Brault v. Flynn

Brault v. Flynn  (95-533); 166 Vt. 585; 690 A.2d 1365

[Filed 17-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-533

                              MAY TERM, 1996


Deborah L. Brault                    }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Orleans Superior Court
                                     }
Hugh L. Flynn and                    }
Agway, Inc.                          }     DOCKET NO. S119-4091 OsC


       In the above-entitled cause, the Clerk will enter:

       Following a jury trial, plaintiff accepted a remitted verdict.  The
  trial court permitted plaintiff to condition acceptance on the right to
  appeal the remittitur.  On appeal, plaintiff maintains that the court
  abused its discretion in granting remittitur.  As we conclude that
  plaintiff may not simultaneously accept remittitur and appeal the court's
  decision to grant it, we do not review the remittitur decision on the
  merits.  Instead, we reverse and remand the case for reconsideration, in
  light of this decision, of the motion for remittitur.

       Plaintiff, who suffered permanent injuries when her car was rear-ended
  by defendant's truck, filed suit against defendants, the driver of the
  vehicle and the vehicle's owner, for negligence.  At the close of
  plaintiff's case, defendants conceded liability and the case went to the
  jury to decide damages.  The jury awarded plaintiff $750,000.  Arguing that
  the verdict was excessive, defendants moved for remittitur or alternatively
  for a new trial.  The court agreed that the verdict was "grossly excessive"
  and granted the motion on two grounds: first, that during his closing
  argument plaintiff's counsel had encouraged the jury to use the verdict to
  punish defendants, and second, that plaintiff's counsel had suggested, also
  during his closing argument, that the jury use a per diem amount to
  calculate plaintiff's pain and suffering.  In its written opinion, the
  court acknowledged our decision in Debus v. Grand Union Stores, 159 Vt.
  537, 540, 621 A.2d 1288, 1290 (1993), where we held that "there is nothing
  inherently improper or prejudicial about per diem arguments."  Nonetheless,
  the court rejected the majority opinion, reasoning that the Chief Justice's
  dissenting opinion in Debus "present[ed] the `better answer'" on this
  issue, and granting remittitur on that basis.

       As required by V.R.C.P. 59(a), the court presented plaintiff with the
  option to remit $325,000 in lieu of granting defendants a new trial.  The
  court also made clear that if remittitur was accepted, plaintiff could
  still appeal the order granting remittitur.  Plaintiff conditionally
  accepted remittitur based on this understanding, and the court entered
  judgment for $425,000. This appeal followed.

                                     I.

       Defendants maintain that both the trial court and plaintiff are
  mistaken as to the law of remittitur.  Specifically, defendants argue that
  plaintiff cannot both accept remittitur and appeal the court's decision to
  grant remittitur.  The issue, then, is whether a plaintiff can accept
  remittitur "conditionally" or "under protest," thus preserving the right to
  appeal, or whether accepting remittitur forecloses the possibility of
  appeal on that issue.

 

       Although the majority of courts have held otherwise, see Deans v.
  Eastern Me. Medical Ctr., 454 A.2d 835, 837 (Me. 1983), plaintiff urges
  this Court to allow an appeal of an accepted remittitur.  Plaintiff
  mistakenly claims that the court's decision to grant remittitur is subject
  to de novo review by this Court.  According to plaintiff, the court made a
  decision as a matter of law that her case is worth only a specified amount;
  that determination would not be affected by the outcome of a new trial, and
  this Court should treat it as an appealable final judgment. Plaintiff has,
  however, mischaracterized both the nature of the court's decision and the
  standard of review.  Where, as here, a court deems a portion of the damages
  awarded by the jury to be excessive, "[t]he decision to grant a remittitur
  and the amount thereof are left to the trial court's discretion; unless
  there is an abuse of discretion on the part of the court, its decision must
  stand."  Addison Cty. Automotive, Inc. v. Church, 144 Vt. 553, 560, 481 A.2d 402, 407 (1984); see Bailey v. Town of Cabot, 124 Vt. 153, 157, 197 A.2d 783, 786 (1964) (distinguishing between setting aside verdict because
  there is no evidence to support it, which is question of law and subject to
  review, and setting aside verdict as against the evidence, which will not
  be disturbed unless court abused or withheld its discretion).(FN1)

