# FILED
March 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MARSHA R.WILLIAMS, ) ) Plaintiff/Appellant, ) ) Davidson Cir cuit ) No. 92C-715 VS. ) ) Appeal No. ) 01-A-01-9610-CV-00488 SEARS, ROEBUCK AND COMPANY, ) d/b/a SEARS, ) ) Defendant/Appellee. )

IN THE COUR

T OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM THE CIRCUIT C OURT OF D AVIDSON C OUNTY

AT NASHVILL E, TENNESSEE
HONORABL E MARIETT A M. SHIPLEY , JUDGE

MARSHA R. WI

LLIAMS 153 Twin Oaks Drive Nashville, TN 37211 PRO SE/PLAINTI

FF/APPELL

ANT KEENE W. BARTLEY, #9889 Schulman, LeRoy &

Bennet t 501 Union Street, Suite 701 P.O. Box 190676 Nashville, TN 37219-0676 ATTORNEY FOR DEFENDANT/APPEL LEE


### AFFIRMED A

ND REMAND ED
HENRY F. TODD PRESIDING

JUDGE, MIDDLE SECTION CONCUR: BEN H. CANTRELL , JUDGE
CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE-2-

MARSHA R.WILLIAMS, ) ) Plaintiff/Appellant, ) ) Davidson Cir cuit ) No. 92C-715 VS. ) ) Appeal No. ) 01-A-01-9610-CV-00488 SEARS, ROEBUCK AND COMPANY, ) d/b/a SEARS, ) ) Defendant/Appellee. ) 

### O P I N I O N
The plaintiff, Marsha R. Williams, has app eal ed from a jury verdict and judgment dismissing her suit for personal injuries sustai ned in a fall on the pre mises of the defen

dant, Sears, Roebuck & Company
.

Plaintiff states the issues on a

ppeal as follows: A. Whether the Trial Court erred by denying the Plaintiff’s Motion For Judgment Notwithstanding The Verdict where the verdict of the jury

was against the clear weig ht of the evidence because the Plaintiff established that the Defendant either created the injury causing

condition or had notice of the condition. B. Whether the Trial Court erred by failing to grant the Plaintiff ’s Motion F or A New

Trial whe

re ther e was insu

fficien t evidenc e to susta

in the jury ’s verdi ct that the Defend ant was not neglig ent.

The uncontroverted e

vidence shows tha

t, on April

24, 1991, p lainti ff wa s in the re tail store section of

Sears Auto Center to which customers were invited; she inquired of an attendant
as to a correction of a

problem in the operation of her auto; thereafter, the attendant procee ded fromthe retail store through a door where there was a sign warning that customers should not pass through.

The evidence is controverted as to the circumstance s under which plaintiff followed the attendant through the door. Plaintiff testified that the attendant invited her to follow him. The-3-

attendant denied inviting plaintiff and testified that he was unaware that plaintiff was following him until af

ter she f ell.

It is uncontroverted t

hat plain tif f fell an d was injur

ed, but the

cause of her fal l is controverted. Plaintiff testified that she slipped in a liquid on the floor. The attendant testified that no liqu

id was fou

nd in the pl ace whe

re plain tiff fel l.
Uponthe foregoing evidence , the jury returne d a verdict for the defendant and judgment
wa s e nt er ed ac co rd in gl y.

Plaintiff filed a “Motion for Judgment Notwithstanding the Jury ’s Verdict or al te rn at el y, for an Additur or for a New Trial.” The Trial Court entered the following order: This matter came to be heard on plaintiff’s pro se motion for judgment not withstanding the verdict, additur, or new trial. The Court upon review of evidence and the re cord present ed at the trial bei ng of the

opinion tha

t the Court agree s with the v erdict o f the jury and that t he jury ’s verdi ct should be approved. It is thereby

ORDERED, ADJUDGED AND DECREEDthat plaintiff’s motion for new trial, or judgment not withstand ing th e verdi ct sho uld b e deni ed. It fu rther appear ing there was no judgment for which an additur c ould have been ordere d, the Cour

t hereby denies th e motion for additur . All costs of this motion are assessed to the plaintiff for which execution may issue.
After filing notice of appeal and bond, plaintiff f iled the following motion: Plai ntiff

