454 A.2d 835 | Me. | 1983
This case presents the narrow question whether a plaintiff who has stipulated to remit a portion of her jury award, pursuant to a court order that would have granted defendant’s new trial motion had plaintiff not accepted a reduced judgment, is thereby precluded from appealing that reduced judgment on the ground that she was entitled to the full amount of the jury verdict. We hold that she is, and accordingly we dismiss plaintiff’s appeal.
Plaintiff Hilda M. Deans brought a malpractice suit against defendant Eastern Maine Medical Center in the Superior Court (Hancock County). After a two-day trial, the jury returned a verdict for plaintiff and judgment was entered for her in the amount of $20,776.85. Defendant filed a timely motion for a new trial, arguing, among other things, that the damages awarded by the jury were not supported by the evidence and were therefore excessive. The trial justice, acting pursuant to M.R.Civ.P. 59(a),
The question raised by the motion to dismiss has never been squarely addressed by this court. In Thompson v. Perkins, 57 Me. 290 (1869), however, we held that any defendant who consents at trial to the entry of judgment loses his right to appeal that judgment. We there said:
The record of the magistrate states that judgment was rendered in favor of the plaintiff by consent of the defendants. Such being the case they could not rightfully appeal. Parties aggrieved, by the judgment of a justice may appeal. But when a party consents to have judgment rendered against him, he cannot rightfully claim to be aggrieved. It is a fundamental maxim that consent cures error.
57 Me. at 292 (citations omitted).
The principle declared in Thompson v. Perkins applies with equal force to the case at bar. By accepting the $9,200 remittitur in lieu of a new trial, plaintiff has cpnsent-ed to the entry of the reduced judgment in her favor. The “opportunity to remit” provided by Rule 59(a) is “an opportunity to ... agree to the new amount set by the judge.” M.R.Civ.P. 59(a) Advisory Committee’s Note to 1969 amendment, 2 Field, McKusick & Wroth, Maine Civil Practice 57 (2d ed. 1970). Thus, by stipulating to a remittitur, plaintiff has agreed to the amended judgment entered thereafter. The effect of accepting a remittitur under Rule 59(a) could not be avoided by the conduct or language used by plaintiff in stipulating to the reduced amount, since Rule 59(a) and the conditional new trial order that tracked it gave her only two choices: she could refuse to remit any portion of the jury verdict and suffer the consequences of a new trial, or she could content herself with the reduced judgment and lose her right to appeal that judgment entered by consent.
Today’s plaintiff, while acknowledging the solid body of law contrary to her position, argues that she falls into the “severa-ble issue” exception to the general rule. That exception, as applied by the California courts, among others, allows a party to “take the benefits of the determination on one issue and appeal from another severa-ble part of the judgment.” Templeton Feed and Grain v. Ralston Purina Co., 69 Cal.2d 461, 468, 72 Cal.Rptr. 344, 348, 446 P.2d 152, 156 (1968). Hilda Deans, however, is attempting to argue on appeal precisely the same issue that was the basis for the Superior Court’s conditional new trial order;
Nor does plaintiff fall within the “cross-appeal” exception, which was first articulated in Plesko v. Milwaukee, 19 Wis.2d 210, 220, 120 N.W.2d 130, 135 (1963). The courts of Wisconsin, and other states, have permitted a plaintiff otherwise barred from appealing by his acceptance of a remittitur to take a cross-appeal once the defendant has initiated an appeal. Even if the “cross-appeal” exception is recognized in Maine,
The entry must be:
Appeal dismissed.
. Rule 59(a) states in pertinent part:
A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit such portion thereof as the court judges to be excessive.
. Although defendant’s new trial motion was made on a number of different grounds, the fact that the presiding justice’s order gave plaintiff the option of stipulating to a remittitur demonstrates that the order was based on a finding that the jury verdict was excessive. Rule 59(a) requires a trial justice to give the prevailing party a remittitur option “only when the size of the verdict is the sole ground for the grant of a new trial.” M.R.Civ.P. 59(a) Advisory Committee’s Note to 1969 amendment, 2 Field, McKusick & Wroth, supra, at 58.
. In McKinnon v. Tibbetts, 440 A.2d 1028 (Me. 1982), we denied (rather than dismissed) a cross-appeal brought by a plaintiff who, in lieu of a new trial order in the Superior Court, had accepted a remittitur of about one half of the punitive damages awarded by the jury. The defendant-appellant in McKinnon did not argue that the plaintiffs cross-appeal should have been dismissed; and our opinion, which held that the record as a matter of law did not justify any punitive damages, did not discuss the plaintiffs right to cross-appeal.