871 N.W.2d 459
N.D.2015Background
- Zachary and Margie Johnson sued Buskohl Construction Inc. and its sole owner John Buskohl for negligent construction, breach of contract, and breach of warranty after Buskohl abandoned their house with unfinished work.
- Buskohl timely disclosed one expert (Ternes) before the expert-disclosure deadline but disclosed a second expert (Sandman) late; the court excluded Sandman at trial and Buskohl did not call Ternes as an expert.
- The Johnsons introduced an unsigned Deckmasters repair estimate for $30,100 through Zachary Johnson’s testimony; no Deckmasters representative testified and the court admitted the estimate over hearsay and foundation objections without stating a legal basis on the record.
- The court submitted a lump-sum damages question (refusing Buskohl’s proposed itemized special verdict asking for categorical damages by area).
- The jury found Buskohl liable, awarded $55,000, and Buskohl moved for a new trial arguing (inter alia) improper admission of hearsay, exclusion of his expert, unfair closing argument, and lack of itemized damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Deckmasters estimate (hearsay) | Estimate was admissible (opened door in opening stmt; or business records; or under residual exception) | Admission was hearsay without foundation; no Deckmasters witness or custodian/certification; no Rule 807 findings/notice | Court abused discretion admitting the unsigned, site-unseen estimate; insufficient trustworthiness and no 807 notice/findings — admission reversed |
| Special verdict itemizing damages | Itemization needed to identify what award covered and assist parallel declaratory action | Lump-sum is acceptable; no authority requiring itemization | No abuse of discretion in refusing itemization, but lack of itemization prevented determining prejudice from the hearsay error |
| Exclusion of late-disclosed expert (Sandman) | Buskohl argued he should be allowed to call Sandman despite late disclosure | Johnsons objected to untimely disclosure; court excluded Sandman; Buskohl did not request continuance or call other expert | Not addressed on merits because reversal based on hearsay admission; other arguments unnecessary to decision |
| Improper closing argument / motion for mistrial | Johnsons improperly commented on Buskohl not calling an expert/inspector; prejudicial | Court found objection untimely and that comment referred to an "inspector," curative instruction possible | Not resolved on merits; court declined mistrial and appellate court did not reach other issues after reversing for hearsay error |
Key Cases Cited
- Felix v. Lehman, 20 N.W.2d 82 (N.D. 1945) (definition of "irregularity" in proceedings)
- MayPort Farmers Co-Op v. St. Hilaire Seed Co., 825 N.W.2d 883 (N.D. 2012) (standard for abuse of discretion on Rule 59 motions)
- Jarvis v. Jarvis, 584 N.W.2d 84 (N.D. 1998) (appellate review of denial of new trial)
- Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004) (trial court discretion on special verdict forms)
- North Am. Pump Corp. v. Clay Equip. Corp., 199 N.W.2d 888 (N.D. 1972) (trial court discretion to require special findings)
- Interest of J.S.L., 763 N.W.2d 783 (N.D. 2009) (broad discretion on evidentiary rulings; review of residual hearsay admission)
- Flynn v. Hurley Enterprises, Inc., 860 N.W.2d 450 (N.D. 2015) ("opened the door" doctrine for otherwise inadmissible evidence)
- Hale v. State, 818 N.W.2d 684 (N.D. 2012) (appellate courts decline inadequately briefed arguments)
- Rudnick v. Rode, 820 N.W.2d 371 (N.D. 2012) (inadmissible hearsay is not competent evidence)
- State v. Wanner, 784 N.W.2d 143 (N.D. 2010) (requirement to preserve sidebar discussions in the record)
Decision: Reversed and remanded for a new trial because erroneous admission of the unsigned, site‑unseen Deckmasters estimate undercut Buskohl’s substantial right to a fair trial; other issues were unnecessary to resolve.