Tennessee Business Litigation Law Blog

In the heat of trial, the need to properly preserve the record for appeal is often overlooked.  Often times, this can result in a waiver of an issue on appeal.  For example, in an opinion released yesterday by the Court of Appeals, the Court analyzed the Appellant's claim that trial judge impermissibly allowed the Plaintiff to amend the ad damnum clause in his Complaint in the middle of trial.  After examining the substantive question of whether or not such an amendment was permissible, the Court turned to whether or not the issue was properly preserved for appeal.  The Court noted that it was not and held as follows: 

Kohler’s contention that it was prejudiced by the amendment because it was unable to conduct additional discovery is without merit. “When the trial court grants a motion to amend, the opposing party must request a continuance if it believes it has been prejudiced.” Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 22 (Tenn. Ct. App. 1993). When faced with the proposed amendment to Newcomb’s complaint, Kohler never requested a continuance to conduct additional discovery. “If a continuance is not requested, the party against whom the amendment was granted may not complain on appeal.” Id. Accordingly, we hold that the trial court did not abuse its discretion in permitting Newcomb to amend his complaint during the trial to assert a specific monetary amount of damages. 

The entire opinion, Newcomb v. Kohler Co., is available here.