Jennifer Carman v. Joshua Kellon ( 2020 )

12/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 10, 2020 Session
JENNIFER CARMAN ET AL. V. JOSHUA KELLON ET AL.
Appeal from the Circuit Court for Williamson County
No. 2017-674 Michael Binkley, Judge
No. M2019-00857-COA-R3-CV
A jury found the mother of an adult child liable for negligent entrustment after the adult
child injured a jogger while driving his truck. The mother moved for a directed verdict at
the close of the plaintiff’s proof, which the court denied. After the jury returned verdicts
for the plaintiffs, the mother failed to file a post-trial motion seeking a new trial. On appeal,
we conclude that the mother waived her right to contest the trial court’s denial of her motion
for a directed verdict by failing to file a motion asking for a new trial as required by Tenn.
R. App. P. 3(e).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER
and ARNOLD B. GOLDIN, JJ., joined.
Lance Brandon Mayes, Brentwood, Tennessee, for the appellants, Joshua Kellon and
Dayne Kellon.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, Joseph Paul Ahillen, Senior Assistant Attorney General, and Michael Andrew
Womack, Assistant Attorney General, for the appellant, State of Tennessee.
Brandon Eric Bass and Elizabeth Noel Sitgreaves, Brentwood, Tennessee, for the
appellees, Jennifer Carman and Shaun Carman.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Joshua Kellon was driving a pickup truck on March 5, 2017, when he struck Jennifer
Carman, who was jogging along the side of the road in Williamson County. Ms. Carman
suffered extensive injuries as a result of the accident, and she, along with her husband, filed
a complaint against Mr. Kellon for damages, asserting that he was liable for negligence,
negligence per se, and recklessness. The Carmans also named Mr. Kellon’s mother, Dayne
Kellon, as a defendant, claiming she was liable under the theories of vicarious liability and
negligent entrustment.
Ms. Kellon moved for summary judgment, arguing that she was not liable as a
matter of law under a theory of either vicarious liability or negligent entrustment because
she was out of town on the day of the accident and had no ownership interest in the truck
Mr. Kellon was driving. The trial court granted Ms. Kellon’s motion as to vicarious
liability, but it denied the motion with respect to negligent entrustment. According to the
court,
[T]here is no dispute that Ms. Kellon did not purchase the vehicle for Joshua.
The vehicle is titled solely in Joshua’s name and there is no indication on the
title that Ms. Kellon possesses any ownership or security interest in the
vehicle entitling her to control over its use. Moreover, the facts in the record
are devoid of any proof indicating that Ms. Kellon’s financial support of
Joshua provided him the means to operate the vehicle on March 5, 2017,
when the injuries to Ms. Carman took place. The record, however, does
contain facts from which a jury could find that Ms. Kellon enabled her son
to some extent. For example: she supplied money for gas and made loan
payments at a time when Joshua had little or no income. Moreover, while
there is no evidence Ms. Kellon knew of Joshua’s mental and physical state
on the date of the injury to Ms. Carman, there is evidence Ms. Kellon . . .
knew of Joshua’s drug and alcohol use and history of impaired driving.
Whether there is a causal connection between the financial support and the
subsequent accident is for the jury to determine. Likewise, whether Ms.
Carman’s injuries caused by Joshua’s driving were reasonably foreseeable to
a degree sufficient to satisfy causation is a question for the jury.
The case was tried on the 25th, 26th, and 27th of March, 2019. The defendants
moved for a directed verdict at the close of the plaintiffs’ evidence, which the trial court
denied. The jury returned verdicts finding Mr. Kellon liable for recklessness and finding
Ms. Kellon liable for negligent entrustment. The jury apportioned fault between the
defendants, finding Mr. Kellon 60% at fault and Ms. Kellon 40% at fault, and awarded the
plaintiffs economic and noneconomic damages that totaled over thirteen million dollars in
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addition to punitive damages. The trial court issued an Order Entering Trial Judgment on
April 15, 2019. Consistent with the requirements of Tenn. Code Ann. § 29-39-102, the
trial court reduced the jury’s noneconomic damages award to Ms. Carman against Ms.
Kellon to $295,652.17.1 The trial court entered judgment for Ms. Carman against Ms.
Kellon for economic damages in the amount of $1,846,070.94. It entered judgment for
Ms. Carman against Mr. Kellon in the amount of $4,662,329.90 for noneconomic
damages,2 $2,769,106.41 for economic damages, and $2,500,000 for punitive damages.
