MOTION TO DISMISS #2
RICHARD E. BURKE, Judge.
FACTS
The motion to dismiss presently before the court arises out of a summary process action that commenced on April 19, 2010, when the plaintiff, JHP Ventures, LLC, served the defendant, K'Dee Chastain, doing business as D'Vine Studio, with a notice to quit possession of the premises located at 1306 Boston Post Road, Westbrook, CT (the premises) on or before April 23, 2010, on the grounds of nonpayment of rent, breach of lease terms and lapse of time. The notice to quit included a use and occupancy disclaimer, which specified that "[a]ny payments tendered after service of the [n]otice to [q]uit will be accepted for reimbursement of costs and attorneys fees and for use and occupancy only with full reservation of rights to continue with this summary process action."
On May 18, 2010, the plaintiff served the defendant with process, and on May 25, 2010, the plaintiff filed the summary process complaint and therein alleged the following facts. On or about August 15, 2009, the plaintiff and the defendant entered into a commercial lease agreement for the premises. The lease specified that the rent was to be paid on or before the fifteenth of each month. The lease further specified that pets and smoking were not permitted on the premises. The defendant failed to timely pay rent for the months of March, April and May 2010. The defendant also kept pets and smoked on the premises. Although the time given in the notice to quit possession has passed, the defendant continues to reside in the premises. The plaintiff requests a judgment for immediate possession of the premises and such other relief in law or in equity that may pertain.
On June 9, 2010, the defendant filed her appearance and on June 14, 2010, she filed a motion to dismiss supported by a memorandum of law. On June 25, 2010, the plaintiff filed a CT Page 18036 memorandum of law in opposition. On July 2, 2010, the defendant filed a supplemental memorandum of law in support of her motion to dismiss and the court heard the matter on July 12, 2010.
DISCUSSION
Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." The motion to dismiss shall be used to assert lack of jurisdiction over the subject matter. Practice Book § 10-31. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
"A summary process action is initiated by giving the required notice to quit pursuant to the statute." Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985). "Service of a valid notice to quit . . . is a condition precedent to a summary process action under § 47a-23 that implicates the trial court's subject matter jurisdiction over that action." (Citation omitted; internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers — Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009). Thus, "[t]he failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action." Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). Conversely, "[a] motion to dismiss, claiming lack of jurisdiction because of a defective notice, must be denied if there has been compliance with the statute." South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 745, 899 A.2d 642 (2006).
The defendant argues that the court should dismiss the plaintiff's summary process complaint for lack of subject matter jurisdiction. Specifically, the defendant contends that the use and occupancy disclaimer in the plaintiff's notice to quit fails to strictly comply with General Statutes § 47a-23(e). In response, the plaintiff counters that the use and occupancy disclaimer is not CT Page 18037 defective. Specifically, the plaintiff argues that the language in the disclaimer is in compliance with § 47a-23(e).
General Statutes § 47a-23 provides in relevant part: "(a) When the owner or lessor . . . desires to obtain possession or occupancy of any . . . building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time . . . (C) violation of the rental agreement or lease . . . (E) nonpayment of rent when due for commercial property . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such . . . building . . . at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.
"(b) The notice shall be in writing substantially in the following form: `I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice) . . .'"
***
"(e) A termination notice required pursuant to federal law and regulations may be included in or combined with the notice required pursuant to this section and such inclusion or combination does not thereby render the notice required pursuant to this section equivocal, provided the rental agreement or lease shall not terminate until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of completion of the pretermination process, whichever is later. A use and occupancy disclaimer may be included in or combined with such notice, provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of the completion of the pretermination process, whichever is later. Such inclusion or combination does not thereby render the notice required pursuant to this section equivocal. Such disclaimer shall be in substantially CT Page 18038 the following form: `Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction action.'"
"In order to terminate a lease, a landlord must perform some unequivocal act which clearly demonstrates his intent to terminate the lease." Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn.App. 583 n. 8. "Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease." Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). Also, "a landlord may accept a tender of rent after the service of a notice to quit and characterize it as payment for use and occupancy if the landlord has, prior to the offer of rent, notified the tenant that the tender will be accepted only as use and occupancy payments." OP Realty v. Santana, 17 Conn.App. 314, 318, 551 A.2d 1287, cert. denied, 210 Conn. 812, 556 A.2d 610 (1989). "The [use and occupancy] admonition serves two useful purposes. It avoids misleading tenants who tender late payments and it insulates the summary process action from being flawed by the acceptance of rent after commencement of the summary process." Zitomer v. Palmer, 38 Conn.Sup. 341, 344, 446 A.2d 1084 (1982). Furthermore, "[t]here is no question that a landlord who has served a notice to quit on a nonpaying tenant may thereafter accept payments from the tenant and, provided he notifies the tenant that the payments are for use and occupancy only, continue to maintain his summary process action." Gray v. Miller, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 128099 (September 3, 2004, dos Santos, J.) ( 37 Conn. L. Rptr. 799, 801). Moreover, "[a] holding that disclaimers such as the one at issue here are ineffective would force landlords to file a motion for use and occupancy payments pursuant to General Statutes § 47a-26b in every case and would require them to return any tendered offers of rent or run the risk of subjecting their summary process actions to dismissal . . . This is not a desirable policy and does not comport with the objectives of the summary process statute." (Citation omitted.) OP Realty v. Santana, supra, 17 Conn.App. 319.
General Statutes § 47a-26b provides in relevant part: "(a) If the defendant appears, the court shall, upon motion and without hearing . . . order the defendant to deposit with the court within ten days of the filing of the motion payments for use and occupancy in an amount equal to the last agreed-upon rent or, in the absence of a prior agreed-upon rent, in an amount equal to the fair rental value of the premises during the pendency of such action accruing from the date of such order."
The defendant argues that the court lacks subject matter jurisdiction to hear this matter because the notice to quit fails to strictly comply with the provisions of § 47a-23(e). Specifically, CT Page 18039 the defendant contends that the notice to quit "improperly provides that payments after the service of the [n]otice to [q]uit . . . will be accepted as reimbursement of costs and attorneys fees and for use and occupancy only, before resolution of rights. However, the plain and unambiguous terms of [§ 47a-23(e)] only allows for such a disclaimer to take effect after the date specified in the notice for lease or occupant to quit." (Emphasis omitted.) According to the defendant, the court must dismiss the plaintiff's action for lack of subject matter jurisdiction because the plaintiff "failed to follow the mandates of [§ 47a-23(e)]."
In support of her motion, the defendant relies on SOC Group II v. Reyes, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 132553 (September 2, 2005, dos Santos, J.) ( 39 Conn. L. Rptr. 753), which, the defendant contends, "stands for the proposition that a [m]otion to [d]ismiss is appropriate when the caveat in the [n]otice to [q]uit recites that amounts tendered after the service of the [n]otice to [q]uit, rather than the effective date of the [n]otice to [q]uit, will be accepted towards use and occupancy or attorneys fees only." In that case, the plaintiff landlord included in the notice to quit both a termination notice that provided pursuant to federal law a ten-day cure period and a disclaimer that provided that any monies received after service of the notice to quit would be accepted as use and occupancy only. The defendant moved to dismiss the action for lack of subject matter jurisdiction on the ground that the notice to quit was equivocal because the cure period in the termination notice and the use and occupancy disclaimer were inconsistent with each other and failed to comply with § 47a-23(e). The court, Dos Santos, J., sustained the defendant's motion and held that the use and occupancy disclaimer failed to comply with § 47a-23(e) because it "took effect immediately upon service of the notice to quit, not the later of the quit date or the completion of the pretermination process." Id. The court reasoned that "the purpose of the cure period is to avoid or prevent a proposed termination and not nullify an existing termination," and that the disclaimer had no effect under § 47a-23(e) because, had the defendant tendered the rent prior to the end of the cure period, the plaintiff would have had no choice but to accept the payment as rent and not as use and occupancy. Id., 753-54. The court further reasoned, however, that "the use and occupancy provision, as written, could have a chilling effect and dissuade a tenant from tendering the rent to cure the problem on order to prevent the lease's termination. Consequently, the fact that the provision is CT Page 18040 [noneffective] does not prevent the case from being dismissed." Id., 754.
In response, the plaintiff counters that the use and occupancy disclaimer comports with the purpose and intent of the language required by § 47a-23(e) and, therefore, the court has subject matter jurisdiction over this summary process action. The plaintiff points out that the court in Post Benson Corp. v. Kids Fitness Fairfield, LLC, Superior Court, judicial district of Fairfield, Docket No. BRSP 069958 (March 1, 2010, Moore, J.) ( 49 Conn. L. Rptr. 423) held that a use and occupancy disclaimer almost identical to the one at issue in the present case complied with § 47a-23(e). The defendant in that case, like the defendant in the present case, relied on SOC Group II v. Reyes and argued that the use and occupancy disclaimer in the plaintiff's notice to quit, which provided that "all monies received after the date of service of this notice to quit will be accepted as use and occupancy," violated § 47a-23(e). Id., 424. The court, Moore, J., overruled the defendant's motion and held that the use and occupancy disclaimer was effective and in accordance with the summary process statute. The court, citing Jefferson Garden Associates v. Green, 202 Conn. 128, 143, 520 A.2d 173 (1987), reasoned that strict construction did not require "ritualistic compliance with statutory or regulatory mandates," and held that while § 47a-23(e) does "provide language for disclaimers . . . it further indicates that such disclaimers shall be in substantially the following form. It does not mandate that . . . the language contained in the statute is the only acceptable language." Id. The court also pointed out that the Appellate Court in OP Realty v. Santana, supra, 17 Conn.App. 314 addressed the issue of disclaimers and held that the notice to quit at issue in that case, which included a use and occupancy disclaimer similar to the one at issue in the present case, was effective, and further noted that OP Realty v. Santana has not been overruled.
