Wiley v. Homfeld, No. WD 69560 (Mo. App. 11/3/2009)

• Decision Date: 03 November 2009
• Docket Number: No. WD 69560.,No. WD 69599.,WD 69560.,WD 69599.
• Citation: Wiley v. Homfeld, No. WD 69560 (Mo. App. 11/3/2009), No. WD 69560., No. WD 69599. (Mo. App. Nov 03, 2009)
• Parties: LAUREN N. WILEY, Appellant-Respondent, v. RYLAND R. HOMFELD, Respondent-Appellant.
• Court: Missouri Court of Appeals

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LAUREN N. WILEY, Appellant-Respondent, v. RYLAND R. HOMFELD, Respondent-Appellant.

No. WD 69560.

No. WD 69599.

Court of Appeals of Missouri, Western District.

November 3, 2009.

Appeal from the Circuit Court of Ray County, Missouri, The Honorable Werner A. Moentmann, Judge.

Before Court En Banc: Thomas H. Newton, Chief Judge, James E. Smart, Jr., Judge, Joseph M. Ellis, Judge, Victor C. Howard, Judge, Lisa White Hardwick, Judge, James E. Welsh, Judge, Alok Ahuja, Judge, Mark D. Pfeiffer, Judge and Karen King Mitchell, Judge

JOSEPH M. ELLIS, Judge.

Lauren Wiley appeals the circuit court's entry of remittitur and final judgment in her negligence action against Ryland Homfeld, contending that the circuit court erred because: (1) it failed to give Ms. Wiley an opportunity to consent to remittitur or to request a new trial, and (2) it abused its discretion in remitting the jury's verdict. Mr. Homfeld cross-appeals claiming that the circuit court erred in permitting Dr. John Scowley to testify regarding Ms. Wiley's future medical expenses and in denying his motion for new trial. For the following reasons, the trial court's decision to remit the verdict is reversed, and judgment is entered in accordance with the jury's verdict.

On May 20, 2004, Ms. Wiley was driving her Ford Escort when she was struck by an eighteen-wheel truck and trailer driven by Mr. Homfeld, who had run a red light while talking on his cellular phone. Ms. Wiley sustained injuries to her back as a result of the collision.

Ms. Wiley subsequently filed a petition for damages in the Circuit Court of Ray County, and the case was tried by jury on November 26, 2007. At trial, Mr. Homfeld admitted liability, leaving only the issue of Ms. Wiley's damages. The jury ultimately rendered verdict in favor of Ms. Wiley for $400,000.

Mr. Homfeld filed a motion for new trial, judgment notwithstanding the verdict, and/or remittitur. Mr. Homfeld's motion for remittitur was based upon a claim of grossly excessive verdict. After a hearing, the circuit court denied the motions for new trial and judgment notwithstanding the verdict but ordered the jury's verdict remitted by $300,000 and entered judgment in favor of Ms. Wiley for $100,000. Ms. Wiley appeals, and Mr. Homfeld cross-appeals.

We first address Ms. Wiley's second point on appeal, wherein she contends that the circuit court abused its discretion in ordering remittitur. She argues that trial court improperly based its decision on a finding that no future medical expenses were established to a reasonable degree of medical certainty and in refusing to consider her future medical expenses in assessing the nature and extent of her injury.

"The assessment of damages is primarily a function for the jury." Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 180 (Mo. App. W.D. 2006). "Missouri courts have consistently adhered to the rule that a verdict of a jury in assessing damages will not be disturbed unless it is grossly excessive or inadequate." Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 656 (Mo. App. W.D. 1997).

The trial court's authority to grant remittitur is established by § 537.068.¹ That statute only vests the trial court with discretion to remit a verdict if the evidence, viewed in the light most favorable to the verdict, does not support the amount awarded by the jury.² § 537.068. The trial court has no authority to alter the jury's verdict unless that threshold requirement is met.

Accordingly, when reviewing a trial court's grant of remittitur, an appellate court must first review whether the trial court had the statutory authority under § 537.068 to remit the jury's verdict. Entering remittitur where the jury's verdict is supported by the evidence would obviously be an abuse of discretion as it assumes authority not granted to the court by § 537.068. The only way to review the trial court's decision in this regard is to view the evidence in the light most favorable to the verdict, as the trial court was required to do in assessing whether the jury's verdict was supported by the evidence.³

This standard of review was utilized in the most recent, controlling case from the Missouri Supreme Court. In 1985, the Missouri Supreme Court abolished common law remittitur in Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985). It did so, however, only after deciding Ms. Firestone's appeal, in which it reversed the trial court's grant of remittitur. Id. In its analysis of the propriety of the trial court's decision to remit, the Court cited with approval Dodd v. Missouri-Kansas-Texas R. Co., 193 S.W.2d 905, 907 (Mo. 1946), and applied the teaching of Dodd in Ms. Firestone's case.⁴ Id. at 108, 110.

