This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1462

 

Lynne Virginia Kraemer,

Respondent,

 

vs.

 

Marlene M. Carlson-Bakeberg,

Appellant.

 

Filed April 26, 2005

Reversed and remanded

Poritsky, Judge*

 

Mille Lacs County District Court

File No. C2-02-431

 

 

Bruce W. Larson, Charles A. Beckjord, 746 Mill Street, Wayzata, MN 55391 (for respondent)

 

 

Terrence R. Peterson, 2700 Snelling Avenue North, Suite 250, Roseville, MN 55113 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

Defendant appeals from the district court’s grant of JNOV for the plaintiff in an automobile negligence action, arguing that the JNOV hearing was untimely and that the JNOV was an abuse of discretion because evidence exists to support the verdict.  Because we conclude that the jury verdict was consistent and that a reasonable basis exists for the verdict, we reverse the district court’s grant of JNOV and remand for reinstatement of the jury verdict.

FACTS

This dispute arises from an automobile accident involving three vehicles.  The parties do not dispute that an accident occurred.  A deer ran onto the road and was killed when it collided with Thomas Preusser’s moving vehicle.  Preusser pulled over onto the road’s shoulder.  The deer carcass remained on the road.  Respondent Lynne Kraemer, who observed the collision, moved her vehicle in order to avoid hitting the deer and, while still moving, was struck from behind by appellant Marlene Carlson-Bakeberg.   

At trial, the parties disputed the exact circumstances of the accident and presented conflicting testimony.  Kraemer testified that she was driving in the left lane, saw the deer, slowed down and moved toward the left shoulder when she was struck.  Carlson-Bakeberg testified that Kraemer was driving in the right lane, that Kraemer swerved into the left lane immediately in front of her, and that she hit Kraemer despite applying the brakes as quickly as she could.  In support of her version of events, Kraemer points to expert testimony that the damage to her vehicle was inconsistent with Carlson-Bakeberg’s version.  Carlson-Bakeberg, in support of her position, points to Preusser’s testimony that he saw Kraemer “in the right lane swerve into the left lane,” and to Kraemer’s statement to a police officer on the day of the accident in which Kraemer said that she was “in the right lane and swerved left to miss the deer.”    

Kraemer filed suit against both Preusser and Carlson-Bakeberg.  The district court granted summary judgment in favor of Preusser, finding him not negligent as a matter of law.  After the parties stipulated to damages of $50,000, the case proceeded to trial, and, at its close, the district court included in its instructions to the jury that “[i]f there was an emergency that a person did not cause, that person is not negligent.”  The jury returned a special verdict on December 8, 2003, finding that Carlson-Bakeberg was negligent, but did not cause the accident.  It also found that Kraemer was not negligent and not the cause of the accident.  The court entered its judgment, consistent with the verdict, on December 30, 2003. 

Kramer filed a motion for judgment notwithstanding the verdict (JNOV) on December 16, 2003.  Her attorney, through his assistant, contacted the court administration to schedule the hearing and was advised that the judge was unavailable because he had to hear two murder trials and planned to leave on vacation immediately thereafter.  The assistant emphasized that the client needed a hearing date within the 60-day window imposed by R. Civ. P. 59.03, but finally acquiesced to a hearing on March 5, 2004.  At oral arguments on the motion, Carlson-Bakeberg argued that the court should dismiss the motion because the hearing was untimely.  The district court judge noted that he was not aware of the motion until two days before oral arguments, but that he recalled that he was unavailable for a period of time because of his vacation and trial schedule.  After refusing to dismiss the motion, the district court granted JNOV because it concluded that the special-verdict answers were inconsistent.  Carlson-Bakeberg appeals the district court’s entry of judgment against her based on its grant of the JNOV motion.

