COURT OF APPEALS
DECISION
DATED AND FILED
May 18, 2010
David
R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
Appeal No.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT III
|
|
|
|
|
Tyler A. Benjamin, by his Guardian ad Litem, D.J. Weis,
Plaintiff-Appellant,
v.
West Bend Mutual Insurance Company,
Defendant-Respondent.
|
|
|
|
|
|
|
|
APPEAL
from a judgment of the circuit court for Lincoln County: JAY R.
TLUSTY, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Tyler Benjamin, by his
guardian ad litem, appeals from a judgment, entered following a jury trial,
dismissing his wrongful death action for the loss of his father, Donald
Benjamin. Tyler’s complaint alleged his mother,
Patricia Benjamin, negligently caused a one-car accident in which both parents
were ejected from the vehicle and killed.
The jury, asked in separate questions whether Donald or Patricia was
driving at the time of the accident, answered, “No” to each, and also found
neither parent negligent. Tyler filed postverdict
motions for a new trial in the interest of justice and to amend his
complaint. Both were denied.
¶2 On appeal, Tyler
contends the circuit court erroneously exercised its discretion when denying
his postverdict motions. We conclude the
circuit court properly exercised its discretion. Tyler
further claims we should order a new trial in the interest of justice. Tyler
has not demonstrated a miscarriage of justice warranting exercise of our
discretionary review authority.
BACKGROUND
¶3 Tyler’s
complaint alleged that on December 18, 2005, Patricia negligently caused a
one-car accident. The car left the road
and flipped, ejecting Patricia and Donald.
Both were killed. The complaint
further alleged that Patricia was an insured under a policy issued by West Bend. Tyler
sought recovery for the loss of society, companionship, and financial support
of his father, as well as medical and funeral expenses.
¶4 A jury trial took place over three days. Tyler
called mechanical engineer Dennis Skogen, who testified that, based on the
position of the seats and other physical evidence at the scene, he believed Patricia
was likely the driver and Donald the passenger.
West Bend
retained Robert Krenz, an expert in engineering mechanics, who testified there
was insufficient physical evidence to determine the driver’s identity. Tyler and other family members testified
Patricia usually drove the vehicle, but admitted Donald occasionally drove. The jury returned the following special
verdict:
Question 1: Was
Patricia Benjamin the driver of the P.T. Cruiser at or immediately prior to the
time of the accident?
ANSWER: No
Question 2: Was Donald
Benjamin, Jr. the driver of the P.T. Cruiser at or immediately prior to the
time of the accident?
ANSWER: No
Question 3: Regardless of
how you have answered questions 1 and 2, answer this question: Was Patricia Benjamin negligent at or
immediately prior to the time of the accident?
ANSWER: No
Question 5: Answer
this question regardless of how you have answered any of the previous
questions: Was Donald Benjamin, Jr.
negligent at or immediately prior to the time of the accident?
ANSWER: No
¶5 On November 18, 2008, Tyler
filed a postverdict motion for a new trial in the interest of justice on three
grounds. First, he asserted the jury findings
were contrary to the great weight and clear preponderance of the evidence. See Wis. Stat. § 805.15(1). Second, he claimed the jury verdict was
inconsistent as to the driver’s identity.
Lastly, in Tyler’s
view, the court should have declared a mistrial because the verdict on the
driver’s identity represented a deadlocked jury. The circuit court denied the motion after
reviewing the jury instructions and the evidence presented at trial.
¶6 Tyler
filed an additional motion on December 23, 2008, to amend the complaint to add
a new claim allowing a jury to determine whether an unspecified driver was
negligent. Tyler believed that, under his new theory, if
either parent was negligent, he was “entitled to recover at least the lower of
the two amounts assessed as damages relating to the loss of his parents.” The trial court denied the motion, finding it
lacked competency to consider it because it was not timely filed. Nevertheless, the trial court also reached
the merits of Tyler’s motion and found justice did not require the
amendment: “[A] strategy was taken by the Plaintiff, the case
thoroughly prepared by the attorneys and tried and the jury coming back with
its decision unanimously; that decision can clearly be understood based upon
the evidence … presented … and the law.”
