Corbin v. Dickerson

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.

                                 No. 88-407


 Horace and Sylvia Corbin                     Supreme Court

                                              On Appeal From
      v.                                      Grand Isle Superior Court

 James Dickerson                              November Term, 1989

 Ronald F. Kilburn, J.

 Robert P. Davison and Todd C. Hartsuff of Robert P. Davison, Jr., P.C.,
   Stowe, for plaintiffs-appellees

 Roesler & Whittlesey, Burlington, for defendant-appellant

 PRESENT:  Peck, Gibson, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
           Specially Assigned


      DOOLEY, J.   Defendant, James Dickerson, appeals the grant of an
 additur, or, alternatively, a new trial, by the superior court in favor of
 plaintiffs, Horace and Sylvia Corbin, in a suit in which plaintiffs sought
 damages arising out of the sale of duck decoys to defendant.  We affirm.
      On February 2, 1986, defendant, who was referred to plaintiffs by a
 mutual friend, went to plaintiffs' residence in order to look at plaintiffs'
 collection of duck decoys.  After defendant examined the decoys, he offered
 to purchase one hundred and three decoys for $1,050 and plaintiffs accepted.
 Plaintiffs alleged and testified that defendant made a number of misrepre-
 sentations that induced them to sell him the decoys.  Defendant disputed
 that he made any misrepresentations to induce the sale.
      On the day defendant purchased the decoys, he attempted to call a decoy
 collector, and receiving no answer, contacted another collector familiar
 with the work of Maine decoy carver, Gus Wilson.  Defendant was informed
 that many of the decoys he had purchased were carved by Gus Wilson and that
 others were machine-made Victor decoys.  The collector informed defendant
 that the Wilson decoys were very valuable and tried to buy them.
      One week later, on February 9, 1986, defendant returned to plaintiffs'
 residence to purchase more decoys.  By that time, defendant clearly knew the
 value of the Wilson decoys and, in fact, had sold some of them.  Defendant
 bought two more decoys for $125 after he allegedly stated that it was easier
 to sell the decoys in pairs.  It appears that Gus Wilson carved at least one
 of these decoys.
      Defendant sold one hundred of the decoys for a return net of sales cost
 of $61,590.  Defendant sold the forty-one Victor decoys for $500.  The
 Wilson decoys sold for as little as $200 each to over $3,000 each for the
 more valuable "Old Squaws."  Defendant retained possession of five decoys,
 including one that he purchased from plaintiffs on February 9, 1986.  The
 sales were itemized on plaintiffs' Exhibit No. 38, which was presented to
 the jury on a large chart, substantially as follows:
                   No. Decoys (FN1)Type of Decoy      To Whom Sold     Price
              --------------------------------------------------------------
               1   Pair           Wilson             Miles          $ 6,500
                                  1 pr. Old Squaws
               2    41            Victor             Miles              500
               3    10            Wilson             Oliver          11,500
               4    12            Wilson             Guyette         23,590
               5    12            Wilson             Miles            2,500
               6     1            Wilson Old Squaw   Miles            1,100
               7     2            Wilson             Weisman          1,400
               8    11            Wilson             Miles           10,000
               9    10            Wilson             Smart            4,500
              10     1            Victor
                     4            Misc.
              -------------------------------------------------------------
                   105                                              $61,590

      Plaintiffs brought suit against defendant.  They alleged twelve counts
 on which plaintiffs sought compensatory and punitive damages, including
 deceit, consumer fraud, breach of contract, conspiracy and negligent mis-
 representation.  The case went to the jury on the theories of fraud and
 negligent misrepresentation.  The jury awarded plaintiffs $615.90 in
 compensatory damages and denied punitive damages.  Pursuant to V.R.C.P. 59,
 plaintiffs moved for a new trial on the issue of damages, or, in the alter-
 native, for a new trial on all issues, alleging that the damage award was
 inadequate.
      In response to the Rule 59 motion, the court relied strongly on plain-
 tiffs' evidence that defendant sold the decoys for $61,590 as presented on
 the chart that was shown to the jury.  The court found that the damage
 award of $615.90 was "contrary to any of the evidence submitted and outside
 any of the instructions given by the court," but it was exactly 1% of the
 amount received by defendant for the decoys.  The court concluded that the
 jury had found defendant liable on a theory of negligent misrepresentation
 but had misapplied the doctrine of comparative negligence resulting in a
 recovery of 1% of damages rather than the minimum of 51% of damages.
      On this basis, the trial court denied plaintiffs' motion for a new
 trial "provided that Defendant shall on or before 30 days from the date of
 entry of this order file a written acceptance of an addition to the verdict
 herein in the amount of $30,795.10, for a total amended verdict and judgment
 in the amount of $31,411.00" -- a sum equal to 51% of the defendant's sale
 price.  If the defendant refused to grant the additur, the court ordered a
 new trial on all issues.  Defendant declined to make the additur, and re-
 quested interlocutory review of the new trial decision.
      Although defendant breaks the appeal issues into components, his basic
 argument is that the jury could have reached the damage amount they did
 based on a different, valid theory and, as a result, the decision to grant
 an additur and, alternatively, a new trial was erroneous.  To evaluate fully
 this argument, we must first set forth the trial court's power to grant a
 new trial in a situation like that before the court and our power to review
 the trial court's decision.
      The power of the trial court to grant a new trial as an alternative to
 defendant providing an additur is set forth in V.R.C.P. 59(a) as follows:
         A new trial shall not be granted solely on the ground
         that the damages are inadequate until the defendant has
         first been given an opportunity to accept an addition to
         the verdict of such amount as the court deems to be
         reasonable.

