This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








Todd Miller,





Charles Tobin Roberts, et al.,




Filed July 18, 2000


Lansing, Judge


Hennepin County District Court

File No. 9712689



John M. Steele, John M. Steele, P.A., 418 Groveland Avenue, Minneapolis, MN 55403 (for appellant)


William M. Hart, Kenneth W. Dodge, Jennifer E. Ampulski, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a final judgment entered following an order denying his motion for judgment notwithstanding the verdict (JNOV) or a new trial, Todd Miller challenges the sufficiency of the evidence to support the verdict, the district court’s evidentiary rulings and jury instructions, and the jury’s damage award.  Because a thorough review of the record discloses no error, we affirm.


            Todd Miller brought this personal-injury action to recover for injuries he sustained when he was struck by a sanitation truck driven by Charles Roberts and owned by Aagard Sanitation, Inc.  Following a three-week trial, the jury returned a special verdict finding Miller’s conduct to be the sole cause of the accident.  The district court entered an order for judgment and later filed an amended order modifying the amount of the judgment.  Miller then filed a timely alternative motion for JNOV or a new trial.

            By agreement of the parties, Miller scheduled the motion hearing for August 19, 1999, more than 30 days after Roberts served notice of the court’s amended order for judgement.  But Miller failed to request or obtain an order from the district court extending for good cause the time to hear his motion.  The hearing proceeded as originally scheduled, without objection. 

            The district court denied Miller’s alternative motion for JNOV or a new trial, and Miller appeals, raising six issues.  Miller contends the district court erred by (1) concluding that the evidence reasonably supports the jury verdict, (2) denying Miller a new trial on grounds of surprise, (3) denying two of Miller’s jury-instruction requests, (4) denying a new trial on grounds of bias and prejudice, (5) failing to allow impeachment through admission of interrogatory answers, and (6) refusing to reduce the jury’s damages verdict.


            We initially consider Roberts’s claim that, because Miller failed to obtain an order from the district court extending the time to hear his post-trial motion, the district court lacked jurisdiction to hear the motion.

            Minn. R. Civ. P. 59.03 governs the time for service and hearing of a new-trial motion.  The rule requires a moving party to serve and file the notice of motion within 15 days after notice of filing of the trial court’s order.  It also requires a moving party to schedule a hearing within 30 days of the filing notice, unless it obtains a court order showing good cause why the motion cannot be heard within the limitation period.  Minn. R. Civ. P. 59.03.   

The 15-day time limit for service and filing of a new-trial motion is jurisdictional, and Minnesota courts have “uniformly treated [it] as absolute.”  Bowman v. Pamida, Inc., 261 N.W.2d 594, 597 (Minn. 1977) (footnote omitted); see also Rieman v. Joubert, 376 N.W.2d 681, 684 (Minn. 1985) (noting failure to meet time limit of rule deprived court of jurisdiction); Differt v. Rendahl, 306 N.W.2d 813, 814 n.1 (Minn. 1981) (same).  The 30-day hearing-date requirement, on the other hand, is not jurisdictional and may be extended by the court for good cause.  See American Standard Ins. Co. v. Le, 551 N.W.2d 923, 925-26 (Minn. 1996) (reversing dismissal of posttrial motions when motions originally scheduled within 30-day time period but rescheduled by court administrator, without parties’ or court’s knowledge, to date beyond 30-day time limit); cf. U.S. Leasing Corp. v. Biba Info. Processing Servs., 489 N.W.2d 231, 232 (Minn. 1992) (holding new-trial motion was untimely when motion hearing not originally scheduled within limitation period, extension not requested, and court itself not involved in scheduling until limitation period expired).

