# FILED August 3, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE BARBARA CORNETT, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01A01-9808-CV-00405 v. ) ) Warren Circui t DEERE & COMPANY, ) No. 8344 GENERAL E

QUIPMENT a

nd ) VERNON KEITH, ) ) Defendants/Appel

lees. )

) APPEAL FROM THE CIRCUI T COURT FOR WARREN COUNTY THE HONORABLE JOHN TURNBULL PRESIDING
HELEN LOFTIN CORNELL 3635 Woodmont Boulevard Nashville, Tennessee 37215 CHARLES E. HARDIMAN, JR. 309 West Due W

est Avenue Madison, Tennesse

e 37115 ATTORNEYS FOR PLAINTIFF/APPELLANT SAMUEL L. FELKER JOHN C. HAYWORTH BASS, BERRY & SIMS PLC 2700 First American Center Nashville, Tennessee 37238 ATTORNEYS FOR DEFENDANT/APPELLEES

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. CAIN, J.1 The judge from the first trial recused himself afte

r granting the

motion for new trial. -2-



# OPINION

This personal injury case a ros e when Plaintiff B arbara Cornett sustain ed injuries while ope rating a lawn m

ower manufa

ctured by Def

endant Deere & Company and

sold by Genera

l Equipment

and its owner Ver

non Keith. Ms. Cornett sued, allegi ng negligence, b reach of warrant y, and st rict li abilit y. She also sought punitive damages. The first trial concluded with a directed verdictfor the defendants at the c onclusion of the eviden ce. The trial c

ourt, however, granted Ms. Cornett a new trial. 1 In the second trial, the courtgranted directed verdicts to Vernon Keith on all issues, to

both General Equip

ment and Deere & Company on the issues of negligence and punitive dam a ges and to General Equipment on the strict liability clai m. The jury returne d a defense verdicton the remainin

g br each of warranty and strict liability

claims. Ms. Corne tt app eals, alleg ing t en err ors. We affir m. Barbara Cornett injured her right arm and l eft knee in June

1993, when she drove her father' s riding lawn mower off a three-foot embankment. According

to the tria

l c ourt, the parties stipulated that Ms. Cornett sustained injuries in the amo unt of $5,000. The accident at issue occurred after the mower' s third u se as Ms. Cornett was attempting

to turn left and run th

e mower paralle

l to a retaining

wall. Its steeri ng pu rportedly locked and t he mower would not t

urn. Ms. Cornett maintained she had insufficient time to brake before the mower careened over the embankment because both the clutch and the brake had to be engaged before the mower would stop.-3- For the second trial, Ms. Cornett retained threeexperts. They theorized thatthe metal in the mow er's wheel stops w

as defective and t

he whee ls bent outward, allowing the steer ing mechanism to lock i

n a fully steered posi

tion, causing Ms. Cornett's inju ry. Her experts

also determined tha

t (1) misassembly of the gasoline over-flow

hose could permit it t

o entangle with

the steering sector gear; (2) the plastic housing for the steering sector ge

ar, steering rod,

and gasolineover-flow hose, which they identifie d as the steering pedestal, was so weak, it could fracture,

resulting in a loss of s

teering; and (3) th

e two- pedal braking system represente d a design

defect and

an unreasonable dang

er. Prior to trial, the court limited these experts' testimony to the mower's wheel stops and excluded testimonyconcerning the steering pedestal or gasoline overflow hose. During voir dire, several ven irepersons admitte d to knowing Ve rn on Keith. The trial court in

quired whether the

ir relationship wit

h Ke ith was such that they would feel discomfort if they had to decide the lawsuit against him. Thosethat unequivocally answered in the affirmative were excused. The court permitted additional voir dire by counsel on those who were unsure. Atthe close of the

evidence, the trial court gra nted directed verdi

cts to all the defendants on the issues of negligence and punitive dama ge s. General Equipment

was also granted a directed verdict on the stric t liability claim. The courtdirected verdicts

for Vernon Keith

on a ll issues . The jury found fo r the defendants on the re maining issues. After the verdict was announc

ed, the foreman complimented the members of the jury and then stated, "due to the fact thatthe plaintiff fail

ed to proof [sic] be

yond a shadow of a doubt it was faulty equipment, we had to g o the way we did."-4- I. Ms. Cornett argues that the trial court erre d in excluding her expe

rts' testimonyconcerning defect s on th e m ower other than the whee l stops. Appellees respond that the absence of any e vidence supporting

the other theories rendered them irreleva nt. Trial courts perform a gatekeeping function t o guard the jury from considering

as evidence specula

tion presen ted in the guise of legi timate scientifically

based expert opinion. McDaniel v. CSX Transp., Inc., 955 S.W.2d 259, 263 (Tenn. 1997), cert. denied, __U.S. __, 118 S. Ct. 2296, 141 L.E d.2d 157 (1998). When an expert's o pinion lacks a factua

l basis, it has no proba

tive value and is therefore irrelevant and inad missible. See State v. Williams , 657 S.W.2d 405, 412-413 (Tenn. 1983 ), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d. 753 (1 984). An expert' s speculative testim ony thata certain thing is pos sible is no evidence a t a ll. H is opinion that a certain thing is possible is nomore valid than the jury's own specula

tion as to what is or is not possible .

. . . The mere p

ossibility of a causal

relationshi

p, witho ut more, is insuffic

ient. Kilpatrick

v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (q

uoting Lindsey v. Miami Developm ent Corp. , 689 S.W.2d 856, 861-861 (Tenn. 1985) ). The exclusion of expe rt testimony is rev iewed for abuse of disc retion. See State v. Tizzard , 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994). The excluded testimony at issue was as follow s: (1) the over-flow

hose may have interfered with the steering gears; (2) the steering pedestal could have fracturedand interfered w ith the steering; and (3) the two-pedal bra king system
was unreasonably dangerous. Ms. Cornett has pointed to no evidence showing thatthe over-flow hose

on the mower she use

d actually did interf

ere with the steering gears or that the ste ering pedestal actu

all y fracture d. Absent such2 The trial took place in McMinnville , Tennessee, a fairly sm all town where "everybody

knows everybody else," acc ording to the trial court. The court excused Mr. Keith's nei

ghbor. Ms. Cornet

t used a peremp

tory challenge on the juror who had busines s dealings with Mr. Keit h. -5- evidence, there was no factual basis for admitting th e testimony, rende

ring it purely speculative. Ms.Cornett's own test imony that the accide

nt oc curred so quickly she never applied the brakes rendered i

rrelevant and inadmissible the test imony that the two-pedal br aking system was un reasonably dangero us. I n light of the total absence

of proof that the mow

er at issue sho wed any signs of these defects and

the undisputed evidence that no attempt to b rake was made, we cannot s ay the trial court abused its discretion in excluding the testimony at issue. Id. II. Ms. Cornett argues that the trial court erred in failing to excuse three jurors for cause . Sh e claims the f irst had lived near V

ernon Keith, the se

cond played baske tball with h im, and the third had business dealings wit h him over the y ears. She asserts in her brief, "[a]lthough counsel for Plaintiff req uested tha

t th ese jurors be challenged for cause and removed from the jury , the Court refused t o do so, and these per sons comprised pa

rt of the June 8-10, 1998 j ur y in this case." The record does not su pport Ms. Cornett's statement that all three jurors served on the jury and that she challenged them all for cause. 2 Only one of these three ve nire persons, the individual who played basketball with Mr. Keith, Mr. Vinson, actually serve

d as a juror. W

hen asked if his rela

tionship with Mr. K

eith would impede his abili

ty to act im

partially, thi s juror stated, " I don't think so, but itmight make me a little uncomfortable." He later stated he would try not to let-6-

the relationship interf

ere if it was a close case,

but added that he "did not kn ow for sure." The trial court then allowed couns el to question th e juror further. Ms. Cornett never chal

lenged this decision.Nor did she question the juror further regardin

g his relat ionship with Mr. Keith

. Compare Ricketts v. Carter , 918 S.W.2d 419 (T enn. 1996). Furthermore , Ms. Cornett fa iled to request the courtto strike the juror for cause or pere

mptorily strike him herself. The issue is, therefo re, waived. T enn. R. App. P.

36 (a); see State v. Laute nschlager , No. 02C01-9702-CC -00051, 1998 WL 280 48 at * 3 (Tenn
. Crim. App. January 26, 1998) (Tenn. R . App. P. 11 appl ication denied ). "The right to challenge propter defectum [on account of an alleged legal disqualification] en ds when the jurors are a ccepted and sworn.

By waiver the juror becomes a legal juror." Manning v. State , 155 Tenn. 266, 272, 29 2 S.W. 451, 453-454 (192 6). III. Ms. Cornett argues that

the trial courterred in failing to grant a change of venue, mistri

al or new trial ba

sed the ju ry's familiarit y with the par ties. We disagree. In all c ivil jury trials, "the venue may be changed, at any tim e before trial, upon good cause s hown . . . ." Te nn. Code A nn. § 20-4-201 (1) (S upp. 1995). The party seeking a change of venue shall make a st

ateme nt of facts, in wr

iting, under oath or affirmation,

that he verily

believes that, owing to prejudice, or othe r caus es, then existing, h e cannot have a fai

r and impartial trial in the

county, . . . where the cause is pending, the truth of which state

ment shall, in a

court of rec ord, be verified and supported by th e oathof at least three (3), .

. . respectable and dis interested persons

. Tenn. Code Ann. § 20-4-203 (1980). The denial of a m otion for change of venue-7-

is ordinarily reviewed for abu se of discretion. See Tennessee Gas Transmission Co. v. Oakley , 193 Tenn. 638, 642, 24 9 S.W.2d 880, 881 (1952)

. Prior to trial, Ms. Cornett moved for a change of venue on

the ground thatWarren County

was an inconvenient

forum for her att orneys and witnesses and an impartial j ury could not be obt ained due to the venire's fam iliarity with Ms. C ornett, Mr. Keith, and G eneral Equipm

ent. As verify

ing and supporting

w itnesses, Ms. Cornett offe red David Cornett,

Carey Ham

brick, one of Ms. Cornett's witnesses, and Ms. Cornett's two attorneys. After reviewing Appellees' response to the motion , Ms. Cornett provided additional witnes ses. We see no abuse of discr etion here. The

reasons underlying Ms. Cornett's motion for change of venu e were insufficient to e stablish "good c ause." We reject her cont

ention that mer

e knowledge of

a pa rty's existenc

e, without more, justifies a change of v enue. Further, Ms. Cornett made no showing that the d enial of this motion was prejudici al to her. See Scott v. Jones B rothers Constr. Inc. , 960 S.W.2d 589, 594 (Tenn. App. 1997) (both harm and error are required for reversal); Tenn. R. App. P. 36 (b). In he r brief, Ms. Cornett state s, "In the present case, where al l of the jurors knew Defenda

nt Ve rnon Keith, many of them knowing hi m well , . . . venue should hav e been changed. . . ." The record refutes this statement. In fact, six p rosp ectiv e juro rs kne w him, but only one served as a juror. Voir dire questioning established that most of the jurors were not familiar

with Ms. Cornett or the defendants, in cluding Mr. Keith. As to Ms. Cornett's a

rgument concer

ning the newspaper a

rtic les, th e record shows that dur

in g trial the local pap

er published an arti

cle on Ms. Cornet t's law s uit. The trial c ourt st ated to the jury:-8- It's been brought to my

attention there wa

s alittle article and [sic] contains some ina

ccuracies and whe

ther it is accurat

e or not. The jury

will be disregarding this i f they consider

any story in the newspaper.You don't try cases based upon newspaper

stories or street t

alk. You will d

isre gard the newspaper. Th at is not evidence and cannot be considered b y the jur y in making th

eir determina

tion of this case. T

he parties st ipul ated as a result of injuries that Ms.Cornett sustained in the

amount of $5,000

and those bills necessary for her treatme

nt and reasonable in t

hat amount. That d oes not mean the defendant says they owe them. In fact, they say they do not beca use they are not at fault but they are stipulatin g those bill s, is that c

orrect? Both counsel an swer ed in the affirm ative. The rec

ord shows that Ms. C

ornett
neverrequested that the c ourt inquire whethe

r any jurors h

ad actually read the paper. She never objected to the trial court's handling of t he matter. N

or did she

renew her motion for

c hange of venue or see

k a mistrial. Her failure to t ake actionto nullif y t he harmful ef fect of the error

