State v. McKenzie, No. 92A03-9007-CV-0296

Docket NºNo. 92A03-9007-CV-0296
Citation576 N.E.2d 1258
Case DateAugust 13, 1991
CourtCourt of Appeals of Indiana

Page 1258

576 N.E.2d 1258
STATE of Indiana and Indiana Department of Highways,
Appellants (Defendants Below),
v.
Karin D. McKENZIE, Individually, and as Personal
Representative of the Estate of Brian C. McKenzie,
Deceased, Appellee (Plaintiff Below).
No. 92A03-9007-CV-0296.
Court of Appeals of Indiana,
Third District.
Aug. 13, 1991.
Rehearing Denied Oct. 22, 1991.

Page 1259

Linley E. Pearson, Atty. Gen., G. Richard Potter, Angela L. Cheser, Deputy Attys. Gen., Indianapolis, for appellants.

John F. Lyons, John M. Clifton, Jr., Kevin K. Fitzharris, Barrett & McNagny, Fort Wayne, for appellee.

STATON, Judge.

The State of Indiana, Department of Highways appeals the grant of a new trial. Although the parties couch the dispute in a number of issues, these may be consolidated to the following two:

I. Whether the trial court erred in granting a new trial after the jury returned a verdict for the plaintiff in the amount of $50,000.

II. Whether the trial court should have limited its grant of a new trial to the issue of damages.

We affirm.

On February 22, 1988, Brian C. McKenzie was following a snow plow heading east on S.R. 120 in LaGrange County, Indiana when a westbound semi-tractor trailer passed the snow plow, entered McKenzie's lane, and collided with his vehicle. McKenzie died as a result of injuries sustained in the accident.

McKenzie's estate and his widow, Karin (collectively, "Estate"), filed this wrongful

Page 1260

death action, naming the driver of the truck, the trucking company, and the State of Indiana, Department of Highways as defendants. The Estate settled with the driver and the company for $700,000 and the cause went to trial against the State. The jury returned a verdict for the plaintiff in the amount of $50,000, which was set-off against the $700,000 settlement amount, and the trial court adjudged that the plaintiff take nothing by way of her complaint.

The Estate filed a motion to correct error, which was granted by the trial court. Pursuant to that motion, the trial judge ordered that a new trial be held. The State appeals.

I.

New Trial

When faced with a motion for new trial, the trial judge sits as a thirteenth juror and may order a new trial if he determines that the jury's verdict is against the weight of the evidence. Berg v. Glinos (1989), Ind.App., 538 N.E.2d 979, 981. It is the trial judge's function to weigh the evidence and judge the credibility of the witnesses. Id.

Upon review of a trial court's grant of a new trial, our sole duty is to examine the record to see if:

(1) The trial court abused its discretion;

(2) A flagrant injustice has been done to the appellant; or

(3) A very strong case for relief from the trial court's order of a new trial has been made by the appellant. Memorial Hospital of South Bend, Inc. v. Scott (1973), 261 Ind. 27, 300 N.E.2d 50, 54. In applying this standard, the trial court's grant of a new trial is given a strong presumption of correctness. Id. 300 N.E.2d at 53.

The State first argues that the trial court erred in failing to adequately set forth findings of fact which supported the jury finding as required by Trial Rule 59(J)(7). 1 The procedural requirements outlined in Trial Rule 59(J)(7) have been characterized as "paramount," and the process of entry of the requisite findings as "arduous and time-consuming." Nissen Trampoline v. Terre Haute First Nat. Bank (1977), 265 Ind. 457, 358 N.E.2d 974, 978. The purpose of the requirements is to provide the parties and the reviewing court with the theory of the trial court's decision. In re Marriage of Huth (1982), Ind.App., 437 N.E.2d 1042, 1047. Thus, the findings may summarize the evidence, so long as the summary is complete enough to facilitate appellate review. Brown v. Conrad (1988), Ind.App., 531 N.E.2d 1190, 1193, transfer denied; Bossard v. McCue (1981), Ind.App., 425 N.E.2d 682, 684, transfer denied.

Much of the evidence regarding damages was stipulated to or not controverted. This evidence was set out at length by the trial court, with citations to the exhibits, witnesses and stipulations which were the sources of the information. The court also entered the following findings:

Page 1261

(h) George V. Launey, Ph.D., testified that the economic losses including wages sustained by Karin D. McKenzie by reason of the demise of Brian C. McKenzie were, calculated at present value, between $1,305,436.00 and $1,731,538.00 (Exhibits 72-76 inclusive).

* * * * *

(k) The elements of loss of love, care and affection sustained by Karin D. McKenzie were amply disclosed by the testimony of Karin D. McKenzie.

