Barbara Cornett v. Deere & Company, General Equipment and Vernon Keith ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
BARBARA CORNETT, ) FILED
)
Plaintiff/Appellant, ) Appeal No. August 3, 1999
) 01A01-9808-CV-00405
Cecil Crowson, Jr.
v. )
Appellate Court Clerk
) Warren Circuit
DEERE & COMPANY, ) No. 8344
GENERAL EQUIPMENT and )
VERNON KEITH, )
)
Defendants/Appellees. )
)
APPEAL FROM THE CIRCUIT COURT
FOR WARREN COUNTY
THE HONORABLE JOHN TURNBULL PRESIDING
HELEN LOFTIN CORNELL
3635 Woodmont Boulevard
Nashville, Tennessee 37215
CHARLES E. HARDIMAN, JR.
309 West Due West Avenue
Madison, Tennessee 37115
ATTORNEYS FOR PLAINTIFF/APPELLANT
SAMUEL L. FELKER
JOHN C. HAYWORTH
BASS, BERRY & SIMS PLC
2700 First American Center
Nashville, Tennessee 37238
ATTORNEYS FOR DEFENDANT/APPELLEES
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, J.
CAIN, J.
OPINION
This personal injury case arose when Plaintiff Barbara Cornett
sustained injuries while operating a lawn mower manufactured by Defendant
Deere & Company and sold by General Equipment and its owner Vernon Keith.
Ms. Cornett sued, alleging negligence, breach of warranty, and strict liability.
She also sought punitive damages. The first trial concluded with a directed
verdict for the defendants at the conclusion of the evidence. The trial court,
however, granted Ms. Cornett a new trial.1 In the second trial, the court granted
directed verdicts to Vernon Keith on all issues, to both General Equipment and
Deere & Company on the issues of negligence and punitive damages and to
General Equipment on the strict liability claim. The jury returned a defense
verdict on the remaining breach of warranty and strict liability claims. Ms.
Cornett appeals, alleging ten errors. We affirm.
Barbara Cornett injured her right arm and left knee in June 1993, when
she drove her father's riding lawn mower off a three-foot embankment.
According to the trial court, the parties stipulated that Ms. Cornett sustained
injuries in the amount of $5,000.
The accident at issue occurred after the mower's third use as Ms.
Cornett was attempting to turn left and run the mower parallel to a retaining wall.
Its steering purportedly locked and the mower would not turn. Ms. Cornett
maintained she had insufficient time to brake before the mower careened over
the embankment because both the clutch and the brake had to be engaged before
the mower would stop.
1
The judge from the first trial recused himself after granting the motion for
new trial.
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For the second trial, Ms. Cornett retained three experts. They theorized
that the metal in the mower's wheel stops was defective and the wheels bent
outward, allowing the steering mechanism to lock in a fully steered position,
causing Ms. Cornett's injury. Her experts also determined that (1) misassembly
of the gasoline over-flow hose could permit it to entangle with the steering sector
gear; (2) the plastic housing for the steering sector gear, steering rod, and
gasoline over-flow hose, which they identified as the steering pedestal, was so
weak, it could fracture, resulting in a loss of steering; and (3) the two-pedal
braking system represented a design defect and an unreasonable danger. Prior
to trial, the court limited these experts' testimony to the mower's wheel stops and
excluded testimony concerning the steering pedestal or gasoline overflow hose.
During voir dire, several venirepersons admitted to knowing Vernon
Keith. The trial court inquired whether their relationship with Keith was such
that they would feel discomfort if they had to decide the lawsuit against him.
Those that unequivocally answered in the affirmative were excused. The court
permitted additional voir dire by counsel on those who were unsure.
At the close of the evidence, the trial court granted directed verdicts to
all the defendants on the issues of negligence and punitive damages. General
Equipment was also granted a directed verdict on the strict liability claim. The
court directed verdicts for Vernon Keith on all issues. The jury found for the
defendants on the remaining issues. After the verdict was announced, the
foreman complimented the members of the jury and then stated, "due to the fact
that the plaintiff failed to proof [sic] beyond a shadow of a doubt it was faulty
equipment, we had to go the way we did."
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I.
Ms. Cornett argues that the trial court erred in excluding her experts'
testimony concerning defects on the mower other than the wheel stops.
Appellees respond that the absence of any evidence supporting the other theories
rendered them irrelevant.
Trial courts perform a gatekeeping function to guard the jury from
considering as evidence speculation presented in the guise of legitimate
scientifically based expert opinion. McDaniel v. CSX Transp., Inc., 955 S.W.2d
259, 263 (Tenn. 1997), cert. denied, __U.S. __, 118 S.Ct. 2296, 141 L.Ed.2d 157(1998). When an expert's opinion lacks a factual basis, it has no probative value
and is therefore irrelevant and inadmissible. See State v. Williams, 657 S.W.2d
405, 412-413 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79
L.Ed.2d. 753 (1984). An expert's speculative testimony
that a certain thing is possible is no evidence at all. His
opinion that a certain thing is possible is no more valid than
the jury's own speculation as to what is or is not possible .
. . . The mere possibility of a causal relationship, without
more, is insufficient.
Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (quoting Lindsey v.
Miami Development Corp., 689 S.W.2d 856, 861-861 (Tenn. 1985)). The
exclusion of expert testimony is reviewed for abuse of discretion. See State v.
Tizzard, 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994).
The excluded testimony at issue was as follows: (1) the over-flow hose
may have interfered with the steering gears; (2) the steering pedestal could have
fractured and interfered with the steering; and (3) the two-pedal braking system
was unreasonably dangerous. Ms. Cornett has pointed to no evidence showing
that the over-flow hose on the mower she used actually did interfere with the
steering gears or that the steering pedestal actually fractured. Absent such
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evidence, there was no factual basis for admitting the testimony, rendering it
purely speculative. Ms. Cornett's own testimony that the accident occurred so
quickly she never applied the brakes rendered irrelevant and inadmissible the
testimony that the two-pedal braking system was unreasonably dangerous. In
light of the total absence of proof that the mower at issue showed any signs of
these defects and the undisputed evidence that no attempt to brake was made, we
cannot say the trial court abused its discretion in excluding the testimony at
issue. Id.II.
Ms. Cornett argues that the trial court erred in failing to excuse three
jurors for cause. She claims the first had lived near Vernon Keith, the second
played basketball with him, and the third had business dealings with him over the
years. She asserts in her brief, "[a]lthough counsel for Plaintiff requested that
these jurors be challenged for cause and removed from the jury, the Court
refused to do so, and these persons comprised part of the June 8-10, 1998 jury
in this case."
The record does not support Ms. Cornett's statement that all three jurors
served on the jury and that she challenged them all for cause.2 Only one of these
three venirepersons, the individual who played basketball with Mr. Keith, Mr.
Vinson, actually served as a juror. When asked if his relationship with Mr. Keith
would impede his ability to act impartially, this juror stated, "I don't think so, but
it might make me a little uncomfortable." He later stated he would try not to let
2
The trial took place in McMinnville, Tennessee, a fairly small town where
"everybody knows everybody else," according to the trial court. The court
excused Mr. Keith's neighbor. Ms. Cornett used a peremptory challenge on the
juror who had business dealings with Mr. Keith.
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the relationship interfere if it was a close case, but added that he "did not know
for sure." The trial court then allowed counsel to question the juror further.
Ms. Cornett never challenged this decision. Nor did she question the
juror further regarding his relationship with Mr. Keith. Compare Ricketts v.
Carter, 918 S.W.2d 419 (Tenn. 1996). Furthermore, Ms. Cornett failed to
request the court to strike the juror for cause or peremptorily strike him herself.
The issue is, therefore, waived. Tenn. R. App. P. 36 (a); see State v.
