                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     March 5, 1999 Session

           JAMES A. HODGE v. JONES HOLDING COMPANY, INC.

                       Appeal from the Circuit Court for Lincoln County
                           No. C9600214      F. Lee Russell, Judge


                     No. M1998-00955-COA-R3-CV - Filed August 3, 2001


This appeal involves a motorcycle rider who was seriously injured when his motorcycle crossed
metal plates covering a portion of the highway surface that was under construction. After voluntarily
dismissing his first suit, the rider filed a second suit in the Circuit Court for Lincoln County against
the corporation he believed to be responsible for placing the metal plates across the highway. The
rider insisted on proceeding against this corporation even after he was informed that he had sued the
wrong party. The corporation moved for a directed verdict at the close of the motorcycle rider’s
case-in-chief, asserting that he had failed to prove that it was responsible for the road construction.
The trial court granted the motion and dismissed the rider’s complaint. The rider now challenges
the directed verdict on two grounds. First, he asserts that he presented enough evidence of the
contractor’s responsibility for the construction to take the case to the jury. Second, he asserts that
the corporation should not be permitted to argue that he sued the wrong party because it had not
specifically identified or described this party in its answer as required by Tenn. R. Civ. P. 8.03. We
have determined that the corporation’s denial of involvement with the construction project at issue
was not asserting an affirmative defense governed by Tenn. R. Civ. P. 8.03 and that the trial court
properly granted the directed verdict. Therefore, we affirm the judgment dismissing the motorcycle
rider’s complaint.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

August C. Winter, Brentwood, Tennessee (on appeal), for the appellant, James A. Hodge.

William B. Jakes, III, Nashville, Tennessee, for the appellee, Jones Holding Company, Inc.

                                              OPINION

                                                   I.

       On August 1, 1993, James Hodge drove his motorcycle to Waynesboro to visit a son who was
incarcerated at a correctional “boot camp” there. He was joined there by another son, John Hodge.
At approximately 5:00 p.m., James Hodge and John Hodge left Waynesboro for their home in
Sewanee. James Hodge was riding his motorcycle; while John Hodge was driving ahead of him in
his automobile.

         As the Hodges were driving east on U.S. Highway 64, they encountered road construction
in the western portion of Lincoln County. At one spot on a downhill curve, the contractor had placed
three one-inch thick rectangular steel plates over the pavement. While the plates were fastened
together with welded straps, there was a seam between the plates running parallel to the direction
of the traffic. John Hodge saw the construction warning signs and the steel plates. After breaking
appropriately, he drove across the steel plates without incident. After he crossed the steel plates,
John Hodge looked in his rearview mirror to see if his father had crossed the plates safely. When he
first looked, he saw his father approaching the seam between the plates. He also saw his father’s
motorcycle “lower” and then he saw his father “coming out of the groove.” When John Hodge
looked again, he saw his father “off the side of the road, dust was flying up and I saw him go over
the front of his motorcycle and his helmet hit the fairing, the fairing broke and then he wound up 20
foot past his motorcycle in some very large rocks.”

        James Hodge was rushed to Lincoln Regional Hospital and then airlifted to Erlanger Medical
Center in Chattanooga where he remained hospitalized for more than one month. He sustained a
closed head injury that affected his ability to speak and walk. Following the wreck, John Hodge
attempted suicide and was admitted to a psychiatric institution for a time. He attributed his
distraught state of mind to the fact that he had witnessed his father’s motorcycle wreck.

        James Hodge and John Hodge filed suit in the Circuit Court for Lincoln County against Jones
Brothers Construction Company. James Hodge sought $1,000,000 in compensatory damages and
$1,000,000 in punitive damages for his injuries, and John Hodge sought $250,000 in compensatory
and $250,000 in punitive damages for the emotional injury he sustained by watching his father’s
wreck. In April 1995, the trial court granted Jones Brothers Construction Company’s motion for
partial summary judgment and dismissed John Hodge’s claims.1 James Hodge later voluntarily
dismissed his claims against Jones Brothers Construction Company.

        Both James Hodge and John Hodge filed a second complaint on December 6, 1996. Instead
of suing the original defendant, Jones Brothers Construction Company, they sued “Jones Holding,
Inc., Company” (“Jones Holding, Inc.”) and alleged that Jones Holding, Inc. was “formerly known
as Jones Brothers Construction Company.” In its answer filed on January 6, 1997, Jones Holding,
Inc. denied that it was formerly known as Jones Brothers Construction Company and denied that it
had been involved in any construction on U.S. Highway 64. On January 17, 1997, the lawyer
representing Jones Holding, Inc. sent a letter to the lawyer representing the Hodges in an effort “to
try and straighten out the confusion as to the identity of the proper defendant in this case.” This
letter explained that

                  Jones Bros. Construction Company was formed several years ago for
                  Robert Jones’ personal business. There have never been any
                  employees of this entity other than Mr. Jones himself. This company


         1
          The trial court entered another order in May 1995 correcting a misnomer in its April 1995 order. John Hodge
did not appeal from either of these orders.

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                  files a non-consolidated tax return based on its own, albeit limited,
                  activity.

                          To avoid confusion with Jones Bros., Inc. (which is a
                  construction company and the proper defendant in this case), the
                  name of Jones Bros. Construction Company was changed in 1995 to
                  Jones Holding, Inc. Jones Holding, Inc. does not have a contractors
                  license and has no ties with the business activities of Jones Bros., Inc.
                  but does have the one shareholder in common, Robert Jones. All
                  construction activity (including the job which is the subject of this
                  case) is contracted with the entity Jones Bros., Inc. I would
                  appreciate it if you would sign the enclosed Agreed Order and submit
                  it to the court. I assure you that this will not affect any applicable
                  insurance coverage.

Attached to this letter was an agreed order, signed by Jones Holding, Inc.’s counsel, amending the
complaint to correct the name of the proper party defendant to read “Jones Bros., Inc.” For some
reason, not readily apparent in the record, the Hodges’ lawyer neither acknowledged this letter nor
forwarded the agreed order to the trial court for entry. Thus, the suit proceeded against Jones
Holding, Inc.

        The trial on James Hodge’s claims commenced in November 1997.2 Mr. Hodge called only
three witnesses, John Hodge, a custodian of Erlanger Medical Center’s patient records, and an
employee of the Department of Transportation who testified that “Jones Brothers” was responsible
for placing the steel plates across the highway.3 After Mr. Hodge rested his case, Jones Holding, Inc.
moved successfully for a directed verdict on two grounds. First, it asserted that Mr. Hodge had sued
the wrong defendant and had presented no evidence that Jones Holding, Inc. had been negligent.
Second, it asserted that Mr. Hodge had failed to present evidence “that there’s any negligence on the
part of whoever the right defendant might be.” The trial court granted the motion on both grounds
and later denied Mr. Hodge’s motion for new trial. This appeal ensued.

                                                           II.
                                          THE STANDARD           OF   REVIEW

        Directed verdicts under either Tenn. R. Civ. P. 50.01 or 50.02 are appropriate only when
reasonable minds cannot differ as to the conclusions to be drawn from the evidence. Alexander v.
Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn.
1994); Ingram v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App. 1998). A case should not be
taken away from the jury, even when the facts are undisputed, if reasonable persons could draw
different conclusions from the facts. Gulf, M. & O.R. Co. v. Underwood, 182 Tenn. 467, 474, 187

         2
          The trial court had earlier dismissed John Hodge ’s claims on res judicata grounds. John Hodge has not
appealed from that decision.

         3
          Mr. Hodge was unable to present expert medical proof regarding his injuries because he had failed to comp ly
with an agreed scheduling order. He did not take the stand because the trial c ourt had denied his motion in limine
seeking to prevent Jones H olding, Inc. from cross-examining him regarding his recent drug-related crim inal convictions.

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S.W.2d 777, 779 (1945); Hurley v. Tennessee Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn.
Ct. App. 1995). A trial court may, however, direct a verdict with regard to an issue that can properly
be decided as a question of law because deciding purely legal questions is the court’s responsibility,
not the jury’s.

        In appeals from a directed verdict, the reviewing courts do not weigh the evidence, Conatser
v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benton v. Snyder, 825
S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of the witnesses. Benson v. Tennessee
Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Instead, they review the
evidence in the light most favorable to the motion’s opponent, give the motion’s opponent the
benefit of all reasonable inferences, and disregard all evidence contrary to that party’s position.
Alexander v. Armentrout, 24 S.W.3d at 271; Eaton v. McClain, 891 S.W.2d at 590; Spann v.
Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999). A Tenn. R. Civ. P. 50.01 motion for directed
verdict should not be granted if the evidence is sufficient to create an issue for the jury to decide.
White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn. Ct. App. 1999); Norman v. Liberty Life
Assurance Co., 556 S.W.2d 772, 773 (Tenn. Ct. App. 1977).

