Kroeger Properties & Development, Inc. v. Silver State Title Co., 16047
| Decision Date | 28 March 1986 |
| Docket Number | No. 16047,16047 |
| Citation | 102 Nev. 112,715 P.2d 1328 |
| Parties | KROEGER PROPERTIES & DEVELOPMENT, INC., a Nevada corporation, Kroeger Properties, Inc., a California corporation; Henry Kroeger and Kathryn Kroeger, husband and wife, Appellants, v. SILVER STATE TITLE COMPANY, a Nevada corporation, Respondent. |
| Court | Nevada Supreme Court |
In this breach of contract action, the jury found that respondent, Silver State Title Company, violated an escrow agreement by conveying appellants' properties. We are faced with the question of whether the trial court erred in ordering a new trial based on insufficiency of the evidence, where the court found that the evidence was not so overwhelming as to justify granting judgment notwithstanding the verdict. We hold that such order was erroneous, and reverse with instructions to reinstate the jury verdict.
Prior to January 18, 1978, Mr. Kroeger discussed with Ferdi Sievers the possibility of developing certain properties in the Lake Tahoe area. Sievers stated that Gura Nevada, Inc. might be willing to finance the project, but that the company wished to deal directly with Sievers. It was agreed that Kroeger and Sievers (and related persons and entities) would contribute properties which would be placed in escrow pending the outcome of negotiations between Sievers and Gura Nevada, Inc. On January 18, 1978, appellants, Kroeger Properties & Development, Inc., Kroeger Properties, Inc., Henry Kroeger and Kathryn Kroeger (the Kroegers), entered into an escrow contract with respondent, Silver State Title Company (Silver State). The contract provided that if Ferdi Sievers and Gura Nevada, Inc., entered into a written agreement for the development of the properties by February 28, 1978 (or within 60 days thereafter, if Gura Nevada, Inc. opted to extend the time), Silver State was to convey the properties in accordance with the terms of that agreement. If no such agreement was forthcoming, Silver State was to return the properties to the original owners. Silver State conveyed the properties to Tahoe Nevada, Inc. (a limited partnership between Ferdi Sievers and another limited partnership of which Roman Gura, individually, was a partner) between May 26, 1978 and February 21, 1979.
The Kroegers' contention was that Sievers and Gura Nevada, Inc. did not enter into the development agreement, and therefore the conveyance of the Kroegers' properties to a third party was in breach of the escrow contract. The jury agreed, awarding the Kroegers $3,100,000.
Silver State moved for judgment notwithstanding the verdict or, in the alternative for a new trial. The trial court concluded that "the facts and inferences are not sufficiently overwhelming in favor of the defendant to justify judgment non obstante verdicto." However, the court granted a new trial based on "the failure of plaintiff to meet the burden of disproving the existence of the Sievers-Gura Nevada, Inc. agreement." This amounts to granting a new trial based on insufficiency of the evidence. In 1969 this court amended NRCP 59 to eliminate insufficiency of the evidence as a ground for granting a new trial. Although an exception has been recognized where there is plain error or manifest injustice (Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837, 841 (1969); Rees v. Roderiques, 101 Nev. 302, 701 P.2d 1017 (1985)), this exception will be strictly construed.
In order to find manifest injustice a case must be presented where "the verdict or decision strikes the mind, at first blush, as manifestly and palpably contrary to the evidence...." Price, 85 Nev. at 608, 460 P.2d at 842 (citations omitted); see also Amundsen v. Ohio Brass Co., 89 Nev. 378, 381, 513 P.2d 1234, 1236 (1973) (standard not met). "The fact that the weight of the evidence ... may have been against the verdict returned in the view of the trial judge, does not invest him with authority to order that the cause be tried again." Fox v. Cusick, 91 Nev. 218, 221, 533 P.2d 466, 468 (1975).
We cannot say in this case that a new trial was warranted. The key issue was whether Sievers and Gura Nevada, Inc. did enter into the development...
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