Alfa Mut. Ins. Co. v. Cascio

• Decision Date: 23 August 2005
• Docket Number: No. 2004-CA-00508-COA.,2004-CA-00508-COA.
• Parties: ALFA MUTUAL INSURANCE COMPANY as Subrogee of Belinda Patterson, and Belinda Patterson, Individually, Appellant v. Glenda CASCIO, Appellee.
• Court: Mississippi Court of Appeals

909 So.2d 174

ALFA MUTUAL INSURANCE COMPANY as Subrogee of Belinda Patterson, and Belinda Patterson, Individually, Appellant v. Glenda CASCIO, Appellee.

No. 2004-CA-00508-COA.

Court of Appeals of Mississippi.

August 23, 2005.

J. Paul Clinton, attorney for appellant.

Shawn M. Lowrey, attorney for appellee.

Before KING, C.J., MYERS and ISHEE, JJ.

MYERS, J., for the Court.

¶ 1. On February 6, 2002, Alfa Insurance, as subrogee of Belinda Patterson, ("Alfa") brought a subrogation suit against Glenda Cascio. On April 11, 2003, after Alfa's case-in-chief, the County Court of Forrest County granted Cascio's motion to dismiss and directed a verdict in favor of Cascio. Alfa appealed that judgment to the Circuit Court of Forrest County, which affirmed the judgment of the county court.

¶ 2. Aggrieved by the judgment of the circuit and county courts, Alfa now appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT?

II. WHETHER THE PRESENCE OF THE DEFENDANT AT THE TRIAL ON THE MERITS WAS REQUIRED IN THE ABSENCE OF A SUBPOENA OR COURT ORDER?

III. WHETHER THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR DIRECTED VERDICT?

¶ 3. Finding reversible error, we reverse and remand in part, and affirm in part the trial court's judgment.

FACTS

¶ 4. On December 24, 2002, Patterson was involved in a rear-end collision. She suffered personal injuries and damage to her vehicle, for which her insurance company, Alfa, reimbursed her. Alfa, as subrogee of Patterson, sought to obtain a judgment against Glenda Cascio, the party alleged to be at fault in the accident. At the trial on the merits in the county court, an Alfa representative and Belinda Patterson were both present. When the proceedings commenced, the trial judge asked counsel for Cascio if he intended to call any witnesses. Counsel for Cascio responded that he might possibly call his client, Cascio, as a witness but that she was not present. Alfa objected to the absence of Cascio from the proceedings and moved for a default judgment or a judgment in the nature of a directed verdict for the plaintiff, since the defendant would not be present to put on any evidence. The court, not finding there to be any strict requirement of the defendant's presence in the absence of a subpoena, denied these motions and proceeded with the trial. Alfa renewed these motions periodically during the trial, but the court continued to deny them. ¶ 5. This particular case was, basically, a run-of-the-mill subrogation case; thus, Alfa came prepared with certain standard documents, in addition to the testimony of its representative and its insured, Patterson. Among those documents were copies of checks demonstrating Alfa's payments to Patterson, an Agreement, Assignment and Release, a Mississippi Uninsured Motorist Release and Subrogation Agreement, and various bills detailing expenses incurred by Patterson as a result of the car accident. The trial court excluded all of this documentary evidence citing, most often, Rules 403 and 901 of the Mississippi Rules of Evidence. The trial court also excluded the medical bills, declaring that they had not been "authenticated" pursuant to Mississippi Code Annotated § 41-9-119 (Rev.2001). The trial court also excluded any testimony regarding the amount of money Alfa paid to Patterson. The trial court did allow into evidence a photograph of Patterson's vehicle, showing the damage to the rear of her vehicle, and the trial court allowed Patterson to testify that her deductible was $200.

¶ 6. The trial court also allowed Patterson to testify to the particulars of the accident and how it occurred. In this regard, Patterson testified that, as she was slowing to turn, with her turn signal on, she was rear-ended by the driver of the other vehicle and that the driver of the other vehicle was talking on a cell phone at the time the accident occurred.

¶ 7. After having excluded all of Alfa's documentary evidence and much of the testimony of Alfa's witnesses, the trial court granted a directed verdict for Cascio. The primary reason given was that Alfa had failed to put on any proof of liability.

LEGAL ANALYSIS

¶ 8. Before proceeding to our discussion, we should note that we have re-cast the issues from their original form in Alfa's brief. Alfa's brief actually states numerous issues and sub-issues; however, upon reviewing the briefs and the record, we find that all of those various issues stated by Alfa are functions of these three basic issues. Thus, we will discuss the issues accordingly, addressing many of Alfa's sub-issues as they are, more properly, arguments in support of these three most basic issues in the case.

