*1 WALLE, W. VANDE GERALD MARING, C.J., MARY MUEHLEN KAPSNER, DALE RONNING
CAROL SANDSTROM, JJ., concur.
V. LEMER, Hager, Marla
Marla a/k/a
Plaintiff, Appellee, and Cross-
Appellant, Leroy CAMPBELL, Defendant,
Loren Cross-Appellee.
Appellant and
No. 990078. Court of North Dakota.
Supreme 1, 1999.
Dec.
Rehearing Dec. Denied
suffering, and time and productive loss avocation, Campbell for dam- Lemer sued special returned a verdict ages. negligent op- finding *3 vehicle, negligence of his and eration his injuries. proximate cause of was Lemer’s of jury damages Lemer awarded $3,000 past for and expenses, medical damages. no awarded other 1) Campbell moved for order 3] an [¶ “off-setting removing past medical and 2) award”; judgment for in his expense 3) favor; him awarding and costs taxable and The trial court found disbursements. Plaintiff Lemer’s no-fault insurer “since $25,000 already paid approximately had expenses, any up amount plaintiff by awarded final be and deducted from a should off-set against judgment be entered defen- was the dant.” court ruled Lemer Eaton, Ward, Van de Streek & Michael prevailing party awarding for costs and Ward, N.D., Minot, plaintiff, appellee for judgment awarded disbursements. The cross-appellant. and Lemer no and her costs awarded Firm, Morley, Morley Law Michael J. $12,269.88 under and disbursements N.D., defendant, Forks, Ltd., for Grand §§ and N.D.C.C. 28-26-02 28-26-06. cross-appellee. appellant and II NEUMANN, Justice. 4] the trial Campbell [¶ contends Leroy appeals Campbell [¶ 1] Loren concluding erred in court Lemer was $12,- for against from a him judgment and, therefore, prevailing party entitled to for in favor 269.88 costs and disbursements recover costs and Alter disbursements. negligence of Marla in Lemer’s ac- Lemer natively, Campbell contends the trial court cross-ap- against Campbell. tion Lemer have both Lemer and should determined judgment. peals from the verdict and parties, nei prevailing were and the trial court did not abuse
We conclude
ther was entitled to recover
and dis
awarding
dis-
its
costs and
discretion
bursements.
Campbell,
against
and
bursements
any
reversing
failed to
for
establish
basis
54(e), costs
[¶ 5] Under N.D.R.Civ.P.
affirm.
judgment.
We
pro-
and disbursements must be
as
allowed
n
28-26-02,
vided
statute.
Section
N.D.C.C., provides
recovery
for
of cer-
N.D.C.C.,
28-26-06,
on Main Avenue
tain costs.
[¶ 2] While westbound
Section
28, 1992,
February
provides
part
“the
tax
Bismarck on
clerk shall
as
stopped
judgment
prevailing
a left turn
in favor of
her vehicle make
parking
necessary
into a
his
for le-
party
restaurant
lot.
disbursements”
witnesses,
gal
publication,
vehicle
struck from behind
a west-
fees for
refer-
officers,
ees,
Al-
by Campbell.
transcripts,
bound
and other
for
for
operated
vehicle
leging
expenses
taking
injuries,
necessary
depositions
she
med-
disabling
suffered
evidence,
ical and
expenses, pain
procuring
and
the reasonable
rehabilitative
-witnesses,
expert
fees of
and for the actual
appellate
reversed,
costs. The
court
expenses
expert
witnesses.
reasoning as follows:
57.041(1),
Section
Florida Statutes-
A
trial court’s decision on
(1995), provides: “The party recovering
§
fees and costs under N.D.C.C.
28-26-06
judgment shall recover all his or her
will not be overturned on
an
appeal unless
legal costs
charges,
which shall be
abuse of discretion is shown. Patterson v.
included in
judgment^]
[Di-
Since
Hutchens,
(N.D.1995).
nothing,
Paola]
received
[Schneiders]
A trial court abuses its discretion when it
parties
were the
recovering judgment.
unreasonable,
arbitrary,
acts in an
or un
(Citations omitted.) The trial court
conscionable manner.
Lacker
*4
in awarding
erred
costs to [DiPaola] be-
(N.D.
Anderson,
108,
526
112
N.W.2d
cause it was
who
[Schneiders]
were the
1994).
parties.”
prevailing
ordinarily
[¶
“Costs
are
7]
as
Schneider, at 285. We decline to follow
sessed in favor
against
of winners and
Schneider.
