Panzer v. King
| Decision Date | 11 January 1988 |
| Citation | 743 S.W.2d 612 |
| Parties | Robert PANZER, Administrator of the Estate of Alyssa M. Panzer, Plaintiff-Appellee, v. C. Bryan KING, Defendant-Appellant. 743 S.W.2d 612 |
| Court | Tennessee Supreme Court |
Hugh P. Garner, Chattanooga, William G. McPheeters, Dayton, for plaintiff-appellee.
John Ben Pectol, Dayton, Samuel R. Anderson, Shane Usary, Luther, Anderson, Cleary, Ruth & Speed, P.C., Chattanooga, for defendant-appellant.
This case involves the question of the right of plaintiff to take a voluntary non-suit after the entry of the trial court's order setting aside the jury verdict and granting plaintiff a new trial, where defendant insisted that a non-suit was improper because it deprived him of his vested right to appellate review of the propriety of the action of the trial court in granting plaintiff a new trial.
Plaintiff, Robert Panzer, sued for the wrongful death of his twenty-year-old daughter, who was killed while riding as a passenger in defendant's vehicle. The jury returned a verdict for $15,200.09. Plaintiff filed a motion for an additur, or in the alternative, the grant of a new trial. The ground alleged for the additur was that the verdict was so inadequate as to evince passion, prejudice and unaccountable caprice. The new trial was sought on allegations that a number of jurors had made an unauthorized visit to the scene of the accident during the lunch hour on the last day of the trial and that they conducted "their own tests" in order to determine the accuracy of the roadway, apex of the curve, depth of the adjoining ditch beside the roadway, the number of trees which had been struck, the incline of the terrain, etc. It was alleged that the information thus obtained was transmitted to the other jurors who were influenced by those findings, independent of the evidence adduced at the trial. Additional misconduct was asserted with regard to factual statements and speculation by the jurors with respect to whether defendant had liability insurance and the amount thereof.
At the hearing on plaintiff's motion for a new trial, six jurors testified. The trial judge wrote a short memorandum opinion wherein he expressed concern about the adequacy of the verdict, the misconduct of the jury in visiting the scene of the accident and in discussing whether defendant had insurance and the amount thereof. The opinion, which was incorporated into the decree granting a new trial, concluded as follows:
The court is uncertain what its disposition would be if only any one of the above were present but the combined effect requires the court to set aside the verdict.
After entry of the trial court's decree granting plaintiff a new trial, plaintiff submitted a written motion to the trial court for leave to take a voluntary non-suit, without prejudice, in accord with T.R.C.P. 41.01 and the court entered an order granting that motion.
Defendant filed a (1) notice of appeal from the order of non-suit; (2) notice of filing of transcript of the proceedings upon plaintiff's motion for a new trial; (3) a designation of the record on appeal pursuant to T.R.A.P. 24(b); and (4) a statement of the issue presented for appeal which statement was as follows:
Whether the trial court erred in permitting the plaintiff to take a non-suit without notice to the defendant, thereby depriving the defendant of his vested right to appellate review of the trial court's order dated December 21, 1985, granting the plaintiff a new trial.
In the Court of Appeals and in this Court, defendant relied upon Anderson v. Smith, 521 S.W.2d 787 (Tenn.1975), Brackin v. McGannon, 137 Tenn. 207, 192 S.W. 922 (1916) and Barnes v. Noel, 131 Tenn. 126, 174 S.W. 276 (1914) for the principle that a plaintiff's right to take a non-suit is subject to the restriction that it will not deprive defendant of a right that became vested during the pendency of the case. The only one of those three cases mentioned in the Court of Appeals' opinion was Anderson v. Smith, supra, a condemnation case. In that case, the landowner resisted the condemnor's attempt to non-suit the case, not on the basis of any right to appellate review of an issue vested in him during the case, but because of the advanced stage reached in the progress of the case, to-wit: nine months following the withdrawal of the condemnor's deposit of estimated damages and entry of an order of possession. The Court of Appeals, in the case at bar, concluded that Anderson was not authority for the position asserted by defendant and that defendant had no vested right which would preclude plaintiff from taking a non-suit. While Anderson clearly did not involve the same issue asserted by defendant here, nevertheless the principle that a plaintiff's right to take a non-suit must not deprive defendant of a right that vested during the pendency of the case, was restated therein, as background for consideration of the issue presented in the condemnation case.
