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4/3/01

SUPREME COURT OF LOUISIANA NO. 00-CC-1023
EDWARD MARTIN, ET AL. versus HERITAGE MANOR SOUTH, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO

VICTORY, J. At issue in this case is whether the trial court abused its discretion in granting plaintiffs' motion for new trial on the ground that the jury's verdict for defendant was contrary to the law and the evidence. After reviewing the record and the applicable law, we find that the trial court abused its discretion in granting the motion for new trial, and we therefore reverse that ruling, and reinstate the jury verdict in favor of defendant. FACTS AND PROCEDURAL HISTORY Edward and Marvin Martin ("plaintiffs") filed suit against Heritage Manor South Nursing Home ("Heritage Manor") alleging that the negligent care provided to their mother, Frances Martin ("Mrs. Martin"), while she was a resident at Heritage Manor, caused her to develop a decubitus ulcer on her buttocks and later, an infection of that ulcer, which caused her death. After a four-day jury trial, the jury returned a verdict in favor of Heritage Manor, finding that Heritage Manor was negligent, but that its negligence was not a cause-in-fact of the death of Mrs. Martin. A judgment to that effect was signed by Judge John Mosely on October 21, 1999. From this judgment, plaintiffs moved for a judgment notwithstanding the verdict ("JNOV") and new trial.

Defendant also moved for a JNOV with respect to that portion of the jury's verdict which held that Heritage Manor was negligent. The trial judge denied both parties' JNOV motions1, but granted plaintiffs' motion for new trial, finding that a new trial was warranted under La. C.C.P. art. 1972 "because the jury's verdict is contrary to the law and the evidence." The court of appeal denied defendant's writ, finding that "[u]pon the showing made, the exercise of this Court's supervisory jurisdiction is not warranted." Edward Martin, et al v. Heritage Manor South, et al, 33797-CW (La. App. 2 Cir. 3/10/00), -- So. 2d ---. We granted defendant's writ to consider whether the trial court abused its discretion in granting plaintiffs' motion for new trial. Edward Martin, et al v. Heritage Manor South, et al, 00-1023 (La. 6/16/00), 763 So. 2d 611.2 DISCUSSION La. C.C.P. art. 1972 provides: A new trial shall be granted, upon contradictory motion of any party, in the following cases: (1) When the verdict or judgment appears clearly contrary to the law and the evidence. (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

In denying the JNOV motions, the court held that "the jury after weighing the evidence and argument of counsel and after instruction on the applicable law, the jury returned a verdict in favor of the defendant, while the Court may or may not have reached the same conclusion based on the evidence, the court cannot say that reasonable persons could not have reached the conclusion reached by the jury in this case." When an appellate court determines, under its supervisory jurisdiction, that a thorough review of the trial court's granting of a new trial under La. Code Civ. Proc. art. 1972(1) as contrary to the law and evidence is appropriate, a transcript of the evidence generally is not available because no appeal has been taken from the judgment on the merits. The appellate court, in considering the application for supervisory writs that seeks a thorough review of the granting of a new trial, must first decide whether the writ application warrants ordering a transcript of the testimony (which is necessary for review of the evidence). After this Court took this first step in the present case and ordered the transcript, we were able to take the second step and review the evidence. 2
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(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done. In the instant case, the trial judge based his ruling solely on La. C.C.P. art. 1972(1), finding that the verdict was contrary to the law and the evidence. However, the parties indicated at oral argument before this Court that the verdict was not contrary to the law, so we will focus our inquiry on whether the law was contrary to the evidence. Although the granting of a new trial is mandatory if the trial court finds that the verdict is contrary to the law and evidence under La. C.C.P. art. 1972, the jurisprudence interpreting the provision recognizes the trial judge's discretion in determining whether the evidence is contrary to the law and evidence. As this Court has stated, the decision of "[w]hether to grant a new trial requires a discretionary balancing of many factors." Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00) (citing Gibson v. Bossier City General Hospital, et al., 594 So. 2d 1332 (La. App. 2 Cir. 1991)). In Davis, we explained: "[a]lthough the granting or denying of a motion for new trial rests within the wide discretion of the trial court, the discretion of the court is limited: The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury's responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury's factual determinations and must be viewed in that light. Thus, the jury's verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Gibson v. Bossier City General Hospital, et al., supra. See also Engolia v. Allain, 625 So. 2d 723 (La. App. 1 Cir. 1993). (Emphasis added.)

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Davis, supra, Slip Op. at p. 10. In considering a motion for new trial under La. C.C.P. art. 1972, "the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness." Joseph v. Broussard Rice Mill, Inc., et al., 00-0628 (La. 10/30/00), --- So. 2d --- (citing Smith v. American Indem. Ins. Co., 598 So. 2d 486 (La. App. 2 Cir.), writ denied, 600 So. 2d 685 (La. 1992)). However, this does not mean that the trial judge can usurp the jury's fact-finding role. A motion for a new trial requires a less stringent test than for a JNOV3 as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Id.4 "Although the language is similar between the standards for a JNOV and new trial, there is a real difference between a

In Joseph v. Broussard Rice Mill, supra, we discussed the standards for determining whether a JNOV is proper as follows: La. Code Civ. Proc. Art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So. 2d 270 (La. 1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motions should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So. 2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So. 2d 829, 832 (La. 1991). This rigorous standard is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact." Scott, 496 So. 2d at 273; Jinks v. Wright, 520 So. 2d 792, 794 (La. App. 3 Cir. 1987). Slip Op. at 4-5; see also Davis, supra at 4-5. "The important distinction between a JNOV and a judgment granting a new trial is that a JNOV reverses the jury's award and makes the apparent winner the loser, while a judgment granting a new trial merely erases the jury verdict (or trial court judgment) and puts the parties in the positions they occupied prior to trial." Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Volume 1, Civil Procedure,

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