                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 7, 2000 Session

                DAVID F. DEAN, SR. v. HOME DEPOT USA, INC.

                     Appeal from the Circuit Court for Davidson County
                          No. 97C-3695    Carol Soloman, Judge



                     No. M1999-02313-COA-R3-CV - Filed April 2, 2001


Plaintiff, David Dean, was a 68 year old frequent patron of Home Depot. On April 27, 1997, Mr.
Dean completed his shopping at the store, paid the cashier and, upon departing, appeared to have set
off the electric theft detection alarm. An employee of Home Depot stopped Mr. Dean and asked him
to step back into the store while employees located the source of whatever triggered the alarm. Mr.
Dean was neither arrested nor charged and ultimately left the store. He brought suit against Home
Depot for false imprisonment resulting in a jury verdict in his favor for $37,593.00. On Motion for
a New Trial, asking in the alternative for remittitur, the trial court reduced the judgment by
$3,000.00. Defendant appealed. Upon consideration of the record, we suggest an increased
remittitur and remand the case giving Mr. Dean 15 days to accept the suggested remittitur.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
WILLIAM C. KOCH , JR., J., joined.

Roy D. Campbell, III and Kristin M. Oberdecker, Nashville, Tennessee, for the appellant, Home
Depot USA, Inc.

Jack A. Butler and Jeffrey R. Kohl, Nashville, Tennessee, for the appellee, David F. Dean, Sr.

                                            OPINION

                                            I. FACTS

       The underlying dispute in this matter centers around an action for false imprisonment filed
by Mr. David Dean, patron of Defendant, Home Depot. Mr. Dean, Plaintiff in this matter, was
asked to step back into Home Depot when a theft deterrent system was activated at about the same
time Mr. Dean passed through the Home Depot exit. Mr. Dean sued Home Depot for false
imprisonment, and the case went to trial in September of 1999. The matter was decided by a jury,
which determined that Home Depot falsely imprisoned Mr. Dean and awarded him $37,593.00 in
damages.

         Prior to trial, neither party filed a motion for summary judgment; and at no time during the
trial did the defense move for a directed verdict. After the jury returned its verdict, the defense filed
its Motion of Home Depot U.S.A., Inc. For New Trial which also prayed, in the alternative, for a
remittitur. No motion to have judgement entered in accordance with a party’s motion for directed
verdict (formerly motion for judgment notwithstanding the verdict) was (or could be) filed.

        Defendant stated that it was “entitled to a new trial because the evidence preponderates
against the verdict of the jury holding it liable for the false imprisonment of the plaintiff, Mr. Dean.”
Defendant went on to agree that “[t]he Court correctly instructed the Jury on the elements of false
imprisonment” but alleged that the evidence showed “no proof that the plaintiff was restrained,
confined or detained by Home Depot as a result of the use of force or the threat of the use of force,
either stated or implied from all the circumstances.”

       The trial court denied Defendant’s Motion for a New Trial, but suggested a remittitur of
$3,000.00. Plaintiff accepted the remittitur, and the judgment was amended and entered in the
amount of $34,593.00. This appeal by Defendant ensued.

        The issues presented by Defendant on appeal are: 1) Whether there is any material evidence
as a matter of law to support the jury’s verdict that the Defendant, Home Depot, falsely imprisoned
the Plaintiff; and 2) Whether the trial court’s suggested remittitur is inadequate.

 II. FAILURE TO MOVE FOR A DIRECTED VERDICT OR FILE POST TRIAL MOTIONS

        The first issue on appeal is whether or not there is any material evidence to support the
verdict of the jury finding that Home Depot had falsely imprisoned Mr. Dean. This issue is raised
for the first time in the brief of Defendant on appeal to this Court. Counsel, trying the case for
Defendant, did not move for a directed verdict at the close of Plaintiff’s evidence and did not move
for a directed verdict at the close of all of the evidence. The only post-trial motion filed by
Defendant was a Motion for a New Trial asserting that the verdict of the jury was against the weight
of the evidence. This motion asked the trial court, in the alternative, for a remittitur.

