This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-422

 

 

Rocky Ellingson, et al.,

Appellants,

 

vs.

 

John Kratz, individually and John Kratz d/b/a Kratz Builders

Respondent,

 

Andy Lorens d/b/a Andy Lorens Excavating,

Defendant,

 

Scherff, Inc.,

Respondent,

 

and

 

American National Property & Casualty Company,

Intervenor,

 

Bruhn Excavating,

Defendant and Third Party Plaintiff,

 

vs.

 

Kenneth J. LaFond, P.E.,

Third Party Defendant.

 

 

Filed January 15, 2001

Affirmed

Anderson, Judge

 

Ramsey County District Court

File No. C3998358

 

Steven H. Silton, Mansfield, Tanick & Cohen, P.A., 1560 International Centre, 900 Second Avenue South, Minneapolis, MN  55402 (for appellants)

 

Andrew T. Shern, Michelle D. Christensen, Murnane, Conlin, White & Brandt, 444 Cedar Street, Suite 1800, St. Paul, MN  55101 (for respondent Kratz); and

 

Jon K. Iverson, Paul D. Reuvers, Iverson Reuvers, LLC, 230 Townline Plaza, 8585 West 78th Street, Bloomington, MN  55438 (for respondent Scherff)

 

            Considered and decided by Willis, Presiding Judge, Anderson, Judge and Foley, Judge.*

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge.

            Appellants in this property-damage action challenge the district court’s denial of their alternative motions for a judgment notwithstanding the verdict or a new trial, arguing that the damages awarded (1) were inadequate as a matter of law and contrary to the evidence presented at trial; (2) were the product of a compromise verdict; and (3) resulted from the jury’s passion and prejudice caused by viewing the subject property.  We affirm.

F A C T S

 

            In January 1999, appellants Rocky and Maureen Ellingson purchased a single-family house and an adjacent, undeveloped lot for $560,000.  The Ellingsons sold the undeveloped lot to respondent John Kratz for $160,000.  Kratz, a general contractor, intended to build a house on the lot. 

Kratz hired Scherff Excavating Company (Scherff) to excavate the undeveloped lot in preparation for construction.  Scherff removed dirt around the foundation of a carport located on the western edge of appellants’ property.  The outside carport wall, above the exposed foundation, began to subside shortly after excavation began, and the carport was badly damaged.  Appellants’ insurance company, American National Property and Casualty Company (ANPAC), agreed to pay to repair the carport. 

In order to prevent the carport wall from subsiding further, respondent Kratz hired third-party defendant Kenneth LaFond, a geotechnical engineer, to design a retaining-wall system to shore up the earth around the carport’s foundation. Kratz hired third-party plaintiff Bruhn Excavating (Bruhn) to install the retaining wall.  Bruhn installed the wall on August 19, 1999.  Kratz then continued construction on the undeveloped lot.

On September 15, 1999, appellants brought a property-damage suit against Kratz, claiming that the excavation, installation of the retaining wall, and subsequent construction had damaged both appellants’ carport and their house.  Appellants maintained that when the carport began to subside, steel beams connecting the carport to the house began to shift upward, causing serious structural damage to the house’s foundation and interior.  On October 13, 1999, appellants added Scherff and Bruhn as defendants.

In November 1999, repair work began on the damaged carport.  ANPAC paid approximately $106,000 for the carport repairs, but denied appellants’ claim for coverage for any damage to the house.  In March 2000, ANPAC intervened in appellants’ action against Kratz, Scherff, and Bruhn, seeking to recover of the cost of repairing the carport. 

In July 2000, Bruhn brought a third-party action against Kenneth LaFond, who designed the retaining wall.  Bruhn claimed that LaFond was liable for any damage caused by the retaining wall.

A jury trial was held from November 6 to 16, 2000.  By special verdict, the jury found Kratz, Scherff Excavating, and Kenneth LaFond liable for damage to appellants’ house.  The jury awarded appellants $100,000 and intervenor ANPAC $106,000.

On December 20, 2000, appellants moved for a judgment notwithstanding the verdict (JNOV) under Minn. R. Civ. P. 50.02 and a new trial under Minn. R. Civ. P. 59.01 on the issue of damages.  Appellants requested JNOV on the ground that the jury’s $100,000 award was inadequate and contrary to the evidence presented at trial.  Appellants requested a new trial on the grounds that (1) the inadequacy of the damage award was indicative of a compromise verdict and (2) the court’s decision to have the jury view appellants’ house prejudiced the jury. 