In the present case, pursuant to Hird service of the notice to quit is an unequivocal act that terminates the lease. Further, the plaintiff is not entitled to a cure period because the federal regulations that provide for pretermination process do not apply here. Thus, the notice to quit is unambiguous and represents an unequivocal act which demonstrates the plaintiff's clear intent to terminate the lease. In addition, as the court in Post Benson Corp. pointed out, § 47a-23(e) provides that the use and occupancy disclaimer "shall be in substantially the following form," which indicates that this provision in the statute is directory and CT Page 18041 not, as the plaintiff argues, mandatory. Moreover, our courts have repeatedly held that notices to quit containing use and occupancy disclaimers similar to the one at issue in the present case are effective. See, e.g., OP Realty v. Santana, supra, 17 Conn.App. 314; Zitomer v. Palmer, supra, 38 Conn.Sup. 341; Connecticut Constitution Associates, LLC v. Dimauro, Superior Court, judicial district of Hartford, Housing Session, Docket No. H 1253 (March 12, 2004, dos Santos, J.); 105 Woodland Street, LLC v. Ranson, Superior Court, judicial district of New Haven, Docket No. CV 03 0284146 (June 27, 2003, Wiese, J.). Therefore, the use and occupancy disclaimer included in the plaintiff's notice to quit does not render the notice equivocal.
SOC Group II v. Reyes is distinguishable from the present case. In that case, the use and occupancy disclaimer in the notice to quit conflicted with the mandatory cure period provided in the termination notice. Here, the plaintiff is not entitled to a cure period, and, therefore, the chilling effect that concerned the court in SOC Group II is absent.
Accordingly, the court denies the plaintiff's motion to dismiss.
/case/bimberg-v-northern-pacific-railway-co#p194217 Minn. 187, 194,
14 N.W.2d 410, 414 (1944) (holding that "[w]hether the standard of care which should have been exercised was actually exercised is a question of fact to be determined by the jury. . . ."). The jury never determined whether BNSF complied with the federal standard because it was never asked that question, and a determination of BNSF's compliance is outside the scope of this court's review.
See Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 324 (Minn.App. 2004) (stating that "this court cannot serve as the fact-finder"),
review denied (Minn. Dec. 14, 2004). The question of BNSF's compliance with the federal standard, essential to a determination of BNSF's liability, may be resolved only by a properly instructed jury after a new trial.
BNSF moved for a new trial on the ground that the jury had been erroneously instructed on preemption. The district court concluded that "[respondents'] claims are not preempted by federal law" and denied the motion. When the decision to grant or deny a new trial is based on an error of law, the standard of review is de novo. Halla Nursery, Inc., v. Baumann-Furrie Co., 454 N.W.2d 905, 910 (Minn. 1990).
[A] court errs if it gives a jury instruction that materially misstates the law. Such an error does not necessitate a new trial unless the error was prejudicial. A jury instruction is prejudicial if a more accurate instruction would have changed the outcome in the case. If the effect of the erroneous instruction cannot be determined, we will give the complainant the benefit of the doubt by granting a new trial.
George v. Estate of Baker, 724 N.W.2d 1, 10 (Minn. 2006) (citations omitted). In
George, as here, the jury was given an incorrect instruction on the standard of care.
Id. at 5. "Because it is analytically and practically possible that the erroneous standard of care instruction affected the jury's causation analysis, we hold that the . . . instruction was reversible error and remand the case for a new trial on . . . liability."
Id. at 11. "A trial court has broad discretion in instructing a jury
as long as the law of the case is fully, fairly, and correctly stated."
Willmar Poultry Co. v. Carus Chem. Co., 378 N.W.2d 830, 836 (Minn.App. 1985) (emphasis added),
review denied (Minn. Feb. 14, 19, 1986). But "[a]n instruction that is so misleading that it renders incorrect the instruction as a whole will be reversible error."
Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147-48 (Minn. 2002) (concluding that jury instruction, considered as a whole, was not error because "in the context of employment terminations, `good cause,' `just cause,' and `cause' are interchangeable").
Respondents misstate BNSF's argument, contending "BNSF argues that the combination of the standard reasonable care instruction, CIVJIG 25.10, and the standard instruction for the violation of a statute, CIVJIG 25.45, modified to refer to the federal regulations, was reversible error." But the instruction to which BNSF most strongly objected, both in its motion for a new trial and on appeal, is CIVJIG 25.46, stating that evidence of BNSF's compliance with its legal duty to follow federal regulations was merely evidence, and not conclusive proof, of reasonable care.
Respondents argue that BNSF was not entitled to challenge the jury instructions in its motion for a new trial and is not entitled to challenge them on appeal because BNSF did not object to the instructions at trial. But "the duty or degree of care imposed on a party is fundamental law and objections to instructions relative thereto [can] be assigned for the first time in a motion for a new trial." Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 228, 214 N.W.2d 672, 676 (1974); see also Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 885 (Minn. 1986) ("Fundamental errors of law in jury instructions are reviewable on appeal so long as they have been assigned as errors in the motion for new trial."). BNSF assigned the jury instructions on the standard of care as errors in its motion for a new trial.
Respondents also argue that BNSF may not challenge the jury instructions because it proposed them. But BNSF did not propose the instruction to which it most strongly objects: CIVJIG 25.46, erroneously stating that BNSF's compliance with its legal duty was not conclusive proof of reasonable care. That instruction was proposed only by respondents. Thus, BNSF is not precluded from challenging CIVJIG 25.46 on the basis of having proposed it.
