Evans v. Firstfleet Inc.

• Decision Date: 23 June 2011
• Docket Number: No. SD 30624.,SD 30624.
• Citation: 345 S.W.3d 297
• Parties: J.E. EVANS, Jr., and Mamie Childs, Plaintiffs–Respondents,v.FIRSTFLEET, INC., and Adara L. Smith, Defendants–Appellants.
• Court: Missouri Court of Appeals

345 S.W.3d 297

J.E. EVANS, Jr., and Mamie Childs, Plaintiffs–Respondents,

v.FIRSTFLEET, INC., and Adara L. Smith, Defendants–Appellants.

No. SD 30624.

Missouri Court of Appeals, Southern District, Division One.

June 23, 2011.

Hal D. Meltzer, Shawn M. Rogers, and Jonathan E. Benevides, Baker Sterchi Cowden & Rice, Kansas City, Missouri, for Appellants.Edward Hershewe, Alison, Hershewe, and Erica Mynarich, The Hershewe Law Firm, P.C., Joplin, Missouri, for Respondents.GARY W. LYNCH, Judge.

FirstFleet, Inc. and Adara L. Smith (collectively, “Defendants”) appeal the trial court's wrongful-death judgment in favor of James Edward Evans, Jr. (“Evans”), and Mamie Childs (collectively, “Plaintiffs”). Defendants challenge the trial court's failure to enter remittitur or grant a new trial, claiming the jury's verdict was excessive. They also challenge the trial court's exclusion of certain testimony by Tracy Hancock. Finding no error as alleged, we affirm.

Factual and Procedural Background

James Edward Evans (“Decedent”) was fatally injured on July 17, 2007, in Newton County, in a collision with a tractor-trailer owned by FirstFleet, Inc., and operated by Smith. Decedent's son, Evans, and mother, Childs, filed a wrongful-death action, see section 537.080, alleging that Defendants' negligent conduct contributed to the death of Decedent and requesting judgment for damages, including punitive damages.¹

Thereafter, Tracy Hancock, who alleged she was “the surviving spouse” of Decedent, moved to intervene as a party-plaintiff, “as a matter of right, pursuant to § 537.095, RSMo.” Her motion to intervene, opposed by all parties to the action, was denied upon the trial court's finding that Hancock failed to meet her burden of proving that she and Decedent established a common-law marriage while residents of the state of Texas.²

Just before the start of the jury trial, Defendants admitted negligence and causation, Plaintiffs abandoned their claim for punitive damages, and the parties stipulated to try the action on the sole issue of damages. The jury returned a verdict in favor of Plaintiffs, awarding $1,000,000.00 in compensatory damages for the death of Decedent. The trial court entered judgment apportioning the damages in equal amounts to each plaintiff.

Defendants timely filed a “motion for remittitur or, in the alternative, for a new trial,” claiming that the jury's verdict was excessive and exceeded fair and reasonable compensation for Plaintiffs' losses. Defendants further asserted that the verdict was “engendered by jury misconduct and/or the trial court erred in excluding certain evidence.” Defendants' motion was overruled by operation of Rule 78.06.³

Defendants timely appealed and present three points relied on. We discuss those points in the order presented. Additional facts will be elicited as necessary to address each point.

Discussion

Denial of Remittitur was not an Abuse of Discretion

In Point I, Defendants contend that the trial court erred in denying Defendants' motion for remittitur or, in the alternative, for a new trial because the verdict exceeded fair and reasonable compensation for Plaintiffs' loss, in that the verdict “was almost exclusively for non-economic loss” and “exceeds the verdicts reached in similar wrongful death actions involving motor vehicle accidents[.]”

Under this point, Defendants are essentially challenging the trial court's denial of their motion for remittitur, as no trial misconduct or error is alleged. Generally, when an excessive verdict is the result of an honest mistake by the jury in weighing the evidence of the nature and extent of injuries and awarding disproportionate damages, it is appropriate that the trial court order remittitur, rather than a new trial. Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 678 (Mo.App.2008). Remittitur is provided for under section 537.068. “A new trial is not required because the jury is not guilty of misconduct, only an honest mistake as to the nature and extent of the injuries.” Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 646 (Mo.App.2005). As Defendants do not assert any claim of trial or jury misconduct under this point, we will limit our review to the trial court's denial of their motion for remittitur.