       However meritorious the position of Defendant may be in asserting that there is no material
evidence to support the verdict of the jury, it cannot be addressed on appeal since
Defendant/Appellant has waived the issue.

         In Cortez v. Alutech, Inc., 941 S.W.2d 891 (Tenn. Ct. App. 1996) (application for permission
to appeal denied Jan 27, 1997), the issues presented for review were: (1) whether the court erred in
failing to grant summary judgment; (2) whether the court erred in failing to grant a directed verdict;
and (3) whether there was any evidence to support the jury verdict for the plaintiff. The defense in
Cortez filed a motion for directed verdict but failed to file any post-trial motions. The Western


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Section cited Potter v. Tucker, 688 S.W.2d 833 (Tenn. Ct. App. 1985) stating that a motion for
directed verdict “must be made at the conclusion of all the proof in order for it to be considered by
the trial court on a post-trial motion and by this court on appeal.” Cortez, 941 S.W.2d at 894. The
Court further stated,

       Appellants did not file a motion for judgment in accordance with the motion for a
       directed verdict . We find their omission in this regard to preclude a review of this
       matter in light of Rule 50.02 T.R.C.P. and also Rule 36(a) T.R.A.P. which states that
       ‘[n]othing in this rule shall be construed as requiring relief be granted to a party . .
       . who failed to take whatever action was reasonably available to prevent or nullify the
       harmful effect of an error.’. . . Their failure to file such a motion denied the trial
       court the opportunity to reconsider its former decision on the issue and the legal
       questions raised by the motion.

Id. at 895-96. As a result of this holding, the Court of Appeals refused to consider any of the three
issues brought on appeal and affirmed the trial court’s ruling.

        A similar situation faced the Court in the cases of Mires v. Clay, 3 S.W.3d 463 (Tenn. Ct.
App. 1999)(application for permission to appeal denied July, 26, 1999) and McKinney v. Smith
County, No. M1988-00074-COAR3CV, 1999 WL 1000887 (Tenn. Ct. App. Nov. 5, 1999). In these
cases, the defense requested a directed verdict at the conclusion of the plaintiff’s case and requested
dismissal at the conclusion of all proof. The defense then failed to file any post trial motions on
these issues before the trial court. In explaining why they could not hear defendants’ appeal in the
McKinney case, the Court stated, “The County raised this issue at trial at the conclusion of all the
evidence by renewing its motion to dismiss. . . . In our view, the County’s renewed motion to
dismiss satisfied the requirement that, in order to take the initial step to preserve this issue for
appellate review, the County make a motion for a directed verdict at the close of all the trial
evidence.” McKinney, 1999 WL 1000887, at * 3 (emphasis added).

        Ultimately, the Court in both cases found that it could not hear the appeal since no post trial
motions were filed to preserve the complained of issues for appeal. However, the Court makes clear
that these post trial motions merely preserve the issues previously raised in a party’s motion for
directed verdict. It is incumbent on a party who may want to appeal to first ask for a directed verdict
or dismissal as a prerequisite to filing post trial motions (either motion for new trial on this issue or
motion for judgment in accordance with the motion for directed verdict). Failure to do so precludes
appeal of whether there was material evidence to support the verdict.

        [W]hen the alleged error is the failure of the trial court to grant a directed verdict,
        either a motion for a new trial or a post-trial motion seeking entry of judgment in
        accordance with a motion for directed verdict made at trial (judgment n.o.v.) is
        sufficient to preserve the issue for appeal. Failure to file either of these post-trial
        motions, however, denies ‘the trial judge the opportunity to consider or reconsider
        alleged errors committed during the course of trial’ and precludes appellate review


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       of that issue. The rational for this holding is supported by Rule 36(a) T.R.A.P. which
       provides that ‘[n]othing in this rule shall be construed as requiring relief be granted
       to a party . . . who failed to take whatever action was reasonably available to prevent
       or nullify the harmful effect of an error.’

