James McMillin v. Paul Lindsey McMillin ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 10, 2014
JAMES McMILLIN ET AL. v. PAUL LINDSEY McMILLIN ET AL.
Appeal from the Chancery Court for Knox County
No. 184965-2 Daryl R. Fansler, Chancellor
No. E2014-00497-COA-R3-CV-FILED-MARCH 31, 2015
The plaintiffs are siblings and two of the four adult children of the decedent. The
defendants include a third adult child and his wife. In the months preceding her death,
the decedent changed her bank accounts, originally titled solely in her name, to become
joint accounts with the defendant son with right of survivorship. The plaintiffs asserted
that the defendant sibling exerted undue influence over the decedent in these transactions.
They sought the return of all monies withdrawn from those bank accounts to the
decedent‟s estate. Following a two-day trial, the jury rendered a verdict for the plaintiffs
in the amount of $284,800. The defendants have appealed. Discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.
Paul L. McMillin, Knoxville, Tennessee, Pro Se.
Johneta McMillin, Knoxville, Tennessee, Pro Se.
Bruce Hill, Sevierville, Tennessee, for the appellees, James McMillin and Iris Davenport.
OPINION
I. Factual and Procedural Background
This case involves the issue of whether the eighty-two-year-old decedent, Dorothy
Jean McMillin (“Decedent”), was acting under the undue influence of her adult son, Paul
McMillin, when she made him joint owner of her bank accounts in the months preceding
her death in November 2012. Decedent was the mother of three other adult children:
James McMillin, Iris Davenport, and Linda Cole.1 In the spring of 2012, Decedent was
living alone in her home when Paul2 came to visit and discovered her lying on the floor,
unconscious and unresponsive. Decedent was diabetic and suffered from Chronic
Obstructive Pulmonary Disease, congestive heart failure, and numerous other physical
maladies. She was known to be reclusive and seldom left her home or allowed visitors
inside. Upon Paul‟s discovery of Decedent‟s unresponsive condition, she was
immediately taken to the hospital by ambulance, where her blood sugar level was
determined to be dangerously high.
Following her release from the hospital, Decedent convalesced in a rehabilitation
center for a few weeks while regaining her strength. During Decedent‟s absence from
her home, Paul and his wife, Johneta, assisted by Paul‟s sister, Ms. Davenport, cleaned
Decedent‟s home and replaced the carpet therein, having discovered the home to be in a
serious state of disorder. Decedent was able to return to her home, albeit with assistance,
for a period of time. Paul helped care for Decedent, transporting her wherever needed.
According to Paul, Decedent‟s mental state was good, affording Decedent complete
control of her personal affairs and finances. As explained, he complied with Decedent‟s
directions to take her on various errands, including trips to the bank so that she could
withdraw money on occasion.
In early June 2012, Decedent asked Paul to transport her to the office of her
attorney, Robert Wilkinson. Upon doing so, Paul learned that Decedent wished to change
her last will and testament to name Paul to be her personal representative. Her prior will
designated James to serve in such capacity. Regarding the distribution of her estate,
Decedent expressed a desire that her children share equally. Decedent also directed Mr.
Wilkinson to change her power of attorney so as to designate Paul as her attorney-in-fact,
rather than James. Mr. Wilkinson drafted Decedent‟s will and power of attorney
according to her expressed desire, facilitating Decedent‟s execution of these documents
on June 26, 2012.
1
Ms. Cole is not a party to this action.
2
Although this Court generally refers to parties and witnesses by respective surnames, for ease of
reference we have chosen at times to use first names in referring to siblings James and Paul McMillin.
2
At approximately the same time, Decedent asked Paul to transport her to two
banks wherein she maintained accounts solely in her name. While at the financial
institutions, Decedent changed those accounts to be titled jointly with Paul with right of
survivorship. According to Paul, Decedent also indicated that she wished to build a new
home on the six-acre tract of real property that contained her existing home. As plans
were selected and purchased, construction began on the new home, with Paul acting as
general contractor. Soon Paul withdrew large sums of money from the joint bank
accounts, claiming the funds were utilized for the construction of Decedent‟s new home.
Decedent eventually fell ill again and required another hospital visit, followed by
an additional stay in the rehabilitation center. Upon her release, Decedent moved in with
Paul and Ms. McMillin. Although construction on her new home continued, Decedent
unfortunately did not live to see the home completed. She passed away on November 18,
2012. Following Decedent‟s passing, Paul continued to withdraw money from the joint
bank accounts as construction of the home proceeded. He also presented to the court
Decedent‟s will for probate and was granted letters testamentary. As personal
representative, Paul distributed approximately $170,000 to himself and $170,000 to each
of his three siblings from Decedent‟s estate, in accordance with the provisions of the will.
On March 28, 2013, siblings James and Ms. Davenport (collectively “Plaintiffs”)
filed the instant action against Paul and Ms. McMillin (collectively “Defendants”).
Plaintiffs asserted that Paul had a confidential relationship with Decedent and exercised
undue influence over her. According to Plaintiffs, Decedent suffered from dementia and
other serious illnesses during the months before her death, making her susceptible to such
influence. Plaintiffs claimed that Paul had convinced Decedent to change the ownership
of her bank accounts, making them jointly owned with Paul with right of survivorship.
As Paul had withdrawn the money from these accounts and placed the funds in his joint
account with Ms. McMillin, Plaintiffs also asserted that a constructive trust should be
placed on those funds and that all of the funds should ultimately be reimbursed to
Decedent‟s estate.
A jury trial was conducted on February 25 and 26, 2014. Defendants appeared
and participated as self-represented during the trial. Multiple witnesses testified,
including, inter alia, all four siblings, Mr. Wilkinson, bank representatives, and two of
Decedent‟s doctors. Following deliberations, the jury returned a verdict in favor the
Plaintiffs in the amount of $284,800. Defendants filed separate motions for new trial,
which the trial court denied. As the court determined that there existed more than
sufficient evidence to support the jury‟s verdict, it affirmed the verdict as thirteenth juror.
Defendants timely filed notices of appeal.3
3
Plaintiffs filed a motion seeking dismissal of this appeal and an award of attorney‟s fees, asserting that
the appeal was frivolous because it sought to appeal an order entered in a separate Knox County Chancery
3
II. Issues Presented
Paul McMillin raises the following issues for our review, which we have restated
slightly:
1. Whether the jury erred in finding that a confidential relationship existed
between Paul McMillin and Decedent whereby he exercised undue
influence over her.
2. Whether Paul McMillin received a benefit by removing funds from a
jointly held financial account.
Ms. McMillin raises the following additional issues, which we have also restated:
3. Whether the trial court erred in failing to charge the jury regarding
certain banking laws applicable to joint financial accounts.
4. Whether the jury properly applied the evidence regarding joint bank accounts
in rendering its verdict.
5. Whether the trial court erred in allowing expert witness Dr. Oliveira to
testify over the objection of Defendants.
6. Whether Ms. McMillin‟s due process rights were violated during jury
selection and other stages of trial.
7. Whether the trial court should have considered Ms. McMillin‟s liability
at some point prior to the post-trial motion hearing.
III. Standard of Review
As our Supreme Court has explained:
Rule 13(d) of the Tennessee Rules of Appellate Procedure provides that
“[f]indings of fact by a jury in civil actions shall be set aside only if there is
no material evidence to support the verdict.” As this Court stated in the
Court case wherein Paul was removed as personal representative of Decedent‟s estate. This motion was
deferred to the appellate panel for determination. We have reviewed this motion and find it to be without
merit; accordingly, the motion is denied.
4
recent case of Hodges v. S.C. Toof & Co., “It is well established that when
reviewing a judgment based on a jury verdict, appellate courts are limited
to determining whether there is material evidence to support the verdict.”
833 S.W.2d at 898.
It is the time honored rule in this State that in reviewing a
judgment based upon a jury verdict the appellate courts are not
at liberty to weigh the evidence or to decide where the
preponderance lies, but are limited to determining whether
there is material evidence to support the verdict; and in
determining whether there is material evidence to support the
verdict, the appellate court is required to take the strongest
legitimate view of all the evidence in favor of the verdict, to
assume the truth of all that tends to support it, allowing all
reasonable inferences to sustain the verdict, and to discard all
to the contrary. Having thus examined the record, if there be
any material evidence to support the verdict, it must be
affirmed; if it were otherwise, the parties would be deprived of
their constitutional right to trial by jury.
Crabtree Masonry Co. v. C. & R. Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).
