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Rule 10(b) (Court of Appeals). MEMORANDUM OPINION . The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the ac tions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED
January 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE
SAM OOLIE, HAROLD OOLIE, Davidson Circuit No. 95C-2427 and FRANCES CHAFITZ, C.A. No. 01A01-9706-CV-00240 Plaintiffs, Hon. Walter Kurtz, Judge VS. TAMANNA QURESHI and HALIMA QURESHI, Defendants. ROBERT N. SKINNER, JR., Nashville and SPILLER CAMPBELL, JR., Nashville, Attorneys for Plaintiffs. MICHAEL H. JOHNSON, Gracey, Ruth, Howard, Tate & Sowell, Nashville, Attorney for Defendants. AFFIRMED OPINION FILED:

MEMORANDUM OPINION 1
TOMLIN, Sr. J. Sam Oolie and his two siblings (by name or “plaintiffs”) filed suit in the Circuit Court of Davidson County against Tamanna Qureshi and her mother (by name or “defendants”) for personal injurie

s and property da

mage arising out of

an automobile acc

ident at an interse

ction in Nashville. On motio

n at trial, at the c

lose of plaintiff’ s proof, the trial c ourt dismissed the su

it against defendant Halima Qureshi, the owner of the vehicle, for lack of proof. At the conclusion of the trial, the jury returned a verdict finding the defendant not guilty of any negligence. Plaintiffs’ suit wa

s accordingly dism

issed. Plaintiffs ha

ve raised the fol

lowing issues on app

eal: (1) that the trial court erred in its jury instructions as to comparative fault, (2) that there is no material evidenc

e to support the ver

dict, and (3) that

counsel for the de

fendants imprope

rly inflamed the jury, their passions and prejudices, by his closing argument. Further, at oral2

argument this cour

t granted plaintif

fs’ motion to file a

supplemental brie

f (to which a resp

onse has been filed) as to a fourth issue, namely, the alleged prejudicial effect of a note written by the trial judge to the jury in response to the jury’s request for a document not offered in evidence. For the reasons he

reinafter state

d, we affirm the t

rial court. While the facts in this case are not complicated, there is conflicting testimony as to what some of these facts are as presented to the jury. The accident in question happened at a four- way stop intersection. Plaintiff Sam Oolie was driving his automobile in a southerly direction on Wilsonia Avenue w

ith his brother, Ha

rold Oolie, occup

ying the front pass

enger seat and h

is sister, Frances Chafitz, in the rear seat. Defendant Tamanna Qureshi was driving her mother’s automobile in a westerly direction on Post Road, alone. Traffic approaching this intersection on both streets was controlled by stop signs. Both drivers testified that they came to a stop at the intersection. Nevertheless, the automobiles collided within the intersection. The front left part of defendant’s car struck the left rear side panel of plaintiff’s car. Following the collision, plaintiff’s car proceeded across the road and struck a tree. Defe ndant’s car remained in the intersection after the collision. At trial, a Nashville police officer who investigated the accident testified that defendant’s car laid down 22.8 feet of skid marks prior to impact and three to four feet of skid marks after impact. Defendant specifically denied that the skid marks found in the intersection were laid down by her car. When the case was submitted to the jury, the trial judge used a special verdict form that separated the issues of negligence from the amount of fault attributable to each party. This form was consented to b

y both parties. The

initial question on th

e verdict form c

alled for the jury

to respond whether

or not defendant

was guilty of any ne

gligence. The jur

y answered “no”

to this question, bringing the trial to a conclusion. This appeal followed. I. The Jury Instruct

ions. Plaintiffs contend that the instructions of the trial judge regarding comparative fault were confusing to the jury and constitute reversible error. However, the record reflects that counse l for plaintiffs not

only failed to obje

ct to these instruc

tions at the time the

y were given, but a

lso failed to raise this issue in their motion for a new trial. Under these circumstances, we cannot consider this issue on appeal. See Loeffler v. Kjellgren , 884 S.W.2d 463, 472 (Tenn. App. 1994). Plaintiffs contend that in accordance with Rule 51.02 of T.R.C.P., this court may3

