Nesseth v. Omlid

• Decision Date: 05 March 1998
• Docket Number: No. 970099,970099
• Citation: 574 N.W.2d 848
• Parties: Julie A. NESSETH, formerly known as Julie A. Powers, Plaintiff and Appellant, v. Magdalene OMLID, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 848

574 N.W.2d 848

1998 ND 51

Julie A. NESSETH, formerly known as Julie A. Powers Plaintiff and Appellant, v. Magdalene OMLID, Defendant and Appellee.

Civil No. 970099.

Supreme Court of North Dakota.

March 5, 1998.

German, Neil & Hasbrouck, Ltd., East Grand Forks, MN, for plaintiff and appellant; argued by Sean Novak, Third Year Law Student. Appearance by Raymond J. German.

Pearson, Christensen, Larivee, Clapp, Fiedler, Fischer & Jensen, Grand Forks, for defendant and appellee; argued by Jay H. Fiedler.

MESCHKE, Justice.

¶1 Julie Nesseth appealed the judgment and the denial of her motion for a new trial after a jury awarded only medical expenses of $5,243.80 for her injuries in an automobile collision. We affirm.

¶2 On September 20, 1988, Julie, driving a borrowed auto, stopped at a University Avenue intersection in Grand Forks. She was hit from behind by Magdalene Omlid's auto. The impact pushed Julie's auto into the one ahead of her, sending that driver to the hospital. After speaking to police at the scene, Julie left to attend her cousin's funeral. At the funeral, she fainted and was taken to the hospital emergency room, where x-rays of her knees and neck were taken. Julie was given anti-inflammatory medicine and sent home.

¶3 After the collision, Julie frequently complained of pain in her neck and knees, and she sought treatment from numerous doctors and chiropractors. In 1993, a doctor performed arthroscopic surgery on her knee. Five years after the collision, Julie sued Magdalene for her injuries caused by Magdalene's negligence.

¶4 Because Magdalene admitted negligence before the trial, the only issues for the jury were proximate cause and damages. The jury found Magdalene's negligence proximately caused Julie's injuries and awarded Julie $5,243.80 for medical expenses, but nothing for pain and discomfort, loss of productive time, permanent disability, or future damages. Under NDCC ch. 26.1-41, North Dakota's Auto Reparations Act, the court off-set the verdict by no-fault payments paid to or payable to Julie. See NDCC 26.1-41-08(1)(b). This left Julie without any recovery. Additionally, as authorized by N.D.R.Civ.P. 68(a), because Magdalene had made, and Julie had not accepted a formal offer of settlement for $40,000, the court entered a judgment against Julie and for Magdalene for costs of $13,132.05.

¶5 Julie moved for a new trial, alleging irregularities in the trial and insufficiency of the evidence for the verdict. See N.D.R.Civ.P. 59(b)(1) and (6). The trial court denied the motion for a new trial, concluding comments by the defendant's attorney had not affected Julie's right to a fair trial, and the verdict was supported with substantial evidence. Julie appealed.

¶6 Julie argues the trial court erred in denying her motion for a new trial. "We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard." Blessum v. Shelver, 1997 ND 152, p 20, 567 N.W.2d 844 (citing Ebach v. Ralston, 510 N.W.2d 604, 611 (N.D.1994)). A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably. First Nat. Bank & Trust v. Brakken, 468 N.W.2d 633, 636 (N.D.1991). We are not convinced the trial court abused its discretion in this case.

¶7 Julie contends the denial of a new trial was erroneous because Magdalene's attorney made many improper remarks, particularly characterizing this case as "only being about money and nothing else." She also contends Magdalene's attorney made improper comments about her, implying that she was "dishonest and motivated by money." Julie also claims Magdalene's attorney insinuated that Magdalene did not have insurance and would have to pay any damages awarded personally. Julie argues these improper statements were prejudicial and justify a new trial.

¶8 Julie, however, did not object when these comments were made, nor did she request a curative instruction. "In general, counsel must make a timely objection to an improper argument and must ask the trial court to give a curative instruction to the jury. Failure to object waives the improper argument." Blessum, 1997 ND 152, p 30, 567 N.W.2d 844 (citations omitted). The only exception to this rule "is when the misconduct of counsel is so severe that it affects that party's substantial rights or constitutes a denial of a fair trial, thereby placing an independent duty upon the court to confine the attorney to the permissible bounds of argument, where necessary, and admonish the jury." Andrews v. O'Hearn, 387 N.W.2d 716, 731 (N.D.1986). Here, Julie neglected to object to the comments she now complains about. Nor was the severity of the comments made so great as to cause the trial court to step in on its own. As we stated in Andrews, 387 N.W.2d at 731 (quoting State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985)):

[T]he scope and substance of the opening and closing arguments of counsel are under the control and discretion of the trial court, and this exercise of discretion will not be reversed by this court on the ground that an argument to the jury was prejudicial unless a clear abuse of discretion is shown.

