### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 7, 2002 Session PATRICK L. M CCOLLUM v. DA N HUFFSTUTT ER A Direct Appeal from the Circuit Court for Davidson County No. 00C35 The Honorable Hamilton Gayden, Chancellor

No. M2002-00051-COA-R3-CV - Filed October 8, 2002

This is an appeal from

a Judgment on a jury ve

rdict for Plaintiff. Plaintiff sued Defendant on grounds of trespass, abuse of proce ss, and outrageous conduct arising from Defendant’s attempt to serve a

writ of po ssession a

t Plaintiff ’s place of bus iness. A ju ry found for

Plaintiff on all ground s. Defendant

appeals, alleging seven g rounds for reversal: (1) The Trial Court err ed in not dismissing the complaint

on the grounds of an executed Settlement Agreement and Full Release of A ll Claims; (2)The Tria l Court er

red in fa iling to g rant a ne w trial on

the gro unds of newly discovered

evidence; (3) T he T rial Court erred in not granting Def endant’s Motion for Summary Judgment, and in failing to grant the Defendant’s Motion for Directed Verdict; (4) The jury

verdict should be set aside and the complain t dismissed

on the g rounds of an oral a greem ent not to f

ile civil procee dings; (5) The T

rial Cour t erred in faili ng to give the special instructions requested by the Defend ant; (6) The Trial Court erred in not granting a new trial

on the grounds of improper conduct by counsel for the Plaintiff; (7) The verdict and remittitur we re e xcessive and given under the influenc e of pass ion and pr ejudice . We affir

m. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRB Y L ILLARD , J., joined. Michael D. Noel, Nashville, For Appellant, Dan Huff stutter Stephen C. Knight, Nashville, For Appellee, Patrick L . McCollum
OPINION
This is an appe al from a

Judgment O

rder en tered on a jury verdict

. Pat ric k L. McCollum (“Mr. McCollum,”

“Appellee,” or “ Pl aintiff”) is the preside nt and C.E. O. of Nas hville Coa ch Works, Inc. (“Nash

ville Coac

h”). Na shvil le Coach is in the business of converting shells from bus manufacturers into luxury touring buses. On July 26, 1995, Mobile Gourmet II , L.P. ( “Mobi le Gourmet”) contacted Nashville Coach and the two companies entered into an agreement whe reby Nashville Coach would conve

rt Mobile G

ourmet’ s bu s (“Bus ”) into a gourme t kitchen for use in1 There is some dispute in the record as to whether Mr. M cCollum called Mr. Ham ilton, after rel easing the Bus to M obile Go urme t, to ask that he return the Bus for rep lacem ent of a sto ve and then ke pt the B us und er a m echa nic’s lien or whether Mr. McCollum a nd Mr. Hamil ton agree d that M obile Go urme t would have u se of the Bu s but o nly if it
rema ined o n the N ashville C oac h pro perty.

2 Mr. McCo llu m testifi ed that Mr. Huffst

utt er told Mr. M cCollum that he [Mr. Huffstut ter] was the re to ge t “his bus” a nd th at, if

Mr. McCollu m did not tur n over

the Bus, Mr. Huff

stu tt er wou ld ha ve hi m [Mr. McColl um] ar rested.
3 These pape rs i nclu ded and Orde r f or Immedi ate Recover y of Propert y, date d December 22, 1995 and a Comp laint

and Petit

ion for Immediate Recovery of Property, which was sworn and su bscribed on December 22, 1995. Ne ither of the se do cum ents auth orize d the re mov al of the B us from Na shville C oac h’s pro perty.

4 This is the action from which the assault charges a gainst Mr. M cCollum arose. There is dispute i n the record
as to w hat

degr ee of

for ce Mr. McColl um us ed ag ain st Mr. Huf fs tu tt er. Mr. McCo llum testified th at h e “nu dged” or “pus hed” or “sho ved ” M r. Hu ffstutter with his [Mr. McCollum’s] torso but never t ouched Mr. Huffstutter with his [Mr. M cCo llum’s] hands. In his affi davit on the assaul t, Mr. Huffstut ter stated that Mr. McC ollum“shoved” him [Mr. Hu ffstutter] and ord ered him [M r. Hu ffstutter] off the p rop erty. -2- their catering business. I

n late 1995, work was complete d on the B us and a b alance of appro ximately sixty thousand dollars ($60,000) was du e to Nashville Coac h and pay

able by Mobile Gou

rmet. There was some dispute about the work and Mobile Gourmet did not pay . When payment was not forth comin g, Nashville Coach retained possession of the Bus under a mec hanic’s lien. Despite the mechanic’s lien, Appellee spoke with Mr. Hamilton, the president of Mobile Gourmet, and agreed to allow Mobile Gourmet use of the Bus so long a s it remaine d on Nashv

ille Coach’s prem

ises. 1 Mr. Hamilton also advi se d Appellee that any demands f

or pay ment shoul d be made

through Mobile Gourmet’s attorney , Dan Huffstutter (“Mr. Huffstutter,” “Appe llant,” or “Defendant”).
After making several phone calls to Mr. Huffstutter’s of fice, Mr. McCollum and his sister, Sherry Wise (“Ms. Wise”), went to Appellant’s law officeon Thursday, December 21, 1995 in order to speak with Mr. Huffstutter about the money owed by his client, Mobile Gourmet. After waiting approxima

tely two hours to see Mr. Huffstutter, Mr. McCollum and Ms. Wise proceeded to Mr. Huffstutter’s office and put a copy of the mechanic’s lien on his desk.
When Mr. McCollum arrived at his office on the morning of December 22, 1995, he had a messa ge from Appellant’s law partner, Mr. Whitney Kemper (“Mr. Kemper”), requesting that Mr. McCollum call him. M r. Kemp er informed Mr. McCollum that he [Mr. Kemper] and Mr. Huffstutter