, if any, or o

therwise raise th

is issue below, or t o de monstrate pre judice, preclud

es reversal on this g

round. Tenn. R. App. P. 36 (a); see Simpson v. Frontier Comm

unity Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991 ) (issues not properly raised in the trial court cannot be asserted for the firs t time on appeal). IV. Ms. Cornett argues that

the trial court er

red by failing to

sub st itute a juror or grant a mist

rial when the

jury foreman fell asleep

numerous tim

es during trial. Having read and considere d the record, we

find nothing in the trial transcript showing t

hat any of the jurors were sleeping. Nor is there proof that Ms
. Corne tt pointed out this alleged fact to the trial court, much less raised an objection or moved for a mistrial. Tenn.R.App.P. 36 (a). This record leaves us with nothing to rev iew.-9- V. Ms. Cornett contends tha t reversal is requi

red becaus e the trial court admitted into evidence over-sized enlargements of prejudicial photographs of an

area near the accident

site. She ma

intains that admi ssion of the exhibitsviolated Tenn. R. Evid. 403. Ten nessee co urts follow a policy of liberality i

n the admission of photographs at trial. See State v. Banks , 56 4 S .W.2d 947, 949 (Tenn. 1978). "The admissibility of photographs lies within the sound discretion of the trial court" after due consider ation of the evidence 's relevance, pr obativeval ue and potential for unfai r prejudice. Id.; Tenn. R. Evid. 403. The photographs at issue ac curately depic

ted the yard,

altho ugh not necessarily

the exact location,

where Ms. Corne

tt was mowing

when her injuries occurred. Defense counsel presented the photogr aphs in an attem

ptto elicit Ms. Cornett's testimony on where in the yard her in jury occurred. Ms . Cornett's inability to consistently ide

ntify the exact

location of her spill

left the is su e unresolved, which persuades us that the photographs were not irrelevant. I n light of her failure to specify or demonstrate how the photographs prejudiced her case,

we cannot say the tr

ial court abused its di scretion by admitting them. See Scott , 960 S.W.2d at 594

. VI. Ms. Cornett contends tha t the trial court erre

d in failingto instruct the jury to disregard refer ences to her ownership of a Mercedes Benz ra ised on cross-examina

tion. She asserts that the court agreed to instruct the jury to disregard the evide

nce but failed to do so. Ms. Corne t t's failure to asse rt or establish any

prejudice arisi

ng from-10-

the evidence is fatal t

o her argument.

Tenn. R. App . P . 36 (b). Moreover, having reviewed the record, we believe the t rial court's fail ure to give the instruction

was inadvertent.

The record reve

als that Ms. Cornett di

d nothing to call this omission to the cou rt's attention or

otherwise prevent the alleged error. Relief is no t required under the se circumstan ces. Tenn. R.App. P. 36 (a); See Barrett v. Raymond Corp., No. 59, 1991 WL 4996 at * 4 (Tenn. App. January 24, 1991) (no Tenn. R. App. P. 11 application filed). VII. Ms. Cornett argues that the trial court erredin directing the verdicts for the defendants. Although she broadly frames the issue, Ms. Cornett limits her argument to the strict liability claim, asserting that issues of fact rema ined to be tried on whether the

mower was defective or unreason ably dangerous. See State

v. McKay , 680 S.W.2d 447, 454 (Tenn. 1 984), cert. denied , 470 U.S. 1034, 105 S.Ct. 1412, 84 L.Ed.2d

795 (1985) (when an app ellant fails to art

iculate reasons to support a conclusory

statement, th

e is sue may be d

eemed waive

d). She maintains the issue of whether the metal used in fabricating the wheel stops was sufficiently st

rong was a jury

question. Ten n. Code Ann. § 29-28-106 (b) (1980) bars strict l

iability actions against sellers of

aproduct which is all

eged to c ontain a defective conditi on unreasonably

dangerous to the buyer, user o r consumer unless the seller is

also the manufacturer of the product or the manu facturer

of the part thereof

claimed to be de

fective , o r unless the manufacturer of the product or p a rt in question shall not be subject to service of process in the sta

te of Tennessee or service cannot be secured by the l ong-a rm statutes of Tennessee or unless such manufacturer had been judicially dec

lared insolvent. The record shows that

the trial court did not grant a directed verdict on-11-

the strict liability

claim against Deere & Company. As noted, the jury resolved that i ssue against Ms. Corn ett. The record also reveal s that Mr. Ke ith an d General Equipment we

re merely sellers, not the

manufacturers of the mower at issue, and Deere and Company, the ma nufacturer, was amenable to sui t in this jurisdiction. Thus, the strict liability claim could not b

e maintained aga

inst the sellers, Mr. Keith and General Equipmen t. Te nn. Code Ann. § 29-28-106 (b). Accordingly,

Ms. Cornett's ar

gument lacks m

erit. VIII. Ms. Cornett mainta

ins that the verdict i s contrary to the weight of the evidence. She argues th at the evidence prepo nderated in her favor. In effect, Ms. Cornett seeks a reweighing of the evi dence. This we cannot do. Itis the time h onored rul e in this State that i n reviewing a judgmen tbased upon a jury verdict the appella

te courts a

r e not at liberty to

weigh the evidence or to de cide where the preponderance lies , bu t are limited to determining whether there is material evidence to s upport the verdict; a nd in determining

whether there is material

evidence to support the verdict, the appellate court is req uired to take the str ongest legitimate

view of all the evi

dence in favor of

the verdict, to assu me the truth of all that tends to support it, al

low ing all reasonable

inferences to sustain the verdict, and to disregard all to the contrary. Having thus examined the record, if there be any mater

ial evidence to suppor

t the verdict, it m

ust be affirmed; if

it were otherwise, the parties would be deprived of their constitut ional right to tri al by jury. Crabtree Masonry Co. v. C & R Const., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Tenn. R. App. P. 13 (d). The j ury specifically rejected Ms. Cornett's strict liability a nd breach of warranty claims. Unde

r the circumst

ances of thiscase, those fact s presuppose
afindi ng, fa tal to all th e clai ms alleged, that the mower at

issue was not defec

tive

or unreasonably dangerou s. See Broader v. Pedigree , 541 S. W.2d 402, 404-12-

(Tenn. 1976). The evidence amply

supp orts that finding. Ms. C ornett's experts testified that the accident was caused by weak wheel stops on the mower which bent outw ar d, allowing the stee ring to lock in the full y-turned position. Howeve r, the mechanic who repaired the mower shortly af ter the acci den t testified that at that tim

e the wheel stops w

ere straight up in the

proper position, the same as when t

hey left the fa

ctory. He st

ated that he found

nothing wrong withthe mower's steering mechanism. This evidence, viewed in the light

most favorable to the ver

dict, precludes r

eversal. IX. Ms. Cornett contends tha t the trial court er

red in failing to grant

a mistrial or

set aside the verdict on the ba

sis that the forem

an, after announc

ing the verdict, stated, "due to the fact that the plaintiff f

ailed to proof [sic] beyond

ashadow of a doubt it was faulty equipment we had to go the way we did." She also claims reversal is required because the previously-mentioned newspaper article about the tr

ial was published on th

e third day of tr

ial. The record shows that the jurywas properly instructed on the standard of proo f and was permitte

d to take the instruct

ions into the jury

room. It also shows that Ms. Cornett ne ver responded to the f

oreman's com

ment. She m

ade

no objec tion and did not seek a mistrial. The record contains no evidence that an inco rrect st andard of proo f was act ually ap plied b y the jury. "Parties seeking a

new trial because of a

lleged jury m

isconduct must, atthe outset, satisfy the court that th ey have admissible evidence o n the issue." Caldararo v. Vanderbilt Uni versity , 794 S.W.2d 738, 741 (Tenn. App. 1990);

see Patt on v. Rose , 892 S.W.2d 410 , 413-414 (Tenn. A pp. 1994). Our-13-

consideration

of this question

is controlled by T

enn. R. Evid. 606 (b). That rule limits inquiry

into the validity o

f a verdict as foll

ows: Upon an inquiry into the validity of a verdict or an in dictment,a juror may not testify as to any matter o r statement occurring during the cou rse o f the jury's deliberati ons or to the effect of anything upon any juror's mind or emotion as infl uencing that juror to assen t to or dissent from the verdi

ct or indictmen

t or concerning the juror's mental proces ses, except that a juror may

testify on the question of whether extran eous prejudicial infor mation was improperly

brought to the jury 's attention , wh ether any outside influence was im prope rly brought to bea

r upon any juror, or whether the jurors agreed in advanceto be bound by a qu otient or gamblin

g verdict without fur

ther discussio n ; nor ma y a juror's a

ffidavit or evidenc

e of any statem

ent by the juror concerning

a matter about

which the juror

would be precluded from testifying b e received for these pu rposes. Tenn. R. Evid. 606 (b). We reject Ms. Cornett's characterizati on of theforeman's comment as "extraneousprejudicial infor mation." Or

dinarily, the i ssue of

whether a

jury has mis applied the law is brought to t he court's attentio

n by juror aff

idavi ts o r testimony supporting a motion for new trial, rather than, as here, by post-verdict juror c omm ent. When raise

d in that context, our

courts have consiste

ntly held that"[t]he incorre

ct application of an otherwise valid j ury instruction do es not constit ute th e impropriety

necessary to a

llow a juror to im

peach his verdict by affidavit." State v. Ward , 663 S.W.2d 805 , 808 (Tenn. Cri m. App. 19 83); see Goss v. Hutchins