, Mars ha R. W illi ams, p roceed ing pro se , hereby respectfully

request s that this c ourt req uire, for the pur

pose of filing an appeal, the partial transcr ipt of the trial and of the new trial motion to be produced upon the reimbursement to Defendant of one-half of court re porter’s per diem and upon pay ment of the

fee for transcr iption. Pla

intiff of fered t his customary cost, but it was re fused (see attached corre spondence) . Plaintiff

further request s that the p artial tr ial trans cript and new trial motion transcript be accepted for the purpose of filing an appeal and that a sufficient amount of time be allowed f or prepa ration of the tran scripts.-4- Defendant resisted the motion, and the Trial Court entered the f ollowing order: This matte

r came to

be hear d on Plainti ff’s tra

nscript release motion on August 2, 1996. The Court upon review of the evidence presented ag rees that the trial transcript and the new trial motion transcript be released for production upon the r

eimburse ment to de fendant

of one-half of c ourt reporte r’s per diem and u

pon pay ment of the

fee fortranscription. It is thereby

ORDERED, ADJUDGED AND DECREED that plaintiff’s motion for release of transcripts be g ranted. All costs of this motion are assesse (sic) to the plaintiff, for which execution may issue.

Onappeal, plaintiff

insists tha

t th e Tria l Court erred in overruling her motion for judgment notwithstanding the verdict “bec au se the verdict of the jury was against the clear weight of the evidence.”

It has been held that motion not withstanding the verdict (non obstante veredicto, JNOV) is a test of the pleadings and cannot be used a s a substitute for a motion for a n ew trial. Bluf f City Buick Co. v. Davis , 201 Tenn. App. 593, 323 S.W.2d 1 (1959); Citizens Trust Co. v. Service Motor Car Co ., 154 Tenn. App. 507, 297 S.W. 735 (1927).

It has also been held that a motion for judgment NOV is inapplicab le to questions of evidence. Davis v. Wilson , Tenn. App. 1974, 522 S. W.2d 872; Buice v. Scruggs E quipment Co ., 37 Tenn. App. 556, 267 S.W.2d 11 9 (1954); Jamison v. Metropolitan Life Insurance Co., 124 Tenn. App. 398, 145 S.W.2d 553 (1941); National Life & Accident Ins. Co., v. Ameri can Trust Co. , 17 Tenn. App. 516, 68 S.W.2d 971 (1934).

It has also been held that

a motion for judgment notwithstanding the verdict cannot be entertained

on the g round tha t the evid ence do es not wa

rrant the verdict , and the evidence cannot be examined in determining the propriety of sucha motion. Dunn v. Moore , 22 Tenn. App. 412, 123 S.W.2d 1095 (1939).-5- More re ce nt ly, it is held

that, under T.R.C.P. Rule 50.02, no motion for judgment NOV
can be enter tained on the gro und that th e eviden

ce does n ot su pport the ver dict or justify the interve ntio nof a jury. Rupe v. Durbin Durco, Inc ., Tenn. A pp. 1976, 5 57 S.W.2d 742 . Rule 50.02 pro vides:

Reservation of Decision on Motion. - Whenever a motion for a direc ted verd

ict made a

t the close

of all the

evidenc e is denied or for any

reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within thirty (30) day

s after t he entry of judgment a par

ty w ho has moved for a directed verdict may move to have the verdict and any judgmen t entere d thereon set asid e and to ha

ve judg ment entered in accordance with the pa rty’s motion for a dire cted verdict; or if a verdict was not returned, such pa rty, within thirty (30) day

s after the jury

has been discharged, may move for a judgment in accordance with such party’s motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be pr ayed for in the alternative. If a verdict wa s returned, the court may allow the judgment to stand or may

reopen t he judg ment and e ither ord

er a new trial or direct the entry

of judgment as if the requested verdict had been dir ected. If no verd

ict was r eturned the cour t may direct the entry of judg

ment as if the requested verdict had been directed or may

order a new trial.
It has also been held that, on motion for judgment notwithstanding the verdict in favor of plaintiffs, where no question of cre dibility is involved, every infe

rence reasonably

to be drawn from the e

vidence must be dr

awn in fa vor of pla intiffs, taking t

he strong est

legitimate view of the evidence, upholding the verdict, assuming the truth of all that tended to support the judgmen t, discardingall contrary

evidence and

allowin g all re asonable

infere nces to su stain the v erdict. Multens v. Seaboard Coastline, Ry. Co. , Tenn. App. 1974, 517 S.W.2d 198.

