### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 7,

2000 Session DAVID F. DEAN, SR. v. HOME DEPOT USA, INC.
Appeal from the Circuit Court for Davidson County No. 97C-3695 Carol Soloman, Judge

No. M1999-02313-COA-R3-CV - Filed April 2, 2001

Plaintiff, David Dean, was a 68 year old frequent patron of Home Depot. On April 27, 1997, Mr. Deancompleted his shopping at the store, paid the cashier and, upon departing, appeared to have set off the electric theft detection alarm. An employee of Home Depot stopped Mr. Dean and asked h im to step back into the store while employees located the source of whatever triggered the alarm. Mr. Deanwas neither arrested nor charged and ultimately left the store. He brought suit a gainst Home Depot for false imprisonment resulting in a jury verdic

t in his favor for $37,593.00. On Motion for
a New Trial , asking in the alternative for remittitur, the trial court reduced the judgment by $3,000.00. De fendantappealed. Upon consideration of the record, we suggest an increa sed remittitur and remand the case giving Mr. Dean 15 day s to accept the suggested remittitur. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified

W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and W ILLI AM C. K OCH , J R ., J., joined. Roy D. Campbell, III and K

ristin M. Oberdec

ker, Nashville, T

ennessee, for th

e appellant, Home Depot USA, Inc. Jack A. Butler and Jeffrey R. Kohl, Nashville, Tennessee, for the appellee , David F. Dean, Sr.
OPINION

I. FACTS

The underlying

dispute in this mattercenters around an action for false imprisonment filed by Mr. David Dean, p

atron of Defend

ant, Home Depot. M

r. Dean, Plaintiff

in this matter, was askedto step back into Home Depot when a thef

t deterrent sy

stem was activate

d at about the same tim e Mr. Dean passed through the Home Depot exit. Mr. Dean sued Home De pot for fals e imprisonment,

and the case went to trial in September of 1999. The matter was deci ded by a j ury,-2-

which determined that H

ome Depot falsely imprisoned Mr. Dean and award ed him $37,593.00 in damages.

Prior to trial, neither p

arty filed a motion for summary judgment; and at no time during the trial did the defense move for a directed verdict. After the jury returned its verdict, the defense filed its Motion of Home Depot U.S.A., Inc. For New Trial which al so pra yed, in the alternative, for a remittitur. No motion to have judgement entered in accordance with a party’s motion for directed verdict (formerly motion for judgment notwithstanding the verdict) was (or could be) filed.

Defendant

stated that it was “entitled to a new trial because the evidence preponderates against the verdict

of the jury holding it liable for the false imprisonment of the plaintiff, Mr. Dean.” Defendant

went on to agree that “ [t]he Court correc tly instructe

d the Jury on the

elements of false imprisonment”

but alleged that the evidence showed “no proof that the plaintiff was restrained, confinedor detained by

Home Depot as a re

sult of the use of force or

the threat of the use of force, either stated or implied from all the circumstances.”

The trial court den ied Defendant’s Motion for a New Trial, but suggested a remittitur of $3,000.00. P laintiff accepted the remittitur, and the judgment was amended and entered in the amount of $34,593.00. This appeal by Defendant ensued.

The issues presented by Defendant on appeal are: 1) Whether there is any material evidence
as a matter

of law to support the

jury’s ver

dict that the Defe

ndant, Home Depot, falsely imprisoned the Plaintiff; and 2) Whether the trial court’s suggested remittitur is inadequate.

II. FAIL URE TO MOVE FOR A DIRECTED VERDICT OR FI LE POST TRIAL MOTI

ONS

T he first issue on appeal is whether or not there is any material evidence to support the verdict of the jury finding that

Home Depot had fa

lsely imprisoned Mr. Dean. This issue is raised for the first time in the brief of Defendant on appeal to t his Court. Counsel, trying the case for Defendant,

did not move for a directed verdict at the close of Pla

intiff’s evidenc

e and did not move for a directed verdict at the clos e of all of the evidence. The only post-trial motion filed by Defendant

was a Motion for a New Trial asserting that the verdict of the jury was against the weight of the evidence. This motion asked the trial court, in the alternative, for a remittitur.