Holloway
losers.” State ex rel.
v. First
Co.,
“Generally,
859,
prevailing
[¶ 9]
Am. Bank
the
& Trust
248 N.W.2d
(N.D.1977).
party
suit,
to a
for the purpose
862
If
of deter
opposing litigants each
costs,
mining who is entitled
prevail
issues,
on
is the one
may
some
there
a
not be
successfully prosecutes
who
single
the action
prevailing party against whom
or
dis
successfully
it,
Earthworks,
against
defends
may
prevailing
bursements
be taxed.
Sehn,
(N.D.
issue,
on the
490,
merits of the main
Inc. v.
553
other
N.W.2d
496
words,
1996);
prevailing
the
881,
party
Liebelt v.
is the one in
Saby, 279 N.W.2d
(N.D.1979).
whose favor the decision
888
or verdict is ren
dered and
judgment
the
entered.” 20 Am.
In order to be
prevailing
considered a
(1995).
§
Jur.2d Costs
12
prevailing
“[A]
action,
party in a tort
party
a
must
party plaintiff may
upon
recover costs
prevail at least
negli-
on the issues of
money verdict which is rendered in his
gence and proximate cause. To hold
favor, even though the
judgment
ultimate
subject
otherwise would
persons without
zero
is
after deductions for settlements.”
potential
liability
the
of legal
for an al-
Id. “The
pre
determination of who is the
leged wrong mandatory
against
vailing or
party
upon
successful
is based
them.
an interpretation
Such
does not
merits,
upon
success
upon
not
dam
conform with the
meaning
traditional
ages,
party may
and a
be
prevailing
“prevailing party.”
party
he
although
recovers no award of
O’Hearn,
716,
Andrews v.
387 N.W.2d
732
(1990).
damages.”
§
20
11
C.J.S. Costs
(N.D.1986).
Heitmann,
Syverson
In
v.
171
DiPaola,
Relying
on Schneider v.
(1985),
Cal.App.3d
recover
case,”
argument or
“the
“make out his
court instructed
a failure to
not to
except ad-
attorney,
fact that the
of an
fortuitous
other remarks
solely to the
but
jury equalled
by the
noted
stipulations
assessed
missions and
damages
trial,
settle-
received
are not to be considered
previously
the sums
course of the
pre-
“A
is
ment.
in this case.”
as evidence
provided by
to follow instructions
sumed
Syverson, at 586.
Osier,
court.”
v.
this
State
Campbell negli
jury found
¶24,
v.
quoting State
cause
proximate
was a
negligence
his
gent,
(N.D.1996).
571, 575
Asbridge, 555 N.W.2d
injuries, and awarded Lemer
Lemer’s
$3,000. Thus,
“pre
damages
opening
Later
his
state
negligence
on the issues of
at least
vail[ed]
ment,
attorney again referred
cause,”
Campbell had
proximate
However,
possible drinking.
to Lemer’s
liability
al
legal
for an
potential
“the
object
com
“did not
when these
O’Hearn,
v.
leged wrong,” Andrews
made,
request
nor did she
ments were
inability
recov
N.W.2d at 732.
Nesseth
curative instruction.”
from
in accordance
er
*5
¶51, 8,
691 comment, thereby trial improper to this forfeit- court’s admission or exclusion of evi- ing of error. grounds her claim dence on relevance unless the tri- al court abused its discretion.” Id. Under Lemer contends 402, N.D.R.Ev. relevant gener- evidence is attorney concerning “started to make slurs admissible, ally and irrelevant evidence is drinking opening statement and not admissible. Under N.D.R.Ev. rel- throughout it This left continued case. if, may among evant evidence be excluded job trying Marla with the difficult reasons, other probative “its value is sub- prove she was not a lush.” Other than the stantially outweighed by danger of un- noted, however, objection already we have fair prejudice.” power to exclude evi- object, thereby waiving any Lemer did not dence under N.D.R.Ev. 403 should be errors. appears argue individual Klein, sparingly exercised. v. State the trial was a infected "with number of ¶76, 5, Prejudice ND N.W.2d 325. improper drinking, references to and ar probative due to the force evidence is effect, gues, in grant this court should prejudice. not unfair Id. However, mistrial. Lemer did not move trial, for a new which would have allowed of the [¶ 19] One issues at trial was the trial court to address matter. this job whether Lemer had lost her as a hair- “One of the touchstones for an effective physically dresser because she was unable appeal any proper on issue is that to do the work as a result of the car matter was appropriately raised the tri accident. R Exhibit was relevant to that al intelligently court so it could rule on it.” probative issue. Lemer has not shown the ¶ Osier, State substantially value .of R Exhibit was out- By moving N.W.2d 205. not new weighed by danger prejudice. of unfair trial, pre we conclude Lemer has failed to *6 the We conclude trial court did not abuse separate ground serve as a for reversal its discretion in admitting Exhibit R into argument drinking her that evidence of evidence. objection permeated received without so proceeding and tainted the deprive as to C
her of a fair trial. Lemer has asserted a [¶ 20] number B grounds reversing retrying for or Exhibit R [¶ 17] contends amount of damages “Campbell’s constant — should “have not been allowed into this attempts prejudice jury” by refer- objection.” case over Exhibit R is a state use; drinking marijuana ences to and 26, 1995, ment written Lemer on June $3,000 expenses award for medical is so stating: bias; inadequate as to show and the dam- paid you I Marla Lemer and age award should [$]45.00 be increased to include pay will the other within 4 or 5 $30.00 all expenses paid of the medical and some days. job I am without a because I have damages pain amount for future and and no license. suffering. relevant, argues the exhibit was not already we have about [¶ 21] What said or it should have been excluded drinking applies references to any N.D.R.Ev. “since in this relevance well, marijuana to his references to as and totally case overweighted by prej- was we need not further address Lemer’s con-
udicial nature of such evidence.”