were going to the courthouse to g et a writ of po ssession for the Bus and that Mr. McCollum should com

e down the

re with c ounsel. Mr. McCollum did not go to the courthouse. At approxima

tely 10:00 a.m., Mr. Huffstutter and Mr. Hamil ton arrived at Nashville Coach. 2 Mr. McCollum met them at the doorway and told Mr. Huffstutter several times to leave the pr op er ty. Mr. Huffstutter then handed papers to Mr. Hamilton who put them inside Mr. McCollum’s office. 3 At this point, Mr. McCollum shut the door and, in t he proce ss, “nudg ed,” “pushed” o r otherwise displaced Mr. Huffstutter. 4
After leaving Nashville Coach, Mr. Huffstutter went to the Metropolitan Police Department andmade a sworn offense report, which f ormed the basis of a criminal warrant for assault issued5 Cap tain Jo hn D . Ho ff man of th e Metropolit an Police Department te sti fied t hat hi s department

has app roxim ately 47,0 00 w arran ts curre ntly waiting to be se rved

. He further test ifi ed that there are o nly 18 peo ple av ailable to serve th ese wa rrants. Co nseq uently, the d epa rtmen t must ex ercise d iscretio n in terms o f what wa rrants ge t priority, with major fel onies (e.g. mu rder , attemp ted m urde r, rape , arme d ro bbe ry) getting to p pr iority and simple assault warra nts against private citizens getting a very low priorit y. Despite thi s syst em of prioritizi ng, the warrant for Mr. McCo llum
was s erved the same da y t hat it was obt aine d.
6 Mr. M cCollum testif

ied that t here were “several” off icers present during the arrest, inc luding De tective T im Maso n. Mr. H uffstutter had previously repre sented D etective M ason and several mem bers of his fam il y on an estate case.
7 Mr. M cCollum testif ied that t he officer on hi s right used undue force to handcuf f him, al though n o formal complaint was fi led agai nst t he off icer. Mr. McCollum’s moth er was wi tness to t he se event s and was v ery ups et [“hy ster ical ”] during the arrest . Mr. McCollum further testi fied tha t he was n ot per mit ted t o use t he re str oom or ob tain his ove rcoa t befor e bein g taken to jail.

8 Mr. Huffst

utt er clai ms that

he dismi ssed the charges pursuant to an oralagreement between himself and Mr. McC ollum tha t McColl um woul d not pursue ci vil charges against Mr. Huffst utter. Mr. M cCollum and those present to test ify for hi m at hi s cri minal t rial deny th at any s uch oral agreement was ever

contemplated. There is no writ ten evide nce o f any such agree men t.

9 This Settlement Agreement was neither si gned nor negotiated by either t he App ellant or the Ap pellee in this
case. John Thomas si gned as agent forMob il e Gour me t and R ona ld D . W ise signed as V ice P reside nt of N ashville Coach. Ken Jo nes , a tt orne y f or Nas hvi ll e Coac h on i ts ci vi l c ase wi th Mobil e Gour me t, dra fted the Sett lement Agre eme nt. In M r. Jon es’ testimo ny, he states that the Set tlement Agreement was between Nashville Coach and M obile Gourmet and was meant to cut off a ny f

urther clai ms between those two p arties, suc h claim s being those r elating o nly to the Bus at iss ue in t

he case. The Settl ement Agreement , in its fin al f orm, was the re sult

of negot iati ons between Ken Jon es and M r. Ke mpe r, attorne y for M obile Go urme t. -3- agains t Mr. McCollum. 5 While attending an office Christmas party at Old Hickory Country

Club, Mr. McCollum wa s arres ted at ap proximatel

y 8: 00 p.m. on th

e assaul tcharg es filed by Mr. Huffstutter. 6 Mr. McCollum was handcuffed and taken to the police sta

tion wher e he washeld in a holding c ell for a

pproximate

ly tw o hours un

til h i s father

made bai l. 7 On April 8 , 1996, the date that the criminal assault case was set for trial, Mr. Huffstutter agreed to drop th e crimina l assault charges aga

inst Mr. McCollum and the District Attorney dismissed the case. 8
On November 12, 1996, Nashville Coach and Mobile Gourmet entered into a Settlement Agreement

andFull Release of All Claims agreement (“Settlement Ag reement”). This Settlement Agreement

resolved the civil dispute between Mobile Gourmet and Nash villeCoach that arose from the bus conversion contract entered on July 26, 1995. 9 An Agreed Order of D ismissal was entered on Novemb er 14, 19 96 in the c ivil matter betwee n Nationa l Coach a nd Mobile Gourmet.
On December 20, 1996, Mr. McCollum instituted a c ivil suit ag ainst Mr. Huffstutter for torti ous conduct, including trespas s, abuse of proce ss, outrageous conduct and malicious prosecution. On March 4, 1997, Mr. Huffstutter filed a Motion for Summary Judgment

and Affidavit in support of that M otion. M r. McCollum filed Plaintiff’s Response to Defendant’s Motion for Summary Judgmenton the malicious prosecution claim and an Affidavit in support thererof. After a hearing on the Defendant’s Moti on, Chanc ellor Elle n Hobbs L

yle entered an Order gr

anting the Motion on10 Purs uant to Te nn. R. A pp. P . 3(e), D efend ant’s M otion for N ew T ria l speci fica l ly mentioned each of the

seven issues p resen ted o n app eal. -4- May 6, 1997. This Order dismissed only the malicious prosecution claim and gave the Plainti ff until May 16, 1997 to amend the complaint to include a cause of action for outrageo us conduc t and/or abuse of proce ss. Pla

intiff fil e d an Amended Complaint on May 19, 1997 a nd Defendant filed a Motion to Dismiss on June 6, 1997, asserting that the May 19, 1997 filing date exceeded the time limit of Chancellor Ly

le’s Order by three ( 3) days. The Motion to Dismiss was denied by Order on July 2, 1997 and Defendant filed his Answe r to the Amended Complaint on July 23, 1997.
After discovery a

nd a substitution of counsel for the Defendant, an Order of Recus al was entered by Chancellor Ellen Hobb s Lyle o n May 14, 1999 and an O rder was entered on May 18, 1999, transferring the

case to Chancellor Carol L. McCoy . On May 21, 1999, the De fendant filed a Motion for Summary Judgment. Chancellor McCoy entered an Order of Recu sal on November 5, 1999 and the case was transferred by Order to Judge Hamilton Gayden on November 16, 1999. Plaintiff filed a Res ponse to Defend ant’s [May 21, 1999] Mo tion for Su mmary Judgment o n July 19, 2000. On J uly 28, 2000, Judge Gayde n entered an Order gr

anting the Motion for Summary Judgmentas to the malicious prosecution claim an d den ying the Motion in all other re spects. On August 17, 2000, this case was finally set for jury trial to commenc e on November 27, 2000.
This matter was tried

before a jury

between November 27 and 30, 2000. On November 30, the j ury reached a verdi ct, awa

rding Mr . McCollum c ompensat ory damage s in the amo

unt o f seventy-five

thousand ($75,0 00.00) and punitive damages in the amount of one-hundre d-seventy-f ive thousand ($175,000.00). On December 7, 2000, Mr. Huffstutter filed a Motion for the Trial Court to Vacate and Disapprove Punitive Damag es. This Motion was subsequently denied and judg ment was entered on the jury

verdict on December 15, 2000. Mr. Huffstutter f iled a Motion for a New Trial on January 11, 20 01 and amend ed and supplemented that Motion on October 9, 2001. 10 Defendant’s Motion for New Trial and Motion for a Remittitur, Amendedand Supplemental Motion for a New Tr ial, and Motion to Vacate Punitive Damages Verdict we re heard on November 7, 2001. On December 10, 2001, the court entered an Order

denying all of the Defendant’s motions except the Defendant’s Motion for New Trial on the grounds tha t the verdict was excessive. The Court suggested remittitur as to both compensatory and punitive da mages wherein the amount of compensatory

damages should not exceed fifty thousand dollars ($ 5 0,000) and the amount of punitive damages should not exceed twenty -five thousand dollars ($25,000). On D ecembe r 18, 2001, Plaintiff

accept ed the re mittitur und

er prote st. On Janua

ry 8, 2002, Mr . Huffst

u tter filed Notice of Appeal. Final judgment in favor of Plaintiff , and reflecting the

remittitur amounts, was entered on March 11, 2002. Defendant a ppeals and presents seven issues for review:
1. Whether the trial court erred in not dismissing the complaint on the grounds of an exec

uted Settle

ment Ag reemen t and Full Release of All Claims.
2. Whether the trial court erred in fai ling to grant a new trial on the grounds of newly

discovered evidence.-5- 3. Whether the trial court er red in not granting the Defendant’s Motion for Summary Judgment, and in fa iling to grant the Defend ant’s Moti on for a d irected verdict

. 4.Whether

the jury verdict should be s et aside

and th e complaint dismissed on the grounds of an oral agr e emen t not to file

civil procee dings.
5.Whether

the trial court

erred in failing to give the spec ial instruction request ed by the Defe ndant.
6. W hether the trial court erred in not gra nting a new trial on the grounds of improper conduct by counsel for the Plaintiff.
7. Whether

the verdict

and remittitur were excessive and given under influence of passion and prejudice. Appellee presents one issue for review:
Whether the trial court ’s rem ittitur should be reversed and the jury verdict reinstatedbecause the trial court’s remittitur is contrary to the preponderance of the evidence

. We will consider the issues in the order presented.
1. Whether the trial court erred in not dismissing the comp laint on the ground s of an exe cuted Set tlement A greem

ent a nd Ful l Release of All Claims. The per tinent sections of the

Settlemen

t Agre ement at i ssue in thiscase re ad as follows:
This Settlement Agreement and Full Release of A ll Claims (the “Settlement

A gre ement”) is made and entered into as of November 12, 1996, b y a

nd betwe en Mobile

Gourmet II , a Neva

da partnership (“Mobile Gourmet”) and Nashville Coach Works, Inc., a Tennessee corporation(“Nashville Coach” and, together with Mobile

Gourmet, the “Parties”).
* * *
1. Definition of Claims . As used h erein, “ claims” shall mean any and all a ccounts, covenants, agreements, and obligations (other than the obligations contained in this Settlement Agree ment) and any

andall claim s, debts, l

iabilities , offset s,-6- demands, costs, expenses, act ions , or causes of action of every nature, character, and desc ription, of any kind whatsoe ver, known or unknown, suspected or unsuspected, wheth er arising in contra

ct or tort , or at la

w, in equit y, o r pursuant to administrative rule o r r egulation including, but notlimited to, claims asserted or which could have been asserte d by o ne pa rt y ag ai ns t a no th er , a s w el l a s t ha t p ar ty’ s agent, officer, director, employee, representative, attorney , or accoun tant, from the b eginning of ti me untilthe date of this Settlemen t Agre ement.
* * *
6 Release

of Claims . Except for the obligations set forth in this SettlementAgree

ment, Mobile Gourmet does hereby release, remise, and fo rever d ischa rge Nashville Coach from any and all claims (a s that ter

m is defined

above) r elated to the Bus or the Trailer. Mob ile Gourmet shall forever refrain fr om comme ncing, instituting, or prosecuting any suc h cla im agains tNashville

Coach. N ash vi lle Coach does hereby release, remise, and forever discharge Mobile Gourmet from any and all c laims (asthat term is define d above) relating to the Bus or the Trailer. Nashville Coachshall for ever re frain andfor eb ear from commencing, instituting, or prosecuting any such cla

im against Mobile Gourmet. The interpretation of

a written contract is a matter of law, and thus, no presumption of co rrectness in its interpretation exists. NSA DBA Benefit Plan, v. Connecticut Gen. Life Ins. Co. , 968 S.W.2d 791 (Tenn. Ct . App.199 7). The c ardinal rule in the const ruction o f contra

cts is toascertain the intent of the parties. West

v. Laminite Plastics Mfg. Co. , 674 S.W.2d 310 (Tenn. Ct. App.1984). If the contract is plain and un ambigu ous, t he mean ing th ereof i s a que stio n of la w, and it is the Co urt's function to interpret the contract as written according to its plain terms. Petty v. Sloan , 277 S.W.2d 355 (Tenn . 1955 ). The langu age used in a contract must be taken and understood in its plain, or di na ry, and popular sense. Bob Pearsa ll Motors, In c. v. R egal Chrysler-Plymouth, Inc. , 521 S.W.2d 578 (Tenn.1975). In construing con tracts, the word s expressing the pa rties'intentionsshould be given the usual, natural, and ordinary meaning. Ballard v. North American Life & Casualty Co. , 667 S.W.2d 79 (Tenn. Ct. App.1983). If the langua ge of a written

instrument is unambiguous, the Cou rt must

interpret it as written rather than according to the unexpressed intention of one of the parties. Sutton v. First

Nat. Bank of

Crossville , 620 S.W.2 d 526 (Te nn. Ct . App.198 1). Courts cannot make contracts for

parties but can only e

nforce the contract which the parties themselves have made. McKee v. Continental Ins. Co. , 234 S.W.2d 830 (Tenn. 1950). By its plain lang uage , the Settle ment Ag reemen t names on

ly N ashville C oach and Mobile Gourmet as partie s to this ag

reemen t and limitsthe termsof the Set tlement A greem

ent to thos e two11 In grammatical terms, the construct ion at iss ue here is called a rem ote re lative. A remote rel ativ e exis ts whe n a relati ve pronoun ( that , whi ch, who ) is separated fr om its antecedent. For example, in the sentence “ The fil es sitt ing in the cour troo m that I w as talking abo ut yesterd ay are in disarra y,” the word that strictly modifies court room , not fil es . In the context of modern usage, remote rel atives may be loosely interpreted i n order to link t hem to the ir remo te antecede nts. However, i n the contex t of con tract in terpret ation, grammar must be read accordi ng to ru les of general construction. In the ca se of a remote rel ativ e contai ned within a cont ract, courts must r ead any re lati ve pronoun so t hat it modifi es the noun that imme diately p reced es it. See B ryan A . Gar ner, A Dictionary of Mod ern Legal Usage 753 (2 nd ed.1 995 ). -7- parties. Mr. McCollum is not a party to this Settlement Agree ment and, therefore, cannot be bound by it. However, Mr. Huff stutter c ontends th at the Set tlement A greem

ent inclu ded not o nly Nashville Coach’s agreement to di smiss the Mobile Gour met lawsu

it but also a

n agreement to releas e all claim s, specif

ically including any

tort claim that could be filed by the reg

istered agent of Nashville Coach (i.e. Mr. McCollum). Mr. Huffstutter relies, in part, upon the la nguage “...cla

ims asserted or which could hav e been a sserted by o ne party

agains t another , as well a s that party ’s agent, office r, direc tor, employee, representat ive , attorney, or a

ccountant...” found in the Definition of Claims section of the agreement. The Appellant would ha ve us read

this language as follows: claims asserted

or which could hav e been a sserted

by o ne party , as well a s that par ty’ s agen t, officer, et al., against another [party], as well as that party’sagent, office, et al. However, as we are bound by t

he plain l angua

ge of th is document andthe general rules of g rammatical construction, we can notbe so expan sive in our interpre tation. Asa matter

of basic construction, the a

rticle “that, ” when coupled with a noun, refers to the most recent appear ance of that noun 11 . C on se qu en tl y, we can only read this lang

uage “as well as that party ’s ag ent...” to refer to the par

ty a gainst w hom a claim is made. Even if we were willing to go so far

outside the plain la

nguag e of this c ontract

as to include Mr. McCollum and Mr. Huffstutter under the definition of “Parties,” we still could not find for Mr. Huff stutter on this issue. The tort c laims at issue in this case are asserted “b y th e o ne pa rt y” (i.e. Mr. McCollum) against [only] another ( i.e. Mr. Huffstutter) and not against Mr. Huffstutter’s agent, director, et al. As discussed above, the langua ge “as well as that party ’s agent...” only refers to the party ag ainst whom a claim is made (i.e. Mr. Huff stutter) ; theref

ore, it is not applic able

in the context of this suit no matter how far we may stretch the plain language.
Fi na ll y, the language of

the Release of Claims paragraph cla rifies not only the

fact that the contemplatedparties t

o this Settle

ment A g reemen

t include only Nashville

Coach and Mobile Gourmet but this paragraph also clarifies the fa ct that any cla

im covered by t

he agr eement mu st relate to the Bu s. This Rele aseof Claims paragraph contains a reciprocal promise whereby “Mobile Gour met.. .release [s]. ..Nashvi lle C oach” and “Nashvi lle Coach... releas e[s]...Mobil e Gourmet.” There is no mention of any re

lease of, or by , either

party’s age nts o r empl oyees. Add itio nally, t he lan guage “...claims related to the Bus...” is unambiguous and we must interpret it as written.
It is clear that the tort claims brought by Mr. McCollum against Mr. Huffstutter were not the subject of this Settlement Agreement. The trial court was cor rect in not dismissing Mr. McCollum’s suit on the

basis of th

is Settleme

nt Agreement.12 Mr. Huff stu tt er di d not h ave t

he act ual Writ of

Posses sion wit

h hi m when h e went

to N ashvi lle Coach on Decemb er 22, 1995, nor did M r. McCo llum receive a copy of t hat Writ of Possession.
13 Mr. H uffstutter test

ified that he was outside a glass windo w while M r. Ke mpe r was insid e ob taining the W rit of Po ssession and p osting the bon d. Altho ugh he could not he ar the tra nsactio n, he co uld see it. -8- 2. Whether

the trial court er red in fa iling to g rant a new trial on the grounds of newly

discovered evidence.
The record indicates that, by Amended and Supplemental Motion for a New Trial, filed on Octo be r 9, 2001, D efenda

nt moved th

e trial c ourt to se

t aside the

verdict on the g rounds of newly discovered

evidence. After the date of tri al, Defen dant discovered evidence in form of the bond (“Bond”), which had, in fact, been posted on December 22, 1995 in ac cordance with the order of Judge Ly le for the issuanceof the Writ of Possess ion of the

Bus, and that the Writ of Possession was actually issued. 12 After hearing on November 7, 2001, the trial court denied Defendant’s Motion for a New Trial on the ground of newly discovered evidence.
Tennessee law provides for a new trial based on newly discovered evidence only under very limited circumst

ances. That

rule, as stated in Crain v. Brow n , 823 S.W.2d 1 87 (Tenn . Ct. App.1991 ), is:
Ge ne ra ll y, in order for a p arty to obtain a

new tria l based on

newly discovered evidenc e, it must be shown that the evidence was discovered

after th e tria l, t hat it could not have been discovered earlier with due diligence, that it is material and not merel y cumulative or impeach

in g, and t hat th e evid ence wi ll pro bably chan ge the result if a new trial is granted. 20 Tennessee Jurisprudence, New Trials §§ 6, 7, 8, 9 and 10. Id. at 192.
A new trial will be granted on account of newly discover

ed evidence only

when it is evident that an injustice has been done and a new trial will change the result. Diversified Equities, Inc. v. Warren , 567 S.W.2d 171, 175 (Tenn. Ct. App.1976). In ruling on a motion f or new trial on the ground s of newly

discovered evidence, the trial court is vested with wide discr etion and its denial of such a mot

ion will not

be distur bed by an appellate cou

rt unless i

t has abused it s d iscretion. Evans v. Ev

ans , 558 S.W.2d 851, 853 (Tenn. Ct. App.1977).
The Bond evi dence a

t issue he re clea rly fails the due dili gence, m ateri alit y and resul t pron gs of Crain . On th e due d ilige nce pro ng, we find at least three reason why even the slightest amount of due diligence would have led to the discovery of this Bondlong before this case was ever filed. First, the Bond

was poste d on Dece

mber 22, 1 995, in the

presenc e of Appe

llant when he andMr. Kemper went to the cou rthouse t o procur e the Writ o f Possessi on for the Bus. 13 Secondly, it was Mr. Kemper, Appellant’s law partner and original counse l in this case, who signed

the Bond as Su re ty. Co ns eq ue nt ly, the Bond

should have been in the file records of their law firm and, even if no record was retai ned, t he Bond was st ill w ithi n the p erson al kno wledge of Mr. Huffstutter’s original counsel14 Paragraph 3 of t he Amended Complaint, fil ed on May 19, 1997, stat es tha t: “ On December 22, 1 995 while purporting to represent Mo bile Gourmet II, a Nev ada limited p artnership, in a lawsuit involving Na shville Coach W orks, Inc., Huffstutter appeared at the premises of Nashvi lle Coach W orks, I nc. wi th a copy of the complaint in t he case s tyl ed M obile Gourmet II v. Nashvil le Coach Works, Inc. , Case No . 95-4 011 -I, Chancery Co urt of D avids on C ounty, Tennessee, and a copy of a n order of t he Court i n that

case ent itl ed “Order for Immediate Recover y of Propert

y,” wh ich stat ed that a writ of poss ession would be issued upon posting of a bond in the amount of $10,000.” Paragraph 5 continues: “Hu ffstutter’s pur pos e in rep resen ting that he had a valid o rder and w rit was to o btain the bus before posting of a b ond and p rop er serv ice of a writ....”

15 Paragraph 5 of Mr. McCollum’ s Amended Complaint stat es that “. ..Mr. Huffstut ter proceeded to swear out
a fal se warra nt f

or assau lt a gains t [Mr. McCollum]. ” And Paragraph 6 cont inues “Hu ffstutter’s stateme nts in his affida vit to secu re the war

rant were fal se an d misl eadin g. Su ch st ateme nts were als o made wit h th e ul ter ior and improper mo tive of intimid ating M cCo llum into releasin g the b us witho ut pro per b ond and w rit.” -9- in this case. Fi nally, t

he Bond was filed in the court clerk’s offic e and easily c ould have been obtained from that office with minimal effort.
On the materiality prong

of Crain , the jury in this case re turned a general verdict f or Mr. McCollum on the ories of trespass, abuse of process, and outrag eous conduct. In his Amended Complaint of

May 19,1997, Mr. McCollum alleg ed two separate instances of abuse of process . First, that Mr. Huff stutter mis used the O

rder fo r Imm ediate Recovery

of Proper ty b y a lleging that it gave him the autho rity to possessthe Bus. 14 Secondly, that Mr. Huff stutter committed abuse of process by misusing

an arre st warra

nt to attem

pt to forc e Mr. McCo llum to turn over the Bus. 15 The Bond evidence at

issue her e only relatesto the first assertion of abuse of process, that is the misuse of the Order for Immediate Recove

ry of Proper

ty. The jury

in this case returned a genera l verdict for the Plaintiff. Since there is no way to know which of the two factual predicates for abuse of process the jury based their finding on, we cannot say with ce rtainty that the Bond e

vidence would have been material to this finding. However, in deciding this issue, we do nothave to rely on supposition as to what e vidence the jury relied u pon. The general

verdict also encompassed the claims of trespass and outrageous conduct, neither of which were factually reliant upo n the Bond evidenc e for the ir proof . These counts remain intact regardless of the B ond evidence. T.C.A. § 20-9-50 2 states th at, “[i]f a ny c ounts in a declaration are good, a verdict fo r e ntire damages shall be applied to such good c ounts.” Therefore, the Bond evidence would not have changed the result in this case. For these reasons and on the record before us we cannot sa y that the trial court

abused its discretion in refusing a new trial on the ground of newly

discovered evidence.
3. Whether th

e trial c ourt err

ed in not g

ranting th e Defendant ’s Motion for Summary Judgment, and in fa iling to grant the Defend ant’s Moti on for a d irected verdict

. Since the trial court’s denial of the summary judgment was predicated upon the existence of a genuine issue of fact, that decision is no t rev iewable where there has bee n a judgment rendered after a trial on the merits of the case. Tate v. Mo nroe County , 5 78 S. W.2d 642, 644 (Tenn. Ct. App.1978); Mullins v. Precision Rubber Products Corp. , 671 S.W.2d 496 (Tenn. Ct. App. 1984);16 T.C.A. § 20-9- 502; Tutt on v. Pat

ter son , 714 S.W .2d 268, 271 (Tenn. 1986 ) (“The jury returned a general verdict for pl aint iff

. On appeal, thi s Court f ound that

the t rial judge err ed in not

directing a ve rdict

forthe defe ndant

on the attracti ve nuis an ce coun t. There was material evi dence in the record from which the jury could conclude that the playground doctrine app lied; thus applyi ng T.C.A. § 20-9- 502, thi s Court he ld tha t ‘[ h]avin g found t he jury was jus tif

ied in finding l iabili ty under the count of the declarat

ion based on t

he play ground doctri ne, t he verdi ct wi ll be applied to th at cou nt.’”); See al

so Helt on v. Rey nolds , 640 S.W.2d 5, 8 (Tenn. Ct. App. 1982) ( “Notwi ths tandi ng our dete rmin ati on with regard t o the f

irst theory , because of T.C.A. 20- 9-502 and of deci sional law, the ju dgment must sti ll be a ffi rmed if the pro ceed ings as to a seco nd the ory are free of re versib le erro r.” (citatio ns om itted)). -10- Bills v. Lindsay , 909 S.W.2d 434 (Tenn. Ct. App. 1993 ). The portion of this issu e related to summary judgmen t is, there fore, w ithout mer

it.
At the close of Plaintiff’s case, Defendant made a motion for a

directed verdict on thethree claims at issue in this case, outrageous conduct, trespass, and a buse of process. Th e trial court deniedthe motion, whi ch was su bsequen tly r enewed at the clo se of all evidence, and again denied. Defendant

filed a Motion for a New Trial, which, in accorda nce w ith Tenn.R.App.P. 3(e), specific ally

averred error

by t he trial c ourt in de

nying Def endant’ s Motion fo

r Direc ted Verd

ict.
The rule for determining a motion for directed ve rdict requires the trial judge a nd the reviewing court on appeal to look to a

ll of the e vidence , take the

stronge st legitimateview of it in favor of the opponent of the moti on, and allow all reasonable inference s from it in his favor. The court must disca

rd all counter vailing evidence, and if there is then any dispute as to any materia l determinative evidenc e, or any doubt as to

the conc lusion tobe drawnfrom the whole evidence, the motion must be denied. Conatser v . Clarksvil

le Coca-C

ola Bottling Co ., 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v. Tennessee Farmers Mut. Ins. Co. , 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A directed verdict cannot be sustained if there is material evidence in therecord which wou

ld support a verdict for the defendant under a ny of the theorie s the defendant had advanced. Id.; Conatser , 920 S.W.2d at 647.
The rule is we

ll settled that a general verdict is not vitiated by the absence

of proof on some counts of the declaration if ther e is any ev idence t

o sustain th

e alleg ations of

a single count. 16 Co ns eq ue nt ly, in order

to find for Appellant on this issue, we would have to find that Appellant was entitled to directed verdict on all thre

e claims– trespas s, abuse

of proce ss, and ou

trage ous condu ct. Becau se we find that Mr. Huffstutter was not entitled to directed verdict on the c laim of abu se of process , we prete

rmit discu ssion of the merits o f direc te d verdict on the trespass and outrageous conduct c laims.
In order to recover for abuse of process, a plaintiff must establish by evidenc e two ele

ments: (1) the existence of

an ulterior motive; and (2) an act in the use of

processother tha

n such as w ould be proper in the regular prosecution of the char ge. Priest v. Union Agency , 125 S.W.2d 142 (Tenn. 1939).
M r. McCollum present ed two fa ctual pr emises to e stablish hi s claim of abuse of process agains tMr. Huffstutter. First, that Mr. Hu ffstutter misused the Chancery Court’s Order for Imme diate

Recovery

of Property by

representing to Mr. McCollum that the o rder g ave authority

to17 Disci pli nary Rule 6-101 , “Failin g to Act Competen tly .–(A) A law yer s hall not: (1) Handle a l egal matter

which the lawye r kno ws or sh ould know that the law yer is not competent to handle, wit hout associ atin g with a lawy er who is competent to handl e it . (2) Handle a legal matter with out preparat

ion adequat e in t

he cir cumstanc es. ( 3) Neglect a legal matter

entrusted t o the lawyer. -11- seize the Bus. Secondly, tha

t M r. Huffstutter misused an arrest warrant to attempt to forc e Mr. McCollum to turn over the Bus.
Mr. Huffstutter

argues that, although the Order for Immediate Recove

ry of Property was not in proper form to allow for seizure of the Bus, presenting this document to Mr. McCollum for that purpose wa s a n e rr or an d n ot an ab us e o f p ro ce ss . T he ju ry h eard te stimony th at a Writ of Possession, served by a

sheriff, was the proper means of possessing the Bus. They

heard testimony that Mr. Huffstutter was an attorney who hadpracticed for

some twenty y

ears. Mr. Huffstutter’s own testimonyindicated thathe did not look to see what papers Mr. Kemper had handed him before taking them to Nas h ville Coach and using them as the basis for demanding the B us from Mr. McCollum. Based upon this evidence, a reasonable jury

could have found that an attorne y should notonly have kno wn what pr

ocess wa s necess ary but shoul d also have inquired as to what document s he was serving and whether he had the a

uthority to serve them. A re asonable

jury could have found that failure to do so constituted more than mere err or, and veiled an ulterior motive. 17 Furthermore, Plaintiff

assertsa second factual premise for abuse of process, specifically

that Mr. Huffstutter obtained an arrest warrant aga

inst Mr. McCollum solely for the purpose of forcing Mr. McCollum to turn over the Bus. The jury

heard te stimony

that the w arrant

was serv ed the sa

me day it was issu ed, desp ite a gr eat backlo g of u nserved warrants. The jury also heard a detailed accounting of the manner in which Mr. McCollum was arrested. The fa ct that Mr. McCollum was arrested at his office

Christmas p arty , at nigh

t, by “sever al” off icers, in cluding Detecti ve Tim

Mason for whom M

r. Huffs tutter ha

d previou sly

provided legal services could have led a reasonable jury to conclude that the circumstances of the arrest indicated a motive bey ond mere convenie

nce of time andplace. On this evidence, a reasona ble jury could hav e found th at Mr. Huf fstutter used the a

rrest warrant to intimida

te Mr. Mc Collum and t

o force him to rele ase the B us. For th e foreg oing re asons, we hold that the trial court did not err in deny ing Defendant’s Motion for Directed Verdict

. 4. Whether

the juryverdict should be set aside and the complaint dismissed on the grounds of an oral agr eement not to file ci vil procee dings.
The record

in this cas e contains a clas sic dispute of fact on the iss ue of whether an oral agreemen texisted whe

rein Mr. McCollum a

greed not to file

civil proc eeding s again st M r
. Huffstutter

in exchange for Mr. Huffstutter’s agree ment to dro

p the criminal assa

ult char ges ag ainst Mr. McColl

um. When the reso lution of th e issues in

a case d epends u pon the tr uthfulne ss of witne sses, the trier of fact, either

the trial judge o r jury , who has t

he oppor tunity to observ e the witnesses in th eir manner and demeanor while testify ing and is in a far better position than this Court to decide those-12-

issues. See McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn . Ct. App. 1997). The weight, faith, and credit to be given to any witness’ testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great wei ght by the a ppellate court. See id.; I

n re Estate o

f Walton v. Young , 950 S.W.2 d 956, 959 (Tenn. 1997).
The Defend ant, in hisanswer to the Amended Complaint, asserted the oral agreement not to filea civil pr

oceeding as an

affirma tive def ense. Th e Defe ndant h ad t he burde

n of proof

on this defense and, in fact, offered evidence , in the form of his own testimony, that an ora l agreement

was reached on April 8, 1996. I

n turn, the

Pla intiff put on evidence to refute the existence of an oral agree ment. The jury

was in the best position to weigh this evidence in reaching their verdict and we are in no position to second -guesstheir findings. F or this re ason, we

hold that the ju ry verdict should not be set aside ba sed upon th

e existenc e of an or

al agr eement.
5. Whether the trial court erred in failing to give the speciainstructio ns reque sted by the Defe ndant.
The Defendant requested that the trial court cha rge theju ry with the following Special Instr uction on a

buse of pr

ocess: The gist of

the tort of

abuse of processconsists in

an unlaw ful use

of a lawful pr ocess. In other words the bad intent must culminate in an actual abuse of the process by perverting it to a

use to obtain a r

esult which the process was not intended by law.
An example wo

uldbe where th

e proce ss is perv erted in

a manner to accompl ish a collateral purpose not contemplated b y law, such as where a party

is fraud ulently induced t o come within the jurisdiction of the Court s o as to re

nder him s ubject to

its proce ss, or in a criminal case where process is executed in an oppres sive and unlawful manner. A mere arrest and detention under a lawful warran t, without any act amounting to a misuse

or oppre ssion, is notan abuse of process. A legal and leg itimate use of process, to effect the result which such processis desig ned by

