NO. 94-561
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ROY A. BAXTER,
Plaintiff and Appellant,
v.
ARCHIE COCHRANE MOTORS,
a Montana corporation,
Defendant and
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Phillip R. Oliver, Oliver, Graves,
Toennis & Gustafson, Billings, Montana
For Respondent:
Rodney T. Hartman, Herndon, Hartman,
Sweeney & Halverson, Billings, Montana
Submitted on Briefs: March 30, 1995
Decided: May 23, 1995
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Roy A. Baxter appeals from an order of the
Thirteenth Judicial District Court, Yellowstone County, granting a
new trial on the motion of respondent Archie Cochrane Motors, Inc.,
following a jury verdict and award in favor of appellant.
We reverse.
The dispositive issues on appeal are:
1. Did the District Court err in holding that a new trial
was warranted on the cumulative affect of six errors, none of which
individually warranted a new trial?
2. Did the District Court err in ordering sua sponte a new
trial on its error on jury instructions when it did not allow
appellant the opportunity for a hearing on the issue raised by the
District Court?
In April 1992, respondent employed appellant as an automobile
salesperson. On January 4, 1993, respondent terminated appellant's
employment for "continued inability to correctly interact with team
members and customers." On August 18, 1993, appellant filed a
wrongful termination action against respondent. The jury returned
a verdict in favor of appellant and awarded him $120,000 in
damages. On July 12, 1994, respondent filed a motion for a new
trial or a judgment notwithstanding the verdict. On August 15,
1994, the District Court issued its order granting respondent's
motion for a new trial. It is from the District Court's order that
appellant appeals.
2
ISSUE 1
Did the District Court err in holding that a new trial was
warranted on the cumulative effect of six alleged errors, none of
which individually warranted a new trial?
The decision to grant or deny a new trial is within the sound
discretion of the trial judge and will not be disturbed absent a
showing of manifest abuse of that discretion. Jim's Excavating
Service, Inc. v. HKM Associates (19941, 265 Mont. 494, 511, 878
P.2d 248, 259.
A new trial may be granted for any of the reasons set forth in
§ 25-11-102, MCA, which materially affect the substantial rights of
the aggrieved party. See Rule 59, M.R.Civ.P. Of the reasons set
forth in 5 25-11-102, MCA, respondent relied on the following:
(1) irregularity in the proceedings of the court,
jury, or adverse party or any order of the court or abuse
of discretion by which either party was prevented from
having a fair trial;
i5j . excessive damages appearing to have been given
.
under the influence of passion or prejudice;
(6) insufficiency of the evidence to justify the
verdict or other decision or that it is against law;
(7) error in law occurring at the trial and
excepted to by the party making the application.
In its brief in support of its motion for a new trial,
respondent alleged seven errors which, it argued, required the
District Court to grant a new trial whether the errors were viewed
individually or cumulatively. Specifically, respondent alleged
that:
1. [App;;;ant's] ,counsel mistakenly informed the jury
during openmg statement that the Montana
3
Constitution endowed [appellant] with a right to maintain
employment;
2. [Appellant's1 counsel impermissibly argued his case
in opening statement Over [respondent's] objection
despite being admonished not to by the court;
3. [Appellant's] counsel constantly treated witnesses
in a argumentative style throughout the trial
necessitating [respondent's1 counsel ( s repeated
objections which were regularly sustained, but left the
jury as a result thereof overly sympathetic and
prejudiced in [appellant's] favor;
4. [Appellant's] witness Carol Kuchera and
[appellant's] counsel wept during the trial in full view
of the jury in an effort to inflame jury passion,
prejudice, and sympathy;
5. [Appellant's] counsel elicited testimony from
witness Deb Allen that Chuck Gallacher's bad language
ceased or improved following the filing of this lawsuit
which gave the jury the mistaken impression that
[respondent] had thereby admitted liability in this case;
6. Despite several discussions concerning irrelevant
and prejudicial "other wrongful termination cases," and
several successful objections to [appellant's] attempts
to introduce evidence of such, [appellant's] counsel
himself mentioned the Carol Kuchera case. That case has
not been to trial. Carol Kuchera admitted under oath to
resume fraud and job application fraud. The injection of
her case into [appellant's] case was prejudicial to the
highest degree outweighing any possible probative value
to the jury; and
7. There was absolutely no credible fact evidence or
expert witness opinion evidence that supports the award
to [appellant] by the jury of $120,000 in this case. The
damage award is not supported by the evidence of the
case.
The District Court concluded that while "items one through six
of the things [respondent] complain[edl of in his brief . . did
occur . . [alny one or two of these irregularities probably d[idl
not really justify a new trial. The District Court was unwilling
to order a mistrial when the irregularities were addressed one by
4
one at trial, but concluded that the cumulative effect of the
irregularities exceeds the bounds of a fair trial.
Appellant argues that the District Court abused its discretion
by granting respondent's motion for a new trial because the errors
either did not occur, were not errors, or even if they were errors,
they were harmless and did not substantially affect respondent's
right to a fair trial. In addition, appellant argues that the
District Court erred by concluding that the cumulative effect of
six harmless errors prejudiced respondent's right to a fair trial.
We agree with the District Court's conclusion that the first
six errors did not justify a new trial when considered
individually. We also agree with the District Court's refusal to
conclude that the jury award in favor of appellant was error.
However, we disagree with the District Court's application of the
doctrine of cumulative error in a civil case. To date, this Court
has applied the doctrine of cumulative error exclusively in
criminal cases. We decline to extend it to civil cases based on
the facts of this case.
We conclude that the District Court erred in holding that a
new trial was warranted on the cumulative affect of six errors,
none of which individually warranted a new trial.
ISSUE 2
Did the District Court err in ordering sua sponte a new trial
on its error on jury instructions when it did not allow appellant
the opportunity for a hearing on the issue raised by the District
Court?
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We apply the same standard of review, manifest abuse of
discretion, to Issue 2 that we applied to Issue I.
In its order granting a new trial, the District Court
concluded that "even though the parties did not complain or offer
such an instruction, the Court should have more clearly instructed
the jury concerning the elements necessary for plaintiff to prove
in order to recover and/or the right defendant has in discharging
employees for any job-related basis."
While a district court may grant a motion for a new trial for
a reason not set forth in the motion, it may do so only after
giving the parties notice and an opportunity to be heard on the
matter. Rule 59(e), P4.R.Civ.P. Neither party objected to the jury
instructions given by the District Court, nor did respondent raise
this issue in its motion for a new trial. The issue of inadequate
jury instructions was raised sua sponte by the District Court.
Neither party received notice of this matter, and consequently,
neither party was given the opportunity to brief or argue the
matter.
As a result, we conclude that the District Court erred in
ordering a new trial on jury instructions without giving the
parties notice and an opportunity to be heard.
We hold that the District Court's decision to grant a new
trial was a manifest abuse of discretion.
We reverse.
Justice
&d~,
6
We concur: