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Marvik v. Winkelman2/23/2005
JUDGES: Concurring: Marywave Van Deren, Christine Quinn-Brintnall
PUBLISHED OPINION - Opinion ordered published March 30, 2005
Mary Winkelman, the defendant in a personal injury case, challenges the trial court's refusal either to correct a jury verdict or to grant her motion for a new trial after jurors indicated they had incorrectly completed the jury verdict form. Holding that the error on the verdict form did not inhere in the verdict, we reverse and remand for further proceedings.
FACTS
Carrie Marvik was injured in an automobile accident with Mary Winkelman. Marvik sued for her injuries. Winkelman did not contest liability, and the damages issue went to a jury. After hearing testimony, the jury returned the following verdict form:
We, the jury, find for the Plaintiff in the following sums:
(1) for past economic damages $21,290.72
(2) for future economic damages $0
(3) for past and future non-economic damages $21,290.72
DATED: March 3, 200{4} {Signed by Presiding Juror}
Clerk's Papers (CP) at 5. The verdict form did not contain a line or space for the jury to record the total damages awarded. The record does not show whether the court polled the jury after reading the verdict form.
After the court discharged the jury, counsel from both sides spoke to the some of the jurors in the hallway outside the courtroom. When counsel commented that the jury had awarded identical amounts for both 'past economic damages' and 'past and future non-economic damages,' the jurors told counsel that this was incorrect and that the total verdict was $21,290.72. See CP at 6.
The parties returned to the courtroom, and defense counsel asked the judicial assistant if the court could reconvene to address a problem with the verdict. The judicial assistant informed counsel that the matter would need to be addressed later.
At the presentment hearing, Winkelman submitted a proposed judgment for a total of $21,290.72 and a memorandum in opposition to Marvik's proposed $42,581.44 judgment. She argued that the verdict form contained a 'clerical error.' In support of her motion, she submitted declarations from the presiding juror and defense counsel.
In her declaration, the presiding juror verified the error, stating (1) she had mistakenly believed that the last space on the verdict form was for the total amount of the verdict; (2) the jury had intended to award $13,290.72 for medical bills as directed by the court; and (3) the balance the jury intended to award was $8,000 for all other damages.
In defense counsel's declaration, he recounted the discussion with the jurors in the hallway. He stated the other jurors were willing to certify that the verdict form was not correct but he was unable to obtain their statements because he had lost or misplaced their contact information. Defense counsel requested a continuance in order to obtain these statements.
Marvik objected to (1) Winkelman's proposed judgment, arguing that the court lacked authority to make a substantive change to the verdict after the jury was dismissed; and (2) the declarations in support of Winkelman's motion, asserting they contained inadmissible hearsay. The trial court refused to strike the declarations, denied Winkelman's motion, and entered judgment against her for $42,581.44 plus taxable costs and attorney fees.
Winkelman moved for a new trial under CR 59(a), asserting irregularity or misconduct in the proceedings, specifically, that the verdict form contained a clerical error. She supported this motion with the same declarations she
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