Howes v. Kelly Services, Inc.
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| 20020014 |
Michael Howes, Plaintiff and Appellant
v.
Kelly Services, Inc., Defendant and Appellee
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| Appeal from: |
District Court,
South Central Judicial District,
Burleigh County
Judge Thomas J. Schneider |
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Nature of Action: |
Torts (Negligence, Liab., Nuis.)
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| Counsel: |
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| Term: |
05/2002 Argument: 05/30/2002 09:30am
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| ND cite: |
2002 ND 208 2002 ND 131
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| NW cite: |
654 N.W.2d 422 649 N.W.2d 218
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| Issues: |
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 |
| 43 | | 12/30/2002 | |
MANDATE |
| 44 | | 01/02/2003 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 45 | | 06/18/2008 | |
EXPUNGED - Nonpermanent record items destroyed |