Dewitz by Nuestel v. Emery

• Decision Date: 10 November 1993
• Docket Number: No. 930096,930096
• Parties: Jon DEWITZ, by his Guardian Ad Litem Kent NUESTEL, Richard Dewitz and Lynn Dewitz, Plaintiffs and Appellees, v. Regina EMERY, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 334

508 N.W.2d 334

Jon DEWITZ, by his Guardian Ad Litem Kent NUESTEL, Richard Dewitz and Lynn Dewitz, Plaintiffs and Appellees, v. Regina EMERY, Defendant and Appellant.

Civ. No. 930096.

Supreme Court of North Dakota.

Nov. 10, 1993.

A. William Lucas of Lucas Law Office, Bismarck, for defendant and appellant.

David L. Peterson of Wheeler Wolf, Bismarck, for plaintiffs and appellees.

SANDSTROM, Justice.

Regina Emery appeals from a judgment against her in favor of the plaintiffs, Jon Dewitz, and his parents Richard and Lynn Dewitz. We affirm, holding:

(1) The record does not support Emery's claims of judicial bias;

(2) The district court's decision to exclude evidence of Jon Dewitz's failure to obtain a motorcycle license was not prejudicial error;

(3) The district court's exclusion of one of Emery's expert witnesses was not an abuse of discretion; and

(4) The district court did not err in refusing to reduce the verdict under the collateral source reduction provisions of N.D.C.C. Sec. 32-03.2-06.

I

Jon Dewitz and his parents sued Regina Emery following a September 18, 1989, accident involving Emery's car and Dewitz's motorcycle. At the time of the accident, Dewitz was fifteen years old. The accident occurred as Dewitz was driving north on the Tappen exit overpass of I-94 and Emery was exiting I-94.

The case was twice tried to a jury, with District Judge William F. Hodny presiding over both trials. At the end of the first trial, the jury found Dewitz 60 percent negligent and Emery 40 percent negligent. Dewitz and his parents moved for a new trial. The trial court granted the motion, concluding:

"There was an error in law and an irregularity in the proceedings, in that evidence was presented to the jury which was prejudicial and not of probative value. The jury was informed that Jon Dewitz was illegally driving the motorcycle, because of the engine size that he had and that Jon was illegally driving without a driver's license to drive a motorcycle. Upon reflection and review of the evidence and proceedings at the trial, it appears to the court that evidence of those two items was not causally connected to the accident or injuries, that such evidence was prejudicial, and that it was error to have admitted them.

* * * * * *

"Plaintiffs' motion for new trial is granted on the ground of error in law."

Prior to the second trial, Emery requested Judge Hodny recuse himself. The judge refused. In response, Emery petitioned this Court for a supervisory writ. We denied the petition.

The second trial resulted in a jury verdict finding Dewitz 30 percent negligent, and Emery 70 percent negligent. The jury awarded the plaintiffs $165,804 in damages, which resulted in a damage judgment of $116,062.80. Emery moved for a new trial under Rule 59(b), N.D.R.Civ.P., claiming irregularity in the proceedings of the court, and error in law. The motion for a new trial was denied and this appeal followed.

II

Emery claims the trial court was biased against her, denying her a fair trial. In support of her position, Emery cites several statements made by the judge. We have reviewed Emery's examples, along with the complete transcript of the proceedings. Only two of the judge's comments merit discussion.

At both the first and second trial, Emery was represented by A. William Lucas. At the second trial, Dewitz was represented by David L. Peterson. During Lucas's cross-examination of Dewitz, the following exchange took place between Lucas and Dewitz:

"Q. And I indicated on page 58, line 10, Jon, do you remember when I took your deposition back in May 17, 1991? You answered yes. At that time you indicated you were concerned about your memory of your accident, didn't you, and you answered no. Didn't you tell me you were rehearsing this whole accident and refreshing your memory daily so you didn't--

"A. Not daily. We went over things that happened every once in awhile.

"Q. My question was: You've spent a lot of time trying to keep these facts in mind and rehearsing for this trial again.

"MR. PETERSON: Your Honor, he is using the term rehearsing.

"THE COURT: Sustained. You can argue that to the jury in argument. You are not permitted to make comments on the evidence in examination of the witness. It is highly improper.

"MR. LUCAS: Okay."

Similarly, during Lucas's direct-examination of Regina Emery, the following exchange occurred.

