### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 7, 2

001 Session
ROBERT ALLEN FAHEY v. FABIEN ELDRIDGE &

ELDRIDGE AUTO SALES, INC.
Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Wilson County No. 10389 Hon. Clara Byrd, Judge

No. M1999-00500-SC-R11-CV - Filed March 22, 2001

The primary issue presented in this case is whether the Court of Appeals erre d in finding that the defendants

waived all issues on appeal by failing to specifically

state these issues in their motions for
a new trial as required by Tennessee Rule of Appellate Procedure 3(e). The defendants were found liable by a jury for the assault

and battery of the

plaintiff, and they were ordered to pay compensatory and punitive damages in the amount of $1.75 million. The defendants filed motions for a new trial, which were denied by the trial court, in p art, becaus e the alleged e rrors were not sp

ecifically enumerated. On appeal, the Court of Appeals found that the alleg ed e rrors were not st ated with sufficient specificity in the motions so as to preserve them for appeal, and it dismissed all issues before it. The defendants then

requested permi

ssion to appeal to th

is Court. We hold

that the defenda

nts’ motions for a new trialdid set forth seve ral issues for re

view in compliance with Rule 3(e), and we remand this case to the Court of Appeals for a determination of these issues on their merits. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Rev

ersed; Case Rem

anded to the Court of A ppeals

W ILLI AM M. B ARKER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOTA , III, A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.

Chantal M. Eldridge, Cookville, Tennessee, and Rick Halprin, Chicago, Illinois, for the appellant, Fabien Eldridge. Samuel J. Harris, Cookville, Tennessee, for the appellant, Eldridge Auto Sales, Inc.

Wil lia m E. Farm er, L eban on, Ten nes see, for the app ell ee, R obe rt A lle n Fah ey.
OPINION

BACKGROUND1 The defe ndant was a lso an owne r and share holder of E ldridge Au to Sales.

2 In a separate criminal action, t he defendant was convicted of attempted second degree murder, sentenced to nine and one-ha lf years in the Department of Correction,

and fined $25,000. The appell ant’s convi

ction was lat

er reversed by the Court of Cri minal Appea ls for prosec utorial misco nduct— the special p rosecutor represente d the victim in the civil case arising from the sam e incident— and the case was reman ded for a n ew trial. See State v. Eldridge , 951 S.W.2d 775 (T enn. Crim. App. 1997). No permission to appeal was sought from this court in that cri minal action.

3 The trial court found that thi s incorporati on by reference t

o another motion was

acceptable, and as the issue is not befor

e us, we r

each no d etermina tion as to wheth er this method by defend ant Eldridg e Auto Sa les prope rly preserved errors for ap peal.

4 De spite these concerns, th e trial cour

t’s Order denyi

ng the defendant

s’ motions f

or a new trial

appea rs t o suggest that the issues pre sented in the motions w ere consid ered on the ir merits: “Upon considering the entire record and the Defenda nts’ Motio ns for New Trial, and a fter hearing arg uments of co unsel, the Court d enied the Defenda nts’ Motion s for New T rial.”
-2- This case arises out of a fight that occurred on November 10, 1992, betwe en the defendan t, FabienEld rid ge, a nd t he p lai nti ff, Rob ert Fahe y. On that night, the defendant went to the plaintiff’s apartment,and when the plaintiff answered the door, the defendant attacked him. The plaintiff filed suit in the Putnam County Circuit Court against El dridge andagainst his emplo yer, Eldrid

ge Auto Sales, Inc., under the doctrine of respondeat superior. 1 The case was later transferred to the Wilson County Circuit Court, where, on October 9, 1998, a jury found b

oth defendants joi

ntly and seve

rally liable for the torts of

assault and

battery. The jury awar

ded the plaintiff compensatory and punitive damages totaling $1.75 million. 2 At 11:02 p.m. on the last day permitted for filing, counsel for both defendants filed motions seeking a ne w trial. The motion of defenda nt Eldridge was i

nartfully d

rafted, and it wa

s written in prose as if it

were a brief. The motion did not contain any enumerated assignme nts of error, and in
someinstances,it did not specifically set forth any lega l grounds upon which a

