Keith v. Mendus

• Decision Date: 12 February 1996
• Docket Number: No. 45A05-9409-CV-357,45A05-9409-CV-357
• Citation: 661 N.E.2d 26
• Parties: 11 IER Cases 671 Scott N. KEITH, D.P.M., Appellant-Plaintiff, v. Mary MENDUS, D.O., Mark Rybczynski, D.O. and Richard Krejsa, D.O., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 26

661 N.E.2d 26

11 IER Cases 671

Scott N. KEITH, D.P.M., Appellant-Plaintiff, v. Mary MENDUS, D.O., Mark Rybczynski, D.O. and Richard Krejsa D.O., Appellees-Defendants.

No. 45A05-9409-CV-357.

Court of Appeals of Indiana.

Feb. 12, 1996.

Appeal from the Lake Superior Court, No. 45D05-9201-CP-30; James J. Richards, Judge.

David E. Wickland, Munster, Stanley C. Fickle, Barnes & Thornburg, Indianapolis, for Appellant.

Robert F. Parker, Christine H. Curosh, Beckman, Kelly & Smith, Hammond, for Appellee.

OPINION

RUCKER, Judge.

Plaintiff-Appellant Scott N. Keith (Doctor Keith) was terminated from his employment with Our Lady of Mercy Hospital and thereafter sued Defendants-Appellees Mary Mendus, Mark Rybczynski and Richard Krejsa (collectively referred to as Physicians) claiming tortious interference with a contractual relationship. Following a jury award of damages in Doctor Keith's favor, Physicians filed a motion to correct errors. The trial court granted the motion in part and ordered a new trial limited to the issue of damages. Doctor Keith now appeals claiming the trial court erred in granting the motion. Physicians cross appeal raising the following restated issues: 1) did the trial court err in limiting the grant of a new trial solely to the question of damages; 2) did the trial court err in failing to grant Physicians' motion for summary judgment and motions for judgment on the evidence; and 3) did the trial court err in refusing to give Physicians' proposed jury instruction.

We affirm.

Doctor Keith is a board-certified doctor of podiatric medicine practicing in Lake County, Indiana. On May 11, 1987 he entered into a written agreement with Our Lady of Mercy Hospital (Hospital) to provide podiatric services. The services were to be provided from two offices that Hospital owned and which were referred to as Family Medical Services. Under terms of the agreement Doctor Keith was employed by Hospital as an independent contractor and his employment was terminable at will by either party upon thirty days' prior written notice.

Physicians are doctors of osteopathic medicine specializing in family practice. Like Doctor Keith, Physicians also entered into written agreements with Hospital. However, their agreements provided that Physicians were Hospital employees rather than independent contractors. Doctor Keith and Physicians practiced medicine together at the Family Medical Services locations, but sometime in 1989 the relationship between the parties began to deteriorate. The reason for the deterioration is in dispute. According to Doctor Keith, Physicians desired to see his contract with the Hospital terminated because Doctor Keith refused to allow Physicians to serve as assistants on his podiatric surgeries. Physicians deny this allegation and instead maintain that in the latter months of 1989, Doctor Keith began canceling and then began failing to appear for scheduled appointments. In any event on November 30, 1989, Doctor Keith received a letter printed on Hospital letterhead purporting to terminate his contract with Hospital. The letter was signed by Physicians. Doctor Keith thereafter sought clarification of his status from Hospital administrator, J. Donald Manchak. A series of meetings and discussions ensued, after which Manchak issued a letter formally terminating Keith's agreement with Hospital effective February 3, 1990.

On January 6, 1992, Doctor Keith filed a complaint against Physicians for tortious interference with a contractual relationship. Thereafter Physicians filed a motion for summary judgment which the trial court denied. The case proceeded to trial by jury in March, 1994. After deliberation the jury returned a verdict in Doctor Keith's favor and assessed money damages of $400,000.00 against each of the three physicians for a total judgment of 1.2 million dollars. Physicians filed a timely Motion to Correct Errors seeking judgment on the evidence or in the alternative a new trial on the issue of liability as well as damages. Following a hearing, the trial court granted the motion in part by ordering a new trial limited solely to the issue of damages. This appeal ensued in due course.

I.

Doctor Keith contends the trial court erred in ordering a new trial because it failed to set forth adequately special findings of fact as required by Ind.Trial Rule 59(J)(7). ¹ Physicians counter that any deficiency in the trial court's entry of special findings is unimportant because their Motion to Correct Errors was premised jointly upon T.R. 59(J)(7) and T.R. 50(C). ² Thus, the argument continues, assuming the trial court granted a new trial under T.R. 50(C) then no special findings were necessary.

