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2013 S.D. 91
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
PEGGY HEWITT, Plaintiff and Appellant,
v.
SHELLI RAE FELDERMAN, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBIN J. HOUWMAN
Judge
****
STEPHANIE R. AMIOTTE
Sioux Falls, South Dakota Attorney for plaintiff
and appellant.
MELANIE L. CARPENTER of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
ARGUED SEPTEMBER 30, 2013
OPINION FILED 12/11/13
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GILBERTSON, Chief Justice
[¶1.] Peggy Hewitt appeals a jury verdict awarding no damages in a
personal injury suit against Shelli Rae Felderman. Hewitt argues the evidence did
not support the verdict, the court erred in denying a motion for directed verdict, and
the court erred in denying attorney’s fees and costs. Felderman challenges the
court’s denial of costs and disbursements and the admissibility of certain expert
testimony offered at trial. We affirm.
Facts and Procedural History
[¶2.] Peggy Hewitt was involved in two separate rear-end collisions that
were the subject of the trial court action below. Hewitt was in the front vehicle
during both accidents. The first accident occurred in the morning hours of January
11, 2007. Hewitt was stopped at a stop sign off the Benson Road exit of I-229 in
Sioux Falls when she was rear-ended by Dwight Berens. Berens admitted fault in
the accident and is not a party to this appeal.
[¶3.] Following the first accident, Hewitt complained of pain and numbness
in her head, neck, and left arm. She was diagnosed with spinal sprain and strain
injuries. A chiropractor, a physical therapist, and other medical specialists treated
Hewitt for loss of sensation, pain, headaches, and range of motion problems. Hewitt
was receiving treatment on a regular basis at the time of the second accident.
[¶4.] The second accident occurred at approximately 7:30 a.m. on June 27,
2008. Hewitt’s son, Micah Hewitt, was driving Hewitt’s 2006 Grand Prix
westbound in the passing lane on I-229 with Hewitt in the passenger seat. Near the
26th Street Bridge, a deer ran onto the interstate from a grassy area beside the
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road. Hewitt’s son braked, but was unable to avoid a collision with the deer. While
the Hewitt vehicle was slowing or stopped, it was struck on the passenger side of
the rear bumper by a 2005 Ford Expedition driven by Shelli Rae Felderman.
[¶5.] Felderman was given a citation for following too closely and paid the
fine without objection. Before and during trial, Felderman admitted to the
uncontested citation, but maintained that she was not negligent in causing the
accident. Hewitt filed suit against both Berens and Felderman for injuries
sustained in the two accidents. The two lawsuits were combined in a single jury
trial held December 10-14, 2012.
[¶6.] At the close of the case, Hewitt moved for a directed verdict against
Felderman on the issue of negligence. The trial court denied the motion. The trial
court noted that there were reasonable grounds for the jury to find that the sudden
emergency doctrine excused any negligence on the part of Felderman.
[¶7.] The jury found Berens liable in the 2007 collision, and awarded Hewitt
$60,000 against Berens for past and future medical expenses and pain and suffering
arising from the first accident. The jury awarded no damages to Hewitt against
Felderman for the 2008 collision. The jury’s decision was rendered through special
verdict. When asked “Was Shelli Felderman negligent in causing the June 27, 2008
collision?” the jury responded affirmatively. However, when asked “Was Shelli
Felderman’s negligence a legal cause of plaintiff’s injuries or damages, if any?” the
jury responded in the negative.
[¶8.] After trial, Hewitt filed a motion for a new trial on the issue of
damages, arguing insufficiency of evidence to support the verdict and inadequate
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damages. Hewitt also filed a motion for attorney’s fees and costs, arguing that
Felderman’s failure to admit negligence unnecessarily increased the time and cost
associated with bringing the case to trial. The court denied these motions.
Felderman moved as the prevailing party to recover specific costs and
disbursements in the amount of $2,883.57. The court also denied this motion,
finding that neither party prevailed.
[¶9.] The parties raise five issues in this appeal:
1. Whether the trial court abused its discretion by denying
Hewitt’s motion for directed verdict.
2. Whether the trial court abused its discretion by denying
Hewitt’s motion for a new trial on the issue of damages.
3. Whether the trial court abused its discretion by denying
Hewitt’s motion for attorney’s fees and costs.
4. Whether the trial court abused its discretion by denying
Felderman’s motion for costs and disbursements as the
prevailing party.
5. Whether the trial court erred in allowing testimony
regarding future medical procedures.