new trial was soug

ht. Sim ila rly, the motion of defendant Eldridge Auto Sales alleged no specific grounds for relief, but merely incorporated by r

eference the motion filed by defendant Eldridge. 3

At a hearing on the motions on November 24, 1998, the trial judge expressed her concern that she was unable to dete

rmine the precise

is s ues up on whi ch she was be ing re quest ed to r ule. In relevant part, s

he stated, “My

problem is that with

the Motion for New Trial, I don’t have it broken down into issues where I can rule, do I?” After de fendants’ couns

el suggested t

hat she could

submit
a supplemental brie

f with numbered iss

ues, the court stated, “I certainly want to, y ou know, to rule and give you an oppor

tunity to be he

ard on these

issues, but I g

uess I’m a

little confused as

to how to rule on these issues.” A

fter hearing f

urther argume

nt on the motion, the t

rial court stated

that

on the Motion for New Trial, it is going to be my holdin

g that I am g

oing to deny the Motion for New Trial an

d I am going to hol d that it is not properly presented to the Court. Certainly, it does not have the assignment of errors th at is requi red for a jud ge to be able to rule. 4-3-

The defendants

then appealed to the Court of Appeals, where defendant Eldridge raised three broadissues concerning admission or exclusionof certain t estimony. Def endant Eld ridge Auto Sales raised five issues including w hether the evide

nce was insuffic

ient as a matter of

law to establi s h vicarious liabilit

y a nd whether the court improperly instructed the jury on punitive damages. The Courtof Appeals dismissed the appeal, holding simply that “the issues have been waived since they
were not spe cif ica lly stated in the motion for new trial.” The intermediate court characterized the motions for a new trial as “a factual history of the case, a rgumentative in nature, with no grounds for a new trial specified.”

The defendants then requested pe rmissi on to appeal to this Court. We conclude that the defendants

did state severa

l issues in their motions for a

new trial with

enough specificity to preserve those issues for appea

l. Accordin

gly, we re

mand these issues as set forth below to the Court of Appealsfor consideration on their merits. All other issues remaining before this Court from the grant of permission to appeal are pretermitted.
SPECIFICIT Y REQUIREM ENTS OF RULE OF APPELLATE PROCEDURE 3(e) It has long be

en the rule in this st

atethat in order

to preserve errors for appeal, the appellant must firs t br ing the alleged errors to the attention of the trial court in a motion for a new trial. See Memphis St. Ry. Co. v. Johnson , 114 Tenn. 632, 88 S.W. 169 (1905). This re

quirement was init

ially imposed by this Court to make more efficient the process of reviewing “the ever increasing number of appeals,” and we have recognized tha t this practice sig

nificantly a

ids the functions of

the appellate courts by limiting

anddefining the issues for review. See Board of Equalization v. Nashville, C. & St. L. Ry. , 148 Tenn. 676, 680, 257 S.W. 91, 9 3 (1923) (noting that this Court “was constrained to exercise its power of prescribing rules of practice, requiring that errors be first assigned in a motion for new trial presented to the trial court, and . . . limiting the inquiry on appeal to error assigned in the motion”). Moreover, and perhaps most im portantly, m

otions for a new tr

ial also help to

ensure that

the trial judge might be

given an opportunity to consider or to reconsider alleged errors committed during the course of the trial or other matters affecting the jury or the verdict, such as alleged misconduct of jurors, parties, or counsel which either occurred after the trial o

r could not reason

ably have b

een discovered

until after the ve

rdict.

McCormic

v. Smith , 659 S .W.2d 804, 806 (Tenn. 1983). In modern appellate practice, the requirement

of filing a motion f

or a new trial to pr

eserve most

errors is gover

ned by Rule

of Appellate Procedure 3(e), which reads in relevant part,
[I]n all cases tried by a jury, no issue present ed for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct

of jurors, parties or counsel, or other action committed or occurring during the trial of the case

, or other groun

d upon which a new

trial is sought, un

less the same
was specifical ly stated in a motion for a new trial; otherwise such issues will be treated as waived.5 Dec isions render ed before the eff

ective date of

the Rules of Appell

ate Procedure may in many cases b e helpful to understanding the Rules t hemselves. The advisory commiss ion comments indi

cate that t

he Rules “ref

lect a study of existing Te nnessee law a s well a s the rules and statutes of virtually eve ry other state.” T enn. R. Ap p. P. 1 advisory commission comments. Therefore , to the extent that p rior decisio ns from this Co urt concern ing appellate practice are consistent with the Rules, they are certainly persu asive author ity.

6 See, e.g. , Cloyd v. Sta te , 202 Tenn. 6 94, 696, 308 S.W.2d 467, 468 (1957) (“[C]ertain evi dence was imprope rly submitted to the jury.”); Loeffler v. Kjellgren , 884 S.W.2d 463, 472 (Tenn. Ct. App. 199 4) (“The trial court erred in jury instruct

ions in the second trial.”); State v. Gau ldin , 737 S.W.2d 79 5, 798 (Tenn. Crim. App. 1987) (“The instructions give n by the cour t to the jury were unclear and confusing.”).
-4- Although Rule 3(e) requires that the grounds for the motion be “specifically stated,” the Rule is silent as to how spec

ific these grou

nds must be. Decisio

ns from this Court have long stated the standardfor specificity

as being “as spe

cificand certain as the nature of the error complained of will permit.” Johnson , 114 Tenn. at 643, 8 8 S.W. at 170; see also McCormic , 659 S.W.2d at 805 (acknowledging

that Johnson has survivedthe enactment of the Rules). While this standard s ays little
more than does Rule

3(e) itself, several principles may be determined from the Rules and case law as to the degree o

f specificity

needed in a motion f

or new trial to pro

perly pres erve issues for a

ppeal. 5
First, the motion should contai n a concise

factual statement of the error, “sufficient to direct the attention of the court and the prevailing party to it.” Johnson , 114 Tenn. at 644, 88 S.W. at 170- 71. Under this standa

rd, it is clearly

improper to simply allege, in general terms, that the trial court committe d error, either by taking some action or by admitting or excluding evidence; 6 rather, the motion should identify the specific circumstance s giv ing rise to the alleged error so that it may be reasonably

identified in the context of the entire trial. See Sta te v. Ashburn , 914 S.W.2d 108, 114 (Tenn. Crim. App. 1995). Accordingly, a well-drafted motion al leging imp

roper admission or exclusion of testimony, for example, should identify the witness giving the testimony and provide a short and plain summary of the testimony improperly admitted or excluded. Moreover, a well-drafted motion alleging error in the jury instructions should set forth the languag e of the instruction given by the court and th e langu age of the inst ruction rejected by the court if an alternative instruction was requested.
Second, as it is well-settled in law that a general objection is usually not sufficient to assign error, Tenn. R. Evid. 103( a)(1); Jack M. Bass & Co. v. Parker , 208 Tenn. 38, 48, 343 S.W.2d 879, 883 (1961), the motion should also contain aspecific legal ground alleged for the error. A

ccordingly

, in addition to setting forth a concise statement of the factual grounds, a well-drafted motion for a new trial sho uld als o id ent ify, wit h rea son abl e cl ari ty, the legal gro und upon which the t

rial court based

its actions and contain a concise statement asserting the legal reasons why the court’s decision was improper. However , because m otions for a new trial should not be expanded “into all the voluminosity

of ‘briefs’ and printed arguments,” National Hosiery & Yarn Co. v. Napper , 124 Tenn. 155, 171, 135 S.W. 780, 784 (1911), the movant is not required to identify such errors in the motion withthe same precision expected in the appellate courts. Therefore, precise citation to a rule, statute,
orc ase as the legal ground for the alleged error is normally not required to preserve the issue fo r7 This is not t o say that t

he tria l court cannot re

quire prec

ise cit ation to author

ity i n consider

ing a moti

on for
a new trial. It is only to say that such pre cision is not otherwise required to preserve the error for appeal under Rule 3(e), so long as the legal ground for the alleged error is clearly a nd fairly presen ted to the trial co urt.

