Roise v. Kurtz, 980102

Citation587 N.W.2d 573,1998 ND 228
Decision Date23 December 1998
Docket NumberNo. 980102,980102
PartiesCyndi ROISE, Plaintiff and Appellee, v. Greg KURTZ, Defendant and Appellant. Civil
CourtUnited States State Supreme Court of North Dakota

Michael S. McIntee, McIntee Law Firm, Towner, for plaintiff and appellee.

Lee J. Balerud (argued), Minot, and Paul M. Probst (on brief), Minot, for defendant and appellant.

MARING, Justice.

¶1 Greg Kurtz appealed from a judgment awarding damages to Cyndi Roise for injuries she suffered when Kurtz assaulted her. We affirm.

¶2 On April 3, 1996, during a domestic dispute, Kurtz grabbed Roise by the arms and pushed her to the ground. As a result, Roise suffered injuries to her shoulder and neck. She was treated by several medical doctors and a chiropractor.

¶3 Roise sued Kurtz, and the case was tried to the court. The court found Kurtz had assaulted Roise and awarded her $188,154 in damages. The court also allowed prejudgment interest on that amount, resulting in a total judgment of $209,808. Kurtz appealed.

¶4 Kurtz asserts the trial court abused its discretion when it allowed an orthopedic surgeon and a chiropractor who had treated Roise to give opinion testimony. Kurtz asserts these two doctors were listed as fact witnesses, not experts, in Roise's answers to interrogatories, and therefore should not have been allowed to give expert opinions on the cause of Roise's injuries or on her prognosis.

¶5 Kurtz did not raise this objection at trial when the doctors testified. It is well settled an objection which was not made in the trial court cannot be raised for the first time on appeal. See, e.g., Hendrickson v. Hendrickson, 553 N.W.2d 215, 219 (N.D.1996); Biteler's Tower Service, Inc. v. Guderian, 466 N.W.2d 141, 147 (N.D.1991). Kurtz therefore has not preserved this issue for appellate review.

¶6 Kurtz next challenges the sufficiency of the evidence to support the trial court's award of damages. Because this was a bench trial, the appropriate standard of review is whether the trial court's findings of fact on damages are clearly erroneous. See N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. E.g., Wachter Development, L.L.C. v. Gomke, 1998 ND 119, p 9, 579 N.W.2d 209. Upon review of the record in this case, we conclude the trial court's findings of fact on damages are not clearly erroneous.

¶7 We have considered the remaining issues raised and find they are without merit. The dissent, however, suggests an additional issue has been raised and requires reversal. The dissent concludes the trial court abused its discretion under N.D.C.C. § 32-03-05 by awarding prejudgment interest on all future damages and on past non-economic damages. This issue was not raised by the parties in the trial court or on this appeal, and should not be addressed.

¶8 Kurtz raised no issue in the trial court challenging the court's authority to award prejudgment interest. In his appellate brief to this Court, Kurtz asserted that N.D.C.C. § 32-03-04 applied and that no prejudgment interest should have been allowed on any of the damages because the requisites of that statute had not been met. Section 32-03-04 is the wrong statute: it generally governs prejudgment interest in contract cases. See Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 645 (N.D.1976). Prejudgment interest in tort cases is governed by N.D.C.C. § 32-03-05, which gives the fact finder discretion to award interest. See, e.g., Swain v. Harvest States Cooperatives, 469 N.W.2d 571, 574 (N.D.1991); Patch v. Sebelius, 349 N.W.2d 637, 643 (N.D.1984); Vasichek v. Thorsen, 271 N.W.2d 555, 562 (N.D.1978). The parties in this case have never cited N.D.C.C. § 32-03-05, either in the trial court or on appeal. Kurtz has never argued that future damages or non-economic damages provide an inappropriate basis for prejudgment interest under the statute. Nor did Kurtz cite to any of the cases, secondary authorities, or policy arguments relied upon by the dissent to conclude prejudgment interest was inappropriate under N.D.C.C. § 32-03-05.

¶9 We have repeatedly held that we will not consider issues raised by the parties for the first time on appeal. E.g., Messer v. Bender, 1997 ND 103, p 10, 564 N.W.2d 291, cert. denied, --- U.S. ----, 118 S.Ct. 306, 139 L.Ed.2d 236 (1997); In re Estate of Peterson, 1997 ND 48, p 19, 561 N.W.2d 618; Hendrickson, 553 N.W.2d at 219. The rule limiting appeal to issues raised in the trial court is based upon the principle that it is "fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider." Messer, at p 10 (quoting 5 Am.Jur.2d Appellate Review § 690 (1995)). As we noted in Estate of Peterson, at p 19, "[t]he purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop and expound on new strategies or theories."