Mires, 3 S.W.3d. at 468 (citing Cortez at 894-96).

        The Tennessee Rules of Civil Procedure, in this respect, parallel the Federal Rules, and the
issue is long settled under the Federal Rules. In Southern Ry. Co. v. Miller, a diversity jurisdiction
negligence action brought in the Eastern District of Tennessee, the appellant sought reversal of
adverse jury verdicts on negligence. On appeal, the defendant asserted that there was no material
evidence to support the jury verdicts. Said the court:

               Defendant’s contention in this regard is, in effect, an assertion that there was
       not sufficient evidence to go to the jury on the question of defendant’s negligence.
       The defendant, however, made no motion for a directed verdict on such ground.
       Such ground was urged in support of defendant’s claim, on his motion for new trial,
       that the evidence ‘preponderates against the plaintiffs’ claim and in favor of the
       defendant.’ No motion for directed verdict having been made, the question of the
       sufficiency of the evidence to support the jury’s verdict is not available as a ground
       for a motion for new trial.

Southern Ry. Co. v. Miller, 285 F.2d 202, 206 (6th Cir.1960).

        In the Ohio diversity jurisdiction case of Portage II v. Bryant Petroleum Corp. , the plaintiffs
appealed from the action of the district court in the post-jury verdict dismissal of their claim against
one defendant. At no time during the course of the trial did that defendant move for a directed
verdict, but post-trial he filed a motion to dismiss all claims against him for lack of material
evidence. The trial court granted his motion, and the Sixth Circuit Court of Appeals reversed and
reinstated the jury verdict. Said the court:

                 It is well-settled that a court can only consider a motion for a judgment
        notwithstanding the verdict only if the moving party has previously made a motion
        for a directed verdict at the close of all the evidence. 5A J. Moore & J. Lucas,
        MOORE’S FEDERAL PRACTICE ¶ 50.08 (2d ed.1989) (hereinafter J. Moore & J. Lucas).
        See also Abeshouse v. Ultragraphics, Inc., 754 F.2d 467, 473 (2d Cir.1985) (holding
        that failure to timely move for a directed verdict precludes a later grant of judgment
        notwithstanding the verdict); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.), cert.
        denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985) (holding that plaintiff’s
        failure to move for directed verdict at the close of the evidence precluded a later grant
        of judgment n.o.v.); Rawls v. Daughters of Charity of St. Vincent DePaul, Inc., 491
        F.2d 141, 147 (th Cir.), cert. denied, 419 U.S. 1032, 95 S.Ct.513, 42 L.Ed.2d 307
        (1974) (“[A] motion for directed verdict is a prerequisite for relief on a motion for


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       a j.n.o.v. under Fed.R.Civ.P. 50(b).”). Federal Rule of Civil Procedure 50(b)
       provides:

               Whenever a motion for a directed verdict made at the close of all the
               evidence is denied or for any reason is not granted, the court is
               deemed to have submitted the action to the jury subject to a later
               determination of the legal questions raised by the motion. Not later
               than 10 days after entry of judgment, a party who has moved for a
               directed verdict may move to have the verdict and any judgment
               entered thereon set aside and to have judgment entered in accordance
               with his motion for a directed verdict; or if a verdict was not returned
               such party, within 10 days after the jury has been discharged, may
               move for judgment in accordance with his motion for a directed
               verdict.