“The jury is given a large amount of deference in determining a party's injuries.” McGathey v. Davis, 281 S.W.3d 312, 320 (Mo.App.2009). This Court will not disturb a jury's verdict in assessing damages unless it is grossly excessive or inadequate. Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 656 (Mo.App.1997). “Since the appellate court does not weigh the evidence, it is limited to inquiring whether the jury's verdict is supported by substantial evidence, or in other words, ‘whether the amount of the verdict is responsive to the evidence on the issue of damages.’ ” Heins Implement Co. v. Mo. Hwy. & Transp. Comm'n, 859 S.W.2d 681, 692 (Mo. banc 1993) (quoting Nichols v. Blake, 395 S.W.2d 136, 141 (Mo.1965)).

While the jury is primarily responsible for assessing damages, if the trial court finds the jury's verdict is excessive, it may order remittitur, as authorized by section 537.068. Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo.App.2009). “The trial court has broad discretion in ordering remittitur because the ruling is based upon the weight of the evidence, and the trial court is in the best position to weigh the evidence.” Barnett, 963 S.W.2d at 656. A trial court's decision on remittitur is reviewed for abuse of discretion. Collier v. City of Oak Grove, 246 S.W.3d 923, 925 (Mo. banc 2008). A trial court is said to have abused its discretion when its ruling is against the logic of the circumstances and shows a lack of consideration. Burrows v. Union Pac. R.R. Co., 218 S.W.3d 527, 533 (Mo.App.2007). However, where reasonable persons could differ on the propriety of the ruling, it cannot be said that the trial court abused its discretion. Id.

“ ‘Missouri appellate courts no longer engage in close scrutiny of the amounts awarded by juries for personal injuries since the trial court is in a much better position than we are to assess the verdict.’ ” Henderson v. Fields, 68 S.W.3d 455, 485 (Mo.App.2001) (quoting Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 333 (Mo.App.2000)). In determining whether a verdict is excessive, no precise formula exists. Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 211 (Mo. banc 1991). Each case must be examined on its own facts. Id. A verdict is deemed excessive when it exceeds fair and reasonable compensation for the plaintiff's loss or damages. Johnson v. Allstate Indem. Co., 278 S.W.3d 228, 236 (Mo.App.2009). Our review of the evidence is limited to the evidence that supports the verdict, and we exclude the evidence that disaffirms it. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 343 (Mo.App.2000). Only when the verdict is manifestly unjust will we exercise our power to interfere with the judgment. Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 521 (Mo.App.2007).

Typically, courts evaluate the reasonableness of compensatory damages based on the following factors: “(1) loss of income, both present and future; (2) medical expenses; (3) plaintiff's age; (4) the nature and extent of plaintiff's injuries; (5) economic considerations; (6) awards approved in comparable cases; and (7) the superior opportunity for the jury and the trial court to evaluate plaintiff's injuries and other damages.” McCormack v. Capital Elec. Constr. Co., Inc., 159 S.W.3d 387, 395 (Mo.App.2004).

“In ascertaining the amount of compensatory damages the jury would have awarded in this case, the evidence applicable to the wrongful-death statute is considered.” Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 176 (Mo.App.1997). Relevant here, section 537.090 ⁴ provides that in wrongful-death actions,

the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable....

Here, the jury awarded Evans and Childs $1,000,000.00 as compensatory damages. The trial court apportioned the award equally between both plaintiffs. Defendants argue that there was no evidence that either plaintiff “suffered any substantial compensable non-pecuniary loss” as “the only evidence presented regarding potential economic loss suggest[s] economic loss to each [plaintiff] in the amount of $50 to $100 per month, which is less than $2,5000 per year combined.” Defendants seek “to emphasize the fact that essentially the entire verdict award was given to compensate for non-economic loss.” Thus, they contend, “in light of the evidence that was presented on the issue of the relationship between [Plaintiffs] and the decedent, the overall damage award far exceeds that which is just and reasonable to compensate for their non-economic loss.” Defendants premise this argument, without reference to and unanchored by our standard of review, on their contention that there was not evidence of a close relationship...