Lautenschlager, No. 02C01-9702-CC-00051, 1998 WL 28048 at * 3 (Tenn.
Crim. App. January 26, 1998) (Tenn. R. App. P. 11 application denied). "The
right to challenge propter defectum [on account of an alleged legal
disqualification] ends when the jurors are accepted and sworn. By waiver the
juror becomes a legal juror." Manning v. State, 155 Tenn. 266, 272, 292 S.W.
451, 453-454 (1926).
III.
Ms. Cornett argues that the trial court erred in failing to grant a change
of venue, mistrial or new trial based the jury's familiarity with the parties. We
disagree.
In all civil jury trials, "the venue may be changed, at any time before
trial, upon good cause shown . . . ." Tenn. Code Ann. § 20-4-201 (1) (Supp.
1995). The party seeking a change of venue
shall make a statement of facts, in writing, under oath or
affirmation, that he verily believes that, owing to prejudice,
or other causes, then existing, he cannot have a fair and
impartial trial in the county, . . . where the cause is pending,
the truth of which statement shall, in a court of record, be
verified and supported by the oath of at least three (3), . . .
respectable and disinterested persons.
Tenn. Code Ann. § 20-4-203 (1980). The denial of a motion for change of venue
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is ordinarily reviewed for abuse of discretion. See Tennessee Gas Transmission
Co. v. Oakley, 193 Tenn. 638, 642, 249 S.W.2d 880, 881 (1952).
Prior to trial, Ms. Cornett moved for a change of venue on the ground
that Warren County was an inconvenient forum for her attorneys and witnesses
and an impartial jury could not be obtained due to the venire's familiarity with
Ms. Cornett, Mr. Keith, and General Equipment. As verifying and supporting
witnesses, Ms. Cornett offered David Cornett, Carey Hambrick, one of Ms.
Cornett's witnesses, and Ms. Cornett's two attorneys. After reviewing Appellees'
response to the motion, Ms. Cornett provided additional witnesses.
We see no abuse of discretion here. The reasons underlying Ms.
Cornett's motion for change of venue were insufficient to establish "good cause."
We reject her contention that mere knowledge of a party's existence, without
more, justifies a change of venue. Further, Ms. Cornett made no showing that
the denial of this motion was prejudicial to her. See Scott v. Jones Brothers
Constr. Inc., 960 S.W.2d 589, 594 (Tenn. App. 1997) (both harm and error are
required for reversal); Tenn. R. App. P. 36 (b).
In her brief, Ms. Cornett states, "In the present case, where all of the
jurors knew Defendant Vernon Keith, many of them knowing him well , . . .
venue should have been changed. . . ." The record refutes this statement. In
fact, six prospective jurors knew him, but only one served as a juror. Voir dire
questioning established that most of the jurors were not familiar with Ms. Cornett
or the defendants, including Mr. Keith.
As to Ms. Cornett's argument concerning the newspaper articles, the
record shows that during trial the local paper published an article on Ms.
Cornett's law suit. The trial court stated to the jury:
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It's been brought to my attention there was a little article and
[sic] contains some inaccuracies and whether it is accurate or
not. The jury will be disregarding this if they consider any
story in the newspaper. You don't try cases based upon
newspaper stories or street talk. You will disregard the
newspaper. That is not evidence and cannot be considered
by the jury in making their determination of this case. The
parties stipulated as a result of injuries that Ms. Cornett
sustained in the amount of $5,000 and those bills necessary
for her treatment and reasonable in that amount. That does
not mean the defendant says they owe them. In fact, they say
they do not because they are not at fault but they are
stipulating those bills, is that correct?
Both counsel answered in the affirmative. The record shows that Ms. Cornett
never requested that the court inquire whether any jurors had actually read the
paper. She never objected to the trial court's handling of the matter. Nor did she
renew her motion for change of venue or seek a mistrial. Her failure to take
action to nullify the harmful effect of the error, if any, or otherwise raise this
issue below, or to demonstrate prejudice, precludes reversal on this ground.
