Day Island Yacht Harbor, Respondent V General Construction Co, Appellant (Majority)
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FILED COURT OF APPEALS DIVISION II 20! AUG 12 PM ! 2: 136 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44402 -0 -II GENERAL CONSTRUCTION CO., Appellant, v. UNPUBLISHED OPINION DAY ISLAND YACHT HARBOR, INC., Respondent. HUNT, P. J. General Construction Company appeals a $ 1. 25 million jury verdict based on its finding that General Construction breached its construction contract with Day Island Yacht Harbor, Inc. General Construction argues admitting Brian McGuire' s testimony about that ( 1) the trial court erred as a matter of law in the value of his marina, ( 2) the jury verdict lacked substantial supporting evidence, and ( 3) the trial court erred in denying General Construction' s motion for new trial for these foregoing two reasons and also because ( a) the verdict did not " do substantial justice" and ( b) the trial court improperly ruled that General Construction waived its right to challenge McGuire' s opinion testimony about the diminution in value of his marina. Br. of Appellant at 37. We affirm. No. 44402 - -II 0 FACTS I. MARINE CONSTRUCTION CONTRACT Day Island Yacht Harbor, Inc. is a Washington corporation, which Brian McGuire acquired in 1970. Beginning in 1988, Day Island contracted with General Construction, a construction company specializing in marine- related construction work, whenever Day Island needed piling replaced or other marine construction work. On May 20, 2008, Day Island and General Construction entered into a construction agreement for dredging and piling work at Day Island Yacht Harbor, for an agreed price in excess of $ personnel, necessary and mobilizing piles; ( The agreement provided that General Construction would furnish the 800,000. equipment, demobilizing 3) moving the floats clamshell dredge into between existing dredge the stipulated cranes, anchors, and small down to a buckers, project Clerk' depth s and and material boathouses to temporary barges "); ( wood piles. marina facilities for the and that its duties included ( 1) barges; ( anchorage; ( 4) 2) demolishing float dredging ( " all work to 5) driving new piles; and ( 6) installing long wood piles Papers ( CP) of minus that the project would commence 12. at General Construction also agreed to ten feet with a one -foot July 16, 2008. allowance. The agreement The agreed price was in excess of 800,000. General Construction began dredging in July 2008, but it encountered difficulties and could not dredge to the required minus 10 -foot depth. General Construction told McGuire that it was experiencing resistance " in hardpan" and was unable to dredge the north and south ends of the marina. Verbatim Report of Proceedings ( VRP) 615, 000 for its work to date. 2 at 281. McGuire paid General Construction No. 44402 -0 -II Concerned that General Construction had not completed its work in some areas, McGuire hired Wilson & Associates to survey the had was properly dredged the not still material that area: needed The survey revealed that General Construction area. For example, under three boathouses in the north end, there dredging. The south end of the moorage basin was not fully And the boathouses on the eastern end appeared to have shifted eastward. The survey dredged. also revealed that although General Construction was supposed to have dredged 12, 800 cubic yards of material, it had dredged only about 7, 000 cubic yards. Finishing the project required taking the marina apart and " starting over "; it involved such work as re- wiring, removing material underwater, pumping sediment onto the shore, removing and replacing pilings at the north and south ends of the marina, re- wiring the facility, and potentially obtaining Construction finish the companies and a new dredging sought price permit. failed. estimates for VRP at 319. McGuire' s attempt to have General So McGuire contacted other marine construction finishing the dredging: McGuire contacted Frank Immel at Global Divers about the cost of removing underwater material and pumping sediment on shore. McGuire contacted Thompson Pile Driving about removing the pilings. And he contacted Sound Rock and Bulkhead about dredging the material that General Construction had failed to dredge and refused to complete. II. PROCEDURE On May 19, 2011, Day Island sued General Construction for breach of contract, alleging that ( 1) General Construction had breached its duty to perform dredging and marina operations in accordance with their written agreement; and ( 2) as a result of this breach, Day Island was entitled to specific performance or General Construction responded with a set of damages. 