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COURT OF
APPEALS DECISION DATED AND
RELEASED April
10, 1997 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3569
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
DANIEL
KHALAR, RODNEY L. EMERSON,
Plaintiffs-Respondents,
KEVIN KIRSCH,
Plaintiff-Respondent-Cross Appellant,
v.
JAMES
MURPHY,
Defendant-Appellant-Cross Respondent,
CHRIS MERIGOLD, AND CLARENCE ALDERDEN,
Defendants,
HON. PATRICK FIEDLER,
Defendant-Appellant-Cross Respondent.
APPEAL
from a judgment and CROSS-APPEAL from an order of the circuit court for Dane
County: GERALD C. NICHOL, Judge. Judgment reversed; order affirmed and
cause remanded with directions.
Before
Eich, C.J., Dykman, P.J., and Deininger, J.
DEININGER,
J. James Murphy and Patrick Fiedler (officials) appeal from a
judgment awarding Daniel Khalar, Rodney Emerson and Kevin Kirsch (inmates) a
total of $3,500 in damages, plus $58,366.99 in costs and attorney fees. The trial court awarded the damages and
costs on the inmates' claims under 42 U.S.C. § 1983 that the lack of a toilet
and sink in a segregation cell, in which each was temporarily confined,
violated their rights under the Fourteenth Amendment.[1]
The
officials argue that the judgment, which negates a jury verdict on the claims,
is "contrary to the post-verdict provisions of chapter 805
Stats." We conclude that the trial
court lost its competency to alter the jury verdict once the time limit under
§ 805.16, Stats., had
expired.[2] Further, we decline to exercise our
discretionary authority under § 752.35, Stats.,
to grant the inmates relief from a judgment on the verdict. Accordingly, we reverse and direct that
judgment be entered on the jury's verdict.
Kevin
Kirsch cross-appeals the trial court's order dismissing on summary judgment, a
different § 1983 claim: that the
cold temperature in his cell violated his rights under the Eighth and
Fourteenth Amendments. We conclude that
the record discloses no genuine issues of material fact on this claim, and that
the officials are entitled, as a matter of law, to a judgment dismissing this
claim. We therefore affirm the summary
judgment in their favor.
BACKGROUND
The inmates brought this
action under 42 U.S.C. § 1983, alleging numerous violations of their rights
under the Eighth and Fourteenth Amendments.
They complained of the lack of a toilet and sink in a certain
segregation cell at Columbia Correctional Institution (CCI), cold temperatures
in their cells, and receiving bag lunch meals instead of cooked meals. They also made a claim for damages under
state negligence law on these same allegations. Officials Murphy and Fiedler were, respectively, the warden of
CCI and the Secretary of the Department of Corrections during the relevant time
period.
The
officials moved for summary judgment dismissing all claims against them. The inmates also moved for summary judgment
on their claims. The trial court denied
the inmates' motion and granted the officials' motion to dismiss all claims
relating to cold cell temperatures and bag lunches.[3] The court did not dismiss the Eighth and
Fourteenth Amendment claims or the negligence claim based on the lack of a
toilet and sink in segregation cell number 46.
These claims were tried to a jury on October 10 through 13, 1994. On October 13, 1994, the jury returned a
verdict finding no constitutional violations with respect to any of the
inmates, finding negligence on the part of the officials, but finding no
causation of harm and zero compensatory damages. The jury also determined that the officials had not acted
maliciously or wantonly, thus precluding a punitive damage award.
On
November 2, 1994, the inmates filed post-verdict motions requesting the court
to "set aside the portion of the juries [sic] verdict" finding no
violation of their Eighth Amendment right to be free from cruel and unusual
punishment. On this claim, the inmates
asked the court for at least one dollar in nominal damages and for costs and
reasonable attorney fees. They also
requested the court to find that the zero compensatory damages verdict was
perverse and to "affix an amount of damages for each plaintiff or in the
alternative order a new trial on the issue of damages." The inmates requested no relief from the
verdict on their Fourteenth Amendment due process claims.
The
motions were initially set to be heard on November 18, 1994, but the hearing
was rescheduled to December 14, 1994.
