Tunender v. Minnaert

• Decision Date: 04 June 1997
• Docket Number: No. 19769,19769
• Parties: Mark TUNENDER, Plaintiff and Appellee, v. Elizabeth MINNAERT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 849

563 N.W.2d 849

1997 SD 62

Mark TUNENDER, Plaintiff and Appellee, v. Elizabeth MINNAERT, Defendant and Appellant.

No. 19769.

Supreme Court of South Dakota.

Argued Feb. 19, 1997.

Decided June 4, 1997.

Thomas M. Issenhuth and Chris S. Giles of Arneson, Issenhuth, Gienapp & Blair Madison, for plaintiff and appellee.

Richard Dale, Sioux Falls, for defendant and appellant.

¶1 Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which holds that the trial court timely ruled on the motion for new trial.

¶2 Justice David Gilbertson delivers the majority opinion of the Court on Issue 2, which holds that the trial court abused its discretion in holding that defense counsel's statement in closing arguments constituted a judicial admission.

¶3 SABERS, Justice, writing the majority on Issue 1, which holds that the trial court timely ruled on the motion for new trial.

¶4 Motion for new trial was granted to plaintiff in automobile accident case after jury awarded him nothing in damages. The jury returned this verdict even after hearing counsel for defendant driver state in closing arguments that plaintiff suffered a soft tissue injury in the accident and deserved $10,000. Defendant claims 1) the trial court lost jurisdiction to rule on the motion for new trial, on the basis that the hearing date was set outside the statutory time limit, and 2) that counsel's statement did not constitute an admission and the grant of a new trial was an abuse of discretion. Issue 1 is affirmed and Issue 2 reversed.

FACTS

¶5 Plaintiff Mark Tunender (Tunender) was stopped in his automobile at an intersection when he was struck from behind by an automobile operated by Defendant Elizabeth Minnaert (Minnaert). Tunender sued, claiming the accident caused injuries requiring back surgery. He sought damages for medical expenses, pain and suffering, and loss of earning capacity. Minnaert admitted liability and the parties went to jury trial to determine damages.

¶6 There was conflicting expert testimony concerning whether Tunender's back condition, known as "spondylolisthesis," ¹ was aggravated by the accident to the extent that surgery was required. The experts also assigned different impairment ratings; however, the evidence showed that Tunender's income actually increased each year since the accident. ²

¶7 During closing arguments to the jury, Minnaert's counsel stated, in part:

[Tunender] simply does not deserve a great deal of damages for a soft tissue injury.

I would submit to you he does, however deserve some compensation and that compensation would be in the amount of $10,000. It was a simple rear end fender bender, and that's all he deserves from this accident.

The jury returned a verdict for Minnaert, awarding no damages to Tunender.

¶8 Tunender timely filed a motion for new trial, which was granted. The trial court reasoned that the jury "did not follow the evidence" because the admissions of a soft tissue injury and entitlement to compensation "almost required the jury to return a verdict for some amount." Minnaert appeals.

STANDARD OF REVIEW

¶9 "[A] motion for a new trial is addressed to the sound discretion of the trial court; we will not overturn the court's ruling unless it appears affirmatively from the record there has been an abuse of discretion." Robbins v. Buntrock, 1996 SD 84, p 16, 550 N.W.2d 422, 427 (citations omitted). Additionally, this court has consistently stated that more deference is given to the trial court's grant of a new trial than to its denial of one:

In conducting our review we must keep in mind that "orders granting new trials stand on firmer ground than orders denying them as they are not conclusive or decisive of any rights or issues. On the contrary they merely 'open the way for a reinvestigation of the ... case upon its facts and merits.' " Jensen v. Miller, 80 S.D. 384, 124 N.W.2d 394, 396 (1963) (quoting Pengilly v. J.I. Case Threshing Mach. Co., 11 N.D. 249, 91 N.W. 63 (1902)). In this connection, "this court views the evidence most favorable to the conclusions reached by the trial court rather than most favorable to the verdict when a new trial is denied." Id. (citations omitted).

Bakker v. Irvine, 519 N.W.2d 41, 45 (S.D.1994) (alterations omitted); see also Delzer v. Penn, 534 N.W.2d 58, 60 (S.D.1995) ("[A] clearer showing of an abuse of discretion is required when a new trial has been granted than where a new trial has been denied."). "If the trial court finds that an injustice has been done by the jury's verdict, the remedy lies in granting a new trial." Simmons v. City of Sioux Falls, 374 N.W.2d 631, 632 (S.D.1985) (citing Mueller v. Mueller, 88 S.D. 446, 221 N.W.2d 39 (1974) (emphasis added)).