However meritorious the position of Defendant may be in asserting that there is no material evidence to support the verdi ct of the jur y, it cannot be addressed on appeal since Defendant/Appellant has waived the issue.

In Cortez v. Alutech, Inc., 941 S.W.2d 891 (Tenn. Ct. App. 1996) (application for permission to appeal denied Jan 27, 1997), the issues presented for review were: (1) whether the court erred in failing to grant summary judgment; (2) whether the court erred in failing

to grant a directed verdic

t; and(3) whether there was any evidence to support the jury verdict for

the plaintiff. The de

fense in Cortez filed a motion for directed verdict but failed to file any post-trial motions . The Western-3-

Section cited Potter v. Tucker, 688 S.W.2d 833 (Tenn. Ct. App. 1985) sta

ting that a mot ion for directed verdict “must be made at theconclusion of all the proof in order for it to be considered by the trial court on a post-trial motion and by this court on appeal.” Cortez, 941 S.W.2d at 894. The Court further stated, Appellants

did not fi le a motio n for judgment in accordance with the motion for a directed verdict . We find th

eir omission in this regard to preclude a review of this matter in light of Rule

50.02 T.R.C.P. and also Rule 36(a) T.R.A.P. which states that ‘[n]othing in this rule shall be construed as requiring relief be granted to a party . .

. who failed to take wha

tever action wa

s reasonably

available to

prevent or nullify the harmfu l effect of an error.’. . . Their failure to file such a motion denied the tria l court the opp ort uni ty to reco nsider its former decision on the issue and the legal questions raised by the motion.

Id. at 895-96. As a result of this holding, the Court of Appeals refused to consider any of the three issues bro ught on appe al and affirm ed the trial court’s rul ing.

A similar situation faced the Court in the cases of Mires v. Clay , 3 S.W.3d 463 (Tenn. C t. App. 1999)(app licati on for permission to appeal denied July, 26, 1999) and McKinney v. Smith County , No. M1988-00074-COAR3CV, 1999 WL 1000887 (Tenn. Ct. App. Nov. 5, 1999). In these cases, the defense

requested a directed verdict at the conclusion of the plaintiff’s case and requested dismissal at the conclusion of all proof. The defense then failed to file any post trial motions on these issues before thetrial court. I n explaining why

they could n

ot hear defenda

nts’ appeal in the McKinney case , the Court stated, “The County raised this issue at trial at the conclusion of all the evidence by renewing its motion to dismiss. . . . In our view, the County ’s renewed motion t o dismiss satisfied the requirement that, in o rder to take the initial step to preserve this issue for appellate review, the County make a motion for a directed verdict at the close of a ll the trial evidence.” McKinney , 1999 WL 1000887, at * 3 (emphasis added).

Ult ima tel y, the Court in both cases found that it could not hear the appeal since no post trial motions were filed

to preserve the complained of issues for appeal. However, the Court makes clear that these post trial mot

ions merely

preserve the is sues previously raised in a party’s motion for directed verdict. It is incumbent on a party who may want to appeal to first ask for a directed verdict
or dismissal as a prer

equisite to filing post trial motions (either motion for new trial on this issue or motion for judgment in

accordance with the motion for directed verdict). Failure to do so precludes appeal of whether there was material evidence to support the verdict.
[W]he n the alleged er

ror is the failure

of the trial court

to grant a direc

ted verdict, either a motion for

a new trial or a post-tr

ial motion seeking

entry of jud

gment in accordance

with a motion for dir

ecte d ver dict made at trial (judgment n.o.v. ) is sufficient to preserve the i

ssue for appeal.

Failure to file e

ith er of thes e post-trial motions, however, den ies ‘the tri al judge the o pportunity to consider or reconsider alleged error

s committed during

the course

of trial’ and precludes appellate review-4-

of that issue. The rational for this holding is supported by Rule 36(a) T.R.A.P. which provides that ‘[n]othing in this rule shall be construed as requiring relief be granted to a party . . . who

failed to take wha

tever action wa

s reasonably

available to prevent or nullify the harmful effect of an error.’