                                           III.
                         THE EVIDENCE AGAINST JONES HOLDING, INC .

         Mr. Hodge first argues that the trial court erred by granting the directed verdict because he
had presented evidence from which the jury could conclude that Jones Holding, Inc. was responsible
for placing in the roadway the steel plates that caused his injuries. Jones Holding, Inc. responds that
a witness’s single reference to “Jones Brothers” provided an insufficient factual basis for concluding
that it played any role in the construction project on U.S. Highway 64. We agree.

        When Mr. Hodge filed his second suit, he intentionally chose to sue Jones Holding, Inc.
Thus, to get his case to the jury, Mr. Hodge had the burden of establishing all the essential elements
of his case. Waste Conversion Sys., Inc. v. Greenstone Indus., Inc., 33 S.W.3d 779, 783 (Tenn.
2000); Winford v. Hawissee Apartment Complex, 812 S.W.2d 293, 295 (Tenn. Ct. App. 1991). One
of these essential elements was that Jones Holding, Inc. was the construction company responsible
for placing the steel plates across U.S. Highway 64.

        The only evidence regarding the identity of the construction company responsible for placing
the steel plates across the highway consisted of the answer to one question put to an inspector
employed by the Tennessee Department of Transportation. When he was asked during his direct
examination to identify who placed the steel plates in the road, the inspector answered “Jones
Brothers.” Later, when asked on cross-examination if he had ever heard of a company called Jones
Holding Company, the inspector answered “No, I haven’t.”

        While Mr. Hodge is entitled to the benefit of all reasonable inferences from the evidence, we
concur with the trial court’s decision that it would be unreasonable to infer that Jones Holding, Inc.
was responsible for placing the steel plates in the road from the testimony identifying “Jones
Brothers” as the responsible party. Corporations are discrete legal entities, and similarities in the
names of two corporations do not provide a basis for attributing the acts of one corporation to the
other. State v. Yamada & Sons, Inc., 584 P.2d 114, 116 (Haw. 1978) (holding that the fact that two


                                                 -4-
corporations bear the same name “is no more the occasion for attributing the debts of one to the other
than if they were two individuals”). In the final analysis, Mr. Hodge sued the wrong corporation.
No amount of evidence can cure this mistake.

                                          IV.
              JONES HOLDING, INC .’S OBLIGATION UNDER TENN. R. CIV . P. 8.03

        Mr. Hodge also argues that Jones Holding, Inc. was not entitled to a directed verdict based
on his misidentification of the construction company responsible for placing the steel plates across
the highway because it did not specifically identify Jones Bros., Inc. as a potential tortfeasor in its
answer. In essence, Mr. Hodge complains that he was bushwhacked at trial by an “unpled
affirmative defense.” We disagree for two reasons. First, Jones Holding, Inc.’s argument that Mr.
Hodge had sued the wrong corporation was not an affirmative defense governed by Tenn. R. Civ.
P. 8.03. Second, Mr. Hodge was put on notice ten months before trial that he had sued the wrong
defendant.

        There are substantial differences between general defenses governed by Tenn. R. Civ. P. 8.02
and affirmative defenses governed by Tenn. R. Civ. P. 8.03. A general defense directly controverts
or negates one or more element of the plaintiff’s case. Donohoe v. American Isuzu Motors, Inc., 155
F.R.D. 515, 518 (M.D. Pa. 1994); Winford v. Hawissee Apartment Complex, 812 S.W.2d at 295.
In other words, it attacks the sufficiency of the plaintiff’s claim.

        On the other hand, an affirmative defense governed by Tenn. R. Civ. P. 8.03 does not tend
to controvert an element of the plaintiff’s case. George v. Alexander, 931 S.W.2d 517, 527 (Tenn.
1996) (Reid, J., concurring) (stating that an affirmative defense pleads a matter that is not within the
plaintiff’s prima facie case). It is a lineal descendant of the common-law plea of confession and
avoidance which permitted a defendant who was willing to admit that the plaintiff’s declaration
demonstrated a prima facie case to then go on and allege additional new material that would defeat
the plaintiff’s otherwise valid cause of action. 5 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1270, at 411 (2d ed. 1990); Thompson, Breeding, Dunn, Creswell &
Sparks v. Bowlin, 765 S.W.2d 743, 744 (Tenn. Ct. App. 1987) (stating that an affirmative defense
admits all or part of the cause of action).

