Chelsey Anne Holthaus, Appellant, vs. Kevin M. Renslow, Respondent.

Chelsey Anne Holthaus, Appellant, vs. Kevin M. Renslow, Respondent. A06-1089, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1089

 

Chelsey Anne Holthaus,

Appellant,

 

vs.

 

Kevin M. Renslow,

Respondent.

 

Filed July 3, 2007

Affirmed

Kalitowski, Judge

 

Benton County District Court

File No. 05-CV-05-60

 

Stephen D. Gabrielson, Stephen D. Gabrielson, Ltd., 18 Riverside Avenue South, #200, Sartell, MN 56377; and

 

John D. Hagen, Jr., P.O. Box 15609, Minneapolis, MN 55415 (for appellant)

 

Frederick L. Grunke, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In this action arising out of an automobile accident, appellant Chelsey Holthaus challenges the district court's denial of a new trial, arguing that respondent's attorney made inappropriate and prejudicial comments during closing arguments and that any of the comments alone, or the cumulative effect of all, require a new trial.  We affirm.

D E C I S I O N

             "The decision whether to grant a new trial due to improper argument by counsel rests almost entirely within the discretion of the trial court and should not be reversed on appeal absent a clear abuse of discretion."  Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989); Poston v. Colestock, 540 N.W.2d 92, 94 (Minn. App. 1995) ("Appellate courts rarely disturb a district court's response to improper remarks in closing arguments."), review denied (Minn. Jan. 25, 1996).  "Whether improper closing argument had a prejudicial impact on the jury so as to require a new trial is a matter within the discretion of the trial judge who was present when the improper argument was made and could observe its impact on the jury."  Fischer v. Mart, 308 Minn. 218, 218, 241 N.W.2d 320, 321 (1976) (affirming denial of a motion for a new trial based on closing argument even though closing argument was held to be improper).  A new trial is not warranted unless the improper statement resulted in prejudice to the losing party that is sufficient to affect the outcome of the case.  Boland v. Morrill, 270 Minn. 86, 100, 132 N.W.2d 711, 720 (1965).  And "[n]o precise rule can . . . be laid down defining the scope of legitimate argument in summing up a case before a jury."  Connolly v. Nicollet Hotel, 258 Minn. 405, 420, 104 N.W.2d 721, 732 (1960).

            Appellant argues that the district court abused its discretion by not ordering a new trial based on several allegedly improper statements made by defense counsel during closing argument.  Specifically, appellant challenges (1) a statement speculating as to a possible motive for her to exceed the speed limit; (2) a statement regarding the timing of her obtaining counsel; and (3) a statement regarding her failure to produce certain evidence at trial. 

            Appellant objected to the third statement during closing arguments, requesting a curative instruction, but did not object to the first two statements or request curative instructions.  "[P]rejudicial remarks in closing argument can be corrected by a curative instruction except in the case of the most extreme misconduct."  Bisbee v. Ruppert, 306 Minn. 39, 47, 235 N.W.2d 364, 370 (1975).  "An objection to improper remarks, a request for curative instruction, and a refusal by the trial court to take corrective action are generally prerequisites to the obtaining of a new trial on appeal except where the misconduct is so flagrant as to require the court to act on its own motion, or is so extreme that a corrective instruction would not alleviate the prejudice."  Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 582 (Minn. 1977); see also Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515, 523 (Minn. App. 1991) ("A new trial is unwarranted in the absence of an objection and request for curative instructions."), review denied (Minn. Jan. 27, 1992); Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975) ("A party is not permitted to remain silent, gamble on the outcome, and, having lost, then for the first time claim misconduct."). 

            First, appellant argues that the district court abused its discretion by denying a new trial based on respondent's statement to the jury that appellant may have been rushing home from work on the evening of the accident because she had a date with her boyfriend and her parents were out of town.  Appellant argues that this statement impugns appellant's character by suggesting she is immoral and is therefore inherently prejudicial and inflammatory.  We disagree.  The district court appropriately reasoned that counsel was merely suggesting a possible reason that appellant might have been exceeding the speed limit.  The district court properly concluded that this passing statement is insufficient to produce the prejudice that appellant claims, particularly where the jury had the opportunity to assess appellant's character when she testified at trial. 

            Second, appellant argues that respondent implied improper collusion between appellant and her attorney in creating a legal claim when he mentioned that appellant had retained counsel while still undergoing medical treatments.  Appellant did not object to the statements, did not request a curative instruction, and took the opportunity to address and refute respondent's comments in her own closing statement.  As the district court noted, the jury awarded appellant $10,000 in pain and suffering, which it presumably would not do if it believed that appellant fabricated the claim.  We conclude that the district court did not abuse its discretion by denying a new trial based on this statement.

            Third, appellant argues that the district court abused its discretion by not ordering a new trial based on respondent's statements regarding the lack of foundation for certain medical bills.  The parties stipulated that the medical bills submitted to the jury related only to treatment for appellant's neck and right shoulder injuries.  But respondent argued out of the hearing of the jury that without an expert present to establish the medical necessity of the treatments or to establish causation, the bills lacked foundation.  The district court responded that it would allow the parties to argue the issue in closing statements, which respondent did.  The district court denied appellant's objection and request for a curative instruction.

            In denying appellant a new trial based on the statement, the district court determined that respondent was justified in arguing appellant's failure to carry her burden of establishing medical necessity and a causal connection between the car accident and the injuries resulting in the medical bills submitted to the jury.  We agree and conclude that the district court did not abuse its discretion by refusing to give a curative instruction or to grant a new trial based on respondent's comment in closing argument. 

            Appellant also argues that respondent mischaracterized the nature of the bills as being for treatments for body parts other than the neck and right shoulder.  But appellant did not object on that basis at trial or ask for a curative instruction.  And appellant did receive therapy for other body parts, but those bills were not submitted to the jury.  Thus, the district court did not err in concluding that respondent did not misstate the nature of the treatments.  Moreover, the record indicates that the jury was properly instructed that attorney statements are not evidence upon which to rely.  We conclude that the district court did not abuse its discretion by denying appellant a new trial.

            Appellant also argues that the district court abused its discretion by not ordering a new trial based on the cumulative effect of the challenged statements.  Appellant cites cases such as Larson v. Belzer Clinic, 292 Minn. 301, 307, 195 N.W.2d 416, 419 (1972), for the proposition that several small errors, each independently inadequate to require a new trial, can cumulatively result in sufficient prejudice as to require a new trial.   But this is not the case here.  We conclude that the district court properly determined that the statements did not have a prejudicial impact on the jury and that the court did not abuse its discretion by refusing to order a new trial based on the cumulative prejudicial effect of the objected-to statements.

            Affirmed.