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INVESTORS PROPERTY MANAGEMENT, LTD. AND HENRY B. BARBER, INDIVIDUALLY v. WATKINS

AUGUST 19, 1987

INVESTORS PROPERTY MANAGEMENT, LTD. AND HENRY B. BARBER, INDIVIDUALLY
v.
WATKINS, PITTS, HILL & ASSOCIATES, A PARTNERSHIP, AND PATRICIA J. WILD, EXECUTRIX OF THE ESTATE OF RICHARD A. WILD, DECEASED



ROY NOBLE LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

We are today presented questions regarding the distinction between an order for remittitur or, in the alternative, for a new trial, on the one hand, and a partial judgment for reduction of damages notwithstanding the verdict of the jury, on the other. We are likewise presented questions concerning the effect upon an appeal of payment of an unappealed from portion of a monetary judgment.

It appears that Investors Property Management, Ltd. and Henry B. Barber, individually, had brought a civil action in the Circuit Court of Hinds County, First Judicial District, against Watkins, Pitts, Hill & Associates, an accounting firm operating as a partnership, and Patricia J. Wild, executrix of the Estate of Richard A. Wild, deceased. On September 17, 1985, a Circuit Court Jury returned a verdict in favor of Plaintiffs Investors and Barber and against Defendants, jointly and severally, in the sum of $333,697.00. Final judgment was entered thereon.

 Thereafter, Watkins, Pitts timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, or, in the alternative, for a remittitur. In a series of opinions and orders, the Circuit Court excised a portion of the damage award and ultimately, on April 15, 1986, entered final judgment in favor of Plaintiffs Investors and Barber and against Watkins, Pitts for $107,814.45, plus interest and costs. The April 15, 1986, order referred to the $255,882.55 reduction in the original judgment as "a remittitur" and provided that the reduced judgment was being entered "in lieu of a new trial." Nothing in the order directed a new trial in the event the Plaintiffs refused to accept the remittitur.

 Thereafter, Plaintiffs Investors and Barber gave their notice of appeal, indicating in effect that they intended to seek appellate restoration of the full judgment to the original sum of $333,697.00. On April 25, 1986, Investors and Barber filed a "Response To Ruling On Remittitur," taking the position that the order of April 15, 1986, was not a true remittitur in the sense that they had "never been given an election to accept or reject the remittitur on condition of a new trial." Investors and Barber nevertheless stated in this Response that they "reject the remittitur."

 We come now to the matters presently pending before this Court. Watkins, Pitts has filed a motion to docket and dismiss appeal or, alternatively, to enjoin execution on the

 $107,814.45 final judgment. Investors and Barber have filed a motion that they be allowed to accept payment upon judgment without prejudice to their appeal. These motions, coupled with the posture of the case as explained above and to be discussed below, present a rather novel situation.

 Watkins, Pitts' motion to docket and dismiss is predicated upon the assumption that there is no final appealable order in the Circuit Court. This, according to Watkins, Pitts, is because the remittitur was rejected. The problem is that the order of the Circuit Court is not an order for remittitur either in form or substance. The formal deficiency is the absence of a conditional order for a new trial. In the ordinary case such an order for remittitur provides that the judgment be reduced to a given amount upon the condition that, if the plaintiff accepts that reduction, the judgment is final, but that, in the alternative, if the plaintiff rejects the remittitur, then the order is treated as one for a new trial. In the latter event, the matter is available for a new trial on the question of damages only.

 There is a more fundamental problem. In spite of the use of the word "remittitur," a combined reading of the various opinions and orders of the Circuit Court, beginning with the original opinion of November 18, 1985, through the final order of April 15, 1986, makes clear that what the Circuit Court has done has been to enter judgment for Watkins, Pitts and against Investors and Barber with respect to a portion of the jury's verdict, to-wit: $225,882.55, notwithstanding the verdict of the jury.

 A few basics. There are two entirely separate and distinct forms of procedural post-verdict attack on the amount of a jury award. A motion by the unsuccessful party which argues that the evidence is in whole or in part legally insufficient to undergird the verdict returned is referred to as a judgment notwithstanding the verdict. See Rule 50(b), Miss.R.Civ.P.; Adams v. Green, 474 So.2d 577, 582 (Miss. 1985); Stubblefield v. Jesco, Inc., 464 So.2d 47, 54-55 (Miss. 1984); Jesco, Inc. v. Whitehead, 451 So.2d 706, 713 (Miss. 1984) (Robertson, J., concurring).

 On the other hand, we have motions which go to the weight of the evidence. Such motions argue that the verdict of the jury should be set aside and a new trial ordered because, as a rule, though the evidence be legally sufficient to withstand a motion to j.n.o.v., the verdict was nevertheless against its weight. Therefore, in the interest of justice, the movant says that a new trial should be ordered. Such motions are addressed to the sound discretion of the trial court and

 require a lesser showing before they can be sustained than the motion for j.n.o.v. See Rule 59, Miss.R.Civ.P.; Thornhill v. Wilson, 504 So.2d 1205, 1209 (Miss. 1987); Anchor Coatings, Inc. v. Marine Industrial Residential Insulation, Inc., 490 So.2d 1210, 1215 (Miss. 1986); Clark v. Columbus & Greenville Railway Co., 473 So.2d 947, 950 (Miss. 1985); Houston v. Page, 208 So.2d 901, 903-05 (Miss. 1968).

 Either of these motions may be made and granted with respect to less than all of the issues in the case. For present purposes, such motions may be made and granted with respect to damages only or, as is the case here, with respect to a portion of damages.

 Where the evidence is insufficient as a matter of law to sustain a jury's award, final judgment is entered in favor of the moving party on the damages issue presented notwithstanding the verdict of the jury. A motion for remittitur, however, is a species of motion for a new trial. Where a ...


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