On January 10, 2001, the district court denied appellants’ motions.  The court reasoned that the damages award was not sufficiently inadequate or contrary to the evidence to justify JNOV or indicate a compromise verdict.  The court also found that appellants had failed to demonstrate any passion or prejudice resulting from the viewing of appellants’ house by the jury.  This appeal followed.

D E C I S I O N

I.

Appellants challenge the denial of their motion for JNOV, arguing that because their expert provided an “undisputed” $675,000 damages estimate at trial, the district court abused its discretion by finding the jury’s $100,000 verdict adequate.

            When a district court denies a motion for JNOV, “we must affirm if there is any competent evidence reasonably tending to sustain the verdict.”  Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984) (citation omitted). We must take all evidence into account, view it in the light most favorable to the verdict, and not weigh the evidence or judge the credibility of the witnesses.  See Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).

            “We will set aside an answer to a special verdict question only when it is perverse and palpably contrary to the evidence” or “if no reasonable mind could find as did the jury.”  Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984) (citations omitted).  “If the answers to special verdict questions can be reconciled on any theory, the verdict will not be disturbed.”  Id. (citation omitted) (emphasis in original).

            Nor will we interfere with a jury’s damages award “unless [a] failure to do so would be shocking or would result in plain injustice.”  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986) (citation omitted).  At trial, the court instructed the jury that the appropriate measure of damages in this case is

the cost of repair or the difference in the value of the property before the incident occurred and the value after the occurrence, whichever is less.

 

Appellants now claim that their appraiser’s damages estimate is “undisputed” because it is the only estimate to expressly articulate the damages as the difference between the property value before construction and after construction.  Appellants argue that the jury’s verdict, which was less than their expert’s damages estimate, is therefore unsupported by the evidence, warranting JNOV.    We disagree.

At trial, appellants’ expert appraiser testified that the house was worth $950,000 in an undamaged condition and $275,000 in its damaged condition.  Respondents’ expert appraiser testified that the value of the house in August 2000 (the appraisal date) was $575,000, but did not provide estimates of the house’s    damaged and undamaged values for the house.  Appellants claim the jury must disregard respondents’ expert because he did not estimate the damages using before-and-after-construction values. 

But it is for the jury to determine the credibility and weight of expert testimony, and the jury is entitled to disregard the testimony of either side’s experts at the close of evidence and during deliberation.  See Behlke v. Conwed Corp., 474 N.W.2d 351, 357 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).

The opinions of expert witnesses are not binding or conclusive upon a jury but are only items of evidence to be considered along with other evidence in the case.

 

LaValle v. Aqualand Pool Co.,257 N.W.2d 324, 328 (Minn. 1977).

Here, the jury was free to consider any evidence tending to help establish the value of the subject property before and after the alleged damage.  Our review of a denial of JNOV does not include a consideration of how the jury weighed evidence and judged the credibility of the witnesses.  See Lamb, 333 N.W.2d at 855 (Minn. 1983).

Appellants argue that the jury was required to accept and adopt their expert’s damages estimates.  But the supreme court has stated that

a trial court need not adopt the exact figures of any witness in determining * * * damages * * * and as long as its finding is within the mathematical limitations established by the various witnesses and is otherwise reasonably supported by the evidence as a whole, such finding must be sustained. 

 

Carroll v. Pratt, 247 Minn. 198, 202, 76 N.W.2d 693, 697 (1956).

            It is within the province of the jury to weigh conflicting testimony and determine witness credibility.  Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn. App. 1987), review denied (Minn. Dec. 13, 1987).  Moreover, “the assessment of damages is the peculiar province of the jury.”  Schindele v. Ulrich, 268 N.W.2d 547, 552 (Minn. 1978).  Only the jury can know with certainty how it calculated the $100,000 award.  However the calculation was made, the verdict is within the mathematical limitations established by the witnesses and supported by the evidence as a whole.  We affirm the district court’s denial of appellants’ JNOV motion.

II.

            Appellants challenge the district court’s denial of their motion for a new trial, arguing that (1) the inadequate damages award was the result of a compromise verdict; and (2) the inadequate damages award was the result of the jury’s passion and prejudice against appellants provoked by viewing appellants’ house. 

“Unlike a motion for [JNOV,] which raises a purely legal question,” a motion for a new trial presents a factual question, and “the reviewing judge may properly weigh the evidence” to determine the propriety of the district court’s action.  Lamb, 333 N.W.2d at 855.  A new trial may be granted if

[t]he verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.