In Eaton v. McClain, Tenn. 1978, 891 S.W.2d 587, cited by plaintiff, Mrs. Ea ton, fell downa stair and sued her hosts, the McClains. At the conclusion of the trial, defendants moved for a directed verdict (which d id not occ ur in the present c ase). The Trial Co urt in the E aton cas e overruled the motion for

directed verdict and submitted the case to a jury

which found negligence of plaintiff to be 40% and of defenda nts t o be 60%. Defendants moved for judgment notwithstand ing t he verdict which motion was overruled. On appeal, this Court reve rsed and-6-

dismissedon the authority of McIntyre v. Balentine , Tenn. 1992, 833 S.W.2d 52, the “step in the dark case.” This Court also based its conclusion on the ground of “ove rwhelming” evidence that the negligence

of plaintiff

was equal to or greater than tha t of defendants, and that there was no material evidence to su pport a find ing of a duty to p rotect plain tiff f rom op ening a door in the darknes s and stepping into a staircase. (This Court might well have made its decision upon the allegations of the complaint.)
The Supreme Court granted appeal, af firmed the Trial Court and this Court and said: The standards governing trial c ourts in ruling on motions for directed verdict or JNOV in negligenc e cases are well established. In ru ling on the motion, the court m ust take the strong est legitimate view of the evidence in favor of the non-moving party
. In other words, the court must remove any conflict in the e

vidence by construing

it in the light most favorable to the non-movant and discarding all countervailing evidenc e. The court may grant the motion only it, after assessing the evidence according to the foregoing standar ds, it dete

rmines tha

t reasonable mind s could not differ as to the conclusions to be drawn from the evidenc e. Sauls v. Evans , 635 S.W.2d 3 77 (Tenn .1982); Holmes v. Wilson , 551 S.W.2d 682 (Tenn. 1977). If there is any doubt as to the proper conclusions to be drawn from the evidence, the motion must be denied. Crosslin v. Alsup , 594 S.W.2d 379 (Tenn.1980). This Court’ s adoption of the doc

trine of c omparat

ive faul t in McIn tyr e does no t chang e these s tandard s gover ning the trial court’s assessment of the evidence; nor does it chang e the established standard governing the tria l court’s ultimate decision of whether to grant the motion. The trial court still must take the strongest legitimate view of the evidenc e in favor of the nonmovant; a

nd it must g

rant the motion only

if reaso nable min ds could not d

iffer a s to the legal concl usions to be

drawn f rom that evidence. The recitation of these standards of review doe s not, however, provide a satisfactory

answer to the issue before us because McInty re has radically

changed the question to be asked by the trial cou rt on a moti on for dir

ected ve rdict/NJOV

which all eges neglig ence on

the part of the pla

intiff. The question now is not wh et he r t he pl ai nt if

f w as gu il ty o f a ny n eg li ge nc e t ha t p ro xi ma te ly caused the res ulti ng inj uries . Instea d, th e ques tion is: as sumi ng that both p laintiff

and defe

ndant hav e been f

ound gui lty o f negli

gent conduct tha

t proximate ly c aused the injuries, was the f

ault attributable to plaintiff equal to or greater than thefault attributable to the defen

dant. In s um ma ry, th e p er ce nt ag e o f f au lt as si gn ed to ea ch pa rt y should be dependent upon all the circumstances of the case , including such factors as: (1) the relative c loseness of the-7- causal relationship between the conduct of the def endant and the injury

to the pla

intiff; (2 ) the re asonable

ness of th e party ’s conduct in confronting a risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty

decision; (5) the significance of what the party was attempting to accomplish by the conduct, such a s an attempt to save another’s life; and (6) the party ’s particular capacities, such as ag e, maturity, training, education, and so forth. We need not, however, decide the question of whether Ms. Eaton’s fault equaled or exceeded that of the McL ains’ as a matter of law bec ause we

agree with the Co

urt of App eals tha

t Ms. Eaton failed to submit legally suf ficient evidence as to the duty element of her

claims of negligence.

It appears that

the conclusion of the Supreme Court in Eaton was based upon a finding of law that there was no evidence to support a v erdict f or the plaintiff and that the directed verdict was cor rect. Ne verthel ess, the o ther quot

ed expres sions of th e Supreme Court app ear to indicate that, at leas t where a

motion for

directe d verdict was ove rruled, the motion may , in effec t, be renewed after verdict in the for m of a motion for JNOV and that such motio n should be consider

ed upon th e same

criteria as a motion for a

directed verdict, i.e., consider all evidence most favorable to the verdict and discard all other, a nd approve verdict if there is any credibl e evidence supporting verdict. In the pr esent case, plaintiff

made no motion for a

directe d verdict.

Plaintiff insists that all the evidence supports a judgment in her favor beca use the evidence of

the defendant is contradictory . As stated, there is a conflict between the testimony of plaintiff and defe ndant as t o the pre sence of

a liquid where pla

intiff fe ll. Plaintif

f points out that a business record of defendant states that there was a liqu

id on the floor, thereby

canceling the testimony

of the at tendant.
Contradictory testimony

of the same witness may cancel the testimony

of that wi

tness. Tibbals Flooring Co . v. Stanfi ll , 219 Tenn . App. 498 , 410 S.W.2d 8 92 (1967) ; Wheel er v. Wheeler , 63 Tenn. A

pp. 442, 47 4 S.W.2d 651 ( 1971); Todd v. Roanie

-Anderso n Co ., 35 Tenn. App. 687, 251 S.W.2d 722 (1952).-8- However, the same

rule doe s not apply

where the contrad ictions are between different wi tn es se s o r e vi de nc e i nt ro du ce d b y th e s am e p ar ty.
Moreover, the business record was not made by the attendant, but by anothe r employee who interviewed plaintiff. Plaintiff relies upon an exhibit - whi c h is a soile d cloth. Ev en if it be found tha

t there w as liquid on the floor, this doe s not show that defendant had a duty to a trespasser forbidden to be in that

part of the premise s, nor doe s it show that plaintiff was without fault.

All of the complaints of plaintiff relate to factual matters as to which the jury weig

hed the evidenc e, found

th e facts a

nd rende red a g eneral

verdict without expr

essing a ny s pecific finding of fact. Such a verdict is subject to review by the trial judge

sitting as a member of the jury . If he disagr

ees with the jury on the

determinative facts, he should declineto approve the verdict and “hang

the jury,” re sulting in a new trial before a new jury. Huskey

v. Crisp , Tenn. 1993, 865 S.W.2d 4 51. Jones v. Tenn. Farm ers Mutua l Ins. Co ., Te nn. A pp. 19 94, 89 6 S.W. 553.

The Trial Judge declined to set aside the verdict, hence he found that the ev idence di d
no t p re po nd er at e a ga in st th e v er di ct , a nd he di d n ot di sa gr ee , b ut ag re ed wi th th e j ur y.

When the trial judge has approved a verdict, the scope of revi ew by this Court is to determine wh ether there is any evidence to support the verdict. I f so, the verdict will not be disturbed. Coyle v. Prieto , Tenn. App. 1991, 822 S.W.2d 596.
There is evidence to support the verdict, and it will not be disturbed.

The defend ant in sist s that the Tr ial J udge err ed in r equir ing the Cour t Reporte r to transcribe the procee dings at the expens e of plai

ntiff des pite the failure of plaintiff to share the-9-

“per diem”. As noted

above, the plaintif

f was re quired to

reimburs e defendant for one-half of the expense of the reporter’s court attendanc e (per diem).

Defendant

cites Beef

& Bird of Ame

rica v. Co ntinental C

asualty Co ., Tenn. App. 1990, 803 S.W.2d 234. In tha

t case the appe llant submi

tted a one -page

“stateme nt of the e vidence ” to whichappelle e object

ed. The T

rial Co urt requi red the a

ppellant to have pr

epared a verba tim transcript at his expense. Appellant complained on appeal that he was required to produce the verbatim transcript. This Court ruled:

The order of the Trial Court, quoted above, finds that a stenographic report is available and orde rs the preparation and filing of a transcript in identical language to that of the objection, quoted above. However, there is no evidence of the resolution of the issue raised by plaintiff’ s insistence that the statement of the evidence filed by

him was adequate for purposes of the sole issue raised upon appeal. Apparently, plaintiff did not pursue this issue but caused a complete stenographic tra nscript to be prepared and filed. The objection requested that plaintiff be required to pay the per diem of the stenographer and the cost of ty ping the transcript, but the order of the Trial Court is silent on this subject. By inference the order required the plaintiff to pay whatever was necessary

for procurement of the required transcr ipt, but there is no evidence of what pay ment was necessa

ry , what wa s paid, or

by w hom. This Court will undertake to resolve the second issue within the limitations

of the re cord on a

ppeal. Section “ F” of Te

nnessee Rules of A

ppellate Procedu re is entitled “The Record on Appeal” and consists of Rules 24, 25 and 26. Rule 24 is entitled “Content and Preparation of the Record”.Subsection 24(a) is entitled, “Content of the Record”. Subsubsection 24(a)(3) refers to “the tra nscript or statement of the evidence and proceedings.” If no record, stenog

