This opinion will be unpublished and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

C9-96-366

William Millard,

Respondent,

vs.

Otter Tail County,

Appellant.

Filed November 19, 1996

Affirmed in part, reversed in part and remanded

Klaphake, Judge

Dissenting, Schumacher, Judge

Otter Tail County District Court

File No. C7-94-2059

Thomas C. Athens, Svingen, Athens, Russell & Hagstrom, P.L.L.P., 125 South Mill Street, P.O. Box 697, Fergus Falls, MN 56538-0697 (for Respondent)

Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

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

KLAPHAKE, Judge

Appellant Otter Tail County challenges the district court's grant of judgment notwithstanding the verdict (JNOV) holding it 100 percent liable for damage to respondent William Millard's property. Because there is evidence to support the jury's verdict apportioning liability between appellant and respondent, we reverse and reinstate the verdict. We affirm the district court's denial of prejudgment interest.

D E C I S I O N

This action arises out of water damage to Millard's storage building, which was built on a floodplain. Millard alleged that the county negligently removed an obstruction from a road culvert that had caused ponding upstream. Following a two-day trial, the jury returned a verdict apportioning liability 70-30 between the county and Millard, respectively. Subsequently, the district court granted Millard's motion for JNOV and entered judgment against the county for 100 percent of the damages. The county appeals.

Judgment Notwithstanding the Verdict

A district court's decision to grant JNOV involves a purely legal question. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983). In making its determination whether to grant JNOV, the district court must view the evidence in a light most favorable to the verdict and may not weigh the evidence or judge the credibility of the witnesses. Id. On appeal, we also view the evidence in the light most favorable to the verdict, and the contrary judgment will be affirmed only if reasonable minds could not differ that the verdict was wrong. Waite v. American Family Mut. Ins. Co., 352 N.W.2d 19, 21 (Minn. 1984). Our review is de novo. Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990), cert. denied, 498 U.S. 1119 (1991).

At the county's request and over Millard's objection, the district court instructed the jury and provided a special verdict form on the issue of comparative fault. After the jury returned the verdict apportioning liability, Millard filed a post-trial motion requesting that the district court reapportion liability between the parties. The district court granted the motion. The county contends the district court erred in rejecting the jury's comparative fault finding and in entering JNOV for Millard.

From a review of the record, it is apparent there is evidence to support the jury's verdict. First, Millard was an experienced contractor familiar with building regulations and surveys. Second, despite his experience, he built a storage building on his property that, according to a federal flood hazard map (FEMA map) introduced into evidence, was in, or adjacent to, a floodplain. Third, although Millard obtained a building permit for the storage building, he did not consult with local officials or experts prior to construction. Fourth, Millard was aware of the natural ponding of water on his property, even though the water had never before reached the storage building. Fifth, the county introduced into evidence a survey that placed the storage building within or right at the edge of the natural ponding area. Sixth, Millard's own expert testified that it appeared Millard's building was situated in a location that would be subject to flooding, if in fact, water backed up behind the township road. Finally, Millard had knowledge of the build-up of water caused by the obstructed culvert.

Based on the foregoing, we conclude there was evidence that, when viewed in the light most favorable to the verdict, provides a basis for the jury's apportionment of liability between the parties. See Brubaker v. Hi-Banks Resort Corp., 415 N.W.2d 680, 683 (Minn. App. 1987), review denied (Minn. Jan. 28, 1988) (reversing JNOV to reinstate jury verdict after viewing evidence in light most favorable to jury's verdict); Eliason v. Textron, Inc., 400 N.W.2d 805, 807 (Minn. App. 1987) (explaining jury's apportionment of negligence should not be set aside unless no evidence reasonably tends to sustain apportionment). The county presented, and the jury accepted, the evidence that Millard shared liability for his damages. Therefore, we reverse and direct the district court to reinstate the jury's verdict.

Prejudgment Interest

Millard seeks review of the district court's denial of prejudgment interest. See Minn. R. Civ. App. P. 106. The district court denied prejudgment interest because "there was no evidence that [Millard's] storage building had yet been repaired." Millard contends prejudgment interest is appropriate because his storage building was damaged by the flooding, and whether or not the building was subsequently repaired is irrelevant.

Generally, prevailing parties are entitled to interest on verdicts, awards, and judgments. Minn. Stat. § 549.09 (1994). The award of interest lies within the "sound discretion" of the district court as a matter of just compensation. In re Estate of Renczykowski, 409 N.W.2d 888, 892 (Minn. App. 1987); see, e.g., McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 148-49 (Minn. App. 1992) (no abuse of discretion in award of prejudgment interest), review denied (Minn. Mar. 26, 1992).

