INTHE SUPREME COURT OF THE STATE OF WASHINGTON
RICHARD J. MILLIES, as trustee ofthe Richard J Millies Trust, and SUSAN P. MILLIES, as trustee ofthe Susan P Millies Trust, Petitioners,
v. LANDAMERICA TRANSNATION dba TRANSNATION TITLE INSURANCE ) ) ) ) ) ) ) ) ) ) ) COMPANY, a corporation conducting ) business in Washington, and FALCON, INC.,) an Idaho corporation conductingbusiness ) in Washington, ) Respondents. ) )



### ___________________________) No. 91301-3

EnBanc

Filed

-------

GONZALEZ, J.-Richard and Susan Millies (collectivelyMillies) purchased a secludedpiece ofpropertyin Stevens County overlooking Deer Lake. Unfortunately, their title company overlooked an easementthat could renderthe propertyfar less secluded. The title insurer, LandAmerica Transnation Title Insurance Company, conceded that the easementhadbeenMillies v. LandAmerica Transnation, No. 91301-3 overlooked inthe title search and conceded coverage for the omission. After the two sides could not agree on the proper amount ofcompensation, the Millies sued on a variety ofgrounds. Thejuryreturned a defense verdict. We must decide whether to disturb thatjuryverdict. We find the claimed juryinstructional errors were not properlypreserved, that the instructions given are the law ofthe case before us, and that the plaintiffs are not entitled to eitherjudgment as a matter oflaw or a new trial. We affirm. BACKGROUND In 2006, after looking at several properties, the Millies bought 75
acres ofrural land intending to build a new home for their retirement. The Millies hired Columbia Title Companyto research the title and obtained an owner's title policy from LandAmerica. The title policy covered loss or damage up to $250,000, the purchase price. Afterthe Millies bought the land, theylearned that the propertywas burdened by a substantial recorded easement that authorized public use ofa road bisecting theirproperty. They also learned that a neighborplanned to develop 50 condominiumunits on his property and to use the easement for public access. The Millies contacted Columbia Title, who confirmed the easement and gave the Millies information about filing a claim with Transnation.

2Millies v. LandAmerica Transnation, No. 91301-3 The Millies submitted a claim seeking $125,000. A Transnation claims representative contacted the Millies' attorney and conceded that the Millies' claim was covered, but disagreed that the easement deprived the property ofhalfits value. Transnation contendedthat under the policy, the appropriate measure ofdamages was the reduction inthe property's value due to the easement to be determined by a fair market appraisal. Transnation hired an appraiser to conduct a diminution-in-value (DIV) appraisal ofthe Millies' property. The appraiser determined the DIV was $25,000. In November 2007, Transnation offeredto pay that amount to the Millies in full settlement oftheir claim. The Millies rejected that offer, submitted a proofofloss, and requested $100,000 to settle. After more investigation, Transnation stood by the initial determination ofthe loss. Transnation sent the Millies a check for $25,000 on July 31, 2009. The Millies rejected the offer and returnedthe check. In August 2009, the Millies filed suit against Transnation for breach ofcontract, breach ofduties under the Consumer Protection Act and the Insurance Fair Conduct Act, breach ofduty ofgood faith, negligence, and breach ofwarranty deed covenants. In its answer, Transnation denied liability and asserted an affirmative defense that it fulfilled the terms ofits contract by investigating the Millies' claim and timely tendering payment

3Millies v. LandAmerica Transnation, No. 91301-3 based on a reasonable fair market appraisal. Transnation also hired a second appraiser to reevaluate the Millies' claim. This appraiser valuedthe DIY at $37,500. At trial, the Millies called two appraisers who testified the easement diminished the property's value by 50 percent, or $125,000. Transnation calledtheir appraisers, one ofwhom testified that the property's value was diminished by $25,000, the other by $37,500. Transnation also called its claims representatives who conceded on the stand that the company is liable for the DIY loss under the Millies' policy and testified that $25,000 was its reasonable, good faith attempt to settle the claim. Nearthe end oftrial, the parties submitted proposedjury instructions. Bothparties offered their own breach ofcontract instruction containing similar language as to the elements ofthe claim. However, Transnation's proposed breach ofcontract instruction includedthe affirmative defense asserted in its answer. The next day, both parties offered formal exceptions to thejury instructions. The Millies made no specific objection to Transnation's proposed breach ofcontract instruction, but did make a general objection to the court not giving all oftheir proposed instructions. This broad objection did not specify any particularjury instruction or identify any particular error.

