Lemer v. Campbell

• Decision Date: 01 December 1999
• Docket Number: No. 990078.,990078.
• Citation: 1999 ND 223,602 N.W.2d 686
• Parties: Marla LEMER, a/k/a Marla Hager, Plaintiff, Appellee, and Cross-Appellant, v. Loren Leroy CAMPBELL, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

602 N.W.2d 686

1999 ND 223

Marla LEMER, a/k/a Marla Hager, Plaintiff, Appellee, and Cross-Appellant, v. Loren Leroy CAMPBELL, Defendant, Appellant and Cross-Appellee.

No. 990078.

Supreme Court of North Dakota.

December 1, 1999.

Rehearing Denied December 22, 1999.

Michael Ward, Eaton, Van de Streek & Ward, Minot, N.D., for plaintiff, appellee and cross-appellant.

Michael J. Morley, Morley Law Firm, Ltd., Grand Forks, N.D., for defendant, appellant and cross-appellee.

NEUMANN, Justice.

[¶ 1] Loren Leroy Campbell appeals from a judgment against him for $12,269.88 for costs and disbursements in favor of Marla Lemer in Lemer's negligence action against Campbell. Lemer cross-appeals from the jury verdict and judgment. We conclude the trial court did not abuse its discretion in awarding costs and disbursements against Campbell, and Lemer failed to establish any basis for reversing the judgment. We affirm.

I

[¶ 2] While westbound on Main Avenue in Bismarck on February 28, 1992, Lemer stopped her vehicle to make a left turn into a restaurant parking lot. Lemer's vehicle was struck from behind by a westbound vehicle operated by Campbell. Alleging she suffered disabling injuries, medical and rehabilitative expenses, pain and suffering, and loss of productive time and avocation, Lemer sued Campbell for damages. The jury returned a special verdict finding Campbell was negligent in the operation of his vehicle, and his negligence was a proximate cause of Lemer's injuries. The jury awarded Lemer damages of $3,000 for past medical expenses, and awarded no other damages.

[¶ 3] Campbell moved for an order 1) "off-setting and removing the past medical expense award"; 2) for judgment in his favor; and 3) awarding him taxable costs and disbursements. The trial court found "since Plaintiff Lemer's no-fault insurer had already paid approximately $25,000 of her past medical expenses, any amount up to $25,000 awarded to plaintiff by the jury should be off-set and deducted from a final judgment to be entered against defendant." The court ruled Lemer was the prevailing party for awarding costs and disbursements. The judgment awarded Lemer no damages and awarded her costs and disbursements of $12,269.88 under N.D.C.C. §§ 28-26-02 and 28-26-06.

II

[¶ 4] Campbell contends the trial court erred in concluding Lemer was the prevailing party and, therefore, entitled to recover costs and disbursements. Alternatively, Campbell contends the trial court should have determined both Lemer and Campbell were prevailing parties, and neither was entitled to recover costs and disbursements.

[¶ 5] Under N.D.R.Civ.P. 54(e), costs and disbursements must be allowed as provided by statute. Section 28-26-02, N.D.C.C., provides for the recovery of certain costs. Section 28-26-06, N.D.C.C., provides "the clerk shall tax as a part of the judgment in favor of the prevailing party his necessary disbursements" for legal fees for publication, witnesses, referees, and other officers, for transcripts, for necessary expenses of taking depositions and procuring evidence, for the reasonable fees of expert witnesses, and for the actual expenses of expert witnesses.

[¶ 6] A trial court's decision on fees and costs under N.D.C.C. § 28-26-06 will not be overturned on appeal unless an abuse of discretion is shown. Patterson v. Hutchens, 529 N.W.2d 561, 567 (N.D.1995). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Lacher v. Anderson, 526 N.W.2d 108, 112 (N.D.1994).

[¶ 7] "Costs ordinarily are assessed in favor of winners and against losers." State ex rel. Holloway v. First Am. Bank & Trust Co., 248 N.W.2d 859, 862 (N.D.1977). If opposing litigants each prevail on some issues, there may not be a single prevailing party against whom disbursements may be taxed. Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 496 (N.D.1996); Liebelt v. Saby, 279 N.W.2d 881, 888 (N.D.1979).

In order to be considered a prevailing party in a tort action, a party must prevail at least on the issues of negligence and proximate cause. To hold otherwise would subject persons without the potential of legal liability for an alleged wrong to mandatory costs against them. Such an interpretation does not conform with the traditional meaning of "prevailing party."

Andrews v. O'Hearn, 387 N.W.2d 716, 732 (N.D.1986).