D E C I S I O N

I

We interpret the rules of civil procedure de novo.  Mingen v. Mingen, 679 N.W.2d 724, 727 (Minn. 2004).  Rule 50.02(c) requires that “[a] motion for judgment notwithstanding the verdict . . . be served and heard within the times specified in Rule 59 for the service and hearing of a motion for a new trial.”  And rule 59.03 requires that a party serve a notice of motion “within 30 days after a general verdict or service of notice by a party of the filing of the decision or order.”  Minn. R. Civ. P. 59.03.  The rule further specifies that “the motion shall be heard within 60 days after such general verdict or notice of filing, unless the time for hearing be extended by the court within the 60-day period for good cause shown.”  Id.  Thus, for a special verdict, the rule requires a party to serve notice of the court’s order of judgment to begin the clock running.  The court’s service of notice of the order is insufficient; the rule requires one of the parties to have served the notice.  O'Brien v. Wendt, 295 N.W.2d 367, 370 (Minn. 1980) (observing that service of written notice of filing by clerk of court is insufficient).  This notice must be in writing and it “must call to the attention of the recipient what it is that has been filed and when.”  Rieman v. Joubert, 376 N.W.2d 681, 683 (Minn. 1985).  A party’s notice of a posttrial motion can constitute notice of the order.  But actual knowledge of the order is insufficient to satisfy the requirement because service of the notice is “essentially a timing mechanism.”  Id. at 684; Westling v. City of St. Louis Park, 279 Minn. 366, 368 n.2, 157 N.W.2d 56, 58 n.2 (1968).  Therefore, when “no notice of filing is served, the . . . time period never starts, and a party apparently has an indefinite period of time in which to make post-trial motions.”  Rieman, 376 N.W.2d at 684.

Although the parties properly raise the issue of the hearing’s timeliness, they have focused on whether the court extended the hearing for good cause.  But the truly dispositive concern for this issue is the absence of the notice required to start the clock running.  Neither party served any notice of the entry of the judgment; only the court served notice on December 30, 2003.  The only arguable notice of the order is Kraemer’s notice of motion and motion for JNOV.  While a posttrial motion can act as notice of the decision’s filing, Kraemer’s motion did not provide notice because Kraemer filed it before the entry of the order.  The special verdict occurred on December 8, 2003; Kraemer moved for JNOV on December 16, 2003; and the court entered its order on December 30, 2003.  The motion cannot have provided notice of an order not yet in existence.  Therefore, the 60-day clock never began to run, and the district court committed no error in hearing the case on March 5, 2004.

II

We review de novo the district court’s grant of JNOV.  Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990); see Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979) (stating that granting of JNOV is “pure question of law).  When examining a motion for JNOV, the district court “views the evidence in the light most favorable to the nonmoving party and considers ‘whether the verdict is manifestly against the entire evidence or whether despite the jury's findings of fact the moving party is entitled to judgment as a matter of law.’”  Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003) (quoting Navarre v. S. Wash. County Sch., 652 N.W.2d 9, 21 (Minn. 2002)).  Therefore, a district court should deny a JNOV motion if the record “discloses a reasonable basis for the verdict.”  O’Neil v. Wells Concrete Prods. Co., 477 N.W.2d 534, 538 (Minn. App. 1991) (quotation omitted), review denied (Minn. Jan. 17, 1992).

 “When answers to special verdict questions are correctly declared inconsistent, they are to be reconciled in any reasonable manner consistent with the evidence and its fair inferences.”  Olson v. Alexandria Indep. Sch. Dist. No. 206, 680 N.W.2d 583, 587 (Minn. App. 2004).  The district court has broad discretion in construing the verdict and harmonizing the jury’s answers.  Id.  And, we defer to the district court’s grant of JNOV when the jury’s verdict indicates that the jury was confused.  Clifford v. Geritom Med, Inc., 681 N.W.2d 680, 687 (Minn. 2004).

            We initially note that proving negligence does not also prove causation; negligence and causation are two separate elements of a plaintiff’s tort case.  Frank v. Frank, 409 N.W.2d 70, 72 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987).    The jury could therefore properly find the existence of one without finding the existence of the other. 

Based on the evidence, it was within the jury’s province to find that Carlson-Bakeberg was traveling in the left lane, that Kraemer was in the right lane, and that, just before the accident, Kraemer swerved into the left lane.  The jury could have reasonably concluded that, because Kraemer responded to an emergency, her act of swerving was not negligent, and because she was not negligent, the jury answered “no” to the question of whether her negligence caused the accident.  Similarly, based on the evidence, the jury could have found that Carlson-Bakeberg was negligent because she was traveling at a speed that was greater than reasonable and prudent under the conditions, but that her speeding was not the cause of the accident.  The testimony of Carlson-Bakeberg and Preusser, as well as the admission that Kraemer made to the police officer, supports this version of events.  Although contrary evidence exists in the record, the jury had discretion to disregard it.  Because this is a reasonable interpretation of the jury’s verdict, the verdict is not inconsistent, and the district court had no discretion to alter the verdict.  The grant of JNOV was therefore erroneous, and we reverse and remand to the district court to reinstate the jury’s verdict. 

            Reversed and remanded.