DISCUSSION
1. Did the Circuit
Court Properly Deny Tyler’s
Wis. Stat. § 805.15(1)
Motion?
¶7 Tyler
first claims the circuit court erred by denying a new trial in the interest of
justice because the jury findings are contrary to the great weight and clear
preponderance of the evidence. See Krolikowski
v. Chicago & N.W. Transp. Co., 89 Wis. 2d 573, 580, 278 N.W.2d 865
(1979). This court owes great deference
to a court’s decision denying a new trial because the trial court is in the
best position to observe and evaluate the evidence. See Sievert v. American Fam. Mut. Ins. Co.,
180 Wis. 2d
426, 431, 509 N.W.2d 75 (Ct. App. 1993). Thus, we will not disturb the circuit court’s
decision unless the court erroneously exercised its discretion. Id. “Our role is not to seek to sustain the
jury’s verdict but to look for reasons to sustain the trial court.” Id. We will reverse the trial court only if its
decision is based upon a mistaken view of the evidence or an erroneous view of
the law. Id.
¶8 The circuit court appropriately exercised its
discretion. Reviewing the testimony
presented, the court acknowledged that one expert opined Patricia was likely
the driver, while the other was not able to reach a conclusion. It noted the testimony of Tyler’s family that Patricia often, but not
always, drove. In addition, the court recited instructions
admonishing the jury that “a guess is not enough to meet the burden of proof.” Based on the evidence presented, the court determined
the jury could properly find the driver’s identity was not sufficiently
established. While there was certainly
evidence supporting Tyler’s
theory, we cannot say the circuit court erroneously exercised its discretion in
concluding that the jury verdict was not against the great weight and clear
preponderance of the evidence.
¶9 The court also properly determined the special verdict was
not inconsistent. “An inconsistent
verdict is one in which the jury’s answers are ‘logically repugnant to one
another.’” Kain v. Bluemound E. Indus. Park,
Inc., 2001 WI App 230, ¶40, 248 Wis. 2d 172, 635 N.W.2d 640
(quoting Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 228, 270
N.W.2d 205 (1978)). A verdict in which
the jury finds an individual’s negligence was not causal, and then proceeds to
attribute a portion of the responsibility to him or her, is one example of an
inconsistent verdict. See Westfall
v. Kottke, 110 Wis. 2d
86, 93, 328 N.W.2d 481 (1983).
¶10 The special verdict in this case is not inconsistent. With respect to the driver’s identity, it is
true that, based on the evidence presented, either Patricia or Donald must have
been driving. It does not follow that
the jury was required to simply select one or the other. Tyler
pled and tried the case on the theory that his mother was driving, and he bore
the burden of persuasion on that issue. The
special verdict does not reflect a finding that no one was driving the vehicle,
as Tyler
suggests, but instead demonstrates a failure of proof. In the circuit court’s words, “The jury can’t
be required to pick one person over the other as the driver if the jury is not
satisfied by the burden of proof required under the law.” The circuit court reached the correct legal
conclusion and properly denied Tyler’s
motion.
2. Did the Circuit
Court Properly Deny Tyler’s
Motion to Amend the Pleadings?
¶11 Tyler’s
motion to amend his pleadings to assert a new claim was filed after the jury
trial. Tyler argues the circuit court erred when
finding his motion to amend untimely.
Citing Wis. Stat. § 802.09(2),
Tyler argues
“motions to amend the pleadings can be made at any stage of the proceedings,
even after judgment is entered.” Section
802.09(2), however, governs amendment of the pleadings to conform to the
evidence. Here, Tyler did not seek to amend the pleadings to
conform to the evidence, but for an entirely new trial on a different theory of
the case.
