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Estate of Berry6/17/1999
DATE OF JUDGMENT: 08/29/1997
TRIAL JUDGE: HON. JOHN B. TONEY
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED
.On May 22, 1991, around 8:30 in the morning, Julius Earl Dahlem and Edward R. Berry, Jr. were involved in a two-car accident at the intersection of Ridgewood Road and County Line Road in Ridgeland, Mississippi. Dahlem was traveling north on Ridgewood Road when his Nissan Sentra was struck on the passenger side by the Cadillac Seville driven by Berry, who ran the red light at the intersection while traveling west on County Line Road. On April 30, 1993, Dahlem filed his complaint against Berry, requesting damages in the amount of $150,000 for past and future medical expenses, past and future pain and suffering, lost wages, property damage to his vehicle, and past and future mental pain and anguish. Berry died in March of 1992, of unrelated causes, and Billy V. Cooper was appointed administrator of Berry's estate. Dahlem filed his amended complaint on June 17, 1993, indicating that Cooper should receive and accept service on behalf of Berry's estate (hereinafter referred to as Berry).
.The parties agreed to a judgment of liability against Berry, which was entered in an order signed by Circuit Court Judge John B. Toney on January 3, 1994. The case then proceeded to trial on the issue of damages before Judge Toney on June 17 and 18, 1996. The jury returned a verdict in favor of Dahlem in the amount of $10,800 on June 18, 1996, and Judge Toney's final judgment in that amount was entered on June 27, 1996. On June 28, 1996, Dahlem filed his Motion for Additur, Judgment Notwithstanding the Verdict or New Trial, which Berry opposed in his July 30, 1996, response. After hearing arguments from counsel at a September 20, 1996, hearing, Judge Toney announced that he would take the matter under advisement and review the facts of the case before issuing a ruling. In his order dated August 29, 1997, Judge Toney found that the jury verdict was "inadequate as a matter of law" and granted Dahlem's motion for an additur. The court entered judgment in favor of Dahlem in the amount of $50,000, upon the condition "that in the event the Defendant fails to accept the Additur provided by this Judgment, a new trial on the issue of damages only is hereby granted."
.Apparently unaware of the judgment awarding the additur, Berry filed a motion to dismiss Dahlem's complaint or to deny his motion for additur. After becoming aware of the judgment awarding the additur on October 17, 1997, Berry filed his Motion for Trial Setting or, in the Alternative, Motion to Reopen or Extend Time for Appeal, in which he stated that he did not accept the additur. Circuit Court Judge R.L. Goza denied Berry's motion for a trial setting on November 18, 1997, but allowed him fourteen days to file a notice of appeal. The trial court also denied Berry's motion to dismiss Dahlem's complaint in a November 21, 1997, order. Berry appeals to this Court, raising the following two issues:
I.WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING AN ADDITUR IN THIS CASE.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT BERRY A NEW TRIAL.
. We find that the trial court should have granted Berry a new trial on damages, because he did not accept the additur in this case. As a result, we reverse the trial court's judgment and remand this case to the Madison County Circuit Court for further proceedings consistent with this opinion. We therefore decline to address the merits of Berry's argument regarding the appropriateness of the additur, or
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