Respondents rely on Heise v. J.R. Clark Co., 245 Minn. 179, 191, 71 N.W.2d 818, 826 (1955) ("A party is concluded by an instruction given at his own request. . . . [T]he trial court's charge, even though it be erroneous, becomes the law of the case. . . ."); Lee v. Wilson, 167 Minn. 248, 250, 208 N.W. 803, 804 (1926) ("[I]t appears affirmatively that the cause was submitted [to the jury] in this manner and under this rule at plaintiff's instance. Consequently the charge, whether right or wrong, is the law of the case so far as plaintiff is concerned."); and McAlpine v. Fid. Cas. Co., 134 Minn. 192, 199, 158 N.W. 967, 970 (1916) ("The settled general rule is that a party cannot avail himself of invited error."). Respondent's reliance is misplaced; all three cases are distinguishable. In Heise and in Lee, the jury instructions were not challenged on appeal; the issue was whether the evidence supported the jury's findings. See Heise, 245 Minn. at 190, 71 N.W.2d at 825; Lee, 167 Minn. at 250, 208 N.W. at 804. McAlpine noted that, "conceding the right of the court to review, in a special case, the correctness of an instruction at the instance of a party who has procured it to be given, a new trial should not be granted unless the charge was substantially wrong and apparently prejudicial in result." 134 Minn. at 199, 158 N.W. at 970 (emphasis added).
Moreover, BNSF is not precluded from challenging even the instructions it did propose: CIVJIG 25.10, defining "reasonable care" and "negligence," CIVJIG 25.12, on the right to assume reasonable care, and CIVJIG 25.55, stating that an accident is not proof of negligence. This issue was addressed in Mjos v. Vill. of Howard Lake, 287 Minn. 427, 178 N.W.2d 862 (1970). Mjos was brought by the children of a man who was killed in an accident caused by an intoxicated driver against the two municipal liquor stores where the driver had purchased liquor. 287 Minn. at 428-29, 178 N.W.2d at 864. The jury found for the liquor stores, and the plaintiffs moved for a new trial. Id. at 429-30, 178 N.W.2d at 865. The district court vacated the judgment and granted the plaintiffs' motion for a new trial "`on the exclusive grounds of error in the [jury] instructions with respect to fundamental law.'" Id. at 428, 178 N.W.2d at 864 (quoting the district court). The liquor stores appealed; the supreme court affirmed.
It is apparent that experienced counsel for both parties and the trial court were unaware of the 1967 changes in the Civil Damage Act [eliminating the "obviously intoxicated" requirement] which
are pertinent to this action. Suit was brought on the theory that any sale of intoxicating liquor to [the driver] by the defendant municipalities was illegal only if he was already `obviously intoxicated';
counsel for plaintiffs requested jury instructions in accordance with that theory; and no objection to the instructions on this point was made either at trial or in the usual post-trial motions. The trial court and counsel for defendants acquiesced in trial and submission of the case to the jury under the standard of obvious intoxication.
Counsel for plaintiffs predicated their second motion for judgment n.o.v. or a new trial on the theory that the instructions were erroneous because not in accord with the 1967 amendment, and the trial court granted a new trial.
Although it was error to instruct the jury that sales of intoxicating liquors to [the driver] by defendant villages were illegal only if he was then `obviously' intoxicated, a retrial of this case would be justified only if the instructions as given were highly prejudicial to plaintiffs' cause of action. . . . [T]he error of law in this case was so fundamental as to have a potentially determinative influence upon the lawsuit. . . . It is possible that use of the correct standard of intoxication could have been of critical importance. . . .
. . . [T]he use of these instructions, in the circumstances of this case, constituted such a fundamental error of law and was so highly prejudicial to plaintiffs' cause of action as to require a new trial.
Id. at 435-37,
178 N.W.2d at 868-69 (emphasis added) (footnotes omitted). As far as the instructions BNSF did propose,
Mjos resembles this case: (1) the party seeking a new trial on the basis of an erroneous jury instruction had previously requested the instruction; (2) the parties and the district court had acquiesced in the instruction; (3) the instruction was an erroneous statement of fundamental law; and (4) the instruction was "potentially determinative" of the lawsuit.
Id.
In 1970, when Mjos was decided, rule 51 provided that "[a]n error in the [jury] instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court." Minn. R. Civ. P. 51 (1970). That rule has been amended to provide that "[a] court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required [i.e., by making an objection before an instruction is given or promptly after learning that an instruction has been given]." Minn. R. Civ. P. 51.04(b). "The new rule is modeled on its federal counterpart, Fed.R.Civ.P. 51, as it was amended in 2003." Minn. R. Civ. P. 51.04 2006 advisory comm. cmt. "The court's duty to give correct jury instructions in a civil action" is affected by various factors. Fed.R.Civ.P. 51 2003 amendments advisory comm. note. "The factor most directly implied by a `plain' error rule is the obviousness of the mistake. The importance of the error is a second major factor." Id. The "plain error" rule in the civil context "is suited to correcting obvious instances of injustice or misapplied law." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981). Here, the law was obviously misapplied: the common-law negligence standard is not the standard by which railroad safety is judged.