       V.R.C.P. 59 is based on its federal counterpart, with some
  modifications, including the language concerning remittitur, drawn from the
  Maine rule.  See Reporter's Notes, V.R.C.P. 59.  Both Maine and the federal
  courts follow the majority rule.  See Donovan v. Penn Shipping Co., 429 U.S. 648, 650 (1977); Deans, 454 A.2d  at 837.  Based on the substantial
  precedent from these and other jurisdictions, and the absence of any
  mention in the rule or Reporter's Notes that remittitur may be accepted
  under protest or conditioned on a right to appeal, we conclude that Rule 59
  incorporates the traditional rule that an accepted remittitur may not be
  appealed.  V.R.C.P. 59(a) and a conditional new trial order give rise to
  two options:  plaintiff may reject the reduced judgment and opt for a new
  trial, or accept remittitur and lose the right to appeal.  Plaintiff may,
  however, cross-appeal remittitur if defendant has first initiated an
  appeal.  See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1355
  (Colo. 1983) (holding that party accepting remittitur under protest may
  cross-appeal when party who benefits appeals for other reasons); Means v.
  Sears, Roebuck & Co., 550 S.W.2d 780, 789 (Mo. 1977) (explaining that
  fairness demands court be allowed to review excessiveness of remittitur as
  well as inadequacy when appellant-defendant requests further remittitur). 
  As we are persuaded that V.R.C.P. 59 incorporates the majority rule that
  remittitur cannot be accepted under protest or conditioned on a right to
  appeal, we do not address plaintiff's policy-based rationales for adopting
  a different rule.

       To apply this rule to the case before us, we must decide whether
  plaintiff's "conditional" acceptance was in fact a binding acceptance of
  remittitur.  In light of the circumstances, we

 

  cannot fairly make this determination.  Court documents suggest that
  plaintiff accepted remittitur, but plaintiff's counsel took a contrary
  position at oral argument.  The confusion generated by the court's
  assertion that plaintiff could appeal leaves us unable to resolve this
  question.  We are unwilling to speculate as to the choices the parties
  would have made with full knowledge of the rule.  Even without the right to
  appeal, plaintiff may prefer to accept remittitur rather than endure a
  second trial.  If plaintiff does accept remittitur, defendants may forego
  an appeal rather than risk reinstatement of the full verdict by this Court. 
  Indeed, it is possible that the trial court would rule differently in light
  of this decision.  Given this uncertainty, we opt to remand this case for
  reconsideration of defendants' motion for remittitur or alternatively a new
  trial.

       II.

       Plaintiff also claims that the court erred in granting postjudgment
  interest from the date of remittitur rather than the date of the jury
  verdict.  As this issue may arise again on remand, we address it in the
  interest of judicial economy.

       It is well established in Vermont that a "party may recover
  postjudgment interest." Pinewood Manor, Inc. v. Vermont Agency of Transp.,
  ___ Vt. ___, ___, 668 A.2d 653, 659 (1995).  The Rules of Civil Procedure
  state that interest accrues from the entry of judgment until the date of
  payment.  V.R.C.P. 69.  Entry of judgment occurs as soon as the court clerk
  prepares and enters judgment upon a verdict by the jury.  V.R.C.P. 58. 
  When a party moves to amend or appeal, the judgment is stayed.  Pinewood
  Manor, ___ Vt. at ___, 668 A.2d  at 659. If the judgment is affirmed,
  interest is payable from the date judgment was entered.  V.R.A.P. 37;
  Pinewood Manor, ___ Vt. at ___, 668 A.2d  at 659.

       The decisions in Roy v. Mugford, 161 Vt. 501, 642 A.2d 688 (1994), and
  VanVelsor v. Dzewaltowski, 136 Vt. 103, 385 A.2d 1102 (1978), both cited by
  defendants, do not support the contention that postjudgment interest
  accrues only from the date remittitur was accepted. In  Roy, the Court held
  that the plaintiffs were entitled to prejudgment interest because the
  contract between the parties made damages "liquidated or easily
  ascertainable."  Roy, 161 Vt. at 513-14, 642 A.2d  at 695.  The VanVelsor
  decision also awarded prejudgment interest to the plaintiff.  Van Velsor,
  136 Vt. at 106, 385 A.2d 1104 ("Interest begins to run from the time the
  debt becomes payable or payment is demanded, or when suit is brought, a
  judicial demand.") Those decisions are inapplicable here; the question of
  whether damages were liquidated or easily ascertainable is not relevant
  once judgment has been entered.

       In this case, judgment was entered when the court clerk filed the jury
  verdict on February 14, 1995.  Defendants' motion for remittitur or new
  trial stayed the judgment, but should plaintiff accept remittitur, she is
  entitled to postjudgment interest on the unremitted amount from the date of
  the original judgment.

       Resolution of the other issues in this case, including those raised by
  defendants on cross-appeal, must await the court's decision on remand.

       Reversed and remanded for further proceedings not inconsistent with
  this opinion.


       JOHNSON, J., concurring.  I agree that V.R.C.P. 59 incorporates the
  majority rule that remittitur, once accepted, cannot be appealed.  I write
  separately because I believe that this rule is flawed, and that a change
  should be considered by the rules committee.

 

       The rule that a plaintiff cannot appeal remittitur without first
  enduring the time and expense of a new trial is both widespread and
  longstanding.  See, e.g., Donovan v. Penn Shipping Co., 429 U.S. 648, 649
  (1977) ("A line of decisions stretching back to 1889 has firmly established
  that a plaintiff cannot appeal the propriety of a remittitur order to which
  he has agreed."); Civiello v. Owens Corning Fiberglass Corp., 544 A.2d 158,
  160 (Conn. 1988) (majority of state courts have held that at common law
  plaintiff who accepts remittitur in lieu of new trial is bound by that
  election and cannot appeal from judgment ordering remittitur); Deans v.
  Eastern Me. Medical Ctr., 454 A.2d 835, 837 (Me. 1983) (almost without
  exception, courts have held that plaintiff may not appeal reduced judgment
  entered after plaintiff accepted remittitur rather than suffer entry of new
  trial order).  Unfortunately, the long history of the rule appears to be
  the only justification for it.  For example, the United States Supreme
  Court, instead of providing an explanation, merely emphasized that the rule
  was "settled," "longstanding," "consistent," "firmly established," and
  based on "unbroken precedents" that "stretch[] back to 1889."  Donovan, 429 U.S.  at 649-50.

       Some courts attempt to justify the practice with circular reasoning. 
  The Maine Supreme Judicial Court put it this way: "[B]y stipulating to a
  remittitur, plaintiff has agreed to the amended judgment entered
  thereafter."  Deans, 454 A.2d  at 836; see also Donovan v. Penn Shipping
  Co., 536 F.2d 536, 536 (2d Cir. 1976) ("Having chosen . . . to accede to
  the remittitur . . . [plaintiff] is bound by his decision just as if he had
  reached a settlement with his adversary."), aff'd, 429 U.S. 648 (1977). 
  This approach, however, begs the question; the issue cannot be decided
  merely by reciting the usual consequences of accepting remittitur.  The
  rules governing remittitur could be changed to permit a plaintiff to accept
  remittitur under protest. See Tenn. Code Ann. § 20-10-102 (1994).

       Where a substantive explanation is offered, courts typically fall back
  on the unsupported claim that the traditional rule conserves judicial
  resources by reducing the number of appeals. See, e.g., Burns v.
  McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1355 (Colo. 1983) (rationale
  for rule is that plaintiff should not be allowed to perfect no-risk appeal;
  traditional rule requiring party to seek retrial before appealing conserves
  judicial resources); Civiello, 544 A.2d  at 160 (result of permitting
  plaintiffs to accept remittitur under protest would be proliferation of
  appeals; plaintiff would be guaranteed minimum verdict and have nothing to
  lose by appealing).  Plaintiff correctly points out, however, that
  withholding the right to review pending a second trial may increase the
  strain on judicial resources.  If a plaintiff is willing to accept
  remittitur, but wants the decision reviewed, a new trial wastes time and
  money.  Allowing an appeal of accepted remittitur permits the parties to
  bypass the new trial and go straight to the appeal.  At least in some
  situations, an immediate appeal that permits this Court to review the
  remittitur decision, which is the heart of the parties' dispute, would be a
  better procedure.

       Aside from judicial efficiency, there is also concern that most
  plaintiffs, daunted by the expense of a second trial, are effectively
  coerced into giving up the right to challenge the trial court's "invasion
  of the jury's prerogative."  Donovan, 536 F.2d  at 539 (Feinberg, J.,
  dissenting).  With a new trial as the price of gaining an appeal, many
  plaintiffs effectively lose the right to appeal the remittitur decision. 
  Permitting a plaintiff to accept remittitur under protest resolves this
  problem.  See Note, Remittitur Practice in the Federal Courts, 76 Colum. L.
  Rev. 299, 321 (1976) (traditional rules of remittitur procedure coerce
  plaintiffs into accepting reduced verdicts; remittitur under protest is
  effective antidote to coercion).

       Justice Holmes once wrote that "[i]t is revolting to have no better
  reason for a rule of law than that so it was laid down in the time of Henry
  IV."  O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). 
  Indeed, the rule that a plaintiff may not appeal remittitur without first
  undergoing the trouble and expense of a second trial appears to be grounded
  more in tradition than in reason.  See Donovan, 536 F.2d  at 539, 541
  (Feinberg, J., dissenting) (weight of precedent and tradition support rule,
  but persuasive justification for rule is lacking).  Although I believe that
  a change in the rules is warranted, I concur in the judgment because any
  change is better accomplished through the rules committee than by court
  decision. I am authorized to state that Justice Morse joins in this
  concurrence.



     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

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                                  Footnotes


FN1.  Plaintiff also maintains that de novo review is required to
  protect the constitutional guarantee of trial by jury.  The United States
  Supreme Court has previously held that remittitur does not violate the
  federal constitution, Dimick v. Schiedt, 293 U.S. 474, 486-87 (1935), and
  that an accepted remittitur is not appealable in the federal courts,
  Donovan v. Penn Shipping Co., 429 U.S. 648, 650 (1977).  Plaintiff does
  make a one-sentence claim that denying review violates Chapter 1, Article 4
  of the Vermont Constitution.  The party making such a claim, however,
  "bears the burden of explaining how or why the Vermont Constitution
  provides greater protection than the federal constitution."  State v. Read,
  7 Vt. L.W. 95, 98 (1996).  Here, no explanation is provided of how the
  Vermont Constitution affords plaintiff any additional protection.  We
  therefore do not address this argument.