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Loen v. Anderson1/19/2005
[ .] Loens sought to protect themselves from the introduction of prejudicial information through a properly entered motion in limine. The trial court's resulting order in limine and other rulings were sufficiently clear and specific to put Welter on notice of those issues he was not to present to the jury. Nevertheless, Welter clearly violated these court orders numerous times. Therefore, the only question remaining is whether Welter's conduct was prejudicial to the Loens.
[ .] There are several factors that can be considered in determining whether the presentation of information in violation of such an order has prejudiced a party. These include whether the prejudicial information was intentionally solicited in violation of the order or was instead inadvertent; whether the violation repeatedly occurred; whether the information solicited was of an inflammatory nature; whether the violation was curable through instruction from the trial court; whether the information was likely to confuse the jury; and, whether the information was likely to have an improper effect on the jury's verdict. See Honaker v. Mahon, 552 SE2d 788, 795 (WVa 2001).
[ .] From the record before us, it is clear Welter repeatedly violated the trial court's orders and rulings. The trial court found these violations were intentional. This finding is supported by the evidence. Because Welter's conduct was intentional, his conduct can not be said to have occurred as a result of the heat of battle or during the passion of argument. These were clearly not inadvertent mistakes. Rather, Welter's actions demonstrated a deliberate and repeated attempt to solicit evidence before the jury that the trial court excluded. If Welter had wanted the trial court to reconsider its prior rulings and admit certain evidence he was free to make that request outside the presence of the jury. Instead, he chose to violate the court's order and rulings.
[ .] There is no magic number of violations that will result in a finding of prejudice. However, after our review of the complete trial record, it is apparent that Welter's misconduct permeated the entire proceeding, from opening statement to final argument. His conduct was calculated to have an improper and prejudicial effect on the jury's verdict. His repeated misconduct could not reasonably be cured through instruction by the trial court. As a result, we conclude that Welter's misconduct prejudiced Loens and denied them a fair trial. The trial court should have granted Loens' motion for a new trial and abused its discretion by failing do so. Therefore, the judgment of the trial court is vacated and the matter is remanded for a new trial.
ISSUE TWO
[ .] Whether error was committed when the jury did not award pre-judgment interest.
[ .] Under the instructions of the trial court, the jury returned a verdict awarding no pre-judgment interest. The trial court also did not include pre-judgment interest when it entered its judgment. Loens argue on appeal that it was error to enter judgment without an award of pre-judgment interest. While in her brief Anderson admitted that Loens were entitled to pre-judgment interest on the original judgment calculated from the date of the accident, there appears to be some confusion as to how this issue should be handled at trial. We will address this issue to clarify the procedure to be used at retrial.
[ .] In the State of South Dakota:
Any person who is entitled to recover damages . . . is entitled to recover interest thereon from the day that the loss or damage occurred. . . . If there is a question of fact as to when the loss or damage occurred, pre-judgment interest shall commence on th
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