue:

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               This court’s jury instruction, “Owners of property are not
       responsible for an injury to a visitor who is injured by a defect, unless it is
       shown that the owner had actual or constructive noticed [sic] of the
       existence of the defect.”, [sic] was in error. The judgment of a trial court
       will not be set aside based on an erroneous jury instruction unless it appears
       that the erroneous instruction more probably than not affected the judgment
       of the jury. Tenn. R. App. P. 36(b); Gorman v. Earhart, 876 S.W. 2d 832
       (Tenn. 1994).


       Again, we conclude that Mrs. Woodgett failed to develop an argument in support
of her issue or, at best, “merely construct[ed] a skeletal argument.” See Sneed, 301
S.W.3d at 615. We accordingly deem this issue waived. It is not the role of this Court to
research and construct an appellant’s argument. Id.


        Within the argument section of Mrs. Woodgett’s brief, she suggests that some of
the trial court’s evidentiary rulings during the jury trial were erroneous. For example,
Mrs. Woodgett contends that the trial judge committed reversible error by excluding her
expert witness. She also complains that she was “not allowed to present testimony
regarding the county building codes” to support her claim of negligence per se.
However, Mrs. Woodgett’s “issues” did not designate any issue on appeal regarding the
trial court’s ruling excluding her expert testimony. “‘Courts have consistently held that
issues must be included in the Statement of Issues Presented for Review required by
Tennessee Rule of Appellate Procedure 27(a)(4). An issue not included is not properly
before the Court of Appeals.’” Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App.
2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001)). Because
Mrs. Woodgett failed to present an issue for review challenging the trial judge’s ruling on
expert testimony, we deem her arguments to that effect waived.


                                 B.    Surveillance Video


        The first issue Mrs. Woodgett properly presented and briefed on appeal is whether
the trial court erred by allowing the jury to see a surveillance video.

       At trial, Mrs. Woodgett testified that after her fall in the Vaughans’ home, she
“really couldn’t do anything because everything bothered [her].” She testified that she
and her husband used to enjoy walking, but since the accident, she “can’t walk a lot” and
“can’t stand too long.” She testified that she cannot cook as often because of her
difficulty standing. She also testified that she “can’t bend” and “can’t stand straight up”

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after bending or sitting. She said she does not use stairs. Mrs. Woodgett testified that she
limped and dragged her leg for three to four years after the fall and still was not active by
the time of trial seven years later.2

        The Vaughans retained a private investigator to observe and record Mrs. Woodgett
during her daily activities outside her home. At trial, they called the private investigator
to testify and sought to introduce his surveillance videos. Mrs. Woodgett objected to the
surveillance videos on the ground that they were irrelevant and unduly prejudicial. She
claimed that the videos only showed her running errands around town and getting in and
out of her car, and therefore, they were irrelevant and did not “add anything to the case.”
She also claimed that the videos were unduly prejudicial because the surveillance video
showed her driving on the interstate between the locations at a speed of 85 to 90 miles
per hour. In response, the Vaughans argued that the videos were probative considering
Mrs. Woodgett’s testimony that she limped and dragged her leg during the depicted
timeframe, and the video showed Mrs. Woodgett walking in and out of various locations,
walking in heels, standing outside talking with a friend, and getting in and out of a
Cadillac Escalade without difficulty. The trial judge allowed the jury to see the
surveillance videos upon concluding that they were probative as to Mrs. Woodgett’s
credibility, her symptoms, and the effects of the alleged injury. On appeal, Mrs.
Woodgett asserts that the trial judge abused his discretion in allowing the jury to see the
video because it “held [Mrs. Woodgett] out as a person of means, driving a Cadillac
Escalade, driving several other cars, shopping . . . and driving fast on the interstate.”

        Appellate courts review a trial court’s decisions regarding the admissibility of
evidence for an abuse of discretion. State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015). “A
trial court abuses its discretion when it applies an incorrect legal standard, reaches an
illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the complaining party.” Id. (citing State
v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014)).

       Evidence is deemed relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. Just “because evidence is prejudicial does not mean the
evidence must be excluded as a matter of law.” State v. Carruthers, 35 S.W.3d 516, 577

2
 The delay between the incident in 2008 and the trial in 2015 was apparently due to a voluntary nonsuit
and refiling.
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(Tenn. 2000). Excluding otherwise relevant evidence under Rule 403 “‘is an
extraordinary step that should be used sparingly.’” White v. Beeks, 469 S.W.3d 517, 528
(Tenn. 2015) (quoting Levine v. March, 266 S.W.3d 426, 439 (Tenn. Ct. App. 2007)).
“To decide whether visual evidence is admissible, the court determines the relevance of
the evidence and weighs its probative value against any undue prejudice.” State v.
Willis, 496 S.W.3d 653, 726 (Tenn. 2016). Evidence is “‘unfairly prejudicial’ if it has
‘an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” Id.