Tenn. R. App. P. 36 (a); see Simpson v. Frontier Community Credit Union, 810
S.W.2d 147, 153 (Tenn. 1991) (issues not properly raised in the trial court cannot
be asserted for the first time on appeal).
IV.
Ms. Cornett argues that the trial court erred by failing to substitute a
juror or grant a mistrial when the jury foreman fell asleep numerous times during
trial.
Having read and considered the record, we find nothing in the trial
transcript showing that any of the jurors were sleeping. Nor is there proof that
Ms. Cornett pointed out this alleged fact to the trial court, much less raised an
objection or moved for a mistrial. Tenn.R.App.P. 36 (a). This record leaves us
with nothing to review.
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V.
Ms. Cornett contends that reversal is required because the trial court
admitted into evidence over-sized enlargements of prejudicial photographs of an
area near the accident site. She maintains that admission of the exhibits violated
Tenn. R. Evid. 403.
Tennessee courts follow a policy of liberality in the admission of
photographs at trial. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978).
"The admissibility of photographs lies within the sound discretion of the trial
court" after due consideration of the evidence's relevance, probative value and
potential for unfair prejudice. Id.; Tenn. R. Evid. 403.
The photographs at issue accurately depicted the yard, although not
necessarily the exact location, where Ms. Cornett was mowing when her injuries
occurred. Defense counsel presented the photographs in an attempt to elicit Ms.
Cornett's testimony on where in the yard her injury occurred. Ms. Cornett's
inability to consistently identify the exact location of her spill left the issue
unresolved, which persuades us that the photographs were not irrelevant. In light
of her failure to specify or demonstrate how the photographs prejudiced her case,
we cannot say the trial court abused its discretion by admitting them. See Scott,
960 S.W.2d at 594.
VI.
Ms. Cornett contends that the trial court erred in failing to instruct the
jury to disregard references to her ownership of a Mercedes Benz raised on
cross-examination. She asserts that the court agreed to instruct the jury to
disregard the evidence but failed to do so.
Ms. Cornett's failure to assert or establish any prejudice arising from
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the evidence is fatal to her argument. Tenn. R. App. P. 36 (b). Moreover,
having reviewed the record, we believe the trial court's failure to give the
instruction was inadvertent. The record reveals that Ms. Cornett did nothing to
call this omission to the court's attention or otherwise prevent the alleged error.
Relief is not required under these circumstances. Tenn. R. App. P. 36 (a); See
Barrett v. Raymond Corp., No. 59, 1991 WL 4996 at * 4 (Tenn. App. January
24, 1991) (no Tenn. R. App. P. 11 application filed).
VII.
Ms. Cornett argues that the trial court erred in directing the verdicts for
the defendants. Although she broadly frames the issue, Ms. Cornett limits her
argument to the strict liability claim, asserting that issues of fact remained to be
tried on whether the mower was defective or unreasonably dangerous. See State
v. McKay, 680 S.W.2d 447, 454 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105
S.Ct. 1412, 84 L.Ed.2d 795 (1985) (when an appellant fails to articulate reasons
to support a conclusory statement, the issue may be deemed waived). She
maintains the issue of whether the metal used in fabricating the wheel stops was
sufficiently strong was a jury question.
Tenn. Code Ann. § 29-28-106 (b) (1980) bars strict liability actions
against sellers of
a product which is alleged to contain a defective condition
unreasonably dangerous to the buyer, user or consumer
unless the seller is also the manufacturer of the product or the
manufacturer of the part thereof claimed to be defective, or
unless the manufacturer of the product or part in question
shall not be subject to service of process in the state of
Tennessee or service cannot be secured by the long-arm
statutes of Tennessee or unless such manufacturer had been
judicially declared insolvent.