We conclude the trial court did not abuse its discretion by concluding these comments did not require independent court intervention. Therefore, Julie's failure to object forfeited any claim of error in the improper arguments.

¶9 In Blessum, 1997 ND 152, p 33, 567 N.W.2d 844 we affirmed the denial of a new trial although Blessum's attorney had made numerous improper comments. We explained:

Although arguments of Blessum's attorney were improper, they were not so serious as to deprive Shelver of a fair trial when there was no objection that would have given the trial court an opportunity to take corrective action. In assessing prejudice, we consider the analysis of the trial court because it was in a better position to weigh the impact of the misconduct.

Id. Here, the trial court thoroughly and thoughtfully explained its conclusion that the allegedly improper comments did not prejudice Julie:

By implying [Julie's] motives were less than honorable in seeking money damages, [Magdalene] was certainly within the bounds of proper procedure, notwithstanding that the comments border on argument rather than a mere statement of the evidence. The fact of where [Julie] lives, the salary she made following the accident, that she filed bankruptcy and had been involved in at least one other lawsuit, are all facts relevant to past and present loss of productive time under the damages section on the special verdict form. Again, the statements appear somewhat argumentative but not so severe as to deprive [Julie] of a fair trial.

... Lastly, the comments regarding [Magdalene]'s age and health appear to the court that they were made to invoke sympathy, and with knowledge that [Magdalene] would not be testifying. However, in light of the fact that she would be absent during the trial, possibly giving the jury cause to believe that [Magdalene] did not care about the outcome of the case, such comments are not totally inappropriate. These comments simply do not rise to the level of unfairness as to deprive [Julie] of a fair trial or of any substantial right. [Julie] waived her right to new trial and appeal in regard to those comments when she failed to make a timely objection and ask this Court to admonish the jury accordingly.

[Julie] alleges that [Magdalene] made 35 inappropriate comments during voir dire. As with the opening statement, [Julie] now objects to [Magdalene's] questions about "salesmanship", "greed", "exaggeration" "striking it rich", "winning the lottery", and "excessive and runaway verdicts". Of course, counsel for a party in a negligence action must ask the jury some questions in order to discover any preformed ideas regarding excessive verdicts and to adduce opinions about credibility assessments which the jury must make. As during the opening statements, [Julie] failed to object or ask for any ruling as to [Magdalene]'s questions to the jury. This Court cannot agree that the questions were so outrageous as to have affected [Julie]'s substantial rights nor to have denied a fair trial....

¶10 Julie also argues, although she did not object or request a curative instruction at trial, she was prejudiced by the following statement of Magdalene's attorney, made during opening statements:

We are here on very serious business because we are here to determine how much money an elderly woman is going to be required to pay Julie Nesseth as a result of a--what can only be referred to as a minor collision that occurred eight years ago.

Julie asserts "[s]uch a statement clearly implies that [Magdalene], and not an insurance company, would have to pay for [Julie]'s injuries." Equating this statement with the one discussed in Priel v. R.E.D., Inc., 392 N.W.2d 65, 67 (N.D.1986), Julie claims the trial court erred by not granting her motion for a new trial.

¶11 In Priel, however, a new trial was granted only after the defendant's attorney stated "[w]e are talking about money that my client will have to pay out of his own pocket." Id. (our emphasis). In contrast, the statement here does not directly imply that Magdalene was not insured but, in the words of the trial court, "constitute[d] a fair description of the issues before the jury...." We agree the comments made, while borderline, did not have a significant prejudicial effect on the trial. Therefore, we conclude the trial court did not err in denying Julie's motion for a new trial for improper arguments and comments by defendant's attorney.

¶12 Julie contends the jury's verdict was "perverse, insufficient in light of the evidence, and irreconcilable" because the jury failed to award her "adequate damages despite evidence presented documenting expenses ... incurred as a result of the collision." As we explained in Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982), a trial court has discretion to grant a new trial if, in...