Specifically, the Court in Firestone noted that it was for the jury to evaluate the credibility of conflicting expert testimony, and it viewed the evidence in the light most favorable to the jury's verdict. Id. at 108-10. Concluding its analysis, the Supreme Court stated that "[t]he jury is vested with a broad discretion in fixing fair and reasonable compensation to an injured party" and held that where the record contains evidence that would support the jury's award, "[s]uch a record does not authorize a trial court in the exercise of reasonable discretion to order any portion of it remitted." Id. at 109-10. For this reason, the Court found an abuse of discretion on the part of the trial court and restored the jury's verdict. Id. at 10.

The Supreme Court's citation to, and reliance on, Dodd is a clear rejection of Scheurnagel and the other prior cases that had reviewed remittitur in the light most favorable to the trial court and, as such, has the effect of overruling them sub silentio. Keller v. Marion County Ambulance Dist., 820 S.W.2d 301, 305 (Mo. banc 1991) (Recognizing that previous cases can be overruled sub silentio by subsequent decisions. "To the extent that this language constitutes the holding of Roberts, it has been overruled by this Court sub silentio in several cases."). The Court was clearly mindful of those cases at the time because one of its reasons for abolishing remittitur was because of the "problems and conflicting philosophies" exhibited by the courts of this State in addressing remittitur. Firestone, 693 S.W.2d at 110.

Firestone is the most recent controlling decision of our Supreme Court on this issue. While Firestone abolished common law remittitur, the legislature adopted § 537.068 in 1987 creating a statute-based remittitur. "[T]he legislature is presumed to know the state of the law when enacting a statute." Scoggins v. Timmerman, 886 S.W.2d 135, 137 (Mo. App. W.D. 1994). Common law rules remain in effect "[u]nless a statute clearly abrogates the common law either expressly or by necessary implication." Mika v. Cent. Bank of Kansas City, 112 S.W.3d 82, 90 (Mo. App. W.D. 2003) (internal quotation omitted). If the legislature, in reinstating remittitur by statute, had intended to change the standard of review adopted and applied in Firestone, it could easily have done so. It did not. Accordingly, the standard of review currently applicable to cases appealing the grant of remittitur is that set out and applied in Firestone. "'This court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court.'"⁵ Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo. App. W.D. 2005) (quoting Kinder v. Mo. Dep't of Corr., 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2)).

Subsequent to the enactment of § 537.068, the Eastern District of this Court utilized this approach in holding that a trial court abused its discretion in granting remittitur in Crawford ex. rel. Crawford v. Shop `N Save Warehouse Foods, Inc., 91 S.W.3d 646, 653 (Mo. App. E.D. 2002). The Eastern District viewed the evidence in the light most favorable to the verdict to determine whether the jury's award of future medical expenses was supported by substantial and competent evidence and held that the trial court erred in remitting the verdict where the evidence, so viewed, supported the jury's verdict. Id. at 653-54.

Similarly, in Children International v. Ammon Painting Co., 215 S.W.3d 194, 199 (Mo. App. W.D. 2006), this Court viewed the evidence in the light most favorable to the jury's award in assessing whether the trial court properly ordered remittitur. While noting that the amount of the overall verdict was supported by the evidence and would likely require holding that the entry of remittitur was an abuse of discretion had various aspects of the verdict not been itemized by the jury, we held that the trial court's remittitur of the amount specifically awarded for loss of use damages was proper because the record contained no evidence of such damages.⁶ Id.

In the case at bar, reasonable minds could differ on the extent to which the need for future medical treatment was established by the evidence. The jury entered an award that was clearly supported by the evidence, and when the evidence in support of the jury's verdict is reviewed, it simply cannot be said that the verdict was excessive. The trial court's decision to remit could only be affirmed if the evidence were viewed in the light most favorable to the court's decision to remit and if evidence contrary to the jury's verdict is considered. When the evidence is properly viewed in the light most favorable to the jury's verdict, that verdict is clearly supported by substantial evidence and is not against the weight of the evidence and the trial court's conclusion to the contrary is clearly an abuse of discretion.

Dr. Scowley testified that the pain from the type of injury sustained by Ms. Wiley will progress as arthritis sets in to the injured area and "that there is a good medical certainty that she will require either intermittent epidurals, pain medications, anti-inflamatories, the whole gamut of treatment that will progress with her as sh...