Howes v. Kelly Services, Inc.

20020014 Michael Howes, Plaintiff and Appellant
v.
Kelly Services, Inc., Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Thomas J. Schneider
Nature of Action: Torts (Negligence, Liab., Nuis.)
Counsel:
Appellant: Dickson Law Office
Appellee: Pearce & Durick
Appellant: Michael G. Liffrig
Term: 05/2002   Argument: 05/30/2002  9:30am
ND cite: 2002 ND 208 2002 ND 131
NW cite: 654 N.W.2d 422 649 N.W.2d 218

Listen to recording of oral argument in MP3 format

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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Docket entries:
101/15/2002 NOTICE OF APPEAL: 01/10/2002
201/25/2002 FAXED ORDER FOR TRANSCRIPT: 01/10/2002
301/25/2002 RETENTION OF RECORD ON APPEAL (Jane Gillig-Hoekstra): 03/01/2002
401/28/2002 NOTICE OF CROSS APPEAL (Kelly Services, Inc.)
502/08/2002 TRANSCRIPTS DATED 8-14-01, 8-15-01, 8-16-01, 10-17-01, & 11-26-01 (5 vols.) (NOTE: the originals
602/08/2002 of Trans. dated 8-14-01, 8-15-01, & 8-16-01 are a part of the ROA--Entries 138,139,&140)
702/08/2002 DISK - TRA (2 vols.) (8/14/01 thru 8/16/01; 10-17-01; & 11-26-01)
802/13/2002 RECORD ON APPEAL (2 vols.),Transcripts (5 vols),Depositions(7, five of which are exhibits & one is
902/13/2002 an attachment to Entry No. 78)& Exhibits (Not sent: Pl. Exh. 13--collection of 9 photographs;
1002/13/2002 Pl.Exh.22--Blow up of medical costs; Pl.Exh. 20--Invoice listing tractor tires; & Def.Exh. 102--
1102/13/2002 Kelly Services Assignment Record)
1203/20/2002 APPELLANT BRIEF
1303/20/2002 APPELLANT APPENDIX
1403/27/2002 Corrected Table of Authorities and pages for ATB
1503/27/2002 DISK - ATB (e-mailed)
1603/27/2002 Exhibits P-13, P-20, & P-22 (part of ROA)
1704/22/2002 APPELLEE BRIEF
1804/22/2002 APPELLEE APPENDIX
1904/25/2002 Corrected Table of Authorities & page 9 of AEB
2004/25/2002 DISK - AEB
2105/07/2002 REPLY BRIEF
2205/07/2002 DISK - RYB
2305/30/2002 APPEARANCES: Timothy Q. Purdon, Michael G. Liffrig, Michael Howes; Jerome C. Kettleson
2405/30/2002 ARGUED: Purdon; Kettleson (Vol. Y; Page 3)
2505/30/2002 ORAL ARGUMENT WEBCAST
2608/15/2002 DISPOSITION: REVERSED AND REMANDED
2708/15/2002 UNANIMOUS OPINION: Neumann, William A.
2808/15/2002 Costs on appeal taxed in favor of appellant
2908/16/2002 Judgment Mailed to Parties
3008/29/2002 PETITION FOR REHEARING. RspDue: 10/02/2002
3109/03/2002 DISK - PER
3209/30/2002 Kelly Services Inc.'s Answer to Petition for Rehearing
3309/30/2002 DISK (Kelly Services Answer to Pet/Rehearing PE2)
3410/01/2002 Letter from Jerome Kettleson dated 10-1-02 (faxed copy)
3510/02/2002 Original letter from Jerome C. Kettleson dated 10-1-02 (same as faxed copy filed 10-1-02)
3610/01/2002 MOTION TO FILE REPLY to Kelly Services Inc.'s Answer to Pet/Rehearing
3710/02/2002 ACTION BY CHIEF JUSTICE. granted
3810/02/2002 Reply to Kelly Services, Inc.'s Answer to Petition for Rehearing
3910/02/2002 DISK (Reply/Answer/Pet/Rehearing)
4012/20/2002 OPINION ON PETITION FOR REHEARING
4112/20/2002 SPLIT OPINION (PER--denied): Neumann, William A.
4212/20/2002 (CONCUR OR DISSENT): VandeWalle, Gerald W.: CONCUR
4312/30/2002 MANDATE
4401/02/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4506/18/2008 EXPUNGED - Nonpermanent record items destroyed

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