Trapani v. Treutel

87 So. 3d 1096, 2012 WL 1399156, 2012 Miss. App. LEXIS 231
CourtCourt of Appeals of Mississippi
DecidedApril 24, 2012
DocketNo. 2011-CA-00092-COA
StatusPublished
Cited by1 cases

This text of 87 So. 3d 1096 (Trapani v. Treutel) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trapani v. Treutel, 87 So. 3d 1096, 2012 WL 1399156, 2012 Miss. App. LEXIS 231 (Mich. Ct. App. 2012).

Opinion

CARLTON, J.,

for the Court:

¶ 1. Jolynne and Anthony Trapani and Trapani’s Eatery, Inc.1 appeal the decision of the Hancock County Circuit Court granting a directed verdict in favor of David Treutel and Treutel Insurance Agency, Inc.2 On appeal, the Trapanis assert the following assignments of error by the circuit court:

(1) Whether the trial court erred by directing a verdict for [Treutel] by failing to consider the testimony of [Jolynne] and take all reasonable inferences in her favor as required by [Mississippi Rule of Civil Procedure] 50.
(2) Whether the trial court improperly redacted page five of [the Trapanis’] exhibit P-15 as hearsay.
(3) Whether the trial court improperly redacted portions of [the Trapanis’] exhibit P-16.
(4) Whether the trial judge improperly excluded [the Trapanis’] exhibit P-17 as not being the best evidence.
(5) Whether the trial judge erred in excluding [the Trapanis’] expert Peter Quave.
(6) Whether the trial court improperly allowed [Treutel] to claim a defense never asserted by the insurer.

Finding no error, we affirm the circuit court’s judgment granting a directed verdict in favor of Treutel.

FACTS

¶ 2. Jolynne and Anthony Trapani owned Trapani’s Eatery, Inc., a restaurant located in Bay St. Louis, Mississippi. Pri- or to its destruction by Hurricane Katrina, the restaurant was located in a building along Beach Boulevard in Bay St. Louis at a lower-risk “C” flood zone.

¶ 3. After observing the devastation after Hurricane Ivan, Jolynne testified that she contacted her insurance company, Treutel Insurance Agency, to inquire about increasing the current coverage limits on the restaurant. Over the course of three or four meetings from late May to early July 2005, insurance agent David Treutel and Jolynne discussed a series of changes to the restaurant’s policies. Jo-lynne testified that she saw a need to increase the wind/hail policies coverage limits, and she asked that David make the following changes, among others: to increase the structure coverage from $149,477 to $300,000; to increase the contents coverage from $76,794 to $150,000; and to increase the business interruption coverage from $35,000 to $300,000. The other suggested changes remain undisputed.

¶ 4. Then, on August 29, 2005, Hurricane Katrina devastated Bay St. Louis, leaving virtually nothing remaining of Trapani Eatery’s structure. In her appellate brief, Jolynne claims that after Katrina, she learned for the first time that David had failed to increase the wind policy’s limits on the structure, contents, business interruption, as she requested. David disputes Jolynne’s claims that she asked him to make any other changes to the policies [1100]*1100other than the changes he made. David claims that he made the following changes after his meeting with Jolynne in the summer of 2005: he increased the limits of coverage under the fire insurance policy to $150,000 for personal property and to $200,000 for loss of business income; and he increased the windstorm insurance policy coverage from $35,000 to $200,000 for loss of business income. David states that the Trapanis also had purchased flood insurance for the first time — $100,000 of coverage on the building and $100,000 for their personal property. David further states that he did not increase the limits of coverage for the building and the personal property under the windstorm policy. David also states that he did not increase the limit of coverage for the building structure under the fire insurance policy. The Trapanis claim that the total payments paid on them flood and wind policies failed to compensate them for all their losses.

¶ 5. The Trapanis filed suit against Treutel in Hancock County Chancery Court on December 2, 2005. The matter eventually went to trial in the Hancock County Circuit Court. During the trial, the circuit judge struck one of the Trapan-is’ exhibits in its entirety and also redacted two of the Trapanis’ exhibits. Additionally, the circuit judge disqualified the Tra-panis’ expert, Peter Quave, after finding that Quave lacked sufficient training and experience in property and casualty insurance sales to qualify as an expert. After the Trapanis rested, Treutel moved for a directed verdict claiming the Trapanis had failed to prove that they had suffered any damage proximately caused by the acts of Treutel. The circuit judge granted the motion, finding that the Trapanis had failed to prove damages. The Trapanis now appeal.

STANDARD OF REVIEW

¶ 6. Appellate courts review a circuit court’s grant or denial of a motion for directed verdict de novo. Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009). A motion for directed verdict tests the legal sufficiency of the plaintiffs evidence. Bankston v. Pass Rd. Tire Ctr., Inc., 611 So.2d 998, 1003 (Miss.1992). The supreme court has stated:

In deciding whether a directed verdict ... should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue.

White v. Thomason, 310 So.2d 914, 916-17 (Miss.1975) (citations omitted).

¶ 7. The Mississippi Supreme Court has also held that “[i]n considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against [the nonmovant] that no reasonable juror could have found in her favor.” Fox v. Smith, 594 So.2d 596, 603 (Miss.1992) (citations omitted). The appellate court considers “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.’ ” Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (¶ 10) (Miss.2008) (quoting White v. Stewman, 932 So.2d 27, 32 (¶ 11) (Miss.2006)).

¶ 8. Additionally, we review a trial court’s decision regarding the admission or suppression of evidence for abuse of discretion. Miss. Tramp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003).

[1101]*1101DISCUSSION

I. Whether the circuit court erred in directing a verdict for Treutel when it failed to consider the testimony of Jolynne and take all reasonable inferences in her favor as required by Rule 50.

¶ 9. The Trapanis argue that the circuit judge erred by directing a verdict for Treutel after he determined the Tra-panis had failed to present sufficient proof of their losses. They also claim the judge erred by determining that the Trapanis had suffered any damage proximately caused by the acts of Treutel. The Tra-panis claim that Jolynne was qualified to testify about the value of the restaurant structure and its contents, as well as the restaurant’s income and expenses. Thus, they claim the circuit judge should have considered her testimony regarding the issue of damages.

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87 So. 3d 1096, 2012 WL 1399156, 2012 Miss. App. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trapani-v-treutel-missctapp-2012.