Parker v. Epstein Enters., No. W2019-00311-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtCARMA DENNIS MCGEE, JUDGE
Docket NumberNo. W2019-00311-COA-R3-CV
Decision Date26 May 2020


No. W2019-00311-COA-R3-CV


January 15, 2020 Session
May 26, 2020

Appeal from the Circuit Court for Shelby County
CT-003285-11, CT-003286-11
Jerry Stokes, Judge

This is an appeal from a jury trial. The defendants own and manage an apartment complex in Memphis, Tennessee. In 2010, two pit bull dogs left one of the apartments and attacked two individuals in a neighboring lot. One of the individuals died on the scene. The jury found the defendants were at fault and awarded a total jury verdict of $2.5 million. The trial judge granted the defendants' motion for remittitur of the jury verdict and suggested remittitur of the award to $1.3 million. The plaintiff accepted the remittitur under protest. The defendants appeal, arguing that the trial court erred by denying their motion to amend their answers to assert comparative fault; denying their motion for a continuance; denying their motion for directed verdict; denying their motion for a mistrial due to comments made by plaintiff's counsel during closing arguments; and denying their motion for new trial due to juror misconduct. In her posture as appellee, the plaintiff asserts that the trial court erred in suggesting remittitur of the jury verdict. For the following reasons, we affirm the decision of the circuit court and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

John R. Branson (on appeal only) and Mitchell S. Ashkenaz, Memphis, Tennessee, for the appellants, Longview Heights Partners and Epstein Enterprises, LLC.

Ashleigh R. Buckley and William A. Buckley, III, Fort Smith, Arkansas, and Daryl A. Gray, New Orleans, Louisiana, for the appellee, Gardenia Parker, individually and as next of kin of Bessie Parker and William Parker.

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This case arises from a dog attack that occurred on July 20, 2010. William Parker, age 71, was walking from his home to a nearby store when two pit bull dogs attacked and killed him in a vacant lot. His daughter, Gardenia, age 26, was told by a witness that her father was being attacked and ran from Mr. Parker's home to the scene in an effort to assist him. She tried to fight off the dogs and was also bitten. When emergency personnel arrived, they were also attacked by the dogs. The dogs were eventually removed by animal control. Gardenia's bite wounds did not require any stitches, but she suffered a dislocated elbow when the dogs knocked her down.

On July 14, 2011, Mr. Parker's wife, Bessie Parker,1 filed a complaint in the circuit court of Shelby County against numerous defendants. Specifically, the complaint asserted various causes of action against the individual who owned the dogs; another individual who released the dogs from the apartment unrestrained; a realty company; John Doe; the City of Memphis; Shelby County; and the two appellants in the instant appeal, Longview Heights Partners and Epstein Enterprises, LLC, the owner and management company of the apartment complex where the dogs were housed. Sam Epstein was the sole partner in Longview Heights Partners (owner of the apartments) and the sole partner in Epstein Enterprises, LLC (the management company). Gardenia Parker filed a similar suit on her own behalf seeking to recover for her personal injuries.

Some defendants filed answers and asserted comparative fault. Notably, Epstein Enterprises and Longview Heights Partners each filed answers, but neither asserted comparative fault. The cases lingered in the trial court for several years. Bessie Parker died in 2016. The two cases were consolidated, and Gardenia Parker ("Plaintiff") was substituted as the plaintiff in both cases. Thereafter, she was permitted to proceed individually and as next of kin of William Parker and Bessie Parker.

Most of the defendants were dismissed prior to trial, including the individual who owned the dogs, the individual who released the dogs, the realty company, Shelby County, and John Doe. A jury trial was held from March 12 to March 16, 2018. By that time, the only remaining defendants were the City of Memphis, Longview Heights Partners, and Epstein Enterprises. The jury reported that it could not reach a unanimous verdict, and the trial court declared a mistrial.

The case was set to be retried in October 2018. On October 3, 2018, a consent order of dismissal was entered, reflecting that Plaintiff had resolved her controversy with

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the City of Memphis and agreed to dismiss her claims against the City with prejudice. On October 4, 2018, Epstein Enterprises and Longview Heights Partners filed a joint motion pursuant to Tennessee Rule of Civil Procedure 15.01 seeking to amend their answers in order to assert comparative fault of the City of Memphis, Shelby County, the individual who owned the dogs, and the individual who released the dogs. Plaintiff filed a response in opposition to the motion to amend, arguing that the remaining defendants should not be permitted to amend their answers to assert comparative fault when their answers were filed in 2012 and 2013 and the case was set to be retried in a matter of days, with trial beginning on October 15. Plaintiff asserted that the remaining defendants' attorney had been aware of her settlement with the City since mid-August.

After a hearing on October 12, the trial court entered an order denying the remaining defendants' motion to amend their answers to assert comparative fault. The trial court cited their "undue delay" in filing the motion, less than two weeks before the case was set to be retried. Noting that the retrial was scheduled to begin "in just three days" after the hearing, the trial court found that allowing the amendment at that late date would cause undue prejudice to Plaintiff. As a result, the trial court ruled that the remaining defendants would not be able to introduce evidence at trial showing that others caused the injuries at issue.

The second jury trial was held from October 15 to October 18, 2018. Mr. Epstein testified as to his role with Epstein Enterprises and Longview Heights Partners. Since his father's death in 2004, Mr. Epstein had been the sole member of both entities. He testified that Epstein Enterprises manages apartment complexes in Memphis, including the apartment complex at issue at 230/236 North Manassas. The complex was owned by a different entity, Longview Heights Partners, but Mr. Epstein was the sole partner in that partnership. Longview Heights Partners also owned other apartment complexes in Memphis.

Mr. Epstein explained that the Manassas apartment complex is very small, consisting of two six-unit buildings that face each other, with a courtyard between them. Because the complex is so small, there was no on-site property manager, but Mr. Epstein drove by the property on a weekly basis. He testified that he could see up and down the sides of both buildings from the street and normally did not stop his vehicle during his inspections. Mr. Epstein admittedly knew about the two pit bull dogs being kept at the Manassas apartment complex before the date of the attack. According to Mr. Epstein, he first became aware of the dogs on Monday, July 12, eight days before the attack on July 20. He testified that he drove by the complex for one of his routine weekly drive-by inspections of the property and noticed the dogs tied to a railing.

The following photograph of the two dogs was introduced at trial:

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Image materials not available for display.

Mr. Epstein testified that when he saw the dogs for the first time on July 12, they were tied to the bottom stair railing of the apartment building below:

Image materials not available for display.

Mr. Epstein drove into the complex, got out of his vehicle, and approached the building. He testified that the dogs were not agitated, barking, or growling. The dogs were "just standing there" tied to the rail. Mr. Epstein testified that he "wasn't going to approach

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them" but that he was close enough to see and hear them.2 He admittedly perceived that the dogs could pose a "potential" danger in the future. However, he had never had a dog harm anyone on one of his properties and conceded at trial, "that wasn't my first concern." Mr. Epstein said he was more concerned with the property damage that such large dogs could do inside a 450 square foot apartment. The standard lease for the apartment complex provided that no pets were permitted without express written permission of Epstein Enterprises.

Mr. Epstein approached a group of individuals standing outside the apartment building and asked who owned the dogs. They said that the dogs belonged to the boyfriend of the woman who rented the upstairs apartment. The individuals told Mr. Epstein that she was out of town but that her boyfriend had moved in with the dogs and that he was upstairs. Mr. Epstein testified that he decided to act quickly to remove the tenant and the dogs in order to protect his property and also the peace of his tenants. At the same time, however, Mr. Epstein did not believe that the dogs posed an immediate danger. He had a standing appointment to meet his attorney at court every Thursday to handle various matters, so he decided to address the situation with his attorney that day and proceed with eviction of the tenant.

Mr. Epstein saw the dogs on Monday, July 12, and his attorney filed a detainer warrant to evict the tenant on Thursday, July 15. The tenant was served the following day, on Friday, July 16. Mr. Epstein obtained a judgment for possession on July 22, one week after he filed the detainer warrant. However, by that time, the attack had already occurred on July 20. At trial, Mr. Epstein acknowledged that he could have filed a detainer...

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