Analysis and Decision
[¶10.] 1. Whether the trial court abused its discretion by denying Hewitt’s
motion for directed verdict.
[¶11.] Hewitt first argues that the trial court abused its discretion by denying
Hewitt’s motion for a directed verdict on the issue of Felderman’s negligence.
However, after the motion was denied, the jury rendered a verdict that did find
Felderman negligent under the circumstances. “An appeal will be dismissed as
moot where . . . the actual controversy ceases and it becomes impossible for the
appellate court to grant effectual relief.” Cody v. Edward D. Jones & Co., 502
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N.W.2d 558, 563 (S.D. 1993) (citation and internal quotation marks omitted). A
case is moot when the issue presented is academic or nonexistent and when
“judgment, if rendered, will have no practical legal effect upon the existing
controversy.” Investigation of the Highway Constr. Indus. v. Bartholow, 373 N.W.2d
419, 421 (S.D. 1985) (quoting Maxwell v. State, 261 N.W.2d 429, 432 (S.D. 1978)).
[¶12.] Hewitt urges this Court to find there was no legally sufficient
evidentiary basis for a reasonable jury to find for Felderman on the issue of
negligence. The controversy Hewitt puts before this Court—whether Felderman
acted negligently—was already resolved by the jury in favor of Hewitt. It becomes a
purely academic exercise for this Court to determine whether the question of
negligence should have been submitted to the jury. Because this Court has no
“effectual relief” to grant, the issue is moot.
[¶13.] 2. Whether the trial court abused its discretion by denying Hewitt’s
motion for a new trial on the issue of damages.
[¶14.] Hewitt next argues that the trial court erred by denying her motion for
a new trial on the issue of damages. A trial court’s denial of a motion for a new trial
is reviewed under an abuse of discretion standard. Alvine Family Ltd. P’ship v.
Hagemann, 2010 S.D. 28, ¶ 18, 780 N.W.2d 507, 512-13 (citation omitted). This
Court will uphold a jury verdict “if the jury’s verdict can be explained with reference
to the evidence,” viewing the evidence in a light most favorable to the verdict. Id. ¶
18 (citing Itzen v. Wilsey, 440 N.W.2d 312, 314 (S.D. 1989)). This Court should only
set a jury’s verdict aside in “extreme cases” where the jury has acted under passion
or prejudice or where “the jury has palpably mistaken the rules of law.” Roth v.
Farner-Bocken Co., 2003 S.D. 80, ¶ 10, 667 N.W.2d 651, 659 (quoting Biegler v. Am.
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Family Mut. Ins. Co., 2001 S.D. 13, ¶ 32, 621 N.W.2d 592, 601). In its order
denying the motion for new trial, the trial court found “the verdict can be explained
with reference to the evidence[.]” We agree.
[¶15.] Hewitt argues that the jury ignored uncontested causation and
damages evidence in this case, 1 and that the trial judge’s explanation of the jury
verdict using the sudden emergency doctrine 2 would not support the jury’s award of
zero damages. Although the trial judge did focus on the sudden emergency doctrine
as supporting the verdict, 3 we need not follow that same rationale to uphold the
1. Hewitt cites SDCL 15-6-59(a), which allows for a new trial based on excessive
or inadequate damages, or for “[i]nsufficiency of the evidence to justify the
verdict[.]”
2. The jury was given South Dakota Pattern Civil Jury Instruction 20-30-30,
which states:
When a person is confronted with a sudden emergency, the
person has a duty to exercise the care that an ordinarily prudent
person would exercise in the same or similar situation. The
defendant is not relieved of liability because of a sudden
emergency unless, based on the facts, you find:
(1) that the defendant was confronted with a sudden and
unexpected danger; and
(2) that defendant’s own negligence did not bring about the
situation; and
(3) that the defendant had at least two courses of action
available after perceiving the dangerous situation; and
(4) that the defendant’s choice of action after confronting the
danger was a choice which a reasonably prudent person
would have taken under similar circumstances, even
though it may later develop that some other choice would
have been better.
3. The trial judge stated in a letter decision accompanying the Order Denying
Plaintiff’s Motion for New Trial, “Here the verdict can be explained because
the jury could have determined that Ms. Felderman’s negligence did not
bring about the dangerous situation and that the dangerous situation was
(continued . . .)
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jury verdict in this case. If the verdict is susceptible to more than one construction,
this Court applies the construction which will uphold the verdict. Morrison v.
Mineral Palace Ltd. P’ship, 1998 S.D. 33, ¶ 11, 576 N.W.2d 869, 872 (citation
omitted).