¶12 Instead, Wis. Stat. § 802.09(1)
governs Tyler’s
amendment request: If more than six months have passed since the
original complaint was filed, “a party may amend the pleading only by leave of
court … and leave shall be freely given at any stage of the action when justice
so requires.” Whether to allow amendment is a discretionary decision that will be
upheld unless the court failed to exercise its discretion, the facts do not
support the court’s decision, or the court applied the wrong legal standard. Wilson v.
Tuxen, 2008 WI App 94, ¶36, 312 Wis. 2d
705, 754 N.W.2d 220.
¶13 Here,
the circuit court, citing the factors in Mach v. Allison, 2003 WI App 11,
¶27, 259 Wis. 2d
686, 656 N.W.2d 766, determined justice did not require the amendment. The court emphasized the importance of
finality, noting “there were over [two] years of trial preparation and a
[three]-day jury trial took place in October of 2008. The Plaintiff chose a strategy and given the
uniqueness of this case that strategy did not produce the results that Tyler
Benjamin desired.” Citing Sutter
v. DNR, 69 Wis. 2d
709, 718-19, 233 N.W.2d 391 (1975), and analogizing to the appellate courts’
authority to order a new trial in the interest of justice, the circuit court
noted the general disfavor with which courts view allowing a losing party to
litigate alternative theories in a second trial. The court reiterated its belief that the jury
verdicts were sound and merely reflected a failure of proof. Our review confirms the court properly
exercised its discretion when denying Tyler’s
motion to amend.
3. Is Tyler Entitled to a New Trial In the Interest
of Justice Under Wis. Stat. § 752.35?
¶14 Tyler requests we use our
discretionary reversal authority to order a new trial under Wis. Stat. § 752.35 because
justice has miscarried. “This
court approaches a request for a new trial with great caution. We are reluctant to grant a new trial in the
interest of justice, and thus we exercise our discretion only in exceptional
cases.” State v. Armstrong, 2005
WI 119, ¶114, 283 Wis. 2d
639, 700 N.W.2d 98 (citation omitted).
“In order to grant a discretionary reversal for a miscarriage of
justice, there must be a substantial probability of a different result on
retrial.” State v. Wery, 2007 WI
App 169, ¶21, 304 Wis. 2d
355, 737 N.W.2d 66.
¶15 Tyler argues it is unfair that
he cannot recover for the death of one parent where the other was clearly
negligent and both were covered by West
Bend’s policy. However,
we cannot be certain that both parents were insured under the West
Bend policy because Tyler
has failed to include the policy in the appellate record. Instead, he cites his complaint as proof that
both Patricia and Donald were insured; but the complaint alleges only that “the
defendant, West Bend,
had issued a policy of insurance to Donald and Dorothy Benjamin d/b/a
Benjamin’s Greenery[,] … under which Patricia A. Benjamin was an insured.” We cannot conclude there has been a
miscarriage of justice from this record.
¶16 Finally, Tyler
claims he is entitled to a new trial because “the jury could not have actually
answered the negligence questions without first determining whether someone was
driving the vehicle at or immediately prior to the accident.” We accord substantial deference to the manner
in which a trial court frames a special verdict, and presume a jury has
followed the trial court’s instructions.
Schwigel v. Kohlmann, 2002 WI App 121, ¶¶10, 13, 254 Wis. 2d 830, 647
N.W.2d 362. Here, the special verdict
instructed the jury to answer the negligence questions regardless of how it
answered other questions. We cannot
conclude the jury’s inability to identify the driver prevented it from properly
assessing negligence.
CONCLUSION
¶17 The circuit court properly exercised its discretion in denying Tyler’s motions for a new
trial in the interest of justice and to amend his pleadings. Moreover, while we acknowledge this case is
unusual, Tyler
has not demonstrated his entitlement to a new trial on a miscarriage of justice
theory.
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.