Loen v. Anderson1/19/2005
the extent of damages, or what went on, so you are to disregard any testimony concerning it.
[ .] It was only after this admonishment that Welter moved to admit the accident report outside the presence of the jury. The trial court again admonished him for his actions, and stated that neither the accident report nor the speed of the vehicles were relevant to the issue of damages. Yet, this clear and direct explanation of the court's ruling was not enough to prevent Welter from violating it again. During closing argument, he stated that the jury would see in the medical records several references to the speed being 30 miles per hour, yet his client testified that she was going 20 miles per hour. That line of argument was objected to and sustained. The court was forced to remind Welter of his ruling. Seemingly unphased, Welter again violated the ruling. This resulted in another admonition to the jury to disregard any comments about the speed of the vehicles.
[ .] As we noted earlier, this Court will not interfere with a trial court's denial of a motion for a new trial unless we are convinced that prejudicial error has occurred.Decisions regarding grants of a new trial are left to the discretion of the trial court absent a clear showing of an abuse of discretion. Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D. 1992). 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 N.W.2d 885, 891 (citing Roth v. Farner-Bocken Co., 2003 SD 80, 37, 667 N.W.2d 651, 664). "Whether or not error is prejudicial generally depends on the circumstances of the particular case." Schoon, 2003 SD 123, 18, 670 NW2d at 891 (quoting Binegar v. Day, 80 SD 141, 151, 120 NW2d 521, 527 (1963)). One isolated event may not rise to the level of prejudice; its effect on the case being so subtle as to go undetected by a jury. However, a repeated course of conduct may rise to the level of prejudice.
[ .] In previous decisions, this Court has held that the intentional introduction of prejudicial evidence through a violation of a motion in limine can serve as the basis for a new trial. First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, 6, 686 NW2d 430, 436; State v. Wright, 1999 SD 50, 28, 593 NW2d 792, 804; City of Sioux Falls v. Johnson, 1999 SD 16, 28, 588 NW2d 904, 910; Harter, 1998 SD 59, 31, 579 NW2d at 633; Robbins v. Buntrock, 1996 SD 84, 6, 550 NW2d 422, 425; Kjerstadt, 517 NW2d at 426-27 ( citing Northern Trust Bank v. Carl, 558 NE2d 451, 456 ( Ill 1990)). While these earlier decisions often dealt with an inadvertent and limited violation of a court's orders, in Kjerstadt, we faced a claim of numerous violations of four motions in limine. Kjerstadt, 517 NW2d at 426. To resolve the issues in Kjerstadt, this Court adopted a standard used in a series of Illinois cases: For such a violation to serve as the basis of a new trial the order granting the motion must be specific in its prohibitions, the violation(s) of the order must be clear, and the violation(s) must prejudice the party asserting error. Id. (citing Northern Trust Bank, 558 NE2d at 456).
[ .] Applying that standard to the facts in Kjerstadt, we determined that the trial court's orders were specific, the violations of the orders were clear and there was prejudice. Id. at 426-27. Therefore, we reversed and remanded for a new trial. Id. at 428. The facts before us now present an even more aggravated situation. The record reveals at least ten violations of the trial court's orders, a half dozen admonishments from the bench, and a myriad of objections from Loens.
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