We are of the opinion that the Court of Appeals was in error in so concluding and that the defendant has a vested right of appellate review of the action of the trial judge in granting plaintiff a new trial.
The rule relied upon by defendant was promulgated in Barnes v. Noel, supra. Barnes was injured by a mowing machine operated by an employee of Noel. At the conclusion of evidence in the first trial, defendant Noel moved for a directed verdict which was overruled and the jury returned a verdict in favor of plaintiff Barnes. Defendant moved for a new trial and along with other grounds, asserted error in denying him a directed verdict. A new trial was awarded on certain of the grounds, other than failure to grant defendant a directed verdict, which ground was overruled. When the second trial came on to be heard, plaintiff attempted to take a non-suit, defendant objected and the trial judge denied plaintiff the right to non-suit. The second trial resulted in a verdict for defendant. Plaintiff moved for a new trial which was overruled.
On plaintiff's appeal, the Supreme Court noted that it was both necessary and permissible for the losing party to include in a motion for a new trial the refusal of the trial court to grant a directed verdict and that reliance on other matters in the motion for a new trial did not waive reliance on the motion for a directed verdict. In those instances where the motion for new trial was granted on other grounds, attention was called to the method of preserving the right to appellate review that prevailed at that time, which was granted by chapter 106, Acts of 1875. That Act provided, inter alia, that the motion, the court's ruling thereon and the substance of the evidence should be embodied in a Wayside Bill of Exceptions and signed by the trial judge, whereupon the appellant could assign as error that the trial judge had improperly granted or refused a new trial, "and the Supreme Court shall have power to grant new trials, or to correct any errors of the circuit court in granting or refusing same."
The Barnes court cited prior cases with approval to the effect that the intent of the foregoing act was to give the excepting party "the benefit of the former trial without regard to the merits of the case as developed on a subsequent trial." Id., 131 Tenn. at 133, 174 S.W. at 278. Although not expressly referred to in Barnes, clearly implicit therein was the recognition of the prevailing rule that no appeal could be taken from the action of a trial judge in granting a new trial, immediately following the first trial, for the reason that such action was not a final judgment. See, e.g. State v. Perry, 63 Tenn. 438 (1874), King v. Miller, 67 Tenn. 382 (1875) and Railroad v. Conley, 78 Tenn. 531 (1882).
Thus the conclusion was reached in Barnes that if plaintiff had been allowed to take a non-suit at or...
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...is not a final judgment and is not appealable as of right." Evans v. Wilson, 776 S.W.2d 939, 941 (Tenn.1989) (citing Panzer v. King, 743 S.W.2d 612, 616 (Tenn. 1988)). See also Davis v. Flynn, No. E1999-00421-COA-R3-CV, 2000 WL 807613, at *1 (Tenn. Ct. App. June 21, 2000). This is because a......
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...to the judicial process. Tenn. R.App. P. 13(d). See, e.g., State v. Goodman, 90 S.W.3d 557, 562 n. 3 (Tenn.2002); Panzer v. King, 743 S.W.2d 612, 616 (Tenn.1988). This appeal involves one of the rare occasions where fairness and justice require us to take up an issue that has not been expli......
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...fees to a defendant after a plaintiff voluntarily dismisses its suit in order to alleviate harm to the defendant. Relying on Panzer v. King, 743 S.W. 2d 612 (1988), abrogated on other grounds by Lacy v. Cox, 152 S.W.3d 480 (Tenn. 2004), FNB insists that "[i]t is not the law in Tennessee tha......
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...to the judicial process. Tenn. R. App. P. 13(d). See, e.g., State v. Goodman, 90 S.W.3d 557, 562 n.3 (Tenn. 2002); Panzer v. King, 743 S.W.2d 612, 616 (Tenn. 1988). This appeal involves one of the rare occasions where fairness and justice require us to take up an issue that has not been exp......