Leingang v. George

• Decision Date: 23 February 1999
• Docket Number: No. 980165,980165
• Citation: 589 N.W.2d 585
• Parties: Rodney J. LEINGANG, Plaintiff and Appellant, v. Frank and Diane GEORGE, Defendants and Appellees.
• Court: North Dakota Supreme Court

Page 585

589 N.W.2d 585

1999 ND 32

Rodney J. LEINGANG, Plaintiff and Appellant, v. Frank and Diane GEORGE, Defendants and Appellees.

No. 980165.

Supreme Court of North Dakota.

Feb. 23, 1999.

Deborah J. Carpenter of Carpenter Law Offices, Bismarck, for plaintiff and appellant.

Collin P. Dobrovolny of McGee, Hankla, Backes & Dobrovolny, Minot, for defendants and appellees.

NEUMANN, Justice.

¶1. Rodney Leingang appeals from the district court's order denying him a new trial and the judgment.

I

¶2. Rodney Leingang was employed as a farm laborer on the farm of Frank and Diane George. Leingang suffered injury to his left arm when it became entangled in a posthole digger while he was working on the farm.

¶3. Leingang commenced a personal injury suit on April 11, 1995. The case was tried to a jury in November 1997. The jury's verdict apportioned fault of 60 percent to the Georges and 40 percent to Leingang. The jury awarded Leingang total damages of $64,000.

¶4. Following the verdict, the Georges moved for a reduction in the damage award based on apportionment of fault, collateral source payments, advance payments, and on their Rule 68, N.D.R.Civ.P., offer of judgment. The district court ultimately reduced the award and entered judgment in favor of Leingang for $470.58.

¶5. Leingang appeals from the district court's order for judgment and from its order denying his motion under Rule 59, N.D.R.Civ.P., and Rule 60, N.D.R.Civ.P.

II

¶6. This case comes before us with no transcript. Leingang argues this Court and the district court erred by not requiring the court reporter to accept his proposal to pay for the transcript in installments. Leingang asserts he was not able to afford the cost of the transcript and the court reporter would not accept his proposed installment plan.

¶7. Rule 10, N.D.R.App.P., governs the record on appeal. Under Rule 10(b), N.D.R.App.P., the appellant is required to file the trial transcript with this Court on appeal. Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 891 (N.D.1993). Rule 10(b), N.D.R.App.P., allows the appellant to proceed on appeal with a partial transcript if it will allow for a meaningful and intelligent review of any alleged error. Id. at 892. However, the appellant also assumes the risks associated with submitting a partial transcript, as we will not review any issue that cannot be meaningfully reviewed on the submitted record. Id.

¶8. If the appellant wishes to proceed with a partial transcript, under Rule 10(b), N.D.R.App.P., the other party must stipulate to unnecessary portions of the transcript or risk paying for those portions and any attorneys fees associated with making the motion to procure payment. Sabot, 500 N.W.2d at 892. In this case, there is no allegation concerning any refusal to stipulate to portions of the transcript not necessary for review of the alleged errors. Therefore, under Rule 10(b), N.D.R.App.P., there is no justification for failure to provide at least portions of the trial transcript.

¶9. Rule 10(c), N.D.R.App.P., dealing with the financial arrangements for preparation of the transcript on appeal, provides:

If demanded by the person preparing the transcript, the appellant or a party obliged by an order of the court under subdivision (b) to pay for the transcript or a portion thereof shall advance the payment of his portion of the estimated cost of any transcript ordered, provided a written estimate of the amount and a demand for payment is served on any obligated party within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b). Failure to furnish a written estimate and make a timely demand for payment waives the right to demand advance payment. (Emphasis added.)

Leingang has not alleged the court reporter failed to comply with Rule 10(c), N.D.R.App.P. We therefore find no error in the court reporter's demand for advance payment or the subsequent denials by the district court and this Court for leave to make installment payments on the costs associated with the trial transcript.

III

¶10. Leingang made a motion for a new trial or relief from the judgment at the close of the trial. In his motion, he argued the district court had: (1) erroneously omitted his requested jury instructions; (2) erroneously excluded photographic evidence; (3) erroneously excluded expert testimony; (4) erroneously permitted questioning about "other income"; and (5) improperly answered questions from the jury.

¶11. The decision to grant or deny a motion for a new trial or for relief from a judgment is within the sound discretion of the district court. Gowin v. Trangsrud, 1997 ND 226, p 8, 571 N.W.2d 824; Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996). The district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Gowin, at p 8. When a motion for a new trial is made in the court below and an appeal is taken from the order denying the motion and the judgment, alleged errors as grounds for a new trial must be presented in the motion or they are deemed to be waived for appellate review. Andrews v. O'Hearn, 387 N.W.2d 716, 728-29 (N.D.1986).

a.

¶12. In Leingang's motion for a new trial, and again on appeal, he argues the district court erred by refusing to give two requested jury instructions. ¹ The instruction Leingang requested stated:

Acts which employer is bound to perform for the safety and protection of his or her employees cannot be entrusted or delegated to another so as to protect the employer from liability to employee who is injured by the employer's omission to perform such act or duty.

¶13. Rule 51, N.D.R.Civ.P., governs instructions to a jury and, under subsection (c), provides when an exception, or more conventionally today an objection, must be taken in order to preserve the issue for appellate review. Deichert v. Fitch, 424 N.W.2d 903, 905 (N.D.1988); Rau v. Kirschenman, 208 N.W.2d 1, 4 (N.D.1973), reh'g denied, 208 N.W.2d 7 (N.D.1973). Specifically, Rule 51(c), N.D.R.Civ.P., provides:

(c) Exceptions to Instructions. The giving of instructions and the failure to instruct the jurors are deemed excepted to unless the court, before instructing the jurors, submits to counsel the written instructions it proposes to give to the jurors and asks for exceptions to be noted.

Thereupon, counsel shall designate the parts or omissions of such instructions as that counsel considers objectionable. Thereafter, only the parts or omissions so designated are deemed excepted to by the counsel designating the same. All proceedings connected with the taking of such exceptions must be in the absence of the jurors and a reasonably sufficient time must be allowed counsel to take exceptions and to note them in the record of the proceedings. (Emphasis added.)

¶14. During oral argument on appeal, Leingang conceded the district court had provided a copy of its proposed instructions in advance of the trial, and a conference was held during which objections could have been noted. We cannot determine, from the partial record before us, whether Leingang objected to the omission of the requested instruction.

¶15. Although not specifically argued in Leingang's brief, by necessary implication, the issue presented is whether counsel's request for a jury instruction that is wholly omitted by the district court gives rise to an automatic objection under Rule 51, N.D.R.Civ.P.

¶16. In Rau v. Kirschenman, we noted under our prior law counsel was responsible for objecting to parts of the proposed instructions counsel may have deemed improper, but was not required to object to any omissions in the proposed instructions. Rau, 208 N.W.2d at 8. However, we also noted that under Rule 51(c), N.D.R.Civ.P., the prior law no longer applies. Rau, 208 N.W.2d at 8. Because Rule 51(c), N.D.R.Civ.P., specifically requires objections to omissions counsel now has the burden of objecting not only to parts included in the proposed instructions but also to omissions in the proposed instructions. Rau, 208 N.W.2d at 8.

¶17. Rule 51, F.R.Civ.P., varies from our Rule 51, N.D.R.Civ.P., but it does have similar language relating to the duty to object. Rau, 208 N.W.2d at 8. Specifically, Rule 51, F.R.Civ.P. states:

No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.

Rule 51, F.R.Civ.P., requires an objection to the omission of a requested instruction in order to preserve the issue for review. See, e.g., Rolscreen Co. v. Pella Products of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir.1995); Caruso v. Forslund, 47 F.3d 27, 30-31 (2nd Cir.1995); Jerlyn Yacht Sales v. Roman Yacht Brokerage, 950 F.2d 60, 66 (1st Cir.1991); Salazar v. City of Chicago, 940 F.2d 233, 242 (7th Cir.1991); Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149, 1152 (9th Cir.1990); Coughlin v. Capitol Cement Co., 571 F.2d 290, 299 (5th Cir.1978). Likewise, many state courts with a rule or statute similar to Rule 51, F.R.Civ.P., have also held an objection to the omission of a requested instruction is required to preserve the issue for appellate review. See, e.g., Royal v. Safety Coatings, Inc., 655 So.2d 927, 932 (Ala.1994); Roswell Properties, Inc. v. Salle, 208 Ga.App. 202, 430 S.E.2d 404, 411 (1993); Matthews v. Felps, 515 So.2d 545, 547-48 (La.App.1987); Kelbaugh v. Mills, 108 Md.App. 89, 671 A.2d 41, 44 (1996); Flood v. Southland Corp., 416 Mass. 62, 616 N.E.2d 1068, 1072 (1993); Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271, 275 (1996); Sundt v. State Dept. of Transp., 566 N.W.2d 476, 480 (S.D.1997); Collette v. Bousley, 141 Vt. 373, 449 A.2d 936, 937 (1982).

¶18. We agree with the interpretation of those federal and state courts. When the...