3 No. 44402 - -II 0 interrogatories asking Day Island to list specific damages, which it did. There was a jury trial in October 2012. A. Trial Testimony 1. Jeffrey with Layton, a coastal civil engineer with General Construction permitting for the Day Day Island' s witnesses since Island 1977. project. Layton & Sell, had worked as an engineer In 2002, McGuire had contacted Layton to help with Layton testified that the main dispute between McGuire and General Construction involved the south area of Day Island and the diagonal boathouses. The plan was for General Construction ( 1) to dig out a small area around the south end to allow material to to flow down the remove channel into the marina before dredging underneath the boathouses in the basin and to store them offshore, and ( 3) the boathouse, ( 2) then to return the boathouses to their original positions. But General Construction did not move all the boathouses. McGuire testified about the agreement into which Day Island had entered with General Construction. He stated that General Construction had failed to dredge 200 to 250 cubic yards at the north end of the marina and 250 cubic yards at the south end. McGuire had first noticed a problem before General Construction left the site in September 2008; and he had complained to Tom Jirava, General Construction' Construction had not completed s employee dredging the in charge south and of site north operations, ends. that General In September 2008, McGuire contacted General Construction, asking it to complete the promised dredging; General Construction incomplete refused. dredging Nor did General Construction assist McGuire to fix the problems its had caused. Instead, General Construction told McGuire to contact Frank 4 No. 44402 -0 -II Immel and to hire a diver to " the mud up and put it up on [ the] property," which would suck have cost over $500,000. VRP at 308. McGuire had been to unable find another contractor to " fix" General Construction' s failure to dredge the north and south ends of the marina and its failure to move the boathouses, without first taking the marina, including spent on the marina apart and rewiring, would be at starting least $ over. VRP at 318. The cost of rebuilding the 1 9 million, the amount McGuire had already When McGuire' s counsel asked if he had an opinion about how much the project. value of the marina had dropped as a result of General Construction' s failure to dredge properly, General Construction overruled objected on grounds of lack of foundation and expertise. The trial court the objection, stating that McGuire could answer and that the weight " goes to the jury." Marty Jackson testified that Day Island had hired him and his former partner John Patterson to work with General Construction to replace the boathouses back into the basin and to secure General Construction had to " them in place with pilings. get certain piling in place" before Jackson and General Construction could bring in the first row of boathouses; General Construction would then install pilings outside the boathouses to secure them before the next row of boathouses could be brought in and secured. Jackson saw General Construction dredge and pile drive using two barges, which Jackson believed were rather large for working in Day Island' s small basin, " sort of like a bull in a china shop." General Construction' s large barges' appeared to have a hard time maneuvering around the docks and pilings inside the basin because clearance was minimal. No. 44402 - -I1 0 2. General Construction' s Witness Ken Preston, an estimator and superintendent at General Construction, testified that removing all the material that General Construction had failed to remove would cost about 95, 000. Preston had arrived at this figure by calculating the total number of yards of material that still needed to be removed ( 500) divided by the yards that could be removed per day ( 30), which would take about 2 weeks at a cost of $5200 a day as quoted by Immel at Global Diving. The cost of " mob[ ilizing] and demob[ ilizing]" B. The trial breached its of court instructed the contract with General Construction' sustained. Day s jury and ( be about $ 15, 000. 