Roberts claims that Miller’s failure to obtain a court order extending the time of the hearing deprived the court of subject-matter jurisdiction.  Accordingly, he argues, the scope of this court’s review is limited to whether the evidence reasonably supports the jury’s verdict.  But, with one exception, both the supreme court and this court have consistently treated a party’s failure to comply with the hearing-date requirement as affecting the motion’s timeliness,rather thanthe court’s jurisdiction to hear the motion.  See U.S. Leasing Corp., 489 N.W.2d at 232 (holding failure to comply with 30-day requirement rendered new-trial motion untimely); In re Estate of Hore, 220 Minn. 365, 367-68, 19 N.W.2d 778, 780 (1945) (stating the court’s jurisdiction continues after 30-day limitation period where opposing party consents to late hearing); Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 628 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994) (holding opposing party waived objection to timeliness of hearing by failing to object); Texas Commerce Bank v. Olson, 416 N.W.2d 456, 462 (Minn. App. 1987) (recognizing supreme court has not held 30-day time limit jurisdictional); but see Celis v. State Farm Mut. Auto. Ins. Co., 580 N.W.2d 64, 66 (Minn. App. 1998) (“[R]ule 59.03 clearly requires that a new trial motion be scheduled for hearing within 30 days *  *  *.  Because [plaintiff] failed to do so, the trial court thereafter lacked jurisdiction to hear [the] motion.”).  Under established Minnesota law, Miller’s procedural failure does not therefore divest the court of subject-matter jurisdiction.

The district court’s subject-matter jurisdiction was not affected by the failure to obtain the order, and Roberts waived any objection he may have had to the hearing’s timeliness by agreeing to a late hearing date and by participating in the hearing without objection.  Hore, 220 Minn. at 367-68, 19 N.W.2d at 780 (holding opposing party waived limitation on hearing of new-trial motion by failing to object to untimely hearing); Imperial Developers, Inc., 518 N.W.2d at 628 (same); Texas Commerce Bank, 416 N.W.2d at 462 (holding creditor waived objection to timeliness of hearing by stating that late hearing date was convenient and by failing to object).  Therefore, the scope of this court’s review is not limited.


            Miller first claims the evidence does not reasonably support the jury’s finding that his conduct was the sole cause of the accident.  We disagree.

            On review, this court will not set aside special-verdict answers unless they are “palpably contrary to the evidence.”  Cobb v. Aetna Life Ins. Co., 274 N.W.2d 911, 917 (Minn. 1979) (citation omitted).  Special-verdict answers are palpably contrary to the evidence when they cannot be reconciled with it on any theory.  See Hanks v. Hubbard Broad. Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  In reviewing special-verdict answers, the court must view the evidence in the light most favorable to the verdict.  Id.  The court must affirm the verdict if the record contains sufficient competent evidence reasonably tending to support the jury’s findings.  Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 204, 203 N.W.2d 841, 844 (1973).  The record in this case contains ample evidence reasonably tending to support the jury’s finding that Miller’s conduct was the sole cause of the accident.

            First, the record supports a finding that Miller was outside the crosswalk at impact.  The evidence shows that Roberts struck Miller while attempting to turn left onto Lake Street from southbound Hennepin Avenue.  Roberts testified that, as he approached the intersection, the traffic signal displayed a green arrow for left-turning vehicles.  Roberts stated that he slowed down to 10 miles per hour before turning and made the turn “without cutting the corner of the intersection.”  As he completed his turn, he saw Miller for the first time, 10 to 12 feet outside the crosswalk, directly in front of the truck, facing south.  Roberts applied the brakes immediately.

The physical evidence, viewed in light of the testimony, confirms Roberts’s testimony that Miller was outside the crosswalk.  Skid marks on the pavement and photographs of the accident scene show that the truck came to a stop with its front wheels 10 to 12 feet east of the crosswalk.  Two additional witnesses who observed the accident testified that the truck stopped on impact.  The jury could thus reasonably have concluded that Miller was outside the crosswalk at impact.

The jury could have reached the same conclusion based on the testimony of the parties’ accident reconstructionists.  Using the length of the skid marks and the calculation by Miller’s reconstructionist that Roberts was traveling at a speed of 12 miles per hour at impact, Roberts’s reconstructionist estimated that Miller had to be at least three feet off the crosswalk at impact.  That reconstructionist estimated that if the truck’s speed was slower than the 12 miles per hour that the other reconstructionist calculated, Miller would have been even further east off the crosswalk.  The jury could have accepted the testimony by Roberts’s reconstructionist and concluded that Miller was outside the crosswalk at impact.

