State of Minnesota, Respondent, v. Daniel James Bergerson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-804

Supervalu Inc., et al.,
Appellants,

v.

Northland Constructors of Duluth, Inc.,
defendants and third-party plaintiff,
Respondent,

Wirtanen Clark Larsen Architects, Inc.,
Defendant and Third-Party Plaintiff,

Maxim Technologies, Inc., et al.,
Defendants,

Hoover Construction, a/k/a Hoover, Inc.,
third-party defendant,
Respondent,

Planmark, Inc., et al.,
Third-Party Defendants.

 

Filed November 30, 1999
Affirmed
Short, Judge

Hennepin County District Court
File No. 977973

Stephen L. Wilson, Frank A. Dvorak, Foley & Mansfield, P.L.L.P., 200 Lafayette Building, 1108 Nicollet Mall, Minneapolis, MN 55403 (for appellants)

Eric L. Hylden, Anthony S. Downs, Halverson, Watters, Downs, Reyelts & Bateman, Ltd., 700 Providence Building, Duluth, MN 55802 (for respondent Northland Constructors of Duluth)

William M. Hart, Katherine A. McBride, Meagher & Geer, 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Hoover, Inc.)

 

Considered and decided by Short, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHORT

, Judge This dispute arises from the construction of a grocery store in Duluth for Supervalu Inc. and Supervalu Holdings, Inc. ("Supervalu"). Northland Constructors of Duluth, Inc. ("Northland") and Hoover Construction ("Hoover") performed the site preparation work for the building and parking lot, both of which later experienced settlement. Supervalu appeals from an adverse jury verdict, rejecting its contract and negligence claims, and awarding Northland damages for the unpaid part of the contract. Supervalu argues: (1) the trial court abused its discretion in granting each of the defendants two peremptory challenges; (2) the jury's verdict was manifestly and palpably contrary to the evidence; and (3) the trial court abused its discretion in framing the jury instructions and the special verdict form. Northland argues Supervalu's appeal is moot. We affirm.

 

D E C I S I O N

I.

Northland argues this appeal is moot because Supervalu failed to appeal the jury's award of zero damages. But a new trial on all claims is necessary where the claims are "inextricably interwoven." Bond v. Charlson, 374 N.W.2d 423, 431 (Minn. 1985); M.L. v. Magnuson, 531 N.W.2d 849, 861 n.9 (Minn. App. 1995), review denied (Minn. July 20, 1995). Because the jury's damage findings are inextricably interwoven with its liability findings, Supervalu's appeal is not moot. See Monson v. Arcand, 239 Minn. 336, 343, 58 N.W.2d 753, 757 (1953) (holding jury's finding of 25% permanent partial disability inevitably entered into jury's damages calculation and defendant entitled to new trial on damages if disability finding not supported by record).

Supervalu argues Northland and Hoover's interests were not sufficiently adverse to warrant additional peremptory challenges. See Minn. Stat. § 546.10 (1998) (providing two peremptory challenges to each party, but giving trial court discretion to grant two or more defendants additional challenges where interests are adverse and require due protection). But Northland filed a third-party claim against Hoover for indemnity and/or contribution. Under these circumstances, the trial court did not abuse its discretion in finding Northland and Hoover's interests adverse and in need of due protection. See Hunt v. Board of Regents, 460 N.W.2d 28, 32 (Minn. 1990) (recognizing filing of affirmative defenses by one defendant against another establishes adverse interests).

II.

This court will not set aside a jury's verdict unless it is "manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict." Roemer v. Martin, 440 N.W.2d 122, 124 (Minn. 1989) (quoting Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975)). We will reverse a jury's verdict only if no reasonable mind could reach the same result. Reedon of Faribault, Inc. v. Fidelity & Guar. Ins. Underwriters, Inc., 418 N.W.2d 488, 491 (Minn. 1988).

Supervalu rests its numerous challenges to the jury's verdict on the jury's apparent rejection of testimony from Supervalu's expert witness. But the expert's opinions "are not binding or conclusive upon a jury but are only items of evidence to be considered along with other evidence in the case." LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977). The jury's verdict reflects its belief of testimony given by fact witnesses. See id. (concluding jury giving more weight to one side's witnesses' testimony insufficient grounds for new trial).

Viewing the evidence as a whole and in the light most favorable to the verdict, the record shows: (1) the overburden cap was unfrozen when placed; (2) the building pad's crushed rock was unfrozen when placed; (3) the building pad did not rest on overburden cap material and its slope complied with the contract specifications; (4) no gaps existed in the geotextile fabric; (5) the drive lane in the front of the store had a 2% grade; (6) no ambiguity existed regarding support of the canopy; (7) Northland did not need to correct construction defects within the one-year warranty period because settlement problems were not due to Northland's and Hoover's actions; and (8) Supervalu left $38,000 unpaid on the contract. After a careful review of the record, we conclude the jury's verdict is not manifestly and palpably contrary to the evidence.

III.

A trial court exercises broad discretion in framing jury instructions and special verdict questions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990) (jury instructions); Hill v. Okay Constr. Co., 312 Minn. 324, 340, 252 N.W.2d 107, 118 (1977) (special verdict form). This court reviews jury instructions as a whole, keeping in mind the evidence in the case. Stall v. Christensen, 277 Minn. 71, 75, 151 N.W.2d 764, 766 (1967). The special verdict form should fairly and adequately encompass all questions of material fact raised by the pleadings and proof. Hill, 312 Minn. at 340, 252 N.W.2d at 118.

Supervalu challenges the manner in which the trial court handled the contract and negligence claims, the inclusion of a question on failure to mitigate, and questions on damages. But the special verdict form contained separate, conspicuous headings for contract, negligence, and damages. In addition, the trial court avoided using the word "fault" in drafting the special verdict form. Furthermore, Northland and Hoover presented a failure to mitigate defense. Although the trial court refused to ask the jury to separately allocate damages because it feared the jury would return an inconsistent verdict and because the parties presented proof of damages in a "unified" fashion, the trial court instructed the jury not to consider the possible effect of its answers to the damages questions when making its decision. Under these circumstances, we cannot say the trial court abused its discretion in framing the jury instructions and special verdict form. See Minn. Stat. § 604.01, subd. 1a (1998) (including unreasonable failure to mitigate damages in fault analysis); Lesmeister v. Dilly, 330 N.W.2d 95, 102-03 (Minn. 1983) (dictating instruction on fault allocation inappropriate in contract case, but permitting damages apportionment based on unreasonable failure to mitigate damages).

 Affirmed.