Trial Rule 59(J), which governs the relief to be granted on motions to correct error, requires a trial court to enter special findings when granting a new trial. Anderson v. Amtech Capital Corp. (1992), Ind.App., 600 N.E.2d 149, 150. On the other hand T.R. 50(C), which permits a trial court to grant a new trial in lieu of judgment on the evidence, requires no such findings. Id. When a trial court grants a new trial on the basis of a motion for judgment on the evidence pursuant to T.R. 50(C), it must consider only the evidence most favorable to the nonmoving party and may grant the motion only when there is no evidence or reasonable inferences therefrom to support an essential element of the claim. Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223. However, when the trial court grants a new trial as a "thirteenth juror" under the provisions of T.R. 59(J), it must sift and weigh the evidence and judge witness credibility. Berg v. Glinos (1989), Ind.App., 538 N.E.2d 979, 981. "If Rule 50(C) new trial relief is granted, it cannot be on the basis of the '13th Juror' or a review of the evidence. If the trial court is going to 'weigh the evidence' then this kind of new trial must come as part of a motion to correct error under Trial Rule 59." 3 Harvey, Indiana Practice 299 (1988).

In support of its decision to grant a new trial the trial court entered the following pertinent findings:

With respect to the amount of damages awarded by the jury, the Court, sitting as the thirteenth (seventh) juror, determines there is a complete lack of evidence to support the award of $400,000.00 against each Defendant, for a total of $1.2 million dollars. In late 1989 and/or early 1990, contemporaneously with the termination of the contract, Plaintiff began working about 20 hours a week in his restaurant in Whiting, Indiana, as a hobby, which continues through the date of this trial. This operation was losing both money and time that could have been better spent on his practice in order to mitigate any loss of prior income as alleged in Plaintiff's complaint. During the period 1990 to 1992, Plaintiff's restaurant reported losses totaling $91,000.00.

Plaintiff bases his claim for damages on the $11,500.00 gross income received for the last month of his contract in January of 1990, which this Court finds not to be reflective of what his regular monthly income would have been from the St. John clinic based on the prior two years. Moreover, the St. John clinic was closed in 1993 and no further income could have been realized from this location by Plaintiff thereafter.

The provision in Plaintiff's contract with the Hospital (which was not joined as a party in this proceeding), provided that the contract could be terminated by either party without cause on thirty (30) days notice. It is far too speculative to determine future income for a period of 25 years as was requested by the Plaintiff from the jury on such a contract. While Defendants have suggested the Court utilize the formula based on Plaintiff's prior earnings at the St. John clinic, until closed, and find that the sum of $211,761.00 was the maximum number that could be awarded by the jury, this Court declines to adopt their proposal, and determines that the amount of award made by the jury is excessive and not warranted by the evidence.

Record at 840-841 (emphases added). The trial court did not indicate whether it was granting a new trial under T.R. 50(C) or T.R. 59(J). The wording in the order that "there is a complete lack of evidence to support the award" and "the amount of award made by the jury is excessive and not warranted by the evidence" seems to suggest the trial court was proceeding under the theory that there was no evidence or reasonable inferences therefrom to support an essential element of Doctor Keith's claim. Stated differently, at first blush it appears the trial court was proceeding under T.R. 50. However, the order specifically states that the trial court was "sitting as the thirteenth (seventh) juror." The trial court then began evaluating and weighing the evidence, a process contemplated by T.R. 59(J)(7). We conclude therefore that the trial court granted a new trial on the issue of damages under T.R. 59(J) rather than under T.R. 50(C) as Physicians contend. Thus, we agree with Doctor Keith that the trial court was required to set forth special findings of fact upon each material element of the damages issue. However, we do not agree the trial court also was required to relate supporting and opposing evidence on the issue.

When the trial court grants a new trial on the basis that the decision is "against the weight of the evidence", then T.R. 59(J)(7) requires the court's special findings of fact to "relate the supporting and opposing evidence to each issue upon which a new trial is granted." However, where the trial court grants a new trial on the basis that the decision of the jury is "clearly erroneous as contrary to or not supported by the evidence" then the findings need only "show why judgment was not entered upon the evidence." T.R. 59(J)(7); Wedmore v. Jordan Motors, Inc. (1992), Ind.App., 589 N.E.2d 1180, 1183, trans. denied. In this case, the trial court did not use the precise wording set forth in ...