Johnson v. Cumberland
| Docket Number: | 2010-CA-00735-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-19-2012 Opinion Author: Fair, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Personal injury - Battery - Alienation of affection - Recalling the jury - URCCC 3.11 - Counter-complaint - Preparation of record - M.R.A.P. 10(c) - Summary of medical expenses - M.R.E. 1006 - Motion for directed verdict - Motion for remittitur - Weight of evidence Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Carlton, Maxwell and Russell, JJ. Concur in Part, Dissent in Part 1: Roberts, J. Concur in Part, Dissent in Part Joined By 1: Griffis, P.J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-10-2009 Appealed from: Neshoba County Circuit Court Judge: Marcus D. Gordon Disposition: CUMBERLAND AWARDED $10,000 Case Number: 08-CV-0020-NS-G |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tommy E. Johnson |
JOSEPH KILGORE
MARVIN E. WIGGINS JR.
ROBERT THOMAS |
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| Appellee: | Marty G. Cumberland | DOUGLAS JOEL GRAHAM | ||
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 - Battery - Alienation of affection - Recalling the jury - URCCC 3.11 - Counter-complaint - Preparation of record - M.R.A.P. 10(c) - Summary of medical expenses - M.R.E. 1006 - Motion for directed verdict - Motion for remittitur - Weight of evidence |
| Summary of the Facts: | Tommy Johnson filed a complaint against Marty Cumberland for battery. Cumberland counterclaimed for alienation of affection. The jury found in favor of Cumberland on the battery complaint and awarded him $10,000 for alienation of affection. Johnson appeals. |
| Summary of Opinion Analysis: | Issue 1: Recalling the jury Once a jury is discharged and leaves the presence of the court, it cannot be reassembled to correct a substantive error in its verdict. It is possible to recess and reconvene a jury, but specific safeguards must be followed. URCCC 3.11 states when the jury is not to be sequestered, the judge “shall” give the jury six instructions and may inquire as to compliance when the jury is reconvened. This procedure was not followed in today’s case. It is unclear how it came to the trial court’s attention that the jury had only rendered one verdict. Once it did, the court determined that the verdict did not address the counter-complaint and recalled the jury to continue deliberations. It is undisputed that after a two-day trial, the jury returned a verdict on the complaint for battery in favor of the defendant, Cumberland. That verdict is, at best, ambiguous regarding the counter-complaint by Cumberland for alienation of affection. It was the trial court’s duty to ensure the proper form of the verdict, but that was no longer possible after the jury was discharged. Issue 2: Preparation of record M.R.A.P. 10(c) states that if no transcript or report of the proceedings is available, the appellant is to prepare a statement of the evidence from the best available means and file it with the trial court. Here, Johnson prepared a summary of the first day’s testimony from the notes of the trial attorneys. However, Rule 10(c) also requires that this statement of the record be certified by the appellant and filed with the trial clerk within sixty days of filing the notice of appeal. The summary filed in this case was not certified by any party or attorney. Johnson’s argument that his appeal has been hindered because it is impossible to fully develop the record is barred because he did not comply with the provisions of Rule 10(c). Issue 3: Medical expenses Johnson argues that the trial court erred by refusing to admit a summary of medical expenses related to his injuries. Under M.R.E. 1006, summaries of voluminous writings may be admitted, but the original records must be made available to other parties, and the trial court may order that they be produced in court. Here, after Cumberland objected, the trial court directed Johnson to produce the medical records, but he did not. Thus, there was no error. Issue 4: Motion for directed verdict It is the movant’s responsibility to obtain a ruling once a motion has been made, and failure to do so constitutes a waiver of that motion. Johnson’s counsel moved for a directed verdict but then failed to obtain a ruling. Moreover, his argument that the trial judge would not allow him to make the motion is a mischaracterization of the record, as the trial judge was obviously concerned with the timing of the motion. Counsel was free to renew his motion at any time, and having made his motion for a directed verdict, it was Johnson’s duty to obtain a ruling. His failure to do so waives this issue. In addition, the trial court did not abuse its discretion in denying the motion for remittitur. Considering Cumberland’s loss of his wife’s society, companionship, love, affection, services, support, and consortium, the Court’s conscience is not shocked by an award of $10,000. Issue 5: Weight of evidence Johnson argues that because Cumberland pled guilty to assault, it was unreasonable for the jury to find that Cumberland acted in self-defense and not award nominal damages for battery. The record contains only an “abstract” justice court record reflecting a guilty plea to a charge of simple assault. The abstract does not reflect the victim or the underlying facts of the offense. Consequently, the record does not support Johnson’s contention that the verdict is against the overwhelming weight of the evidence. |
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