[¶16.] “In order to prevail in a suit based on negligence, a plaintiff must prove
duty, breach of that duty, proximate and factual causation, and actual injury.”
Highmark Fed. Credit Union v. Hunter, 2012 S.D. 37, ¶ 9, 814 N.W.2d 413, 415
(citation omitted). In this case, the jury was asked in Special Verdict Form 2, “Was
Shelli Felderman’s negligence a legal cause of plaintiff’s injuries or damages, if
any?” The jury responded, “no.” By this response the jury indicated that Hewitt
failed to establish the causation element of her negligence case against Felderman.
Viewing the evidence in the light most favorable to the verdict, we conclude that
this verdict can be explained with reference to the evidence presented.
[¶17.] To prove causation, Hewitt relied heavily on the testimony of her
doctors. Hewitt argues that she presented undisputed “medical legal causation”
evidence at trial. Although the jury heard expert testimony stating that Hewitt
likely sustained a mild cervical sprain or aggravation during the crash, “the jury is
not obligated to accept an expert’s opinion and may disregard the testimony if it
desires.” Andreson v. Black Hills Power & Light Co., 1997 S.D. 12, ¶ 10, 559
N.W.2d 886, 889 (citing State v. McCord, 505 N.W.2d 388, 394 (S.D. 1993)). “[T]he
purpose of expert testimony is to assist the jury as the trier of fact and not to
________________________
(. . . continued)
the deer running onto the road and into the vehicle in which Ms. Hewitt was
a passenger.”
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supplant it.” Bridge v. Karl’s, Inc., 538 N.W.2d 521, 525 (S.D. 1995) (citation
omitted). “This state is not a trial-by-expert jurisdiction.” Id.
[¶18.] The jury had several reasons to reject the expert testimony presented.
First, most of the medical expert testimony offered in this case was based on
Hewitt’s subjective complaints of pain. The jury was presented with significant
evidence calling into question the credibility of these complaints. Hewitt’s primary
claim against Felderman was for injuries to the right side of Hewitt’s neck and her
right shoulder, but Hewitt’s own testimony was inconsistent as to when she first
started complaining of pain in these areas. Contrary to Hewitt’s testimony,
Hewitt’s doctors testified that Hewitt complained of pain and tenderness in her
right arm, shoulder, and neck, and restricted range of motion before the accident
with Felderman. Furthermore, jurors were presented with evidence that on at least
one occasion, Hewitt reported significant pain to one of her doctors, and the same
day reported feeling “well” to another doctor.
[¶19.] Other evidence presented in this case further undermined the causal
link between Felderman’s negligence and the alleged injuries for which Hewitt
sought damages. After the accident, Hewitt told Felderman that she was not
injured. Hewitt’s daughter, a nurse, came to the scene of the accident and left
without rendering aid or taking her mother to the emergency room. Furthermore,
the jury was presented with evidence that Felderman’s vehicle may not have been
damaged at all in the collision.
[¶20.] The jury in this case was also presented with several alternative
causes of the alleged injuries, including: (1) Micah Hewitt slamming on the brakes
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to avoid the deer and the subsequent collision with the deer; 4 (2) an accident in
Florida in March 2009 in which a pickup ran a red light and struck the vehicle in
which Hewitt was a passenger; (3) Hewitt falling down the stairs in her home; (4)
Hewitt riding Space Mountain and other rides at Disney’s Epcot Center, while
already suffering from spinal problems; 5 and (5) Hewitt overusing the right side of
her body to compensate for left side injuries sustained in the 2007 accident.
[¶21.] Given this evidence which supports the jury’s verdict, this Court is not
inclined to supplant the jury’s important role as finder of fact. Hewitt has failed to
prove that the jury acted under passion or prejudice, or that the jury palpably
mistook the rules of law in reaching its verdict. Accordingly, we conclude that the
trial court did not abuse its discretion by denying Hewitt’s motion for a new trial.
[¶22.] 3. Whether the trial court abused its discretion by denying Hewitt’s
motion for attorney’s fees and costs.
[¶23.] Finally, Hewitt contends that the trial court abused its discretion by
denying Hewitt’s motion for attorney’s fees and costs. A trial court’s ruling on the
award of attorney’s fees and costs is reviewed for an abuse of discretion. Eagle
4. At trial Hewitt’s experts referred to the term accident or “crash” generally.
The doctors did not distinguish between the Hewitt’s car striking the deer
and the collision between the two cars. Thus, the jury was left with no clear
evidence that the injuries complained of were caused specifically by
Felderman’s vehicle rather than any other force at work in this mixed-impact
accident.