regard.
tention in this
Relevant evidence is evi
dence that
reasonably
actually
would
and
asserts: “In this
[¶ 22] Lemer
tend
prove
disprove
$30,000.00
or
a matter of fact
in
damages
case we have
¶
Osier,
28, 5,
in issue. State v.
...
they only
direct
award
medi[e]al
$3,000.00.
worse think treatment. Extensive judgment received. is affirmed. probably has added to her the treatment WALLE, at all. W. VANDE helped than GERALD
problems, rather SANDSTROM, C.J., DALE V. CAROL impair- “has no Litman testified Lemer KAPSNER, JJ., concur. RONNING *7 any part of of her ment of function her — examination, Litman body.” On redirect MARING, Justice, concurring part that, opinion, in his “Ms. testified dissenting part. and and return to full- program own exercise ma- part I concur in that of the [¶ 28] key recovery.” her own work is the to time to jority opinion holding Lemer’s failure Litman testified on cross-examina- [¶ 24] made dur- object improper to comments tion: claim of ing opening statement waived her however, I to way separately, I she’s had too much error. write think that treatment, opinion today our should not emphasize and that chiro- chiropractic injured we condone the behavior of suggest of those practic manipulation During Campbell’s attorney this case. probably persis- has caused soft tissues statement, discomfort, attorney opening than re- this revis- rather his tence of would— n drinking after ited the issue of Lemer’s of her discomfort. And I lief know, expressly subject I' Ms. the trial court ruled you seeing if had been jury proper I and admonished the person, a medical would was not Lemer as during disregard opening it. Also his stopped chiropractic have that treatment statement, any supporting evi- long, long ago. I I would without a time mean most, dence, attorney suggested Campbell’s A year chiropractic. have—at a of rich,” to “strike it “win every- Lemer intended year chiropractic, they’ve done slot,” her, lottery,” “hope and for help “pull thing they possibly can do to headaches, ongoing pain, chronic through her suit Lemer’s winning combination” sleep Even the medical that and difficulties. He also commented damages. for agreed the defense money expert in her retained had too much Lemer “never actually pain. suffers from this On the Lemer attempt prejudice life” a clear evidence, it is inconsistent for simply this based on her economic jury against her for jury expenses like this of to award medical status. Characterizations pain, treatment associated with thus con- to use our courts de- those who choose jury firming legitimacy, the treatment’s and very system. of the stroy the essence trial, deny any recovery for statement should be then opening At very pain suffering. that same and “what evidence will be explain used to jurors make it for the presented, to easier damage award of zero for follow, and to understand what is suffering under facts so pain and these is testimony of the evidence and parts relate of the inadequate support as to be without whole”; it is not an occasion to to the meeting evidence. This is not case of jury through improper argu- influence the by diag- statutory no-fault threshold Mundelein, Village ment. Testa v. testing shopping. or doctor nostic Cir.1996). (7th Had Lemer F.3d chiropractic medical bills were for treat- objected these statements and the trial Had the pain ments which were related. objections, I would court overruled pain awarded one dollar for and suf- fact, I error. In consider such reversible fering, questioned. its verdict could not be attorney’s statements consider nothing But it awards it indicates a when dangerously as close to the line coming and prejudice passion verdict based on and depriving her of a fair trial. not on the evidence. to dissent from that also write I would reverse and remand this majority opinion upholding the part of the case for a new trial on the issue dam- awarding past medical jury verdict ages. denying any recovery for expenses and Mary Maring Muehlen Slaubaugh In pain suffering. Slau- for a we reversed and remanded baugh, verdict contained
new trial where ex- past award for medical substantial damages for
penses, did not award but discomfort, anguish.
past pain,
and mental
(N.D.1991).
573, 577
I dis-
concluding
in Nesseth v.
sented
ed her on which this
The medical records award documentation of replete
is based are with