Dean J. Walden, Appellant, vs. Arthur H. Tatur, David J. Charpentier, Respondent, Game Breeders of Oneka, Inc., d/b/a Wild Wings Game Farm, Defendant. C6-96-1829, Court of Appeals Unpublished, May 6, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1829

Dean J. Walden,

Appellant,

vs.

Arthur H. Tatur,

Respondent,

David J. Charpentier,

Respondent,

Game Breeders of Oneka, Inc.,

d/b/a Wild Wings Game Farm,

Defendant.

Filed May 6, 1997

Affirmed

Klaphake, Judge

Washington County District Court

File No. C9-95-2233

Richard A. Emerick, 2500 West County Road 42, Suite 190, Burnsville, MN 55337 (for Appellant)

Richard J. Kruger, Jack D. Moore & Associates, Two Pine Tree Drive, St. Paul, MN 55112 (for Respondent Tatur)

Dale J. Evensen, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for Respondent Charpentier)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

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

KLAPHAKE, Judge

Appellant Dean J. Walden brought a negligence action against respondents Arthur H. Tatur and David J. Charpentier for injuries and damages suffered as a result of a hunting accident at the Wild Wings Game Farm.[1]

After a trial, the jury found by special verdict that Tatur and Charpentier were not negligent. It found the reasonable value of Walden's medical expenses was $997.30, but awarded no damages for loss of personal property or for present or future pain, disability, disfigurement, or emotional distress. Walden appeals from the trial court's denial of his posttrial motion for judgment notwithstanding the verdict (JNOV) or a new trial. Tatur filed a notice of review to challenge the award of disbursements. Because sufficient evidence supports the verdict and the notice of review was untimely, we affirm the judgment and dismiss the notice of review.

D E C I S I O N

On review of a trial court's denial of a motion for JNOV, an appellate court will "affirm if there is any competent evidence reasonably tending to sustain the verdict." Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). Likewise, when the verdict is challenged by a new trial motion, it will stand unless "manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). Absent a clear abuse of discretion, the trial court's denial of the motion for a new trial will be affirmed. See Kuehl v. National Tea Co., 310 Minn. 48, 51, 245 N.W.2d 235, 238 (1976).

Walden first argues that the hunting accident could not have occurred without negligence. While Walden was struck by shot while hunting, significant fact issues existed as to who fired the shot. It is undisputed that Walden was struck with #4 shot, but the evidence indicated that Walden and respondents Charpentier and Tatur used #71/2 or #8 shot. Further, while both Charpentier and Tatur testified they fired shots, no one could identify who fired the shot that hit Walden. The evidence supported the jury's verdict that Walden failed to prove that either Charpentier or Tatur was negligent, and the verdict is not contrary to the evidence.

Walden next argues that under the doctrine of res ipsa loquitur, the jury should have found negligence. Res ipsa loquitur requires that the incident: (1) would not have occurred unless someone was negligent; (2) was caused by an instrumentality within the exclusive control of the defendant; and (3) was not due to the voluntary conduct of the plaintiff or some other third person. See Leuer v. Johnson, 450 N.W.2d 363, 364 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). In Leuer, a case involving two hunters, the doctrine of res ipsa loquitur was rejected because the instrumentality causing the harm could not be identified and it was impossible to determine who had been in control of the instrumentality. Id. at 366. While Walden contends the jury misunderstood the burden of proof on the res ipsa loquitur instruction, we find no error under Leuer, which makes it clear that the burden of proving the defendants' liability remains on the plaintiff. Id. at 365-66.

Walden further argues the jury's finding of no personal property damage was contrary to the evidence because he established that he replaced his hunting jacket after the accident. However, because the jury found no liability, this damage issue is moot. See Wefel v. Norman, 296 Minn. 506, 507-08, 207 N.W.2d 340, 341 (1973). A jury's denial of damages after determining there is no liability does not render the verdict perverse. Id.

Walden finally argues the jury could not have found he did not suffer present and future damages from his injuries. This issue appears to be moot as well. See id. Moreover, the jury resolved conflicting evidence as to the type and extent of Walden's injuries. The verdict was not contrary to the evidence.

II.

Minn. R. Civ. App. P. 106 requires a notice of review to be filed within 15 days after service of the notice of appeal, which was filed in this case on September 5, 1996. Tatur filed a notice of review on December 11, 1996, seeking review of the trial court's December 2, 1996 amended judgment disallowing certain disbursements for depositions. Tatur did not make a motion for this court to accept the untimely notice of review and we note, in any event, that there is no provision in rule 106 for later-filed notices of review under these circumstances.

Affirmed.

[ ]¹ Defendant Wild Wings Game Farm settled prior to trial and is not a party to this appeal.