 There is no question that the court followed the proper procedure in this
 case.
      The discretion of whether or not to grant a motion for a new trial
 under Rule 59(a) is vested in the trial court and we will overturn the
 decision only where there has been abuse of that discretion.  See Costa v.
 Volkswagen of America, 150 Vt. 213, 217, 551 A.2d 1196, 1198 (1988).  This
 Court must accord the trial court's ruling "all possible presumptive sup-
 port."  Weeks v. Burnor, 132 Vt. 603, 609, 326 A.2d 138, 141 (1974).
      As defendant argues, there are necessarily limits to the discretion we
 accord the trial court.  While we give presumptive support to the trial
 court's ruling, it in turn must give presumptive support to the verdict of
 the jury.  Costa, 150 Vt. at 217, 551 A.2d  at 1199.  In considering a new
 trial motion, the trial court must weigh the evidence in the light most
 favorable to the verdict and may not disturb the verdict unless it is
 clearly wrong.  See Hardy v. Berisha, 144 Vt. 130, 133-34, 474 A.2d 93, 95
 (1984).  Under our case law, a verdict can be found clearly wrong and unjust
 if the jury has "disregarded the reasonable and substantial evidence" or
 found against the evidence "through passion, prejudice, or some miscon-
 struction of the matter."  Weeks, 132 Vt. at 609, 326 A.2d  at 141.  We
 interpret the trial court's decision in this case to be based on a con-
 clusion that the jury verdict was inconsistent with the evidence because it
 misconstrued the calculation to be made in comparing the negligence of the
 plaintiffs to that of the defendant.
      There is no question that the court's view of what occurred is a
 plausible theory of the jury's verdict.  Plaintiffs' chart accounting for
 the one hundred and five decoys and showing that defendant made $61,590 from
 their sale was prominently before the jury.  The verdict is precisely 1% of
 the amount shown on the chart. The fact that the jury rendered its verdict
 so precisely as to specify the number of cents reinforces the court's
 theory of the verdict.
      Defendant presents an alternative way to reach the verdict, based on
 three major elements.  First, defendant assumes that the jury found
 liability only for decoys defendant purchased on February 9.  Second,
 defendant assumes that the jury found liability based on fraud, and not
 based on negligence, so that no negligence comparison was involved.  Third,
 defendant argues that the jury could find that the value of one decoy, sold
 on February 9, was $615.90.
      There is no question that the first two assumptions represent real
 possibilities. (FN2) The defendant's main difficulty is in showing that under
 his theory the jury could have reached a verdict of $615.90.  On this point,
 he argues that there was no evidence establishing a sales price for the
 February 9 decoys, that the sales price of decoys varied greatly and that
 the average sales price of the decoys in issue was $615.90. (FN3) Defendant
 relies on the fact that the evidence did not disclose which decoys were sold
 on February 9.
      The trial court's determination necessarily involved some evaluation of
 the weight of the evidence.  See Weeks, 132 Vt. at 606, 326 A.2d  at 140.
 The trial court observed the witnesses and was in a better position to
 evaluate the weight of the evidence than we are.
      We conclude that the new trial award in this case was within the trial
 court's discretion and that the exercise of discretion was not based on
 untenable grounds.  The jury award was clearly calculated as one percent
 (1%) of the net decoy sales proceeds as shown on plaintiffs' chart.  We
 cannot accept as mere coincidence that the jury arrived at the exact amount
 to the penny by some other method.
      Once we arrive at the method of calculation, defendant's argument for a
 theoretical alternative to that of the trial court becomes more difficult.
 At best, defendant's theory reduces plaintiffs' claim to the value of two
 decoys -- those sold on February 9.  However, we fail to see how the jury
 could find the damages to be $615.90 for the two decoys.  The trial court
 properly found the verdict to be clearly wrong -- i.e., against the evidence
 because of a misconstruction of the charge.
      Affirmed.

                                         FOR THE COURT:

                                         Associate Justice





FN1.    It is apparent that the parties counted the pair of Wilson decoys
sold in the first transaction as a single decoy.

FN2.    Defendant goes further and argues that the negligent misrepresent-
ation theory was against the weight of the evidence so that there was "no
reasonable basis" for the trial court's ruling.  We agree that the jury
could have found fraud, and not negligent misrepresentation, but we do not
find the negligent misrepresentation theory to be against the weight of the
evidence.

FN3.    This argument is based on plaintiffs' chart that shows that 105
decoys brought $61,590.  On the chart, no price was shown for five of the
decoys.  Thus, he argues that the total price of $61,590 represented only
100 decoys, or an average price of $615.90 per decoy.