Forrester v. Stockstill, 869 S.W.2d 328, 329-30 (Tenn. 1994).
Regarding the pro se status of Defendants, we note that:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
judicial system. However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant‟s
adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the
5
litigation to the courts or to their adversaries. They are, however, entitled
to at least the same liberality of construction of their pleadings that Tenn.
R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the
courts cannot create claims or defenses for pro se litigants where none exist,
they should give effect to the substance, rather than the form or
terminology, of a pro se litigant‟s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (internal citations
omitted).
IV. Confidential Relationship and Undue Influence
Paul McMillin asserts that the jury erred in finding that a confidential relationship
existed between Decedent and himself whereby he exercised undue influence over his
mother. The issue of whether such a confidential relationship existed is a question of
fact. See In re Estate of Price, 273 S.W.3d 113, 125 (Tenn. Ct. App. 2008). This Court
has previously elucidated:
Confidential relationships can assume a variety of forms, and thus
the courts have been hesitant to define precisely what a confidential
relationship is. Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct.
App. 1974). In general terms, it is any relationship that gives one person
the ability to exercise dominion and control over another. Givens v.
Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002);
Childress v. Currie, 74 S.W.3d at 328; Mitchell v. Smith, 779 S.W.2d at
389. It is not merely a relationship of mutual trust and confidence, but
rather it is one
where confidence is placed by one in the other and the
recipient of that confidence is the dominant personality, with
ability, because of that confidence, to influence and exercise
dominion and control over the weaker or dominated party.
Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973).
Fiduciary relationships are confidential per se because of the legal
status of the parties. They automatically give rise to a presumption of
undue influence with regard to transactions that benefit the fiduciary.
Examples of such fiduciary relationships include that between guardian and
ward, attorney and client, or conservator and incompetent. Kelly v. Allen,
558 S.W.2d 845, 848 (Tenn. 1977); Mitchell v. Smith, 779 S.W.2d at 389;
6
Parham v. Walker, 568 S.W.2d 622, 625 (Tenn. Ct. App. 1978).
Relationships not fiduciary in nature, even those that are inherently
confidential, such as those between family members, are not confidential
per se and require proof of the elements of dominion and control in order to
establish the existence of a confidential relationship. Matlock v. Simpson,
902 S.W.2d at 385-86; Kelly v. Allen, 558 S.W.2d at 848.
Accordingly, evidence that two persons are members of the same
family, without more, lends no support to an undue influence claim. Proof
that one family member exercised dominion and control over another
establishes the existence of a confidential relationship but does not make
out a prima facie claim of undue influence. In addition to proving the
existence of a confidential relationship between two family members, a
will‟s contestant must establish at least one other suspicious circumstance,
such as a transaction benefitting the dominant party in the confidential
relationship.
Kelley v. Johns, 96 S.W.3d 189, 197-98 (Tenn. Ct. App. 2002).
Paul argues that there was no evidence of the existence of a relationship that was
confidential per se because there was no proof that he in fact exercised the authority
granted to him by the power of attorney. We agree. Our Supreme Court has explained
that “[w]hen an unrestricted power of attorney is executed but has not yet been exercised,
good sense dictates that there exists no dominion and control and therefore no
confidential relationship based solely on the existence of the power of attorney.” See
Childress v. Currie, 74 S.W.3d 324, 329 (Tenn. 2002). At trial, no evidence was
introduced to establish that Paul ever acted as Decedent‟s attorney-in-fact.
As previously stated, relationships that are not fiduciary in nature “require proof of
the elements of dominion and control in order to establish the existence of a confidential
relationship.” See Kelley, 96 S.W.3d at 198. Paul contends that there was no such proof
in this case because Decedent was shown to be independent, private, and autonomous in
her decision-making. The burden of proof regarding a confidential relationship rests
upon the parties claiming the existence of such a relationship, which in this case would be
Plaintiffs. See Brown v. Weik, 725 S.W.2d 938, 945 (Tenn. Ct. App. 1983). As this
Court has explained:
A confidential relationship in this context is not merely a relationship of
mutual trust and confidence, but rather a relationship in which confidence is
placed in one who is the dominant personality in the relationship, with the
ability, because of that confidence, to exercise dominion and control over
7
the weaker or dominated party. Iacometti v. Frassinelli, 494 S.W.2d 496,
499 (Tenn. Ct. App. 1973).
[T]here must be a showing that there were present the
elements of dominion and control by the stronger over the
weaker, or there must be a showing of senility or physical and
mental deterioration of the donor or that fraud or duress was
involved, or other conditions which would tend to establish
that the free agency of the donor was destroyed and the will
of the donee was substituted therefor.
Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977) (emphasis added).
Evidence of one party‟s deteriorated mental or physical condition will
substantiate the existence of a confidential relationship if the condition
renders the weaker party unable to guard against the dominant party‟s
imposition or undue influence. Williamson v. Upchurch, 768 S.W.2d 265,
270 (Tenn. Ct. App. 1988). Still, “[t]he core definition of a confidential
relationship requires proof of dominion and control,” and the question of
whether undue influence existed should be decided by the application of
sound principles and good sense to the facts of each case. Childress v.
Currie, 74 S.W.3d 324, 329 (Tenn. 2002). In undue influence cases, the
question for us “is not whether the weaker party‟s decision was a good one,
or even whether he knew what he was doing at the time.” Williamson v.
Upchurch, 768 S.W.2d at 270. Instead, we must determine “whether the
weaker party‟s decision was a free and independent one or whether it was
induced by the dominant party.” Id.
In re Estate of Reynolds, No. W2006-01076-COA-R3-CV, 2007 WL 2597623 at *8
(Tenn. Ct. App. Sept. 11, 2007).
Pursuant to the applicable standard of review, in determining whether there is
material evidence to support the verdict that a confidential relationship existed between
Paul and Decedent, this Court is “required to take the strongest legitimate view of all the
evidence in favor of the verdict, to assume the truth of all that tends to support it,
allowing all reasonable inferences to sustain the verdict, and to discard all to the
contrary.” See Forrester, 869 S.W.2d at 329-30. “Having thus examined the record, if
there be any material evidence to support the verdict, it must be affirmed . . . .” Id.
In the case at bar, there was evidence that Decedent suffered some degree of
mental confusion in the months before her death. Paul, James, and Ms. Davenport all
testified that Decedent was unable to care for herself or properly take her medications as
8
prescribed. Ms. Davenport acknowledged at trial that the siblings should have sought a
conservatorship for Decedent, although she did not believe they could agree to do
anything in concert. Barbara Pullen, Decedent‟s neighbor and friend, who spoke to
Decedent two to three times per week, testified that Decedent became agitated and
mentally confused during the months before her death. Another neighbor, Erma Jean
Hardin, whose friendship with Decedent spanned forty years, claimed to speak and visit
with Decedent frequently. As Ms. Hardin explained, Decedent should have been
relocated to a nursing home for Decedent‟s well-being. According to Ms. Hardin,
Decedent suffered a level of confusion and was unable to care for herself or properly take
her medication. Ms. Hardin further stated that Decedent was unhappy that Paul was
building her a new home because she instead wished to live in her existing home. Ms.
Hardin related that Decedent complained that Paul was attempting to tell Decedent what
to do.
Dr. Odacir Oliveira, a clinical psychologist with a specialty in neuropsychology
and geriatrics, testified that despite never meeting Decedent, he had examined an MRI
conducted on Decedent‟s brain in 2012. Dr. Oliveira opined that Decedent‟s MRI
reflected brain atrophy, which would affect the Decedent‟s ability to make decisions.
According to Dr. Oliveira, persons with conditions similar to Decedent could be
vulnerable to influence by someone expressing a willingness to serve as caregiver. Most
significantly, Paul admitted that he considered Decedent as being susceptible to
manipulation as early as 1998. Ergo, taking the strongest legitimate view of all the
evidence in favor of the jury‟s verdict, allowing all reasonable inferences to sustain the
verdict, and discarding all evidence to the contrary, we determine that there was clearly
material evidence to support the jury‟s finding that a confidential relationship existed.
Where there is a “confidential relationship, followed by a transaction wherein the
dominant party receives a benefit from the other party, a presumption of undue influence
arises, that may be rebutted only by clear and convincing evidence of the fairness of the
transaction.” See Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn. 1995). Once a
confidential relationship has been shown and a presumption of undue influence arises, the
burden shifts to the dominant party to rebut the presumption by proving the fairness of
the transaction by clear and convincing evidence. Id. at 386. Paul asserts that in this
case, there is no proof that he received a benefit from Decedent because he removed
funds from financial accounts in which he was joint owner with Decedent and placed
such monies into an account in which he was joint owner with his wife. According to
Paul, because he had an ownership interest in both accounts, he received no benefit by
the transfer of these funds. We disagree.