Mires , 3 S.W.3d . at 468 (cit ing Cortez at 894-96)

. The Tennessee Rules o

f Civil Procedure,

in this respect, parallel the Federal Rules, and the issue is long settled under the Federal Rules. In Southern Ry. Co. v. Miller , a diversity jurisdiction negligence

action brought in the Eastern District of Tennessee, the appellant sought reversal of adverse jury verdicts on

ne gligence. On appeal, the defendant asserted that there was no mate rial evidence to suppo

rt the jury v

erdicts. Said the c

ourt:
Defendant’s contention in this re gard is, in effe

ct, an assertion that there was notsufficient evide

nce to go to the ju

ry on the que

st ion of defendant’s negligence. The defendant, however, made no motion for a directed ve rdict on such ground. Such ground was urged in support of defendant’s claim, on his motion for new tria

l, that the evidence ‘preponderates against the plaintiffs’ claim and in favo r of the defen dant.’ No motion for direc ted verdict havin

g been made, the

questio n of th e sufficiency

of the evidence to support thejury’s verdict is not available as a ground for a motion for new trial. Southern Ry. Co. v. Miller , 285 F.2d 202, 206 (6th Cir.1960).

In the Ohio diversity jurisdiction case of Portage II v. Bryant Petroleum Corp. , the plaintiffs appealed from the action of

the district court

in the post-jury

verdict dismissal o

f their claim ag

ainst
one defendant. At no time during the cour se of the trial did that defendant move for a directed verdict, but post-trial he f iled a motion to dismiss all claims against hi m for lack of material evidence. The trial court granted his motion, and the Sixth Circuit Court of Appeals reversed and reinstated the jur

y verdict. Sa

id the court:

I tis well-settled that a court can only consider a motion fo r a judgmen t notwithstanding th

e verdict only if

the moving party has previously made a motion for a directed verdict at the close of all the evidence. 5A J. Moore & J. Lucas, MOORE’S F

EDERAL P

RACTICE ¶ 50.08 (2d ed.1989) (hereinafter J. Moore & J. Lucas ). See also Abeshouse v. Ultragraphics, Inc. , 754 F.2d 467, 473 (2d Cir.1985) (holding that failure to timely move

for a directed verdict precludes a later grant of judgment notwithstanding th

e verdict); Hubbard v. Whi te , 755 F.2d 692, 695 (8th Cir.), cert. denied , 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985) (holding that plaintiff’s failure to move for directed verdict at the close of the evidence precluded a later grant of judgment n.o.v.) ; Rawls v. Daughters of Charity of St. Vincent DePaul , Inc. , 491 F.2d141, 147 (th Cir.), cert. de nied , 419 U .S. 1032, 95 S.Ct.513, 42 L.Ed.2d 307 (1974 ) ( “[A] motion for directed verdict is a prerequisite for relief on a motion for-5-

a j.n.o.v. under Fed.R.Civ.P. 50(b ).”). Federal Rule of Civil Procedure 50(b) provides:

Whenever

a motion for a dire

cted verdict mad

e at the close

of all the evidence is denied or for any reaso n is not granted,

the court is deemed to have submitted the action to the ju ry subject to a later determination of the legal questions raised by the motion. Not later than 10 days afte

r entry of j udgment, a part y who has m

oved f or a directed verdict may move to have the verdict an d an y judgment entered thereon set aside and to have judgment entere

d in accordance withhis motion for a dire

cted verdict;

or if a verdict was not returned such party, within 10 da

ys af ter the jury has been discharged, may
move for judgment in accordance with his motion for a directed verdict.

Id. Therefore, a p

arty who has failed

to move for a dire

cted verdict at th

e close of all the evidence, can

neither ask the di

strict court to rul

e on the legal sufficiency of the evidencesupportin g a

verdict for his op

ponent nor raise

the question on appeal. See Southern Railway Company v. Miller , 285 F.2d 202, 20 6 (6th Cir.1960); J. Moore & J. Lucas , ¶ 5 0.08. See also Stewart v. Thigpen , 730 F.2d 1002, 100 6 (5th Cir.1984) (since plaintiff failed to move fo r a direct ed verdict during trial, he was precluded from raising the issue of sufficiency of evidence on a

ppeal); DuPont v. Southern Pacific Co. , 366 F.2d193, 198 (5th Cir.1966) (“[T]here was no request for
a direct verdict under Rule 50 . . . and thus the appe llate court is powe

rless to review the sufficiency of the evidence.”).

