Christenson v. Bergeson, 23107

Citation688 NW 2d 421,2004 SD 113
Decision Date13 October 2004
Docket NumberNo. 23107,23107
PartiesSUZANNE CHRISTENSON, Plaintiff and Appellant, v. RODNEY BERGESON, Defendant and Appellee.
CourtSupreme Court of South Dakota

MICHAEL D. BORNITZ of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

MICHAEL J. SCHAFFER, Sioux Falls, South Dakota, Attorney for defendant and appellee.

GILBERTSON, Chief Justice.

[¶1.] Suzanne Christenson brought suit against Rodney Bergeson alleging Bergeson negligently operated his motor vehicle, which resulted in a rear-end collision that injured Christenson. Christenson's motion for directed verdict on the issue of Bergeson's negligence and Christenson's lack of contributory negligence were denied by the trial court. The jury subsequently returned a special verdict for Bergeson, finding he was not negligent. Christenson filed a motion for judgment notwithstanding the verdict (j.n.o.v.) or new trial, which was denied after oral argument. Christenson appealed contending the trial court abused its discretion in denying the motions. Affirmed in part and reversed in part.

FACTS AND PROCEDURE

[¶2.] On September 26, 2001, Suzanne Christenson was eastbound in her Ford pickup on Forty-ninth Street in Sioux Falls, South Dakota. As Christenson approached Louise Avenue, she decelerated in order to take a right hand turn. Christenson did not use her turn signal. Rodney Bergeson, who was traveling behind Christenson in his 2000 Ford Explorer, noted Christenson was in the process of making a right hand turn and accordingly he began to decelerate. Christenson abruptly stopped halfway through her turn. While Bergeson had sufficient time to take evasive maneuvers, he elected to steer around Christenson's pickup rather than stop behind it in the right hand lane. Bergeson misjudged the distance and as a result his passenger side mirror struck the tail end of Christenson's pickup leaving a small dent.

[¶3.] Following the accident, both parties pulled their vehicles into a parking lot to assess the damage. No accident report was filed, and both parties elected to continue on their respective ways. Bergeson received no further information about the incident until he was served approximately thirteen months later with Christenson's suit alleging neck injuries as a result of the accident that required a costly neck fusion surgery.

[¶4.] On November 5 and 6, 2003, a trial was held before a Minnehaha County jury. Christenson testified at trial that her abrupt stop was caused by a bicyclist who came from nowhere which required her to stop mid-turn. Bergeson testified he did not see the bicyclist. Bergeson testified that he had ample time to elect between making a complete stop and steering around Christenson's pickup, but elected the later as he felt he could do so safely. However, he misjudged the distance and as a result he struck the tail end of Christenson's truck.

[¶5.] Following the close of evidence, Christenson moved for a directed verdict on the issue of Bergeson's negligence and Christenson's lack of contributory negligence. The trial court denied the motion. The jury then returned a special verdict for Bergeson, finding he was not negligent. The jury never reached the issue of Christenson's contributory negligence.

[¶6.] On November 13, 2003, the trial court entered judgment on the verdict. Christenson moved for judgment notwithstanding the verdict (j.n.o.v.) or for a new trial. On January 13, 2004, after oral arguments on the motion, the trial court denied Christenson's motions.

[¶7.] Christenson appealed both the denial of the motion for directed verdict, and the motion for j.n.o.v. or for a new trial. Christenson contended that reasonable minds could not have concluded, based solely on Bergeson's cross-examination testimony, that Bergeson was not negligent in colliding with Christenson and the motion for directed verdict should have been granted. Christenson also contends the trial court erred when it did not grant her motion to exclude a contributory negligence jury instruction. Finally, Christenson requested this Court adopt a presumption of negligence on the part of a following driver in a rear-end collision.

[¶8.] Christenson did not order a complete copy of the trial transcript for inclusion in the appellate record. Instead, she ordered only those portions she deemed relevant to the issues she appealed. The partial transcripts included Bergeson's cross-examination and the transcript of the January 13, 2004 j.n.o.v. motion hearing. Bergeson, after receiving notice of the appeal, ordered a partial transcript of his direct examination. Finally, Christenson failed to file a statement of issues as required by SDCL 15-26A-50 when the appellant does not obtain a complete trial transcript.

[¶9.] Accordingly, Bergeson raised a separate issue on appeal under this Court's appellate rules of procedure. Bergeson contended this Court may impose sanctions for failure to comply with the rules of appellate procedure, up to and including dismissal of Christenson's appeal.