consider this issue despite the fact that no objection was raised at trial. This is a misapplication of the Rule. Rule 51. 02 does allow a par ty who failed to obje

ct to a jury instruc

tion at trial to raise an objection to the jury instruction in its motion for a new trial, but if the objection is not raised in the motion for a new trial, as is the case here, it cannot be considered on appeal. See id. , Henry County Bd. of Ed. v. Burton , 538 S.W.2d 394, 397 (Tenn. 1976). II. The Jury Verdict. Our standard of review in cases involving a jury verdict is limited to determining whether or not there is any material evidence to support the verdict. Rule 13(d), T.R.A.P.. From our review of the record, we are of the opinion that there is material evidence to support this verdict. Defendant testified unequivocally that she stopped at the stop sign before proceeding and that the skid marks in the intersection were not made by her car. Plaintiffs contend on the other hand that these assertions of defendant were undermined by the testimony of other witnesses. The pivotal issue here is the credibility of these witnesses. Our supreme court, in

Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822 (Te nn. 1994), held tha

t:
[t]he appellate courts do not determine the credibility of witnesses or weigh evidence on appe

al from a jury ver

dict. Appellate c

ourts are limited to determining whether there is material evidence to support the jury’s verdict. Where the record contains material evidence supporting the verdict, the judgment based on that ver

dict will not be distur

bed on appeal. Id. at 823.

This issue is without m

erit. Plaintiffs also contend that the trial judge did not properly exercise his duty as the thirteenth juror in considering and disposing of the motion for a new trial. As thirteenth juror, “the trial judge is under a duty to independently weigh the evidence and determine whether the evidence preponderates in favor of or against the verdict.” Shivers v. Ramsey , 937 S.W.2d 945, 947 (Tenn. App. 1996). However, “[w]here a trial judge has simply approved the verdict without comment, an appe

llate court will pr

esume that he has a

dequately perfo

rmed his function a

s a thirteenth juror.” Holden v. Rannick , 682 S.W.2d 903, 905 (Tenn. 1984). The trial judge’s order denying plaintiffs’ motion for a new trial approved the verdict without any additional comment. Therefore, this court will not override the presumption that the trial judge has properly reviewed4

the evidence. III. Closing Argume nt of Defense Couns

el. Plaintiffs contend that in closing argument defendants’ attorney made improper statements designed to arouse and inflame the passions and sentiment of the jury. However, plaintiffs’ counsel did not object to any of opposing counsel’s closing statements or remarks at the time of trial. “An objection to the remarks or conduct of counsel must be made at the trial and a ruling had thereon, or they will not be considered on appeal.” Lee v. Lee , 719 S.W.2d 295, 299 (Tenn. App. 19 86). This issue is wit hout merit.

IV. The Judge’s Note to the Jury. Pursuant to leave o

f court, plaintiff

s filed their supple

mental brief and

defendants responded thereto relative to the issue of the effect of the response made by the trial judge to a request by the jury to inspect the police report relative to this accident. This report had not been offered in evidence. Upon his receipt of the jury’s request, the trial judge called the attorneys for all parties into his chambers for the purpose of discussing what his response should be. Ultimately, the judge replied with a handwritten note, which read as follows: “The police report was never put into evidence. You must decide the case on the evidence you have.” Following a brief deliberation, the jury returned, announcing its verdict for defendants. Plaintiffs contend that the judge’s note sh

ould have gone fur

ther than it did and

explain to the jury

that police repor

ts are not admissible in evidence in Tennessee, in order to prevent the jury from inferring that plaintiffs had failed to introduce the police report because it was likely unfavorable to their case. This issue is also without merit. Plaintiffs’ counsel was present when the judge prepared his response to the jury’s request and made no objection at that time. In addition, counsel failed to raise any objection in his motion for a new trial. On the principles already set forth, this issue cannot be conside

red for the first

time on appeal. Ac

cordingly, the judg

ment of the trial c

ourt is affirmed. Costs in

this cause on appe

al are taxed to pl

aintiffs, for whi

ch execution may

issue if
necessary.

____________________________________ TOMLIN, Sr. J.5 ____________________________________ CRAWFORD, P.J. W.S. ( CONCURS)

____________________________________ HIGHERS, J. (CONCU RS)