Howes v. Kelly Services, Inc.
Michael Howes, Plaintiff and Appellant
Kelly Services, Inc., Defendant and Appellee
South Central Judicial District,
Judge Thomas J. Schneider
|Nature of Action:||Torts (Negligence, Liab., Nuis.)|
|Term:||05/2002  Argument: 05/30/2002|
|ND cite:||2002 ND 208 2002 ND 131|
654 N.W.2d 422 649 N.W.2d 218
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I. The Jury's finding of negligence by Kelly in this case was supported by the weight of the evidence, and the District Court's post-trial granting of Kelly's Motion for Judgment as a Matter of Law should be reversed.
II. The Jury's finding of negligence by Kelly in this case was supported by the weight of the evidence, and the District Court=s post-trial conditional granting of Kelly's Motion for New Trial was an abuse of discretion.
III. In the alternative, the Court should limit the new trial in this matter to the issue of liability only.
IV. The District Court=s denial of Kelly's Motion for New Trial on all other grounds should be affirmed.
Appellee's Statement of the Issues:
1. Kelly Services's Motion for Judgment as a Matter of Law was properly granted.
(e) Standard of Review.
(f) The Judgment as a Matter of Law was properly granted.
(g) Cases that suggest granting judgment as a matter of law is appropriate.
2. Kelly Services's motion for conditional new trial on grounds of insufficient evidence was properly granted.
(a) Standard of review.
(b) The grant of a new trial.
3. The trial court properly granted a new trial on both liability and damages.
4. The Court abused its discretion when it failed to grant a new trial because nine jurors were demanded and the Court selected only six jurors to hear the case.
5. The trial court abused its discretion when it failed to instruct the jury on the effect of an admission to a request for admission.
6. The trial court abused its discretion when it failed to grant new trial on damage issues.
(a) Jury failure to assess damages against other parties.
(b) Past economic damages, future economic damages and past non-economic damages are excessive and not based on fact.
7. The trial court abused its discretion when it failed to grant a new trial because of irregularities in the trial proceedings.
(a) Admission of testimony concerning Workers Comp. claims by companies.
(b) Improper argument guaranteeing testimony not in the record.
(c) Rebuttal argument of plaintiff improper and prejudicial and denied defendant a fair trial - failure to produce witness.
(d) Cumulative effect of all claims raised in the case result in unfair trial.
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|1||01/15/2002 NOTICE OF APPEAL: 01/10/2002|
|2||01/25/2002 FAXED ORDER FOR TRANSCRIPT: 01/10/2002|
|3||01/25/2002 RETENTION OF RECORD ON APPEAL (Jane Gillig-Hoekstra): 03/01/2002|
|4||01/28/2002 NOTICE OF CROSS APPEAL (Kelly Services, Inc.)|
|5||02/08/2002 TRANSCRIPTS DATED 8-14-01, 8-15-01, 8-16-01, 10-17-01, & 11-26-01 (5 vols.) (NOTE: the originals|
|6||02/08/2002 of Trans. dated 8-14-01, 8-15-01, & 8-16-01 are a part of the ROA--Entries 138,139,&140)|
|7||02/08/2002 DISK - TRA (2 vols.) (8/14/01 thru 8/16/01; 10-17-01; & 11-26-01)|
|8||02/13/2002 RECORD ON APPEAL (2 vols.),Transcripts (5 vols),Depositions(7, five of which are exhibits & one is|
|9||02/13/2002 an attachment to Entry No. 78)& Exhibits (Not sent: Pl. Exh. 13--collection of 9 photographs;|
|10||02/13/2002 Pl.Exh.22--Blow up of medical costs; Pl.Exh. 20--Invoice listing tractor tires; & Def.Exh. 102--|
|11||02/13/2002 Kelly Services Assignment Record)|
|12||03/20/2002 APPELLANT BRIEF|
|13||03/20/2002 APPELLANT APPENDIX|
|14||03/27/2002 Corrected Table of Authorities and pages for ATB|
|15||03/27/2002 DISK - ATB (e-mailed)|
|16||03/27/2002 Exhibits P-13, P-20, & P-22 (part of ROA)|
|17||04/22/2002 APPELLEE BRIEF|
|18||04/22/2002 APPELLEE APPENDIX|
|19||04/25/2002 Corrected Table of Authorities & page 9 of AEB|
|20||04/25/2002 DISK - AEB|
|21||05/07/2002 REPLY BRIEF|
|22||05/07/2002 DISK - RYB|
|23||05/30/2002 APPEARANCES: Timothy Q. Purdon, Michael G. Liffrig, Michael Howes; Jerome C. Kettleson|
|24||05/30/2002 ARGUED: Purdon; Kettleson (Vol. Y; Page 3)|
|25||05/30/2002 ORAL ARGUMENT WEBCAST|
|26||08/15/2002 DISPOSITION: REVERSED AND REMANDED|
|27||08/15/2002 UNANIMOUS OPINION: Neumann, William A.|
|28||08/15/2002 Costs on appeal taxed in favor of appellant|
|29||08/16/2002 Judgment Mailed to Parties|
|30||08/29/2002 PETITION FOR REHEARING. RspDue: 10/02/2002|
|31||09/03/2002 DISK - PER|
|32||09/30/2002 Kelly Services Inc.'s Answer to Petition for Rehearing|
|33||09/30/2002 DISK (Kelly Services Answer to Pet/Rehearing PE2)|
|34||10/01/2002 Letter from Jerome Kettleson dated 10-1-02 (faxed copy)|
|35||10/02/2002 Original letter from Jerome C. Kettleson dated 10-1-02 (same as faxed copy filed 10-1-02)|
|36||10/01/2002 MOTION TO FILE REPLY to Kelly Services Inc.'s Answer to Pet/Rehearing|
|37||10/02/2002 ACTION BY CHIEF JUSTICE. granted|
|38||10/02/2002 Reply to Kelly Services, Inc.'s Answer to Petition for Rehearing|
|39||10/02/2002 DISK (Reply/Answer/Pet/Rehearing)|
|40||12/20/2002 OPINION ON PETITION FOR REHEARING|
|41||12/20/2002 SPLIT OPINION (PER--denied): Neumann, William A.|
|42||12/20/2002 (CONCUR OR DISSENT): VandeWalle, Gerald W.: CONCUR|
|44||01/02/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|45||06/18/2008 EXPUNGED - Nonpermanent record items destroyed|