raphic or otherwise, was made of the proceedings, a verbatim transcript is unavailable
. If su ch a rec ord was ma

de, then i t may or may not be ava

ilable according to the circumstances. If made by a court employee

as in criminal cases, t hen the r ecord is presume d to be ava

ilable ab sent unusual c ircumsta

nces. In civil cases, this Court notes judicially the practice of parties to engage and pay

a stenographer a “per

diem” to attend and record the evide

nce and procee dings. If only

one part y e ngag es and pays the stenog

rapher, it appears that the verbatim rec ord of ev id en ce an d p ro ce ed in gs wo ul d b e a va il ab le to th at pa rt y by-10- contract. If more

than one party jointly

engage and pay

the stenographer, it would appear that the ve rbatim record would be available to any

one of the participating parties by contract. Inability of a participating party to pay for the tra

nscription might mak

e it unava ilable to h im. A party who doe s not join in the engagement and pay ment of a stenographer has no contrac t right to require the stenographer to transc ribe the record which is therefor

e unava ilable to h im unless and until made available to him on terms satisfactory to the stenographer and the party or parties who engage d the stenographer. This Court interprets Rule 24 to express a preference for a verbatim record if reasonably available, and an approval of other sta tements of

evidenc e and pro ceeding s if a ver batim record is not available. The settlement of a bill of exceptions (transcript) is a high judicial function which can be performed only by the trial judge
. Andersonv. Sharp , 195 Tenn . 274, 259 S. W.2d 521 (1 953); Rose v. Third National Bank , 27 Tenn.App. 553, 183 S.W.2d 1 (1944), T.R.A.P. Ruyle 24(e). The par

ties may differ o n the issue

of wheth er a ver

batim record is available and this difference should be settled by the Trial Cour

t. Althoug

h not expre ssly

stated in T .R.A.P., it i s inherent and inferred from other express provisions that the re qu ir em en t f

or fi li ng wi th in ni ne ty d ays is sa ti sf ie d b y ti me ly filing of a proposed transcript or statement of the e vidence and proceedings, and that after such timely filing, objections, rulings thereon , and ame

ndments a

nd substitu

tions unde

r order s of the Trial Court may pr operly occ

ur after the expiration of the prescribed ninety

day period. Accordingly , if an appellant conceives that a verbatim transcr ipt is unavailable to him, he may initially perform his duty by

filing a na rr at iv e s ta te me nt of

th e e vi de nc e a nd pr oc ee di ng s w it hi n n in et y days afte r notice of appeal. I f the appellee files timely objection and shows that a verbatim record is available to appellant, the Trial Court may requir

e the production and substitution of a verbatim record instead of the informal narra tive. This order and su bs ti tu ti on ma y pr op er ly o cc ur af te r t he ex pi ra ti on of

th e n in et y days presc

ribed for filing because it is a part of the pr ocess of resolving objections and settling the content of the rec ord. In ru ling upon

availab ility

the Tria

l Judge ma

y pr operly consider the financial ability of appellant to pay f

or the transcription of a verbatim record, the willingness of the stenog rapher and th os e w ho pa id hi m t o m ak e t he tr an sc ri pt io n a va il ab le , a nd an y other re levant c ircumsta

nces. Nothing is found in the cited authority contra ry to the actions of the T

rial Court in the present case.-11- A Trial Court has broad discretion in performing its high judicial functionof providing
a record for the appellate courts. If a court reporter refuses to prepare a rec ord, the court has the power of subpoena

to requir e the re porter to appear as a witness to

furnish information for the settling of the re cord. Th ere is no evidenc e that the

reporte r refus ed in the present c ase

Defendant

cites an unpublished opi nio n of a Worker’s Compensation Panel of the Supreme Court which has been examine d and found not to be c ontrolling on the fa cts of this
case.

Defendant

also requ ests an award of damages for frivolous appea l. This Court respectfully

denies th e reque st.

The judgment of the Trial Court is affirmed. Costs of appea l are a ssessed against the plaintiff . The ca use is re manded to

the Tria l Court for

collecti on of its c osts and for any othe

r appropr iate pro ceeding s.



### AFFIRMED A ND REMAND ED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDLE SECTION

CONCUR:

___________________________ BEN H. CANTRELL , JUDGE
CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JUDGE-12-