4Millies v. LandAmerica Transnation, No. 91301-3 The Millies simply suggested the language intheirproposed instructions wouldbe more helpful to thejury. The court adopted Transnation's breach ofcontract instruction. Duringjurydeliberations, thejury asked whether it could make a "recommendation about the settlement amount separate from the verdict form?" Clerk's Papers (CP) at 497. The court referred thejuryto its previous instructions. Shortly afterwards, thejuryreturned a defense verdict. Thejury specifically found that Transnation did not breach its contract with the Millies. Given that Transnation conceded the title companyhad failed to find the recorded easement, thejurymust have concluded Transnation had satisfied its contractual obligations by investigating and tendering reasonable payment. The Millies moved for a new trial. In support oftheir motion, the Millies presented declarations from threejurors, each stating theybelieved Transnation violated at least oneprovision oflaw in attempting to settle the claim. The declarants stated all thejurors agreed the Millies were entitledto
some award ofdamages, that thejurors were confusedbythe verdict form and the instructions, and that theybelieved thejudge would "pencil in" a fair settlement amount. Id. at 531.

5Millies v. LandAmerica Transnation, No. 91301-3 The Millies also moved, for the first time, forjudgment as a matter of law. The trial court denied the motion. Althoughthe trial court denied the motion, it was not clear whether the DIY claimunderthe insurance policy remained. The court asked the parties to briefthis issue and held a hearing. The court concluded: [T]hejuryfollowed the instructions that were given to it bythe court. And that's what they did. And they found that LandAmerica had fulfilled its contract, and that's as far as they went. Theyweren't saying that there shouldn't be a recovery on the outstanding amount, but that wasn't given to them. They did not have that decision to be made. 3 Verbatim Tr. ofProceedings (VTP) (Apr. 30, 2013) at 366. The court subsequently entered a final ordernlling that no issues remained for the court orthe trier offact to consider in the case. The Millies appealed, arguing that the trial court erred in giving Transnation's breach ofcontract instruction and in denying the posttrial motion for a new trial. The Court of Appeals affirmed. Millies v. LandAmerica Transnation, noted at 185 Wn. App. 1024, 2015 WL 213681, at 

## *17. The court decided that the Millies had not properly presented whether they were entitled to recover the $25,000 originally offeredbyTransnation to settle the claim and did not reach the merits. 

### Id. We granted review. 183 Wn.2d 1002, 349 P.3d 856 (2015).

6Millies v. LandAmerica Transnation, No. 91301-3
ANALYSIS 1. OBJECTION TO BREACH OF CONTRACT INSTRUCTION The Millies challenge the breach ofcontract instruction, instruction 7,
onthe theory it improperly included a defense alongside the elements ofthe claim. Jury instruction 7 was based on a patternjury instruction. It said: Plaintiffs have the burden ofproving each ofthe following propositions ontheir claim ofbreach ofcontract: (1)That Plaintiffs entered into a contract with Defendant, containing the following terms: This policy is a contract ofindemnity against actual monetary loss or damage sustained or incurred bythe insured claimant who has suffered loss or damage byreason ofmatters insured against by this policy and only to the extent herein described. The difference between the value ofthe insured estate or interest as insured andthe value ofthe insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (2)That Defendantbreached the contract as claimed by Plaintiffs; (3)ThatPlaintiffs were damaged as a result ofDefendant's breach. Ifyou find from your consideration ofall the evidence that any ofthese propositions has notbeen proved, your verdict should be for the Defendant. Onthe other hand, ifeach ofthese propositions has been proved, then you must also consider the affirmative defense claimed bythe Defendant.

