Brault v. Flynn
690 A.2d 1365
Vt.
1996
Check Treatment

*1 Instead, we on the merits. respect Fur tur decision class member. for the recon- reverse and remand case thermore, above, plaintiffs’ claim noted sideration, of this Sosna, 419 is not one that evades motion for remittitur. sure, “evading To be at 399-400. inju Plaintiff, permanent who suffered Sosna discussed review” car when her was rear-ended ries represent circumstance does truck, against de suit filed controversy” be found a “live where fendants, and the driver of vehicle notwithstanding the fact that owner, negligence. At the vehicle’s representative. the named class be moot case, plaintiff’s con defendants close Transp. ks v. Bowman Fran liability went to the and the case ceded ulti 424 U.S. damages. jury jury to decide liti question is the class mate $750,000. Arguing that gants personal ‘“such a stake excessive, defendants controversy as to assure outcome of the alternatively moved for remittitur sharp adverseness which that concrete ver The court that the new trial. upon presentation of issues ens granted “grossly dict was excessive” largely depends for illumina court so first, grounds: two the motion on questions.’” . . Bowman tion of difficult. closing argument during his Transp. (quoting 424 U.S. at encouraged to use had (1962)). Carr, defendants, punish Baker the verdict above, requisite second, sug noted adversarial As counsel had wholly specu argument, relationship during closing gested, in this case is his lative, per amount the “concrete use a diem and falls well short of reason, plaintiff’s pain suffering. In require. calculate adverseness” opinion, acknowl the court its written case moot. would dismiss the edged say our decision Debus Grand me to authorizes Justice Gibson Stores, 540, 621 A.2d Union joins in that he this concurrence. we held where reargument Novem- denied nothing inherently improper or “there per arguments.” prejudicial about diem Nonetheless, rejected ma the court reasoning jority opinion, Chief opinion dissenting in Debus Justice’s Hugh L. “presented] on L. BRAULT v. the ‘better answer’” Deborah Agway, Inc. FLYNN and issue, granting remittitur on basis. 59(a), required by VR.C.P As option presented to re- with the $325,000 granting mit in lieu of trial. also made ants a new The court 17, 1996. Following jury October clear that if remittitur was plaintiff accepted a remitted verdict. The grant- still could permitted plaintiff to condition conditionally ing ac- remittitur. Plaintiff acceptance on cepted under- appeal, plaintiff maintains remittitur. On standing, and the court entered its discretion in court abused $425,000. followed. granting As we conclude that remittitur. I. simultaneously appeal the court’s maintain that both the Defendants are mistaken do court and not review remitti- Specifically, law of remittitur. defendants VR.C.E is based its federal coun modifications, terpart, argue with some includ ing language concerning remittitur and the court’s decision Report drawn from the Maine rule. See issue, then, Notes, er’s 59. Both Maine and can the federal courts follow the *2 “conditionally” protest,” or “under thus Co., Shipping rule. See Donovan v. Penn right appeal, preserving or to 648, (1977);Deans, 429 650 U.S. 454 A.2d accepting remittitur forecloses prece at 837. Based on the substantial possibility on that issue. jurisdictions, dent from these and other majority Although the of courts have any and the absence of mention otherwise, held see Reporter’s rule or Notes that remittitur 835, (Me. A.2d 454 837 accepted protest be or condi 1983), plaintiff urges this to allow right appeal, on a tioned to we conclude accepted of an remittitur. Plain that Rule 59 mistakenly tiff claims that the court’s rule that an subject 59(a) be and a condi VR.C.E by According de novo review' give tional new l’ise to two plaintiff, as a made a decision may reject options: plaintiff the reduced only matter law' that her case is worth judgment opt or amount; specified a that determination remittitur and lose the would not be affected of a the outcome appeal. may, cross-ap Plaintiff new' and this Court should treat it as peal if defendant has ini appealable judgment. final Plaintiff tiated an v. See Burns McGraw has, however, mischaracterized both the Co., Hill 659P.2d nature of the court’s decision and the (Colo. 1983)(holding party accepting here, Where, standard of a protest cross-ap portion damages deems of the peal party appeals when who benefits excessive, to be reasons); Sears, other v. Means Roebuck “[t]he decision to a remittitur and (Mo. 1977) 780, & 550 S.W.2d 789 the amount thereof are left (explaining that fairness demands court discretion; unless there be allowed review excessiveness part abuse of discretion court, its decision must stand.” Addison Automotive, Church, Cty. constitution, Inc. v. Vt. 144 the federal Dimick v. 553, Schiedt, 474, 560, 402, (1935), (1984); 293 481 appeal- that an remittitur is not Cabot, 157, Bailey v. Town courts, able in the federal Donovan (distinguishing Penn setting between aside verdict because (1977).Plaintiff does make a one-sentence there is no which is denying Chap claim that review violates review, lawof I, ter Article 4 of the Vermont Constitu setting aside verdict as the evi claim, party making tion. however, such dence, which will disturbed unless explaining “bears the burden of discretion).* why abused or withheld its or how the Vermont Constitution provides greater protection than the fed Read, eral constitution.” State v. 165 Vt. * (1996). Here, maintains that novo de required protect review is provided the consti- no of how the guarantee by jury. tutional of trial The Vermont Constitution affords previ- protection. United States ously Court has additional We therefore argument. remittitur does not violate do not address this judgment until the date inadequacy when well Entry judg- payment. VR.C.E 69. requests appellant-defendant further re- as the court clerk occurs soon mittitur). persuaded As we judgment upon a prepares and enters incorporates the jury. When VR.C.E 58. accepted under that remittitur cannot be appeal, party moves to amend conditioned on Manor, stayed. judgment Pinewood policy- do not address at If the Vt. at adopting a different rationales for affirmed, judgment rule. was entered. apply To this rule the case Manor, Pinewood VR.A.E plaintiff’s “con- we must decide 321, 668 A.2d at 659. acceptance binding in fact a was ditional” Mugford, Roy The decisions acceptance In of remittitur. (1994), 642 A.2d 688 Vt. circumstances, fairly make this Dzewaltowski, VanVelsor suggest documents determination. Court cited defen plaintiff accepted dants, do not the contention contrary posi- took a interest accrues gen- argument. The confusion tion oral accepted. In date remittitur plain- the court’s assertion erated held that the Court interest because leaves us unable tiff could entitled parties made question. unwilling to the contract between the We are resolve “liquidated easily ascer speculate as to the choices the *3 513-14, knowledge tainable.” with full of would have made at 695. The VanVelsor decision Even without the the rule. interest accept plaintiff may prefer remit- VanVelsor, plaintiff. 136 Vt. at If than a second trial. titur rather endure (“Interest begins run remittitur, accept plaintiff does defend- becomes the time debt may appeal forego an rather than ants demanded, payment or when suit is of full verdict risk demand.”) brought, judicial Those deci Indeed, possible that here; inapplicable sions differently in trial court would rule liquidated of whether uncertainty, this this of decision. Given easily once ascertainable not relevant opt to this for reconsidera- judgment has been entered. tion of defendants’ motion case, judgment In this was entered alternatively a new trial. court clerk filed when the 14,1995. February motion Defendants’ II. stayed remittitur or new trial that Plaintiff also claims judgment, plaintiff but should granting postjudgment in interest erred mittitur, postjudgment she entitled to date rather on the unremitted amount from interest verdict. As issue original judgment. the date of remand, again arise we address of the other issues Resolution judicial economy. interest of case, including those raised It well established in Vermont cross-appeal, must await ants on “party inter recover on remand. court’s decision Manor, Inc. v. Vermont est.” Pinewood of Transp., Agency Reversed and remanded for further (1995). proceedings with this The Rules of not inconsistent Civil opinion. accrues Procedure Johnson, J., concurring. just agree I his decision as if he had reached adversary.”), aff’d, with his VR.C.B rule settlement (1977). remittitur, approach, once U.S. 648 how- ever, separately begs question; I write the issue cannot flawed, merely by reciting and that a this rule is be decided the usual consequences change should be considered the rules governing committee. rules could be appeal changed permit rule cannot enduring protest. remittitur without first the time See Tenn. Code of a new trial is both wide Ann. 20-10-102 See, spread longstanding. e.g., Where a substantive is of fered, typically Donovan Penn fall courts back on the (“A unsupported line decisions claim stretching judicial firmly back to 1889 has estab rule conserves resources re appeal See, ducing appeals. lished that a e.g., the number of propriety of a remittitur order to which Burns McGraw-Hill (rationale agreed.”); (Colo. 1983) he has Civiello Owens-Corn 659 P.2d ing Fiberglass Corp., 160 for rule is that should (Conn. 1988) (majority perfect appeal; of state courts allowed to no-risk tradi that at requiring party common law tional rule retrial seek accepts appealing who judicial remittitur in lieu of new trial conserves re sources); (result Civiello, that election and cannot 544 A.2d at 160 judgment ordering permitting remitti remitti tur); proliferation tur would be (Me. 1983) (almost appeals; plaintiff guaranteed would be exception, without nothing courts have held that minimum verdict and have to lose plaintiff may by appealing). correctly points out, entered after withholding re mittitur rather than pending suffer new to review a second trial order). Unfortunately, long judicial his increase the strain on resources. tory willing accept be the If a justification example, reviewed, it. but wants the decision a new Court, United money. States Allowing instead wastes time and providing explanation, merely empha permits “settled,” sized that bypass the rule was go trial and “consistent,” “longstanding,” “firmly straight es At least some tablished,” situations, pre and based on “unbroken per immediate cedents” that back “stretch[] to 1889.” mits review the remittitur *4 Donovan, parties’ 649-50. which is the heart of the attempt justify dispute, procedure. Some courts would be a better practice reasoning. with judicial efficiency, circular The Aside from there is Supreme put Maine it plaintiffs, Judicial Court also concern that most daunted way: “[B]y stipulating to a of a second effectively has up the amended giving coerced into Deans, challenge entered thereafter.” the trial court’s “inva- Donovan, jury’s prerogative.” A.2d at Donovan v. Penn. sion of the (2d J., (Feinberg, 536 F.2d 536 F.2d dissenting). Cir. at 539 1976) (“Having price gaining chosen ... to accede to With a new trial [plaintiff] effectively . appeal, many plaintiffs remittitur . . lose the district arises from the State’s motion remittitur decision. comply ruling was unable to that it Permitting plaintiff to de- with our mandate remand problem. See resolves this rights at whether defendant’s termine Note, in the Federal Remittitur Practice prejudiced he was because trial had been Courts, 76 L. Rev. Colum. the dis- to certain records denied access (traditional procedure rules of remittitur pro- court had determined were trict into coerce priv- the Fifth Amendment tected under verdicts; protest is effec- against Because ilege self-incrimination. coercion). tive antidote conclude that the records now “[i]t once wrote Justice Holmes sought were not re- ant revolting to have no better reason quired-records to the Fifth laid down in law than that so was privilege against self-incrim- Amendment Holmes, Henry 0.1V The the time of IV” ination, district court 457,469 Law, 10 Rev. Path Harv. L. to reinstate defend- with instruction (1897). Indeed, rule that ant’s convictions. remittitur without the fol- The district court has certified expense of undergoing trouble and lowing question to which establishes grounded more second background: relevant factual Donovan, See in tradition than reason. 5,1989, August the defend- On J., 539, 541(Feinberg, dissent 536 F.2d ant was convicted four ing) (weight precedent and tradition counts of Lewd & Lascivious rule, persuasive justification with a The con- Conduct Child. lacking). Although I for rule is for conduct at victions were warranted, change in rules is day center sometime dur- care concur through ing the summer of 1985 through accomplished change is better of 1986. Prior the summer deci court rules committee sought the the defendant sion. I am authorized Justice day attendance care center’s joins in this concurrence. Morse hopes developing records reargument denied Novem- exculpatory and material his alibi defense credibility impeach of wit- The trial court ruled nesses. protected records were privilege self-incrimina- v. David L. of Vermont STATE tion and denied the defendant GOMES appeal, the access to them. On Supreme Court held ruling trial court’s was errone- re- ous. The and re- convictions versed manded instructions August 1996. The State Vermont day examine moves care attendance records. con- convictions for lewd and lascivious produced or records child, duct with a 13 VS.A. recreated. previously this Court reversed Gomes, upon the defend- On remand manded. State (1994) (Gomes I). the trial ant’s motion