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Kaltsounis v. Chappelear9/28/2004
(not designated for permanent publication)
I. INTRODUCTION
Bill Kaltsounis appeals from the district court's order overruling Kaltsounis' motion for new trial. On appeal, Kaltsounis asserts that the district court should have granted his motion for new trial because the damages awarded by the jury in this personal injury action were insufficient. We find no indication in the record that the jury's award was the result of passion, prejudice, or mistake, and accordingly, we find that the district court did not abuse its discretion in denying the motion for new trial. As such, we affirm.
II. BACKGROUND
The parties were involved in an automobile accident on May 31, 2000, wherein Emily Chappelear, driving a vehicle owned by her father, Thomas Chappelear, rear-ended Kaltsounis' vehicle as he waited at a red light. On March 27, 2001, Kaltsounis filed a petition seeking damages for injuries he alleged that he sustained in the accident.
The case was tried before a jury on September 25 and 26, 2002. During the trial, Kaltsounis presented evidence to show that as a result of the accident, he had experienced discomfort in his chest and groin areas, he had sought medical treatment, and he had ultimately undergone surgery for a hernia. Kaltsounis presented medical testimony indicating that the hernia was "consistent" with injury that could have been caused by the accident; however, his surgeon testified by deposition that it was difficult to place a time estimate on when the herniation occurred and that the accident would not be an exclusive cause of the hernia. Evidence presented also indicated that Kaltsounis had suffered from previous hernias and that Kaltsounis had been suffering from discomfort in the area of the hernia for approximately 6 months prior to the accident.
Kaltsounis presented evidence outlining the medical treatment he had sought. Kaltsounis presented evidence that he was seen by his general physician on June 2, 2000, and that the medical bill for that visit was $210. Kaltsounis also presented evidence that he had incurred other medical bills totaling approximately $6,000, including the bills incurred for the surgery to repair the hernia.
At the conclusion of the trial, the jury returned a verdict in favor of Kaltsounis and awarded him damages of $210.01. Kaltsounis filed a motion for new trial alleging that the damages award was insufficient, which motion was overruled by the district court. A previous appeal to this court was dismissed for lack of a final order. On August 21, 2003, the district court entered a final order rendering judgment in favor of Kaltsounis for $210.01 and overruling his motion for new trial. This appeal followed.
III. ASSIGNMENT OF ERROR
Kaltsounis' only assignment of error on appeal is that the district court erred in overruling his motion for new trial because the damages award was insufficient as a matter of law.
IV. ANALYSIS
1. Standard of Review
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004); Macke v. Pierce, 266 Neb. 9, 661 N.W.2d 313 (2003); Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d 813 (2002). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition thr
Page 1 2 Nebraska Personal Injury Attorneys
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