Millies v. LandAmerica Transnation

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

RICHARD J. MILLIES, as trustee of the )
Richard J Millies Trust, and SUSAN P. )
)
MILLIES, as trustee of the Susan P Millies
Trust, ) No. 91301-3
)
Petitioners, )
)
v. ) EnBanc
)
LANDAMERICA TRANSNATION dba )
TRANSNATION TITLE INSURANCE )
COMPANY, a corporation conducting )
business in Washington, and FALCON, INC.,)
an Idaho corporation conducting business )
in Washington, ) Filed - - - - - - -
)
Respondents. )
___________________________)

GONZALEZ, J.-Richard and Susan Millies (collectively Millies)

purchased a secluded piece of property in Stevens County overlooking Deer

Lake. Unfortunately, their title company overlooked an easement that could

render the property far less secluded. The title insurer, LandAmerica

Transnation Title Insurance Company, conceded that the easement had been
Millies v. LandAmerica Transnation, No. 91301-3

overlooked in the title search and conceded coverage for the omission. After

the two sides could not agree on the proper amount of compensation, the

Millies sued on a variety of grounds. The jury returned a defense verdict.

We must decide whether to disturb that jury verdict. We find the claimed

jury instructional errors were not properly preserved, that the instructions

given are the law of the case before us, and that the plaintiffs are not entitled

to either judgment as a matter of law or a new trial. We affirm.

BACKGROUND

In 2006, after looking at several properties, the Millies bought 75

acres of rural land intending to build a new home for their retirement. The

Millies hired Columbia Title Company to research the title and obtained an

owner's title policy from LandAmerica. The title policy covered loss or

damage up to $250,000, the purchase price.

After the Millies bought the land, they learned that the property was

burdened by a substantial recorded easement that authorized public use of a

road bisecting their property. They also learned that a neighbor planned to

develop 50 condominium units on his property and to use the easement for

public access. The Millies contacted Columbia Title, who confirmed the

easement and gave the Millies information about filing a claim with

Transnation.

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The Millies submitted a claim seeking $125,000. A Transnation

claims representative contacted the Millies' attorney and conceded that the

Millies' claim was covered, but disagreed that the easement deprived the

property of half its value. Transnation contended that under the policy, the

appropriate measure of damages was the reduction in the property's value

due to the easement to be determined by a fair market appraisal.

Transnation hired an appraiser to conduct a diminution-in-value (DIV)

appraisal of the Millies' property. The appraiser determined the DIV was

$25,000. In November 2007, Transnation offered to pay that amount to the

Millies in full settlement of their claim. The Millies rejected that offer,

submitted a proof of loss, and requested $100,000 to settle. After more

investigation, Transnation stood by the initial determination of the loss.

Transnation sent the Millies a check for $25,000 on July 31, 2009. The

Millies rejected the offer and returned the check.

In August 2009, the Millies filed suit against Transnation for breach

of contract, breach of duties under the Consumer Protection Act and the

Insurance Fair Conduct Act, breach of duty of good faith, negligence, and

breach of warranty deed covenants. In its answer, Transnation denied

liability and asserted an affirmative defense that it fulfilled the terms of its

contract by investigating the Millies' claim and timely tendering payment

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Millies v. LandAmerica Transnation, No. 91301-3

based on a reasonable fair market appraisal. Transnation also hired a second

appraiser to reevaluate the Millies' claim. This appraiser valued the DIY at

$37,500.

At trial, the Millies called two appraisers who testified the easement

diminished the property's value by 50 percent, or $125,000. Transnation

called their appraisers, one of whom testified that the property's value was

diminished by $25,000, the other by $37,500. Transnation also called its

claims representatives who conceded on the stand that the company is liable

for the DIY loss under the Millies' policy and testified that $25,000 was its

reasonable, good faith attempt to settle the claim.

Near the end of trial, the parties submitted proposed jury instructions.

Both parties offered their own breach of contract instruction containing

similar language as to the elements of the claim. However, Transnation's

proposed breach of contract instruction included the affirmative defense

asserted in its answer.

The next day, both parties offered formal exceptions to the jury

instructions. The Millies made no specific objection to Transnation's

proposed breach of contract instruction, but did make a general objection to

the court not giving all of their proposed instructions. This broad objection

did not specify any particular jury instruction or identify any particular error.

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The Millies simply suggested the language in their proposed instructions

would be more helpful to the jury. The court adopted Transnation's breach

of contract instruction.