"Q. Now, there is some--apparently there is some dispute as exactly where your car was when it was parked and Mr. Daubert drew the car in this position, as I understood it, when it was parked. Does that look like the way your car was at the time it was stopped?

"MR. PETERSON: Your Honor, I am going to object to that question. Mr. Lucas and Mr. Daubert had a discussion about that as an illustrative exhibit. The 'to scale' exhibit is that what Mr. Daubert drew on another exhibit. I object to him making that characterization.

"THE COURT: Sounds like a deliberate misrepresentation of Mr. Daubert's testimony. Objection sustained.

"MR. LUCAS: I don't think--he has got the motorcycle sliding right into the parked car--

"THE COURT: Have you any more questions for your witness?"

A trial judge appropriately may admonish attorneys when they stray into improper areas and use improper questioning techniques. Admonishment that could influence the jury in its consideration of the case should take place out of the jury's hearing. As we explained in Haugen v. Mid-State Aviation, Inc., 144 N.W.2d 692, 696 (N.D.1966):

"A trial judge should, of course, maintain at all times an impartial attitude in the trial of the case over which he presides. He should not, by word, by question, by his attitude, or by any conduct on his part, do anything which may influence the jury in its consideration of the case. He should make no remarks which would show bias on his part in favor of any party to the lawsuit. Other than that, however, the trial judge is allowed great latitude and discretion in conducting the trial and, except for an obvious abuse of that discretion, his conduct of the trial will not be grounds for reversible error. The trial judge is the one who determines how the trial should be conducted. It is within his discretion, to keep the trial of the case within reasonable bounds and, where counsel for the defendant was going into collateral and immaterial matters, it was within the legal discretion of the trial court to keep the questions within bounds."

If a party does not object to the trial court's allegedly prejudicial remarks, the party waives the issue of error and cannot later complain. Kern v. Art Schimkat Construction Co., 125 N.W.2d 149, 154 (N.D.1963); Gleson v. Thompson, 154 N.W.2d 780, 785 (N.D.1967); Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 894 (N.D.1993). Although Lucas mentioned in chambers he disagreed with the court's conclusion that he was misrepresenting evidence, Lucas never objected to specific comments and cannot now claim reversible error.

Further, the record indicates the court, on its own initiative, added the following additional cautionary instruction at the close of the trial:

"STATEMENTS OR ACTIONS OF JUDGE

"I wish to repeat one of the opening instructions.

"It is very important that you understand that although I am neutral in this case it was my duty to make certain rulings and to conduct the trial. In making these rulings and in conducting the trial, I did not intend to suggest to you how you should decide any questions of fact in this case. If anything I said or did appears to you to intimate how you should decide, please be assured it was unintentional and you should disregard it and form your own opinion. If I made any comment concerning the evidence which you find is not warranted by the evidence, you should wholly disregard my comment and rely upon your own recollection or observation."

Considering the record as a whole, Emery has failed to substantiate her claim of judicial bias.

III

Emery challenges the trial court's decision to exclude from evidence Dewitz's lack of a valid motorcycle license at the time of the accident.

At the first trial, Emery was allowed to introduce into evidence, over Dewitz's objection, Dewitz's lack of a valid motorcycle license at the time of the accident. In its memorandum decision granting Dewitz's motion for a new trial, the court concluded that allowing Emery to introduce evidence of Dewitz's failure to have a license was prejudicial error, and at the next trial, such evidence would be excluded under Rule 403, N.D.R.Ev.

Before the second trial, Dewitz made a motion in limine to exclude all reference to his license status. The court granted the motion, concluding Dewitz's lack of a motorcycle license was evidence of general negligence, which was not admissible to prove Dewitz was negligent at the time of the accident. Emery contends the trial court's decision "doomed her from the beginning."

Under Rule 402, N.D.R.Ev., "[a]ll relevant evidence is admissible, except as otherwise provided...." Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, N.D.R.Ev. Relevant evidence may be excluded if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, ..." Rule 403, N.D.R.Ev. As we explained in State v. Huwe, 413 N.W.2d 350 (N.D.1987), "[w]hether evidence is too remote to be relevant and whether the probative value of such evidence is outweighed by the risk of unfair prejudice are questions for the trial court to resolve in the exercise of its sound discretion." Huwe at 352. We will not disturb the trial court's exercise of discretion, unless there has been an abuse of discretion which affected substantial rights of the parties. Swiontek v. Ryder Truck Rental,...