       Id. Therefore, a party who has failed to move for a directed verdict at the close of all
       the evidence, can neither ask the district court to rule on the legal sufficiency of the
       evidence supporting a verdict for his opponent nor raise the question on appeal. See
       Southern Railway Company v. Miller, 285 F.2d 202, 206 (6th Cir.1960); J. Moore
       & J. Lucas, ¶ 50.08. See also Stewart v. Thigpen, 730 F.2d 1002, 1006 (5th
       Cir.1984) (since plaintiff failed to move for a directed verdict during trial, he was
       precluded from raising the issue of sufficiency of evidence on appeal); DuPont v.
       Southern Pacific Co., 366 F.2d 193, 198 (5th Cir.1966) (“[T]here was no request for
       a direct verdict under Rule 50 . . . and thus the appellate court is powerless to review
       the sufficiency of the evidence.”).

                In Southern Railway Co. v. Miller, 285 F.2d 202 (6th Cir.1960), we held that
        where no motion for a directed verdict was made, the question of the sufficiency of
        the evidence to support the jury’s verdict is not available as a ground for a motion for
        a new trial. Id. at 206.

Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1522-23 (6th Cir.1990) (emphasis added).

       In Jackson v. City of Cookeville, 31 F.3d 1354 (6th Cir.1994), the defendant, City of
Cookeville, appealed the failure of the district court to dismiss the case for lack of material evidence.
Said the court:

               After the jury rendered its verdict, the defendants filed a motion for judgment
        notwithstanding the verdict, which the district court denied. On appeal, we cannot
        review this claim, for it appears that the defendants did not make a motion for a
        judgment as a matter of law (formerly directed verdict) at the close of the evidence.
        ‘It is well-settled that a court can only consider a motion for a judgment
        notwithstanding the verdict only if the moving party has previously made a motion


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        for a directed verdict at the close of all the evidence.’ Portage II v. Bryant Petroleum
        Corp., 899 F.2d 1514, 1522 (6th Cir.1990) (citing cases). ‘Therefore, a party who
        has failed to move for a directed verdict at the close of all the evidence, can neither
        ask the district court to rule on the legal sufficiency of the evidence supporting the
        verdict for his opponent nor raise the question on appeal.’ Id.

Jackson, 31 F.3d at 1357 (emphasis added).

        Cortez and its progeny simply adopt the long standing rule of the Sixth Circuit construing
the companion Federal Rule. As such, this Court cannot review on appeal the “material evidence
question” raised by Defendant, since this question was waived by the failure of Defendant at any
time to file a motion for directed verdict. In fact, Defendant raises the issue for the first time in its
appellate brief.

                 III. REVIEW OF DEFENDANT’S MOTION FOR NEW TRIAL

        Home Depot requested a new trial based on the ground that the evidence preponderates
against the jury’s verdict. This motion for a new trial calls on the trial court to perform its function
as a thirteenth juror.

                If a trial court is called upon to act as a thirteenth juror following the filing
        of a motion for a new trial, the trial court must be independently satisfied with the
        verdict of the jury. In performing this function, the trial court must itself weigh the
        evidence heard by the jury. If after weighing the evidence, the trial court is satisfied
        with the verdict, it is that court’s responsibility to approve the verdict; on the other
        hand, if it is not satisfied with the verdict after weighting the evidence, the trial court
        must grant a new trial. . . .

                When ‘the trial judge simply approves a verdict without any comment, it is
        presumed by an appellant court that he [or she] has performed his [or her] function
        adequately.’ On the other hand, where [] the trial court makes comments on the
        record in the course of reviewing a motion for a new trial, we will review those
        comments; but we do not review those comments to see if we agree with the trial
        court’s reasoning, but rather to determine ‘whether the trial court properly reviewed
        the evidence, and was satisfied or dissatisfied with the verdict.’ If the trial court’s
        comments indicate that it has misconstrued its duty as thirteenth juror, and has
        approved the verdict for some reason other than its own satisfaction with the verdict
        based upon an independent evaluation of the evidence, it is our responsibility to
        reverse and remand the case for a new trial.