During jury deliberations, the jury asked whether it could make a

"recommendation about the settlement amount separate from the verdict

form?" Clerk's Papers (CP) at 497. The court referred the jury to its

previous instructions. Shortly afterwards, the jury returned a defense

verdict. The jury specifically found that Transnation did not breach its

contract with the Millies. Given that Transnation conceded the title

company had failed to find the recorded easement, the jury must have

concluded Transnation had satisfied its contractual obligations by

investigating and tendering reasonable payment.

The Millies moved for a new trial. In support of their motion, the

Millies presented declarations from three jurors, each stating they believed

Transnation violated at least one provision of law in attempting to settle the

claim. The declarants stated all the jurors agreed the Millies were entitled to

some award of damages, that the jurors were confused by the verdict form

and the instructions, and that they believed the judge would "pencil in" a fair

settlement amount. Id. at 531.

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The Millies also moved, for the first time, for judgment as a matter of

law. The trial court denied the motion. Although the trial court denied the

motion, it was not clear whether the DIY claim under the insurance policy

remained. The court asked the parties to brief this issue and held a hearing.

The court concluded:

[T]he jury followed the instructions that were given to it by the court.
And that's what they did. And they found that LandAmerica had
fulfilled its contract, and that's as far as they went. They weren't
saying that there shouldn't be a recovery on the outstanding amount,
but that wasn't given to them. They did not have that decision to be
made.

3 Verbatim Tr. ofProceedings (VTP) (Apr. 30, 2013) at 366. The court

subsequently entered a final order nlling that no issues remained for the

court or the trier of fact to consider in the case. The Millies appealed,

arguing that the trial court erred in giving Transnation's breach of contract

instruction and in denying the posttrial motion for a new trial. The Court of

Appeals affirmed. Millies v. LandAmerica Transnation, noted at 185 Wn.

App. 1024, 2015 WL 213 681, at *17. The court decided that the Millies had

not properly presented whether they were entitled to recover the $25,000

originally offered by Transnation to settle the claim and did not reach the

merits. Id. We granted review. 183 Wn.2d 1002, 349 P.3d 856 (2015).

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ANALYSIS

1. OBJECTION TO BREACH OF CONTRACT INSTRUCTION

The Millies challenge the breach of contract instruction, instruction 7,

on the theory it improperly included a defense alongside the elements of the

claim. Jury instruction 7 was based on a pattern jury instruction. It said:

Plaintiffs have the burden of proving each of the following
propositions on their claim of breach of contract:

( 1) That Plaintiffs entered into a contract with Defendant,
containing the following terms:
This policy is a contract of indemnity against actual
monetary loss or damage sustained or incurred by the
insured claimant who has suffered loss or damage by reason
of matters insured against by this policy and only to the
extent herein described.
The difference between the value of the insured estate or
interest as insured and the value of the insured estate or
interest subject to the defect, lien or encumbrance insured
against by this policy.

(2) That Defendant breached the contract as claimed by
Plaintiffs;

(3)That Plaintiffs were damaged as a result ofDefendant's
breach.

If you find from your consideration of all the evidence that any
of these propositions has not been proved, your verdict should be for
the Defendant. On the other hand, if each of these propositions has
been proved, then you must also consider the affirmative defense
claimed by the Defendant.

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Millies v. LandAmerica Transnation, No. 91301-3

Defendant has the burden of proving the following affirmative
defense:

(1) That Defendant fulfilled the terms of the contract with
Plaintiffs by investigating the claim and tendering payment in a timely
manner based on a reasonable fair market appraisal.

If you find from your consideration of all the evidence that
this affirmative defense has been proved, your verdict should be
for Defendant on this claim. On the other hand, if this
affirmative defense has not been proved, then your verdict
should be for Plaintiffs on this claim.

CP at 476; see also 6AWASHINGTONPRACTICE: WASHINGTONPATTERN

JURY INSTRUCTIONS: CNIL 300.03, at 186 (2012).

The Millies contend that the instruction was misleading and the

included affirmative defense was a defense only to the tort claims, not to the

breach of contract claim. We must first decide whether any error was

preserved.

A party who objects to a jury instruction must "state distinctly the

matter to which counsel objects and the grounds of counsel's objection,

specifying the number, paragraph or particular part of the instruction to be

given or refused." CR 5l(f). This gives the trial court the opportunity to

remedy instructional error and reduces unnecessary appeals and retrials.

Estate ofRyder v. Kelly-Springfield Tire Co., 91 Wn.2d 111, 114, 58 7 P .2d

160 (1978) (quoting Roumel v. Fude, 62 Wn.2d 397, 399-400, 383 P.2d 283

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Millies v. LandAmerica Transnation, No. 91301-3

(1963)). The objection must be "sufficient to apprise the trial judge of the

nature and substance ofthe objection." Crossen v. Skagit County, 100

Wn.2d 355, 358, 669 P.2d 1244 (1983) (citing Stewart v. State, 92 Wn.2d

285, 298, 597 P.2d 101 (1979)). Failure to make an adequate objection may

preclude appellate review of that instruction. Bitzan v. Parisi, 88 Wn.2d 116,

125, 558 P.2d 775 (1977); Berry v. Howe, 34 Wn.2d 403, 409, 208 P.2d

1174 (1949).

Hypertechnicality is not required. As long as the trial court

understands why a party objects to a jury instruction, the objection is

preserved for review. Washburn v. City ofFederal Way, 178 Wn.2d 732,

747, 310 P.3d 1275 (2013). We have found "extended discussions" on the

record about a particular jury instruction sufficient to preserve the objection.

Crossen, 100 Wn.2d at 359; Washburn, 178 Wn.2d at 747-48. Similarly, an

objection to a trial court's failure to give a competing instruction may

preserve an objection to the instruction actually given, so long as the

challenger clearly informed the court of the basis of the objection. Falk v.

Keene Corp., 113 Wn.2d 645, 658, 782 P.2d 974 (1989). Falk involved a

products liability claim against a manufacturer. Id. at 646. The Falks did

not object to the negligence instruction given, but did object to the court's

refusal to instruct on strict liability. Id. at 646-47. We held that was

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Millies v. LandAmerica Transnation, No. 91301-3

sufficient to apprise the trial court of "the point of law in dispute, i.e.,

whether an instruction in the 'negligence' language of the statute misstated

the law" as it applied to all of the claims. Id. at 658.

Here, the Millies made no such specific objection to instruction 7 or to

the failure to give a related instruction. Unlike Crossen, there were no

extended discussions about instruction 7, no discussion of the breach of

contract claim generally, and no discussion of the affirmative defense.

Nothing offered to the trial court would have alerted it to the specific reasons

for the objection.

Relying on our recent Washburn opinion, the Millies argue that an

objection to all instructions not given is enough to preserve the issue for

appeal. Appellants' Pet. for Review at 8-9 (citing Washburn, 178 Wn.2d at

747). In Washburn, the court considered whether a municipality could be

held liable for negligent service of a protective order. 178 Wn.2d at 738.

Among other things, the city argued that it had no duty to the victim under

the public duty doctrine. !d. at 740-41. The city objected to the giving of an

instruction stating the city owed a duty to the victim. !d. at 743. We found

the city's "'strenuous objections"' were enough to preserve the issue. Id. at

743, 748. Here, the Millies' general objection was not a "strenuous

objection" to the giving of the breach of contract instruction. As the court

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Millies v. LandAmerica Transnation, No. 91301-3

refused to give at least 11 of the 24 jury instructions proposed by the Millies,

a general objection would not have alerted the court to the point of law in

dispute. 1

The Millies also argue that they apprised the trial court of their

objection in their trial brief. Appellants' Pet. for Review at 8-9. Their trial

brief stated in pertinent part:

Every contract carries with it an implied duty to act in good faith
which obligates parties to cooperate with each other so that each may
obtain the full benefit of performance. This duty requires an insurer
to conduct a reasonable investigation. It must base any decision on
adequate information and not overemphasize its own interest. If it
doesn't, it will have breached the covenant and, therefore, the policy.

CP at 355 (citations omitted). In a footnote, the Milles stated that a "breach

of contract action against an insurer is a separate cause of action and the jury

in this case should be instructed separately on this claim. Coventry [v. Am.

States Ins. Co., 136 Wn.2d 269, 278, 961 P.2d 933 (1988)] (plaintiff may

simultaneously bring both)." !d. n.2. Their argument, generously construed,

was that under Coventry, a breach of contract suit is a separate cause of

1
The Millies point to their general objection to all instructions "that were not given" and
argue that they were objecting to the court's refusal to give a proffered jury instruction
that included language from Columbia Park Golf Course, Inc. v. City of Kennewick, 160
Wn. App. 66, 248 P.3d 1067 (2011). 3 VTP (Jan. 31, 2013) at 345-46. Columbia Park
concerned whether expectation or actual damages are recoverable in a breach of contract
action. 160 Wn. App.at 82-87. However, this would not alert the trial judge about any
problem with including an affirmative defense along with the elements of the action. It is
also unclear from a review of the Millies' proposed instructions which specific language
from Columbia Park that they sought to include. See CP at 432-67. Without more, this
general objection was not enough to preserve the Millies' challenge to instruction 7.

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Millies v. LandAmerica Transnation, No. 91301-3

action from an action alleging an insurer acted in bad faith; thus, there

should be two separate jury instructions separating those two issues if both

claims are brought in a single suit. See Coventry, 136 Wn.2d at 268. But

this was insufficient to alert the trial judge to the Millies' current specific

complaint about the affirmative defense in instruction 7. As requested, the

jury was instructed separately on the breach of contract issue. CP at 476.

The trial court gave multiple instructions on the duty to act in good faith, as

the Millies requested. !d. at 475, 477, 481. The special verdict form

additionally separated the breach of contract claim from the good faith

claim, requiring the jury to address each claim individually. !d. at 498. The

Millies' appeal is not about whether the jury was confused about the duty of

good faith. Their appeal argues the jury was confused because the trial court

included the affirmative defense with the breach of contract instruction.

There is nothing in the Millies' trial brief or this court's opinion in Coventry

to preserve an objection on those grounds.

We hold that the Millies failed to preserve their challenge to

instruction 7.

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2. LAW OF THE CASE DOCTRINE

Unless there is a proper objection, jury instructions become the law of

the case. 2 State v. Leohner, 69 Wn.2d 131, 134,417 P.2d 368 (1966) (citing

Crippen v. Pulliam, 61 Wn.2d 725, 380 P.2d 475 (1963)). We review the

sufficiency of the evidence in light of the instructions given. Tonkovich v.

Dep't ofLabor & Indus., 31 Wn.2d 220,225, 195 P.2d 638 (1948). "This

rule does not apply if the record or evidence conclusively shows that the

party in whose favor the verdict is rendered is not entitled to recover." I d. 3

The Millies argue that the law of the case doctrine should not apply because

the record does not support a verdict awarding no damages to the Millies.

Appellants' Pet. for Review at 11-12. They also argue that the doctrine is

discretionary and should not be applied "where it would result in manifest

injustice." Id. at 12 (citing Greene v. Rothschild, 68 Wn.2d 1, 8, 414 P.2d

1013 (1966)). But the Millies have not demonstrated a manifest injustice or

2
We note in passing that the law of the case doctrine does not prevent a party from
challenging manifest errors in the jury instructions affecting a constitutional right for the
first time on appeal. RAP 2.5(a)(3).
3
We recognize the continuing vitality of Tonkovich on this point has recently been
questioned. See Washburn v. City of Federal Way, 169 Wn. App. 588, 605-06, 283 P.3d
567 (2012) (noting that the quotation above "is not supported by any citation to authority
[and] does not discuss any of the many cases that do apply the law of the case doctrine to
cases that are undistinguishable from this one."), ajj'd on other grounds, 178 Wn.2d 732.
This case does not give us an opportunity to decide how to harmonize Tonkovich with
more robust applications of the law of the case doctrine such as that articulated in State v.
Hickman, 135 Wn.2d 97, 101, 105, 954 P.2d 900 (1998) (holding the State was bound to
prove even erroneously included elements).

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Millies v. LandAmerica Transnation, No. 91301-3

that no evidence supported the jury's verdict. The breach of contract

instruction directed the jury to render a verdict for Transnation if the

company proved it fulfilled the terms of the contract with the Millies "by

investigating the claim and tendering payment in a timely manner based on a

reasonable fair market appraisal." CP at 476. The jury returned a verdict for

Transnation and awarded no damages to the Millies because the jury

determined Transnation proved the affirmative defense. We find sufficient

evidence supported the jury's verdict. The jury heard evidence from the

Transnation claim representative who investigated the claim and timely

tendered payment of $25,000, which she believed to be a reasonable fair

market amount. 2 VTP (Jan. 30, 2013) at 197-98, 200-01. Although the

parties disputed whether the $25,000 amount was "reasonable," the jury

resolved this dispute and found that it was.

We decline to disregard instruction 7 and hold that it is the law of the

case.