The "plain error" language of Fed.R.Civ.P. 51(d)(2), which served as the basis for Minn. R. Civ. P. 51.04(b), was itself based on the plain-error rule set out in Fed.R.Crim.P. 52(b). "[T]here must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings." State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (footnote omitted).
In the criminal context, the "invited error" doctrine, providing that a party may not assert on appeal an error that party invited, does not apply to plain errors. See, e.g., State v. Everson, 749 N.W.2d 340, 348-49 (Minn. 2008) ("The invited error doctrine does not apply, however, if an error meets all four parts of the plain error test."); State v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007) (same).
Because the "plain error" language has been used in the civil context in Minnesota only since January 1, 2006, no Minnesota appellate decision has yet addressed it in the civil context, and we must look to the criminal context for its construction.
The error was instructing the jury on the wrong standard of care to be applied to BNSF; the transcript and the jury instructions show that the error was plain. Thus, the first two prongs are satisfied.
We note that the instruction was erroneous only with respect to BNSF. The jury was necessarily properly instructed on the common-law reasonable-person standard of care to be applied to the driver of the car, whose liability the jury was also required to consider.
As to the third prong, the right to a fair trial is clearly among a party's substantial rights. See, e.g., Frey v. Snelgrove, 269 N.W.2d 918, 922 (Minn. 1978) (noting that the goal of deciding whether a plaintiff's settlement with one defendant should be disclosed to the jury is "to preserve the remaining parties' right to a fair trial"). The jury heard evidence of BNSF's compliance with federal regulations. The erroneous instruction that the relevant standard was not compliance with federal regulations but common-law negligence was an error that affected BNSF's substantial right to a fair trial. The "substantial rights" element "is satisfied if the error was prejudicial and affected the outcome of the case." Griller, 583 N.W.2d at 741. Here, the jury's finding that BNSF was 90 percent at fault for the accident was predicated on its finding that BNSF had been negligent. The jury was not asked to find whether BNSF had violated federal law, and such a finding was an essential prerequisite to a finding of liability. Instructing the jury that the common-law standard of care applied to BNSF was a prejudicial error that doubtless affected the outcome of the case.
Finally, having concluded that BNSF was deprived of a fair trial by the erroneous jury instruction, we next "address the error to ensure fairness and the integrity of the judicial proceedings." Id. at 740. Though we are mindful of the protracted, troubled history of this case and its tragic elements, in the end the liability verdict derived from an erroneous standard of care as applied to BNSF. Because of the error of fundamental law in the jury instruction relative to preemption and the resulting affect on BNSF's substantial right to a fair trial, we are compelled to conclude that, to ensure fairness and the integrity of this judicial proceeding, BNSF is entitled to a new liability trial.
Because the district court denied BNSF's motion for a new trial on the ground of an error of law, stating that "[respondent's] claims are not preempted by federal law," we do not review the denial for abuse of discretion or defer to the district court's legal conclusion. See Halla Nursery, 454 N.W.2d at 910 (when decision on motion for new trial is based on an error of law, standard of review is de novo); Bondy v. Allen, 635 N.W.2d 244, 249 (Minn.App. 2001) (holding that appellate court does not defer to district court's decision on question of law).
3. New Damages Trial or Remittitur
The jury awarded identical damages of $6,000,000 to the next of kin of each of the four decedents. BNSF moved for a new damages trial or, in the alternative, remittitur; the district court denied the motion. Decisions on remittitur or a new trial are reviewed for an abuse of discretion. "[A] trial judge has large discretion in determining if damages are excessive and whether the cure is a remittitur or a new trial." Hanson v. Chi., Rock Island Pac. R.R., 345 N.W.2d 736, 739 (Minn. 1984) (quotations omitted). A new trial may be granted for "[e]xcessive or insufficient damages, appearing to have been given under the influence of passion or prejudice." Minn. R. Civ. P. 59.01(e). But, through granting remittitur, a trial court may set aside a verdict it regards as excessive and "should not hesitate to do so where it feels the evidence does not justify the amount, even if the verdict was not actuated by passion and prejudice." Mrozka v. Archdiocese of St. Paul Minneapolis, 482 N.W.2d 806, 813 (Minn.App. 1992), review denied (Minn. May 24, 1992).
"The recovery in the [wrongful death] action is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death. . . ." Minn. Stat. § 573.02, subd. 1 (2008); see also Ahrenholz v. Hennepin Cnty., 295 N.W.2d 645, 648 (Minn. 1980) (proper measure of damages for wrongful death is pecuniary loss resulting from death, not abstract value of human life).
The district court instructed the jury, in awarding damages, to consider the counsel, guidance, aid, advice, comfort, assistance, companionship, and protection the decedents would have given the claimants and the probable time the claimants would have had with the decedents in light of their relative life expectancies. The jury was instructed not to consider the decedents' past or probable future earnings, their living expenses, their pain and suffering, or any punishment of BNSF. Counsel for respondents recommended to the jury "somewhere in . . . that $10 to $12 million range per family, all numbers the same, no differentiation between families, no distinction between kids." Counsel for BNSF did not suggest an amount or a range of damages to the jury.
BNSF argues that, because the harm from any alleged negligence of BNSF was identical for each decedent, but the decedents' family situations were not identical, the identical awards were improperly focused on BNSF's conduct and therefore punitive. We disagree. Supported by the record, the jury may have reasonably decided that $6,000,000 awards were appropriate for different reasons for each decedent.
