### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON HAROLD RUSSOM and wife, DORA RUSSOM v. PHILIP J. McCLORE

An Appeal from the Circuit Court for Shelby County No. 84656 T.D.; The Honorable D’Army Bailey, Judge

No. W1999-02215-COA-R3-CV - Decided May 10, 2000

This appeal arises from

an action to recover for personal injuries sustained by plaintiff, Mr. Russom, and a loss of consortiu

m claim filed by pla

intiff,Mrs. Russom. Mr. Russom and Mr. McClore were involved in a t raffic a ccident caused by defendant McClore. The Russoms filed suit to recover damages in the Shelby County Circuit Court. The o

nly issue at trial wa

s the amount of dama

ges to be awar ded to the Russoms. The jury returned a verdict for Mr. Russom in the amount of eight tho usand dollars. The jury failed to award Mrs. Russom any damages for her loss of consortiu m claim. The Russoms subsequently filed a motion for new t r ial, or in the alternative, a Suggestion of Additur that was denied by the trial court. The Russoms have appealed. Tenn.R.App.P. 3; Appe al as of right; Judgm

ent of the Circuit

Court is Affirme

d.
H IGHERS , J., delivered the opinion of the court, in which C RAWFORD , P.J., W.S., and L ILLARD , J., joined. Ronald Krelstein, Memphis, Attorney for Appellants, Harold Russom, et ux

Stewart C. Stallings, Memphis, Attorney for Appellee, Philip J. McClore
OPINION
On appeal, the Russoms assert that the trial court erred in de nying their motion fo

r new trial. Based on the follow

ing, we affirm the

judgment of the tria

l court. Facts and Procedural History
Mr. Russom and Mr. McClor e were involved i

n an auto collision in Memphis, Tennessee on May 15, 1996. The acc ident occurred w

hen Mr. McClo

re ran a red light and broadsided Mr. Russom’s truck while both parties were attempting to cross an intersection. On January 24, 1997, Mr. Russom filed suit to re cover damages f

or personal injur

y and loss of income . In addition, Mrs. Russom sought recovery for loss of consortium caused

by her husband’s injuries. Prior to trial, Mr. McClore conceded liability in causing the accident. As a result, the only trial issue was the amount of damages, if an

y, to be awarded

to the Russoms.1 In addition, Russom test ified that he was unable to do certain physi cal activi ties that he had done

prior to the accident, such as fi shing and hunti ng. 

### -2- A jury trial on the matt er was held in December 1998. At trial, Mr. Russom testified regarding a back injury that resulted from the accident. According to Russom, he was in persistent pain and sought treatment

from two doctors in the period following the accident. Russom testified that he had not suffer

ed from back pain

prior to the acci

dent an d was in good health. In addition, the deposition testimony of Russom’s doctor,

Dr. Friedman, wa

s presente

d. This testimony indicated that Rus som suffere d from “chronic muscle-tendon-ligament strain” that probably resulted from the accident. 1 According to Frie dman, the condition

would gradually improve. Russom also offered medical bills de tailing his treatment. These bills totaled around seventy three hundred dollars.
Russom offered some ev idence indicatin

g a decreased e

arning capacity

from the time of the accident until December

1996. However, during this period, Russom continued to work in a “light duty status” at his job as an auto body repair person. In summary, Russom earned twenty-one thousand dollars in 1994 and twenty-five thousand dollars in 1995, the years prior to the acci dent. In 1996, the year the accident actually occurred, Russom earned twenty-three thousand dollars. At the time of trial, Mr. Russom had earned approx imately thir ty-one thousand dollars in 1998. According to Russom, his increased income was because he had learned to “work smarter.”
Mrs. Russom testified about her husband’s condition following the accident and the effect this had on the Russom household. According to Mrs. Russom, her husband did not sleep well and was often in pain. In addition, she testified that Mr. Russom was no lon ger able to help he r with household chores

. The jury returned a verdict of eight thousand dollars for Mr. Russom, allocating n othing to Mrs. Russom for her loss of consortium claim. Seeking a grea ter re covery, the Russoms filed a motion for a new trial, o

r in the alternati

ve, a suggestion f

or additur claimin

g that t he verdict was inadequate as a

matter of law. The motion was denied by the trial court. Thereafter,the Russoms filed this appeal.
On appea l, the Russoms assert that the trial court erred in upholding the jury verdict and refusing to grant them a new trial based on the inad equacy of the damage award. In addition, the Russoms assert that the trial court erred in failing to instruct the jury on the iss ue of preexisting injury and aggravation of pre-existing injury. Analysis
Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure, findings of fact in a jury trial will be set aside only if there is no material evidence to support the verdict. See Tenn. R. App. P. Rule13(d); Scott v. Jones Bros. Constr. , 960 S.W.2d 589 (Tenn. Ct. App. 1997). In other wor ds, when a trial cour t approves a jury v

erdict, we may on

ly review the rec

ord to determin

e

### -3-

whether it contains material evidence to support the jury's verdict. This Court will not reweigh the evidence and consider where the preponderance lies. Instead, we must determine whether

there is any material evidence to support the verdict, and, if there is, we must affirm the judgment. Jackson v. Patton , 952 S.W.2d 404, at 405 (Tenn. 1997 ); Overstreet v. Sho

ney's, Inc. , 4 S.W.3d 694, at 718 (Tenn. Ct. App. 1999) citing Reynolds v. O zark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn.1994); Whitaker v. Harmon , 879 S.W.2d 865, 867 (Tenn. Ct. App.1994).
A. Motion for New Trial
A trial court

is given wide latitu

de in granting a mot

ion for new trial,

and a reviewing court will notoverturn such a decision unless there has been an abuse of discretion. Loeffler v. Kjellgren , 884 S.W.2d 463, 468 (Tenn. App. 1994). Accordingly, the refusal to grant a motion for new trial is a discretionary decision of the trial judge. Esstman v. Boyd , 605 S.W.2d 237, 240 (Tenn. App. 1979); Seay v. City of Knoxv ille , 654 S.W.2d 397, 398-399 (Tenn. App. 1983); Miller v. Altman Const. Co. , 666 S.W.2d 466, 468 (Tenn. App. 1983) . On appeal, our review is limited to determining whether the trial court abused its dis cretion in making this decision. Herbert v. Brazeale , 902 S.W.2d 933, 936 (Tenn. Ct. App.1995); Ladd by Ladd v. Honda Motor Co., Ltd. , 939 S.W.2d 83, 104 (Tenn. App. 19 96). Under t his standard, the Russoms must prove that the lower court abused its di

scretion in failin

g to grant a motion f

or new trial.
On appea l, the Russoms assert that the trial court erred in failing to grant their motion for new trial in the underlying action. The Russoms based this motion on the alleged inadequacy of the damages awarded by thejury. According to the Russoms, the damage award was not supported by material evidence. For the following reasons, we find that the damage award was sup ported by material evidenc

e and that the tria

l court did not err

in refusing to gra

nt the motion for ne

w trial.
In a jury trial, the jury determines the a mount of damages,

if any, to be awarded. If the trial court disagrees with the

amount of the verd

ict, findin g it to be ei ther excessive or inadequate, the trial court may set a

side that j udgment. Foster v. Amcon Int'l., Inc. , 621 S.W.2d 142, 148 (Tenn.1981). As an alternative, the trial court may grant a remittitur or anadditur in lieu of granting a new trial. See Te

nn. Code Ann. § 20-1 0-102 (1994); Hardesty v. Service Merchandise Co., Inc. , 953 S.W.2d 678 at 681 (Tenn. Ct. App. 1997).
The amount of damages awarded in a jury verdict and approved bythe trial judge is entitled to great weight on appeal. Karas v. Thorne , 531 S.W.2d 315, 317 (Tenn. Ct . App.1975). Where issue is taken regarding the inadequacy of the amount of the verdict, our

review is subject

to the rule that the jury’s award should not be disturbed if it is supported by any material evidence. See Hunter v. Burke , 958 S.W.2d 751, 757 (Tenn. Ct. App.199

7); Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn.1994); Whitaker v. Harmon , 879 S.W.2d 865, 867 (Tenn. Ct. App.1994). Under this standard, we find that the damage award should be upheld.
At trial, the Russoms

presented evidence of medical expenses totaling around seventy-three hundred dollars. The Russoms were unable to show evidence of any other significant harm that would result in additiona

l damages. Mr. Russ

om’s income did

not noticeably decline following the2 Rule 36( a) of the Te nn. R. App. P. provi de s in relevan t part: “Nothi

ng in this

rule shall

be construed as requiring relief be granted to a party responsible for an error or who failed to take w hatever a ction was re asonab ly available

to prevent

or nulli fy the har

mful eff ect of an er

ror .” (emphas

is added)



### -4- accident. In fact, his income showed improvement in the years after the incident and Russom was able to continue working. Excer p ts from the deposition of Russom’s physician indicated that Russom would fully recover in time. Based on the aforementioned, we find that the damage award w as supported by material evidence. Accordingly, the trial court did not abuse its discretion i n denying a motion for new trial premised on the inadequacy of the damage award. B. Jury Instruction
As a secondary issue, the Russoms assert that the trial court erred in failin g to instruct the jury on the issue of preexisting injury and aggravation of pre-existing injury. We findit unnecessary to address this issue. The Russoms did not object to the charge as given, and did no t make a request for a special charg

e including an instr

uction of preexis

ting injury. In orde

r for an appella

nt to predi cate error on an alleged omission in the jury charge, the appellant must have made a n appropriate request for the omitted instruction at trial. See Rule v. Empire Gas Corp ., 563 S.W.2d 551, at 554 (Tenn. 1978) citing Rule 51.02 Tenn. R. Civ. P.; see also Rule 36(a) Tenn. R. App. P. 2 This issue is without merit.
Conclusion Based on the foregoing, the judgment of the trial court is hereby affirmed. Costs on appeal are taxed to the appellants, Harold and Dora Russom, for which execution may issue if necessary.