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Laughlin v. Fillers9/22/2005
t a new trial based upon alleged improper and inflammatory statements made by defense counsel in the presence of the jury. Plaintiff complains about several alleged improper and inflammatory statements. First, Plaintiff complains about defense counsel asking Plaintiff if he knew how many times his attorney had asked for continuances. We note that this question followed Plaintiff's statement: "See, if these things are settled every ten years, you might not have such a hard time remembering, but sometimes they go a long time." Thus, Plaintiff was the one who initially brought the subject to the attention of the jury. More importantly, we note that Plaintiff's counsel raised no objection to the question regarding continuances or to its answer.
Plaintiff also complains about statements made by defense counsel during closing argument that Defendant was at the mercy of Plaintiff because she was unable to recall the accident. Plaintiff raised no objection to these statements when they were made and made no request for a curative instruction regarding these statements.
As this Court stated in Grandstaff v. Hawks, Objections to the introduction of evidence must be timely and specific.
A party who invites or waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal. Failure to object evidence in a timely and specific fashion precludes taking issue on appeal with the admission of the evidence.
Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) (citations omitted).
Plaintiff did not object timely to the question and answer regarding continuances or to the statements made during closing about Defendant being at Plaintiff's mercy. Neither did Plaintiff take any steps to cure the alleged error as to the statements made during closing argument. Therefore, Plaintiff waived any error regarding these issues and is not entitled to relief on appeal.
Plaintiff also complains about defense counsel making the statement: "I can understand him wanting to sandpaper his client now before the jury, but that's not the position he's been taking for the last eight years." Tenn. R. App. P. 36(b) provides that " final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." Tenn. R. App. P. 36(b).
We have reviewed all of the evidence in the whole record. Even if Plaintiff is correct that this statement regarding "wanting to sandpaper his client" was improper, and he may well be, we nevertheless conclude that this statement by Defendant's counsel did not involve a substantial right that more probably than not affected the jury's verdict. This is especially clear given that the Trial Court later directed a verdict as to liability in favor of Plaintiff and the jury then awarded Plaintiff damages. Therefore, Plaintiff is not entitled to a new trial based upon this ground.
We affirm the September 7, 2004 judgment and the Trial Court's December 3, 2004 order approving the verdict of the jury in their entirety.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellant, Murel Laughlin, and his surety.
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