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Boggs v. Rhea

Court of Appeals of Tennessee, Knoxville

November 6, 2014

GREGORY LEE BOGGS, ET AL.
v.
DINAH K. RHEA

Session: August 28, 2014.

Page 540

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified; Case Remanded. Appeal from the Circuit Court for Greene County. No. 11CV288-TJW. Thomas J. Wright, Judge.

Judgment of the Circuit Court Affirmed as Modified; Case Remanded.

Jeffrey A. Cobble, Greeneville, Tennessee, for the appellants, Gregory Lee Boggs and Lisa Danielle (Pickens) Boggs.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Dinah K. Rhea.

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

OPINION

D. MICHAEL SWINEY, JUDGE

Page 541

Gregory Lee Boggs and Lisa Danielle (Pickens) Boggs (" Plaintiffs" ) sued Dinah K. Rhea (" Defendant" ) with regard to a motor vehicle accident that occurred in May of 2010 in Washington County, Tennessee. Defendant admitted responsibility for the accident and the case was tried before a jury solely on the issue of damages. After trial the Circuit Court for Greene County (" the Trial Court" ) entered judgment on the jury's verdict finding and holding that Plaintiffs were not entitled to any damages. Plaintiffs appeal to this Court raising issues concerning the jury's verdict, denial of their motion for additur or a new trial, and claimed improper statements by defense counsel in his closing argument. Defendant raises an issue on appeal with regard to the Trial Court's denial of her motion for discretionary costs. We find and hold that the record on appeal contains material evidence to support the jury's verdict and that there are no other reversible errors related to Plaintiffs' issues. We further find and hold that Defendant is entitled to an award of discretionary costs, and we remand to the Trial Court for a determination of the appropriate amount of discretionary costs. We affirm as modified.

OPINION

Background

The accident at issue in this suit occurred on May 28, 2010 when a 2006 Nissan Sentra being driven by Defendant made contact with the rear of a 1998 Kia Sephia (" Kia" ) in which Ms. Boggs was a passenger. The Kia was owned by Mr. Boggs and was being driven at the time of the accident by Sarah Watson. At the time of the accident, Ms. Boggs and Mr. Boggs were engaged, but not yet married.

Plaintiffs filed suit against Defendant on May 26, 2011. Plaintiffs' complaint alleged, in pertinent part, that Ms. Boggs suffered injuries to her neck, cervical spine, and back as a result of the accident and that she sustained permanent injuries. The complaint contained no allegations about any property damage to the Kia or anything else. Defendant answered the complaint and admitted responsibility for the accident. On January 22, 2013, Plaintiffs amended their complaint to, among other things, allege damage to the Kia of approximately $2,000. The case proceeded to trial before a jury in October of 2013.

At the time of the accident, the Kia was stopped in traffic at the intersection of East Jackson Boulevard and Boone Street in Washington County when Defendant's vehicle made contact with the rear of the Kia. Defendant testified at trial and described the accident and the contact between her vehicle and the Kia as a bump. Defendant explained that her foot was on the brake, but that she had not come to a complete stop. She testified that she was traveling at a speed of less than one mile per hour at the time. Defendant testified that Ms. Boggs refused EMT treatment at the accident scene and also refused transportation to the emergency room.

Defendant testified that there was no damage to her vehicle from the accident. She stated: " Not even any paint on my car from hers." Photographs of Defendant's vehicle taken after the accident depicting the condition of the front of the vehicle were introduced as exhibits at trial. Defendant testified that she looked at the Kia at the accident scene, and she stated:

There were several dents in the bumper not related to our accident. There was one tiny, little tiny V in the middle of her bumper that could have been where my car struck her, but there's nothing in my car - - in the front of the car. As you can see, it's just straight across there. I can't see any way that my car could have put that little V in there, because

Page 542

there's not anything protruding from my bumper to do that.

Defendant also testified that she saw no damage to the trunk of the Kia. When asked if she saw damage to other areas of the Kia, Defendant stated: " Yes. As I said, there were several dents in the bumper." When asked if she saw any damage to the sides of the Kia, Defendant stated: " I didn't - - I - - maybe so." She testified that the Kia was not new and " was kind of banged up."

Ms. Boggs testified that when the accident occurred, the Kia did not make contact with the vehicle stopped in front of it. Ms. Boggs admitted that during the accident her body did not make contact with any part of the Kia other than the seat she was sitting in at the time. Ms. Boggs did not ask for any medical treatment at the accident scene. An EMT arrived at the scene, but did not examine Ms. Boggs. Ms. Boggs stated this was " because I opted to drive my vehicle." Ms. Boggs admitted that she had " [n]o lump, bump, or bruise, but I do have a strain." After a police officer prepared a report at the scene Ms. Boggs went to the medical center to be checked out where, after being examined, she was released to leave and not admitted to the hospital.

Ms. Boggs admitted that she has not sought any medical evaluations or treatment for any problem with her neck or back since June 1, 2010. She also admitted that she has had no physical therapy, no shots, and no bandages with regard to her neck and back since that time.

Ms. Boggs claimed that she was unable to work from the date of the accident on May 28, 2010 until late August of 2010. Ms. Boggs admitted that during that time period, on July 4, 2010, she and Mr. Boggs were married.

Ms. Boggs was asked about the job she had at the time of the accident working for Advanced Call Center Technologies, LLC (" ACCT" ), and she admitted that she dealt with people over the phone using a headset while seated at a computer. Ms. Boggs admitted that she has nothing from a doctor showing that she was unable to sit at a computer and answer the phone between May 28, 2010 and August 28, 2010. She stated: " I just had my work release form from the emergency room."

Ms. Boggs claimed that ACCT fired her, but a document prepared by ACCT and introduced as an exhibit at trial states that Ms. Boggs's employment was ended voluntarily to accept other work. Additionally, a State of Tennessee Department of Labor and Workforce Development Division of Employment Security Separation Notice signed by a representative of ACCT and introduced as an exhibit at trial shows that Ms. Boggs was employed by ACCT from June 22, 2009 through May 27, 2010, the later of which was the day prior to the accident.

Ms. Boggs worked at Arby's from August of 2010 until August of 2011, and the Arby's records show that she missed one day of work due to some coughing and one day of work due to a wrist injury. During the time she worked at Arby's, Ms. Boggs did not miss any time from work due to neck or back problems. Ms. Boggs voluntarily quit her job at Arby's because she and her husband chose to move to Kentucky. Ms. Boggs admitted that although she was supposed to work out a two week notice when she quit her job at Arby's, she simply failed to show up for work, and Arby's made a notation in her file to the effect of 'do not rehire.'

After quitting her job at Arby's, Ms. Boggs obtained a job in Kentucky with Fourteen Foods doing business as Dairy Queen. Ms. Boggs filled out a ...


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