8 To provide one example of the application of the Rule 3(e) standards for specif icity, we note the l

anguage of the defendant

s’ assig nment of error on t

his issu e: Although Mr. Fahey purports t o have a peaceful cha

racter and denies

having ever

been in a fight with anyone pr ior to Novem ber 10, 1 992, he h ad, in fact, initiated a fight with David Nash in November, 1991, in a similar fashion to his attack on Defendant Eldridge, and agai

n, the fi ght was over Defendant Eldridge ’s sister.

In addition,

after November 10, 1992, Mr. Fahey wa s intervi ewed by Geoffrey Davidian, a journalist who was writi ng a story on the fight and the [Defendant] Eldridge’s sister, and following the inter

view, Mr. Fahey evidentl y had a change of hear

t and telephoned Mr. Davidi an and threatened

him if he published any informati on he had provided during the interview. Similarl y, Mr. (continued ...)
-5- appeal under Rule 3(e), although to the extent that citation to authority aids in fairly bringing the legal nature of the error to the attention of the trial judge, such a practice ought to be enc ouraged. 7 Finally, Rule of Appellate Procedure 1 provides that the Rules “shall be construed to secure the just, speedy, and inexpensive determination of every pr oceeding on i ts merits.” Accordingly, when
an appellate

court reviews a motion for a new trial under Rule 3(e), it should view the motion in the light most favorable to the appellant, and it should resolve any doubt as to whether the issue and its grounds were specifically stated in favor of preserving the issue. Any other me thod of review wo

uld result in needlessly

favoring “tec

hnicality in form” over

substance, a practice specifically discourag ed by the comments to Rule 1. Thus, while courts cannot find error where non e has actually been alleged, no matter how liberal a construction is given to the motion, Jacks v. Williams- Robinson Lumber Co. , 125 Tenn. 123, 128-29, 140 S.W. 1066, 1067 (1911) (“But this court w ill not search the record at large to find errors. The presumption is that the judgme

nt of the lower co

urt is correct.

The burden is upon the appellant to sp ecifically point out the errors complained of, and affirmatively show that they exist.”), courts may not deem a motion for a new tria l insufficient to pre serve er rors for appeal merely bec

ause it fails to enumera

te specific issue

s. Accordingly

, just as parties mus

tendeavor to specific ally state th

e issues raised so

as to avoid any

potential for futu

re waiver, appe

llate courts should not lightly dismiss an issue on appeal under a strict or technical application of Rule 3(e). Having reviewed the appellant’s motion for new trial with these general principles in mind,
we find that the Cou rt of Ap peals erred in di smissing the appe

al pursuant to Rule o

f Appellate Procedure3(e). As the inter mediate court not

ed, it is true that th

e defendants’ mo

t ions were not models t o be followed whe n seeking to brin

g alleged er

rors to the attenti

on of a trial cour

t or to preservethose

alleged errors for appeal. However, from our examination of the defendants’ moti

ons, we have been able to identify, with diligent and patient effort, at least twelve alleged errors that were statedwith sufficient specificity so as to be preserved for appellate re view. These issues are as follows:

1. Whether

the trial court erred in excluding evidence of the pla intiff’s prior threats or of his subsequent statements to others to impeach the plaintiff’s testimony that he was a peaceful person. 88 (... continu ed) Fahey had made thr

eats aga inst Def endant Eldr

idge and his sister pr ior to the fight and his sister’s homicide

which had b een com municated to Defend ant E ldrid ge’s sister. The Court disall owed any testimony of previou s threats or sub sequent ac ts and limited the defendan ts’ proof to th e events of Novem ber 10, 1 992. Although not ar

tful ly dra fted t o ensur e clar ity, we have been abl

e to det ermine , wit

h somepatience, t

hat the issue here allegedis whether

the trial court erred in excluding testimony concerning the plai ntiff’s t hreats and actions toward others. The motion

sets fort h a suffi cient fact ual basis by identify

ing the tes

timony excluded as

that of David Nash and Geoffrey Davidian, and by conci sely i dentif ying t he subst ance of t hat tes timony. Moreover, th

e legal basis f or the as signment

of
error is that this

testimony was properly admissible to i mpeach the plaintiff’s statements that he was a peaceful person. While this l

egal basis is not

stated as precis

ely as w e could de sire, Rule 3(e ) looks to the substance and not to the technical form or wording of the motion.