The issue is not whether Paul received a benefit when he withdrew funds from the
accounts he held jointly with Decedent and deposited the funds into other accounts. The
9
issue is whether Paul received a benefit when Decedent established him as joint owner
with right of survivorship in accounts she previously maintained in her sole name. There
can be no question that he did receive a benefit by virtue of these transactions. See Smith
v. Smith, 102 S.W.3d 648, 653 (Tenn. Ct. App. 2002) (holding that an adult child
received a benefit from being named joint tenant with right of survivorship on his
mother‟s bank account). The evidence demonstrated that when Paul was named joint
owner of these accounts, he was afforded unfettered access to over $615,000 in funds.
Paul admitted that he received some $615,000 from these accounts both before and after
Decedent‟s death, which he withdrew by virtue of his status as a joint account holder.
Before Decedent added his name to these accounts, Paul possessed no ability to access
these funds and held no legal interest therein. Thus, Paul clearly received a benefit by
being named a joint owner of these funds initially belonging to Decedent.
Having found the existence of a confidential relationship coupled with transactions
whereby Paul received a benefit from Decedent, the presumption of undue influence
arose. See Matlock, 902 S.W.2d at 386. Accordingly, Paul was required to show the
fairness of the transactions by clear and convincing evidence. Id. He could not do so in
this case, however, as Decedent‟s will evinced a clear and unambiguous intent by her that
her children share equally in her estate. Paul did not dispute that this was Decedent‟s
intent. He further presented no evidence to support the fairness of the transactions in
question.
Paul attempted to demonstrate that all sums he withdrew from Decedent‟s
accounts were used to construct her new house. He admitted, however, that while he had
received funds from these accounts totaling $615,000, he had only expended
approximately $370,000 in the construction of the house. Paul later attempted to recant
this testimony, although he provided no proof to the contrary. Plaintiffs, however,
presented evidence in the form of cancelled checks, bank statements, and withdrawal
slips to substantiate their claims regarding the amount of funds withdrawn. Conversely,
Paul presented no substantiation of his claim that he spent $370,000 on building
Decedent‟s home. Further, Paul admitted that the house had been appraised at a value of
approximately $320,000. He provided no explanation for the disposition of the balance
of the $615,000, except to state that he withdrew cash for Decedent‟s use in paying her
bills at her direction. The jury‟s verdict of $284,800 reflects the approximate difference
between the $615,000 removed from Decedent‟s accounts and the appraised value of the
new home. Upon our careful review of the record, we conclude that there is material
evidence to support the jury‟s verdict both in substance and amount, and the verdict must
be affirmed. See Forrester, 869 S.W.2d at 329-30.
10
V. Issues Presented by Ms. McMillin
Turning now to the issues raised by Ms. McMillin, we note initially that certain
issues presented cannot be considered on appeal because they were not raised in her
motion for new trial. Tennessee Rule of Appellate Procedure 3(e) provides in relevant
part:
[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or
other action committed or occurring during the trial of the case, or other
ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as
waived.
As our Supreme Court has elucidated:
In Mason v. Tenn. Farmers Mut. Ins. Co., 640 S.W.2d 561 (Tenn. Ct. App.
1982), our Court of Appeals specifically addressed the failure of a party to
challenge the propriety of a jury instruction and concluded that Rule 3(e) of
the Tennessee Rules of Appellate Procedure barred consideration of the
issue on appeal:
[T]he reason therefor is to allow the trial court to rectify any
errors that might have been made at trial and to avoid “appeal
by ambush.” The rule is not new in this jurisdiction, having
been the law prior to the adoption of the existing rules of
appellate procedure.
Id. at 563 (citation omitted). The comments to Rule 3 support that
conclusion and make reference to Rule 36(a) for the proposition that “relief
need not be granted to a party who fails to take whatever action is
reasonably available to prevent or nullify the harmful effect of an error.”
