Burtka v. Allied Integrated Diagnostic Services, Inc

438 N.W.2d 342, 175 Mich. App. 777, 1989 Mich. App. LEXIS 104

• Court: Michigan Court of Appeals
• Decided: March 20, 1989
• Docket: Docket 101111
• Status: Published

Opinions

Michael J. Kelly, P.J.

After a five-day trial, a circuit court jury found defendant Allied Integrated Diagnostic Services, Inc., liable for discharging plaintiff James Burtka from his employment without cause. The jury also found that plaintiff had sustained damages in the amount of $3,877. Plaintiff moved for judgment notwithstanding the verdict or, in the alternative, additur or partial new trial, which the circuit court denied. Plaintiff appeals this denial as of right. We reverse, and remand for a new trial limited to the issue of damages.

Plaintiff was employed by defendant in 1980 and worked as a lab administrator and supervisor until his discharge on August 17, 1983. According to plaintiff, he was fired without cause in violation of the personnel manual. Defendant denied that the company’s personnel manual applied to supervisors like plaintiff. According to defendant, plaintiff was discharged because of several problems, including failure to complete three reports. Plaintiff claimed that his damages for lost pay were $135,000. Plaintiff reached this figure by totaling the wages he would have earned and subtracting severance pay, unemployment compensation, and other wages received. At trial, defendant stipulated to the introduction of plaintiffs Exhibit 19 in which plaintiff had calculated these damages.

The jury was instructed that the burden was upon defendant to prove that plaintiff had failed to mitigate damages. The jury was also instructed that it could find that defendant satisfied its burden if defendant showed that plaintiff failed to exercise reasonable diligence to obtain a substantially equivalent position.

The jury found that: (1) the personnel manual applied to plaintiff; (2) defendant lacked just cause to fire plaintiff; (3) plaintiff was not discharged in accordance with the personnel manual; and (4) plaintiff sustained damages of $3,877. After receipt of this verdict, plaintiff timely moved for judgment notwithstanding the verdict or, in the alternative, additur or a partial new trial. The circuit court denied these motions.

Plaintiff argues that the trial court erred by denying plaintiffs motion for additur or, in the alternative, partial new trial, where the jury verdict was substantially less than plaintiffs uncontroverted wage loss. We agree.

MCR 2.611(A) provides in pertinent part:

(1) A new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons:

(d) A verdict clearly or grossly inadequate or excessive.

(e) A verdict or decision against the great weight of the evidence or contrary to law.

MCR 2.611(E), Remittitur and Additur, provides in part:

(1) If the court finds that the only error in the trial is the inadequacy or excessiveness of the verdict, it may deny a motion for new trial on condition that within 14 days the nonmoving party consent in writing to the entry of judgment in an amount found by the court to be the lowest (if the verdict was inadequate) or highest (if the verdict was excessive) amount the evidence will support.

The standard of review in an appeal from the grant or denial of a motion for additur or, in the alternative, a new trial is whether the verdict is so "clearly or grossly inadequate and so contrary to the great weight of the evidence pertaining to damages sustained by plaintiff as to shock the judicial conscience.” Moore v Spangler, 401 Mich 360, 373; 258 NW2d 34 (1977). This determination is left to the discretion of the trial court and will not be disturbed on appeal absent a palpable abuse of that discretion. Id., p 372; Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914 (1942). It is well settled that where a jury verdict ignores "uncontroverted” damages of the plaintiff, the verdict is inadequate and must be reversed. Moore, supra, p 372; Zielinski v Harris, 289 Mich 381; 286 NW 654 (1939).

We agree with plaintiff that the jury verdict was so clearly inadequate and so contrary to the great weight of the evidence that it shocks the judicial conscience. Plaintiff’s Exhibit 19 calculated plaintiff’s damages at $135,000. This evidence was uncontroverted at trial. It was defendant’s burden to establish that substantial equivalent employment was available and that plaintiff failed to use reasonable care and due diligence in seeking such employment. Reithmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 194; 390 NW2d 227 (1986). Defendant did not meet this burden. Defendant offered no evidence regarding damages or mitigation of damages, and in fact stipulated to the introduction of plaintiffs Exhibit 19.

With regard to the trial judge’s reasons for denying plaintiffs motions for additur or for a new trial, we note that these reasons are not discernible from the record below. The court’s order denying plaintiffs motion states that it was based upon the court’s statement of reasons placed on the record on April 8, 1987. That statement of reasons is a one liner — not expositive of the court’s assessment of the evidence or the defendant’s burden of proof. The court stated only:

The court’s of the opinion that the jury verdict was within the range of the proofs and will deny the motion.

The trial judge’s exercise of discretion is a mystery as far as this record is concerned. Since we are left completely in the dark as to the trial court’s refusal to grant additur, the only proper remedy is to remand this case for a new trial limited to the issue of damages.

Reversed and remanded for proceedings consistent with this opinion.

Maher, J., concurred.