Clay v. Smith

• Court: Court of Appeals of Tennessee
• Decided: June 23, 1999
• Docket: 01A01-9811-CV-00577
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

AMBROSE W. J. CLAY, )

Plaintiff/Appellant, ) ) Appeal No. FILED ) 01A01-9811-CV-00577 v. ) June 23, 1999 ) Davidson County Circuit Cecil Crowson, Jr. JOHN JASON SMITH and ) Appellate Court Clerk LOUIS F. SMITH ) No. 97C-3635 Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA HAYNES, PRESIDING

AMBROSE W. J. CLAY 1704 Ashwood Avenue Nashville, Tennessee 37212

ACTING PRO SE FOR PLAINTIFF/APPELLANT

ALAN M. SOWELL GRACEY, RUTH, HOWARD, TATE, & SOWELL 150 Second Avenue, North Suite 201 Nashville, Tennessee 37201

ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

PATRICIA J. COTTRELL, JUDGE CONCUR:

KOCH, J. CAIN, J. MEMORANDUM OPINION1 Ambrose W. J. Clay commenced this negligence action after a June

1996 collision involving a car he was driving and a vehicle driven by John Jason

Smith, seeking damages for personal injuries and property damage. The Circuit

Court issued a defense verdict from which Mr. Clay appeals. We affirm.

The case was originally heard in General Sessions Court. After that

court entered judgment for Mr. Smith, Mr. Clay sought review in the Circuit

Court.

In his pro se appeal, Mr. Clay argues that irregularities fatally tainted

his trial in General Sessions Court. That contention lacks merit because Mr.

Clay's second full trial on the merits in Circuit Court rendered moot the errors,

if any, arising in his first trial. See Ware v. Meharry Med. College, 898 S.W.2d

181, 185 (Tenn. 1995).

During the de novo bench trial in Circuit Court, Mr. Clay, his

chiropractor, and Mr. Smith each testified. After hearing all the evidence,

including the testimony of the witnesses and the exhibits thereto, the trial court

found for the defense.

By issuing a defense verdict, the Circuit Court implicitly found that Mr.

Smith did not cause the collision. The record supports that conclusion. As the

appellant, Mr. Clay bears the burden in this appeal of showing that the evidence

1 Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the concurrence of the judges participating in the case, may affirm, reverse, or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion, it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

-2- preponderated against that finding. Galbreath v. Harris, 811 S.W.2d 88, 91

(Tenn. App. 1990);Tenn. R. App. P 13 (d). Inasmuch as Mr. Clay has presented

insufficient facts or law to support a different result, we must conclude that he

failed to satisfy that burden.

Nor did the trial court err by refusing to permit Mr. Clay to proceed on

appeal in forma pauperis. The trial court's inquiry into whether Mr. Clay's assets

entitled him to proceed on appeal as a poor person was authorized by Tenn. R.

App. P. 18 (a). The defendants were not required to appear because they were

not seeking permission to appeal in forma pauperis.

Because we affirm the trial court's finding that Mr. Smith was not liable

for the collision, the remaining errors Mr. Clay raises on appeal are moot. As

Mr. Smith was not liable for the collision, he could not be liable for property

damage to the car Mr. Clay was driving. Further, absent some showing that Mr.

Clay possessed an ownership interest in the car he was driving, his property

damage claim was barred. See Irvin v. City of Clarksville, 767 S.W.2d 649, 653

(Tenn.App. 1988) (claimant must prove ownership interest in property in order

to seek damages for its destruction).2

Accordingly, the judgment for Mr. Smith is affirmed. This case is

remanded for such further proceedings as may be necessary. Costs are taxed to

Mr. Clay for which execution may issue.

2 Mr. Smith objected to the admission of evidence of property damage to the car Mr. Clay was driving on the ground that Mr. Clay's wife owned the car and she was not a party to the action. The trial court sustained that objection. The fact that the owner of Mr. Smith's car did not attend the trial is immaterial because the owner of that car did not seek damages.

-3- ______________________________ PATRICIA J. COTTRELL, JUDGE

CONCUR:

_________________________________________ WILLIAM C. KOCH, JR., JUDGE

___________________________________ WILLIAM B. CAIN, JUDGE

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