Tenn. R. App. P. 3(e), Advisory Comm‟n Comments. The Advisory
Commission Comments to Rule 36(a) provide that “[t]he last sentence of
this rule is a statement of the accepted principle that a party is not entitled
to relief if the party invited error, waived an error, or failed to take
whatever steps were reasonably available to cure an error.” Tenn. R. App.
P. 36(a), Advisory Comm‟n Comments. Generally, a party to a lawsuit
cannot complain of an error if he created the situation. Waterhouse v.
Perry, 195 Tenn. 458, 260 S.W.2d 176, 178 (Tenn. 1953). Typically, an
11
issue not brought to the trial court‟s attention in the motion for new trial
cannot be raised on appeal unless it amounts to plain error “„seriously
affect[ing] the fairness, integrity, or public reputation of judicial
proceedings.‟” Manning v. State, 500 S.W.2d 913, 914 (Tenn. 1973)
(quoting Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 8
L. Ed. 2d 798 (1962)). There has been no specific allegation of plain error in
this instance and no argument addressing the factors permitting its
application.
Waters v. Coker, 229 S.W.3d 682, 689-90 (Tenn. 2007).
In her brief, Ms. McMillin raises several issues regarding, inter alia, jury
instructions, juror questionnaires, the admission of expert testimony, and the conduct of
the trial proceedings. Ms. McMillin did not, however, raise these issues in her motion for
new trial. Due to this omission, this Court cannot consider these issues on appeal. See
Tenn. R. App. P. 3; see also Fahey v. Eldridge, 46 S.W.3d 138, 142 (Tenn. 2001).
Further, Ms. McMillin‟s issue regarding the propriety of the jury‟s verdict has been fully
addressed above.
Ms. McMillin also did not make any allegations of plain error. As this Court has
previously explained:
Under Rule 103(d) of the Tennessee Rules of Evidence and Rule 36(b) of
the Tennessee Rules of Appellate Procedure, this Court may “take notice of
„plain errors‟ that were not raised in the proceedings below.” Any
consideration of a “plain error” lies within the discretion of the appellate
court. Moreover, Rules 13(b) and 36(a) of the Tennessee Rules of
Appellate Procedure give the appellate court the discretion to consider
issues that have not been properly presented, in order to achieve fairness
and justice.
Pearson v. Ross, No. W2011-00321-COA-R3-CV, 2011 WL 6916194 at *5 (Tenn. Ct.
App. Dec. 28, 2011) (internal citations omitted). Plain error has been defined as error “of
such a great magnitude that it probably changed the outcome of the trial.” See State v.
Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). Even had Ms. McMillin specifically alleged
plain error herein, our thorough review of the record has revealed no such error.
VI. Jury Selection Issue
Ms. McMillin also presents an issue regarding whether her due process rights were
violated when the trial court engaged in a sidebar discussion with counsel for Plaintiffs
12
and Paul concerning a juror without inviting Ms. McMillin to participate. As this issue
was raised in Ms. McMillin‟s motion for new trial and specifically addressed by the trial
court, we will consider the matter on appeal.
As the trial court noted during the post-trial motion hearing, the transcript reflects
that counsel for Plaintiffs, Ms. McMillin, and Paul had all passed their jury ballots to the
court when a question was raised regarding one of the jurors. When the court directed
Paul and Plaintiffs‟ counsel to approach the bench, Ms. McMillin did not approach. A
sidebar discussion followed, resulting in the juror being asked whether she was employed
at Home Depot or Summit Medical. The juror responded that she did not work at Home
Depot but that she did work at Summit Medical. As the matter was not further addressed,
the jurors were empaneled.
Ms. McMillin now argues that as the respective juror works at her physician‟s
office, Summit Medical, such circumstance places the juror‟s impartiality in question. As
the trial court noted, Ms. McMillin did not ask any questions of this juror. She likewise
did not raise any issue relative to the juror‟s employment as the jury had already been
accepted by Ms. McMillin at that point. While the trial court specifically inquired of Ms.
McMillin if she wished to question the jurors, she chose not to do so. Ms. McMillin has
not shown any alleged misconduct by the juror, the court, or opposing counsel, and she
has demonstrated no violation of her due process rights. We find this issue to be without
merit.
VII. Conclusion
For the reasons stated above, we affirm the judgment of the trial court. Costs on
appeal are assessed equally to the appellants, Paul and Johneta McMillin. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the judgment
and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
13