STANDARD OF REVIEW

[¶10.] We review the trial court's ruling on a directed verdict by the abuse of discretion standard. Gilkyson v. Wheelchair Express Inc., 1998 SD 45, ¶7, 579 NW2d 1, 3 (citing Bland v. Davison County, 1997 SD 92, ¶26, 566 NW2d 452, 460 (additional citations omitted)). A trial court's decisions and rulings on motion for directed verdict are presumed correct. Id. An abuse of discretion occurs when "no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion." Bridge v. Karl's Inc., 538 NW2d 521, 523 (SD 1995) (citing Dartt v. Berghorst, 484 NW2d 891, 894 (SD 1992) (quoting Jensen v. Weyrens, 474 NW2d 261, 263 (SD 1991))).

[¶11.] "The moving party is entitled to evidentiary consideration only where its evidence is uncontradicted or tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the prevailing party." Id. (citation omitted). On appeal, our task is to review the record and ascertain whether there is any substantial evidence to allow reasonable minds to differ. Id. (citing Haggar v. Olfert, 387 NW2d 45, 49 (SD 1986)). This Court will not weigh trial evidence and substitute its own judgment for that of the jury. Id. (citations omitted).

[¶12.] We review the trial court's ruling on j.n.o.v. under the same standard, that of abuse of discretion. Welch v. Haase, 2003 SD 141, ¶19, 672 NW2d 689, 696 (citing Fechner v. Case, 2003 SD 37, ¶16, 660 NW2d 631, 633). We review the testimony and evidence in a light most favorable to the verdict or to the nonmoving party. Sabag v. Continental South Dakota, 374 NW2d 349, 355 (SD 1985) (citing Zeibarth v. Schnieders, 342 NW2d 234, 236 (SD 1984)). "[T]hen without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdict...." Id. (citing Corey v. Kocer, 86 SD 221, 226-27, 193 NW2d 589, 593 (1972)).

[¶13.] The same standard is employed when reviewing a trial court's denial of a motion for a new trial. Olson v. Judd, 534 NW2d 850, 852 (SD 1995) (citing Treib v. Kern, 513 NW2d 908, 911 (SD 1994)). We will not reverse the trial court's decision to grant or deny a new trial absent an abuse of discretion. Maybee v. Jacobs Motor Co., 519 NW2d 341, 344 (SD 1994) (citations omitted).

[¶14.] "Trial courts enjoy broad discretion in determining how to instruct a jury." Johnson v. Armfield, 2003 SD 134, ¶7, 672 NW2d 478, 481 (citing State v. Pellegrino, 1998 SD 39, ¶7, 577 NW2d 590, 594). Jury instructions are adequate when, considered as a whole, they correctly state the law and inform the jury. Id. ¶8 (citations omitted). The appellant has the burden to show the instruction given was in error, and that the error was prejudicial. Knudson v. Hess, 1996 SD 137, ¶6, 556 NW2d 73, 75 (citing Sybesma v. Sybesma, 534 NW2d 355, 359 (SD 1995) (quoting Chambers v. Dakotah Charter, Inc., 488 NW2d 63, 64 (SD 1992))).

ANALYSIS AND DECISION

[¶15.] 1. Whether Christenson's failure to obtain the complete trial transcript allows this Court to dismiss her appeal without further consideration.

[¶16.] SDCL 15-26A-4 provides, in pertinent part: "Failure of an appellant to take any step other than timely service and filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal." An appellant is required under SDCL 15-26A-50 to file a statement of issues when not including the entire transcript from the proceedings below.1 Western States Land & Cattle Co. v. Lexington Insurance Co., 459 NW2d 429, 431 (SD 1990). However, failure to file the statement of issues is not always fatal to an appeal. Id. at 432. Lesser sanctions for failure to follow rules of appellate procedure are within the discretion of the Court. Id.

[¶17.] The intent behind SDCL 15-26A-50 is to provide the appellee with an opportunity to order additional parts of the transcript when the appellant has failed to order a complete transcript. Id. We have dismissed an appeal for failure to comply with the provisions of SDCL 15-26A-50, but only when the appellee was prejudiced as a result of the appellant's failure to comply procedurally. See Meade Education Association v. Meade School District 46-1, 399 NW2d 885 (SD 1987); State Highway Commission v. Olson, 81 SD 237, 132 NW2d 927 (1965). This Court's concern in both Meade Education Association and Olson was that the failure to file the statement of issues precluded the Court from making a meaningful review of the issues on appeal. Western States Land & Cattle Co., 459 NW2d at 432.

[¶18.] The same is not true for the instant case. Bergeson had notice of the issues on appeal from Christenson's Notice of Appeal and Docketing Statements. While not procedurally...

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    ...review the circuit court's decision to deny a motion for directed verdict under the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 N.W.2d 421, 425 (citing Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (quoting Bland v. Davison County, ......
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