The trial court heard arguments and set a supplemental briefing
schedule. In a written decision dated
and filed April 28, 1995, the trial court denied the inmates' motions for
judgment notwithstanding the verdict on their Eighth Amendment claims and their
motion for a new trial on the negligence claims. However, stating that "[d]uring the course of the trial the
Court made a ruling that as a matter of law, the Defendants violated the
Plaintiffs' civil rights when it placed the inmates in cell 46 which did not
provide a sink or sanitary toilet," the court concluded the lack of a sink
and toilet in cell 46 violated administrative rules and "deprived the
Plaintiffs of a liberty and/or property interest without due process of
law."
The
court went on to conclude that the inmates "should" be awarded
damages for "being deprived of this liberty interest," and that
"[a] mere slap on the wrist or the award of the symbolic sum of one dollar
does not teach a lesson or bring home a message." It determined damages as follows:
I award each plaintiff one hundred dollars for each day,
or part thereof, in which they were housed in cell 46 during the period of time
in question. This translates as
follows: Khalar $300; Kirsch $700; and
Emerson $2500.
The
inmates then moved the court, as prevailing parties, for an award of costs and
attorney fees under 42 U.S.C. § 1988.
Judgment was entered on October 24, 1995, awarding the inmates a total
of $3,500 "for violation of plaintiffs' fourteenth amendment due process
rights." The judgment also awarded
$8,366.99 in costs and $50,000 in fees to the inmates' attorneys. From this judgment, the officials appeal.
ANALYSIS
a. Trial Court's Competency to Alter Verdict
Section
805.16(3), Stats., requires that
judgment be entered on a jury verdict if the trial court has not decided a
post-verdict motion within 90 days after the verdict is rendered. A court's failure to act within 90 days
after the verdict results in a loss of "competency to exercise its
jurisdiction" to alter or set aside the verdict. Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d
1, 10, 312 N.W.2d 813, 817 (1981).
Here,
the court's decision to enter a judgment contrary to the jury's verdict on the
Fourteenth Amendment claims was made some 196 days after the jury's October 14,
1994 verdict.[4] The record contains no orders enlarging the
90 day time limit, nor would any such orders be effective had they been
made. See § 801.15(2)(c), Stats. (time for deciding motions after
verdict under § 805.16(3) may not be enlarged); Ford Motor Co. v. Lyons,
137 Wis.2d 397, 418-21, 405 N.W.2d 354, 362-64 (Ct. App. 1987); Brookhouse
v. State Farm Mut. Auto. Ins., 130 Wis.2d 166, 169-70, 387 N.W.2d 82,
83-84 (Ct. App. 1986). We conclude the
judgment in favor of the inmates on their Fourteenth Amendment claim must be
reversed and a judgment on the verdict entered under § 805.16(3), Stats.
Except
for their general argument that the trial court's alteration of the jury
verdict was "without lawful authority" and "contrary to the
post-verdict provisions of chapter 805, Stats.," the officials do not
raise the issue of the time bar under § 805.16(3), Stats. The inmates,
therefore, do not specifically address the issue in their responsive
brief. Rather, they argue that the
trial court's action should be affirmed because there was no credible evidence
that the inmates' Fourteenth Amendment rights were not violated, that the trial
court's $3,500 damage award was appropriate, that the officials were not
entitled to qualified immunity, and that the attorney fees award was proper.
Even
though the parties have not directly addressed in their briefs the grounds on
which we conclude this judgment must be reversed, the law is well settled that
the trial court's untimely post-verdict order was a "nullity." See Brandner v. Allstate Ins.
Co., 181 Wis.2d 1058, 1071, 512 N.W.2d 753, 759 (1994); Watts v.
Watts, 152 Wis.2d 370, 377-78, 448 N.W.2d 292, 295 (Ct. App. 1989); Manly
v. State Farm Fire & Cas. Co., 139 Wis.2d 249, 254-55, 407 N.W.2d
306, 307-08 (Ct. App. 1987). If the
inmates are to obtain relief from a judgment on the verdict in this case, it
must come, if at all, from our discretionary authority under § 752.35, Stats.:
The expiration of the ninety-day time limit
deprived the trial court of competency to exercise its jurisdiction to decide
the motions after verdict. Pursuant to
sec. 805.16, Stats., the motions should have been deemed denied.
