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Loen v. Anderson1/19/2005
Considered on Briefs August 23, 2004
[ .] Douglas and Cindy Loen (Loens) appeal a judgment entered in their favor following a jury trial. They claim 1) the trial court did not properly instruct the jury, 2) that the jury failed to award pre-judgment interest, and 3) that the trial court abused its discretion when it denied their motion for a new trial. We reverse and remand.
FACTS AND PROCEDURE
[ .] Loens commenced a personal injury action against Roberta Anderson (Anderson) arising out of a motor vehicle accident that occurred on October 4, 1998. Anderson struck Loens' vehicle after she failed to stop at an intersection. The resulting collision caused serious physical injury to Douglas. Cindy was not injured. Anderson admitted liability for the accident and the issue of damages was the sole issue tried to the jury.
[ .] The jury returned an award in favor of Loens in the amount of $20,000. The trial court entered judgment in favor of Loens for this amount. The jury did not award pre-judgment interest and the trial court did not include pre-judgment interest in its judgment.
[ .] On August 20, 2003, Loens moved for a new trial pursuant to SDCL 15-6-59(a). The trial court denied the motion for a new trial after reviewing the entire record, trial transcript, briefs submitted by both parties and considering the arguments made by counsel. Loens filed their notice of appeal on January 15, 2004. While Loens raised three issues on appeal,we need only address two:
Whether the trial court abused its discretion in denying Loens' motion for a new trial.
Whether error was committed when the jury did not award pre-judgment interest.
STANDARD OF REVIEW
[ .] Whether a new trial should be granted is left to the discretion of the trial court. This Court will not disturb the trial court's decision absent a clear showing of an abuse of discretion. Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D. 1992). We give great deference to a trial court's findings of fact, but we review questions of law de novo, with no deference given to a trial court's legal conclusions. City of Colton v. Schwebach, 1997 SD 4, 8, 557 N.W.2d 769, 771. Under the abuse of discretion standard, it is not just error that must be demonstrated, but it must be shown to be prejudicial error. State ex rel Dep't of Transp. v. Spiry, 1996 SD 14, 11, 543 N.W.2d 260, 263..... Prejudicial error is error which in all probability had an effect upon the jury's verdict and is harmful to the substantial rights of the party assigning the error. Harter v. Plains Ins. Co., Inc., 1998 SD 59, 32, 579 NW2d 625, 633. "An appellate court should interfere only when from an examination of the entire record, it is convinced that prejudicial error has resulted in a miscarriage of justice." Schoon v. Looby, 2003 SD 123, 18, 670 NW2d 885, 891.
ANALYSIS AND DECISION
ISSUE ONE
[ .] Whether the trial court abused its discretion in denying the Loens' motion for a new trial.
[ .] Loens' motion for a new trial was based on a claim of repeated and intentional violations of the trial court's orders in limine and other evidentiary rulings during the course of the trial by Anderson's attorney, Mark J. Welter (Welter). In its findings of fact and conclusions of law the trial court specifically found that while Welter had intentionally violated the court's orders, the court concluded that the those violations were not so prejudicial as to deny Loens a fair trial. On appeal, Loens argue that given Welter's conduct at trial it was an abuse of discretion for the trial court to deny their motion for a new trial. We agree.
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