1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case
.

2 Adams was initially a defendant but was later voluntarily dismissed.



# FILED
June 20, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ ALBERT MILAM, JR., A Minor, FROM THE SHELBY COUNTY by Mother and Next Friend TINA CIRCUIT COURT, THE L. MILAM, and TINA L. MILAM, HONORABLE KAY S. ROBILIO, Individually, JUDGE Plaintiff -Appella nt, AFFIRMED Shelby Circuit No. 50240 T.D. Vs. C.A. No. 02A01-9607-CV-00167 FRANKLIN D. WILSON, Tina L. Mil am of Memp his For Appellant Defendant-Appellee. Ed M. Hurl ey of Mem phis For Appellee

_____________________________ ______________________________________________ _ MEMORANDUM OPINION 1

__________________________________________________________________________ CRAWFORD, J. This appeal i nvolves a

n action t

o recove r damages fo r person al injurie s allege dly sustained in an auto mobile accident. The plaintiffs, Albert Milam Jr., a minor, byhis mother and next friend T ina L . Milam, and Tina L. Milam, individually (the Milams), appeal from the judgment of the trial court on a jury verdict for the defenda nt, Franklin D. Wilson (Wilson). The amended

complaint avers that on March 26, 1992, six-year-old Albert Milam was riding as a pass enger in

an auto mo bile drive

n by his mother, Tina

Milam, whe

n the Milam s’ automobile

was struck from behind by an auto mobile driven by Arthur L. Adams (Adams). 2 Adams’s automobile had in turn been struck by an automobile driven by Wilson. The complaint alleges that the defendants were guilty of various acts of negligence under the common law and
were guilty of negligence per se by violating various city ordinances and stat e statutes. The complaint ave rs that the defendants’ negligence directly and pr oximately caused the collision an d the resulting losses, injuries, and damages to the plaintiffs. Wilson’s answer admits the

accide nt,2

butdenies the materia

l a llegations of the complaint and joins issue thereon. Wilson’s answer also avers th at the a ccident was dire ctly and p

roximate ly cause d by the ne gligence of Adams.

After a trial in which the Milams were represented by counsel, the jury re turned a verdict in Wilson’s favor. The trial court entered a judgment on the jury verdict

on February 12, 1996. On Fe bruary 20 , 1996, counsel for the Milams filed a motion for a new trial, asserting the following grounds: (1) the weight of the evidence is contrary to a finding of the defe ndant as not guilty; (2) the verdict is contrary to the weight of the evidenc e as to lia

bility and d amages; and (3) the great weight and preponderance of the evidence are in f

avor of the plaintiffs as to the liability of the defendant and damages. The trial cour t denied the Milams’ motion for a new trial, and the Mi lams, now acting pro se , have perfected this appeal. Th e issues for review , as stated in the Milams’ brief, are:

1. Was Def

endant, Frank D. Wilson, hereinafter called Wilson or Defend ant, guilty of

v iolating tr

affic r egulatio ns, reck

less operation, negligence and violating Plaintiffs’ rights in general when he collided his vehicle, known as vehicle #1, i nto another vehicle, known as vehicle #2, opera ted by Ar thur L. Ad ams, herei nafter

called A dams, ca

using Ada

ms’ vehic le #2 to co lli d e into Appellants’ vehicle, known as vehi cle #3, c ausing Ap pellants severe physical

a nd body injuries? Were Appellants due c ompensation for injuries, hospital bills and other monetary losses due to the

negligence of De

fendant ? Was ve

rdict f air although j urors fe

ll asleep during tr ial? We perceive the issues to be: 1. Whether

there is material

evidenc e to s upport the jury’s verdict
. 2. Whether

the Milams receiv ed a fai r tria l when s ome of the jurors fe ll asleep during the

trial. We will consider the second issue first. The Milams contendthat they did not re ceive a

fair trial because some of the members of the jur y fell asl eep during the tria l. T.R.A.P. 3(e) pr

ovides in p ertinen

t part: [I]n all cases tried by a jury, no issuepresent ed for r eview sh all be predicated upon error i n the a dmission or exclusion of evidence, jury instructions granted or refus ed, misconduct of jurors, parties or

counsel, or other action committed or occurring during th e trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as wa ived.3

T.R.A.P. 3(e). The Milams did n ot raise t his issue in

their moti on for a n

ew trial , and thei

r failure to do so con stitutes a waiver of the issue on appeal. Hartsell v. Fort Sanders Reg’l Med. Ctr. , 905 S.W.2 d 944, 950 (Tenn. Ap p. 1995). This issue

is without me

rit. As to the Mila

ms’ first i ssue, we

will construe their motion for a new trial that asserts the verdict was contrary to the weight of the evidence to include the assertion that ther e is no material evidence to support the verdict. In reviewing a judgment based upon a jury verdict the appellate courts are not at

liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict. Overton v

. Davis , 739 S.W.2d 2, 2-3 (Tenn. App. 1987) . In determining whether there is materi al evide

nce to support the verdict, the appella te court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tend s to suppor

t it, allowing all re asonable infere nces to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there is any material evidenc e to su pport the verdict, it must be affirmed. Id. (citing Crabtree Masonry Co. v. C & R Constr., Inc. , 575 S.W.2d 4, 5 (Tenn. 1978)). The record does not

contain a transcript or statement of the evidence. I n the absence of
a transcript or a statement of t h e evidence, we must conclusively presume that ever y fact admissible

under the pleading s was fou

nd or shou ld have be en found favora bly to the appellee. Leek v. Powell , 884 S.W.2d 118, 121 (Tenn. App. 1994) (citing Lyon v. Lyon , 765 S.W.2d 759, 763 (Tenn. App. 1988)). This issue is also without merit. Accordingly, the judgment of the trial court is affirmed. Costs are assessed against the appella nts.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE