Davis v. Walters, No. 2009-CA-00653-COA (Miss. App. 5/4/2010)

Decision Date04 May 2010
Docket NumberNo. 2009-CA-00653-COA.,2009-CA-00653-COA.
CourtMississippi Court of Appeals





¶ 1. On May 8, 2005, Patricia Walters was involved in an accident while she was a passenger on an utility terrain vehicle (UTV), specifically a Yamaha Rhino (Rhino), driven by Joel Cummings, who was nine years old at the time. Walters, who was forty-two years old at the time of the accident, suffered extensive injuries as a result of the accident, and she incurred medical bills totaling approximately $177,447. She subsequently filed suit against "T & R Farms, a partnership consisting of Tracey Davis and Randy Davis; [and] Randy Davis."1 In her complaint she alleged that Randy Davis (Davis), as the owner of the Rhino, negligently entrusted the UTV to his nephew, Cummings, and that such negligent entrustment was the proximate cause of her injuries.

¶ 2. A trial on the merits of the case was held on May 12-13, 2008, in the Circuit Court of Tallahatchie County. The jury returned a verdict that assessed comparative fault of 20% to Davis and 80% to Walters and awarded $3,797.92 in total damages. Walters subsequently filed a post-trial motion requesting an additur or, in the alternative, a new trial on damages. The trial court granted Walters's request for an additur and awarded an additional $3,038.34 in damages. However, Walters rejected the additur and again requested a new trial on damages. Before the trial court had an opportunity to rule on Walters's second request for a new trial on damages, Davis filed a notice of appeal following the trial court's denial of his motion for a judgment notwithstanding the verdict (JNOV).

¶ 3. After careful examination of the record before this Court, as well as the supreme court's holding in Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900 (Miss. 2007) and this Court's decision in Henson v. Riggenbach, 982 So. 2d 432 (Miss. Ct. App. 2007), we find that a new trial on damages must be held prior to an appellate court gaining jurisdiction of this matter. Because the requisite new trial did not occur, this Court must dismiss Davis's appeal and remand this case to the trial court for a new trial on damages.


¶ 4. For purposes of the resolution of this case at the appellate level at this point in time, the substantive facts surrounding the accident are of small import. However, we will briefly recite them to give context to the case as a whole. Davis, and his wife, Ann, live in Tippo, Mississippi, where Davis operates a farm with his brother on the land that surrounds Davis's home. On May 8, 2005, Ann invited Walters to come to the Davis home to socialize. Additionally, Ann's sister, Nanette Langkawel, and Cummings, Langkawel's son, as well as other individuals, were present at the Davis home on the eighth of May, celebrating Mother's Day.

¶ 5. There is contradictory testimony in the record as to the timing of the following events; however, in general, the actions that led up to the accident were as follows: After driving his daughter and other individuals around his property, Davis and Cummings rode on the Rhino. Davis allowed Cummings to drive and instructed him on the basic operation of the UTV. At some point in time after Cummings was taught how to operate the Rhino, he began driving other individuals, including Walters, around the Davis property and surrounding farm land. During Walters's second ride on the Rhino, the UTV rolled over while Cummings was turning and caused extensive damage to Walters's right arm and hand that required several operations which continued up to and after the date of trial. The parties stipulated at trial that Walters had incurred $177,447 in medical expenses arising from the injury to her right arm and hand. Specifically, one of her fingers had to be amputated, and she had permanent scarring, disfigurement, and disability.

¶ 6. Walters filed her complaint on January 3, 2006, alleging that her injuries were proximately caused by Davis's negligent entrustment of the Rhino to Cummings. A trial on the matter was held on May 12-13, 2008. At the conclusion of the trial, the jury returned a verdict initially apportioning liability of 20% to Davis and 80% against Walters and awarded $0 in damages. The trial court determined the verdict to be inconsistent and instructed the jury to return a verdict that would fairly and adequately compensate Walters for her injuries. Thereafter, the jury returned a verdict with the same apportionment of fault but set Walters's total damages at $3,797.92. This verdict was either a unanimous verdict of all twelve jurors or, at least, a verdict of eleven of the twelve jurors and responsive to the issues presented to the jury. As a consequence of the verdict, Walters was awarded $759.58 in damages — that is 20% of $3,797.92. Subsequently, Walters filed a motion for additur and/or a new trial on damages. The trial court denied the request for a new trial on damages, but the court granted Walters an additur in the amount of $3,038.34. The amount of the suggested additur and the prior jury award of $759.58 totaled $3,797.92; this was the exact amount awarded by the jury's verdict. Although Davis filed a notice indicating his acceptance of the additur, Walters filed a motion rejecting the trial court's additur and again requested a new trial on damages. However, after the trial court denied Davis's motion for a JNOV, Davis filed a notice of appeal.


¶ 7. In his brief to this Court, Davis raises issues surrounding whether the trial court abused its discretion in denying Davis's motion for a JNOV and other substantive issues related to the trial. However, given the procedural posture of this case, we are only able to address a singular issue, which was not raised by either party, as we lack the jurisdiction required to further examine the issues presented by the parties.


¶ 8. Given our disposition of this case, we find that it would be helpful to revisit and expand the procedural history that led this appeal to find its way to this Court. The case was tried before a jury on May 12-13, 2008. At the conclusion of the trial, the jury returned a verdict assessing 80% fault to Walters and 20% fault to Davis, as well as a total monetary judgment of $3,797.92. On June 10, 2008, Walters subsequently filed a motion for a new trial on damages and/or additur. She alternatively filed a motion for a new trial. Additionally, on June 10, 2008, Davis filed a motion for a JNOV. Eight days later on June 18, 2008, Davis filed his response to Walters's motion for an additur. This was followed by Walters filing a response to Davis's motion for a JNOV on June 23, 2008, and a reply to Davis's response to her motion for an additur on June 25, 2008.

¶ 9. A hearing was held on all outstanding post-trial motions on July 28, 2008. At the conclusion of the hearing, the trial court granted an additur and rejected Walters's request for a new trial. Additionally, the trial court specifically rejected Davis's motion for a JNOV. In granting the additur, the trial court ordered Davis to pay an additional amount that would bring the total monetary judgment against him to $3,797.92, which was the original total award of the jury. The trial court entered the order granting the additur for July 28, 2008, nunc pro tunc on January 28, 2009, and the order was actually filed on February 5, 2009. Walters filed a notice of rejection of the proposed additur and motion for new trial on damages on February 6, 2009. Following Walters's rejection of the additur on February 11, 2009, Davis filed his acceptance of the trial court's proposed additur. Almost two weeks later, on February 24, 2009, Davis filed his notice of appeal from the trial court's oral denial of his motion for a JNOV, and he stated that the notice shall take effect upon disposition of the motion. On April 15, 2009, the trial court entered a formal order denying the motion for a JNOV.

¶ 10. As evinced by the timing of the post-trial motions above and our disposition of this case, the inclusion of an additur or remittitur into the procedural mix can cause issues. In the case of Pellerin Laundry, the supreme court, after identifying the inconsistencies and confusion surrounding the jurisprudence of additurs and remittiturs, established a new procedure to govern the application of law to such post-trial issues. The facts the supreme court had before it were strikingly similar to those this Court is examining today. After a trial on the merits, the jury returned a verdict in favor of the plaintiffs but awarded zero dollars in damages. Pellerin Laundry, 947 So. 2d at 902 (¶2) (quotations omitted). The plaintiffs moved the trial court for an additur or, in the alternative, a new trial on damages. Id. The trial court granted an additur conditioned upon the defendant's acceptance or rejection, but the judgment granting the additur denied the plaintiffs' request for a new trial.2 Id. The defendants did not accept the additur in a timely manner, and as such, it was deemed rejected. Id. at 902 (¶5) (citing Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 961, 962 (¶2) (Miss. Ct. App. 2005)). The supreme court held that not only were the defendants entitled to reject the additur and demand a new trial on damages, but the plaintiffs were similarly entitled to the same options. I...

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