law to ac complish isnot an abu se of pro cess. Members of the jury I

further charge y

ou that if legal process has been lawfully issued, no action for abus e of proc ess would lie beca use it was used in a regular and legitimate manner, an d this is true even though the user was actuated by a wrongful motive.
The trial court denied Defendant’s request on this Special I nstruction and instead used the Tenness ee Patte

rn Jury Instr uction on a

buse of pr

ocess, w hich rea ds as follo ws:18 Civil Inst ruction 8.30, Tennessee Pattern Jury Inst ructions (3 rded. 1997). -13- Abuse of proce ss is the use

of lega l proces s for a r

esult for which the legal process was not designed a nd for a wrongful purpose.
To be entitled to damag es for a buse of pr

ocess, th e plaintif f must show that the legal process was used for a p urpose for which it was not designed in order to compel the plaintiff to do something tha t could not l egally

be compe

lled by the use of

that leg al proce ss. 18
It is a well settled rule that trial courts should give a requested jury

instruction if it satisfies three requirements (1) it is supported by the evidenc e, (2) it embodies the part y’ s theory , (3) it is a correct statement of the law. Hayes v. Gill, 390 S.W.2d 213, 2 14 (Tenn . 1965); Strickland v. City of Lawrence

burg , 611 S .W. 2d 832, 837 (Tenn. Ct . App. 198 0); Tallent v. Fox , 141 S.W.2d 485, 497 ( Tenn. Ct. App. 1940). However, where the court cor rectly cha rges the law applicable to the case, it is not error to deny a special request that embodies a theory of a par ty if the cour t charg es in general terms and with clearness sound propositions of law that would guide the jury in re achin g a correc t decision in the case. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 445 (Tenn. 1992). Appellan

t assertsthat his special jury instruction was necessary

to fully and fairly

state the applica ble law on abuse of proce ss. We do not agree. The pattern instruction used by the trial court clearly communicates the princ iple, con tained in Mr. Hufst

utter’s p roposed instructio n, that use of pr ocess in a “regular and legitimate manner” is not abuse of process. The pattern jury instruc tio n states what con st itutes abuse of process. Mr. Huffstutter’s proposed instruction pre sents the convers e in that it states what is not abuse of process. Theuse of this converse language makes Mr. Hu ffstutter’s proposed instruction less clear than the pattern instruction, and crea tes a nee d fo r extraneous examples in the instruction. The pattern jury instruction, therefore, provides a more clear and conc ise statement of the law on abuse of process while, at the same time, encompassing Appellant’s theory

of the ca se. For

this reason, we find that the trialcourt did not err in deny ing the Appellan t’s requ est for Sp ecial I

nstructio n on the iss ue of abu se of pro cess. 6. Whether the trial court erred in not granting a new trial on the grounds of improper conduct by counsel for the Plaintiff.
In general, the control

over the argument of counsel reside s with the trial court, and the trial courthas broad discretion as to what shall and shall not be permitted in argume nt. The appellat e courts generally

will not interfere with the discretionary action of a trial c ourt in re

fusing t o grant a m istrial or a new

trial for misconduct of couns el in arg ument unle ss the ar

gument i s clear

ly unwarranted

and made purely

for the purpose of appealing to pass ion, prejudices and sentiment which cannot be

removed by s ustaining

the objection of opp osing co unsel. Perkins v. Sadler , 826 S.W.2d 439, 442 (Tenn. Ct. App. 1991). Moreover, we note from the record that defenda nt made no objection to the attorney’s a rgument that a party

who invites or waives error, or whofails to take-14-

reasona ble steps to cure an error

is not entitled to relief on appeal. Tenn. R. App. P. 36(a). We find no error by t he trial c ourt, and

this issue i s without me

rit.
We wi ll consider Appellant’s seventh issue for review and A ppellee’s issue for review together.
7. Whether the verdict and remittitur were excessive and given under influence of passion and prejudice.
Wheth er the trial court’s remittitur should be reversed and the jur y verdict reinstatedbecause the trial court’s remittitur is contrary to the preponderance of the evidence

. This court re

views a tr ial cour t's rem ittitur und er the sta ndard of Tenn. R. App. P. 13(d). See T.C.A. § 20-10-1 02(b); Thrailkill v. Patterson , 879 S.W.2d at 841 (Tenn. 1994 ). Accord in gl y, when reviewing a tri al court ’s sugg estion of remittitur , we must us e th e st andard of review that applie s to findings of a trial judge. See Coff ey v. Fay ette Tubula

r Prods. , 929 S.W.2d 326, 33 1 (Tenn.1996), and de terminewhether the evide nce pre pondera tes aga inst the tr ial judg e’s adju stment. See Long v. Mat

tingly , 797 S.W.2d 8 89, 896 (Tenn. Ct. Ap p. 1990); Coffey v. Fayette Tubula r Prods. , 929 S.W.2d at 331.
A review o f the record does not suggest that the evide nce preponderates aga

inst the trial court’s finding that the verdict was excessive or the trial court’s decision to remit Mr. McCollum’s damages by $175,000. The trial cour t was in a better position than this court to weigh thetestimony concerning Mr. McColl

um’s injur

ies and da mages. Accordingly , we find that t he reco rd suppor ts the trial court’s decision to reduce Mr. McCollum’s damage s to $75,000.
For the foregoingreasons , we affirm the judgment of the trial court as r emitted is affirmed. Co st s o f t he ap pe al ar e a ss es se d a ga in st th e a pp el la nt , D an Hu ff st ut te r, an d h is su re ty.

__________________________________________ W. FRANK CR

AWFORD, PRE SIDI

NG JUDGE, W. S.