Leroy v. Kucharski

• Citation: 878 N.E.2d 247
• Decision Date: 13 December 2007
• Docket Number: No. 02A03-0701-CV-16.,02A03-0701-CV-16.
• Parties: Shon M. LEROY, Appellant-Defendant, v. Michelle KUCHARSKI, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

878 N.E.2d 247

Shon M. LEROY, Appellant-Defendant, v. Michelle KUCHARSKI, Appellee-Plaintiff.

No. 02A03-0701-CV-16.

Court of Appeals of Indiana.

December 13, 2007.

Michael H. Michmerhuizen, James J. O'Connor, Barrett & McNagny, Fort Wayne, IN, Attorneys for Appellant.

Dennis R. Brown, Dennis H. Geisleman, Geisleman & Brown, Fort Wayne, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Shon M. Leroy appeals the trial court's grant of a motion to correct error in favor of Michelle Kucharski. Leroy raises one issue, which we revise and restate as whether the trial court abused its discretion by setting aside the jury verdict and ordering a new trial in Kucharski's negligence action against Leroy. We affirm.

The relevant facts follow. Lima Road, located in Fort Wayne, comprises two northbound lanes, two southbound, and is divided by a median. Graham Drive, running east and west, intersects Lima Road at a stop sign. On the afternoon of September 4, 2003, Kucharski and Leroy were involved in an automobile collision at this intersection. On February 22, 2005, Kucharski filed a complaint against Leroy, alleging that she suffered from severe personal injuries caused by Leroy's negligent operation of his automobile.

At trial, Kucharski testified that she was driving southbound on Lima Road in the inside lane when she noticed that traffic in the outside lane was slowing down. The speed limit on Lima Road is 45 miles per hour and she was "going between 40 and 45." Transcript at 59. Leroy, traveling eastbound, had been waiting at the stop sign on Graham Drive to turn left onto northbound Lima Road when a driver going southbound in the outside lane slowed down and gestured for him to turn. According to Kucharski, Leroy then crossed in front of her, and, although she applied her brakes, their cars collided in the inside lane. On cross examination, Kucharski stated that her speed at impact "could have been 30-35" miles per hour. Id. at 59. According to a written report from her physician, she had estimated that she was "traveling 45 miles per hour at the time of impact." Id. at 121-122.

At the scene of the accident, Leroy told Fort Wayne Police Officer Jack Barbour that one car had stopped to let him turn and that he "pulled out and did not see [Kucharski] and got hit." Id. at 44-45. Officer Barbour prepared a diagram of the collision locating it in Kucharski's lane. Leroy later testified, however, that several cars in the outside lane had stopped to let him turn, that he "made sure there was no traffic coming," pulled up completely into the median, and was waiting to complete the turn for "30 seconds to a minute" when Kucharski swerved into the median and hit him. Id. at 223.

The jury found Kucharski 60% at fault and Leroy 40% at fault. On November 27, 2006, Kucharski filed a motion to correct error alleging that the jury's verdict was against the weight of the evidence. After a hearing, the trial court granted the motion and ordered a new trial, entering the following findings of fact and conclusions thereon:

1. Defendant, Shon Leroy; although testifying at trial that his vehicle was struck in the median after he had safety [sic] crossed two lanes of southbound traffic on Lima Road, told the investigating officer at the scene of the accident, that a vehicle had stopped in the southbound lane of Lima Road closest to Graham Drive and had waived him across the intersection, and that as he entered the second lane of traffic (the inside southbound lane where . . . Kucharski was traveling) the collision occurred.

2. [Kucharski] testified that as [Leroy] attempted to cross the two southbound lanes of traffic on Lima Road, she struck [Leroy's] vehicle despite attempting to brake and avoid the collision.

3. The investigating officer also testified that [Leroy] told him that he never saw [Kucharski's] vehicle as he attempted to cross the two lanes of southbound Lima Road.

4. The investigating officer hand-drew a diagram of the collision scene wherein he located the collision impact in the middle of [Kucharski's] southbound lane of traffic rather than in the median. The officer's diagram was based upon his own investigation of the collision, which included speaking to both drivers and examining the location of the vehicles and the accident debris.

5. [Leroy] also testified at trial that a line of traffic had stopped to let him pass over the outside lane of southbound traffic on Lima Road; whereas he told the investigating officer only one car had stopped.

6. The conflict between the testimony of [Leroy] at trial and at the scene of the accident as to the point of impact is resolved by this Court by rejecting [Leroy's] trial testimony and finding his statements made to the investigating officer more probative.

7. In light of all the evidence presented at trial, this Court finds that the point of impact of the collision was in the middle of the inside southbound lane of traffic on Lima Road where [Kucharski] was traveling.

8. That [Kucharski's] characterization of the collision as a "T-bone" type collision, which may not be totally accurate, is not a material fact.

9. The collision occurred in [Kucharski's] through lane of traffic.

10. [Leroy] failed to see [Kucharski's] vehicle when he was waived across the highway by an unknown motorist.

11. The damages to [Leroy's] vehicle was [sic] on the left rear quarter panel, where it was struck by the front of [Kucharski's] vehicle.

12. [Kucharski] attempted to brake and avoid the collision.

13. There was no evidence of the speed of either vehicle immediately prior to the collision.

14. That [Kucharski's] speculation as to how or why the jury reached its verdict is merely that, speculation, and not at all determinative to this Court's ruling herein.

This Court makes the following conclusions of law:

1. That [Kucharski] proved by a preponderance of the evidence that [Leroy] failed to yield the right of way to [Kucharski], and that, therefore, [Leroy] was negligent.

2. That no specific negligence on the part of [Kucharski] was alleged by [Leroy] in the Pre-Trial Order.

3. That [Leroy] failed to prove by a preponderance of the evidence that [Kucharski] was negligent.

4. That [Kucharski] proved by a preponderance of the evidence that the collision was proximately caused by the negligence of [Leroy].

5. That based on the above findings of fact, the verdict of the jury allocating 60% fault to [Kucharski] and 40% fault to [Leroy] is against the weight of the evidence presented at trial.

6. In weighing the evidence presented, this Court finds that a contrary verdict should have been reached.

WHEREFORE, this Court acting as a "thirteenth juror" (in this case, more accurately as an "eight juror") as authorized under Indiana law, now finds that the verdict of the jury should be set aside and, therefore, GRANTS [Kucharski's] Motion to Correct Errors and orders a new trial in this case.

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Appellant's Appendix at 61-63 (emphasis added).

The sole issue is whether the trial court abused its discretion when it ordered a new trial. As Leroy correctly notes, contrary to the trial court's finding that there was no evidence of the speed of either vehicle prior to the collision, the parties presented evidence at trial that Kucharski was traveling 40 to 45 miles per hour before the collision and that she was traveling 30 to 35 miles per hour, or, alternatively, 45 miles per hour, at the moment of impact. Leroy argues that the trial court's erroneous finding constitutes a failure to comply with Ind. Trial Rule 59(J), which, he contends, requires that the trial court "set forth supporting and opposing evidence on each issue." Appellant's Brief at 10. We disagree.

"A trial court has wide discretion to correct errors and to grant new trials." DeVittorio v. Werker Bros., 634 N.E.2d 528, 530 (Ind.Ct.App.1994) (citing Malacina v. Malacina, 616 N.E.2d 1061, 1062 (Ind.Ct.App.1993)). In determining whether to grant a new trial, "the trial judge has an affirmative duty to weigh conflicting evidence." Precision Screen Machs., 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, 33, 300 N.E.2d 50, 54 (1973)). "The trial judge sits as a thirteenth juror and must determine whether in the minds of reasonable men a contrary verdict should have been reached." Id. (quoting Scott, 261 Ind. at 33, 300 N.E.2d at 54).

When a trial court grants a new trial pursuant to Trial Rule 59(J), the granting of relief is given a strong presumption of correctness. DeVittorio, 634 N.E.2d at 530 (citing Lucero v. Lutheran Univ. Ass'n, 621 N.E.2d 660, 662 (Ind.Ct. App.1993)). We will reverse the grant of a new trial only for an abuse of discretion. Id. This court neither weighs the evidence nor judges the credibility of the witnesses. Hixson, 711 N.E.2d at 70. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom. DeVittorio, 634 N.E.2d at 530. An abuse of discretion also results from a trial court's decision that is without reason or is based upon impermissible reasons or considerations. Id.

Trial Rule 59(J) provides in relevant part:

The court, if it determines that prejudicial or harmful error has been committed, shall take such action as will cure the error, including without limitation the following with respect to all or some of the parties and all or some of the errors:

(1) Grant a new trial;

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(7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the...