Linstrom v. Normile

2017 ND 194, 899 N.W.2d 287, 2017 WL 3222773, 2017 N.D. LEXIS 187
CourtNorth Dakota Supreme Court
DecidedJuly 31, 2017
Docket20160394
StatusPublished
Cited by8 cases

This text of 2017 ND 194 (Linstrom v. Normile) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linstrom v. Normile, 2017 ND 194, 899 N.W.2d 287, 2017 WL 3222773, 2017 N.D. LEXIS 187 (N.D. 2017).

Opinion

Kapsner, Justice.

[¶ 1] Mike Normile appeals from a judgment entered after a jury found him liable for breach of contract and awarded damages to Brian Linstrom and Leisa Bennett. Because we conclude each issue raised was either waived or was not error, we affirm the judgment.

I

[¶ 2] Brian Linstrom and Leisa Bennett (jointly referred to as the “Linstroms”) hired Mike Normile to complete a remodeling of their home for a price of $107,000.00. The Linstroms paid Normile the contract price plus an additional $30,000.00 for certain changes made during the remodel. Normile believed the Lin-stroms owed more money for the work that was completed. After failing to receive additional payment, Normile put a mechanic’s lien on the home. The Linstroms commenced a breach of contract action against Normile after they were unsatisfied with the work completed on their home. The Linstroms’ complaint also requested the lien on their home be discharged.

[¶ 3] The district court ruled on several motions in limine. Normile’s fourth pretrial *290 motion in limine requested the district court prohibit the jury from touring the residence and property at issue, Normile argued it would be unfairly prejudicial to permit the jury to tour the property, in part because alleged remodeling defects had been marked throughout the residence with sticky-notes.' According to the record, the district court granted both Normile’s motion in limine to prohibit the jury viewing of the residence and the Linstroms’ motion to have the jury view the residence, signing both orders on the same day within minutes of each other. At trial, the district court permitted the jury to walk through the residence with the judge and bailiffs while the parties and counsel remained outside.

[¶ 4] During trial, the district court refused to permit Normile’s witness, Gary Kramlich, to testify as either a fact or expert witness. The district court also refused to admit certified copies of collection judgments against Brian Linstrom. After Normile attempted to make an offer of proof in support of admitting the judgments into evidence, the district court determined the judgments were prejudicial and were not relevant to the case.

[¶ 5] The jury returned a verdict in favor of the Linstroms and awarded damages in the amount of $119,925.00. Judgment was entered on October 26, 2016. Normile filed a notice of appeal on December 2, 2016.

II

[¶ 6] On appeal, Normile argues: (1) the district court erred when it permitted'jurors to walk through the subject property; (2) the district court erred when it did not allow Gary Kramlich’s testimony or exhibits to be presented to the jury; (3) the district court erred when it excluded certified copies of collection judgments against Brian Linstrom at trial; and (4) the venue for the jury trial was unfair because of impermissible prejudice.

m

[¶ 7] A district court “has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused.” Davis v. Killu, 2006 ND 32, ¶ 6, 710 N.W.2d 118. A district court abuses its discretion when it “acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the. product of a rational mental process.” Id. Rule 61, N.D.R.Civ.P., provides:

Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.

As a result, this Court will only disturb a verdict or order a new trial if the district court’s error affects a party’s substantial rights,

IV

[¶ 8] Normile argues the district court should not have permitted the jury to walk through the home. The Linstroms assert Normile waived any issue arising from the jury’s walk-through because, although Normile made a motion in limine regarding the walk-through, Normile failed to clearly object to the walk-through at trial. Section 28-14-15, N.D.C.C., provides:

When in the opinion of the court it is proper for the jurors to have a view of the property which is the subject of litigation, or of the place in .which any material fact occurred, it may order *291 them to be conducted in a body under the charge of an-officer to the place, which must be shown to‘them by some person appointed by the court for that purpose. While the jurors are thus absent, no person, other than the person so appointed, may speak to them on any subject connected with the trial.

“Under N.D.C.C. § 28-14-15, the district court has discretion in allowing jurors to view the premises.” Jalbert v. Eagle Rigid Spans, Inc., 2017 ND 50, ¶ 14, 891 N.W.2d 135. On September 28, 2016, Normile filed a motion in limine requesting the district court prohibit the jury from touring the residence during trial. The Linstroms filed a motion entitled “Motion to Have Jury View Residence” on September 29, 2016. According to the record, the district court signed two contradictory orders granting both motions.

[¶ 9] At the end= of the first day of trial, the parties and the district court discussed the jury walk-through. The district court mentioned there was some dispute with regard to labeling alleged defects in the home and Normile’s counsel stated:

Okay. Based upon what Mr. Mclntee’s own individuals have said in their interrogatories and depositions, they said all these defects could be seen at plain view. So if the Court is going to have a walk-through, I say Mr. Mclntee and I stay outside—because I can’t get- in the house—the parties stay outside, and no labels. You just walk through the house and you see what you see. Because—and that would be—consistent upon what Mr, Mclntee’s clients have maintained this entire time. I think the labeling will be highly prejudicial.

Normile’s counsel objected to opposing counsel providing a compiled list of the defects to the jurors. The following day, the district court determined no lists of defects should be given to jurors, and only labels in the form of sticky-notes would be permitted in the house. The parties and the district court discussed the possibility of jurors asking questions during the walk-through and how it would be handled. During this discussion, Normile’s counsel stated: ‘Your- Honor, I would think just to [be] safer—since it seems like the Court is going to go through with the walk through, I think the safer thing is just to agree that ... all parties and attorneys are out.”

[¶ 10] “We have long held that an effective appeal of any issue must be appropriately raised in the trial court in order for us to intelligently rule on it.” State v. Steen, 2015 ND 66, ¶ 5, 860 N.W.2d 470 (citation omitted). “In general, a party must object at the time the alleged irregularity occurs; failure to object acts as a waiver of the claim of error.” Andrews v. O’Hearn, 387 N.W.2d 716, 730 (N.D.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 ND 194, 899 N.W.2d 287, 2017 WL 3222773, 2017 N.D. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linstrom-v-normile-nd-2017.