Even if the jury evidence showed that Miller was in the crosswalk, the jury could reasonably have concluded that Miller negligently started to cross the roadway when the “DON’T WALK” sign was illuminated or flashing.  One of the witnesses testified that, as she ran to help Miller after the impact, she had to dodge eastbound Lake-Street traffic. Evidence on the traffic lights’ timing sequence showed that when vehicles traveling south on Hennepin Avenue have a green light or a green or amber arrow, pedestrians crossing Lake Street have a steady “DON’T WALK” signal.  The green arrow shows for 9.8 seconds, the amber arrow shows for 3.5 seconds, and the green light shows for an additional 2.1 seconds.  Pedestrians crossing Lake Street thus have either a steady or a flashing “DON”T WALK” signal for a total of 15.4 seconds.  Accordingly, the jury could have concluded that if the witness had to dodge eastbound traffic when she ran to help Miller, Miller started to cross Lake Street with either a steady or a flashing “DON’T WALK” signal.  The jury could have reached the same conclusion if it believed Roberts’s testimony that the green left-turn arrow with which he started the turn turned to amber as he concluded the turn. 

Alternatively, Roberts’s testimony that he did not see Miller until Miller was in front of the truck and that Miller was outside the crosswalk at impact, supports a finding that Miller failed to keep a reasonable lookout for vehicles on the roadway and to yield the right of way. 

The jury’s special-verdict answers are consistent with the evidence viewed in the light most favorable to the verdict and can be easily reconciled with the theory that Miller negligently attempted to cross the roadway outside the crosswalk when the “DON”T WALK” sign was illuminated or flashing.  The jury’s special-verdict answers are not contrary to the evidence.


Miller next claims the trial court abused its discretion in admitting surprise color photographs of the accident scene and the accompanying testimony of Elkin and the Aagard employee who allegedly took the photographs.  Miller admits that he received black-and-white photocopies of the photographs during discovery.  He claims, however, that despite comprehensive discovery requests, he did not receive actual copies of the photographs or Miller’s reconstructionist’s report until four days after the trial had started.  The photographs were critical to the outcome of the trial because they show the truck 10 to 12 feet east of the crosswalk at the point of impact.

Whether to grant a new trial for surprise is largely within the district court’s broad discretion.  Nachtsheim v. Wartnick, 411 N.W.2d 882, 889 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  Surprise is grounds for a new trial only when there is a “strong probability that a new trial would result differently.”  In re Welfare of D.L., 486 N.W.2d 375, 381-82 (Minn. 1992) (citation omitted).  Although the exclusion of evidence is justified “where counsel’s dereliction is inexcusable and results in disadvantage to his opponent,” a continuance is the preferred method for dealing with surprise evidence where the failure to disclose is inadvertent.  Krech v. Erdman, 305 Minn. 215, 218, 233 N.W.2d 555, 557 (1975) (holding defendant not prejudiced by plaintiff’s failure to disclose identity of medical expert until day before trial, where defendant did not seek continuance upon learning expert would testify).  A party waives any claim of surprise if it fails to request a continuance.  Nachtsheim, 411 N.W.2d 889.

The district court did not abuse its discretion in refusing to grant Miller a new trial on grounds of surprise.  Miller waived any claim of surprise by failing to seek a continuance.  We further note that the record does not support a claim that the failure to disclose was inexcusable and prejudicial.  Roberts did not learn that the negatives to the black-and-white photographs were available until after the discovery cut-off, when he allowed Miller to depose Aagard’s general manager.  Roberts provided copies of the newly developed photographs and of Elkin’s report immediately after obtaining them.  A short continuance would have allowed Miller ample opportunity to review the new evidence and to prepare a response.  Most important, because the photographs show the truck outside the crosswalk at impact, it is highly unlikely that a new trial would have a different outcome.  The district court did not abuse its discretion in rejecting Miller’s claim of surprise as a basis for a new trial.


Miller next argues the district court erred in instructing the jury.  District courts have broad latitude in selecting the language of jury instructions so long as the entire charge fairly and adequately states the applicable law.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986); Gopher Oil Co. v. American Hardware Mut. Ins. Co., 588 N.W.2d 756, 765 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999).  Appellate courts will not reverse a district court’s decision unless the court abused its discretion.  Id.  A new trial is warranted only when the jury instructions, considered as a whole, do not fairly and correctly state the applicable law, cause a miscarriage of justice, or result in substantial prejudice.  H Window Co. v. Cascade Wood Prods., Inc., 596 N.W.2d 271, 277 (Minn. App. 1999), review denied  (Minn. Aug. 17, 1999). 

