This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Hyland Courts Town Home
Owners Association, et al.,
BEI Exterior Maintenance Corporation,
defendant and third party plaintiff,
William Cole d/b/a Cole Roofing,
third party defendant,
Filed July 3, 2006
Hennepin County District Court
File No. CT 02-16726
Lars C. Erickson, John P. Brendel, Maureen A. Hill, Brendel and Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, Minnesota 55042; and
Michael B. Padden, Padden &
Deborah C. Eckland, Kenneth J. Mayer, Goetz & Eckland, P.A., Exposition Hall at Riverplace, 43 Main Street Southeast, Suite 400, Minneapolis, Minnesota 55414 (for respondent BEI)
G. John Veith, Kris Huether, Brown & Carlson, P.A., 5411 Circle Down Avenue, Suite 100, Minneapolis, Minnesota 55416-1311 (for respondent Cole Roofing)
Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from denial of posttrial motions and judgment in an action for damages for the negligent reroofing of town-homes, appellants argue that (a) the jury’s findings on negligence are inconsistent as a matter of law, requiring a new trial; (b) counsel improperly appealed to the prejudice and passions of the jury in closing arguments, requiring a new trial; and (c) the Hyland Courts Town Home Owners Association is entitled to JNOV on the issue of whether the Hyland Courts board orally modified the contract between Hyland Courts and the contractor. We conclude that the district court did not err in changing the jury’s special-verdict answer when the evidence established, as a matter of law, that the negligence of the home-owners’ association board was a direct cause of their damages. We further conclude that the district court (a) did not abuse its discretion in denying a new-trial motion when any improper statement by BEI’s attorney in closing argument did not prejudice appellants and (b) did not err in denying JNOV on the authority of the home-owners’ association board president to bind the board when the jury was never asked to determine this issue. We affirm.
Hyland Court Town Homes consists of 190 units of side-by-side, wood-frame town homes
In the mid-1990s, some home owners reported problems with water leakage and ice buildup on the town-home roofs. In May 1998, a powerful hailstorm caused significant damage to the roofs and siding of many units.
individual owners had been previously responsible for the exterior maintenance
of their units, the hailstorm created the need for coordination of large-scale
repairs. Jayne Jensen, president of the home-owners’
association board, signed a contract with respondent BEI Exterior Maintenance
Corporation, a roofing contractor, on June 26, 1998, to perform the roof repairs. The contract specified, in part, that BEI
would remove all layers of shingles from the roofs and replace any wet, rotted,
or delaminated roof sheathing. Two
months later, Jensen signed a written addendum to the contract, specifying that
BEI would inspect the roof deck and replace roof sheeting at a specified hourly
rate over the contract amount, with other carpentry done on a
time-and-materials basis. BEI in turn
hired respondent William Cole, d/b/a Cole Roofing, a subcontractor from the
The record reflects that when work on the roofs began, BEI discovered that the edge of the existing roofs had a layer of ice-and-water shield, a relatively new product in the industry. The old shingles had melted into the ice-and-water shield, which was stuck to the plywood roof decking, so that it was necessary to remove the old plywood to remove the old shingles. BEI representatives attended home-owners’ association meetings in August 1998 to explain the reroofing process, including removal of the ice-and-water shield. BEI then removed the plywood on some roofs and submitted the bills to the home-owners’ association as an add-on to the contract.
record reflects that some home owners became concerned about the cost of replacing
the plywood, which was not covered by the property-insurance storm settlement. One home owner contacted housing inspectors
from the City of
and Cole completed the roofing work in the fall of 1998. Some home owners reported leakage problems in
1999, and during the winter of 2000–01, about 95 town-home units suffered
damages caused by ice dams. Appellant
AAMCO Insurance Company,
AAMCO sued BEI, seeking reimbursement of those claims. Hyland Courts joined the lawsuit under its policy with AAMCO, asserting BEI’s alleged breach of contract, negligence, and fraud. BEI impleaded Cole, seeking indemnity or contribution for any damages for which it would be held liable.
During the long jury trial, the jury heard testimony on alleged design flaws in the original town-home roofs, ice-dam problems occurring both before and after BEI and Cole’s roofing work, the quality of ice-and-water shield installation by BEI and Cole, and the home-owners’ alleged failure to install appropriate insulation and ventilation. At closing argument, BEI’s counsel referred to BEI as a “small company” and indicated that an adverse verdict would have serious financial repercussions on the company.
After four days of deliberation, the jury returned a verdict for BEI and Cole. The jury found, responding to special-verdict questions, that the negligence of the home-owners’ association board was not a direct cause of damages sustained regarding the roofing work to be performed by BEI. But the jury apportioned 30% negligence to the home-owners’ association board. The district court issued findings of fact, conclusions of law, and an order for judgment incorporating the special-verdict form and dismissing the action. Appellants moved for a new trial, alleging that the verdict was irreconcilable and that defense counsel had made prejudicial remarks in closing argument, and for JNOV, challenging the jury’s finding that the contract had been orally modified by the board. The district court denied both motions and found, as a matter of law, that the answer to the special-verdict question on the board’s causation of damages regarding roofing work should be changed from “no” to “yes.” This appeal follows.