5. Disney’s webpage for Space Mountain includes the following warning: “For
safety you should be in good health and free from high blood pressure, heart,
back or neck problems, motion sickness, or other conditions that could be
aggravated by this adventure. Expectant mothers should not ride.” During
cross-examination, Hewitt was asked if she recalled seeing any of these types
of warnings before getting on the ride. Hewitt said that she did not recall.
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Ridge Estates Homeowners Ass’n, Inc. v. Anderson, 2013 S.D. 21, ¶ 13, 827 N.W.2d
859, 865 (citation omitted). A trial court has “broad discretion with regard to
sanctions imposed.” Novak v. Novak, 2007 S.D. 108, ¶ 16, 741 N.W.2d 222, 228
(citing Stull v. Sparrow, 92 Cal. App. 4th 860, 864-66, 112 Cal. Rptr. 2d 239 (2001)).
South Dakota generally follows the “American Rule” on attorney’s fees, under which
each party usually bears the cost of their own attorneys. Rupert v. City of Rapid
City, 2013 S.D. 13, ¶ 32, 827 N.W.2d 55, 67 (citation omitted). However, an
exception to this rule exists if attorney’s fees are authorized by statute. Id. (citation
omitted).
[¶24.] Prior to trial, Hewitt served requests for admissions on Felderman,
asking Felderman to admit negligence in causing the accident. Felderman
responded by denying that she was negligent. Hewitt asserts that because
Felderman denied being negligent, Hewitt “incurred attorney’s fees and costs in the
amount of $35,094.26 to prove negligence and liability 6 against Defendant
Felderman.” Because the jury later found Felderman negligent, Hewitt asserts that
the trial court was required to order Felderman to pay the “reasonable expenses
6. It should be noted that Hewitt requested attorney’s fees and costs associated
with “proving negligence and liability.” Many of the attorney’s fees listed
appear to have been incurred while proving damages (e.g., “Comparison
summary of Dr. Segal’s Report,” “Letters to medical providers requesting
medical records and bills,” “Letter to Dr. Peterson with retainer for
deposition”).
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incurred in making that proof,” pursuant to SDCL 15-6-37(c). 7 Hewitt argues that
the trial court’s failure to order payment of these expenses was an abuse of
discretion. We disagree.
[¶25.] Although SDCL 15-6-37(c) says “the court shall” order payment of fees
incurred in making the proof, the exceptions found in SDCL 15-6-37(c)(2)
specifically grant the court discretion to deny the award of attorney’s fees and
expenses if the court finds “good reason” existed for a party to deny a request for
7. SDCL 15-6-37(c)(2) provides:
If a party fails to admit the genuineness of any document or the
truth of any matter as requested under § 15-6-36, and if the
party requesting the admissions thereafter proves the
genuineness of the document or the truth of the matter, the
requesting party may apply to the court for an order requiring
the other party to pay the reasonable expenses incurred in
making that proof, including reasonable attorneys’ fees. The
court shall make the order unless it finds that:
(A) The request was held objectionable pursuant to § 15-6-
36(a); or
(B) The admission sought was of no substantial
importance; or
(C) The party failing to admit had reasonable ground to
believe that the party might prevail on the matter; or
(D) There was other good reason for the failure to admit.
SDCL 15-6-36 provides in part:
A party may serve upon any other party a written request for
the admission, for purposes of the pending action only, of the
truth of any matters within the scope of subdivision 15-6-
26(b)(1) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including the
genuineness of any documents described in the request.
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admission. 8 This includes a reasonable belief by the party failing to admit that the
party “might prevail on the matter.” SDCL 15-6-37(c)(2)(C) (emphasis added). The
mere fact that a matter was later proved at trial does not establish that the party
denying the admission was unreasonable in believing they might prevail on the
matter. 9 See Richardson v. Ryder Truck Rental, Inc., 540 N.W.2d 696, 702 (Mich.
Ct. App. 1995) (citation omitted) (interpreting similar statutory language).
