Carpenter v. Rohrer

• Citation: 2006 ND 111,714 N.W.2d 804
• Decision Date: 17 May 2006
• Docket Number: No. 20050127.,20050127.
• Court: United States State Supreme Court of North Dakota
• Parties: Dan CARPENTER, Plaintiff, Appellant and Cross-Appellee v. Mark ROHRER, personally and in his professional capacity doing business as Mark Rohrer, LICSW; Defendant, Appellee and Cross-Appellant and Darveaux, Eaton, & Associates; Dion X. Darveaux, Timothy T. Eaton, and Thomas J. Eick, each in their professional capacities, Defendants and Appellees.

Page 804

714 N.W.2d 804

2006 ND 111

Dan CARPENTER, Plaintiff, Appellant and Cross-Appellee v. Mark ROHRER, personally and in his professional capacity doing business as Mark Rohrer, LICSW; Defendant, Appellee and Cross-Appellant and Darveaux, Eaton, & Associates; Dion X. Darveaux, Timothy T. Eaton, and Thomas J. Eick, each in their professional capacities, Defendants and Appellees.

No. 20050127.

Supreme Court of North Dakota.

May 17, 2006.

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Lynn M. Boughey (argued), Boughey Law Firm, Minot, ND, for plaintiff, appellant, and cross-appellee.

Michael C. Waller (argued), Fleck, Mather & Strutz, Bismarck, ND, for defendant, appellee, and cross-appellant Mark Rohrer.

Steven A. Storslee (argued), Storslee Law Firm, P.C., Bismarck, ND, for defendants and appellees Darveaux, Eaton, & Associates, Dion X. Darveaux, and Timothy T. Eaton.

James S. Hill (argued) and Paul R. Sanderson (on brief), Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellee Thomas J. Eick.

KAPSNER, Justice.

[¶ 1] Dan Carpenter appealed from an amended judgment entered upon a jury verdict awarding him no damages and no costs from the malpractice of social worker Mark Rohrer; a February 10, 2005 judgment in favor of Thomas Eick; and a February 16, 2005 judgment in favor of Darveaux, Eaton, & Associates, Dion Darveaux, and Timothy Eaton. Only a partial transcript was filed by Carpenter. Rohrer cross-appealed claiming he was entitled to costs because he was the prevailing party at trial. Rohrer also filed a motion to strike certain information included in Carpenter's brief on appeal. We affirm the February 10, 2005 and February 16, 2005 judgments, reverse the amended judgment, and remand with instructions to reinstate the February 25, 2005 judgment in favor of Carpenter. We grant Rohrer's motion to strike. We award costs on appeal in favor of appellees and award an additional $350 in costs in favor of appellees as a sanction for Carpenter's failure to comply with the North Dakota Rules of Appellate Procedure.

I

[¶ 2] Carpenter, a homosexual man with a history of being abused, sought the professional services of Rohrer as a licensed social worker. During therapy sessions, Rohrer would occasionally hug Carpenter and say "love you, man" to him. The parties dispute the exact nature of the hugs and the context in which the words "love you" were used. Rohrer believed the hugs and words "love you" were used in an appropriate manner. Carpenter found Rohrer's actions inappropriate and sued him for professional malpractice. Carpenter also sued Darveaux, Eaton & Associates ("the association"), psychologists Dion Darveaux and Timothy Eaton, and psychiatrist Thomas Eick. These parties were included under various agency and negligence theories. Rohrer rented office space from the association, and Carpenter believed the association and the individuals in the association should be held liable for the acts of Rohrer. Psychiatrist Eick also treated Rohrer and Carpenter asserted Eick had a duty to supervise Rohrer. The district court judge dismissed all the parties except for Rohrer at the close of plaintiff's case.

[¶ 3] Following a week-long jury trial, a jury found Rohrer to be 30% at fault for Carpenter's injuries. Carpenter was found to be personally responsible for 20% of his injuries, and other parties or persons not listed were found to be 50% at fault for Carpenter's injuries. While the jury believed Rohrer to be partially at fault, the jury awarded Carpenter zero dollars for his injuries.

[¶ 4] Carpenter filed this appeal raising the following four main issues: (1) the jury verdict was inconsistent and he should receive a new trial; (2) irregularity in the proceedings — a juror being dismissed for reading a law book — requires a new trial; (3) the district court abused its discretion in refusing to allow a psychologist to testify to a psychiatrist's standard of care; and (4) the psychologists Dr. Darveaux and Dr. Eaton, the psychiatrist Dr. Eick, and the association, were improperly dismissed under N.D.R.Civ.P. 50. Carpenter argues the dismissal of the association, Dr. Darveaux, Dr. Eaton, and Dr. Eick, was improperly granted because an ostensible agency relationship existed between Rohrer and Drs. Darveaux and Eaton, Medicaid rules required Dr. Eick to supervise Rohrer, and the statute of limitations had not run on any party because of the agency relationships and a continuing tort theory.

[¶ 5] Rohrer argues the verdict was consistent and irregularities do not require a new trial. He also cross-appealed arguing that he should be entitled to costs because he was the prevailing party at trial. The association and the individual psychologists and psychiatrist argue they were properly dismissed from the case. Carpenter filed a partial transcript with this Court. All appellees have objected to this incomplete transcript. After Carpenter filed his brief on appeal, Rohrer filed a motion to strike certain information that was included in Carpenter's brief but was not in the evidence presented to the jury.

II

[¶ 6] Carpenter argues the jury verdict was inconsistent because the special verdict form stated Rohrer was the proximate cause of Carpenter's damages, but the jury awarded no damages to Carpenter. The relevant portion of the special verdict form states:

3. Was the fault of Mark Rohrer a proximate cause of the plaintiff Dan Carpenter's damages?

Answer: Yes × No ____

. . .

9. What amount of money, if any, will fairly compensate plaintiff Dan Carpenter for:

a. Past economic damages $0

b. Past non-economic damages $0

[¶ 7] Carpenter argues this verdict is inconsistent because the jury found Carpenter had been damaged, but then provided the value of those damages as zero. He claims if the value of his damages was really zero, then he was not really damaged. Rohrer argues the special verdict was not inconsistent. Rohrer believes the jury must have concluded Carpenter failed to prove the amount of his damages by a preponderance of the evidence. Rohrer claims Carpenter did not present any credible evidence on damages and thus this verdict is proper.

[¶ 8] We uphold special jury verdicts whenever possible, setting them aside only if it is shown they were perverse and clearly contrary to the evidence. Fontes v. Dixon, 544 N.W.2d 869, 871 (N.D.1996). We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable. Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553. The presumption on appeal is that jurors do not intend to return conflicting answers. 75B Am.Jur.2d Trial § 1853 (1992). When a party challenges an award of damages, we generally defer to a jury verdict because damages are in the province of the jury and the matter rests largely in the jury's sound discretion. Vallejo v. Jamestown College, 244 N.W.2d 753, 759 (N.D. 1976). There is no certain or definite rule by which the amount of damages can be measured, and each case must be determined on its merits. Id.

[¶ 9] Carpenter cites Haley v. Dennis, 2004 ND 96, 679 N.W.2d 263 and Moszer v. Witt, 2001 ND 30, 622 N.W.2d 223, for the proposition that if a jury's special verdict form provides for monetary damages, but provides that a party is both negligent and not negligent, the verdict form is inconsistent and the case should be remanded for a new trial. But these cases are not dispositive of the issue in this case. The question in this case is whether a jury's verdict of no amount of monetary damages, when a defendant is found to be the proximate cause of the plaintiff's damages, renders a jury's verdict inconsistent.

[¶ 10] We addressed an analogous issue in McCommon v. Hennings, 283 N.W.2d 166 (N.D.1979). In McCommon, a jury determined Hennings "was responsible for the accident" between McCommon's car and Henning's tractor-mower, but awarded damages to McCommon in the "sum of `none' dollars." Id. at 167. McCommon asserted the jury verdict assessing no damages was contrary to the evidence and requested a new trial. Id. We held that the trial court did not abuse its discretion in denying a new trial on damages. Id. at 170. In affirming the denial of a new trial, we reviewed the testimony on damages and concluded the injuries were "uncertain and based upon opinion" and in such a situation having a court determine the amount of damages "would be an invasion of the jury's function." Id. at 169; see also Belinskey v. Hansen, 261 N.W.2d 390, 392 (N.D.1977) (affirming denial of new trial where minor rear-end collision with claimed serious injuries and disability resulted in jury finding that other driver negligently caused collision but jury awarded nothing for damages).

[¶ 11] Conversely in Massey-Ferguson Credit Corp. v. Orr, 420 N.W.2d 1 (N.D. 1988), this Court reversed and remanded a special jury verdict form that included the following findings: a security agreement existed between a debtor and a secured creditor; no agreement existed that would waive a deficiency judgment upon repossession of collateral; and a finding of no damages. Id. at 2. The record clearly showed a deficiency of nearly $20,000 existed. Id. We concluded the evidence did not support the verdict and the damages verdict was so inadequate that a reversal was required. Id.

[¶ 12] The common thread in our cases is the adequacy of the evidence of damages. If an award of no monetary damages is completely unsupported by the evidence, as in Orr, a new trial on damages would be proper. But if an award of no damages is supported by the evidentiary record, a perceived inconsistency does not require a reversal. See McCommon, 283 N.W.2d at 170; Belinskey, 261 N.W.2d at 392.

[¶ 13] In this case, Carpenter has not provided us with a transcript of the damages section of the trial. It is thus impossible to determine if the jury determination on damages was unsupported by the...