The following decision addressed the appellate standard of review of a denial by the trial court of a motion for judgment notwithstanding the verdict (JNOV) and motion for directed verdict.
MARLOW VS. BUCK
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
NOT TO BE PUBLISHED 4/12/2013
When asked to review a trial court’s denial of JNOV, “we are to affirm . . . ‘unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.’” Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (quoting Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985)) (emphasis added). Further, “‘[t]he trial court is vested with a broad discretion in granting or refusing a new trial, and this Court will not interfere unless it appears that there has been an abuse of discretion.’” Id. (quoting Whelan v. Memory–Swift Homes, Inc., 315 S.W.2d 593, 594 (Ky. 1958)). “The reason appellate courts defer to the trial court’s decision to grant a new trial is because the decision may depend on factors that do not readily appear in the appellate record, such as witness demeanor and observations of the jury.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010).
In reviewing a denial of a motion for a directed verdict or for JNOV, an appellate court must reverse if it is shown that the verdict was either flagrantly or palpably contradictory to the evidence since such would indicate the jury reached the verdict through passion or prejudice. Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky. 1990) (citing NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988)). Evidence in support of the prevailing party must be considered to be true. The reviewing court may not make determinations regarding credibility nor the weight of the evidence, as such is within the purview of the jury. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (Ky. 1944), and Cochran v. Downing, 247 S.W.2d 228 (Ky. 1952). With these standards in mind, we now consider the issues presented for our review.