¶10 1. WHETHER THE TRIAL COURT TIMELY RULED ON THE PLAINTIFF'S MOTION FOR NEW TRIAL

¶11 A party seeking a new trial must bring a motion in accordance with SDCL 15-6-59(b), which provides:

The motion for a new trial stating the grounds thereof shall be served and filed not later than ten days after the notice of entry of the judgment. ³

The court shall make and file the order granting or denying such new trial within twenty days after the service and filing of such motion, unless for good cause shown, the court files an order within said twenty days extending the time for entering such order. If a motion for new trial has not been determined by the court and no order has been entered by the court extending the time for such ruling within twenty days from the date of service and filing of such motion, it shall be deemed denied.

Minnaert argues the motion was "deemed denied" because the trial court neither ruled on the motion nor entered an order extending the time for such ruling within twenty days from the date of service and filing of such motion. Therefore, she argues, the trial court was without jurisdiction to rule on the motion.

¶12 The relevant dates for this issue are as follows:

June 4, 1996: Notice of entry of judgment is filed.

June 6, 1996: Tunender serves the motion for new trial.

June 7, 1996: Tunender files the motion.

June 11, 1996: Tunender serves notice to Minnaert that the hearing on the motion will be held July 2, 1996. ⁴

June 12, 1996: Minnaert's counsel contacts Tunender's counsel to request a postponement.

June 13, 1996: Tunender serves an amended notice of hearing with the new date of July 16, 1996. This notice is filed June 14, 1996.

July 16, 1996: Hearing on motion for new trial. Motion is granted.

July 17, 1996: Order granting new trial is filed.

The twenty-day requirement set out in SDCL 15-6-59(b) began to run on June 8, 1996, the first day after the motion was both served and filed. ⁵ Therefore, the final day by which the trial court could have ruled on the motion, in the absence of an order extending the time, was June 27, 1996. As noted, the court did not rule until July 16, 1996.

¶13 Minnaert argues that the fact she requested a postponement is of no consequence because even the July 2, 1996 hearing date would have been too late for the trial court to retain jurisdiction to determine the motion. We disagree.

¶14 Tunender promptly secured the first available hearing date and provided notice to opposing counsel. Within the 20 days, Minnaert requested a continuance of the hearing date but did not inform Tunender that she would raise the 20-day time limitation defense. Tunender could reasonably assume that Minnaert was waiving or extending the time for hearing beyond the 20-day statutory period. Tunender did not proceed with a showing of "good cause" to obtain a continuance by the trial court. Under such circumstances, Minnaert should not be allowed to raise this issue when it was to accommodate her that Tunender agreed to the extension.

A party to an action may not make a voluntary decision to proceed in a subsequent inconsistent manner when they find themselves in an undesirable position as a result of a legal posture. "Judicial estoppel bars such gamesmanship."

Estes v. Millea, 464 N.W.2d 616, 619 n 3 (SD 1990) (quoting Gregory v. Solem, 449 N.W.2d 827, 832 n 8 (SD 1989) (other citations omitted)). This view is in accordance with the dictates of SDCL 15-6-1, which states that SDCL chapter 15-6 "shall be construed to secure the just, speedy and inexpensive determination of every action."

¶15 Cases involving claims against the State and its political subdivisions are somewhat analogous. In reference to notice statutes, we have consistently held that defendants have no duty to call to a plaintiff's attention the fact that a time period is running which, if allowed to expire, may result in a nonsuit. However, where a defendant affirmatively creates an objectively reasonable impression in the plaintiff that the plaintiff has fully complied with the notice statute, it cannot later attempt to raise the notice statute as a defense. See, e.g., Erickson v. County of Brookings, 1996 SD 1, p 16, 541 N.W.2d 734, 737; Smith v. Neville, 539 N.W.2d 679, 681-82 (S.D.1995).

¶16 We conclude, based upon these circumstances, that the circuit court's action upon Tunender's motion for new trial was timely. Tunender timely filed his motion for new trial. Both times that he scheduled a hearing date he acted within the statutory time period prescribed in SDCL 15-6-59(b), and the second time he acted at the request of Minnaert when he secured the later date. We hold that the trial court acted within its jurisdiction when it ruled on the motion on July 16, 1996.

¶17 MILLER, C.J., AMUNDSON, KONENKAMP and GILBERTSON, JJ., concur.

¶18 GILBERTSON, Justice, writing the majority opinion on Issue 2, which holds that the trial court abused its discretion in holding that defense counsel's statement in closing arguments constituted a judicial admission.

¶19 2. WHETHER THE STATEMENTS MADE BY MINNAERT'S COUNSEL IN CLOSING ARGUMENT CONSTITUTED A BINDING ADMISSION AS TO WARRANT A NEW TRIAL

¶20 We conclude that the trial court abused its...