Hardin v. Munchies Food Store

521 So. 2d 1200, 1988 La. App. LEXIS 571, 1988 WL 16426
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1988
Docket19386-CA
StatusPublished
Cited by14 cases

This text of 521 So. 2d 1200 (Hardin v. Munchies Food Store) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardin v. Munchies Food Store, 521 So. 2d 1200, 1988 La. App. LEXIS 571, 1988 WL 16426 (La. Ct. App. 1988).

Opinion

521 So.2d 1200 (1988)

John HARDIN, et al, Appellants,
v.
MUNCHIES FOOD STORE, et al, Appellees.

No. 19386-CA.

Court of Appeal of Louisiana, Second Circuit.

February 24, 1988.
Writ Denied April 29, 1988.

Joseph W. Greenwald, Shreveport, for appellants Judy Tabor.

Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for appellees Safeco Ins. Co. of America.

Before MARVIN, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

This appeal arises from a suit for damages sustained as a result of personal injuries. The plaintiff-appellant is Judy Tabor and the defendant-appellee is Safeco Insurance Company of America. The jury awarded the plaintiff $55,141.05 in general and special damages. The trial court granted defendant's motion for remittitur and reduced plaintiff's award to $15,000.00. The plaintiff agreed to the remittitur in order to avoid a new trial which the trial judge would have granted if she had declined to accept the remittitur. The plaintiff now appeals the reformed judgment urging the award is inadequate. Finding the reduction to be an abuse of the trial court's discretion, we amend to increase the amount of general damages.

Plaintiff urges two assignments of error on appeal which present two issues to be resolved:

(1) Should the jury verdict be afforded appellate review, and
(2) Was the trial court's evaluation of plaintiff's damages at $15,000.00 an abuse of discretion.

*1201 The plaintiff contends the judgment rendered pursuant to the jury verdict should be reviewed by us pursuant to judgment notwithstanding the verdict (hereinafter referred to as JNOV) standards and found by those standards not excessive and then substituted for the judgment reformed by the remittitur. She alternatively contends the reduction in her damage award represented by the reformed judgment was an abuse of discretion by the trial judge and the damage award in the reformed judgment should be increased.

FACTS

Plaintiff and her boyfriend John Hardin filed suit for damages sustained as a result of personal injuries caused by an attack upon them which occurred outside Munchies Food Store in the early morning hours of May 10, 1984. The jury returned a verdict in favor of both plaintiffs.[1] The trial judge granted defendant's motion for JNOV with respect to the plaintiff and dismissed her suit. She appealed the JNOV and in an opinion reported at 510 So.2d 33 this court reversed the JNOV on the issue of liability and remanded the case to the trial court for a determination on Safeco's motion for remittitur or in the alternative new trial in accordance with LSA-C.C.P. art. 1811(C)(1).[2] The plaintiff now appeals the judgment of remittitur ordered by the trial court upon remand. The actual events of the attack wherein plaintiff sustained her damages are extensively set forth in our earlier reported opinion and will be only briefly recounted here.

Judy Tabor and her boyfriend drove to the Munchies convenience store where Judy remained in the truck while Hardin went inside to buy a pack of cigarettes. The assailant, Oliver King, approached the truck in which Judy sat and made offensive sexual remarks to her through the window. When Hardin returned to the truck King hit him in the head with a lead pipe causing him to fall to the ground where he lay unconscious throughout the attack. Judy exited the truck and attempted to assist Hardin but King turned on her with a knife. She fled back to the truck pursued by King. When she entered the truck she struck her face on the rearview mirror. King repeatedly tried to stab Judy through the partially opened window but she managed to avoid the knife. King retreated from the truck only to begin a savage beating of the unconscious Hardin. Judy, who screamed hysterically throughout the ordeal, futilely sought the assistance of two onlookers, one of which was an off-duty Munchies employee, who were standing in front of the store watching the attack. These on-lookers continued to simply stare and do nothing in the face of Judy's repeated pleas to call the police. She then attempted to run over King with the truck but stopped when he threatened to cut open Hardin with the knife. The police were called by a Munchies employee only after the attack had been going on twenty to twenty-five minutes.

ISSUE # 1: SCOPE OF REVIEW

The plaintiff contends that we should apply the JNOV test to the review of the judgment rendered pursuant to the jury award and find that reasonable men could not disagree with the amount awarded by the jury. He then contends the judgment rendered pursuant to the jury award should be substituted for the judgment appealed. We note a JNOV may be granted on the issue of liability or on the issue of damages or on both issues. LSA-C.C.P. art. 1811(F). Additur or remittitur is not the only procedural device for amending damage awards. The trial court may grant the JNOV and correct an error in the jury damage award by reducing or *1202 increasing the award as the particular case may require. Robertson v. Penn, 472 So. 2d 927 (La.App. 1st Cir.1985); writ den., 476 So.2d 353 (La.1985); Price v. Louisiana Farm Bureau Mut. Ins. Co., 457 So. 2d 722 (La.App. 2d Cir.1984); writ den., 462 So.2d 205 (La.1985). A JNOV should be granted only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not reach different conclusions. Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969); Robertson v. Penn, supra; Hardin v. Munchies Food Store, supra. "Thus where the trial court is convinced that, under the evidence, reasonable minds could not differ as to the amount of damages, it should have the authority to grant the appropriate judgment notwithstanding the verdict". LSA-C.C.P. art. 1811, Official Comment.

In the instant case we do not review the reasonableness of the jury's award because the record does not contain a JNOV on the issue of damages. Appeal or review lies only from the judgment. Wright v. Ocean Drilling and Exploration Co., 461 So.2d 1084 (La.App. 4th Cir.1984); Hardin, supra. The judgment plaintiff has appealed is the judgment reformed in accordance with the remittitur, as authorized by LSA-C.C.P. art. 2083.[3] When the judgment reformed by additur or remittitur is challenged on appeal, appellate review is limited to the reformed judgment. Miller v. Chicago Ins. Co., 320 So.2d 134 (La.1975); Karl v. Amoco Production Co., 507 So.2d 263 (La.App. 3d Cir.1987); writ den., 512 So.2d 461 (La.1987)[4]. Our review of the quantum is limited to the reformed judgment which is the result of a reduction of the judgment rendered pursuant to the jury award by the remittitur to which plaintiff acquiesced, albeit under protest.

ISSUE # 2: QUANTUM

We now address the central issue of general damages. The appellate court will not change an award of general damages unless it is first determined the trial judge has abused his great discretion. LSA-C.C. art. 2324.1; Reck v. Stevens, 373 So.2d 498 (La.1979); Tyler v. Richardson, 476 So.2d 899 (La.App. 2d Cir.1985), writ den., 478 So.2d 907 (La.1985). We are guided by the supreme court's language in Reck v. Stevens,

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521 So. 2d 1200, 1988 La. App. LEXIS 571, 1988 WL 16426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardin-v-munchies-food-store-lactapp-1988.