Buckley v. Elephant Sanctuary in Tenn., Inc.

• Decision Date: 16 June 2021
• Docket Number: No. M2020-00804-COA-R10-CV,M2020-00804-COA-R10-CV
• Citation: 639 S.W.3d 38
• Parties: Carol BUCKLEY v. The ELEPHANT SANCTUARY IN TENNESSEE, INC.
• Court: Tennessee Court of Appeals

639 S.W.3d 38

Carol BUCKLEY

v.The ELEPHANT SANCTUARY IN TENNESSEE, INC.

No. M2020-00804-COA-R10-CV

Court of Appeals of Tennessee, Middle Section, AT NASHVILLE.

February 17, 2021 Session

FILED June 16, 2021

Application for Permission to Appeal Denied October 14, 2021

Edward M. Yarbrough and W. Justin Adams, Nashville, Tennessee, for the appellant, Carol Buckley.

Robert E. Boston and Mark M. Bell, Nashville, Tennessee, for the appellee, The Elephant Sanctuary in Tennessee, Inc.

J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong and Carma Dennis McGee, JJ., joined.

OPINION

J. Steven Stafford, P.J.

In this Rule 10 extraordinary appeal, the plaintiff seeks review of the trial court's decision to grant a new trial on the basis of an improper comment made during closing arguments, despite the fact that a curative instruction was given. Having reviewed all of the grounds asserted in support of the motion for new trial, we conclude that the trial court abused its discretion in granting the motion.

I. FACTUAL AND PROCEDURAL HISTORY

This extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure ("Rule 10") requires us to determine whether the trial court abused its discretion in granting a motion for a new trial. Plaintiff/Appellant Carol Buckley initiated the underlying lawsuit on October 1, 2010, against Defendant/Appellee The Elephant Sanctuary in Tennessee ("the Sanctuary" or "the Elephant Sanctuary") of Hohenwald, Tennessee.¹ The complaint alleged that Ms. Buckley founded the Sanctuary on her own land in 1994, but had been unlawfully removed as President and Board Member of the Sanctuary in early 2010. As such, Ms. Buckley raised claims of common law and statutory retaliatory discharge, violations of the Tennessee Personal Rights Protection Act, violations of the common law right to privacy, defamation, breach of contract, and conversion. As relief, Ms. Buckley asked that, inter alia , she be reinstated as President and Board Member, that certain people be removed from positions of authority at the Sanctuary, that she be awarded compensatory and punitive damages, that she be awarded a permanent injunction prohibiting the Sanctuary from using her likeness, and that she be granted visitation rights to her elephant, Tarra, during normal business hours.

The Sanctuary filed an answer denying Ms. Buckley's allegations, as well as a counterclaim asserting that it owned Tarra, an elephant that resided at the Sanctuary. As such, the Sanctuary asked, inter alia , for a declaratory judgment that Tarra was "a part of the Sanctuary and its family of elephants." In the alternative, the Sanctuary asked that Ms. Buckley be required to repay the benefits conferred for the care of Tarra since 1995.

In August 2012, the trial court entered an order of voluntary dismissal of Ms. Buckley's claims against the individuals, as well as her claim for breach of contract. A later order was entered stating that Ms. Buckley's remaining claims against the Sanctuary were still pending. But on March 10, 2014, Ms. Buckley filed a motion seeking to amend her complaint. Therein, Ms. Buckley asserted that her amended complaint would abandon her previous claims against the Sanctuary in favor of a single claim seeking a declaratory judgment in her favor concerning the ownership of Tarra. The trial court eventually granted Ms. Buckley's motion. As such, the only claims that remained pending were the parties’ cross-claims to ownership of Tarra.

The case eventually proceeded to a jury trial in 2018 to determine the ownership of Tarra; the first trial resulted in a hung jury. The case was retried in April 2019.

At the 2019 trial, the parties stipulated that Ms. Buckley purchased Tarra in 1976. The proof showed that decades later, in the fall of 1994, Ms. Buckley purchased land in Tennessee to move Tarra to and to establish a home for other old and retired elephants to remove them from circuses and zoos that were not suitable. Thus, the Sanctuary was born, and around December 1994, the Sanctuary was established as a non-profit organization.² Tarra was transferred from the Nashville Zoo, where she had been on loan, to the Sanctuary on March 3, 1995, under an exhibitor's permit issued to the Sanctuary by the Tennessee Wildlife Resources Agency.³ At that time, Tarra was only twenty years old.⁴ At no time since 1994 has Tarra been removed from the Sanctuary. Over the years, the Sanctuary grew to hold as many as twenty-three elephants.⁵

Ms. Buckley lived at the Sanctuary and worked as a co-director or board member for the non-profit for the next fifteen years. In 2010, however, the Sanctuary's board of directors informed Ms. Buckley that she would be removed from the day-to-day care of the elephants and placed in a different position. Ms. Buckley resigned and was thereafter allegedly prevented from seeing Tarra for several years until this litigation commenced.