3. JUDGMENT ASAMATTEROFLAW

The Millies argue that the trial court erred in denying their

postjudgment motion for judgment as a matter of law. We find the motion

was untimely. CR 50 dictates when motions for judgment as a matter oflaw

must be made: "at any time before submission of the case to the jury." CR

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50(a)(2). 4 Such a motion may be renewed after trial, but the rule's use of the

word "renew" in CR 50(b) indicates that a party must file a motion for a

judgment as a matter of law before submitting the case to the jury if the

party wishes to renew its previous motion after the jury returns a verdict.

This language in CR 50 came from the 2005 amendments to the Civil

Rules. Prior to 2005, a party could move for judgment as a matter of law

after the case had been submitted to the jury regardless of whether the party

had previously sought relief. Former CR 50(b) (2004); Mega v. Whitworth

Coll., 138 Wn. App. 661, 668-69, 158 P.3d 1211 (2007). The drafters ofthe

2005 amendments intended for the new language to require the motion for

judgment as a matter of law to be made before submittal to the jury if

counsel wishes to renew the motion after the verdict. 4 KARL B. TEGLAND,

WASHINGTON PRACTICE: RULES PRACTICE CR 50 drafters' cmt. at 225 (6th

ed. 2013) ("This suggested amendment changes Washington practice and

requires that a motion for judgment as a matter of law be made before

4
CR 50 reads, in relevant part:
(2) When Made. A motion for judgment as a matter of law may be made
at any time before submission of the case to the jury.
(b) Renewing Motion for Judgment After Trial; Alternative Motion
for a New Trial. If, for any reason, the court does not grant a motion for
judgment as a matter oflaw made at the close of all the evidence, ... [t]he movant
may renew its request for judgment as a matter of law by filing a motion no later
than 10 days after entry of judgment. ...

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Millies v. LandAmerica Transnation, No. 91301-3

submission of the case to the jury as a condition to renewing the motion

post-verdict.").

Our Court of Appeals has interpreted this language in line with the

drafters' intent. If a party does not make the motion before submitting the

case to the jury, the party waives its right to file the motion later. Gorman v.

Pierce County, 176 Wn. App. 63, 86, 307 P.3d 795 (2013); Hanks v. Grace,

167 Wn. App. 542, 552-53, 273 P.3d 1029 (2012). We join these courts and

hold that a party is required to move for judgment as a matter of law before

the case is submitted to the jury to preserve any opportunity to renew the

motion after the verdict.

Here, the Millies failed to move for judgment as a matter of law prior

to the submission of the case to the jury. Thus, the Millies' postverdict

motion for judgment as a matter of law after the verdict was untimely and

properly denied.

4. MOTION FOR A NEW TRIAL

The Millies assert that they are entitled to a new trial under CR 59

because ( 1) of irregularities, (2) of misconduct by the jury and by

Transnation' s counsel, (3) of accident or surprise, ( 4) of inadequate

damages, ( 5) of error in the assessment of damages, (6) the verdict was

contrary to the evidence at trial, and (7) substantial justice was not done.

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Counsel provided briefing on only two issues: that the verdict was contrary

to the evidence at trial and that substantial justice has not been done. See

Appellants' Pet. for Review at 11 n.6. 5

A. Evidence Presented At Trial

Where the proponent of a new trial argues the verdict was not based

on the evidence, appellate courts review the record to determine whether

there was sufficient evidence to support the verdict. McUne v. Fuqua, 45

Wn.2d 650, 652, 277 P.2d 324 (1954). There must be "no evidence or

reasonable inference from the evidence to justify the verdict or the decision"

or it must be "contrary to law" to grant a new trial. CR 59(a)(7). It is an

abuse of discretion to deny a motion for a new trial where the verdict is

contrary to the evidence. Palmer v. Jensen, 132 Wn.2d 193, 198, 937 P.2d

597 (1997) (citing McUne, 45 Wn.2d at 653; Krivanek v. Fibreboard Corp.,

72 Wn. App. 632, 637, 865 P.2d 527 (1993)). However, where reasonable

minds could differ on the question, the court will not disturb the jury's

verdict. Winbun v. Moore, 143 Wn.2d 206, 217, 18 P.3d 576 (2001).

5
The Millies' petition for review states that the Millies reserve argument on alternate
grounds for a new trial under CR 59(a)(l), (2), (3), (5), and (6). However, the Millies
devoted insufficient argument to support these other new trial arguments. We decline to
consider them. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249
(1989) (declining to reach arguments not supported by adequate argument and authority).

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Here, as the Court of Appeals noted, this case presents a "thorny

question" of whether the evidence in this case is contrary to the verdict.