D E C I S I O N
jury’s answers to special interrogatories are binding on the court. Majerus
v. Guelsow, 262
In Orwick, the Minnesota Supreme Court upheld the district court’s revision of the jury’s response to a special-verdict question on causation to conform to the jury’s apportionment of a percentage negligence to the plaintiff, when the jury was asked to apportion negligence based on all of the negligence that contributed to cause the accident. Id. at 342–43, 231 N.W.2d at 93–94; see also Unterburger v. Snow Co., 630 F.2d 599, 605 (8th Cir. 1980) (holding that district court did not err, based on record and jury’s apportionment of ten percent negligence toplaintiff, in revising jury’s response to special-verdict question to indicate affirmative response to question of whether plaintiff’s negligence was a direct cause of his accident).
As in Orwick and Unterburger, the jury assigned a percent negligence to a plaintiff without a finding of causation. The jury answered in the negative the special-verdict question, “Was plaintiff Hyland Courts’ Association Board’s negligence in making decisions regarding the roofing work to be performed by BEI a direct cause of their damages?” But when asked to assign a percentage of fault for “all of the negligence that contributed as a direct cause to the water intrusion damages,” the jury found that Hyland Courts’ Association Board was 30% negligent.
normally causation is a fact issue for the jury, Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272
(1975), when a jury has found negligence, the court may hold, as a matter of
law, that the negligence was a cause of the injury when the court believes that
reasonable minds could come to no other conclusion. Reese,
Our decision conforms to the evidence on the record presented to this court, which includes trial exhibits and a partial trial transcript. Appellants bear the burden of providing an adequate record on appeal sufficient to show alleged errors. Port Auth. of St. Paul v. Harstad, 531 N.W.2d 496, 501 (Minn. App. 1995) (citation omitted), review denied (Minn. June 14, 1995); see also Minn. R. Civ. App. P. 110.02, subd. 1 (appellant has burden of providing transcript of proceedings). Our review of the evidence, including the partial transcript of the jury trial, does not show prejudice to appellants in our consideration of this issue.
challenge the district court’s failure to grant a new trial based on improper
statements by BEI’s attorney at closing argument. “The decision whether to grant a new trial due
to improper argument by counsel rests almost entirely within the discretion of
the trial court and should not be reversed on appeal absent a clear abuse of
discretion.” Jewett v. Deutsch, 437 N.W.2d 717, 721 (
closing argument, BEI’s counsel stated that BEI was a “small company” and that the
jury’s decisions “could have wide range and long lasting effects” on the
company. Appellants maintain that these
statements improperly evoked sympathy and passion and implied that BEI lacked
insurance to cover any liability imposed by the jury. See
Ruppert v. Yaeger, 414 N.W.2d 419, 424 (
But while the statements here may have indirectly referred to insurance coverage, any error in allowing their admission is not prejudicial because the evidence strongly supported the verdict. See id. (holding that improper reference was not prejudicial because district court found there was “ample evidence” to support verdict). We also note that in his own argument, appellants’ counsel offered remarks that acted as a counterweight to the remarks by BEI’s counsel. See Krein v. Raudabough, 406 N.W.2d 315, 320 (Minn. App. 1987) (declining to find abuse of discretion in allowing counsel to read from transcript in closing argument when opposing counsel was free to balance any improper focus in own closing argument). We conclude that the district court did not abuse its discretion in declining to order a new trial on the basis of these remarks.
argue that the district court erred in denying judgment notwithstanding the
verdict (JNOV) because the evidence shows, as a matter of law, that Jensen
lacked authority to modify the construction contract with BEI. This court reviews de novo the district
court’s denial of a motion for JNOV. Pouliot v. Fitzsimmons, 582 N.W.2d 221,
argument presumes error in the special-verdict form, which did not contain a question
on Jensen’s authority to bind the board. Instead, the form only directed the jury to
determine the board’s negligence in
making decisions on the roofing work to be performed by BEI. The record does not show that appellants
challenged the jury instructions or the special-verdict form. See Minn.
R. Civ. P. 51 (stating that party cannot generally claim error in jury
instructions unless objecting to instructions before jury retires to
deliberate); see also H Window Co. v.
Cascade Wood Prods., 596 N.W.2d 271, 274 (
were we to consider appellants’ argument on its merits, appellants have failed
to provide evidence reasonably supporting their contention that Jensen lacked
authority from the board to change the terms of the contract with BEI. The record shows that the board was an informally
run volunteer organization. Jensen
testified as to her belief that she had authority, as board president, to
change the contract. Other board
members’ testimony either supported that authority or was inconclusive. Finally, although appellants have argued
before this court the issue of a written requirement for a change order to the
construction contract, they have not briefed the issue on appeal, and we
decline to consider it. See Melina v. Chaplin, 327 N.W.2d 19, 20
 Although the partial record provided to this court
contains neither final oral nor written jury instructions, the record reflects
that both parties recommended giving the pattern jury instruction on direct
causation, CIVJIG 27.10, and neither party has challenged the content of the
instructions on appeal. See 4