The record shows that the trial court did not grant a directed verdict on
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the strict liability claim against Deere & Company. As noted, the jury resolved
that issue against Ms. Cornett. The record also reveals that Mr. Keith and
General Equipment were merely sellers, not the manufacturers of the mower at
issue, and Deere and Company, the manufacturer, was amenable to suit in this
jurisdiction. Thus, the strict liability claim could not be maintained against the
sellers, Mr. Keith and General Equipment. Tenn. Code Ann. § 29-28-106 (b).
Accordingly, Ms. Cornett's argument lacks merit.
VIII.
Ms. Cornett maintains that the verdict is contrary to the weight of the
evidence. She argues that the evidence preponderated in her favor.
In effect, Ms. Cornett seeks a reweighing of the evidence. This we
cannot do.
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 disregard
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 Const., Inc., 575 S.W.2d 4, 5 (Tenn. 1978);
Tenn. R. App. P. 13 (d).
The jury specifically rejected Ms. Cornett's strict liability and breach
of warranty claims. Under the circumstances of this case, those facts presuppose
a finding, fatal to all the claims alleged, that the mower at issue was not defective
or unreasonably dangerous. See Broader v. Pedigree, 541 S.W.2d 402, 404
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(Tenn. 1976).
The evidence amply supports that finding. Ms. Cornett's experts
testified that the accident was caused by weak wheel stops on the mower which
bent outward, allowing the steering to lock in the fully-turned position.
However, the mechanic who repaired the mower shortly after the accident
testified that at that time the wheel stops were straight up in the proper position,
the same as when they left the factory. He stated that he found nothing wrong
with the mower's steering mechanism. This evidence, viewed in the light most
favorable to the verdict, precludes reversal.
IX.
Ms. Cornett contends that the trial court erred in failing to grant a
mistrial or set aside the verdict on the basis that the foreman, after announcing
the verdict, stated, "due to the fact that the plaintiff failed to proof [sic] beyond
a shadow of a doubt it was faulty equipment we had to go the way we did." She
also claims reversal is required because the previously-mentioned newspaper
article about the trial was published on the third day of trial.
The record shows that the jury was properly instructed on the standard
of proof and was permitted to take the instructions into the jury room. It also
shows that Ms. Cornett never responded to the foreman's comment. She made
no objection and did not seek a mistrial. The record contains no evidence that
an incorrect standard of proof was actually applied by the jury.
"Parties seeking a new trial because of alleged jury misconduct must,
at the outset, satisfy the court that they have admissible evidence on the issue."
Caldararo v. Vanderbilt University, 794 S.W.2d 738, 741 (Tenn. App. 1990);
see Patton v. Rose, 892 S.W.2d 410, 413-414 (Tenn. App. 1994). Our
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consideration of this question is controlled by Tenn. R. Evid. 606 (b). That rule
limits inquiry into the validity of a verdict as follows:
Upon an inquiry into the validity of a verdict or an
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury's
deliberations or to the effect of anything upon any juror's
mind or emotion as influencing that juror to assent to or
dissent from the verdict or indictment or concerning the
juror's mental processes, except that a juror may testify on
the question of whether extraneous prejudicial information
was improperly brought to the jury's attention, whether any
outside influence was improperly brought to bear upon any
juror, or whether the jurors agreed in advance to be bound by
a quotient or gambling verdict without further discussion;
nor may a juror's affidavit or evidence of any statement by
the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
Tenn. R. Evid. 606 (b).
We reject Ms. Cornett's characterization of the foreman's comment as
"extraneous prejudicial information." Ordinarily, the issue of whether a jury has
misapplied the law is brought to the court's attention by juror affidavits or
testimony supporting a motion for new trial, rather than, as here, by post-verdict
juror comment. When raised in that context, our courts have consistently held
that "[t]he incorrect application of an otherwise valid jury instruction does not
constitute the impropriety necessary to allow a juror to impeach his verdict by
affidavit." State v. Ward, 663 S.W.2d 805, 808 (Tenn. Crim. App. 1983); see
Goss v. Hutchins 751 S.W.2d 821, 828 (Tenn. 1988); Tennessee Eastern Electric
Co. v. Link, 6 Tenn. App. 617, 625 (1926) .