7Millies v. LandAmerica Transnation, No. 91301-3 Defendant has the burden ofproving the following affirmative defense: (1) That Defendant fulfilled the terms ofthe contract with Plaintiffs by investigating the claim and tendering payment in a timely mannerbased on a reasonable fair market appraisal. Ifyou find from your consideration ofall the evidence that this affirmative defense has beenproved, yourverdict shouldbe for Defendant on this claim. Onthe otherhand, ifthis affirmative defense has not beenproved, then your verdict should be for Plaintiffs on this claim. CP at 476; see also 6AWASHINGTONPRACTICE: WASHINGTONPATTERN JURYINSTRUCTIONS: CNIL 300.03, at 186 (2012). The Millies contend that the instruction was misleading and the included affirmative defense was a defense onlyto the tort claims, not to the breach ofcontract claim. We must first decide whether any error was preserved. A partywho objects to ajuryinstruction must "state distinctly the matterto which counsel objects and the grounds ofcounsel's objection, specifying the number, paragraph orparticularpart ofthe instruction to be given orrefused." CR 5l(f). This gives the trial court the opportunityto remedy instructional error and reduces unnecessary appeals and retrials. Estate of Ryderv. Kelly-Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160 (1978) (quotingRoumelv. Fude, 62 Wn.2d 397, 399-400, 383 P.2d 283

8Millies v. LandAmerica Transnation, No. 91301-3 (1963)). The objection must be "sufficientto apprise the trialjudge ofthe nature and substance ofthe objection." Crossen v. Skagit County, 100 Wn.2d 355, 358, 669 P.2d 1244 (1983) (citing Stewart v. State, 92 Wn.2d 285, 298, 597 P.2d 101 (1979)). Failure to make an adequate objection may preclude appellate review ofthat instruction. Bitzan v. Parisi, 88 Wn.2d 116, 125, 558 P.2d 775 (1977); Berry v. Howe, 34 Wn.2d 403, 409, 208 P.2d 1174 (1949). Hypertechnicality is not required. As long as the trial court understands why a party objects to ajury instruction, the objection is preserved for review. Washburn v. City of Federal Way, 178 Wn.2d 732, 747, 310 P.3d 1275 (2013). We have found "extended discussions" on the record about a particularjury instruction sufficient to preserve the objection. Crossen, 100 Wn.2d at 359; Washburn, 178 Wn.2d at 747-48. Similarly, an objection to a trial court's failure to give a competing instruction may preserve an objection to the instruction actually given, so long as the challenger clearly informed the court ofthe basis ofthe objection. Falkv. Keene Corp., 113 Wn.2d 645, 658, 782 P.2d 974 (1989). Falkinvolved a products liability claim against a manufacturer. Id. at 646. The Falks did not object to the negligence instruction given, but did object to the court's refusal to instruct on strict liability. Id. at 646-47. We held that was

9Millies v. LandAmerica Transnation, No. 91301-3 sufficientto apprise the trial court of"the point oflaw in dispute, 

### i.e., whether an instruction in the 'negligence' language ofthe statute misstated the law" as it applied to all ofthe claims. 

### Id. at 658. Here, the Millies made no such specific objection to instruction 7 or to the failure to give a related instruction. Unlike 

### Crossen, there were no extended discussions about instruction 7, no discussion ofthe breach of contract claim generally, and no discussion ofthe affirmative defense. Nothing offered to the trial court would have alerted itto the specific reasons for the objection. Relying on our recent 

### Washburn opinion, the Millies argue that an objection to all instructions not given is enough to preserve the issue for appeal. Appellants' Pet. for Review at 8-9 (citing 

### Washburn, 178 Wn.2d at 7 47). In 

### Washburn, the court considered whether a municipality couldbe held liable for negligent service ofa protective order. 178 Wn.2d at 738. Among other things, the city argued that it had no duty to the victim under the public duty doctrine. 

