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Trendafilov v. Bitterman

Court of Appeals of Tennessee, Knoxville

August 9, 2019

SIMEON T. TRENDAFILOV
v.
WILLIAM E. BITTERMAN

          Session July 18, 2019

          Appeal from the Circuit Court for Knox County No. 3-151-17 Deborah C. Stevens, Judge.

         This appeal follows a jury trial in which the plaintiff was awarded $6, 500 for damage to his automobile. The plaintiff raises several issues for our consideration. Two of the issues pertain to pretrial evidentiary rulings made by the trial court; however, the plaintiff failed to raise these issues in his motion for new trial. Because the plaintiff failed to raise these issues in his motion for new trial, they are waived under Rule 3 of the Tennessee Rules of Appellate Procedure. The remaining issues concern whether the trial court properly admitted the defendant's valuation evidence at trial and whether the evidence at trial was sufficient to support the jury's verdict. Although the plaintiff raised these issues in his motion for new trial, he failed to provide this court with a transcript of the evidence or a statement of the evidence. Without a fair and accurate record of what transpired at trial, we are unable conduct a review of these issues. Therefore, we affirm the judgment of the trial court in all respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Simeon T. Trendafilov, Fort Walton Beach, Florida, Pro Se.

          James C. Cone and Hannah S. Lowe, Knoxville, Tennessee, for the appellee, William E. Bitterman.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and Thomas R. Frierson II, J., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On September 12, 2016, William Bitterman ("Defendant") was driving his vehicle down a street in Knoxville, Tennessee, when he collided with a parked and unoccupied 2002 BMW 330 Ci owned by Simeon Trendafilov ("Plaintiff"). In March 2017, Plaintiff had a civil warrant issued against Defendant by the Knox County General Sessions Court to recover compensatory damages for the repair and loss of use of his car. Plaintiff acted pro se throughout the proceedings below, and Defendant was represented by counsel. After a trial in April 2017, Plaintiff's claim was dismissed with prejudice.[1] Plaintiff perfected an appeal to the Knox County Circuit Court, and Defendant filed a demand for a 12-person jury trial. Defendant acknowledged his liability for the property damage; therefore, the only question for the jury was the proper measure of damages and the amount.

         During the discovery process, Plaintiff filed a motion to compel Defendant to provide documents from Defendant's insurance company which would show that the repair of Plaintiff's car was unreasonably delayed due to a disagreement with Defendant's insurance provider. Plaintiff intended to use the documents to prove loss of use damages at trial. Defendant opposed the motion and moved for a protective order on the basis that Defendant's insurance provider's claim file was not discoverable. After a hearing on the matter, the trial court denied Plaintiff's motion to compel, finding that because the action was not a direct action against Defendant's insurance company, the existence of insurance was inadmissible at trial. The court then instructed both Plaintiff and Defendant "not to discuss the Defendant's insurance or the claim handling of the insurance company for any reason."

         Defendant then filed a motion in limine, seeking to prevent Plaintiff from presenting evidence of the cost of repair and loss of use of his vehicle. Defendant contended that Plaintiff's claimed cost of repair exceeded the fair market value of the vehicle, which meant the vehicle was not capable of being repaired. Therefore, Defendant argued that the correct measure of damages was the difference between the fair market value of Plaintiff's car immediately before the accident and immediately after the accident. Plaintiff filed a response opposing the motion. After a hearing, the trial court denied the motion, in part, ruling that Plaintiff would be permitted to present evidence at trial of "the before and after value of his motor vehicle" and "the cost of repair, and loss of use." The jury would then determine the correct measure of damages and the amount. However, the court ruled in favor of Defendant, in one respect, by limiting Plaintiff's proof of damages for loss of use "to the value of the use of the vehicle for a reasonable amount of time that would be required to repair the vehicle."

         The case was tried before a jury on February 5, 2018, and because Defendant stipulated to his liability, the trial proceeded only on the issue of compensatory damages. After a one-day trial, the jury returned a verdict in favor of Plaintiff for $6, 500.

         Plaintiff timely filed a motion for new trial, arguing that (1) the NADA valuation of Plaintiff's vehicle introduced into evidence by Defendant was inadmissible hearsay; (2) the testimony of witness, Mark Latham, regarding the repair of the vehicle "was confusing and may have prejudiced the jury;" and (3) the jury's verdict was not supported by the evidence.

         First, Plaintiff argued that the NADA valuation was inadmissible hearsay because it was "an unpublished . . . custom valuation . . . obtained through the use of NADA software." Plaintiff conceded that he did not object to the evidence when Defendant introduced it through Plaintiff's witness. Nevertheless, Plaintiff took issue with the fact that the trial court sustained Defendant's objection to the admission of Plaintiff's valuations on the same ground. Plaintiff argued ...


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