It is well settled law in this state that a juror can not impeach
her verdict, and that a new trial can not be granted upon the
affidavit of a juror that she misunderstood the instructions
given the jury by the trial judge, provided the instructions
were correct.
State v. Johnson, 632 S.W.2d 542, 549 (Tenn. 1982), cert. denied, 459 U.S. 882,
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103 S.Ct. 183, 74 L.Ed.2d. 148) (1982). We believe this same reasoning applies
where, as here, the jury was properly instructed and the issue of the jury's
potential improper application of the law was verbally raised, if at all, by a lay
juror's gratuitous comment shortly after the verdict was rendered. As noted
previously, the evidence was more than sufficient to support the verdict under the
proper standard of proof.3
Ms. Cornett contends that the previously-mentioned newspaper article
published on the third day of trial constituted extraneous prejudicial information.
In her brief she argues that "members of the jury were exposed to a newspaper
article prejudicial to Plaintiff's case. . . ." The record, however, provides no
evidence that any of the jurors were exposed to the article published on the third
day of trial. See Caldararo, 794 S.W.2d at 742 (if found to be prejudicial, a
juror's exposure to news items about the trial could warrant a new trial). Absent
a such a showing, prejudice cannot be proved. Tenn. R. App. P. 36 (b). Ms.
Cornett's characterization of the purported sleeping juror as extraneous
prejudicial information within the meaning of Tenn. R. Evid. 606 (b) is simply
inaccurate.
X.
Ms. Cornett argues that the trial court erred in twice sanctioning her
counsel for failure to conduct hearings by telephone.4 She claims the first
3
To the extent that Ms. Cornett argues that the jury applied an incorrect
standard of proof to reach the verdict, if the trial court had not been
independently satisfied that the verdict was consistent with the evidence and the
applicable law, it was authorized in its role as the thirteenth juror to grant a new
trial. Ridings v. Norfolk Southern Ry. Co., 894 S.W.2d 281, 288-289 (Tenn.
App. 1994).
4
Ms. Cornett filed a separate notice of appeal on this issue. The order
appealed from had two filing dates. Defendant's moved to dismiss the appeal
for failure to file a timely notice of appeal. Because the record contains no
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occasion occurred during a March 1998 hearing on her motion for summary
judgment and the second occurred during a post-trial hearing on discretionary
costs.
The record belies Ms. Cornett's characterization of the reason for the
sanctions arising from the summary judgment hearing. In a written order of
March 20, 1998, the trial court assessed Ms. Cornett $400 in costs because her
motion bordered on the frivolous. The order included no mention of a request
for a hearing by telephone conference. The trial court's assessment did not
constitute an abuse of discretion. See Krug v. Krug, 838 S.W.2d 197, 205 (Tenn.
App. 1992).
The second sanction occurred in conjunction with the Defendants'
motion for discretionary costs. In its order imposing a $500 sanction on Ms.
Cornett's counsel, the trial court noted that she insisted that Defendants' motion
be heard in open court, notwithstanding the fact that Defendants waived oral
argument. Inasmuch as Ms. Cornett's counsel refused to permit a hearing by
conference call, and in so doing required defense counsel to undertake an
unnecessary out-of-town trip, we decline to find that the trial court abused its
discretion.
To summarize, we affirm the judgment for the defendants in its totality.
In light of this disposition, we need not reach Appellees' contention that the trial
court erred in granting Ms. Cornett's motion for new trial after the initial trial.
Appellees' motion to dismiss this appeal is denied. The case is remanded for
evidence of which date is valid, we deny the motion.
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such further proceedings as may be necessary. Costs are taxed to Ms. Cornett for
which execution may issue.
_____________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
___________________________________
BEN H. CANTRELL, PRESIDING JUDGE (M.S.)
___________________________________
WILLIAM B. CAIN, JUDGE
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