        An affirmative defense raises new matters not covered by the plaintiff’s complaint which will
defeat the plaintiff’s claim on the merits, even if the plaintiff proves all of the allegations in its
complaint. An affirmative defense generally relies on facts that are not necessary to support the
plaintiff’s case. Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994). Thus,
a defendant asserting an affirmative defense may introduce evidence to establish an independent
reason why the plaintiff should be denied recovery. Russell v. City of Bryan, 919 S.W.2d 698, 704
(Tex. App. 1996). Defendants desiring to assert an affirmative defense must specifically plead the
defense in their answer. Tenn. R. Civ. P. 12.08. If they fail to do so, they will be deemed to have
waived the defense. Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 690-91 (Tenn. Ct. App. 1999);
Steed Realty v. Oveisi, 823 S.W.2d 195, 197 (Tenn. Ct. App. 1991).




                                                  -5-
        Tenn. R. Civ. P. 8.03 specifically identifies seventeen defenses as affirmative defenses. One
of these defenses is the defense of “comparative fault (including the identity or description of any
other alleged tortfeasors).” Following the 1993 amendment that added this defense to Tenn. R. Civ.
P. 8.03, a defendant in a negligence action desiring to introduce evidence that a third party caused
or contributed to the plaintiff’s injuries must affirmatively plead comparative fault as a defense,
George v. Alexander, 931 S.W.2d at 520, and must identify or describe the other alleged tortfeasors
who should share fault. Tenn. R. Civ. P. 8.03 advisory comm’n cmt. to 1993 amend.

         Jones Holding, Inc. was not asserting the comparative fault affirmative defense in this case.
Rather than seeking to lay off all or a part of the fault for Mr. Hodge’s injuries on another tortfeasor,
it was simply asserting that it was not the construction company responsible for the road construction
where Mr. Hodge was injured. Thus, Jones Holding, Inc. was directly controverting or negating two
of the allegations in Mr. Hodge’s complaint – that it was “engaged in road and other types of
construction” and that it was “engaged in the construction of a road in western Lincoln County”
during the summer of 1993. This general defense could permissibly be raised simply by denying the
corresponding allegations in Mr. Hodge’s complaint.

        Mr. Hodge’s protestations of surprise regarding Jones Holding, Inc.’s denial that it was
responsible for the construction project on U.S. Highway 64 are somewhat disingenuous. One
month after he filed his second complaint, Jones Holding, Inc. filed its answer flatly denying (1) that
it was engaged in road and other types of construction, (2) that it was formerly known as Jones
Brothers Construction Company, and (3) that it was engaged in the construction of a road in western
Lincoln County in the summer of 1993. While these denials should have alerted Mr. Hodge to the
possibility that he had sued the wrong corporation, all doubt should have vanished when Mr.
Hodge’s lawyer received the January 17, 1997 letter from Jones Holding, Inc.’s lawyer informing
him that Mr. Hodge had sued the wrong corporation. Thus, Mr. Hodge was aware of the
misidentification problem for ten months prior to trial.

        The puzzling part of this case is Mr. Hodge’s failure to remedy the misidentification problem
when it was brought to his attention. The reasons why his lawyer declined the offer to enter an
agreed order amending the complaint to cure the problem are not reflected in the record and are not
otherwise readily apparent. What is apparent is that Mr. Hodge failed to seize the opportunity to
remedy the error in his complaint that later proved to be his undoing at trial. We cannot fault the
trial court for directing a verdict in Jones Holding, Inc.’s favor when Mr. Hodge’s tactical oversight
finally caught up with him at trial.

                                                   V.

         We affirm the judgment directing a verdict in favor of Jones Holding, Inc. and remand the
case to the trial court for whatever further proceedings consistent with this opinion may be required.
We tax the costs of this appeal to James A. Hodge and his surety for which execution, if necessary,
may issue.

                                                        _____________________________
                                                        WILLIAM C. KOCH, JR., JUDGE



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