9 To provide another example of the application of the Rule’s s pecifi city s tandards,

the defe ndants’ motion on this issue sets forth this assignment of error as follows:

Similarly, Mr. Fahey was permitt ed to call David McClell en to testi

fy at trial, although he had

only listed him as a witness for the first time on August 24 , 1998. M r. McC lellen was per mitted to testify that on November 10, 1992, Defendant Eldridge,

Linda Eldridge and Mr. Chambers’ entered Bud’s Tavern where he bartended, they were looking for Mr. Fahey , and Linda Eldridge dr opped a butcher knife from under her arm.There has never been an al legation si

nce November 10, 1992 through the present that Defendant

Eldridge entered Mr. Fahey ’s apartment with a kit chen knife or ev

er possessed
a kitchen knife du ring the fight. Nonetheless, Mr. McClell en was permitt

ed to testi

fy, and th

e Jury was permitted to consider h is testimony. On ce again, the motion was inartf ully drafted, and the is sue presented is whether the tri al court impro perly allowe d evidence that Linda El dridge dropped a butcher kni fe from under her

arm. The motion sets

forth an adequat

e factual basis by identifying

the evidenc e contested , i.e. , the test imony of David McClellen, and it sets

forth the s

ubstance of th

at testimony.

Although les s clear, t

he motion also se

ts forth a n adequate legal

basis for t

he motion as one of irrel evance to any issue at tri

al. While this interpretat ion of the motion’s asserti on of legal grounds is exceedingly generous, t he interpretation is wi

thin the meaning of Rule 3(e).
-6- 2. Whether

the trial court erred in excluding evidence of the plaint iff’s subsequent acts to impeach the pla

intiff’s testimony

that h e has ps ychological injuries resulting from the fight with, and from his fear of, Defendant Eldridge.

3. Whether

the trial court erred in admitting the plaintiff’s testimony concerning the existence of a lock-blade knife when no other eviden ce co uld establish the existence of such a knife.

4. Whether

the trial court erred in admitting testimony that Lind a Eldrid ge droppeda butcher knife from under her arm during the evening of the assault when no other allegation s were made t hat Defendan t Eldridge entered Mr. Fahey’s apartment with a kitchen knif

e or ever posses sed a kitchen knif e during the fig

ht. 9

5. Whether

the trial court erred in admittin g evidence of Defendant Eldridge’s prior conviction for

possession of drugs because its probative value was outweighed by the danger of unfair prejudice.-7-

6. Whether

the tria l court e rred in perm itting evi dence that D efendant El dridge
was on parole at

the time of the fight because its probative value was outweighed by the danger of unfair prejudice.

7. Whe ther

a federal proba

tion officer was

“unavailable” f

or purposes of this

trial, andif so, whether the trial court erred in not allowing the previously sworn testimony of this officer to be read into the record.

8. Whether the trial court erred in permittingthe plaintiff to read to the jury the deposition of Dr. Gaw, who testified that the plaintiff’s seizure could be related to head trauma sustained in fight, when no other evidence established that the plaintiff suffered head trauma as a

result of the assa

ult.

9. Whether

the trial court erred in allowingthe plaintiff to testify as to his belief concerning the motivation for the attack when the plaintiff

’s earlier swor

n statements contradicted his

reasons given a

t trial for the fig

ht.

10. Whether

the evidence was insufficient as a matter of law to submit to the jury the iss ue o f Def end ant Eld rid ge Au to S ale s’ v ica rio us l iab ili ty.
11. Whether

the trial court erred in submitting evidence of the defendants’ current financial condition for purposes of calculating the punitive damages award.