### !d. at 740-41. The city objected to the giving ofan instruction stating the city owed a duty to the victim. 

### !d. at 743. We found the city's "'strenuous objections"' were enough to preserve the issue. 

### Id. at 743, 748. Here, the Millies' general objection was not a "strenuous objection" to the giving ofthe breach ofcontract instruction. As the court

10Millies v. LandAmerica Transnation, No. 91301-3 refused to give at least 11 ofthe 24jury instructions proposed by the Millies,
a general objection would not have alerted the court to the point oflaw in dispute. 1 The Millies also argue thatthey apprised the trial court oftheir objection in their trial brief. Appellants' Pet. for Review at 8-9. Their trial briefstated in pertinentpart: Every contract carries with itan implied duty to act in good faith which obligates parties to cooperate with each other so that each may obtain the full benefit ofperformance. This duty requires an insurer to conduct a reasonable investigation. Itmustbase any decision on adequate information and not overemphasize its own interest. Ifit doesn't, it will have breachedthe covenant and, therefore, the policy. CP at 355 (citations omitted). In a footnote, the Milles stated that a "breach ofcontract action against an insurer is a separate cause ofaction andthejury in this case should be instructed separately onthis claim. Coventry [ v. Am. States Ins. Co., 136 Wn.2d 269, 278, 961 P.2d 933 (1988)] (plaintiff may simultaneously bring both)." 

### !d. n.2. Their argument, generously construed,
was that under Coventry, a breach ofcontract suit is a separate cause of

1The Millies pointto their general objectionto all instructions "that were not given" and argue that they were objecting to the court's refusal to give a profferedjury instruction that included language from Columbia Park GolfCourse, Inc. v. City of Kennewick, 160 Wn. App. 66, 248 P.3d 1067 (2011). 3 VTP (Jan. 31, 2013) at 345-46. Columbia Park concerned whether expectation or actual damages are recoverable in a breach ofcontract action. 160 Wn. App.at 82-87. However, this would not alert the trialjudge about any problem with including an affirmative defense along with the elements ofthe action. Itis also unclear from a review ofthe Millies' proposed instructions which specific language from Columbia Parkthat they sought to include. See CP at 432-67. Withoutmore, this general objection was not enough to preserve the Millies' challenge to instruction 7. 11Millies v. LandAmerica Transnation, No. 91301-3 action from an action alleging an insurer acted in bad faith; thus, there should be two separatejury instructions separating those two issues ifboth claims are brought in a single suit. See Coventry, 136 Wn.2d at 268. But this was insufficientto alert the trialjudge to the Millies' current specific complaint about the affirmative defense in instruction 7. As requested, the jurywas instructed separately on the breach ofcontract issue. CP at 476. The trial court gave multiple instructions onthe duty to act in good faith, as the Millies requested. 

### !d. at 475, 477, 481. The special verdict form additionally separated the breach ofcontract claim from the good faith claim, requiring thejuryto address each claim individually. 

### !d. at 498. The Millies' appeal is not about whether thejury was confused aboutthe duty of good faith. Their appeal argues thejurywas confused because the trial court included the affirmative defense with the breach ofcontract instruction. There is nothing in the Millies' trial briefor this court's opinion in Coventry to preserve an objection onthose grounds. We hold that the Millies failed to preserve their challenge to instruction 7.

12Millies v. LandAmerica Transnation, No. 91301-3 2. LAW OF THE CASE DOCTRINE Unless there is a proper objection,jury instructions become the law of the case. 2 State v. Leohner, 69 Wn.2d 131, 134,417P.2d 368 (1966) (citing Crippen v. Pulliam, 61 Wn.2d 725, 380 P.2d 475 (1963)). We review the sufficiency ofthe evidence in light ofthe instructions given. Tonkovich v. Dep'tof Labor &Indus., 31 Wn.2d 220,225, 195 P.2d 638 (1948). "This rule does not apply ifthe record or evidence conclusively shows that the party in whose favor the verdict is rendered is not entitled to recover." Id. 3 The Millies argue that the law ofthe case doctrine should not apply because the record does not support a verdict awarding no damages to the Millies. Appellants' Pet. for Review at 11-12. They also argue thatthe doctrine is discretionary and should notbe applied "where it would result in manifest injustice." Id. at 12 (citing Greene v. Rothschild, 68 Wn.2d 1, 8, 414 P.2d 1013 (1966)). Butthe Millies have not demonstrated a manifest injustice or