Mr. Carman was awarded $4,347.83 against Ms. Kellon and $68,563.67 against Mr. Kellon
for his loss of consortium claim. Neither defendant filed any post-trial motions with the
trial court.3
Ms. Kellon appeals the trial court’s judgment against her. She contends that the trial
court erred as a matter of law in denying her motion for a directed verdict on the negligent
entrustment claim. In the alternative, she argues that the trial court committed “plain error”
in failing to grant her a directed verdict on the Carmans’ claim for negligent entrustment.
II. ANALYSIS
A. Motion for Directed Verdict
The Carmans argue that Ms. Kellon waived her right to appeal the trial court’s denial
of her motion for a directed verdict by failing to file a post-trial motion. Pursuant to
Tennessee Rule of Appellate Procedure 3(e), “in all cases tried by a jury, no issue presented
for review shall be predicated upon . . . [an] action committed or occurring during the trial
of the case . . . unless the same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived.” A motion for a new trial “shall be filed and served
within 30 days after judgment has been entered . . . .” TENN. R. CIV. P. 59.02. The
1
Tennessee Code Annotated section 29-39-102 limits each plaintiff’s compensation for noneconomic
damages to $750,000, which is to be apportioned among the defendants if there is more than one. Tenn.
Code Ann. § 29-39-102(a)(2), (b).
The limits of Tenn. Code Ann. § 29-39-102 do not apply to the noneconomic damages award against Mr.
2
Kellon because he pled guilty to a felony causing serious bodily injury to Ms. Carman. See Tenn. Code
Ann. § 29-39-102(h)(4).
3
The Carmans filed a post-trial motion challenging the trial court’s reduction of their noneconomic
damages, claiming that Tenn. Code Ann. § 29-39-102 was unconstitutional because it violated their right
to trial by jury. The trial court agreed and amended its previous judgment accordingly by memorandum
and order entered on August 7, 2019. The State’s Attorney General intervened in the case to defend the
constitutionality of the statute and filed a notice of appeal as intervenor. The Tennessee Supreme Court
addressed the statute and found it to be lawful after this appeal was initiated. See McClay v. Airport Mgmt.
Servs., LLC, 596 S.W.3d 686, 693 (Tenn. 2020). Following the issuance of the McClay opinion, the
Carmans retracted their challenge of the statute’s constitutionality in their appellate brief, and requested
that we reinstate the trial court’s initial judgement entered on April 15, 2019, which reduced their award of
noneconomic damages to comply with the mandates of the statute.
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defendants stated in their notice of appeal that they were appealing the trial court’s order
dated April 15, 2019.
In Mires v. Clay, a case involving a breach of contract that was tried by a jury, the
defendant raised four issues on appeal. Mires, 3 S.W.3d 463, 466 (Tenn. Ct. App. 1999).
One of the issues was whether the trial court had erred in failing to direct a verdict in the
defendant’s favor. Id. At trial the defendant moved for a directed verdict when the plaintiff
rested her case, and he renewed his motion after completing the presentation of his proof.
Id. at 468. The defendant failed, however, to file a post-trial motion for judgment
notwithstanding the verdict or for a new trial. Id. Concluding that the defendant waived
his right to appeal the trial court’s denial of his motion for directed verdict, we stated that
“when the alleged error is the failure of the trial court to grant a directed verdict, either a
motion for a new trial or a post-trial motion seeking entry of judgment in accordance with
a motion for directed verdict made at trial (judgment n.o.v.) is sufficient to preserve the
issue for appeal.” Id. (citing Cortez v. Alutech, Inc., 941 S.W.2d 891, 894-95 (Tenn. Ct.
App. 1996)). “Failure to file either of these post-trial motions,” we explained, “denies ‘the
trial judge the opportunity to consider or reconsider alleged errors committed during the
course of trial’ and precludes appellate review of that issue.” Id. (quoting Cortez, 941
S.W.2d at 894-96); see also Creech v. RMRTN Chatt, LLC, No. W2017-01541-COA-R3-
CV, 2018 WL 4334162, at *6 (Tenn. Ct. App. Sept. 11, 2018) (citing Tenn. R. App. P.
3(e), court held appellants waived their right to appeal trial court’s denial of their motion
for directed verdict by failing to raise denial in their motion for new trial); In re Estate of
Calfee, No. E2000-01720-COA-R3-CV, 2001 WL 584248, at *2 (Tenn. Ct. App. May 31,
2001) (“Even if a motion for a directed verdict had been made at trial, Appellants’ failure
to file any post-trial motion on this issue prohibits appellate review.”).