[¶26.] In this case, Felderman had good reason to deny the request for
admission, including a reasonable belief that she “might prevail on the matter.” In
denying Hewitt’s motion for directed verdict and submitting the issue of negligence
to the jury, the trial judge found that the issue of negligence involved a reasonable
question of fact to be determined by the jury. Although the jury did find Felderman
negligent, she had at least a reasonably defensible position. We therefore cannot
conclude that the judge could not find any “good reason” for Felderman to deny the
8. Conversely, the rule allows a court to reimburse a party for the costs of
proving facts, where the denial of those facts is indefensible. See Novak, 2007
S.D. 108, ¶ 16, 741 N.W.2d at 227-28. In Novak, this Court upheld an award
of attorney fees where the plaintiff denied fifty-seven requests for admissions
of fact, and all fifty-seven were later proven by the defendant. Id. ¶ 17. The
plaintiff in Novak denied that certain copies of checks were true and accurate
copies and denied that the endorsements on checks were his mother’s, even
though the checks were deposited into her account. Id. The Court found that
the plaintiff had given “scant support” for his failure to admit the accuracy or
authenticity of those records. Id. ¶ 18.
9. If this Court were to accept Hewitt’s contrary interpretation, the American
Rule would be effectively rendered null in a large category of our cases where
a party requests an admission and is later successful on the merits of the
case.
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request for admission. Accordingly, the trial court did not abuse its discretion by
denying the attorney’s fees requested by Hewitt.
[¶27.] 4. Whether the trial court abused its discretion by denying
Felderman’s motion for costs and disbursements as the
prevailing party.
[¶28.] We review the award of costs and disbursements, including the
determination of who was the prevailing party, under an abuse of discretion
standard. Crisman v. Determan Chiropractic, Inc., 2004 S.D. 103, ¶ 19, 687 N.W.2d
507, 512 (citation omitted); Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 32, 807
N.W.2d 612, 621 (citation omitted). The “prevailing party” in a civil action may
recover specific costs and disbursements “necessarily incurred in gathering and
procuring evidence or bringing the matter to trial.” SDCL 15-17-37. The prevailing
party is “the party in whose favor the decision or verdict is or should be rendered
and judgment entered.” Picardi v. Zimmiond, 2005 S.D. 24, ¶ 16, 693 N.W.2d 656,
661 (citation omitted).
[¶29.] The trial court denied Felderman’s application for taxation of
disbursements, finding that “neither plaintiff nor defendant are prevailing parties.”
Felderman argues that the trial court abused its discretion in finding there was no
prevailing party, because judgment was rendered in Felderman’s favor when the
jury awarded zero damages. As the prevailing party, Felderman argues that the
trial court should have allowed her to recover costs under SDCL 15-17-37.
[¶30.] Even if Felderman were the prevailing party, the trial court has broad
discretion under SDCL 15-17-52 to limit disbursements to a prevailing party “in the
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interest of justice.” 10 As we have previously stated:
A court is not required to grant recovery for disbursements
simply because a party has achieved the status of a prevailing
party. While SDCL 15-17-37 grants no discretion, SDCL 15-17-
52 allows a court to “limit the taxation of disbursements in the
interests of justice.” This statute grants discretion to deny
recovery of disbursements even though SDCL 15-17-37 does not.
Full House, Inc. v. Stell, 2002 S.D. 14, ¶ 25, 640 N.W.2d 61, 67 (quoting Culhane,
2000 S.D. 101, ¶ 33, 615 N.W.2d at 590 (alterations and internal citations omitted).
Felderman has failed to carry her burden of convincing this Court that the trial
court’s order was not “in the interests of justice,” and thereby an abuse of discretion.
We conclude the trial court did not abuse its discretion and we affirm the trial
court’s denial of costs and disbursements.
[¶31.] 5. Whether the trial court erred in allowing testimony regarding
future medical procedures.
[¶32.] Finally, Felderman argues that the trial court erred in allowing
testimony regarding Hewitt’s potential need for future medical treatment. Because
we are affirming the jury’s complete denial of damages in this case, the issue is
moot.
Conclusion
[¶33.] Hewitt and Felderman have both failed to prove abuse of discretion by
the trial court. For the above stated reasons, we affirm the trial court on all issues.
10. We have held on several occasions that it is not an abuse of discretion to
limit, partially or completely, the award of disbursements and costs under
SDCL 15-17-52. See, e.g., DeHaven v. Hall, 2008 S.D. 57, 753 N.W.2d 429;
Culhane v. Michels, 2000 S.D. 101, 615 N.W.2d 580; Michlitsch v. Meyer,
1999 S.D. 69, 594 N.W.2d 731.
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[¶34.] KONENKAMP, ZINTER and SEVERSON, Justices, and DAY, Circuit
Court Judge, concur.
[¶35.] DAY, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.
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