Ridings v. Norfolk S. Ry. Co., 894 S.W.2d 281, 288-89 (Tenn. Ct. App. 1994) (citations omitted).
Essentially, we only review the trial courts decision to determine whether the trial court abrogated
its responsibility as thirteenth juror. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 717 (Tenn Ct. App.


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1999). “We cannot review the accuracy of the trial court’s determination as thirteenth juror.” Id.
at 718.

        With regard to Defendant’s Motion for New Trial, the judge stated only, “After having heard
arguments of counsel and upon the record as a whole the Court finds that the defendant’s Motion
for a New Trial should be denied.” As the judge made no comments regarding her denial of the
Defendant’s Motion, we can only presume that the judge performed her function adequately and her
denial of this Motion must be affirmed.

               IV. THE ADEQUACY OF THE TRIAL COURTS REMITTITUR

       In 1990, this Court recounted, very succinctly, the standard of review to be followed by
appellate courts in reviewing a trial court’s award of remittitur in cases tried by a jury.

               The calculation of damages in personal injury cases is primarily for the jury.
       Bates v. Jackson, 639 S.W.2d 925, 927 (Tenn.1982); Lunn v. Ealy, 176 Tenn. 374,
       376, 141 S.W.2d 893, 894 (1940). However, the trial courts have had the statutory
       prerogative since the turn of the century to adjust damage awards to accomplish
       justice between the parties and to avoid the time and expense of a new trial.
       Tenn.Code Ann. §§ 20-10-101, -102 (Supp.1989); Burlison v. Rose, 701 S.W.2d 609,
       611 (Tenn.1985); Foster v. Amcon Int'l, Inc., 621 S.W.2d 142, 147 (Tenn.1981); Pitts
       v. Exxon Corp., 596 S.W.2d 830, 835 (Tenn.1980); Murphy Truck Lines v. Brown,
       203 Tenn. 414, 422, 313 S.W.2d 440, 443 (1958).

               The role of the appellate courts 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. Burlison v. Rose, 701 S.W.2d at 611; Bates v. Jackson, 639 S.W.2d
       at 926-27; Foster v. Amcon Int'l, Inc., 621 S.W.2d at 145.

               The contours of the scope of appellate review have changed over the years.
       Now, the appellate courts customarily conduct a three-step review of a trial court's
       adjustment of a jury's damage award. 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. Burlison v. Rose, 701 S.W.2d at 611. Second, we examine the
       amount of the suggested adjustment since adjustments that "totally destroy" the jury's
       verdict are impermissible. Foster v. Amcon Int'l, Inc., 621 S.W.2d at 148; Guess v.
       Maury, 726 S.W.2d 906, 913 (Tenn.Ct.App.1986). Third, we review the proof of
       damages to determine whether the evidence preponderates against the trial court's
       adjustment. See Tenn.Code Ann. § 20-10-102(b).

Long v. Mattingly, 797 S.W.2d 889, 895-96 (Tenn. Ct. App. 1990) (application for permission to
appeal denied Oct. 22, 1990)


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        The factual situation surrounding appeal of the remittiturs in Long was similar to the case at
bar. “The trial court reduced the damages the jury awarded to Mrs. Long from $100,000 to $85,000
and the damages awarded to Mr. Long from $25,000 to $20,000. The Longs do not challenge these
remittiturs on appeal even though they accepted them under protest. However, Mr. Mattingly and
his employer insist that they were insufficient.” Long, 797 S.W.2d at 895. Similarly, in the case at
bar, the jury awarded plaintiff $37,593.00, but the trial court reduced the damages to $34,593.00.
Plaintiff accepted this award, but Defendant appealed the remittitur as being inadequate.

                If, after reviewing the record, we determine that the adjusted damage award
       is still excessive, we have the prerogative under Tenn.Code Ann. § 20- 10-103(a)
       (Supp.1989) to reduce the damages further. We have reviewed the proof of the
       Longs' damages in this case and have determined that the remitted awards are still
       excessive and are contrary to the preponderance of the evidence.