2 We note inpassing thatthe law ofthe case doctrine does notprevent a party from challenging manifest errors inthejury instructions affecting a constitutional right for the first time on appeal. RAP 2.5(a)(3). 3 We recognize the continuing vitality ofTonkovich onthis pointhas recently been questioned. See Washburn v. City of Federal Way, 169 Wn. App. 588, 605-06, 283 P.3d 567 (2012) (noting thatthe quotation above "is not supported by any citationto authority [and] does not discuss any ofthe many cases that do apply the law ofthe case doctrine to cases that are undistinguishable from this one."), ajj'don other grounds, 178 Wn.2d 732. This case does not give us an opportunity to decide howto harmonize Tonkovich with more robust applications ofthe law ofthe case doctrine such as that articulated inState v. Hickman, 135 Wn.2d 97, 101, 105, 954 P.2d 900 (1998) (holding the State was bound to prove even erroneously included elements). 13Millies v. LandAmerica Transnation, No. 91301-3 that no evidence supported thejury's verdict. The breach ofcontract instruction directed thejury to render a verdict for Transnation ifthe company proved it fulfilled the terms ofthe contract with the Millies "by investigating the claim and tendering payment in a timely manner based on a reasonable fair market appraisal." CP at 476. Thejuryreturned a verdict for Transnation and awarded no damages to the Millies because thejury determined Transnation proved the affirmative defense. We find sufficient evidence supported thejury's verdict. Thejuryheard evidence from the Transnation claim representative who investigated the claim and timely tendered payment of$25,000, which she believed to be a reasonable fair market amount. 2 VTP (Jan. 30, 2013) at 197-98, 200-01. Although the parties disputed whether the $25,000 amount was "reasonable," thejury resolved this dispute and found that it was. We decline to disregard instruction 7 and hold that it is the law ofthe
case. 3. JUDGMENT ASAMATTEROFLAW The Millies argue that the trial court erred in denying their postjudgment motion forjudgment as a matter oflaw. We find the motion
was untimely. CR 50 dictates when motions forjudgment as a matter oflaw must be made: "at any time before submission ofthe case to thejury." CR

14Millies v. LandAmerica Transnation, No. 91301-3 50(a)(2).4 Such a motion mayberenewed after trial, but the rule's use ofthe word "renew" in CR 50(b) indicates that a partymust file a motion for a judgment as a matter oflaw before submitting the case to thejuryifthe partywishes to renew its previous motion after thejuryreturns a verdict. This language in CR 50 came from the 2005 amendments to the Civil Rules. Priorto 2005, a partycould move forjudgment as a matter oflaw after the case hadbeen submitted to thejuryregardless ofwhether the party had previously sought relief. Former CR 50(b) (2004); Mega v. Whitworth Coll., 138 Wn. App. 661, 668-69, 158 P.3d 1211 (2007). The drafters ofthe 2005 amendments intended for the new language to require the motion for judgment as a matter oflawto be made before submittal to thejuryif counsel wishes to renew the motion after the verdict. 4 KARLB. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CR 50 drafters' cmt. at 225 (6th ed. 2013) ("This suggested amendment changes Washingtonpractice and requires that a motion forjudgment as a matter oflawbe made before

4 CR 50 reads, inrelevant part: (2) When Made. A motion forjudgment as a matter oflaw maybemade at anytimebefore submission ofthe case to thejury. (b) Renewing Motion for Judgment After Trial; Alternative Motion for a New Trial. If, for anyreason, the court does not grant a motion for judgment as a matter oflawmade at the close ofall the evidence,
... [t]he movant mayrenew its request forjudgment as a matter oflawbyfiling a motion no later than 10 days after entry of judgment.
...
15Millies v. LandAmerica Transnation, No. 91301-3 submission ofthe case to thejury as a condition to renewing the motion post-verdict."). Our Court ofAppeals has interpreted this language in line with the drafters' intent. Ifa party does not make the motion before submitting the
case to thejury, the party waives its right to file the motion later. Gorman v. Pierce County, 176 Wn. App. 63, 86, 307 P.3d 795 (2013); Hanks v. Grace, 167 Wn. App. 542, 552-53, 273 P.3d 1029 (2012). Wejointhese courts and hold that a party is required to move forjudgment as a matter oflawbefore the case is submitted to thejuryto preserve any opportunity to renew the motion after the verdict. Here, the Millies failed to move forjudgment as a matter oflaw prior to the submission ofthe case to thejury. Thus, the Millies' postverdict motion forjudgment as a matter oflaw after the verdict was untimely and properly denied. 4. MOTION FORA NEW TRIAL The Millies assert that they are entitled to a new trial under CR 59 because (1) ofirregularities, (2) ofmisconduct by thejury and by Transnation's counsel, (3) ofaccident or surprise, (4) ofinadequate damages, (5) oferror inthe assessment ofdamages, (6) the verdict was contrary to the evidence at trial, and (7) substantialjustice was not done.

