Smith v. Morris

• Decision Date: 10 February 1978
• Docket Number: No. 48993,48993
• Parties: Larry D. SMITH, Appellee, v. L. A. MORRIS, Appellant.
• Court: Kansas Court of Appeals

Page 568

574 P.2d 568

2 Kan.App.2d 59

Larry D. SMITH, Appellee, v. L. A. MORRIS, Appellant.

No. 48993.

Court of Appeals of Kansas.

Feb. 10, 1978.

Syllabus by the Court

1. K.S.A. 60-2102(a )(4) permits an appeal as of right from a "final decision in any action."

2. Appellate jurisdiction being purely a matter of statute, an interlocutory appeal not taken according to the statute must be dismissed for lack of jurisdiction.

3. An order granting a new trial is not ordinarily a final order or judgment from which an appeal can be taken as a matter of right.

4. An appeal from an order granting a new trial may be taken where the order exceeded the court's jurisdiction.

5. An order granting a new trial is beyond the court's jurisdiction if it is granted upon grounds not enumerated in K.S.A. 60-259(a ). The grounds in K.S.A. 60-259(a ) are exclusive and act as a limitation upon the power of the trial court to grant a new trial.

6. The trial court, in granting a new trial upon grounds listed in K.S.A. 60-259(a ), must do more than merely comply with the form of the statute but must also comply with the substance. The trial court may not use any of the grounds of K.S.A. 60-259(a ) as a subterfuge for a substitution of its judgment for that of the jury.

7. In an appeal from an order granting a new trial it is held : (a) as construed by this court the trial court's order was based on jury misconduct in returning a quotient verdict; (b) the order made was within the trial court's jurisdiction and is not appealable as of right; (c) whether a quotient verdict was in fact returned, and whether such alleged misconduct could have been cured by an additur, go only to the correctness of the order and not to the court's jurisdiction to make it.

Thomas L. Theis of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, for appellant.

William J. Craven and Robert B. Wareheim of McCullough, Wareheim & LaBunker, Topeka, for appellee.

Before FOTH, C. J., and ABBOTT and PARKS, JJ.

FOTH, Chief Judge:

This is an appeal by the defendant from an order granting plaintiff's motion for a new trial. The action arises out of a 1973 automobile collision. Plaintiff prayed for $136,500.00 in damages, based on medical expenses, pain and suffering, and the loss of a year's wages. The jury returned a verdict for $4,264.41.

One of the grounds for plaintiff's new trial motion was "misconduct of the jury." At the hearing on the motion two jurors were called to testify. The foreman of the jury, Merlyn Broxterman, testified the jury misunderstood the court's instruction as to "quotient verdicts" and believed it to permit the use of the quotient method if the jury was otherwise unable to arrive at a verdict. Broxterman said each juror wrote down a figure, and the figures were added together and divided by the number of jurors to obtain the verdict. Once the figure was obtained there was no discussion about changing it. Juror Mary Jean Flory testified there had been no advance agreement among the jurors to be bound by the quotient struck; however, she admitted there was no further discussion of the amount after the quotient was figured.

Based on this evidence the trial court granted a new trial "for the reason that the jury misunderstood the Court's instructions pertaining to a 'quotient verdict' and that said new trial should be granted on both issues of liability and damages."

While this appeal was pending plaintiff moved to dismiss on the ground that the order appealed from was not appealable. We postponed consideration of that issue until the hearing on the merits. We now dismiss the appeal for lack of jurisdiction.

K.S.A. 60-2102(a )(4) permits an appeal as of right from a "final decision in any action." Since Oertel v. Phillips, 197 Kan. 113, 415 P.2d 223, the first case dealing with the subject under our present code of civil procedure, it has been recognized as a general proposition that an order granting a new trial is not a "final decision." Hence an appeal from such an order is an interlocutory appeal, which may be taken only by permission under K.S.A. 60-2102(b ). Appellate jurisdiction being purely a matter of statute, an interlocutory appeal not taken according to the statute must be dismissed for lack of jurisdiction. Oertel v. Phillips, supra; Fredricks v. Foltz, 221 Kan. 28, 557 P.2d 1252; Henderson v. Hassur, 1 Kan.App.2d 103, 562 P.2d 108.

Appellant, however, relies on the so-called "jurisdictional" exception to the general rule carved out in three cases: Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P.2d 398; Herbel v. Endres, 202 Kan. 733, 451 P.2d 184; and Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356. We believe the reliance is misplaced. Each of those cases held in essence that the six grounds for granting a new trial enumerated in K.S.A. 60-259(a ) are exclusive, and that if a trial court grants a new trial on some different ground it acts beyond its jurisdiction. Such an order which exceeds the court's jurisdiction, as opposed to one which is merely erroneous, was held to be appealable despite its interlocutory nature.

Thus, in Landscape, the trial court granted a new trial because it could not "approve" the verdict. The Supreme Court said:

"K.S.A. 60-259(a ) sets forth, in plain and unmistakable language, the grounds on which a new trial may be granted to all or any of the parties. There are six of them. We see no need to list them now. It is sufficient, here, to say that the reason assigned by the trial court in this case, 'that the Court cannot approve the verdict of the jury, period,' is not one of the six grounds listed in the statute.

"We deem the grounds delineated by statute to be exclusive and to constitute a limiting factor upon the authority of a trial court to grant a new trial. . . ." (197 Kan. at 132-133, 415 P.2d at 404.)

In Herbel, the new trial was granted because the trial court was "dissatisfied" with the verdict. Once again the Supreme Court entertained the appeal and reversed, saying:

"We hold the trial court's order setting aside the verdict and granting a new trial did not comply with the requirements of 60-259(e ), supra, and was ineffective. The trial court had no jurisdiction to grant a new trial simply because it was dissatisfied with the verdict. This is not one of the grounds for which a motion for new trial may be granted." (202 Kan. at 737, 451 P.2d at 188.)

In Mettee, the most recent case, the trial court ordered a new trial because the verdict was, in the statutory language, "contrary to the evidence." In support, however, it elaborated by finding that the verdict was "grossly excessive under the credible evidence." (Mettee v. Urban Renewal Agency, supra 219 Kan. at 168, 547 P.2d at 358.) The Supreme Court found that the trial judge's conclusion necessarily reflected a reweighing of the evidence evidenced by the trial court's reference to the "credible" evidence. It concluded:

"The trial court complied with the form of the present statute, but not the substance. The court's order stated that the verdict was contrary to the evidence. K.S.A.1975 Supp. 60-259(a ). The court also set forth specific reasons for its order. However, the reasons set forth constitute an impermissible basis for granting a new trial. Those reasons amount to a substitution of the court's judgment for that of the jury. . . ." (219 Kan. at 169, 547 P.2d at 359.)

Thus, the Supreme Court found the trial court's grant of a new trial was based upon an independent assessment of the credibility of the evidence and not...