Id. at 896 (citations omitted). In an exercise of our prerogative to adjust the damages further, we
agree with Defendant that the remittitur was inadequate. Based on the proof of damages in this
matter, the amount awarded after remittitur is still contrary to the preponderance of the evidence.

       In determining how much remittitur is appropriate, we can once again compare the facts of
the Long case with those of the case at bar.

               Mrs. Long was fifty-seven years old when the accident occurred. The record
       contains little evidence concerning her intelligence, skills, talents, experience,
       training, or industry. Her only employment outside the home appears to have been
       selling cosmetics door-to-door sometime in 1976. She was not employed at the time
       of the injury or at trial.

               Mrs. Long's medical expenses amounted to approximately $6,175. Her soft-
       tissue injury appeared to have resolved itself by the time of the trial. There is no
       proof that her condition prevents her from being employed, and there is little proof
       that she will require additional, significant medical treatment. While she has some
       residual pain and restriction of movement, she appears to have resumed her normal
       activities--being a housewife, collecting antique bottles, and traveling to flea markets.
       The only specific restrictions on her activities mentioned in the record include (1)
       mowing the grass for her husband, (2) getting the dishes out of the cabinet, (3)
       running the vacuum cleaner, and (4) lifting heavy boxes filled with antique bottles.

               We agree with the trial court's conclusion that awarding $100,000 to Mrs.
       Long and $25,000 to Mr. Long was excessive under these facts. However, we also
       find that the evidence preponderates against awarding them $85,000 and $20,000
       respectively as decreed by the trial court. Based on our own review of the record, we
       find that the proof, taken as a whole, entitles Mrs. Long to $50,000 and Mr. Long to
       $10,000.


                                                 -8-
Id. The sole basis for an award of damages, in our case, was due to Plaintiff’s false imprisonment
and the damages resulting there from.

        With regard to the actual period of imprisonment, Plaintiff was, at most, held for an hour
while the employees of Home Depot tried to determine the source of the alarm. Plaintiff had
minimal contact with the Home Depot employees, as they approached him once and asked him to
step back into the store and then requested that he step back further away from the doors no more
than three times. His only physical contact with the employees was a tap on the shoulder.

        Plaintiff testified that after the incident he was shaking and having chest pains (angina). He
met a neighbor in the parking lot who assisted him with a nitroglycerine pill and helped him get to
his truck. He sat in his truck for approximately an hour, until the pain in his chest and back subsided
so that he felt he was able to drive home. The neighbor then stayed at his home another couple of
hours to be sure he was out of danger.

       With regard to medical treatment, Plaintiff saw his heart doctor, Dr. Griscom, on only one
occasion, six days after the incident, for these symptoms. The doctor gave him a heart test, which
took about 15 minutes, and determined there was no permanent injury. The total cost of related
medical treatment was $96.00.

        At the time of the incident, Plaintiff was around 68 years old and had been totally disabled
due to a back injury since the mid 1960's. He also suffered from a preexisting and recurrent heart
problem for which he had been taking Nitroglycerine for 15 years.

        Looking at these facts regarding Plaintiff’s damages, we agree with the trial court that the
$37,593.00 award was excessive, but we also think that an award of $34,593.00 is still excessive and
against the preponderance of the evidence. When we compare Plaintiff’s special damages of $96.00
and the few hours of pain, suffering and inconvenience with the damages awarded to both Mr. and
Ms. Long in the Long case, we believe an award of $7,500.00 for Plaintiff’s damages is appropriate
and in accordance with the proof offered, without totally destroying the verdict of the jury.

        We modify the trial court judgment so as to reduce damages awarded to $7,500.00. The case
is remanded to the trial court and Plaintiff will be allowed 15 days within which to accept or reject
the revised remittitur. In case the revised remittitur is rejected, a new trial is ordered on all issues.
Costs of appeal are divided equally between the parties.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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