We, then, proceed
on the basis that the motions after verdict are deemed denied, but we review
the record to determine whether, in the interest of justice, we should invoke
our power under sec. 752.35, Stats., to accomplish the result the trial court
attempted to accomplish ....
Schmorrow v. Sentry Ins. Co., 138 Wis.2d 31, 38, 405 N.W.2d 672, 675-76 (Ct. App.
1987) (citations omitted). We will
therefore consider the inmates' arguments only in the context of whether to
grant discretionary relief under § 752.35.[5]
b.
Discretionary Reversal under § 752.35, Stats.
Because
the trial court granted relief from the verdict after its competency to alter
the verdict had expired, it is appropriate that we review the record under §
752.35, Stats., to determine
whether it is "proper to direct a judgment." See Jansen Co. v. Milwaukee
Area Dist. Bd., 105 Wis.2d 1, 10-11, 312 N.W.2d 813, 817 (1981). The inmates have not appealed the trial
court's denial of their post-verdict motions regarding the Eighth Amendment and
negligence claims. Thus, we only
consider whether to exercise our discretionary authority under § 752.35 to
grant relief to the inmates from the jury's verdict on their Fourteenth
Amendment claims, as the trial court attempted to do.[6]
"[W]e should invoke our discretion only
where we are convinced that there has been a probable miscarriage of justice if
the jury's verdict were permitted to stand." Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d
1, 12, 312 N.W.2d 813, 818 (1981). We
are not so convinced.
Probably
the most striking aspect of the trial court's post-verdict decision is that it
granted post-verdict relief that was not requested by the inmates. Before trial, they had moved for summary
judgment on their Fourteenth Amendment sink and toilet claim, but this motion
was denied by the trial court. The
trial court at that time concluded that Wis.
Adm. Code § HSS 303.71, and other provisions of the Wisconsin
Administrative Code, "arguabl[y] provides to occupant of a cell a limited
property right to have a cell equipped with a toilet and sink" and that
"arguably [inmates] were deprived of that right" when placed in cell
46. But, the court further determined
that "the pieces of the puzzle are, in part, missing and a trial is
necessary to determine if the [inmates'] due process rights have been
violated."
At
the close of the inmates' case, the officials moved for dismissal or directed
verdict with respect to several claims and certain defendants. The officials claimed there was insufficient
evidence on the inmates' negligence claims.
The trial court reserved a ruling on that motion and later denied
it. The officials also sought a
directed verdict dismissing the Eighth Amendment claims, which was denied.
The
record discloses no motions for directed verdict on any claims by the inmates
at the close of all evidence.[7] The jury instructions on the inmates'
Fourteenth Amendment claims were submitted by their counsel and were modified
at the instructions conference. The
inmates' counsel told the court during the conference, "I think you
already ruled you were going to find liberty interest, as a matter of law." The court responded "I am," and
instructed the jury as follows:
First, [inmates]
must show that they have a "liberty or property interest" that the
[officials] have violated. I instruct
you as a matter of law that the [inmates] have a liberty or property interest
in being placed in a segregation cell with a sanitary toilet and sink. Therefore, [inmates] have met this element
of their procedural due process claim.
The
court's ruling on the existence of a liberty interest, given at the instruction
conference, was as follows:
And I
am prepared to -- at least in my reading of the case law, to say that that
provision of the code which provides a sink and a sanitary toilet, provide a
liberty interest. That does not mean
that I am going to make any finding, because you can still -- well, even with the
liberty interest, you may not prevail on due process. But that was a motion that was made, and I declined to make it at
the time.
I am also going to
find that there is evidence to sustain -- that the jury could sustain a finding
of negligence on the part of the warden and of the then head of the Division of
Corrections -- now Department. And I
would only say I would never go too afar to grant summary judgment in either of
those areas, because they are an issue of fact. And I think the defense put that squarely at issue by either
necessity or emergency.
(Emphasis supplied).