        We cannot say that the trial judge abused his discretion in admitting the video
surveillance tapes in this case. Given Mrs. Woodgett’s testimony about her physical
limitations, video evidence of her walking in heels and climbing in and out of a large
vehicle was certainly relevant to the issues at trial. The brand of that vehicle and the
speed at which she drove do not lead us to conclude otherwise or to deem the video
inadmissible. The trial court did not abuse its discretion by concluding that the probative
value of the video was not substantially outweighed by the danger of unfair prejudice.
See State v. Adams, 405 S.W.3d 641, 658 (Tenn. 2013) (reviewing the trial court’s
balancing of probative value and unfair prejudice for abuse of discretion).

                                 C.    Closing Argument

       In her next issue on appeal, Mrs. Woodgett asserts that “it was reversible error for
counsel for [the Vaughans] to ask jurors to protect Maury County.” In support of this
issue, Mrs. Woodgett’s brief states:

               Further, the Plaintiffs’ are residences [sic] of Sumner County and are
       being represented by two attorneys from Davidson County, who all just
       happen to be black. Counsel for the Defendants made a statement during
       closing argument that was highly prejudicial and served no purpose but to
       inflame the all-white jury when he stated, “...Ladies and gentleman of the
       jury you have to protect Maury County.” Maury County was not a party to
       the trial, so that statement served no probative value.

Notably, Mrs. Woodgett does not cite to any location in the record where this statement
was allegedly made. This Court has carefully reviewed the transcript of the jury trial and
specifically the closing arguments made by the attorneys, and we are confident that no
such statement was made by defense counsel.

       Counsel for the Vaughans did reference Maury County during closing argument:

       The Judge is going to instruct you in a little bit about the law in Tennessee,
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        and it’s going to include references to foreseeability and reasonably
        foreseeable, as well as what a reasonable person under circumstances
        similar to what have been presented today and yesterday would do. You are
        the voice of Maury County, essentially, as you sit as jurors. You make the
        decisions in Maury County based on what has been presented to you from
        this chair over the last two days as to what is wrongful conduct, what is
        negligence, what you consider to be enough to establish that the Vaughans
        somehow owe Ms. Woodgett compensation.
               ....
               . . . Was there anything in the history of that step that would suggest
        to the Vaughans, “This is a problem, this is dangerous, this is a condition
        that you need to fix,” or this is a condition that you need to put a warning
        sign up and tell people when they come to see your house, “Be careful, this
        step moves”? And again, you are the deciders of that for Maury County and
        for this trial. It’s not just the question between Ms. Woodgett and the
        Vaughans, this is what is the standard in Maury County based on your
        collective judgment, the 12 of you that will sit in judgment of this case.

Obviously, this excerpt is a far cry from the statement that counsel for Mrs. Woodgett
includes in her brief purportedly as a direct quote: “Ladies and gentleman of the jury you
have to protect Maury County.”3 It also contains no improper racial bias or innuendo “to
inflame the all-white jury.” We find no merit in this issue.

                                             D.     Damages

       In the final issue raised on appeal, Mrs. Woodgett questions whether the
Tennessee Supreme Court’s decision in West v. Shelby County Healthcare Corp., 459
S.W.3d 33 (Tenn. 2014), is limited to the hospital lien act or also applicable to damages
in personal injury actions filed against a tortfeasor. Because the jury ruled in favor of the
defendants and awarded no damages, and we are affirming that decision on appeal, this
argument regarding the appropriate amount of damages is pretermitted.

3
 Counsel’s misrepresentation to this Court is even more concerning because he made the same allegation
in his motion for new trial in the court below. Mrs. Woodgett’s post-trial motion contained the same
paragraph, copied verbatim, that appears in her brief on appeal. The trial court’s order denying the
motion states, “With regard to Plaintiffs’ claims of racial bias in the trial: The Court finds that there was
no statement made by counsel for the Defendants, or otherwise, related to race at the trial of this cause
and that Plaintiffs’ claims are unfounded.” We would remind counsel that “[w]hile it is entirely proper
for counsel in his brief to show errors, and apply the law to them, he is not permitted to insert matters
which are defamatory, scandalous, impertinent and untrue.” Ward v. Univ. of S., 354 S.W.2d 246, 249
(Tenn. 1962). In raising this unfounded argument on appeal, counsel chose to ignore not only the written
transcript of the proceedings below but also the trial court’s previous ruling that the alleged statement did
not occur.
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                                 V. CONCLUSION

       For the aforementioned reasons, the decision of the circuit court is hereby
affirmed. Costs of this appeal are taxed to the appellant, Charlesan Woodgett,
individually and as Administrator ad Litem for Reginald Woodgett, deceased, and her
surety, for which execution may issue if necessary.



                                            _________________________________
                                            BRANDON O. GIBSON, JUDGE




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