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Standard Chartered PLC v. Waterhouse11/7/1996
on Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987), the court explained:
If there is substantial evidence presented at trial to create an issue for the jury, a trial court may not grant a motion for a directed verdict or for . The existence of substantial evidence does not, however, prevent the court from granting a motion for a new trial pursuant to Fed. R. Civ. P. 59 if the verdict is against the clear weight of the evidence.
Second, the rule that issues not objected to at trial are waived is procedural, not jurisdictional, and we may suspend it at our discretion. See, e.g., City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App. 1991) (recognizing the rule that "arguments not made at the trial court cannot be asserted on appeal" as a procedural rule that the court may suspend at its own discretion) (citations omitted); Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984) (same); see also Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 562, 568 (1986) (exercising discretion to consider issue argued at trial but not raised on appeal). Third, PW did present its position on out-of-pocket damages at trial. Although PW did not reiterate its position in a motion for directed verdict, PW did request and receive a ruling prior to trial that S. Ct. was required to prove out-of-pocket damages on its tort claims. SC, therefore, had notice that out-of-pocket damages were a necessary element of its tort claims, yet chose to rest on an incompatible rescissory damage study alone. Fourth, PW made timely and appropriate motions with respect to SC's Securities Act claim, and we regard SC's inappropriate submission of a rescissory Securities Act claim and its achievement of a rescissory tort damage award as correlative errors. Through the medium of the damage study, confusion from the rescissory Securities Act claim spilled over into the negligence claims, giving rise to an improper damage award. For all of these reasons, we conclude that we may properly include the inadequacy of SC's damages evidence among the grounds for granting a new trial.
SC cites authority for the proposition that a reviewing court "must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and must exhaust this effort before it is free to disregard the jury's verdicts and remand the case for a new trial." Toner v. Lederle Lab., 828 F.2d 510, 512 (9th Cir. 1987), cert. denied, 485 U.S. 942, 99 L. Ed. 2d 282, 108 S. Ct. 1122 (1988). We recognize that obligation. Here, however, we have determined that only Union's negligent misrepresentation claim was properly submitted to the jury. And we cannot find any reasonable way to read the Union negligent misrepresentation verdict that would permit us to affirm that verdict in this appeal.
We cannot sensibly conclude that the jury managed, after nearly a year in trial, to isolate Union's negligent misrepresentation claim from the multiple improperly submitted claims. Nor can we conclude that the jury managed to ignore the rescissory damage study upon which S. Ct. premised its entire damage demand. (In the damage study, S. Ct. calculated damages of $334,053,768; the jury awarded damages of $334,053,778.) Nor can we conclude that the jury managed instead to base its damage award upon the isolated parts of Perkins' testimony that might have permitted an out-of-pocket damage calculation; the jury was not asked to make such a calculation, and it did not do so.
We conclude, rather, that jury confusion on both liability and damages gave rise to a verdict unsupported by the evidence and contrary to law. We therefore determine that, after entry of JNOV for PW on all the o
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