The district court explicitly based its denial of prejudgment interest on Millard's failure to repair the storage building. The proper measure of damages for tortious injury to property, however, is the diminution in value resulting from the injury or the cost of restoration, whichever is less. Lawin v. City of Long Prairie, 355 N.W.2d 764, 767 (Minn. App. 1984) (emphasis added), review denied (Minn. Feb. 5, 1985). Thus, whether or not Millard repaired the building is of no consequence, as long as he suffered some damage diminishing the market value of the building.

Notwithstanding the district court's mischaracterization of the legal standard, we agree with the court's conclusion that Millard is not entitled to prejudgment interest. Generally, district courts award prejudgment interest in the case of liquidated claims or where the amount of damages is ascertainable by computation. See Wenzel v. Mathies, 542 N.W.2d 634, 644 (Minn. App. 1996), review denied (Minn. Mar. 28, 1996). In contrast, a district court usually will not award interest on a claim for unliquidated damages where the liable party cannot determine his liability in advance. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 109 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). Similarly, prejudgment interest is not appropriate where the amount of damages depends on contingencies or on jury discretion. See Northern Petrochem. Co. v. Thorsen & Thorshov, Inc., 297 Minn. 118, 132, 211 N.W.2d 159, 169 (1973) (holding prejudgment interest appropriately denied because neither total amount of damages nor apportionment of damages readily ascertainable before trial).

Here, the total amount of Millard's damages (i.e., damage to the storage building, lumber and tools within the building, and track vehicle stored next to the building) was not readily ascertainable before trial. More importantly, the issue of comparative fault involved the jury's exercise of its considerable discretion in deciding to what extent, if any, Millard should be held liable for his own damages. Thus, the county could not determine with relative certainty its liability in advance.[1] Accordingly, we conclude the district court correctly denied prejudgment interest, and we affirm.

Affirmed in part, reversed in part and remanded.

SCHUMACHER, Judge (dissenting).

I respectfully dissent and would affirm the trial court's grant of JNOV. Prior to submission of the case to the jury, the trial court determined the evidence did not justify submission of the comparative fault issue. The court, however, did in fact submit the question, reasoning as follows:

The Court allowed the [comparative fault] instruction and verdict question because the problem of error could more easily be resolved by admitting the question rather than omitting it.

This is not an unusual procedure for trial courts to follow and would avert the necessity of a new trial if reversed on appeal.

The county does not seriously dispute the fact that its actions in removing an obstruction from a road culvert caused ponding downstream and the subsequent flooding of Millard's property. Furthermore, the trial court concluded from all the evidence that Millard could not have foreseen the potential damage to his property created by this obstructed culvert, which was some distance away. The trial court was in the best position to make this judgment call and should be affirmed. To say that Millard was somehow at fault is ridiculous, and the trial court so concluded.

The county did not plead comparative fault but claimed at trial that Millard was at fault because he failed to remove property that could have avoided damage and he failed to take adequate measures to correct the flooding (cutting a section of the township road to alleviate more flooding). The trial court was clearly correct in finding that these claims involved mitigation of damage rather than fault. Minn. Stat. § 604.01, subd. 1a (1994) provides:

"Fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an express consent or primary assumption of risk, misuse of a product and unreasonable failure to avoid an injury or to mitigate damages, and the defense of complicity under section 340A.801. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. The doctrine of last clear chance is abolished.

Evidence of unreasonable failure to avoid aggravating an injury or to mitigate damages may be considered only in determining the damages to which the claimant is entitled. It may not be considered in determining the cause of an accident.

Id. (emphasis added).

The county claimed Millard was at fault because he knew of the water buildup east of County Road #1 but failed to notify county officials. The trial court correctly determined that Millard had no legal duty to inform the county of the buildup.

The county also claimed Millard was negligent because he built his storage building in a flood plain. The trial court found, however, that Millard knew nothing of the flood plain boundaries when he built the facility and that he sought the assistance of Buse Township and, in fact, obtained a valid building permit. The trial court properly concluded that Millard was not negligent as a matter of law and that he followed all the proper procedures in site selection and construction of the building.

The fact that the trial court permitted the comparative fault issue to be submitted to the jury should not weigh against the trial court's initial determination that there was no fault on the part of Millard.

[ ]1Requiring certainty of damages before awarding prejudgment interest also promotes settlements. Lessard v. Milwaukee Ins. Co., 496 N.W.2d 852, 855 (Minn. App. 1993), aff'd 514 N.W.2d 556 (Minn. 1994). Here, because the county was uncertain as to the amount of damages and also the jury's apportionment of any damages, it could not effectively conduct settlement negotiations and compare settlement offers.