Thus,
the trial court's ruling went only to the existence of a liberty interest; not
to whether a deprivation occurred, or whether any deprivation was rationally
related to a legitimate state interest, or whether a deprivation had occurred
without proper procedural process. As
to these latter issues, the court had apparently concluded that "even with
the liberty interest, [inmates] may not prevail on due process" since
there were "issue[s] of fact" that the officials had put
"squarely at issue." These issues
were put to the jury and were decided adversely to the inmates.
The
inmates do not argue on appeal that the jury was improperly instructed on the
Fourteenth Amendment claims, or that the form of verdict did not fairly and
fully address the issues to be tried.
They point to no improper evidentiary rulings or other errors by the
court in the trial of their Fourteenth Amendment claims. Even though they failed to move for a
directed verdict on those claims, either at the close of evidence or
post-verdict, they now argue that there was no credible evidence to support the
jury verdict.
In
denying the inmates' post-verdict motions on their Eighth Amendment and
negligence claims, the trial court made the following observations regarding
the evidence at trial:
The three [inmates] in this action have
extensive disciplinary records in the prison system and on many occasions have
been violent and destructive.... In the
instances that the [inmates] were placed in cell 46, they were, for the most
part, initially on control status because of their violent and destructive
behavior.... During this period of time, CCI was overcrowded and some of the
cells in the seg unit had been damaged and could not be used.
....
The
three [inmates] were viewed as dangerous, difficult to manage and very
destructive. Also the institution was
overcrowded and some observation cells were out of order because of damage and
could not be used.
....
Prisons in many ways are demeaning and humiliating to
inmates. By their very nature, prisons
deprive inmates of many liberties. For
the most part, the three [inmates] testified how degrading and humiliating it
was to be housed in cell 46 and any harm suffered was emotional. By choosing not to find any causation
between the negligence of the [officials] and the alleged harm the [inmates]
suffered, the jury could infer that [inmates] were in this area of segregation
because of their violent and disruptive behavior and any emotional trauma
visited upon them was their own doing.
Thus,
the trial court was satisfied, based on the evidence at trial, that the jury
could properly find that no acts of the officials caused harm to any of the
inmates. Our review of the record does
not lead us to conclude otherwise.
There was credible evidence in the record to support the jury's findings
that: (1) the officials did not violate
the inmates' rights to procedural and substantive due process; (2) the
officials' actions were not the cause of harm to the inmates; and (3) the
inmates had not proven they suffered compensable damages.
"A
probable miscarriage of justice exists only if the evidence and law are such
that the defendants probably should have won and therefore deserve another
chance, or if errors during the trial deprive the defendants of a fair and full
trial of all the issues of the case."
Ford Motor Co. v. Lyons, 137 Wis.2d 397, 422, 405 N.W.2d
354, 364 (Ct. App. 1987) (citations omitted).
Our review of the record does not convince us that either circumstance
is present. We therefore decline to
exercise our discretion under § 752.35, Stats.,
to reverse the judgment on the jury's verdict.
c.Cross
Appeal: Summary Judgment on Cell
Temperature Claims
We
review an order for summary judgment de novo, applying the same standards as
the trial court. See Voss
v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625, 629
(1991). Summary judgment is proper when
the pleadings, answers, admissions and affidavits show no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law. Maynard v. Port Publications,
Inc., 98 Wis.2d 555, 558, 297 N.W.2d 500, 502-03 (1980). Inmate Kirsch claims that the trial court
erred in dismissing on summary judgment his Eighth and Fourteenth Amendment
claims regarding lack of adequate heat and improper restraint. He argues he had placed in dispute issues of
material fact that precluded summary judgment.
We
agree with the officials that Kirsch's claim for violation of his right to
substantive due process under the Fourteenth Amendment must rise or fall with
his concurrent claim for violation of the Eighth Amendment's prohibition
against cruel and unusual punishment. See
Whitley v. Albers, 475 U.S. 312, 327 (1986) (Due Process Clause
affords inmate no greater protection than does the Cruel and Unusual Punishment
Clause). As to the claim that cold cell
temperatures deprived Kirsch of a liberty or property interest without
procedural due process, Kirsch's submissions acknowledge that he was in various
forms of segregation status and often in full restraints when he was exposed to
the allegedly inadequate cell temperatures.