Miller first claims the district court abused its discretion in failing to read Minn. Stat. § 169.783 (1998) to the jury.  District courts should read applicable statutes to the jury when the record contains evidence to support a claim based on a particular statute. Davis v. Liesenfeld, 308 Minn. 1, 5, 240 N.W.2d 548, 550 (1976) (when there is evidence to support jury finding on statutory theory, “the better practice is to include the statute in the jury instructions”); Campion v. Knutson, 307 Minn. 263, 268, 239 N.W.2d 248, 251 (1976).  Minn. Stat. § 169.783 makes it a misdemeanor for a person to drive a commercial vehicle that has been involved in an accident before the vehicle has undergone a postcrash inspection.  Miller claims the district court should have included the statute in its charge because the state patrol’s failure to conduct a postcrash investigation “was an admission against interest as to the condition of the brakes.”  But Roberts justifiably asks, “[A]n admission against whose interest?”

Even if Roberts’s admission-against-interest argument had merit, the evidence is insufficient to support a jury finding that the brakes were defective and does not, therefore, justify the giving of the instruction.  Nothing in the record suggests that the brakes were defective.  Absent such evidence, the district court did not abuse its discretion in not reading the requested statutory provision to the jury.  See Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 367 (Minn. 1979) (stating party is entitled to instruction on theory of case if record contains evidence to support instruction and instruction reflects applicable law); H Window Co., 596 N.W.2d at 277 (concluding evidence did not support requested instruction).

Miller also claims that the court improperly failed to instruct the jury specifically that “a pedestrian has the right to assume that motorists coming from the rear will give warning and  *  *  * no duty to look for vehicles approaching from the rear.”  But the district court’s instructions fairly and accurately stated the applicable law of negligence and the common-law duties of drivers and pedestrians, even if the truck came from the rear.  A more specific instruction was thus unnecessary to enable the jury intelligently to determine the questions before it. See Sandhofer, 283 N.W.2d at 367 (stating preference for “general charges * * * to avoid overemphasis of one side of the case and jury confusion”).


Miller next argues the district court’s demeanor toward him and his witnesses exhibited bias and prejudice against his case and warrants a new trial.  We disagree.

A party is entitled to a new trial when the district judge makes improper, sarcastic, or derogatory comments to counsel or the witnesses within the jury’s hearing.  Block v. Target Stores, Inc., 458 N.W.2d 705, 712-13 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  But a party waives the bias issue on appeal when he or she fails to object to the judge’s alleged misconduct when it occurs and fails to request a curative instruction.  Nugent v. Kerr, 543 N.W.2d 688, 692 (Minn. App. 1996); see also Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986) (stating to preserve issues for review, party must make timely objections and move for new trial).

Miller did not object to the district court’s conduct or request a curative instruction during trial.  He therefore waived the bias issue on appeal.  Even if he had objected, he has not specifically identified the allegedly biased conduct.  Instead, he argues generally that the district court exhibited bias by sustaining Roberts’s objections, rolling his eyes, talking on the phone, and sleeping on the bench.  Appellate review of his bias claim is thus virtually impossible.

The only specific instance of bias Miller alleges is based on the district judge’s instruction to a witness to refrain from making faces in front of the jury.  Given that the court properly instructed the jury that they were the sole judges of whether a witness was to be believed and of the weight to be given to the witnesses’ testimony, the court’s request that the witness not make faces does not justify a new trial.


Miller also claims that the district court abused its discretion in admitting or excluding evidence at trial.  But, with one exception, he fails to support his assertion with argument or authorities.  Instead, he refers this court to his “statement of facts[,] where some of [the court’s evidentiary errors] are set out.”  An “assignment of error based on mere assertion and not supported by any arguments or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).  Because prejudicial error is not obvious on inspection, we are unable  to consider Miller’s claim.

Miller does, however, provide argument and authority for his claim that the district court “protected [Roberts] from impeachment” by failing to admit interrogatory questions into evidence.  But because he did not object at trial, he waived that issue on appeal.  See Thiele v. Stich¸ 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts will not address issues and theories not raised to or decided by the trial court).


Last, Miller challenges the jury’s damage award on grounds of prejudice. Because Miller is not entitled to recover damages under the jury’s special verdict, we do not address this claim.  We further note that because our decision is based only on the evidence contained in the record, we need not consider Roberts’ motion to strike portions of Miller’s brief and appendix on grounds that they pertain to matters outside the record.