Nesseth v. Omlid

1998 ND 51, 574 N.W.2d 848, 1998 N.D. LEXIS 50, 1998 WL 92619
CourtNorth Dakota Supreme Court
DecidedMarch 5, 1998
DocketCivil 970099
StatusPublished
Cited by20 cases

This text of 1998 ND 51 (Nesseth v. Omlid) 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
Nesseth v. Omlid, 1998 ND 51, 574 N.W.2d 848, 1998 N.D. LEXIS 50, 1998 WL 92619 (N.D. 1998).

Opinions

MESCHKE, Justice.

[¶ 1] Julie Nesseth appealed the judgment and the denial of her motion for a new trial after a jury awarded only medical expenses of $5,243.80 for her injuries in an automobile collision. We affirm.

[¶ 2] On September 20, 1988, Julie, driving a borrowed auto, stopped at a University Avenue intersection in Grand Forks. She was hit from behind by Magdalene Omlid’s auto. The impact pushed Julie’s auto into the one ahead of her, sending that driver to the hospital. After speaking to police at the scene, Julie left to attend her cousin’s funeral. At the funeral, she fainted and was taken to the hospital emergency room, where x-rays of her knees and neck were taken. Julie was given anti-inflammatory medicine and sent home.

[¶ 3] After the collision, Julie frequently complained of pain in her neck and knees, and she sought treatment from numerous doctors and chiropractors. In 1993, a doctor performed arthroscopic surgery on her knee. Five years after the collision, Julie sued Magdalene for her injuries caused by Magdalene’s negligence.

[¶4] Because Magdalene admitted negligence before the trial, the only issues for the jury were proximate cause and damages. The jury found Magdalene’s negligence proximately caused Julie’s injuries and awarded Julie $5,243.80 for medical expenses, but nothing for pain and discomfort, loss of productive time, permanent disability, or future damages. Under NDCC ch. 26.1-41, North Dakota’s Auto Reparations Act, the court offset the verdict by no-fault payments paid to or payable to Julie. See NDCC 26.1-41-08(l)(b). This left Julie without any recovery. Additionally, as authorized by N.D.R.Civ.P. 68(a), because Magdalene had made, and Julie had not accepted a formal offer of settlement for $40,000, the court entered a judgment against Julie and for Magdalene for costs of $13,132.05.

[¶ 5] Julie moved for a new trial, alleging irregularities in the trial and insufficiency of the evidence for the verdict. See N.D.R.Civ.P. 59(b)(1) and (6). The trial court denied the motion for a new trial, concluding comments by the defendant’s attorney had not affected Julie’s right to a fair trial, and the verdict was supported with substantial evidence. Julie appealed.

[¶ 6] Julie argues the trial court erred in denying her motion for a new trial. “We review a trial court’s denial of a motion for new trial under an abuse-of-diseretion standard.” Blessum v. Shelver, 1997 ND 152, ¶ 20, 567 N.W.2d 844 (citing Ebach v. Ralston, 510 N.W.2d 604, 611 (N.D.1994)). A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably. First Nat. Bank & Trust v. Brakken, 468 N.W.2d 633, 636 (N.D.1991). We are not convinced the trial court abused its discretion in this case.

[¶7] Julie contends the denial of a new trial was erroneous because Magdalene’s attorney made many improper remarks, particularly characterizing this case as “only be[851]*851ing about money and nothing else.” She also contends Magdalene’s attorney made improper comments about her, implying that she was “dishonest and motivated by money.” Julie also claims Magdalene’s attorney insinuated that Magdalene did not have insurance and would have to pay any damages awarded personally. Julie argues these improper statements were prejudicial and justify a new trial.

[¶ 8] Julie, however, did not object when these comments were made, nor did she request a curative instruction. “In general, counsel must make a timely objection to an improper argument and must ask the trial court to give a curative instruction to the jury. Failure to object waives the improper argument.” Blessum, 1997 ND 152, ¶ 30, 567 N.W.2d 844 (citations omitted). The only exception to this rule “is when the misconduct of counsel is so severe that it affects that party’s substantial rights or constitutes a denial of a fair trial, thereby placing an independent duty upon the court to confine the attorney to the permissible bounds of argument, where necessary, and admonish the jury.” Andrews v. O’Hearn, 387 N.W.2d 716, 731 (N.D.1986). Here, Julie neglected to object to the comments she now complains about. Nor was the severity of the comments made so great as to cause the trial court to step in on its own. As we stated in Andrews, 387 N.W.2d at 731 (quoting State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985)):

[T]he scope and substance of the opening and closing arguments of counsel are under the control and discretion of the trial court, and this exercise of discretion will not be reversed by this court on the ground that an argument to the jury was prejudicial unless a clear abuse of discretion is shown.

We conclude the trial court did not abuse its discretion by concluding these comments did not require independent court intervention. Therefore, Julie’s failure to object forfeited any claim of error in the improper arguments.

[¶ 9] In Blessum, 1997 ND 152, ¶ 33, 567 N.W.2d 844 we affirmed the denial of a new trial although Blessum’s attorney had made numerous improper comments. We explained:

Although arguments of Blessum’s attorney were improper, they were not so serious as to deprive Shelver of a fair trial when there was no objection that would have given the trial court an opportunity to take corrective action. In assessing prejudice, we consider the analysis of the trial court because it was in a better position to weigh the impact of the misconduct.

Id. Here, the trial court thoroughly and thoughtfully explained its conclusion that the allegedly improper comments did not prejudice Julie:

By implying [Julie’s] motives were less than honorable in seeking money damages, [Magdalene] was certainly within the bounds of proper procedure, notwithstanding that the comments border on argument rather than a mere statement of the evidence. The fact of where [Julie] lives, the salary she made following the accident, that she filed bankruptcy and had been involved in at least one other lawsuit, are all facts relevant to past and present loss of productive time under the damages section on the special verdict form. Again, the statements appear somewhat argumentative but not so severe as to deprive [Julie] of a fair trial.
... Lastly, the comments regarding [Mag-dalenej’s age and health appear to the court that they were made to invoke sympathy, and with knowledge that [Magdalene] would not be testifying. However, in light of the fact that she would be absent during the trial, possibly giving the jury cause to believe that [Magdalene] did not care about the outcome of the case, such comments are not totally inappropriate. These comments simply do not rise to the level of unfairness as to deprive [Julie] of a fair trial or of any substantial right. [Julie] waived her right to new trial and appeal in regard to those comments when she failed to make a timely objection and ask this Court to admonish the-jury accordingly-
[Julie] alleges that [Magdalene] made 35 inappropriate comments during voir dire.

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Cite This Page — Counsel Stack

Bluebook (online)
1998 ND 51, 574 N.W.2d 848, 1998 N.D. LEXIS 50, 1998 WL 92619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesseth-v-omlid-nd-1998.