This opinion will be unpublished and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

A05-1246

 

Hyland Courts Town Home

Owners Association, et al.,

Appellants,

 

vs.

 

BEI Exterior Maintenance Corporation,

defendant and third party plaintiff,

Respondent,

 

vs.

 

William Cole d/b/a Cole Roofing,

third party defendant,

Respondent.

 

Filed July 3, 2006

Affirmed

Hudson, Judge

 

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 & Associates, P.L.L.C., 223 Farrington Street, St. Paul, Minnesota 55102 (for appellants)

 

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

HUDSON, Judge

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. 

FACTS

           

The Hyland Court Town Homes consists of 190 units of side-by-side, wood-frame town homes in Bloomington, built in the 1970s.  Appellant Hyland Courts Town Home Owners Association, an organization of the collective body of home owners, is governed by a volunteer board of directors. 

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.   

Although 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 state of Louisiana, to assist in performing the roofing work.

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. 

The 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 Bloomington, who evaluated the roofs and indicated that the process of “roofing over” the embedded shingles without removing them would still meet city code requirements.  Jensen, acting on the belief that she had authority from the board, decided to give individual home owners the option of replacing the plywood or proceeding with a “roofover” to save costs.  A written change order to the contract was not requested.  Individual home owners therefore chose whether to have BEI perform a “roofover” of their roofs or to pay extra for plywood replacement.

BEI 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, Hyland Court’s then-property insurer, paid approximately $320,000 to resolve claims arising from damages attributable to ice dams.

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

I

A jury’s answers to special interrogatories are binding on the court.  Majerus v. Guelsow, 262 Minn. 1, 11, 113 N.W.2d 450, 457 (1962).  But the district court may reconcile the jury’s answers to special-verdict questions in a “reasonable manner consistent with the evidence and its fair inferences.”  Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967).  In addition, the district court retains the same authority to change an answer to a special-verdict question as it does to grant judgment notwithstanding the verdict: when the evidence requires the change as a matter of law.  Orwick v. Belshan, 304 Minn. 338, 343, 231 N.W.2d 90, 94 (1975).  Thus, when a jury finds that a party’s negligence was not a cause of his injuries but, in comparing negligence, “attributes a portion of the total causal negligence to that party, and the evidence establishes as a matter of law that his negligence was a proximate cause of his injuries, the court should . . . set aside the answer to the question which found that the plaintiff’s negligence was not causal and insert an affirmative answer.”  Id.at 344, 231 N.W.2d at 94–95.   

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.[1] 

Although 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, 277 Minn. at 156, 152 N.W.2d at 67; see also Nw. State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn. 1979) (stating in an analogous JNOV determination that the appellate court must examine evidence and its inferences to determine whether evidence could reasonably sustain a contrary verdict).  The evidence presented and its reasonable inferences could only sustain a determination that the board, in response to home-owner cost concerns and after checking with the City of Bloomington, authorized changing the terms of its contract with BEI to allow BEI to perform “roof-overs” of the affected town homes at the discretion of individual home owners, rather than performing complete tear-offs of the roofs, as recommended by BEI and specified in the original contract.  We thus conclude that, based on the jury determination that the board was negligent and 30% at fault, and on the record presented, reasonable minds could not differ on the direct causation of at least some of appellants’ damages by the board’s negligence.  Therefore, the district court did not err in changing the answer to the special-verdict form on causation. 

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. 

II

Appellants 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 (Minn. App. 1989).  A new trial is not warranted unless the statement resulted in prejudice to the losing party that is sufficient to affect the outcome of the case.  Boland v. Morrill, 270 Minn. 86, 100, 132 N.W.2d 711, 720 (1965).  The district court remains in the best position to determine whether improper arguments by counsel resulted in prejudice.  Ellingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 405 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). 

During 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 (Minn. App. 1987) (reference in closing suggesting that party was uninsured was improper because it was analogous to implying that particular person must pay). 

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.

III

Appellants 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, 224 (Minn. 1998).  JNOV is proper when a jury verdict has no reasonable support in fact or is contrary to law.  Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990).  

Appellants’ 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 (Minn. App. 1999) (stating that “a party who fails to object to a special verdict form before its submission to the jury, waives any later objection”), review denied (Minn. Aug. 17, 1999).  This court has held that when a party sought JNOV but did not submit the challenged issue to the jury by special-verdict form, the jury findings were not contrary to the requested judgment, and it would be improper for the court to grant JNOV.  In re Shigellosis Litig., 647 N.W.2d 1, 9–10 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  Because the jury was not requested to determine Jensen’s authority to bind the board, a grant of JNOV on this issue would have been improper, and the district court did not err in failing to do so. 

Even 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 (Minn. 1982) (stating that issues not briefed on appeal are waived). 

Affirmed.