This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-95-2390

Richard Martin Blanchard,
Appellant,

vs.

Lawrence Richard Golden, et al.,
Respondents.

Filed July 16, 1996
Affirmed, Motion to Strike Denied
Kalitowski, Judge

Hennepin County District Court
File No. PI9123361

Richard M. Blanchard, 140 Wildhurst Road, Tonka Bay, MN 55331 (Appellant Pro Se)

Mark A. Bloomquist, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Richard Martin Blanchard sued respondent Lawrence Richard Golden for negligence in connection with a 1989 traffic accident, seeking damages for permanent injury, pain and suffering, medical expenses, lost earnings, and future earning capacity. By special verdict form, a jury awarded Blanchard $70,000 for his injury and pain but declined to award any damages for medical expenses, lost earnings, or future earning capacity. Blanchard appeals the trial court's denial of his motion for a new trial and/or additur. We affirm.

D E C I S I O N

Blanchard's brief makes many claims of error in addition to those he made in his motion for a new trial.

On appeal from an order denying a motion for a new trial, only those matters alleged in the motion as error may be reviewed.

Spiess v. Schumm, 442 N.W.2d 179, 181 (Minn. App. 1989) (citing Schaust v. Town Board, 295 Minn. 571, 572, 204 N.W.2d 646, 648 (1975)).

Thus, only the issues identified in Blanchard's new trial motion are properly before this court.

I.

Blanchard contends the trial court abused its discretion by denying his motion for a new trial based on alleged misconduct by Golden's attorney. We disagree.

A reviewing court will not overturn a trial court's refusal to grant a new trial based on attorney misconduct absent an abuse of discretion. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994). Prejudice is the primary consideration. Id. Furthermore,

in the absence of an argument which is so outrageously flagrant that the trial court should act on its own motion, a party who fails to request corrective instructions before the jury retires waives any later claim that the statements of opposing counsel were so improper as to justify a new trial.

Schwartz v. Consolidated Freightways Corp., 306 Minn. 564, 565, 237 N.W.2d 385, 386 (1975), cert. denied, 425 U.S. 959 (1976); see also Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975) (stating same rule and need for an objection "at the time of the alleged misconduct, or at the close of the argument when it has been taken down by the reporter, and before the jury retires"), cert. denied, 424 U.S. 902 (1976).

Blanchard's contentions of alleged misconduct concern several comments made by Golden's attorney during his opening statement and closing argument. Blanchard did not object to these comments, which concerned his business associate's tax returns and his own failure to file, his medical expert's past witness experience, his expected pain from a rotator cuff tear, his alleged failure to disclose information about jobs he lost, and his physical capabilities since the accident. By not making timely objections or asking for curative instructions, Blanchard waived these claims because opposing counsel's conduct was not so outrageously flagrant as to warrant the trial court's intervention. Further, because we cannot say Blanchard was prejudiced by the remarks of opposing counsel, we conclude the trial court did not abuse its discretion in denying Blanchard's motion for a new trial.

II.

Blanchard contends the jury's damage award is inadequate and unsupported by the evidence and therefore, the trial court abused its discretion by not granting additur. We disagree.

"[W]hether to grant additur rests almost wholly within the trial court's discretion." Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988). The trial court may not grant additur unless the verdict is unreasonable. Id.

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citations omitted), review denied (Minn. Feb. 12, 1993). Indeed, use of a special verdict form removes from the jury the "temptation to exercise or engage in passion, bias or prejudice." Schwartz, 306 Minn. at 565, 237 N.W.2d at 387 (quoting Kramer v. Kramer, 282 Minn 58, 72, 162 N.W.2d 708, 717 (1968)).

Blanchard contends that he clearly proved his loss of earnings and loss of earning capacity. We disagree. His only proof of past income was evidence of his alleged arrangement with his business associate whereby his earnings were reported on her income tax returns. Further, although he testified extensively about his physical inability to take advantage of a tree venture that may have netted him $60,000, he also testified that he was still able to construct boulder walls and do other physical labor. Because it is possible the jury discredited his testimony and evidence and because the jury's verdict is neither perverse nor palpably contrary to the evidence, the trial court's decision not to grant additur was not an abuse of discretion.

III.

Blanchard contends the trial court erred in the way it framed the special verdict question concerning Blanchard's future loss of earning capacity. We disagree.

[I]mpairment of earning capacity is an item of general damages. It permits recovery for a loss or diminution of the power to earn in the future and is based upon such factors as the plaintiff's age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry. It is within the province of the jury to weigh all these elements and, guided by experience and common sense, to arrive at the proper monetary value of plaintiff's loss without recourse to his past earnings.

Wilson v. Sorge, 256 Minn. 125, 132, 97 N.W.2d 477, 483 (1959) (footnotes omitted) (emphasis added).

Here, the trial court properly instructed the jury to consider "the age, health, skill, training, experience and industry of Richard Blanchard" and did not instruct the jury to consider Blanchard's past earnings. There was no error.

IV.

Finally, respondents move to strike documents in Blanchard's appendix pertaining to Blanchard's motion to correct the trial record and all references in Blanchard's brief to the challenged documents. We deny the motion to strike because the challenged documents were properly before this court on Blanchard's unsuccessful motion under Minn. R. Civ. App. P. 110.05.

Affirmed, motion to strike denied.


Footnotes

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