16Millies v. LandAmerica Transnation, No. 91301-3 Counsel provided briefing on only two issues: that the verdict was contrary to the evidence at trial and that substantialjusticehas not been done. See Appellants' Pet. for Review at 11 n.6. 5 A. Evidence Presented At Trial Where the proponent ofa new trial argues the verdict was notbased
onthe evidence, appellate courts review the record to determine whether there was sufficient evidence to supportthe verdict. McUne v. Fuqua, 45 Wn.2d 650, 652, 277 P.2d 324 (1954). There must be "no evidence or reasonable inference from the evidence tojustifythe verdict or the decision"
or it must be "contrary to law" to grant a new trial. CR 59(a)(7). It is an abuse ofdiscretion to deny a motion for a newtrial where the verdict is contrary to the evidence. Palmer v. Jensen, 132 Wn.2d 193, 198, 937 P.2d 597 (1997) (citingMcUne, 45 Wn.2d at 653; Krivanekv. Fibreboard Corp., 72 Wn. App. 632, 637, 865 P.2d 527 (1993)). However, where reasonable minds could differ on the question, the court will not disturb thejury's verdict. Winbun v. Moore, 143 Wn.2d 206, 217, 18 P.3d 576 (2001).

5 The Millies' petition for review states that the Millies reserve argument on alternate grounds for a newtrial under CR 59(a)(l), (2), (3), (5), and (6). However, the Millies devoted insufficient argument to supportthese other newtrial arguments. We decline to consider them. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (declining to reach arguments not supported by adequate argument and authority). 17Millies v. LandAmerica Transnation, No. 91301-3 

### Here, as the Court ofAppeals noted, this case presents a "thorny question" ofwhether the evidence in this case is contrary to the verdict. Millies, 

### 2015 WL 213681, at *16. This is because Transnation concedes that the Millies are entitled to payment for the reduction in value from the undiscovered easementpursuantto the policy. See 

### 2 VTP (Jan. 30, 2013) at 97-98; 200-01. In this regard, ajury verdict awarding the Millies no damages is arguably contrary to the evidence presented at trial. 6 

### But as discussed above, thejuryinstructions given are the law ofthe case, and at no point was thejury simply asked to value the amount ofthe conceded covered loss. Here, thejurywas presented with a special verdict form with a number ofquestions to answer. CP at 498-99. The Millies did not objectto the use ofthis special verdict form. The first question asks, "DidDefendant breach the contract with the Plaintiff?" CP at 498. Thejury answered this question in the negative. Given Transnation's concession, the only way thejury could have found no breach ofcontract was based on the defendant's affirmative defense. See 

### 2 VTP (Jan. 30, 2013) at 185-207. The next question on the verdict form asked, "Did Defendant fail to act in good faith?" CP at 498. Thejury also answered this question in the

6The record before us does not suggest Transnation, since trial, has declined to pay the damages it concedes the Millies suffered. Whether a refusal to do so now would breach the contract is not before us. 18Millies v. LandAmerica Transnation, No. 91301-3 