Millies, 2015 WL 213681, at *16. This is because Transnation concedes that

the Millies are entitled to payment for the reduction in value from the

undiscovered easement pursuant to the policy. See 2 VTP (Jan. 30, 2013) at

97-98; 200-01. In this regard, a jury verdict awarding the Millies no

damages is arguably contrary to the evidence presented at trial. 6

But as discussed above, the jury instructions given are the law of the

case, and at no point was the jury simply asked to value the amount of the

conceded covered loss. Here, the jury was presented with a special verdict

form with a number of questions to answer. CP at 498-99. The Millies did

not object to the use of this special verdict form. The first question asks,

"Did Defendant breach the contract with the Plaintiff?" CP at 498. The jury

answered this question in the negative. Given Transnation's concession, the

only way the jury could have found no breach of contract was based on the

defendant's affirmative defense. See 2 VTP (Jan. 30, 2013) at 185-207.

The next question on the verdict form asked, "Did Defendant fail to

act in good faith?" CP at 498. The jury also answered this question in the

6The record before us does not suggest Transnation, since trial, has declined to pay the
damages it concedes the Millies suffered. Whether a refusal to do so now would breach
the contract is not before us.

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negative and thus did not award any damages on this claim. While these

facts were vigorously disputed, sufficient evidence supports the jury's

verdict. Transnation presented evidence from both of its claim

representatives who worked on the Millies' claims that they did act in good

faith. Evidence was presented that Transnation promptly began

investigating the claim after submission, hired an expert to evaluate the

claim, made an offer to settle the claim, and submitted payment to the

Millies after attempting settlement negotiations. 2 VTP (Jan. 30, 2013) at

185-207; 3 VTP (Jan. 31, 2013) at 284-93. Transnation also offered

evidence from an insurance attorney who testified that Transnation acted in

good faith as compared to other insurance companies in the business. Suppl.

VTP (Jan. 30, 2013) at 109-12. There was sufficient evidence presented for

the jury to conclude that Transnation acted in good faith.

Finally, the jury was asked, "Did Defendant act negligently?" and

"Did Defendant violate the Consumer Protection Act?" CP at 498-99. The

jury answered both questions in the negative and did not award any damages

on these claims. Transnation presented opinion testimony from an insurance

attorney that Transnation's actions were not unreasonable, were not unfair or

deceptive acts, and were not violations of the Consumer Protection Act

(CPA) or the Insurance Fair Conduct Act (IFCA). 2 VTP (Jan. 30, 2013) at

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109-12. There was sufficient evidence presented for the jury to believe

Transnation's expert and find in favor ofTransnation on these last two

claims.

Looking at the special verdict form as a whole, the jury was asked to

determine damages only if it found in the Millies' favor on a claim. CP 498-

99. The jury was not asked to determine the diminution in value of the

property absent a finding of liability. Unfortunately, the Millies did not

suggest below or argue here on appeal that the special verdict form should

have included the option to determine the diminution in value amount to be

paid. 7 The Millies forfeited their opportunity to have a jury decide what the

diminution in value amount should be, which was the crux of the evidence

presented during td al. 8

We find there was sufficient evidence to support the jury verdict in

favor of Transnation on all the Millies' claims.

7
During closing arguments, plaintiffs' counsel argued for the jury to award damages in
the amount of$125,000 because Transnation acted umeasonably and in bad faith. 3 VTP
(Jan. 31, 2013) at 318. Counsel did not ask the jury to determine the DIV amount. We
note in passing that it was defense counsel who pointed to question 2 on the verdict form
and indicated that would be where the DIV amount should go. Id. at 335 ("Once you get
through your analysis and you find-everything [Transnation] did was reasonable, but we
still have a number, we agree on the number, that's where you put it. And that's whether
you agree with ... $25,000 [or] $37,500."). Perhaps feeling bound by the jury instructions
given, the jury did not accept counsel's invitation.
8
The Millies did not rebut evidence presented by Transnation indicating that the
easement did not extend beyond the Millies' property and therefore could not be used as
a public road. See Suppl. VTP (Jan. 30, 2013) at 71-72, 100-02. Based on this evidence,
an inference can be made that the easement had no detrimental effect on the property and
the amount of damages could be $0.

