Barnard v. Himes
| Citation | 719 N.E.2d 862 |
| Decision Date | 24 November 1999 |
| Docket Number | No. 79A04-9901-CV-13.,79A04-9901-CV-13. |
| Parties | Juanita BARNARD, Appellant-Defendant, v. Cheryle J. HIMES, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Matthew C. Robinson, Jr., Yarling, Robinson, Hammel & Lamb, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Cooke, J. Aaron Cooke, The Cooke Law Office, Lafayette, Indiana, Attorneys for Appellee.
Appellant-Defendant Juanita Barnard (Barnard), appeals the trial court's Order granting the Appellee-Plaintiff Cheryle J. Himes' (Himes) Motion to Correct Errors and ordering a new trial on the issues of liability and damages.
We affirm.
Barnard raises several issues on appeal, which we consolidate and restate as follows:
1. Whether the trial court failed to issue special findings of fact as required by Ind. Trial Rule 59(J)(7).
2. Whether the trial court erred in granting Himes' Motion to Correct Errors and ordering a new trial.
3. Whether the trial court erred in refusing to give an instruction on "sudden emergency."
On December 5, 1995, at 3:30 p.m., Barnard and Himes were involved in a motor vehicle accident on Duncan Road in Lafayette, Indiana. Himes was traveling north on Duncan Road and Barnard was traveling south when Barnard crossed the centerline and struck Himes' vehicle. The weather was inclement, it was snowing, and the roads were slick. Himes declined medical treatment at the accident scene, but later experienced pain in her neck, head and lower back and subsequently sought the services of a chiropractor, Anthony Pacelli, D.C. Dr. Pacelli diagnosed Himes as suffering from whiplash, tension headaches, paravertebral myositis/myofascitis and sacroilities.
A jury trial was held on September 22 and 23, 1998, and the jury returned a verdict for Barnard; however, the jury failed to apportion comparative fault between the parties and did not fill in the percentages of fault attributable to each party on the verdict form. Therefore, the trial judge directed the jury to retire for further deliberations. The jury later returned a completed verdict form finding Himes ninety-nine percent (99%) at fault and finding Barnard one percent (1%) at fault for the collision. Before the trial court entered a judgment in favor of Barnard, Himes moved for a judgment notwithstanding the verdict or a new trial, which the trial court took under advisement.
On October 1, 1998, Himes filed her Motion to Correct Errors, which was heard on November 10, 1998. On December 4, 1998, the trial court entered its "Order on Motion to Correct Errors and for Judgment on the Evidence" (Order). This Order granted Himes' motion under Trial Rule 59(J)(1) and ordered a new trial on the issues of damages and liability.
This appeal followed.
The trial court granted Himes' motion to correct errors and ordered a new trial pursuant to Ind. Trial Rule 59(J). When considering a motion to correct errors and a request for new trial, a trial court is governed by Ind.Trial Rule 59(J)(7), which provides in part: "[T]he court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence..." In making this determination, " " Precision Screen Machines, Inc. v. Hixson, 711 N.E.2d 68, 70 (Ind.Ct.App.1999) (quoting Memorial Hospital of South Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d 50, 54 (1973)). The trial judge, as a thirteenth juror, hears the case along with the jury, observes the witnesses for their credibility, intelligence and wisdom, and determines whether the verdict is against the weight of the evidence. Hixson, 711 N.E.2d at 70.
Once the trial court has granted a new trial, the Court of Appeals will reverse this decision only for an abuse of discretion. Schuh v. Silcox, 581 N.E.2d 926, 927 (Ind.Ct.App.1991). An abuse of discretion will be found when the trial court's action is against the logic and effect of facts and circumstances before it and the inferences which may be drawn therefrom. DeVittorio v. Werker Bros., Inc., 634 N.E.2d 528, 530 (Ind.Ct.App.1994).