In Southern Railway Co. v. Miller , 285 F.2d202 (6th Cir.1960), we held that where no motion for a directed verdict was made, the question of the sufficiency of the evidence to

support the jury’s verdict is not available as a ground for a motion for a new trial. Id. at 206.
Portage II v. Bry

ant Petroleum Corp ., 899 F.2d 1514, 1522-23 (6th Cir.1990) (emphasis added).

In Jackson v. City of Cookeville , 31 F.3d 1354 (6th Cir.1994), the defendant, City of Cookeville, appealed the failure of the district court to dismiss the case for lack

of material evidence. Said the court:

After

the jury re

ndered its verdic

t, the defendants filed

a motion for judgment notwithstanding the verdict, which the district court denied. On appeal, we cannot review this claim, for it ap pears that t

he defendants did not make a motion for a judgment as a matter of law (formerly directed verdict) at the c lose of the evidence.

‘ It is well-settled tha

t a court can only

consider a motion f

or a ju dgmen t notwithstanding the verdict only if the moving party has previously made a motion-6-

for a directed verdict at the close of all the evidence.’ Portage II v. Bryant Petroleum Corp ., 899 F.2d 1514, 1522 (6th Cir.1990) (citing cases). ‘Therefore, a part y w ho has failed to move for a directed verdict at the close of all the evidence, can neither ask the dis tri ct c our t to rul e on the lega l su ffi cie ncy of the evidence supporting the verdict for his opponent nor raise the question on appeal.’ Id.
Jackson, 31 F.3d at 1357 (emphasis added).
Cortez and its progeny simply adopt the long standing rule of the Sixth Circui t cons truing the companion Federal Rule. As such, this Court cannot review on appeal the “material evidence question” raised by Defendant, since this question was waived by the failure of Defendant at any time to file a motion for directed verdict. In fact, Defendant raises the issue for the f

irst time in its appellate brief.

III. REVI EW OF DEFENDANT’S MOTION FOR NEW TRIAL

HomeDepot requested a new trial based on the ground that the evidence pre p onderates against the jury’s verdict. This motion for a new trial calls on the trial court to perform its function as a thirteenth juror.

If a tria l court is called upon to act as a thirteenth juror following the filing of a mo tion for a new trial, the trial court must be independently satisfied with th e verdict of the jury. In performing this function, the trialcourt must itself weigh the evidence heard by the

jury. If after weighing

the evidence, the trial court is satisfied with the verdict,

it is thatcourt’s responsibility to approve the verdict; on the other hand, if it is not satisfied with the verdict after weighting the evidence, the trial court must grant a new trial. . . .

When ‘the trial judge simply approves a verdict without any comment

, it is presumed by an appellant court that he [or she] has performed his [or her] function adequatel y.’ On the other hand, where [] the trial c

ourt makes commen

ts on th e record in the course of reviewing a motion for a new trial, we will rev iew those
com ments; but we do not review those comments to see if we agree with the tri a l court’s reasoning, but rather to determine ‘whether the trial court properly reviewed the evidence, and was satisfied or dissatisfied with the verdi ct.’ If th e trial court’s commentsindicate that it has misconstrued i t s duty as thirteenth juror, and has approved the verdict for some reason other than its own sa

tisfaction with

the verdict basedupon an independent evaluation of the evi dence, it is our responsibil ity to reverse and re

mand the case for

a new trial. Ridings v. Norfolk S. Ry. Co. , 894 S.W.2d 281, 288-89 (Tenn. Ct. App. 1994) (citations omitted). Ess ent ial ly, we only review the trial courts decision to determine whether the trial court abrogated its responsibility

as thirteenth

juror. Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 717 (Tenn Ct. App.-7-

1999). “We cannot revie w the accuracy

of the trial court

’s determination a

s thirteenth

juror.” Id. at 718.