1 VRP at 567. Instructions2 Jury Island; ( 2) breach; would to determine ( 1) whether General Construction had whether Day Island had sustained damages as a result 3) the amount of damages, if any, Day Island had On the specific issue of determining damages, the jury instructions stated that if the jury found Day Island proved that it had incurred actual damages and if the jury determined the amount of such actual damages, then the jury should award actual damages to Day Island. Jury instruction 10 also specified that in calculating damages, the jury should determine the " sum of money that will put the plaintiff [Day Island] in as good a position as it would have been in if both plaintiff and defendant had performed all of their promises under the contract." CP at 168. 1 Mobilization is the preliminary process and cost of starting a dredging project before the actual dredging takes place: It includes towing the equipment to the site and preparing the equipment and barges. Demobilization involves offloading and removing this equipment from the site after the work is completed. 2 General Construction did not challenge the jury instructions below. Nor does it challenge them on appeal. 6 No. 44402 -0 -II C. Closing Arguments Day Island argued to the jury that ( 1) to repair the marina, Global Diving would charge about $ 500, 000 and General Construction would charge about $ 200, 000 to pull the pilings; and 2) the property value had dropped to about 60 to 80 percent of the amount paid for the dredging operation, $ 1. 14 million and $ 1. 52 million, respectively. Day Island also told the jury that the measure of damages was to " put Mr. McGuire back in as good a position as he would be if he hadn' t to be met these guys," turnkey to pass on nine see the million - and that "[ to his next back didn' t really of evidence produce generation. and start all over." General Construction preponderance McGuire] spent a million - ine figuring this marina was going n argued Instead, he has I would like to have him VRP at 896. that to show damages, the breach of contract and that any damage a mess. evidence," and Day Day they Island' s Island had to " were prove by a damaged," but "[ damages did not amount t]hey to " a million five" because, based on Preston' s testimony, the cost to move the boathouses and to remove the remaining material out was only $95, 000. VRP at 879. D. Verdict; Judgment The jury entered a special verdict finding that ( 1) General Construction had breached its contract with accomplish the Day island to furnish the necessary dredging and associated float personnel, and marina repair at equipment, Day and facilities to Island Yacht Harbor; ( 2) as a result of General Construction' s breach of contract, Day Island had sustained damages; and 3) the amount of these damages 2, 2012, awarding its costs Day bills. The trial was $ 1, 250,000. The trial court entered judgment on November Island $ 1, 250, 000 in damages, plus costs and disbursements set forth in court denied Day Island' s request for attorney fees or litigation expenses. No. 44402 -0 -II E. Motion for New Trial General Construction moved for a new trial and/ or remittur on grounds that ( 1) Day Island did not provide sufficient evidence to support the jury' s verdict, and a new trial was warranted under admission of not " do CR 59( a)( 7); ( his testimony substantial 2) McGuire' s testimony was inadmissible and the trial court' s constituted an error of justice," which warranted a law under CR 59( a)( 8); and ( 3) the verdict did trial under CR new 59( a)( 9). CP at 211. 3 General Construction argued that McGuire' s failure to present evidence of the value of Day Island before the alleged damage warranted a new trial. The trial court noted that although General Construction had objected to the specific question about McGuire' s opinion on how much the drop in value of the marina was, General Construction did not further object, file a motion to strike, or challenge any subsequent testimony. The trial court also noted that ( 1) after the trial court overruled General Construction' s objection, McGuire had testified about his opinion of the drop in his marina' s value; ( 2) General Construction had waived its objection to this testimony; and ( 3) the jury had heard the evidence, rendered a verdict, and used the information presented at trial to reach their verdict. For these reasons, the trial court denied General Construction' s motion for new trial and/ or remittur. General Construction 4 appeals. 3 General Construction also argued below that a new trial was warranted under CR 59( a)( 6) and CR 59( a)( 5). 