England v. Burns Stone Co., Inc.

• Decision Date: 27 October 1993
• Parties: Harry B. ENGLAND and Linda Faye England, Plaintiffs/Appellees, v. BURNS STONE COMPANY, INC., Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 32

874 S.W.2d 32

Harry B. ENGLAND and Linda Faye England, Plaintiffs/Appellees, v. BURNS STONE COMPANY, INC., Defendant/Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 27, 1993.

Application for Permission to Appeal

Denied by Supreme Court

March 21, 1994.

Lionel R. Barrett, Jr., P.C., Nashville, for plaintiffs-appellees.

Robert L. Estes, Peter F. Klett, Stewart, Estes & Donnell, Nashville, for defendant-appellant.

OPINION

TODD, Presiding Judge.

The defendant, Burns Stone Company, Inc., has appealed from a jury verdict and a judgment in favor of the plaintiffs, Harry B. and Linda Faye England in the amount of $30,000.00 for damage to plaintiffs' real property by blasting conducted by said defendant.

This litigation began as a joint suit of twenty-two plaintiffs against eight defendants. The Trial Court ordered a severance of the claims of owners of separate tracts, and the suit of Harry B. and Linda Faye England was thereby severed and tried separately from the suits of the other twenty plaintiffs.

Six of the eight defendants were dismissed before trial. A directed verdict was entered as to a seventh defendant during the trial. None of the seven dismissed defendants are involved in this appeal.

Only the plaintiffs, Harry B. and Linda Faye England, and the defendant, Burns Stone Company, are before this Court in this appeal.

T.R.A.P. Rule 27 provides in part as follows:

Content of Briefs.--(a) Brief of the Appellant.--The brief of the appellant shall contain under appropriate headings and in the order here indicated: ... (7) An argument, which may be preceded by a summary of argument, setting forth the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; .... (Emphasis supplied.)

Rule 6 of the Rules of this Court provides in part as follows:

Briefs.--(a) Written argument in regard to each issue on appeal shall contain:

1. A statement by the appellant of the alleged erroneous action of the trial court which raises the issue and a statement by the appellee of any action of the trial court which is relied upon to correct the alleged error, with citation to the record where the erroneous or corrective action is recorded.

2. A statement showing how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant's challenge of the alleged error is recorded.

3. A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.

4. A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be considered on appeal unless the argument thereon contains a specific reference to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument upon such assertion contains a reference to the page or pages of the record where evidence of such fact is recorded. (Emphasis supplied.)

The brief of appellant fails to comply with the above rules, as a result of which this Court is severely handicapped in the consideration of the issues presented by appellant. The technical record is composed of 336 pages. The transcript includes 1,485 pages and 84 exhibits.

This Court is not under a duty to minutely search a voluminous record to locate and examine matters not identified by citation to the record. McReynolds v. Cherokee Insurance Co., Tenn.App.1991, 815 S.W.2d 208. Parties cannot expect this Court to do the work of counsel.

Appellant's first three issues are:

1. Whether the court erred as a matter of law by allowing other homeowners, not the plaintiffs, to testify about alleged blasting damage to their homes and to exhibit the alleged damage by videotape and photographs.

2. Whether the court erred as a matter of law by allowing an expert witness to testify about the cause of damages to homes other than the plaintiffs'.

3. Whether the court abused its discretion and committed error in denying defendant's motion for a mistrial and/or motion for a continuance following the court's ruling to allow other homeowners to testify regarding damage to their homes.

It is true, as insisted by appellant, that after the severance of the other suits from this suit, evidence of damages suffered by the plaintiffs in such suits was not directly relevant to this suit. However, evidence of the time, nature and severity of such other damages might be circumstantially relevant where, as in the present case, the principal defense was that the blasting by defendant was not of such severity as to cause the damage claimed by plaintiffs. T.R.E. Rule 403 provides:

Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.--Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Evidence of damage to other property in the vicinity is received with extreme caution and only where a proper foundation is laid. 35 C.J.S. Explosives § 11(7) p. 306.