With regard to Def endant’s Motion fo

r New Trial,

the judge stated

only, “After having heard arguments

of counsel and upon the record as a whole the Court fi nds that the defendant’s Motion for a New Trial should b e d enied.” As the judge made no comments regarding her denial of the Defendant’s Motion, we can only presum e that the j udge performed her function adequately and her denial of this Motion must be affirmed.

IV. THE ADEQUACY OF THE TRIAL COURTS REMITTITUR

In 1990, this Court recounted, very succ in ctly, the standard of review to be followed by appellate courts in reviewing a trial court’s award of remittitur in cases tried by a jury.

The calculation of damages in personal injury case s is pri mar ily f or t he j ury. Bates v. Jackson , 639 S.W.2d 925, 927 (T enn.1982); Lunn v. Ealy , 176 Tenn. 374, 3 76, 141 S.W.2d 893, 894 (1940). However, the trial courts have had the statutor y prerogative

since the turn of the century to adjust da mage awards to accomplish justice between the par

ties and to avoid the

time and expense of

a new trial. Tenn.Cod e Ann. §§ 20-10-101, -102 (Supp.1989); Burlison v. Rose , 701 S.W.2d 609 , 611 (T enn.1985 ); Foster v. Amcon Int'l, Inc. , 621 S.W.2d 142, 147 (T enn.1981); Pitts v. Exxon Corp. , 596 S.W.2d 830, 835 (Tenn.1980); Murphy Truck Lines v. Brown , 203 Tenn. 414, 422, 313 S.W.2d 440, 443 (1958).

The role of the appellate courts is to determine whether the trial court 's adjustments

were justified, givingdue c redit to the jury's decision regarding the credibility

of the witnesses and due deference to the trial court's prerogatives as thirteenth juror. Burlison v. Rose , 701 S.W.2d at 611; Bates v. Jackson , 639 S.W.2d at 926-27; Foster v. Amcon Int'l, Inc ., 621 S.W.2d at 145.

The contours of the scope of appellate review have changed over the years. Now, the appellate courts customarily conduc t a three-step review of a t rial court's adjustmentof ajury's damage award. First, we e xamine the reasons for the trial
co urt's action since adjustments are proper only when the court disagre es wi th th e amount of the verdict. Burlison v. Rose , 701 S.W.2d at 611. Second, we examine the amount of the suggested adjustment sin ce ad jus tme nts tha t "t ota lly d est roy" the jury's verdict are impermissible. Foster v. Amcon Int'l, Inc. , 621 S.W.2d at 148 ; Guess v. Maury , 726 S.W.2d 906, 913 (Tenn .Ct.App.19 86). Third, we review the proof of dam age s to determi ne whether t he evidence p reponderat es against t he trial cou rt's adjustment. See Tenn.Code Ann. § 20-10-102(b).
Long v. Mattingly , 797 S.W.2d 889, 895-96 (T enn. Ct. App. 1990)

(application for

permission to appeal denied Oct. 22, 1990)-8-

The factual situation surrounding appeal of the remittiturs in Long was similar to the c aseat bar. “The trial court

reduced the damages the jury awarde d to Mrs. Long from $100,000 to $85,000 andthe damages aw

arded to Mr. L

ong from $25,000

to $20,000. The Longs do not challenge th

ese remittiturs on appeal even th ough they a

ccepted th

em unde r protest. However, Mr. Mattingly and his employer in

sist that they were insufficient.” Long , 797 S.W.2d at 895. Similarly, in the case at bar, the jury awarded pl aintiff $37,593.00, but the trial court reduced the damages to $34,593.00. Plaintiff accepted this award, but Defendant appealed the remittitur as being inadequate.

If, after reviewing the record, we determine that the adjusted damage award is still excessive, we have the prerogative under Tenn.Code Ann. § 20- 10-103(a) (S upp. 1989) to reduce the damages further. We have reviewed the proof of the Longs' damages in this

ca se and have dete

rmined that the re

mitted awards ar

e still excessive and are contrary to the preponderance of the evidence.

