This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1248

 

Noel Legendre, et al.,

Appellants,

 

vs.

 

Tim R. Anderson,

Respondent.

 

Filed June 8, 2004

Affirmed

Harten, Judge

 

Lake County District Court

File No. CX-01-408

 

Craig S. Hunter, Hunter Law Firm, 11 East Superior Street, Suite 328, Duluth, MN 55802 (for appellants)

 

Patrick S. Dinneen, Johnson & Morris, LLP, 103 Wells Fargo Bank Building, 36 Shopping Center, Silver Bay, MN 55614 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellants challenge the denial of their motion for a new trial on the basis of respondent’s attorney’s misconduct and a jury verdict that they claim was palpably contrary to the evidence.  Respondent challenges the district court’s imposition of a $500 sanction on respondent’s attorney and the amendment of the judgment to award damages to one appellant.   Because we see no abuse of discretion in any of the challenged decisions, we affirm.

FACTS

Early in 2001, respondent Tim Anderson, a logger, cut trees on land owned by appellants Noel Legendre, Johanna Havanac, and David Bergman.  In March 2001, respondent wrote appellant Legendre checks for $1,000 and for $1,200 to pay for timber taken from Legendre’s property.  Legendre did not negotiate these checks.

In November 2001, appellants brought this action against respondent, alleging that he breached contracts with Legendre and Havanac and trespassed on Bergman’s land. Respondent filed a third-party complaint against David Krithers, Havanac’s husband, alleging that, as an agent of Legendre and Havanac, Krithers gave permission for respondent’s acts.

In late May and early June 2003, the case was tried to a jury.  The district court orally ordered in limine that no reference be made during trial to David Krithers’ 1982 conviction for controlled substance crime.  During cross-examination of a witness, respondent’s attorney referred to appellants as “known drug dealers.”  Appellants moved for a mistrial and asked that respondent’s attorney be held in contempt and required to pay all trial expenses thus far incurred.  The motion for a mistrial was denied.

The unnegotiated checks that respondent had written to Legendre were admitted as trial exhibits.  Respondent testified that the $2,200 he paid Legendre was for the marketable wood he removed from Legendre’s property.

The jury returned a verdict finding that (1) respondent did not breach his contract with Havanac; (2) respondent did not breach his contract with Legendre; (3) respondent did not trespass on the property of Bergman; (4) Krithers held himself out as the agent of Legendre and gave respondent permission to cut on Legendre’s property, which did not directly damage Legendre; and (5) Havanac and Legendre breached their contracts with respondent, respondent was damaged, and $0 would compensate him for that damage.

Appellants moved for a new trial on the grounds that the jury’s verdict was perverse and palpably contrary to the evidence or, alternatively, that they had been prejudiced by respondent’s attorney’s reference to drug dealing; they also sought a finding of contempt on respondent’s attorney.  The district court denied the motion for a new trial and imposed a $500 sanction on respondent’s attorney to be paid as costs to appellants.

After trial, Legendre requested either the unnegotiated checks or copies of them.  Respondent’s attorney refused to provide them, saying that respondent had stopped payment on the checks.  Appellants then moved for an amended judgment ordering respondent to pay $2,200 in damages to Legendre; the district court granted the motion. 

Appellants filed a notice of appeal, arguing that the denial of the motion for a new trial was an abuse of discretion; respondent noticed review, arguing that the $500 sanction and the damage award were abuses of discretion.[1]  

D E C I S I O N

1.         Respondent’s Attorney’s Remark

             [W]hether or not to grant a new trial because of attorney misconduct is not governed by fixed rules, but instead rests wholly within the discretion of the trial court. . . . The trial court judge . . . is present during the trial and is best positioned to determine whether or not an attorney’s misconduct has prejudiced the jury.

 

Johnson v. Washington County, 518 N.W.2d 594, 600-01 (Minn. 1994).  Appellants claim that they are entitled to a new trial because of respondent’s attorney’s misconduct in referring to them as “known drug dealers.”  The district court determined that, “the reference was casual enough, peripheral enough and particularly in the context of all of the evidence involved not anywhere near the level that would support or justify the granting of a new trial . . . .” 

            The record supports the district court’s determination.  The reference occurred when respondent’s attorney was cross-examining the county forester, whom respondent had asked to mark boundaries on appellants’ properties.  The forester had testified on direct examination that he was reluctant to do this because of respondent’s previous conduct.  Respondent’s attorney asked if the reluctance also stemmed from appellants’ background “because these landowners are known drug dealers . . . .”  At that point appellants’ attorney objected and a discussion was held off the record.  The district court then told the jury, “Ladies and Gentlemen, I’m going to instruct you to ignore the last question and the last response.”          

            Appellants claim that “[t]he conduct of [respondent’s attorney] was so outrageous that prejudice should be presumed.”  But this court and the supreme court have affirmed a finding of no prejudice and the denial of a motion for a new trial based on conduct at least equally outrageous.  In Johnson v. Washington County, 506 N.W.2d 632, 639 (Minn. App. 1993), aff’d518 N.W.2d 594, 600-01 (Minn. 1994), the opposing party’s attorney, in closing argument, characterized the moving party’s conduct as despicable, indecent, almost immoral, and bordering on criminal.  Johnson thus presents a fact pattern resembling that of the instant case, where the reference occupied a few seconds of a four-day trial and was a minute fraction of the forester’s testimony, itself only about 5% of the trial transcript.  The jury heard no further mention of the reference.