4 But these grounds are not before us on appeal. General Construction does not raise the remittur issue on appeal. No. 44402 -0 -II ANALYSIS I. ADMISSION OF MCGUIRE' S TESTIMONY General Construction first argues that the trial court erred in admitting McGuire' s testimony on damages. More specifically, General Construction contends that ( 1) McGuire was not qualified to opine about the Day Island marina' s diminution in property value as a result of its ( General Construction' incompetent and prejudicial s) breach because of Day contract, and ( Island failed to 2) lay McGuire' s testimony was both a proper foundation for it. This argument fails. A. Standard of Review We review for abuse of discretion a trial court' s ruling on the admissibility of opinion evidence. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 ( 2001). It is well settled that an owner is qualified to testify about the value of his property; no further " expert[ isej" is required. See McCurdy v. Union Pac. R.R., 68 Wn.2d 457, 468 - 69, 413 P. 2d 617 ( 1966); Wicklund v. Allraum, 122 Wn. 546, 547 -48, 211 P. 760 ( 1922); State v. Hammond, 6 Wn. App. 459, 462, 493 P.2d 1249 ( 1972). A property owner is presumed to be sufficiently acquainted with its value and the value of surrounding lands to give an intelligent estimate of the value of his property. State v. Wilson, 6 Wn. App. 443, 451, 493 P.2d 1252 ( 1972). An owner' s knowledge about the value of his property may come from many sources, including inquiries, comparisons, purchases, and sales. Wicklund, 122 Wn. at 547. The source of the property owner' s knowledge may affect the weight of his testimony but not its admissibility. Wicklund, 122 Wn. 9 at 547; McInnis & Co. v. W. No. 44402 -0 -II Tractor Equip. Co., 67 Wn.2d 965, 968, 970, 410 P.2d 908 ( 1966). B. Admissibility It is undisputed that McGuire was the owner of Day Island Yacht Harbor, Inc. General Construction challenges the proposition that a real property owner can testify about its value, based on Wicklund' s and McPhee' s focus on personal property, not real property. But General Construction ignores that Washington courts have extended this long -established personal property for value rule Kitsap Cnty., to real property. See State ex rel. Bremerton Bridge Co. v. Superior Court 194 Wn. 196, 198 -99, 77 P. 2d 800 ( 1938). General Construction cites, State v. Wilson, 6 Wn. App. Furthermore, a key case that 443, 493 P. 2d 1253 ( 1972), stands for the very proposition that it contests here, namely that " the owner of real property has a right to testify as to the value of his property." Wilson, 6 Wn. App. at 451. We hold that the trial court did not abuse its discretion in allowing McGuire to testify about the value of his property. General Construction also argues that the trial court improperly admitted McGuire' s testimony under Wilson, in which we ruled that an owner' s testimony about the fair market value of his real property becomes incompetent when it is based on irrelevant factors and ignores fails because Wilson is distinguishable. In Wilson, we held relevant factors. This that ( 1) evidence of the cost of reproducing or replacing a building is admissible when the argument also structures are well adapted to the land on which they stand; ( 2) such reproduction cost is not admissible when the sole factor for determining fair market value is based on structures located on " another comparable-parcel of realty "; and ( 3) because the owner' s valuation testimony was 10 No. 44402 -0 -II based solely on the cost of rebuilding structures on a different, but comparable, plot of land, the trial court did not abuse its discretion in excluding such testimony. Wilson, 6 Wn. App. at 450- 51. Here, however, McGuire testified about the cost to reconstruct the same buildings at the same place on cost the same reconstruction of admission of land on at the his Day Island same plot McGuire' s testimony here. of marina. land is Thus, our holding in Wilson that the admissible supports the trial court' s Through McGuire' s testimony and related exhibits, Day Island provided estimates of reconstruction costs on its own marina, not on a comparable plot of land.5 We further note that Wilson involved appellate review of the trial court' s exclusion of the property owner Wilson' s valuation; here, in contrast, the issue is whether the trial court erred in admitting property Review section owner of this McGuire' analysis, s valuation testimony. As we explained in the Standard of we give deference to the trial court' s evidentiary rulings, reversing only where in making such rulings, the trial court abused its discretion. We hold that the trial court did not abuse its discretion in admitting the testimony of McGuire, who as Day Island' s owner, was qualified as a matter of law to testify about the value of his property, both before and after General Construction' s breach of contract, to prove damages. 5 Day Island also provided ample other valuation evidence, including testimony from numerous witnesses, correspondence between the parties, and price estimates from other marine In contrast, the record in Wilson comprised a short record containing only Dr. Wilson' s testimony. Wilson, 6 Wn. App. at 444 -45. construction companies. 11 No. 44402 -0 -II II. SUBSTANTIAL EVIDENCE SUPPORTS JURY VERDICT General. Construction next argues that substantial evidence does not support the jury' s 1. 25 million damages verdict. General Construction asserts that under the diminution in value theory, Day Island failed to provide the fair market value of the marina before and after General Construction' s breach of contract. We disagree. A. Standard of Review Courts are reluctant Physicians Ins. Exch. & to interfere with a Ass' n v. Fisons jury' s Corp., fair damages award. Washington State 122 Wn.2d 299, 329, 858 P.2d 1054 ( 1993). Thus, we view the evidence in the light most favorable to the jury' s verdict. State v. Curtiss, 161 Wn. App. 673, 693, 250 P. 3d 496 ( 2011). And there is a strong presumption that a jury' s damages award is correct. RCW 4.76.030, Green v. McAllister, 103 Wn. App. 452, 461, 14 P.3d 795 ( 2000). Nevertheless, an appellate court may overturn a jury' s damages award that is " outside the range of substantial evidence in the record." Wn.2d 831, 835, 699 P. 2d 1230 ( 1985). sufficient to persuade a rational, Irrigation Dist. v. minded fair - Bingaman v. Grays Harbor Cmty. Hosp., 103 Substantial evidence is the quantum of evidence person that the premise is true. Dickie, 149 Wn.2d 873, 879, 73 P. 3d 369 ( 2003). "` Sunnyside Valley Evidence of damage is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture. "' Clayton v. Wilson, 168 Wn.2d 57, 72, 227 P. 3d 278 ( 2010) quoting State v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 ( 1984)). 12 No. 44402 -0 -II B. Breach of Contract Construction Damages For determining Restatement ( Second) of damages, construction our State Supreme Court has adopted the Contracts ยง 348, at 119 -20, which provides, in pertinent part: 1) If a breach delays the use of property and the loss in value to the injured party is not proved with reasonable certainty, he may recover damages based on the rental value of the property or on interest on the value of the property. 2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on a) the diminution in the market price of the property caused by the breach, or b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him. Eastlake Construction v. Hess, 102 Wn.2d 30, 47 48, 686 P. 2d 465 ( 1984) ( emphasis added). In cases involving breach of contract based on unfinished construction, the plaintiff can prove damages based 102 Wn.2d at on the cost to have the work completed by another contractor. Eastlake, 47. If, however, performance was defective instead of unfinished, the plaintiff can recover damages based on the cost to remedy the defects. Eastlake, 102 Wn.2d at 48. If the cost to remedy the defects includes the cost of undoing the defective work and if this remedial cost is clearly excessive, damages should reflect the difference between the property' s fair market price with and without the defects. Eastlake, 102 Wn.2d at 48. General Construction argues that Eastlake 's diminution in value theory required the jury to ascertain damages based on the difference between the property' s fair market values immediately before and immediately 393, 433 P. 2d 154 ( 1967); Harkoff after v. the damage. Whatcom 13 Cnty., Colella v. King County, 72 Wn.2d 386, 40 Wn.2d 147, 241 P.2d 932 ( 1952). No. 44402 -0 -II More General specifically, Marina' s property value project6 not support declined by about contends 50 to 70 McGuire' percent of s testimony that Day Island the $ 1. 9 million total cost of the construction did Construction was speculative and insufficient to meet Day Island' s burden of proof and the jury' s $ 1. 25 million damages verdict. We disagree. Under Eastlake, the diminution in value theory is not the sole method for calculating damages; rather, performance the or of parties can also base damages on remedying the defects" for defective the " reasonable cost of completing or unfinished construction. Eastlake, 102 Wn.2d at 47. Furthermore, the instructions here did not direct the jury to use the diminution in value theory; instead, the instructions directed the jury to determine the sum of money that would put Day Island in as good a position as it would have been if both Day Island and General Construction had 6 The original $ performed their promises under Moreover, neither party the contract. 615, 000 contract between General Construction and Day Island was part of the total " project costs." 7 all See 3 VRP at 658. See, e. g., Jury Instruction 10, derived from WPIC 303.01, which provided, in pertinent part: In order to recover actual damages, the plaintiff has the burden of proving that the defendant breached a contract with it, and that plaintiff incurred actual economic damages as a result of the defendant' s breach, and the amount of those damages. If your verdict is for plaintiff on plaintiff' s breach of contract claim and if you find that plaintiff has proved that it incurred actual damages and the amount of those actual damages, then you shall award actual damages to the plaintiff. Actual damages are those losses that were reasonably foreseeable, at the A loss may be time the contract was made, as a probable result of a breach. foreseeable as a probable result of a breach because it follows from the breach either ( a) in the ordinary course of events, or ( b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know. In calculating the plaintiff' s actual damages, you should determine the sum of money that will put the plaintiff in as good a position as it would have 14 No. 44402 -0 -II articulated the diminution in value 8 theory during closing Accordingly, General argument. Construction' s assertion that Day Island was required to prove damages under the diminution in value theory fails. We turn instead to the damages verdict. substantial McGuire testified that ( 1) " alone would cost about a quarter million 3) there evidence was no other way to " fix" the that supported the fix[ ing] the dollars; ( 2) he had marina" spent $ taking it marina without jury' s $ 1. 25 million involved re- wiring, which 1. 9 million fixing the marina; apart and starting over; ( 4) the value of the marina probably dropped by about 60 to 80 percent as a result of General Construction' s breach; ( 5) part of " fixing" the marina involved hiring a diver to " suck the mud up" that General Construction had failed to dredge at the north and south ends of the marina and pump this mud on to shore, which cost about $ 500, 000, VRP at 308, 319; and ( 6) he ( McGuire) had already paid General Construction $ 615, 000 for its work, most of which had to be removed been in if both plaintiff and defendant had performed all of their promises under the contract. The burden of proving damages rests with the plaintiff and it is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence. You must be governed by your own judgment, by the evidence in the case, and by these instructions, rather than by speculation, guess, or conjecture. emphasis added). General Construction suffered] as a result of breach.'" Br. of Appellant at 36. CP 168, ( WPI 303. 01 correctly instructed that plaintiff could recover all `reasonably foreseeable' and ` actual economic damages at concedes that " 8 General Construction argued that Day Island ( 1) had to prove by a preponderance of evidence contract and the damages it suffered as a result, and ( 2) " didn' t really produce any damage evidence." VRP at 879. Day Island referenced McGuire' s testimony about the drop in the breach of the property' s value to show the extent of damages: " because there opinion as are too darn many to what this has done to problems our involved. property value. at 894. 15 We can' t tell you what it would cost It is 60 a mess. to 80 So we gave you our best percent of what he spent." VRP No. 44402 -0 -II and redone at additional cost to Day Island because General Construction refused to repair the damage it had mud Frank Immel' s emailed price quote for a dive operation to remove the caused. included: $ 3, 120 for an initial investigative dive to assess the project better, an estimated 84, 000 for " mob[ ilization] 313. and demob[ ilization]," and $ 7, 960 per day for repair costs. CP at We hold that there was substantial evidence presented at trial to support the jury' s verdict of $1. 