In Waters v. Coker, a case involving medical malpractice, the plaintiffs objected to
a portion of the jury instructions. Waters, 229 S.W.3d 682, 685 (Tenn. 2007). The
plaintiffs filed a post-trial motion seeking a new trial, but they failed to mention the jury
charge as a ground for relief. Id. The first time the plaintiffs raised an objection to the jury
charge was on appeal to the Court of Appeals. Id. The Court of Appeals granted the
plaintiffs a new trial, but the Tennessee Supreme Court reversed the decision of the Court
of Appeals. Id. at 690. Citing Tenn. R. App. P. 3(e), the Court held that the plaintiffs had
waived their right to appeal the jury charge issue by failing to raise that issue in their post-
trial motion. Id. at 689-90. The Court wrote:
In all civil cases tried to a jury, any ground not cited in the motion for new
trial has been waived for the purposes of appeal. Boyd v. Hicks, 774 S.W.2d
622, 625 (Tenn. Ct. App. 1989). The issues presented in a motion for new
trial must be specified with reasonable certainty so as to enable appellate
courts to ascertain whether the issue was first presented for correction in the
trial court; otherwise, the matter cannot be considered on appeal. State v.
Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). . . . Although
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appellate courts should view a motion for new trial in the light most likely to
consider a specific question, the preservation of the issue in some form is
essential for review. Fahey v. Eldridge, 46 S.W.3d 138, 143 (Tenn. 2001).
Id. at 689. The Supreme Court explained that the reason for the rule was to allow the trial
court “‘to rectify any errors that might have been made at trial and to avoid “appeal by
ambush.’”” Id. at 689 (quoting Mason v. Tenn. Farmers Mut. Ins. Co., 640 S.W.2d 561,
563 (Tenn. Ct. App. 1982)). The Court also cited Tenn. R. App. P. 36(a), which states, in
part, that “Nothing in this rule shall be construed as requiring relief be granted to a party .
. . who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” See Waters, 229 S.W.3d at 689. The Court noted that
“[t]ypically, an 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.’” Id. at 690 (quoting
Manning v. State, 500 S.W.2d 913, 914 (Tenn. 1973)). The Court did not address the issue
of plain error any further because the plaintiffs in Waters failed to argue plain error. Id.Ms. Kellon waived her right to appeal the trial court’s denial of her motion for a
directed verdict by failing to file a motion for a new trial, as required by Tenn. R. App. P.
3(e).
B. Plain Error
Ms. Kellon makes the alternative argument that the trial court committed plain error
when it denied her motion for a directed verdict and that her failure to file a post-trial
motion should not bar her right to have this court consider her argument that the trial court
erred in denying her motion. Despite the Waters Court’s reference to this doctrine, Ms.
Kellon cites no cases that are not criminal in nature in which plain error has been applied.
In its brief mention of plain error, the Waters Court cited the criminal case Manning v.
State, 500 S.W.2d 913 (Tenn. 1973), which addressed plain error as follows:
“In exceptional circumstances, especially in criminal cases, appellate courts,
in the public interest, may, of their own motion, notice errors to which no
exception has been taken, if the errors are obvious, or if they otherwise
seriously affect the fairness, integrity, or public reputation of judicial
proceedings.”
Manning, 500 S.W.2d at 914 (quoting Silber v. United States, 370 U.S. 717, 718 (1962)).
The Tennessee Supreme Court has listed the factors a court should consider in
determining whether an alleged error constitutes “plain error”:
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“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial
right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is
‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established before a court
will find that plain error existed at the trial court level. Id. at 283. Although not specifically
stated, the use of the term “accused” suggests that this doctrine is generally applicable to
criminal cases rather than to civil cases, such as the one under consideration. “The
defendant bears the burden of persuading an appellate court that plain error exists.” State
v. Willis, 496 S.W.3d 653, 707 (Tenn. 2016) (citing State v. Dotson, 450 S.W.3d 1, 49
(Tenn. 2014)).
In arguing that we should find the trial court committed plain error, Ms. Kellon
makes the unsubstantiated statements that “[i]t is unequivocal that a rule of law has been
breached, that law being the law of Negligent Entrustment” and that “[t]he substantial
rights of Appellant Dayne Kellon have been breached.” Ms. Kellon has failed to carry her
burden of persuading us that the trial court engaged in plain error by denying her motion
for a directed verdict.
III. CONCLUSION
We dismiss Ms. Kellon’s appeal of the trial court’s denial of her motion for directed
verdict and reject her argument that the trial court committed plain error by denying her
motion. The trial court’s judgment entered on April 15, 2019, is the operative judgment,
in which the noneconomic damages awarded against Ms. Kellon were reduced in
accordance with Tenn. Code Ann. § 29-39-102. Costs of this appeal are assessed against
the appellants, Dayne and Joshua Kellon, for which execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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