In denying appellant’s motion for a mistrial, the district court explained, “I gave a brief cautionary instruction.  I’m always uncomfortable with giving too great a cautionary instruction for fear of drawing more attention than should be drawn to it.  But I would certainly consider an additional or some more cautionary instruction if [appellants] would prefer that.”   Appellants did not request any further instruction, and none was given.

            The district court did not abuse its discretion in denying the motion for a new trial based on respondent’s attorney’s remark.[2]

2.         The Verdict

            This court does not set aside a jury’s answers to special verdict questions unless the answers are perverse and palpably contrary to the evidence or unless the evidence is so clear that reasonable people could not differ. Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. 12 Feb. 1993).  If a jury’s special verdict findings can be reconciled on any theory, the verdict will not be disturbed.  Id.

The jury found that (1) respondent neither breached contracts with Havanac nor Legendre nor trespassed on the property of Bergman; (2) Krithers held himself out as Legendre’s agent and gave respondent permission to cut on Legendre’s property, but this did not damage Legendre; and (3) Havanac and Legendre breached their contracts with respondent, but respondent was not entitled to compensation.  In sum, as the district court noted, “[t]he determination of awarding no damages to any party on any theory is internally consistent. . . . [T]he jury was not satisfied that any party had proven or met its burden in proving any of the claims or counterclaims asserted here.”

Appellants do not identify any particular finding that they claim is palpably contrary to the evidence.  Certainly the evidence was not so clear that reasonable people could not differ—the jury heard conflicting evidence as to the location of property lines, the ownership of property, the value of timber, and the parties’ dealings.   But appellants do not deny that the jury heard some evidence to support each of its answers to the special verdict questions.  We see no basis to set aside those answers.

3.         The $500 Sanction

            Levying of civil penalties is within the district court’s discretion.  State by Humphrey v. Alpine Air Prod., Inc., 490 N.W.2d 888, 897 (Minn. App. 1992), aff’d, 500 N.W.2d 788 (Minn. 1993).  The district court required respondent’s attorney to pay $500 as a sanction for his “known drug dealers” reference.   Respondent argues that this was an abuse of discretion and that “[t]he [district] court did not impose the sanction as a consequence for a violation of the order in limine.”  But the district court referred specifically to the order at the hearing:

[The reference] is particularly significant in light of the on the record discussions with respect to [appellants’] motions in limine concerning the use of such evidence by [respondent] and the Court’s rulings in advance on such evidence. 

 

            Even assuming that such issue was relevant, [respondent’s attorney] offered nothing to establish that there was a reasonable basis for making such an assertion, other than one conviction involving one of the principals approximately twenty years ago. 

             

The district court found that, although the remark did not prejudice the jury and did not warrant the remedy of a new trial, it was a violation of the order granting appellants’ motion in limine and did warrant a sanction.  We conclude that the sanction was not an abuse of discretion.

4.         The Damage Award

This court will not disturb a damage award unless the failure to disturb would be shocking or would result in plain injustice.  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986).  A district court’s determination of the amount of an award will be disturbed only for a clear abuse of discretion.  Dallum v. Farmers Union Cent. Exch. Inc., 462 N.W.2d 608, 614 (Minn. App. 1990), review denied (Minn. 14 Jan. 1991). 

Although respondent testified during trial that he owed Legendre $2,200, he cancelled payment on the checks for that amount after trial and refused to provide the copies of checks to Legendre.  At the hearing on appellants’ motion to amend the judgment by awarding Legendre that amount, respondent argued that the jury was aware when it deliberated that the checks from respondent to Legendre had not been deposited, that the jury nevertheless found the obligations between the parties to be nil, and that granting the motion to amend would be impermissibly altering that determination.  But respondent’s attorney conceded that the checks at that time “were still good” and  “were out there.”  The district court found no “reasonable basis to construe the jury’s verdict as a determination that [respondent] was entitled to his $2200 back” and did not “construe any of the answers that the jury made on the basis that they believed the checks were somehow going to be gone or remaining in the records of the Court . . . .”  The record supports the district court’s findings.[3]  There was no abuse of discretion in amending the judgment.

Affirmed.



[1] We note that respondent lacks standing to challenge the sanction on his attorney and that the attorney did not join in the notice of review.  But in the interests of justice and judicial efficiency, we review the sanction.  See Minn. R. Civ. App. P. 103.04 (this court may review any issue as justice requires); Radloff v. First Am. Nat’l Bank of St. Cloud, N.A. 470 N.W.2d 154, 156 (Minn. App. 1991) (allowing attorney’s appeal to be joined with client’s in the interests of efficiency), review denied (Minn. 24 July).

[2] Appellants claim that they are entitled to the costs and attorney fees for a new trial because respondent’s attorney’s remark necessitated that trial.  Our determination that the remark does not entitle appellants to a new trial renders that claim moot.

[3] Respondent also challenges the district court’s observation in dicta that, if he denied the motion to amend, appellants would need to bring another action to recover the $2,200, arguing that such an action would be barred by res judicata or collateral estoppel.  Our conclusion that the district court did not abuse its discretion in awarding Legendre $2,200 in damages renders that issue moot.