BNSF also argues that the awards shock the conscience because they exceed the amounts typically awarded in the wrongful deaths of minors. But in the area of wrongful-death damages for a child, "past cases represent history, not controlling law." Lundman v. McKown, 530 N.W.2d 807, 832 (Minn.App. 1995), review denied (Minn. May 31, 1995).
We conclude that the district court did not abuse its discretion in denying BNSF's motions for a new trial on damages or remittitur.
4. Sanctions
This court reviews an award of sanctions under an abuse-of-discretion standard. Leonard v. Nw. Airlines, 605 N.W.2d 425, 432 (Minn.App. 2000), review denied (Minn. Apr. 18, 2000).
The district court, relying on its inherent power, granted in part respondents' motion for sanctions and awarded them $4,180,398.90 against BNSF. The district court awarded sanctions on three grounds: (1) spoliation, discovery, and evidentiary abuses; (2) misrepresentations and false testimony; and (3) witness abuses and obstructing law enforcement. Specifically, the district court awarded respondents the expenses, costs, and attorney fees they incurred because of BNSF's misconduct, as well as one year's interest and one year's investment income on the amount of BNSF's liability to them.
Except for pressure directed at one BNSF employee during trial, all the acts for which sanctions were awarded occurred before the trial.
BNSF argues that the district court lacked inherent authority "to shift attorneys' fees and award delay damages." But "courts are vested with considerable inherent judicial authority necessary to their `vital function — the disposition of individual cases to deliver remedies for wrongs and justice freely and without purchase; completely and without denial; promptly and without delay, conformable to the laws.'" Patton v. Newmar Corp., 538 N.W.2d 116, 118 (Minn. 1995) ( Patton II). "The task of determining what, if any, sanction is to be imposed is implicated by the broad authority provided the trial court." Id. at 119. No published Minnesota appellate court decision appears to specifically exclude or include attorney fees and delay damages from the range of possible conduct-based sanctions, although "[l]itigants ordinarily may not recover attorney fees absent a specific contract or statutory authorization." Osborne v. Chapman, 574 N.W.2d 64, 68 (Minn. 1998). Absent any specific exclusion of attorney fees from possible sanctions, given the "broad authority" of the district court to determine what sanction to impose, and in light of the particular facts here, BNSF failed to establish that the district court abused its discretion in including attorney fees and delay damages in the sanctions.
BNSF also argues that, because the jury verdict indicates that respondents suffered no prejudice from BNSF's conduct, no sanctions are warranted. We disagree. For this argument, BNSF relies on Patton II, providing that "a reasonable and workable standard by which to test the impact of the spoliation [is] the prejudice to the opposing party." Patton II, 538 N.W.2d at 119. But this test pertains only to spoliation, not to the other reasons for which the district court imposed sanctions. Moreover, the district court found that factors other than prejudice, presented in Patton v. Newmar Corp., 520 N.W.2d 4 (Minn.App. 1994), rev'd on other grounds, 538 N.W.2d 116 (Minn. 1995) ( Patton I), were also relevant in sanctioning spoliation: the degree of fault, the existence of a lesser appropriate sanction, whether the evidence lost is irreparable, and whether a party is being penalized for an attorney's misconduct. 520 N.W.2d at 8. Thus, factors other than prejudice may be considered, and the final verdict in respondents' favor does not preclude sanctions against BNSF.
BNSF argues further that the district court violated its duty to impose the least restrictive sanctions. See Patton II, 538 N.W.2d at 118 (noting that this court, in Patton I, suggested that power to sanction is tempered by duty to impose least restrictive sanction available). Specifically, BNSF argues that the delay-related sanctions are an abuse of discretion because respondents, as well as BNSF, stipulated to delaying the trial for one year. The district court found that:
If evidence had been properly preserved, discovery requests timely answered, [and] witnesses cooperative, and had BNSF been reasonably candid with [respondents] and this Court, a one-year
delay most likely would not have been necessary and, perhaps, the need for a trial would have [been] obviated altogether. This Court remains convinced, and the record supports the finding[,] that the one-year delay in the proceedings can be primarily attributed to BNSF's misconduct.
BNSF notes that the scheduling orders themselves indicate that respondents' counsel agreed to the delays, but respondents explain, and the district court found, that they agreed to the delays because they had inordinate difficulty in obtaining evidence from BNSF.
Finally, BNSF argues that the attorney-fee award was speculative because respondents' attorneys worked on a contingency-fee basis and kept no hourly records; both the number of hours and the hourly fees were estimates. But those estimates were reviewed by the district court before being accepted. BNSF provides no support for its view that contingency-fee attorneys who anticipate an award of their fees are required to keep hourly records.
