1 Rule 10 (Co urt of Ap peals). Memorandum Opinion . -- (b) The C ourt, wit h t he concurrence of all j udges partici pating in the cas

e, may affir

m, reverse or

modify the act

ions of the trial court by memorandum opinion when a formal opinion would h ave no precedenti al value. When a case is decided by memorandum opinion i t shall be designated "MEM ORA NDU M OP INION ," shall not be pu blished, an d shall not b e cited or re lied on fo r any reas on in a subseq uent un related case

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### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON April 2000 Session ELLA FRANCES PRUETT v. WAL-MART STORES, INC. A Direct Appeal from the Chancery Court for Madison County No. 50067 The Honorabl e Whit LaFon, Circuit

Judge (retired) , Sitting by Designati on

No. W1999-01026-COA-R3-CV - Filed August 17, 2000

Plaintiff sued employer

under American

s With Disabilities Act and case was tried before a jury. After a jury verdict for plaintiff, defendant moved for judgment notwithstanding the verdict which the court granted. Plaintiff has appealed. The r ecord reflect

s that defendant f

ailed to move for a directed verdict at the conclusion of all of the evidence and also reflects that no judgment was entered on the jury verdict. Appeal dismissed.

Tenn.R.App.P. 3; Appeal as of Right; Appeal Dismissed W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined. Hite McLean, Jr. , Memphis, For Appel lant, Ella France

s Pruett Charles H. Barnett, III; Michael L. Russell, Jackson, For Appellee, Wal-Mart Stores, Inc.

MEMORANDUM OPIN ION 1

___________________________________________________________________________ This case, which

is before us a

second time, involves a claim under the federal Americans withDisabilities Act (hereinafter the ADA) . Plaintiff/appellant, Ella Franc es Pruett (hereinafter

### -2-

Pruett) appeals the tria

l court’s order g

ranting the defe

ndant’s/appelle

e’s, Wal-Mart’s, moti

on to set aside the jury verdict. On January 25, 1995, Pruett filed this lawsuit alleging viol a tions of the ADA, the Discrimination in Employment Act (ADEA), the federal Employee Retireme

nt Income and Sec

urity Act (ERISA), and the Tennessee Human Rights Act (THRA) based on Wal-Mart’s fai

lure to assign her to the position of

answe ring telephones. W al-Mart filed a m

otion for summary ju

dgment, asserting that

i t had a legitimate, non-discriminatory reason for not assigning Pruett to a position answering the tele

phones. The trial court granted Wal-Mart’s motion stating that the decision not to place Pruett in the telephone answering position was a business decision and had nothing to do with age, disability, or medical bills. Pruett appealed the trial court’s decision to this Court arguing that summary judgment was improper because she produced suf

ficient evidenc

e to rebut Wal-Mart’s alleged nondiscriminatory reason notto assign her to a telephone position. We affirmed the trial court’s decision with regard to the claims under the ADEA, THRA, ERISA, and Pruett’s ADA claim that she was not given the job because of Wal-Mart’s discriminatory animus. However, based on the record at that time, we held that disputed issues of material fact remained regarding Pruett’s claim under the ADA thatWalMart failed to accommodate her disability and remanded the case to the trial court. Upon remand, the jury returned a verdict in favor of Pruett awarding her $7,500.00 in back pay. The defendant filed

within thirty days of the jury verdict “Motion of Defen

dant Wal-Mart to SetAside Jury Verdict.” A memorandum filed in support of the motion is styled, “Memorandum In Support Of

Defendant’s Motion For Judgment Notwithstanding A Verdict.” Thus, it is apparent that Wal-Mart is tr

eating the motion a

s a motion for a judg

ment notwithstandin

g the verdict. The only issue for review is whether the trial court erred in granting t he judgment notwithstanding the verdict. We w ill not reach the me

rits of thi s issue for two reasons: First, the record reflects that no motion for a directed verdict was made at the conclus ion of all o f the evidence. Significantly, Wal-Mart’s motion itself states that Wal-Mart moved for a directed verdict at the close of plaintiff’s proof. A motion for a direc

ted verdict must be

made at the concl

usio n of the proof in order for it to be considered by the trial court on a post-trial motion and by the Court of A

ppeals on appeal. See Potterv. Tucker , 688 S.W.2d 833 (Tenn. Ct. App. 1985) ; Tenn.R.Civ.P. 50.02; 4 Tennessee Practice , MacLean, Bonnyman and Brandt (3 ed.) § 50:4. Second, the record

reflects that the trial court has not entered judgment on the jury verdict. Thus, there is no final judgment from which the appeal lies. See T.R.A.P. 3(a).

### -3-

Accordingly , the appea l is dismissed without p rejudice. Costs of

appeal are asse

ssed to appellant, Ella Fr

ances Pruett.

__________________________________________ W. FRAN K CRAWFORD, PRES IDING JUDGE, W.S

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