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT?

¶ 9. Alfa advances a number of arguments in support of this issue. The two most relevant arguments are the following: (1) the circuit court, in reviewing the decision of the county court, applied an incorrect standard of review, and (2) at the trial, Alfa put on uncontradicted evidence of liability that should have precluded a directed verdict in favor of Cascio.

¶ 10. Cascio concedes that the circuit court applied an incorrect standard of review, but maintains that the circuit court, nonetheless, properly reviewed the decision of the county court and rendered the correct decision. Cascio also maintains that Alfa failed to put on sufficient evidence of liability, noting specifically that Alfa failed to positively identify Cascio as the other party to the accident.

STANDARD OF REVIEW

¶ 11. We employ de novo review of a trial court's decision to grant a motion for directed verdict, and, as we conduct this de novo review, we view the evidence in the record in the same light as the trial court. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 172 (Miss.1995).

¶ 12. The standard to be applied by the trial court in considering a motion for directed verdict has been stated by this Court as follows:

The trial court may direct a verdict for the defendant at the close of the plaintiff's proof under authority of Mississippi Rule of Civil Procedure 50(a) if, in the opinion of the court, the plaintiff has failed to present credible evidence to establish the necessary elements of his right to recover. Hall v. Mississippi Chem. Express, Inc., 528 So.2d 796, 798 (Miss.1988). The court must consider all evidence then before it in the light most favorable to the plaintiff and must concede to the plaintiff all favorable inferences that could reasonably be said to arise from that evidence. Benjamin v. Hooper Electronic Supply Co., Inc., 568 So.2d 1182, 1187 (Miss.1990). Only if, viewed in that light, the court determines that the matter is so overwhelmingly in favor of the defendant that no reasonable juror could find for the plaintiff, should the court direct a defendant's verdict. Id.

Thomas v. Smith, 786 So.2d 418, 419

(¶ 2) (Miss.Ct.App.2001).

¶ 13. Our task then, in light of the applicable standard of review, is to examine the evidence in the record and make a determination as to whether Alfa presented credible evidence to establish the necessary elements of its right to recover, granting in its favor all reasonable inferences arising from the evidence presented. Id. This de novo standard of review for motions for directed verdict is so well-settled as to be beyond any question. See Lane v. Oustalet, 873 So.2d 92, 95

(¶ 13) (Miss.2004); Ross v. National Forms and Systems Group, Inc., 882 So.2d 245, 249(¶ 11) (Miss.Ct.App.2004).

DISCUSSION

¶ 14. We find both of Alfa's arguments to have merit. First, it is quite clear that the circuit court applied an incorrect standard of review in considering Alfa's appeal from county court. In this regard, the circuit court declared:

This Court uses the same standard of review as defined by our Supreme Court in that `findings of fact made by the trial judge will not be overturned on appeal unless they are manifestly wrong, clearly erroneous, or contrary to the overwhelming weight of the evidence.' City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000); Kight v. Sheppard Building Supply Inc., 537 So.2d 1355, 1359 (Miss.1989); Hardy v. First Nat'l Bank of Vicksburg, 505 So.2d 1021, 1023 (Miss.1987). . . . We will not set aside a trial court's findings unless they are manifestly wrong, clearly erroneous, or contrary to the overwhelming weight of the evidence. In said case, the trial judge's decision [to grant a directed verdict in favor of Cascio] was not against the overwhelming weight of the evidence.

As we noted above, the standard of review of motions for directed verdict is de novo, not clear/manifest error, and about this point there can be no doubt. Lane, 873 So.2d at 95 (¶ 13). Indeed, Cascio concedes that the circuit court applied the wrong standard of review. Thus, we find that the circuit court applied an incorrect standard of review, and that in and of itself could constitute reversible error.

¶ 15. We do note, however, that the circuit court's order also made the following statement, "In reviewing all the favorable inferences which benefit the Appellants, we find that liability had not been established and the directed verdict was properly granted." Cascio seizes upon this statement and argues that the circuit court, in spite of its own statements to the contrary, did in fact properly review the county court's decision. ¶ 16. The flaw in this argument is that the circuit court does not say in its order that it granted all favorable inferences, pursuant to the de novo standard of review; rather, it merely says it "reviewed all the favorable inferences." Then, in conclusion, the court said that its "review" showed no manifest or clear error. Because of this, we find Cascio's argument on this first point to lack merit. The circuit court's order declared that it reviewed the inferences favorable to Alfa in order to determine if there...