The district court did not abuse its discretion in awarding sanctions. The award of $4,180,398.90 included: (1) $16,647.69 in expenses incurred because of BNSF's misconduct; (2) $90,111.21 in costs incurred because of BNSF's misconduct; (3) $999,640 for attorney fees linked to BNSF's misconduct; (4) $864,000, or 4% of the amount of BNSF's total liability to respondents, for postjudgment interest lost by respondents because of BNSF's one-year delay; and (5) $2,210,000, or 10.23% of the liability amount, for investment income lost by respondents because of BNSF's one-year delay. The first three items (totaling $1,106,398.90) were unrelated to the total amount of BNSF's liability to respondents, but the fourth and fifth items (totaling $3,074,000) are percentages of the amount of that liability. Because liability will be determined anew on remand, we affirm the sanctions award but remand the items calculated as a percentage of BNSF's liability for possible recalculation after the new trial.
DECISION
We affirm the denial of BNSF's motion for JMOL because respondents were entitled to bring their state-law claims, provided that the federal standard of care was used. We affirm the denial of BNSF's motion for a new damages trial or remittitur and the award of sanctions because the district court did not abuse its discretion. We reverse the denial of BNSF's motion for a new liability trial and remand for a new trial on liability because the erroneous jury instruction on the standard of care was an error of fundamental law; in light of this reversal, we do not address BNSF's motions for a new liability trial based on newly discovered evidence and alleged trial errors. We also remand those items in the sanctions award that are contingent on the amount of BNSF's total liability for possible recalculation after the new liability trial.
Affirmed in part, reversed in part, and remanded.
MINGE, Judge (concurring in part, dissenting in part).
I concur in parts one, three and four of the majority opinion. I respectfully dissent from part two, granting a new trial based on error in the jury instructions, and would affirm.
This case arises out of a tragic accident that occurred on September 26, 2003. The ensuing litigation has been the subject of several years of discovery and a six-week jury trial. The parties were represented by experienced lawyers, the trial was presided over by a respected judge, and the jury reached its verdict. The essence of my disagreement with the majority is that I would evaluate the jury-instruction issue for plain error pursuant to Minnesota Rules of Civil Procedure 51.04(b) and 59.01(f).
Rule 51 was rewritten and the present language was adopted effective January 1, 2006. Minn. R. Civ. P. 51. It applied to the trial court proceedings in this case and applies to the appeal before this court. The rule gives parties the right to propose instructions (rule 51.01), requires that the district court provide parties with its proposed instructions and an opportunity to object (rule 51.02), establishes that objections must be timely and defines what is timely (rule 51.03), gives parties the right to assign error (rule 51.04), and in rule 51.04(b), gives the district court discretion to "consider a plain error in the instructions affecting substantial rights that has not been preserved as required by rule 51.04(a)(1) or (2)." Rule 59.01 recognizes the discretion of the district court to grant a new trial based on an error in instructions. Minn. R. Civ. P. 59.01(f).
To meet the plain-error standard of rule 51.04(b), the objecting partly must establish that four considerations are met: that there was error, that it was plain or obvious, that it substantially affected the verdict, and that corrective judicial action is required to ensure the fairness and integrity or public reputation of the judicial proceedings. State v. Reed, 737 N.W.2d 572, 583 (Minn. 2007); see also BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 960 (8th Cir. 2003) (adding that an error in instructions should only result in a reversal if the district court's decision would be "a miscarriage of justice if left uncorrected"). Although this plain-error standard is used in both criminal and civil proceedings and the four prongs are the same in both areas, courts agree that a reversal is harder to obtain in civil appeals than criminal. Johnson v. Ashby, 808 F.2d 676, 679 n. 3 (8th Cir. 1987); see Mjos v. Vill. of Howard Lake, 287 Minn. 427, 437, 178 N.W.2d 862 (1970) (deferring to district court discretion granting new trial). The plain-error standard is only designed to provide relief in the most egregious cases. Horstmyer v. Black Decker, U.S., Inc., 151 F.3d 765, 771 (8th Cir. 1998); Johnson, 808 F.2d at 679 n. 3. No reported Minnesota court decisions have reversed a district court determination in civil litigation that its use of unobjected-to jury instructions did or did not constitute error requiring a new trial.
Here, applying the plain-error standard, I agree with the majority that instructing the jury that appellant's liability could be established on a common-law, state-negligence basis was plain error. The third and fourth prongs are more difficult to apply.
The third prong of the plain-error test requires that we determine whether the error substantially affected the verdict. Under the plain-error test, the challenging party generally has the burden of persuasion. Reed, 737 N.W.2d at 583-84. The plain-error test does not distinguish between more pedestrian errors and fundamental errors. Although I recognize that prior to the adoption of the plain-error language in rule 51.04, Minnesota caselaw placed the burden on the respondent to establish that a fundamental error did not affect the result, this caselaw is eclipsed by the adoption of the rule. See Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002) (examining prejudice in pre-2006 litigation). Because we have no reported Minnesota decision dealing with the application of rule 51.04 to fundamental error, we should look to federal caselaw under the federal rule 51.04 which has identical language. See 9C Charles Alan Wright Arthur R. Miller, Federal Practice Procedure, § 2558 (3d ed. 2008) (summarizing federal treatment of plain error and a change in law in text and accompanying footnotes 16 to 23).
I note that George v. Estate of Baker, 724 N.W.2d 1 (Minn. 2006), which is relied on by the majority, not only is pre-2006 litigation but also was a situation where the appealing party objected to the instruction at trial.
Here, I agree with the majority that the error is serious and may have affected the outcome of the jury's liability determination. However, respondents introduced evidence that BNSF failed to comply with the federal standards of care established by regulation and with its own standards that were allegedly created pursuant to federal regulation. Respondents' brief devotes multiple pages to detailing violations by BNSF of federal rules and of BNSF's own standards. This may constitute a record adequate for a jury to determine that liability was established using the proper federal standard. 49 U.S.C. § 20106(b)(A), (B) (Supp. II 2008).
In considering the impact of the erroneous jury instruction, I note that the district court determined that the conduct of BNSF (that resulted in dramatic sanctions) complicated the proof of various violations. Given the significance of the evidence of violations, the misconduct of BNSF in creating a troubled record, the instructions provided the jury, and the deficiencies in the instructions; it is not self-evident that BNSF was substantially prejudiced by the complained-of common-law instruction. To the extent that there was ample evidence in the record to establish liability on the basis of violations of law, regulation, and BNSF's own standards, the error in instructions was arguably harmless, even if it was fundamental.
Here, BNSF has the burden of establishing the requisite prejudice. Although BNSF addresses the topic of fundamental error, it does not discuss or apply the plain-error analysis. In reviewing the record, I conclude that BNSF does not establish that there was not an adequate independent basis for establishing liability. Conversely, because the district court denied the motion for a new trial without recognizing the plain error in its jury instructions, we do not have the benefit of its analysis of the prejudice. In this situation, we cannot determine whether the district court abused its discretion on the third prong. It never reached it. If this third prong of the plain-error test were the end of the analysis, I would remand to the district court for a determination whether BNSF met its burden of establishing the requisite prejudice.
Even if BNSF established that the error affected its substantial rights, the plain-error test requires a fourth and final step. We examine "whether the error should be addressed `to ensure fairness and the integrity of the judicial proceedings.'" Reed, 737 N.W.2d at 583 (quotation omitted). Here, prior to instructing the jury, the parties and the district court engaged in exhaustive consideration of the proposed jury instructions. BNSF had every opportunity to submit instructions and did so. Indeed, as the majority points out, BNSF even proposed one of the instructions that it now challenges on appeal. In addition, BNSF was fully aware of the instructions requested by respondents and of the instructions the district court proposed to give. The record does not disclose any objection. BNSF stood silent with respect to the instructions that apparently violate Railroad Law 101. When one of the largest railroads in our country and its legal counsel decline the opportunity to object or even comment on instructions that on appeal are characterized as a fundamental error of basic federal railroad law, this posture is fairly characterized as acquiescing in the instructions given.
I submit that acquiescence presents the question of invited error and is relevant to the fourth prong of the plain-error standard and to this appeal. Minnesota has recognized that litigants who actually participate in the development of instructions and who do not object to instructions will not be heard to complain on appeal that the instructions are improper. See Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818 (1975) ("One who procures error may not assert such error as the basis for obtaining a new trial."). No reported Minnesota case has been brought to this court's attention reversing a decision of a trial judge denying a new trial in a civil case in the setting of invited error. The caselaw discussed by the majority addressing such instructional errors involved either appeals in which an objection was made prior to charging the jury or appellate affirmance of the decision by the district court granting a new trial. Federal caselaw dealing with this issue of invited error indicates an unwillingness to let culpable parties benefit from their conduct. See Beardshall v. Minuteman Press Int'l, Inc., 664 F.2d 23, 27 (3rd Cir. 1981) (stating failure to object ordinarily bars consideration of the issue on appeal).
The question on appeal is whether fairness and integrity in judicial proceedings require that BNSF be given the opportunity to have a second trial after a six-week trial, and to demand the benefit of new witnesses identified after the completion of the first trial. We should not allow parties the opportunity to stand-by, not object to erroneous jury instructions, and see how the first trial will turn out, expecting that if the result is adverse the judge's error will enable them to secure a new trial. Here, we must add to the mix the sanctioned misconduct of BNSF, the open question of whether there is any substantial prejudice, the substantial discretion granted to the district court to determine whether a new trial should be granted, and the significant deference Minnesota appellate courts have given to the district court's exercise of this discretion.
In analyzing whether plain error so implicates the fairness and integrity of judicial proceedings that reversal is required, some courts have considered the precedent-setting nature of the litigation. The liability for a single accident does not present a far-reaching legal issue. See Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628 n. 5 (1st Cir. 1995) (reverse if failure to do so would threaten frustration of some broadly important right). This resembles the historic attitude of many courts that failure to object to an instruction that misstates the law simply results in that instruction being the law of the case. See, e.g., Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713, 716-18 (9th Cir. 2001) (indicating strict compliance with former Fed.R.Civ.P. 51). The culpable party simply lives with its mistakes in the conduct of the litigation. Carter v. Chi. Police Officers, 165 F.3d 1071, 1077-78 (7th Cir. 1998). Finality and careful use of judicial resources are important considerations that offset what may be an erroneous instruction and preclude a quick finding that the fairness and integrity of the legal system is at stake.
I conclude that under the circumstances of this case, the fourth prong of the plain-error standard, ensuring fairness and integrity in judicial proceedings, is not met and that this court should not reverse the district court's denial of a new trial. I would affirm.