25 million. III. MOTION FOR NEW TRIAL Finally, General Construction argues that the trial court abused its discretion in denying its ( General Construction' admitted waived McGuire' its s motion for a new trial because ( 1) the trial court erroneously testimony, ( 2) the trial court improperly ruled that General Construction had objections to verdict, and ( s) 4) the McGuire' s verdict " does testimony, ( 3) substantial evidence did not support the jury' s not do substantial justice." Br. of Appellant at 37. Again, General Construction' s argument fails. A. Standard of Review It is well settled that granting or denying a motion for a new trial is directed to the considerable sound discretion 320 P.2d 292 ( 1958). manifest abuse of of the trial court. Coats v. Lee & Eastes, Inc., 51 Wn.2d 542, 552, And we will not intervene with the trial court' s new trial decision absent a that discretion. Coats, 51 Wn.2d at 552. A trial court abuses its discretion when it fails to grant a new trial or amend a judgment where the damage award is contrary to the evidence. Locke v. City of Seattle, 162 Wn.2d 474, 486, 172 P. 3d 705 ( 2007). The test for an abuse of discretion is whether no reasonable judge would have reached the same conclusion. In 16 No. 44402 -0 -II re Marriage of Landry, 103 Wn. 2d 807, 809 -10, 699 P. 2d 214 ( 1985). We find no such abuse of discretion here. We have already held that the trial court did not abuse its discretion in admitting McGuire' testimony s and that substantial evidence supports the jury' s verdict. Thus, there remain two " new" arguments to address in the new trial context: whether the trial court properly ruled that General Construction waived its objection to McGuire' s testimony and whether the jury' s verdict did " substantial justice." Br. of Appellant at 37. We address each in turn. B. Waiver General Construction argues that in considering its motion for a new trial, the trial court erroneously ruled that. (1) it (General Construction) had waived its right to challenge McGuire' s testimony about the value of his marina; and ( 2) because the jury already heard the challenged evidence, General Construction should have mounted an additional objection, a motion to strike or a CR 50 authority to motion support for its a directed assertions, verdict. Because General Construction provides no legal contrary to RAP 10. 3( a)( 6), we do not further consider this argument. Moreover, as we note above, we have already held that the trial court did not abuse its discretion in admitting McGuire' s testimony. C. Jury' s Verdict General Construction argues that the trial court erred in not granting a new trial because the jury' s verdict did not do " substantial justice." Br. of Appellant at 37. As we have also previously explained, appellate courts are generally reluctant to interfere with a jury' s damage award because the determination of damages is within the province of the jury. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 ( 1997). We examine the record to determine whether 17 No. 44402 -0 II the jury' s is contrary to the award evidence. Palmer, 132 Wn.2d at 197. Where the jury could believe or disbelieve the evidence and weigh all of it and remain within the range of the evidence in returning the challenged verdict, then it cannot be found as a matter of law that the verdict was unmistakably excessive or inadequate to show that the jury was motivated by passion or prejudice based on the amount. James v. Robeck, 79 Wn.2d 864, 870 71, 490 P. 2d 878 ( 1971). If the verdict falls within a range of proven damages, it should not be set aside as excessive. James, 79 Wn.2d at 870 71. CR 59( a)( 9) provides that a motion for new trial may be granted if "substantial justice has not been done." 59( a)( 9) because But courts rarely grant a new trial for lack of substantial justice under CR of the other grounds afforded under this rule. Lian v. Stalick, 106 Wn. App. Moreover, contrary to RAP 10. 3( 811, 825, 25 P.3d 467 ( 2001). a)( 6), General Construction provides no authority or citation to the record in support of its argument that " substantial justice has not prior been done "; instead, it argument. Therefore, states, "[ we do S] ee prior argument," further not consider without referring to any specific General Construction' s" substantial justice" argument. Br. of Appellant at 37. In light of the substantial supporting evidence that we have already set forth in an earlier section of this analysis, we unmistakably [] hold that the jury' s award of $ excessive" so as to warrant a new trial. 1. 25 million to Day Island was not James, 79 Wn.2d at 870 71. We further hold that the trial court did not abuse its discretion in denying General Construction' s motion for a new trial. 18 No. 44402 -0 -II We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. We concur: W( Melnick, J. J 19
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