Id. at 896 (citations omitted). In an exercise of our prerogative to adjust the damages further, we agree with Defendant that the remittitur was inadequate. Based on the proof of damages in this matter, the amount

awarded after remittitur is still contrary to the preponderance of the evidence.

In determining how much remittitur is appropriate, we can once again compare the facts of the Long case with those of the case at bar.

Mrs. Long was fifty-seven y ears old whenthe accident occurred. The record contains littl e evidence concerning her intelligence, skills, talents, experience, training, or indu

stry. Her o

nly employment outside the home appears to have been selling cosmetics door-to-door sometime in 1976. She was not employed at

the time of the injury

or at trial.

Mrs. Long's medical

expenses amounted to approximately $6,175. Her softtissue injury appeared to have r esolved itself by the time of the trial. There is no proof that her co

ndition prevents he

r from being emp

loyed, and t

here is little proof that she will require additional, significant medical treatment. While she has some residual pain andrestriction of mov ement, she appea

rs to have resumed her normal activities--being a housewife, collecting antique bottl es, and traveling to flea markets. The only specif

ic restrictio

ns on her activities mentioned in the record include (1) mowing t he grass for her husband, (2) getting the dishes out of the cabinet, (3) running the vacuum cleaner, and (4) lifting heavy boxes filled with antique

bottles.

We agree with the trial court's conclus ion that awarding $ 100,000 to Mrs. Long and $25,000 to Mr. Long was excessive under these facts. However, w e also find that the evidence preponderat es again st awarding them $85,000 and $20,000 respectively

as decreed by the trial court. Based on our own re view of the record, we find that the proof, taken

as a whole, entitle

s Mrs. Long to

$50,000 and Mr. L

ong to $10,000.-9-

Id. The sole basis for

an award of dama

ges, in our case, was due to Plaintiff’s false imprisonment and the damages resulting there from.

With regard to the actual pe riod of imprisonment, Plaintiff was, at most, held for an hour while the employee s of Home Depo t tried to determine the source of the alarm. Plaintiff had minimal contact with the Home Depot employees, as they a pproached

him once and aske

d him to step back into the store and then requested that he step back further away f rom the doors no more than three times. His only physical contact with the employ ees was a tap on the shoulder.

Plaintiff testified that after theincident he was shaking and having chest pains (angina). He met a neighbor in the parking lot who assisted him with a nitroglycerine pill and helped him get to his truck. He sat in his

truck for approxim

ately an hou

r, until the pain in his chest and back subsided so that he felt he was able to drive home. The neighbor then stayed at his home another couple of hours to be sure he was out of danger.

With regard

to medical treatment, Plaintiff saw his heart doctor, Dr. Griscom, on only one occasion, six days after

the incident, for these symptoms. The doctor gave him a heart test, which took about 15 minutes, and determined there was no permanent injury. T he total cost of related medical treatment was $96.00.
At the time of the incident, Plaintiff was around 68 y

ears old and had b

een totally

disabled due to a back injury since the mid 1960's. He also suffered from a pr eexisting and recurrent heart problem for which

he had been takin

g Nitrogly

cerine for 15 y

ears. Lookingat these facts regarding Plaintiff’s damages, we ag ree with the trial court that the $37,593.00 award was excessive, but we also think that

an award of $34,593.00 is still excessive and against the preponderance of the evidence. When we compare Plaintiff’s special damages of $96.00 andthe few hours of p

ain, suffering

and inconvenienc

e with the damages awarded to both Mr. and Ms. Long in the Long case, webelieve an award of $7,500.00 for Plaintiff’s damages is appropriate and in a ccor dan ce wi th t he p roo f of fere d, w ith out tot all y des tro ying t he v erdi ct o f th e ju ry.
We modify the tr

ial court judgme

nt so as to reduce damages awarded to $7,500.00. The case is remanded to the trial court and Pla int iffwil l be all owe d 15 days within which to accept or reject the revised remittitur. In case the revise d remittitur is reje

cted, a new tria

l is ordered on all

issues. Costs of appeal ar

e divided equally

between the par

ties.

___________________________________ WILLIA M B. CAIN, JUDGE