(1) Defendant, in closing argument by its counsel, conceded that plaintiff, Karin D. McKenzie, had truly been damaged.

4. The Court finds the evidence relating to damages presented upon behalf of plaintiff was the sole evidence of damages in the trial and was not impeached by cross-examination, and was credible.

* * * * *

6. The Court finds that defendant, except through cross-examination of George V. Launey, Ph.D., did not submit any evidence concerning damages. The cross-examination of George V. Launey, Ph.D., did not impeach his testimony which the Court finds to be credible and worthy of belief.

Record, pp. 12-13.

The State selectively sets out portions of the cross-examination testimony elicited from Professor Launey, arguing that the trial judge failed to set out those portions of the cross-examination in his findings. Clearly, however, the judge has indicated that all of the evidence relating to damages presented by the State was introduced through cross-examination of Professor Launey. This statement is sufficient to allow us to locate the testimony in the record which supported the verdict. 2 In addition, it satisfies us that the trial judge considered this evidence in deciding whether to grant a new trial. As the trial judge's findings were adequate to permit appellate review, we conclude that they were sufficient to comply with the requirements of Trial Rule 59(J)(7).

The State next argues that the trial judge abused his discretion in granting a new trial. It cites the case of Sanders v. Cole Municipal Finance (1986), Ind.App., 489 N.E.2d 117, transfer denied. In Sanders, the plaintiffs appealed the trial court's denial of a motion for new trial after the jury returned a verdict for $320,000.00, where the plaintiff's expert gave his opinion that the economic damages totalled over $860,000. We affirmed, noting the strong presumption of correctness afforded the trial court's decision to grant or deny a new trial. We also stated that "[e]ach case must rest on its own merits since, although there can be similarities with other cases, the facts and circumstances will be peculiar to each case." Id. at 123.

Although it is true, as we stated in Sanders, that the jury is free to accept...

To continue reading

Request your trial
8 practice notes
  • Dughaish ex rel. Dughaish v. Cobb, No. 82A04-9906-CV-271.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 2000
    ..."thirteenth juror" the trial court may order a new trial if the jury's verdict is against the weight of the evidence. State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), trans. denied; see also Thompson v. State, 590 N.E.2d 633, 634 (Ind.Ct.App. 1992) (sitting as a thirteenth juror ......
  • Neher v. Hobbs, No. 92A04-0008-CV-316.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 2001
    ...characterized as "paramount," and the process of entering the requisite findings as "arduous and time-consuming." State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), trans. denied. The purpose of the special findings of fact is to provide the parties and the reviewing court with the......
  • Leroy v. Kucharski, No. 02A03-0701-CV-16.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 13, 2007
    ...special findings have been characterized as "arduous and time-consuming." DeVittorio, 634 N.E.2d at 531 (quoting State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), reh'g denied, trans. denied). However, the purpose of those requirements is to provide the parties and the reviewing c......
  • Chafin v. Grayson, No. 18A02-0102-CV-78.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 18, 2002
    ...characterized as "paramount," and the process of entering the requisite findings as "arduous and time-consuming." State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind. Ct.App.1991), trans. denied. The purpose of the special findings of fact is to provide the parties and the reviewing court with th......
  • Request a trial to view additional results
8 cases
  • Dughaish ex rel. Dughaish v. Cobb, No. 82A04-9906-CV-271.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 2000
    ..."thirteenth juror" the trial court may order a new trial if the jury's verdict is against the weight of the evidence. State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), trans. denied; see also Thompson v. State, 590 N.E.2d 633, 634 (Ind.Ct.App. 1992) (sitting as a thirteenth juror ......
  • Neher v. Hobbs, No. 92A04-0008-CV-316.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 2001
    ...characterized as "paramount," and the process of entering the requisite findings as "arduous and time-consuming." State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), trans. denied. The purpose of the special findings of fact is to provide the parties and the reviewing court with the......
  • Leroy v. Kucharski, No. 02A03-0701-CV-16.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 13, 2007
    ...special findings have been characterized as "arduous and time-consuming." DeVittorio, 634 N.E.2d at 531 (quoting State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind.Ct.App.1991), reh'g denied, trans. denied). However, the purpose of those requirements is to provide the parties and the reviewing c......
  • Chafin v. Grayson, No. 18A02-0102-CV-78.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 18, 2002
    ...characterized as "paramount," and the process of entering the requisite findings as "arduous and time-consuming." State v. McKenzie, 576 N.E.2d 1258, 1260 (Ind. Ct.App.1991), trans. denied. The purpose of the special findings of fact is to provide the parties and the reviewing court with th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT