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Welch v. Haase12/3/2003
directed verdict motion made at the close of all the evidence." The grounds for the directed verdict motion are merely brought before the trial court for a second review.
Id. (internal citations omitted).
. Here, Welch made no motion for directed verdict against the Kleins at trial. Therefore, Welch waived the right to ask the trial court to enter a JNOV against the Kleins. As we stated in Moosmeier v. Johnson, 412 NW2d 887, 888 (SD 1987):
The denial of the motion for judgment n.o.v. is not properly before us since such motions "can be considered only when the moving party at trial requested a directed verdict and thus the motion in effect brings before the trial court for review a second time the grounds urged in support of the motion for directed verdict."
Because Welch did not request a directed verdict against the Kleins, the motion for a JNOV issue is not properly before us. Even when the issue involves a plaintiff questioning the sufficiency of the damage award, the prior motion is required. As the Eighth Circuit Court of Appeals observed:
Permitting movants for any reason to make an initial motion for judgment as a matter of law [JNOV] after the return of the jury verdict deprives the nonmoving party the opportunity to cure the deficiency in their case, if any exists. Allowing the motion to go forward would set an unacceptable precedent.
Douglas County Bank & Trust Co. v. United Fin. Inc., 207 F3d 473, 478 (8thCir 2000). We agree.
Motion for New Trial
. Welch argues that " ased upon the evidence presented at trial, the jury's decision to award zero damages was inconsistent and contrary to law." Welch asserts that because the jury awarded no damages against Darby Klein and Earla Klein (who were in default), the jury's decision "calls into question the jury's entire decision making process." Welch surmises that:
f the jury acted under passion, prejudice, or mistake of law while considering the claims against Darby and Earla Klein, [because they were in default,] how can anyone say with certainty that the jury was not acting under passion, prejudice, or mistake of law while considering the claims against Allen and Zenda Haase?
. However, Welch utilizes an incorrect standard of review. This Court has often stated that:
In reviewing a jury award . . . " f the jury's verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed." Thus, "if a verdict is susceptive to more than one construction, the construction which sustains the verdict must be applied." Neither the trial court nor this court may set aside a verdict unless it is clearly "unreasonable, arbitrary and unsupported by the evidence."
Zahn v. Musick, 2000 SD 26, , 605 NW2d 823, 830 (internal citations omitted) (emphasis added). Furthermore, " he trial court is best able to judge whether the damages awarded [or not awarded] by a jury are the product of passion or prejudice." Maryott v. First Nat'l Bank of Eden, 2001 SD 43, , 624 NW2d 96, 105 (quoting Berry v. Risdall, 1998 SD 18, , 576 NW2d 1, 4). We again review this motion as it relates to the Haases and then as to the Kleins.
a. Allen and Zenda Haase
. In this case, there are many "references to the evidence" that support the verdict in favor of the Haases. In fact, at the trial court hearing and in his brief to this Court, Welch himself has identified numerous possibilities that support the jury verdict. Welch's brief states:
Allen and Zenda Haase will no doubt argue that . . . the decision to award
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