We review the record only to see if: (a) the trial court abused its discretion; (b) a flagrant injustice has occurred; or (c) the appellant has presented a very strong case for relief from the trial court's order granting a new trial. Hixson, 711 N.E.2d at 70. However, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. The trial court has broad discretion to grant or deny a motion for a new trial, Schuh, 581 N.E.2d at 927, and the trial court's action in granting a new trial is given a strong presumption of correctness. Keith v. Mendus, 661 N.E.2d 26, 32 (Ind.Ct.App.1996), trans. denied.
Therefore, it is our duty to affirm the trial court's new trial order unless it is clearly demonstrated by Barnard that the trial court abused its discretion.
Barnard claims that the trial court failed to comply with the provisions of T.R. 59(J)(7), which require that the trial court issue special findings of fact when ordering a new trial. See T.R. 59(J)(7); see also Keith, 661 N.E.2d at 31. Barnard argues that the trial court's Order is wholly inadequate, fails to discuss or summarize the evidence, and instead focuses on only a small portion of the evidence. We disagree.
Under T.R. 59(J)(7) the trial court was required to:
When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if the decision is found to be against the weight of the evidence, the findings shall relate the supporting and opposing evidence to each issue upon which a new trial is granted; if the decision is found to be clearly erroneous as contrary to or not supported by the evidence, the findings shall show why judgment was not entered upon the evidence.
"[T]he purpose of these requirements is to provide the parties and the reviewing court with the theory of the trial court's decision." DeVittorio, 634 N.E.2d at 531. Here, the jury returned a verdict in Barnard's favor, allocating 99% fault to Himes and 1% fault to Barnard. In its Order, the trial court states that "the jury's allocation of fault was against the weight of the evidence and a new trial should be granted in accordance with Trial Rule 59(J)(1)." (R. 184-185). Because the trial court found the jury's verdict to be against the weight of the evidence, the trial court was required to set forth "the supporting and opposing evidence to each issue upon which a new trial is granted." T.R. 59(J)(7). However, this court has held that the findings may be summarized if the summary is complete enough to facilitate appellate review. DeVittorio, 634 N.E.2d at 531.
In its Order, the trial court reviewed the supporting and opposing evidence. The trial court quoted Barnard's testimony in which she made certain admissions of liability. Barnard testified that she was at fault in the collision and that her vehicle crossed the centerline of the roadway and struck Himes' vehicle in Himes' lane of travel. Further, the trial court referred to Barnard's testimony that Himes was not going too fast, did not swerve or weave, and did not do anything wrong to cause the accident.
The trial court's Order found that there was no conflict in the evidence that the accident occurred after Barnard crossed the centerline and that the accident occurred in Himes' lane of travel. The trial court further found that there was no evidence admitted at trial that contradicted Barnard's admissions of fault or that contradicted Barnard's testimony regarding Himes' lack of fault.
Although the trial court may not have discussed the trial testimony line by line in its Order, it sets forth a sufficient summary for the basis of its Order granting a new trial. The trial court addressed Barnard's theory that the accident was caused due to weather conditions. The court noted that Barnard testified that a patch of ice was the reason for the accident and that she was driving not in excess of ten miles per hour at the time of the collision. The trial court also noted that the affirmative defense of sudden emergency was not raised by Barnard. Thus, the trial court did address both the supporting and opposing evidence.
Barnard further argues that the trial court's order contains no formal findings of fact and that the words "find(s)" or "finding(s)" appear only twice in the Order. However, the number of times a trial court uses the words "find(s)" or "finding(s)" is not controlling on whether the trial court properly complied with T.R. 59(J)(7). Although, the trial court did not provide us with pages of detailed findings, it substantially complied with T.R. 59(J)(7) and provided us with sufficient findings to properly facilitate appellate review. See DeVittorio, 634 N.E.2d at 531
.
Therefore, we conclude that the trial court's Order sufficiently complies with the requirements of T.R. 59(J)(7).
Barnard asserts that the trial court erred in ordering a new trial because the trial court treated Barnard's testimony admitting fault as dispositive. Further Barnard argues that the trial court's order was in error because it failed to consider whether the jury's verdict was based on lack of proximate cause.
The issue facing the trial court was whether prejudicial or harmful error was committed by the jury in...
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