Weaver Bros., Ltd. v. Misskelley

• Decision Date: 27 May 1982
• Docket Number: No. 12938,12938
• Citation: 98 Nev. 232,645 P.2d 438
• Parties: WEAVER BROTHERS, LTD., Appellant, v. Les MISSKELLEY, aka Roy Lester Misskelley, dba Les Misskelley Company, Respondent.
• Court: Nevada Supreme Court

Page 438

645 P.2d 438

98 Nev. 232

WEAVER BROTHERS, LTD., Appellant, v. Les MISSKELLEY, aka Roy Lester Misskelley, dba Les

Misskelley Company, Respondent.

No. 12938.

Supreme Court of Nevada.

May 27, 1982.

Wayne S. Chimarusti, Carson City, for appellant.

Maurice J. Sullivan, Reno, for respondent.

OPINION

PER CURIAM:

This action was commenced by appellant Weaver Brothers, Ltd. (Weaver) to recover damages for an alleged breach of a construction contract by respondent Les Misskelley. The jury returned a verdict for Weaver. Misskelley timely moved for a judgment n. o. v. or, in the alternative, for a new trial. The district court denied the motion for judgment n. o. v. but granted a new trial because it believed the jury had disregarded the instructions. This appeal by Weaver challenges that ruling.

Weaver first contends that the district court erred by considering juror affidavits in deciding the motion. We agree. This court has long held that, as a general rule, jurors will not be permitted to impeach their own verdict. ¹ Close v. Flanary, 77 Nev. 87, 113-114, 360 P.2d 259, 273 (1961); So. Nev. M. Co. v. Holmes M. Co., 27 Nev. 107, 145-147, 73 P. 759, 762 (1903); see Kaltenborn v. Bakerink, 80 Nev. 16, 388 P.2d 572 (1964). Other courts have specifically held juror affidavits inadmissible to show that the jurors misunderstood the judge's instructions. Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974); see also Horn v. Sturm, 408 P.2d 541 (Okl.1965); Gardner v. Malone, 60 Wash. 836, 376 P.2d 651, 654 (1962).

Misskelley insists, however, that Weaver waived its objection to consideration of Misskelley's juror affidavit by submitting one of its own. We disagree. Weaver consistently maintained, both in its written authorities and at the hearing below, that consideration of the affidavits was improper. Weaver merely submitted the juror affidavit supporting its position as a means of protecting itself in case the judge considered the affidavit submitted by Misskelley. The district court erred by considering the affidavits, and we decline to consider them in deciding whether a new trial was properly granted.

The main issue presented is whether the district court erred by granting a new trial on the ground that the jury had disregarded its instructions regarding prevention of performance. A new trial may be granted if there has been a "(m)anifest disregard by the jury of the instructions of the court." NRCP 59(a)(5). In determining the propriety of the granting of a new trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the jurors properly applied the instructions of the court, it would have been impossible for them to reach the verdict which they reached. Fox v. Cusick, 91 Nev. 218, 533 P.2d 466 (1975); see also Groomes v. Fox, 96 Nev. 457, 611 P.2d 208 (1980); Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277 (1978); Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969).

The record reveals that Misskelley was supervising contractor in charge of construction of Weaver's manufacturing facility in Carson City. Misskelley had the proper contractor's license, but his bid limit was $50,000-too low to permit him to construct Weaver's building. Thereafter, Misskelley petitioned the Nevada State Board of Contractors for a one-time increase in his bid limit to $1,000,000. The board denied Misskelley's application on August 15, 1978. Subsequently, however, the board indicated its willingness to grant a one-time increase if Weaver filed an acceptable indemnification agreement and financial statement. Weaver filed the indemnification agreement, but neglected to submit a financial statement. As a result, no increase in the bid limit was granted. The evidence indicates, however, that both parties...