¶10 For similar reasons, we do not consider issues raised for the first time at oral argument on appeal. E.g., Varriano v. Bang, 541 N.W.2d 707, 713 (N.D.1996); RLI Insurance Co. v. Heling, 520 N.W.2d 849, 854 (N.D.1994). Issues raised on appeal should be fully briefed, with a fair and adequate opportunity for response from opposing parties. See RLI Insurance, 520 N.W.2d at 854.

¶11 If we refuse to consider issues the parties raise too late, it is axiomatic that we should not predicate reversible error upon issues the parties have not raised at all. We have not had the benefit of development of this issue in the trial court through briefing and argument by the parties, or a ruling by the court below. Nor has the issue been briefed on appeal or further evaluated through questioning at oral argument. The rationale for addressing only those issues raised and argued by the parties is particularly strong where, as here, the issue presented is one of first impression and has generated a wide split of authority and competing policy questions among those jurisdictions which have considered it. Compare Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901, 908-09 (Colo.1993), and Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384, 1390-91 (N.J.1987), with Greater Westchester Homeowners Assoc. v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329, 1338 (Cal.1979). Consideration of this issue on this record is inappropriate.

¶12 On the issues raised by the parties, the judgment is affirmed.

¶13 VANDE WALLE, C.J. and NEUMANN, J., concur.

¶14 The Honorable HERBERT L. MESCHKE, a member of the Court when this case was heard, resigned effective October 1, 1998, and did not participate in this decision.

¶15 The Honorable CAROL RONNING KAPSNER was not a member of the Court when this case was heard and did not participate in this decision.

SANDSTROM, Justice, dissenting.

¶16 I agree with the majority opinion, except for the allowance of prejudgment interest for future damages, and for non-economic damages. Neither issue has previously been ruled on by this Court, and the majority rules contrary to the courts which have analyzed similar statutory provisions.

I
A

¶17 The majority refuses to reach the issue of prejudgment interest, because the issue was not raised in the trial court. The majority states, at p 9: "We have repeatedly held that we will not consider issues raised by the parties for the first time on appeal."

¶18 The majority fails to recognize the requirement to first raise an issue in the trial court is a prudential rule, not a jurisdictional requirement. See Yee v. City of Escondido, 503 U.S. 519, 533-38, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). The rule is a general one with recognized exceptions. See State v. Zimmerman, 524 N.W.2d 111, 116 (N.D.1994); Morley v. Morley, 440 N.W.2d 493, 494 (N.D.1989); Brandner by Brandner v. Allstate Ins. Co., 181 Wis.2d 1058, 512 N.W.2d 753 (Wis.1994).

The rule that a reviewing court will address only issues raised in the trial court is not absolute. It is a limitation on the parties to an appeal and not on the reviewing court, and there are numerous situations in which a reviewing court may reach an issue notwithstanding the fact of its being presented for the first time on appeal. Among the most important of these classes of issues are those going to the subject-matter jurisdiction of the court below, or of the reviewing court. In addition, an issue may be treated by an appellate court, although not raised below, where--

--it is one of sufficient public concern.

--it is an issue of judicial administration that seriously affects the fairness, integrity, or reputation of public judicial proceedings.

--it is plainly decisive of the entire controversy on the merits and there was no possible advantage to be had by either party in not obtaining a ruling on it in the trial court.

--it is one of law only.

--it affects the right to maintain the action.

--it involves plain error.

5 Am.Jur.2d Appel. Rev. § 691 (footnotes omitted).

¶19 Here the plaintiff did not request interest in her complaint. She did not seek interest before or during the trial. She did not seek interest in her post-trial brief. There was no mention of interest until the Order for Judgment. Thus, there was no opportunity to raise the issue prior to judgment being ordered.

¶20 The purpose of the rule is judicial efficiency and fairness. An appellate court likes the benefit of the trial court's analysis, and it seems unfair to reverse the trial court in an argument not made to it. This rationale necessarily applies only when there was a reasonable opportunity to raise the issue in the trial court and the complaining party failed to do so. Parties are not barred from bringing on appeal issues they had no reasonable opportunity to raise in the trial court. Such is the case here.

B

¶21 Issue 6 of ...

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