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B. Substantial Justice

The Millies also argue that they are entitled to a new trial under CR

59(a)(9) because substantial justice has not been done. Courts rarely grant a

new trial under this catchall provision given the other broad grounds under

CR 59. Knecht v. Marzano, 65 Wn.2d 290, 297, 396 P.2d 782 (1964). The

weight of evidence and questions of credibility are the province of the finder

of fact. Hilltop Terrace Homeowner's Ass 'n v. Island County, 126 Wn.2d

22, 34, 891 P.2d 29 (1995). A motion for a new trial on this ground cannot

be used to avoid the duty of a party to timely except to instructions and

object to trial practices. Cerjance v. Kehres, 26 Wn. App. 436, 441, 613

P.2d 192 (1980). Counsel for the Millies did not object or take exception to

the special verdict fonn that did not ask the jury to make a determination on

the diminution in value claim. If an issue of material fact is omitted from

the special verdict form and counsel fails to bring this omission to the

court's attention, the affected party waives the right to have that issue

submitted to the jury. See CR 49(a). The Millies do not provide additional

argument on this issue as to why substantial justice was not done and rely

mostly on the argument that the verdict is contrary to the evidence. The

Millies have not proved that substantial justice was not done in this case.

21
Millies v. LandAmerica Transnation, No. 91301-3

Accordingly, we hold that substantial justice does not require the

granting of a new trial in this case.

The dissent argues that we should remand this case "[i]n the interest

of doing substantial justice ... to allow the trial court to exercise its

authority under CR 49(a) and consider whether to determine the DIVas an

issue omitted from the jury's consideration." 9 Dissent at 3. However, as the

dissent notes, CR 49(a) contemplates resolving issues that were

inadvertently omitted from the jury. Dissent at 1 (citing CR 49(a)). Here, it

was likely the Millies' trial strategy to omit the DIV question from the jury's

consideration. 10 Moreover, at oral argument, counsel for the Millies rejected

9
The trial court already made a determination at the posttrial hearing on the DIY issue.
See 3 YTP (Apr. 30, 2013) at 364-65. The trial court stated:

But the business that was given to the jury was completed, in a coherent,
sensible fashion, and-and that's that. And this court, I didn't act in that short
period of time, that window that was available-There was no request to do so,
and I didn't. And so that opportunity has come and gone.
And this is all spelled out in Civil Rule 49(a) and the available case law
that goes with that.

!d. The Millies did not appeal the court's determination on the DIY issue under CR
49(a). We decline to reach it.
10
The trial court believed it was the Millies' trial strategy to omit the DIY issue from the
jury instructions:

I do believe that it was part of the plaintiffs' theory of the case to do it exactly the
way it was done and the way it was presented to the jury. And that was to have
the-and you remember the low-ball argument that Mr. Boswell made
passionately to the jury, well, that included the fact that there'd never really been
a payment made. And he was in effect wanting that to bleed over into the jury's
thinking about the remainder of the claims. And that was a tactical decision that

22
Millies v. LandAmerica Transnation, No. 91301-3

resolving this case under CR 49(a). See Wash. Supreme Court oral

argument, Millies v. Landamerica Transnation, No. 91301-3 (Oct. 27,

2015), at 41 min., 30 sec., audio recording by TVW, Washington State's

Public Affairs Network, http://www.tvw.org. The Millies have requested a

new trial, most likely because they want another attempt to prove damages

under the CPA and the IFCA. Remanding this case for the trial court to

decide the DIV amount is not the substantial justice that the Millies seek.

CONCLUSION

We hold that the Millies did not preserve their objection to the jury

instructions, and that those instructions became the law of the case. The

Millies are not entitled to either judgment as a matter of law or a new trial.

There was sufficient evidence to support a verdict in favor of Transnation in

light of the instructions given. We affirm.

he made, I believe is what occurred here. But in the end the jury did not do that;
it limited its deliberations strictly to the jury instructions that it had been given.
And, finally, denied or refused to accept plaintiffs' theory of the case.

!d. at 365-66.

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Millies v. LandAmerica Transnation, No. 91301-3

WE CONCUR:

24
Millies, et ux. v. Landamerica Transnation, et al.

No. 91301-3

STEPHENS, J. (dissenting)-The majority frames the question before us as

whether this court should disturb the jury's verdict. Majority at 2. On that question,

I agree with the majority's conclusion that the verdict should stand. The verdict

form did not ask the jury to determine the diminution in value (DIY) of Richard and

Susan Millies' (collectively Millies) property if it found no breach of contract. 1 I

respectfully dissent, however, because it is not clear the trial court believed it had

any options following the jury's verdict, though it retained the authority to resolve

1
Although the majority correctly recognizes the jury's verdict did not address the
DIV issue, it nonetheless suggests that the jury may have decided the DIV was $0. Majority
at 20 n.8 ("[A]n inference can be made that the easement had no detrimental effect on the
property and the amount of damages could be $0.") This is pure speculation, as the jury
was not asked about DIV and therefore did not calculate it.
Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)

the omitted DIV issue itself under CR 49(a). In the interest of doing justice, I would

remand to afford the trial court the opportunity to exercise this option.