 

Id. at 855-56 (quotation omitted).  A district court’s refusal to grant a new trial due to inadequate damages is largely discretionary and will not be reversed on appeal unless the ruling was a clear abuse of discretion.  Ramfjord v. Sullivan, 301 Minn. 238, 245, 222 N.W.2d 541, 546 (1974). 

On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict. 

ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

A.  Compromise Verdict

            Appellants argue that the inadequacy of the verdict shows that the jury made a compromise between appellants’ right of recovery and the amount of damages sustained. 

            When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate.  Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).  Compromise awards can occur either where liability is vigorously contested, or

where liability is uncontested and resolved as a matter of law and the critical issue is the causal relation between the defendant’s negligence and the * * * damages claimed.  

Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971).

            “It is the jury’s province to weigh opinion evidence by reference to all other facts and circumstances of the case.”  Peterson v. Bendix Home Sys., Inc.,  318 N.W.2d 50, 56 (Minn. 1982) (citation omitted). The determination of damages is a question of fact for the jury.  See Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 475 (Minn. App. 1999). 

Where expert witnesses offer conflicting opinions, it is “for the jury, as the ultimate trier of fact, to consider their qualifications and determine the weight to be given their opinions.”  Hueper v. Goodrich, 263 N.W.2d 408, 411 (Minn. 1978) (citation omitted).  The fact that the jury gives more weight to the testimony of one side’s witnesses than to that of the other is not a sufficient ground for granting a new trial.  State by Lord v. Pearson, 260 Minn. 477, 492, 110 N.W.2d 206, 216-17 (1961).

The $100,000 award, viewed in the light most favorable to the verdict, is not so inadequate as to indicate that the jury reached a compromise verdict.  Nor is the verdict so contrary to the preponderance of the evidence as to convince us that the district court abused its discretion by denying appellants’ motion for a new trial on this issue.

B.  Jury’s  Viewing of Appellants’ House

            Appellants challenge the denial of their motion for a new trial, arguing that the inadequate damage award was the result of passion and prejudice against appellants arising from the jury viewing appellants’ house.  See Minn. R. Civ. P. 59.01(e) (providing new trial appropriate when inadequate damages attributable to passion and prejudice of jury).  Appellants believe that the “attractiveness” of their “mansion-style dwelling” might have made the jury unwilling to award appellants the “substantial monetary damages” they requested.

A district court

may grant a new trial on damages when a verdict is so inadequate or excessive that it could only have been rendered on account of passion or prejudice. 

 

Seim, 306 N.W.2d at 813.  The district court, which heard the testimony and observed the parties and witnesses, is in a better position than this court to determine whether the damages were awarded under the influence of passion and prejudice, and in the absence of a clear abuse of that discretion its action will not be reversed.  Cf. DeWitt v. Schuhbauer, 287 Minn. 279, 285-86 177 N.W.2d 790, 794-95 (1970).

            Minn. Stat. § 546.12 (2000), provides:

In a civil case when the court deems it proper that the jury should view real property which is the subject of litigation, or the place where a material fact occurred, it may order them to be taken, in a body and in the custody of proper officers, to the place, which shall be shown to them by the judge, or by a person appointed by the court for that purpose; and while the jurors are thus absent, no one other than the judge or person so appointed shall speak to them on any subject connected with the trial.

 

A jury may observe property involved in litigation “not to obtain evidence, but to enable the jury better to understand and apply the evidence submitted in open court.”  Huyink v. Hart Publ’ns, Inc., 212 Minn. 87, 92, 2 N.W.2d 552, 554 (1942) (citations omitted).

            Here, respondent Scherff filed a motion, before trial began, asking the court to authorize a jury viewing of appellants’ property and house.  Appellants opposed the viewing, arguing that

[our] house is a mansion-style dwelling that may influence the Jury in an adverse way given that [we] are seeking substantial monetary damages.  The Jury may not be able to see past the attractiveness of the house and may be prejudiced in their ability to fairly establish a value of the property in its existing damaged condition.

 

The district court granted Scherff’s motion, and the jury viewed the property during the trial under the personal supervision of the district court.

            Viewing the property could reasonably help the jury to better understand the evidence submitted in court by providing a context in which to understand the evidence.  There is not a shred of evidence anywhere in the record that the “opulence” of appellants’ house had anything to do with the verdict.

Appellants have offered no evidence that any passion or prejudice resulted from the viewing.  The district court correctly denied appellants’ motion for a new trial based on inadequate damages arising from the jury’s passion and prejudice.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.