A significant issue at trial was "The Elephant Sanctuary Acquisition and Disposition Policy" (the "Disposition Policy"). This policy provides that "a permanent resident" can only be transferred to another facility if the transfer is in the elephant's best interest. Under this policy, "[a]ll dispositions must have written approval from the attending veterinarian, Co-Directors and the Board of Directors prior to the disposal of the elephant."⁶ This policy was not in place until after Tarra was transferred to the Sanctuary. As such, much of the testimony concerned whether the Disposition Policy applied to Tarra.

During closing arguments in the second trial, counsel for Ms. Buckley made a comment that the Sanctuary did not pay property taxes because it is a 501(c)(3) tax exempt organization.⁷ During a jury-out break following the closing argument, the Elephant Sanctuary objected to the comment and requested a curative instruction on the basis that the comment was prejudicial and not based on evidence in the record. The trial court gave the curative instruction prior to the Sanctuary's closing argument. Although the trial court indicated that it would grant a mistrial on the basis of the comment if requested, the Sanctuary elected to proceed with its rebuttal.

The jury form asked the jury three questions—one related to whether Ms. Buckley gifted Tarra to the Sanctuary and two related to the Disposition Policy and whether Ms. Buckley had agreed to transfer Tarra to the Sanctuary under that policy. The jury found in favor of Ms. Buckley,⁸ and the trial court entered judgment declaring that Ms. Buckley owned and had the right to possess Tarra.

The Sanctuary subsequently filed a motion for a new trial for three reasons: the verdict was against the weight of the evidence, Ms. Buckley's counsel made a "highly prejudicial comment," and a new trial was in the interests of justice. The trial court granted the motion without explanation. Ms. Buckley promptly filed a motion to alter or amend the judgment, in part asking the trial court to provide the basis for its decision. The trial court denied Ms. Buckley's motion by order of March 25, 2020; again, the trial court provided no reasoning to support its decision to grant a new trial or to deny the motion to alter or amend.

On April 24, 2020, Ms. Buckley filed a motion for recusal and trial before a different judge, pursuant to Rule 59.06 of the Rules of Civil Procedure⁹ and Rule 10B of the Rules of the Tennessee Supreme Court¹⁰ on the ground that the trial judge, by granting the motion for new trial without explanation, was presumed to have weighed the evidence and found the jury's verdict to be against the weight of the evidence. Only when faced with that motion did the trial court explain its reason for granting the new trial. Specifically, the trial court denied the motion to recuse on the basis that it did not grant the motion for a new trial due to the weight of the evidence, but instead based on the fact that the comment made by Ms. Buckley's attorney during closing argument was prejudicial:

The Court believed that [counsel's] statements in closing argument were so very egregious that a new trial was warranted on that ground. However, out of respect for [counsel], the Court chose not to identify his statements as the actual reason for granting the motion, especially in light of the media coverage of this case. Therefore, the Court simply granted the motion for new trial without identifying the reason.

* * *

Ms. Buckley has now filed a Rule 10B motion. In order to properly rule on that 10B motion, the Court must now put into the record the Court's finding regarding [counsel's] statement, i.e., [counsel's] statement was so highly inflammatory, prejudicial, and offensive to The Sanctuary as to warrant a new trial. For this reason, the court granted The Sanctuary's motion for new trial.

Ms. Buckley then filed an application for an extraordinary appeal of the trial court's decision to grant the new trial pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.¹¹ Therein, Ms. Buckley argued that immediate appellate review of that decision was warranted because it was a clear abuse of discretion that far departed from the accepted and usual course of judicial proceedings. Specifically, Ms. Buckley argued that the Sanctuary, by requesting a curative instruction instead of a mistrial, had waived its right to challenge, in a motion for a new trial, the comment made in closing argument. Ms. Buckley also argued that when the trial court ignored the presumption that the jury followed its curative instruction and instead granted a new trial solely based on the comment, the court abused its discretion, a decision that she argued continued to inflict irreparable harm. As such, Ms. Buckley asked that the trial court's decision to grant a new trial be reversed and the jury's verdict reinstated. In the alternative, Ms. Buckley asked that the trial court's denial of her motion to recuse be reversed and the matter assigned to a new...