Evidence of the effect of blasting upon other buildings in the vicinity, as bearing upon character and extent of the explosion was admitted in the following authorities: Benyo v. Kaiser-Nelson Corp., 3 Ohio App.2d 405, 210 N.E.2d 740 (1965); Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641, 64 So. 547 (1914); Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 79 A.2d 591 (1951); Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95 (1953). In the latter case, the Texas Supreme Court said:

In blast-damage cases, the fact that causation is so often impossible of proof, except through circumstantial evidence, justifies a rather liberal attitude in judging the relevance of a particular circumstance.

It was necessary for the Trial Judge in his discretion to weigh and balance the need for the evidence to assist in resolving an issue in this case and its weight or usefulness for this purpose, against its effect of unfair prejudice to the defendant. Absent apt references to the record whereby this Court might reweigh these same factors, it must be presumed that the Trial Judge properly exercised his discretion in this regard.

No cause of reversal is found in appellant's first three issues.

Appellant's fourth issue is:

4. Whether the court erred as a matter of law by allowing Frank Chiapetta to testify at the trial of this cause.

Defendant asserts that, in response to its interrogatory regarding experts and their testimony, plaintiffs failed to disclose the identity or testimony of Mr. Chiapetta. However, defendant does admit that counsel for plaintiffs informed defendant by letter that Frank Chiapetta might testify. Defendant further asserts that Mr. Chiapetta was examined by defendant in his discovery deposition on August 25, 1992, regarding his opinions; that he responded that he had not formed an opinion; that from August 25, 1992, until August 31, 1992, the date of trial, defendant was not informed that Mr. Chiapetta had formed an opinion; and that such failure was a direct violation of T.R.C.P. Rule 26.02(4).

Where a party has not given the name of a person with knowledge of discoverable matter, the court should consider the explanation given for the failure to name the witness, the importance of the testimony of the witness, the need for time to prepare to meet the testimony, and the possibility of a continuance; the court may then permit the witness to testify, or it may exclude the testimony, or it may grant a continuance so that the other side may take the deposition of the witness or otherwise prepare to meet the testimony. Strickland v. Strickland, 618 S.W.2d 496 (Tenn.Ct.App.1981); Lyle v. Exxon Corp., 746 S.W.2d 694 (Tenn.1988).

No record is found of any motion for continuance or other reasonable effort to obtain an opportunity to locate evidence to contradict the testimony of this witness.

No sanctions are provided by the rules for failure to "seasonably" supplement a response to an interrogatory regarding expert testimony. Lyle v. Exxon Corp., Tenn.1988, 746 S.W.2d 694.

By extension, there is no provision in the rules for failure of a witness to report the formation of an opinion after testifying that he has not yet formed an opinion.

The resolution of the question of admissibility of the testimony of this witness was governed by a rule of fairness as administered within the sound discretion of the Trial Court.

This Court finds no reversible error in the exercise of such discretion by the Trial Court.

Defendant's fifth issue is as follows:

5. Whether the court erred as a matter of law and abused its discretion by charging the jury that the defendant was strictly liable in this case.

No citation to the record is found to identify the offending portion of the jury charge. Said part of the charge is not quoted in the brief or in defendant's motion for a new trial. See Rule 6 of the Rules of this Court; Chicago Guaranty Fund Life Society v. Ford, 104 Tenn. 533, 58 S.W. 239 (1900); Morris v. Summers, 63 Tenn.App. 469, 474 S.W.2d 662 (1971).

Appellant argues that the Trial Judge erred in charging that defendant was strictly liable for the effects of its blasting. In Miller v. Alman Construction Company, Tenn.App.1983, 666 S.W.2d 466, this Court said:

... This being a blasting case, if injury was inflicted upon the property, it is immaterial whether it was done negligently or with utmost care and caution since the...