[¶ 8] Relying on Schneider v. DiPaola, 715 So.2d 284 (Fla.App.1998), Campbell contends he "must be determined to be the prevailing party in this case as the net judgment entered following the jury verdict awarded no damages to Hager." Mark DiPaola was awarded economic damages of $6,000 by the jury in his action against Natasha and Gary Schneider. Because the $6,000 damage award was less than a set-off stipulated to by the parties, the final judgment awarded nothing to DiPaola. The trial court determined DiPaola was the prevailing party and was entitled to costs. The appellate court reversed, reasoning as follows:

Section 57.041(1), Florida Statutes (1995), provides: "The party recovering judgment shall recover all his or her legal costs and charges, which shall be included in the judgment[.] Since [DiPaola] received nothing, [Schneiders] were the parties recovering judgment. (Citations omitted.) The trial court erred in awarding costs to [DiPaola] because it was [Schneiders] who were the prevailing parties."

Schneider, at 285. We decline to follow Schneider.

[¶ 9] "Generally, the prevailing party to a suit, for the purpose of determining who is entitled to costs, is the one who successfully prosecutes the action or successfully defends against it, prevailing on the merits of the main issue, in other words, the prevailing party is the one in whose favor the decision or verdict is rendered and the judgment entered." 20 Am.Jur.2d Costs § 12 (1995). "[A] prevailing party plaintiff may recover costs upon a money verdict which is rendered in his favor, even though the ultimate judgment is zero after deductions for settlements." Id. "The determination of who is the prevailing or successful party is based upon success upon the merits, not upon damages, and a party may be the prevailing party although he recovers no award of damages." 20 C.J.S. Costs § 11 (1990).

[¶ 10] In Syverson v. Heitmann, 171 Cal.App.3d 106, 214 Cal.Rptr. 581 (1985), the defendant asserted he received a judgment in his favor for the purpose of awarding costs when the plaintiff's settlement with one tortfeasor completely offset the damages the jury assessed against the nonsettling tortfeasor, thereby reducing the judgment to zero. The court held the plaintiff was entitled to costs, reasoning:

Plaintiff had a legitimate cause of action and he prevailed on it. The jury found defendant liable for plaintiff's injuries. The fact that plaintiff is not entitled to recover damages from defendant is due not to a failure to "make out his case," but solely to the fortuitous fact that the damages assessed by the jury equalled the sums previously received in settlement.

Syverson, at 586.

[¶ 11] The jury found Campbell negligent, his negligence was a proximate cause of Lemer's injuries, and awarded Lemer damages of $3,000. Thus, Lemer "prevail[ed] at least on the issues of negligence and proximate cause," and Campbell had "the potential of legal liability for an alleged wrong," Andrews v. O'Hearn, 387 N.W.2d at 732. Lemer's inability to recover damages from Campbell in accordance with the jury verdict was due "solely to the fortuitous fact that the damages assessed by the jury," Syverson, 214 Cal.Rptr. at 586, were offset by medical expense payments already paid by a no-fault automobile insurer under N.D.C.C. § 26.1-41-08.¹ We conclude Lemer was a prevailing party and the trial court did not abuse its discretion in awarding her costs under N.D.C.C. § 28-26-02 and her disbursements under N.D.C.C. § 28-26-06.

III

[¶ 12] In her cross-appeal, Lemer contends the trial court committed numerous errors during the course of the trial.

A

[¶ 13] Lemer contends the trial court should not "have allowed in the issue of drinking over objection." In his opening statement, Campbell's attorney said, "Lemer lost her driver's licence because of a driving under the influence charge." Lemer objected, and the trial court admonished the jury it "should forget hearing about anything of that nature." The scope and substance of counsels' opening statements and closing arguments lie within the trial court's discretion. Nesseth v. Omlid, 1998 ND 51, ¶ 8, 574 N.W.2d 848. In its preliminary instructions, the trial court instructed the jury "the argument or other remarks of an attorney, except admissions and stipulations noted in the course of the trial, are not to be considered as evidence in this case." "A jury is presumed to follow instructions provided by this court." State v. Osier, 1999 ND 28, ¶ 24, 590 N.W.2d 205, quoting State v. Asbridge, 555 N.W.2d 571, 575 (N.D.1996).

[¶ 14] Later in his opening statement, Campbell's attorney again referred to Lemer's possible drinking. However, Lemer "did not object when these comments were made, nor did she request a curative instruction." Nesseth v. Omlid, 1998 ND 51, ¶ 8, 574 N.W.2d 848. Failure to object waives an improper argument. Id. Campbell's attorney's comment was not so severe as to place "an independent duty upon the court to confine the attorney to the permissible bounds of argument ... and admonish the jury." Id., quoting Andrews v. O'Hearn, 387 N.W.2d at 731. We conclude Lemer's failure to object waived any claim of error.

[¶ 15] Lemer complains in her brief about the following part of the opening statement by Campbell's attorney:

But I think, ladies and gentleman, what I think this case is really all about, and that you're going to see from the evidence, is the case of a lady, Marla Lemer, whose [sic] really never had too much money in her life, and who sees from this accident—who sees from Mr. Campbell in this accident, her chance to

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