Yet, as the trial court noted, Kirsch makes no claim that his procedural
due process rights were violated when he was placed in segregation and
restrained. Thus, it is the deprivation
of proper cell warmth, not Kirsch's segregated or restrained status, that must
be examined for procedural inadequacies.
An
affidavit by CCI's buildings and grounds supervisor states that the
institution's heating, ventilation and air conditioning (HVAC) systems were computer
regulated from a security access location in accordance with applicable
provisions of the Wisconsin Administrative Code. Only "qualified, trained maintenance personnel have
access" to the controls, and the settings in the segregation unit are maintained
at 76 degrees during the heating season and 80 degrees in the summer. Kirsch's submissions do not contradict these
statements.
Any
deficiencies in segregation cell temperature that might have occurred were thus
not intentional actions directed toward Kirsch but were "random and
unauthorized," not unlike losing an inmate's mail. See Parratt v. Taylor, 451
U.S. 527, 541, 544 (1981) (Fourteenth Amendment not intended to be a font of
tort law, supplanting state law remedies).
Moreover, Kirsch himself alleges that he initiated complaints about the
segregation cell temperature to various prison authorities. The existence of inmate complaint
investigation and review procedures and the opportunity to seek common law tort
damages in a post-deprivation civil suit, such as this one, provide Kirsch
adequate remedies for the alleged cold cell temperatures. See Irby v. Macht, 184
Wis.2d 831, 850-51, 522 N.W.2d 9, 16-17, cert. denied, 115 S. Ct. 590
(1994).
We
thus conclude that dismissal of Kirsch's Fourteenth Amendment claims for cold
cell temperatures was proper. We next
consider whether his Eighth Amendment claim based on cold cell temperatures was
properly dismissed.
[I]n order for a condition of confinement to be
considered cruel and unusual it must be either: (a) "grossly disproportionate to the severity of the
crime" warranting punishment, (b) involve the [sic] "the wanton and
unnecessary infliction of pain" or (c) deprive "inmates of the
minimal civilized measure of life's necessities."
Mitchell v. Maynard, 80 F.3d 1433, 1441-42 (10th Cir. 1996) (quoting Rhodes
v. Chapman, 452 U.S. 337, 347 (1981)).
We agree with Kirsch that an allegation of inadequate heating may state
an Eighth Amendment violation. See
Chandler v. Baird, 926 F.2d 1057, 1064-65 (11th Cir. 1991); Lewis
v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987). And, Kirsch's averments that cell temperatures were often between
50 and 60 degrees at times when he was naked and restrained, causing him to
shiver uncontrollably, squarely places at issue whether he was deprived of a
"minimal civilized measure of life's necessities."
The
existence of an inhumane condition itself, however, is not sufficient to prove
a violation of the Eighth Amendment:
[C]onduct that does not purport to be punishment at all
must involve more than ordinary lack of due care for the prisoner's interests
or safety.... It is obduracy and wantonness, not inadvertence or error in good
faith, that characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause, whether that conduct occurs in connection with establishing
conditions of confinement, supplying medical needs, or restoring official
control over a tumultuous cellblock.
Whitley v. Albers, 475 U.S. 312, 319 (1986). The requisite state of mind on the part of officials that must be
alleged and proven in prison-conditions cases is "`deliberate
indifference' to inmate health or safety," Farmer v. Brennan, 511 U.S. ___, 114 S. Ct. 1970,
1979 (1994), which is to be determined subjectively:
We hold ... that a prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.... But an official's failure to alleviate
a significant risk that he should have perceived but did not, while no cause
for commendation, cannot under our cases be condemned as the infliction of
punishment.
Id.
Kirsch
stated in his affidavit that he and other inmates frequently told Murphy and
another official of the cold cell temperatures, and that the officials not only
failed to rectify the matter but made comments to the effect that better
behavior would gain Kirsch a warmer cell.
The officials' affidavits in support of their motion for summary
judgment set forth the previously cited facts regarding CCI's HVAC control
system. The officials also provided
Kirsch's prison medical records for the period he was in segregation.
Kirsch
had regular and frequent contacts with medical personnel during this
period. Entries indicate Kirsch was
treated for leg and chest wounds and for various minor injuries resulting from
his disruptive and destructive behavior.