12. Whether

the trial court erred in failing to grant a continuance so that defendant Eldridge’s principal attorney could be present for all of the te stimony.

In all of these issues, we conclude that the defendants have minimally, but

adequately

, alleged fac

ts identifying

the specific error alleged to have been committed by the trial court. In addition, the legal grounds were genera

lly stated wi

th sufficient specificity so as to draw our atten

tion to the allege

d basis for the error, althoug h in most cases the d efendants did not p

rovide precise c

itation to authority

in stating the legal gr ounds for the alleged errors. Nevertheless, because the defendants have state d adequate factual and legal grounds for the alle ged errors, R ule 3(e) can r equire noth ing m ore t o preserve these issues for appeal. Having found that the def

endants sufficie

ntly alleged twelve issues for review in their motions for a new trial, it may be

helpful to illustrate why other issues were not sufficiently pr eserved as error for appeal. As a ty

pical example of thi

s failure to meet the minimum requirements of Rule 3(e), the defendants trie

d to allege one e

rror as follows: During his deposition and at trial, Mr. Fahey testified that Defendant E ldridge pushedhim seven feet in the air wh ere he flipped a

nd landed with

his head closest to the door. Although Defendant Eldridge notified Mr. Fahey’s attorne ys that he intended to introduce expert testimon y to rebut Mr. [Fahey]’s testimony concerning the dynamics of the figh t, Defendant Eldri dge’s origina

l expert witness bec

ame-8-

unavailable

to t est ify. Although De fendant Eld ridge attempted to substit ute Robert S. Thrasher, an expert on the same subject matter and for the same purpose, the Court disallowedhis substitution, and the defendants werep revented from presenting evidencethat Mr. Fahey’s testimony co nce rning the dynamics of the fight were physically impossible.

The issue presented b

y this paragraph is presumably whether the trial court erred in not permitting the defendants

to present a seco

nd expert witness af

ter their first be

came unavail

ab le to testify. The motion sets forth an adequate factual basis for the error by ide nti fying the e

xpert as Robert S. Thrasher, and by concisely stating wha this testimony was to have been. However, the motion does notassert the legal grounds relied upon by the court for excluding the e xpert, and it does not setforth any legal ground identify

ing why the court’s exclusion was improper. Instead, the motion provides only a general statement that “the Court disallowed his substitution, and the defendants w ere prevented from presenting evidence that Mr. Fahey’s testimony concerning the dy

namics of th

e fight were physically

impossible.” As we stated earlier, the court will not find an error, even under a liberal interpretation of the motion, where no error has actually been alleg ed, andwe conclude that this issue, and others like it, were not properly preserved for appe al under Rule 3(e).
CONCLUSION

In summary, we

hold that the defe

ndants’ motions for

a new trial state

d twelve issues wit

h sufficient specificity under

Rule of Appellate

Procedure 3(e)

so as to preserve

these issues for a

ppeal. Before an issue can be properly preserved in a motion for a new trial under Rule 3(e), a well-pleaded motion should (1) alleg e a sufficient fa

ctual basis

for the e rror by set

ting forth the spe

cific circumst ances giv ing rise to the alleged error; and (2) allege a sufficient leg al basis for the error by identifying

the trial court’s

claimed legal b

asis for its actions and some articulation of why the court erred in taking such actions. Moreover, appellate courts should review a motion for a new trialin the light most likely

to preserve the issue alleged, although courts cannot create an err or wherenone has been legitimately preserved.

The issues identified by this Court as properly preserve d under Rule of Appellate Procedure 3(e) are remanded to the Court of Appeals for consideration on their merits. As it appears from the record that the trial court may

not have consider

ed these issues on t

heir merits eithe

r, the intermedia

te court may, in its disc

retion, first rem

and this case to the

Wilson County Ci

rcuit Court for a hearing
on these issues. All other issues pending before this Court from our grant of permission to appeal are pretermitted.

Cos ts o f th is a ppe al a re as ses sed to t he p lai nti ff/ app ell ee, R obe rt A lle n Fah ey.

_________________________________-9- WILLI AM M. BARKER, JUSTI CE