Under CR 49(a), a trial court may resolve an issue that was inadvertently

omitted from the jury's consideration. CR 49(a) ("As to an issue omitted without

such demand the court may make a finding; or, if it fails to do so, it shall be deemed

to have made a finding in accord with the judgment on the special verdict.").

After the jury returned its verdict, the parties realized that the DIV issue

remained unresolved. The trial court looked for a solution. While considering the

Milles' motion for directed verdict or new trial, the court specifically asked the

parties to brief how to resolve the DIV issue following the jury's verdict. Clerks

Paper's (CP) at 532-33 ("Counsel to brief whether value of diminution in value

claim/determination remains."). In doing so, the trial court reserved ruling on

whether the result at trial was problematic because there had been no determination

on the DIV claim.

The majority suggests that the trial court considered, but rejected, a resolution

under CR 49(a). I disagree. The context in which the discussion ofCR 49(a) arose

shows that defense counsel argued the court lacked the authority to decide an omitted

issue once the jury verdict was accepted. 3 Verbatim Tr. of Proceedings (VTP) (Apr.

30, 2013) at 352-53 ("[CR 49(a)] says the judge, the bench can then consider it, and

may consider it, but only in the limited window of time. It's a pretty limited window.

It really is from the moment the jury delivers the verdict, up until the moment the

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Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)

verdict is filed.") The trial court agreed, concluding that once the verdict was

accepted, "that opportunity has come and gone." Id. at 364. But, it is not fatal to a

remedy under CR 49( a) that the jury had completed its work if there remained an

issue that was inadvertently omitted from its consideration. Contrary to the

majority's reading ofthe record, the trial court did not conclude that the Millies made

a tactical decision to omit the DIV issue from any consideration. Immediately after

the passage from the record quoted in the majority opinion, majority at 22 n.10, the

court explained why it thought the DIV question remained unanswered by the jury's

verdict. The court said, "[The jurors] weren't saying that there shouldn't be a

recovery on the outstanding amount, but that wasn't given to them. They did not

have that decision to be made." 3 VTP (Apr. 30, 2013) at 366.

Given the trial court's apparent misunderstanding of its options under CR

49(a), the record does not support the majority's conclusion that the court exercised

its authority and declined to award the Millies any DIV damages. See majority at

22 n.9 ("The trial court already made a determination at the posttrial hearing on the

DIV issue."). A close examination of the transcript from those proceedings reveals

that the trial court believed that it lacked authority to decide the issue after the

verdict-not that it had already decided the DIV issue. 3 VTP (Apr. 30, 2013) at

364 ("And I think actually you both agreed on this--that at this juncture there's

nothing the court can do."). Therefore, in the interest of doing substantial justice, I

would remand to allow the trial court to exercise its authority under CR 49(a) and

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Millies, et ux. v. Landamerica Transnation, eta!., 91301-3 (Stephens, J. Dissenting)

consider whether to determine the DIV as an 1ssue omitted from the jury's

consideration. 2

2
I find misleading the majority's unnecessary comment that Transnation has not
"declined to pay the [DIV] damages it concedes the Millies suffered." Majority at 18 n.6.
At oral argument, Transnation's counsel suggested the verdict now leaves the Millies
unable to recover.
JUSTICE GONZALEZ: Do you still concede that you owe the diminution
in value to the insured here or do you think that that obligation has somehow
expired?
TRANSNATION ATTORNEY: I believe that from the onset of this case
this was an accepted title insurance claim....
JUSTICE GONZALEZ: But you still owe that amount?
TRANSNATION ATTORNEY: I think the question that I'm trying to
answer is two parts. One, yes it was an accepted title insurance claim, but
whatever happened at trial, I believe, unfortunately, now has thrown up
roadblocks for the petitioner's to recover any of that money potentially under
the policy even though the policy was admitted as an accepted claim from its
onset.
Wash. Supreme Court oral argument, Millies v. Landamerica Transnation, No. 91301-3
(Oct. 27, 2015), at 16 min., 24 sec., audio recording by TVW, Washington State's Public
Affairs Network, http://www.tvw.org.

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Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)

5