On many occasions he refused medications and dressing changes. Medical personnel were also called upon to
monitor him when in full restraints.
Although Kirsch avers that he complained to medical staff about the cold
temperatures, the extensive medical records for the period in question contain
no indication that Kirsch either complained of or exhibited any physical
effects or symptoms as a result of cold cell temperatures.
Thus,
while factual disputes may exist with respect to what the temperature in the
cells was, at various times, and with respect to whom Kirsch complained and how
they responded, there is no dispute that:
(1) the HVAC system was centrally controlled by maintenance staff and
was set to provide adequate heat and proper cooling to the segregation cells,
and (2) Kirsch exhibited no symptoms or other manifestations that his health or
safety was at serious risk from inadequate cell temperatures while in
segregation. The undisputed facts
remove Kirsch's claim from the realm of the Eighth Amendment, and place it
instead within ordinary tort law negligence.
See Farmer v. Brennan, 511 U.S. ___, 114 S. Ct. 1970, 1979
(1994). Even if we accept, as we must
on summary judgment, Kirsch's statements that the cell temperatures were too
cold, and that he informed officials of that fact, the record on summary
judgment establishes that the cold cell temperatures were not deliberately
inflicted as punishment and that the officials did not know of and disregard
"an excessive risk to inmate health or safety." Id.
We
therefore conclude that the trial court did not err in dismissing on summary
judgment Kirsch's constitutional claims based upon cold cell temperatures. He does not appeal, and we do not address,
the trial court's dismissal of the cold cell claim grounded in state law
negligence.
Based
on the foregoing, we reverse the circuit court's judgment awarding damages to
the inmates and direct that judgment be entered on the jury's verdict. The December 8, 1992 order for summary
judgment dismissing Kirsch's cold cell temperature claims is affirmed.
By
the Court.—Judgment reversed;
order affirmed and cause remanded with directions.
Not
recommended for publication in the official reports.
[1] The Fourteenth Amendment to the United States
Constitution provides in part: "nor shall any State deprive any person
of life, liberty, or property, without due process of law."
[2] Section 805.16(3), Stats., provides as follows:
(3) If within 90 days after the verdict is rendered the
court does not decide a motion after verdict on the record or the judge, or the
clerk at the judge's written direction, does not sign an order deciding the
motion, the motion is considered denied and judgment shall be entered on the
verdict.
[3] Kirsch's cross-appeal is from the December 8,
1992 order for summary judgment dismissing his Eighth and Fourteenth Amendment
claims based on cold cell temperatures.
[4] It is not clear what relief under
§ 805.14, Stats., the court
was ordering in its April 28, 1995 decision, since the inmates had made no
motion for either a directed verdict or judgment notwithstanding the verdict on
their Fourteenth Amendment claims. In
their brief, the inmates argue that the court "effectively granted a
motion for direct[ed] verdict in favor of [the inmates] after withholding a
decision after the close of evidence."
As we later discuss, the record does not support this view since no such
motion was made at the close of evidence.
[5] The inmates could perhaps argue that
§ 805.16(3), Stats., does
not apply because the trial court was not "deciding a motion after
verdict" when it sua sponte awarded the inmates damages on their
Fourteenth Amendment claims. The
inmates had not sought relief from the adverse verdicts on the Fourteenth
Amendment claims in their post-verdict motions. We rejected a similar argument, however, in Schmidt v.
Smith, 162 Wis.2d 363, 368-69, 469 N.W.2d 855, 857 (Ct. App. 1991),
where we concluded that "a trial court's authority, whether express or
implied, to sua sponte grant a new trial `is subject to statutory time limits
governing the parties' motions.'"
[6] Section 752.35, Stats., provides as follows:
In an appeal to the
court of appeals, if it appears from the record that the real controversy has
not been fully tried, or that it is probable that justice has for any reason
miscarried, the court may reverse the judgment or order appealed from,
regardless of whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to the trial
court for entry of the proper judgment or for a new trial, and direct the
making of such amendments in the pleadings and the adoption of such procedure
in that court, not inconsistent with statutes or rules, as are necessary to
accomplish the ends of justice.