Hubbard v. Delta Sanitation of Miss.
| Docket Number: | 2010-CA-00045-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-26-2011 Opinion Author: Myers, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Personal injury - Additur - Section 11-1-55 - Motion in limine - Offer of judgment - Costs - M.R.C.P. 68 - M.R.C.P. 54(d) - Expert fees - Section 25-7-47 - Court reporter fee - M.R.C.P. 30(h) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-01-2009 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: $3,000 Jury Verdict for Plaintiff; $7,012.03 in Costs Awarded to Defendant Case Number: A-2401-2008-140 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Charles Hubbard |
JAMES KENNETH WETZEL |
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| Appellee: | Delta Sanitation of Mississippi | ROBERT W. WILKINSON, JOSHUA WESLEY DANOS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Additur - Section 11-1-55 - Motion in limine - Offer of judgment - Costs - M.R.C.P. 68 - M.R.C.P. 54(d) - Expert fees - Section 25-7-47 - Court reporter fee - M.R.C.P. 30(h) |
| Summary of the Facts: | Charles Hubbard sued Delta Sanitation of Mississippi, LLC for injuries sustained in an automobile accident. A jury returned a verdict in favor of Hubbard for $3,000 in damages. The circuit court awarded costs to Delta in the amount of $7,012.03 based on the court’s finding, under M.R.C.P. 68, that the jury’s damage award was less favorable than the settlement offer Delta had proposed to Hubbard prior to trial. Hubbard appeals. |
| Summary of Opinion Analysis: | Issue 1: Additur Hubbard argues that the $3,000 jury award constitutes a miscarriage of justice as it bears no relevance or resemblance to the damages in this case. Pursuant to section 11-1-55, the trial judge has the authority to grant an additur. The party seeking the additur bears the burden of proving his or her injuries, loss of income, and other damages. Here, Delta did not contest the necessity and reasonableness of Hubbard’s medical expenses. Rather, Delta challenged Hubbard’s cause of action on the theory that the December 2006 accident–even though caused by its driver’s negligence–was not the cause of the personal injuries Hubbard claimed had resulted. The record shows that Delta provided sufficient evidence in support of its case from which the jury could reasonably conclude that Hubbard’s personal injuries were not caused by Delta’s negligence. A jury’s verdict cannot be reversed simply because it found one expert more believable than another. The amount of damages to be awarded is primarily for the jury to determine. There was sufficient evidence presented in this case to support the jury’s award. Issue 2: Motion in limine On the first day of trial, prior to voir dire, Hubbard moved in limine to exclude evidence that he suffered from multiple sclerosis. Delta stipulated to Hubbard’s request, and the trial court sustained Hubbard’s motion. The following morning, after the jury was impaneled, Hubbard sought to withdraw the motion. Even though the trial court prohibited the parties from mentioning the term “multiple sclerosis,” the court allowed testimony to the fact that Hubbard suffered from a neurological condition. Still, Hubbard argues that the trial court’s decision unfairly prejudiced his case, as he was not allowed to cross-examine a medical witness effectively with regard to the symptomology of multiple sclerosis. There was no error with the trial court’s decision. As Delta points out, the argument presented on appeal is not what was presented to the trial court. The trial court will not be put in error on a matter that was not properly presented to it for a decision. Issue 3: M.R.C.P. 68 Hubbard does not dispute that Delta made a valid offer of judgment under Rule 68 in the amount of $30,000 prior to trial. But he argues that the “costs” requested by Delta and subsequently awarded by the trial court are not the type of costs contemplated by the rules of civil procedure. This is a case of first impression with regard to Rule 68. The purpose of Rule 68, and its federal counterpart, is to encourage settlements, avoid protracted litigation, and protect the party who is willing to settle from the burden of costs that subsequently come. The term “costs” is not defined in our Rule 68 or its federal counterpart. Federal courts have interpreted “costs” under Federal Rule 68 as referring to those costs ordinarily awarded under Rule 54(d) of the Federal Rules of Civil Procedure. As with Rule 68, there is little Mississippi case law dealing with our Rule 54(d). Other states with procedural rules similar to ours have concluded that costs under their own respective version of Rule 68 are limited to those costs allowable under their version of Rule 54(d). There being no express indication in the rules of civil procedure, or controlling case law, to the contrary, the Court must presume that the drafters of Rule 68 intended for the term “costs” to be used consistent with Rule 54(d). Therefore, the costs for which Delta is entitled to recover under Rule 68 are limited to those costs allowable under Rule 54(d). The operation of Rule 68 in this case simply made it mandatory, rather than discretionary, for the trial court to impose upon Hubbard the costs allowed under Rule 54(d) after Delta made its offer of judgment. As with Rule 68, Rule 54(d) does not expressly define what constitutes “costs,” and there is no underlying, substantive statute with a cost provision contained therein that forms the basis of Hubbard’s case, as it is predicated on common-law negligence. That no such statute governs in this instance means that the trial court was limited to the usual statutory costs. With regard to expert fees, Hubbard may not be taxed with costs in excess of the fees authorized in section 25-7-47with respect to Delta’s expert witness. The copying expenses sought by Delta in this case are considered office expenses of an attorney and are not recoverable. The expenditures made for the demonstrative aids used at trial and the professional technical assistance employed by Delta for help in the courtroom are likewise not recoverable as ordinary costs. With regard to the court reporter fee, the record indicates that it is for the deposition taken of Hubbard’s wife prior to trial. Per M.R.C.P. 30(h), this too is not a recoverable cost item. Since some of the cost items awarded by the trial court to Delta in this case are unauthorized by Mississippi law, the case is reversed and remanded on this issue. |
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