Kerzmann v. Rohweder

Decision Date10 June 1982
PartiesDale KERZMANN, Plaintiff and Appellee, v. Ray ROHWEDER, Defendant and Appellant, and Darrel Rausch, Defendant. Dale KERZMANN, Plaintiff and Appellee, v. Ray ROHWEDER, Defendant, and Darrel Rausch, Defendant and Appellant. Civ. 10141, Civ. 10168.
CourtNorth Dakota Supreme Court

Jos. A. Vogel, Jr., and Marvin M. Hager, of Vogel Law Firm, Mandan, for plaintiff and appellee Kerzmann; argued by Hager.

Gordon O. Hoberg, Napoleon, for defendant and appellant Rohweder.

Malcolm H. Brown, of Bair, Brown & Kautzmann, Mandan, for defendant and appellant Rausch.

VANDE WALLE, Justice.

Ray Rohweder and Darrel Rausch appealed from the order of the district court, McIntosh County, denying a motion for a new trial. Rohweder and Rausch [hereinafter referred to as "Rohweder"] moved for a new trial after judgment had been entered against them pursuant to a jury verdict. The basis of their motion was an affidavit signed by all the jurors that the jury's answers to questions on a special-verdict form did not reflect its true verdict. We affirm.

The action against Rohweder was based upon misrepresentation in the sale of livestock to Dale Kerzmann. The jury returned two verdicts. The first was the amount of damage Kerzmann suffered as a result of Rohweder's failure to obtain the required health certificate for the livestock. The jury determined that Kerzmann should be awarded $1,500. The damages award in the first verdict was against Ray Rohweder alone. No issue is raised as to the jury's decision in the first verdict.

The second verdict form utilized interrogatories, which required the jury to answer nine questions and, depending upon the answers, to determine the amount of damages. The questions, and the answers given by the jury, are as follows:

"1. Did the defendant, Ray Rohweder, induce the plaintiff to purchase cattle through the use of fraud or misrepresentation? Yes / No ---

"2. Did the defendant, Darrel Rausch, induce the plaintiff to purchase cattle through the use of fraud or misrepresentation? Yes / No ---

"(If the answer to either Question #1 or #2 is yes, answer Question #3. If both answers are no, sign and return your verdict.)

"3. Did the defendants, Rohweder and Rausch engage in a conspiracy, as defined in these instructions, to defraud the plaintiff? Yes --- No /

"4. Did the plaintiff suffer actual damages as a result of the action of Mr. Rohweder? Yes / No ---

"5. Did the plaintiff suffer actual damages as a result of the action of Mr. Rausch? Yes / No ---

"(If the answer to Questions 4 or 5 is yes, answer Question 6; otherwise return your verdict.)

'6. The amount of actual damages as defined at page 12 suffered by the plaintiff is the sum of $13,000.00.

"7. Interest is allowed on the damages at the legal rate? Yes --- No /.

"8. If the answer to Questions #1 and #4 is yes, is the plaintiff entitled to exemplary damages against Ray Rohweder? Yes / No --- If the answer is yes, in what amount? $13,000.00

"9. If the answer to Questions #2 and #5 is yes, is the plaintiff entitled to exemplary damages against Darrel Rausch? Yes --- No / If answer is yes, in what amount? $ " The second verdict awarded Kerzmann $13,000 against Rohweder and Rausch for actual damages and an additional $13,000 against Rohweder alone for exemplary damages. When the verdicts were read in court on October 28, 1981, neither Rohweder nor Rausch nor their attorneys were present. The jury was discharged without being polled.

Within a week after the trial a son of Ray Rohweder learned from one of the jurors that the intention of the jury was to award Kerzmann $13,000 against Ray Rohweder alone and not to award exemplary damages at all. Apparently the juror learned for the first time the effect of the verdict which had been returned. That juror then contacted Rohweder's attorney and told him he thought an error was made. Rohweder's attorney then contacted the foreman, who allegedly confirmed the first juror's conclusion. On November 2, 1981, the jury foreman held a meeting with the jury and the attorneys for both Rausch and Rohweder. At that meeting all six jurors signed the affidavit which was prepared by the attorney for either Rausch or Rohweder. 1 The affidavit stated that the verdict which was returned was not the intended verdict and that the returned verdict was incorrect due to mistake. The affidavit stated that the intent of the jury was to return the verdict as explained therein. The effect of the affidavit would have been to reduce the award to Kerzmann by $13,000 and would have freed Rausch of all liability.

Rohweder and Rausch filed a motion, based upon the affidavit, for a new trial pursuant to N.D.R.Civ.P. Rule 59(b)(1) and Rule 59(g).

Rule 59(b)(1) provides:

"(b) Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

"1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; ..."

Rule 59(g) provides:

"(g) Verdict Vacated by Court. The verdict of a jury also may be vacated and a new trial granted by the court in which the action is pending on its own motion without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court or of the evidence in the case as to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice."

The sole issue is whether or not the trial judge erred when he denied the motion for new trial.

The decision to grant or deny a new trial rests entirely within the discretion of the trial court. Our standard of review on appeal from a denial of a new trial is limited to a determination of whether or not the trial court abused its discretion. An abuse of discretion in such a situation consists of an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Wilson v. General Motors Corp., 311 N.W.2d 10, 14 (N.D.1981).

We first address the applicability of Rule 59(g) to support a motion for a new trial in this case. The trial court concluded that the requirements for relief under Rule 59(g) were not met. The trial judge concluded that there had not been "a plain disregard by the jury of the instructions of the Court or of the evidence in the case as to satisfy the Court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice." 2 We agree and are not persuaded that the trial court abused its discretion under Rule 59(g). The verdict itself does not contain anything which indicates that the jury misunderstood or disregarded the instructions or that its verdict was influenced by passion or prejudice. Assuming, without deciding, that we may consider the contents of the jury's affidavit, it does not contain any evidence that the jury misunderstood or disregarded the instructions nor that the verdict was due to passion or prejudice. The answer contained in the special verdict conformed to the evidence and the instructions.

Rohweder also argues that Rule 59(b)(1) is applicable. Rohweder attempted to use an affidavit signed by the jury to "correct" an allegedly erroneously transcribed verdict. In Grenz v. Werre, 129 N.W.2d 681 (N.D.1964), the appellants argued that the jury was guilty of misconduct when it returned a general verdict. The basis for the argument was twelve affidavits signed by each member of the jury stating that it awarded the plaintiff damages even though it did not find the defendant guilty of gross negligence, as required under our previous guest statute. Clearly, the appellant in Grenz was attempting to impeach the jury's verdict through the use of affidavits from the jurors. The attempt in Grenz was made pursuant to Rule 59(b)(2). 3 In Grenz, this court interpreted Rule 59(b)(2) to permit the use of juror affidavits for the impeachment of the verdict only in cases where the jury's determination was arrived at by chance. Grenz, 129 N.W.2d at 692. As in Grenz, the affidavit in the instant case establishes "beyond controversy that the jury did not arrive at its verdict ... by chance." Grenz, 129 N.W.2d at 692. In Grenz the court then turned to the question "should the jurors be permitted to impeach their verdict, by their affidavits, where the facts sought to be shown inhere in the verdict itself?" Grenz, 129 N.W.2d at 692. The court decided, primarily due to policy reasons, that juror affidavits "cannot be used or considered by the court to impeach their verdict or as a ground for a new trial." Grenz, 129 N.W.2d at 693. The court in Grenz affirmed the policies as set forth in State v. Forrester, 14 N.D. 335, 103 N.W. 625, 626:

"It would greatly tend to unsettle verdicts if a juror be permitted to say, after it is too late to be remedied, that he did not understand the charge of the court. To do so would result in continual embarrassment and interminable controversy after trials, although a verdict had been duly and solemnly announced. It would subject jurors to constant annoyance by being called upon to state the occurrences of the jury room, which ought to be kept secret as well as privileged. It would subject jurors to influences by corrupt parties in an effort to have them impair their verdict after they had ceased to act as jurors. Although injustice may at times result from thus holding verdicts solemnly rendered unassailable by affidavits of jurors as to their not understanding the charge or as to their reasons for agreements, we deem it the better rule, and subject to less liability to injustice, that a verdict actually rendered shall be conclusively deemed to be a verdict, and beyond impeachment by...

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  • Andrews v. O'Hearn, 10837
    • United States
    • United States State Supreme Court of North Dakota
    • May 7, 1986
    ...contrary to North Dakota law and drawn from a misapplication of one sentence taken out of the context of our decision in Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982). In support of their view, the plaintiffs quoted only the italicized portion of the following quotation from "Rule 606(b) s......
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    ...on the grounds of jury misconduct absent an abuse of discretion. See Hidanovic, 2008 ND 66, ¶ 11, 747 N.W.2d 463; Kerzmann v. Rohweder, 321 N.W.2d 84, 86-87 (N.D.1982); Keyes, 343 N.W.2d at 81. In deciding whether to grant a new trial based on jury misconduct, the district court must decide......
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    • April 17, 2008
    ...Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338, 343 (N.D.1984) (to show jury disregarded instructions); Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982) (to show jury confusion); Brauer v. James J. Igoe & Sons Construction, Inc., 186 N.W.2d 459, 474 (N.D.1971) (to show the jury ......
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    ...in arriving at a decision. Keyes v. Amundson, 343 N.W.2d 78 (N.D.1983); State v. Bergeron, 340 N.W.2d 51 (N.D.1983); Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982); Grenz v. Werre, 129 N.W.2d 681 (N.D.1964). It is also improper to use juror affidavits to show that the jurors misconceived th......
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