751 S.W.2d 821, 828 (Tenn. 1988); Tennessee Eastern Electric Co. v. Link

, 6 Tenn. App. 6 17, 625 (1926)
. Itis well settled law in this state that a juror can not impeach her verdict, and that a new trial can not be granted upon the affidavit of a juror that she

misunderstood the

ins tructions give n the jury by

the trial judge,

provided the instruct

ions were correct. State v. Johnson , 632 S.W.2d 542, 549 (Tenn. 1982), cert. denied, 459 U.S. 882,3 To the extent that Ms. Cornett argues that the jury applied an incorrec t

standard of proof to reach th e verdict, if the

trial court ha

d not been independently

satisfied that the

verdict was consistent with the e vidence and the applicable

law, it was authorized in its role as the thirteenth juror to grant a new trial. Ridings v. Norfolk Southern Ry. Co., 894 S.W.2d 281, 288-289 (Tenn. App. 1994).

4 Ms. Cornett file d a separate notice of appeal on this issue. The order appealed from had two filing dates. Defendant's moved to dismiss the appeal for failure to file a timely notic e of app eal. Bec ause the record con tains no -14- 103 S.Ct. 183, 74 L. Ed.2d. 148) (1982). We believe this same reasoning applies where, as here, th

e jury wa s properly instructed and the issue of the jury's potential improper

application of the la

w was verbally

raised, if at all, by a lay juror's gratuitous comment shortly after the verdict was re nd ered. As noted previo usly, the evidence was more than sufficient to support

the verdict under the proper standard of proof. 3 Ms. Cornett

contends that the previously-mentioned news paper article published on the third day of trial constitutedextraneous preju dicial informa

tion. In her brief she argu

es that "mem

bers of the

jury were exposed

to a newspaper article prejudicial t o Plaintiff's case. . . ." The record, however

, provides no evidence that any of the jurors were exposed to the article published on the third day of trial. S ee Caldararo , 794 S.W.2d at 742 (if foun d to be prejudicial, a juror's exposure to news items about the trial could warrant a ne w trial). Abse

nt

a s uch a showing, prejudice cannot be proved. Tenn. R. App. P. 36 (b). Ms

. Cornett's characterizati

on of thepurpo rted sleeping juro r as extraneous prejudicial information within the meaning of Tenn. R. Evid. 606 (b) is simply inaccurate. X. Ms. Cornett argues th

at t he trial court erred in twice sanctioning her counsel for failure to conduct hear ings by telephone. 4 She claims the firstevidence of which dat e is valid, we deny the motion. -15- occasion occurred during a M

arch 199 8 he aring on her motion for summary judgment and the s econd occurred during a post-trial hearing on discretionary costs. The record belies Ms. Cornett's character iza tion of the reason for

the sanctions arising from t

he summar

y judgment

hearing. In a wr

itte n order of March 20, 1998, the

trial court assesse

d Ms. Cornett $400 in

costs because

her

mo tion bordered on the friv olous. The order i

ncluded no mention

of a request for a hearing b y telephone conference. T he trial court's a

ssessment did not constitute an abuse of discretio n. See Krug v. Krug , 838 S.W.2d 197, 205 (Tenn. App. 1992). The second sanction occurred in conjunction with the Defe nd ants' motion for discretionary

costs. In its order

imposing a $500 s an ction on Ms. Cornett's counsel, the trial court noted that she

insisted that Defe

ndants' motion be heard in open court, notwithstanding the fact that Defendants waived ora l argument. Inasmuch as Ms . Corne t t's counsel refuse d to permit a hea

ring by conference c a ll, and in so doing required defense counsel to undertake an unnecessary out-of-town trip, we decline to find that the trial court abused i

ts discretion. To summarize, we affirm the judgment f or the defendants in i

ts totali ty. In light of this disposition, we need not reach Appellees' contention that the trial courterred in granting Ms

. Cornett's motion for new trial after the i nitial trial. Appellees' motion to dismiss this appeal is denied. The case is remanded for-16-

such further proceedings as may be necessary. Costs are taxed to Ms. Cornett for which execution may issue.

_____________________________ PATRICIA J. COTTRELL, JUDGE

CONCUR:

__________________________________ _ BEN H. CANTRELL, PRESIDING JUDGE (M.S.)

__________________________________ _ WILLIAM B. CAIN, JUDGE