### negative and thus did not award any damages on this claim. While these facts were vigorously disputed, sufficient evidence supports thejury's verdict. Transnation presented evidence from both ofits claim representatives who worked onthe Millies' claims thatthey did act in good faith. Evidence was presented that Transnation promptly began investigating the claim after submission, hired an expert to evaluate the claim, made an offer to settle the claim, and submitted payment to the Millies after attempting settlement negotiations. 2 VTP (Jan. 30, 2013) at 185-207; 3 VTP (Jan. 31, 2013) at 284-93. Transnation also offered evidence from an insurance attorney who testified that Transnation acted in good faith as compared to other insurance companies in the business. Suppl. VTP (Jan. 30, 2013) at 109-12. There was sufficient evidence presented for thejuryto conclude that Transnation acted in good faith. Finally, thejury was asked, "DidDefendant act negligently?" and "DidDefendant violate the ConsumerProtection Act?" CP at 498-99. The jury answered both questions in the negative and did not award any damages
on these claims. Transnation presented opiniontestimony from an insurance attorney that Transnation's actions were notunreasonable, were not unfair or deceptive acts, and were not violations ofthe Consumer Protection Act (CPA) or the Insurance Fair Conduct Act (IFCA). 2 VTP (Jan. 30, 2013) at

19Millies v. LandAmerica Transnation, No. 91301-3 109-12. There was sufficient evidence presented for thejuryto believe Transnation's expert and find in favor ofTransnation on these lasttwo claims. Looking at the special verdict form as a whole, thejury was asked to determine damages only ifit found in the Millies' favor on a claim. CP 498- 99. Thejury was not asked to determine the diminution in value ofthe property absent a finding ofliability. Unfortunately, the Millies did not suggest below or argue here on appeal that the special verdict form should have included the option to determine the diminution in value amount to be paid.7 The Millies forfeited their opportunity to have ajury decide what the diminution in value amount should be, which was the crux ofthe evidence presented during tdal. 8 We find there was sufficient evidence to supportthejuryverdict in favor ofTransnation on all the Millies' claims.

7 During closing arguments, plaintiffs' counsel argued for thejuryto award damages in the amount of$125,000 because Transnation acted umeasonably and in bad faith. 3 VTP (Jan. 31, 2013) at 318. Counsel did not ask thejuryto determine the DIV amount. We note in passing that it was defense counsel who pointed to question 2 on the verdict form and indicated that would be where the DIV amount should go. Id. at 335 ("Once you get through your analysis and you find-everything [Transnation] did was reasonable, but we still have a number, we agree on the number, that's where you put it. And that's whether you agree with
...$25,000 [or] $37,500."). Perhaps feeling bound by thejury instructions given, thejury did not accept counsel's invitation. 8 The Millies did not rebut evidence presented by Transnation indicating that the easement did not extend beyond the Millies' property and therefore could not be used as a public road. See Suppl. VTP (Jan. 30, 2013) at 71-72, 100-02. Based on this evidence, an inference can be made that the easement had no detrimental effect onthe property and the amount ofdamages could be $0. 20Millies v. LandAmerica Transnation, No. 91301-3 B. Substantial Justice The Millies also argue thatthey are entitled to a new trial under CR 59(a)(9) because substantialjustice has not been done. Courts rarely grant a
new trial under this catchall provision given the other broad grounds under CR 59. Knecht v. Marzano, 65 Wn.2d 290, 297, 396 P.2d 782 (1964). The weight ofevidence and questions ofcredibility are the province ofthe finder offact. Hilltop Terrace Homeowner'sAss 'n v. Island County, 126 Wn.2d 22, 34, 891 P.2d 29 (1995). A motion for a new trial on this ground cannot be used to avoid the duty ofa party to timely except to instructions and object to trial practices. Cerjance v. Kehres, 26 Wn. App. 436, 441, 613 P.2d 192 (1980). Counsel for the Millies did not object or take exception to the special verdict fonn that did not ask thejuryto make a determination on the diminution in value claim. Ifan issue ofmaterial fact is omitted from the special verdict form and counsel fails to bring this omission to the court's attention, the affected party waives the right to have that issue submitted to thejury. See CR49(a). The Millies do notprovide additional argument on this issue as to why substantialjustice was not done and rely mostly onthe argument that the verdict is contrary to the evidence. The Millies have not proved that substantialjustice was not done in this case.

21Millies v. LandAmerica Transnation, No. 91301-3 

### Accordingly, we hold that substantialjustice does not require the granting ofa new trial in this case. The dissent argues that we should remand this case "[i]nthe interest ofdoing substantialjustice
... to allow the trial courtto exercise its authority under CR49(a) and consider whether to determine the DIVas an issue omitted from thejury's consideration." 9 

### Dissent at 3. However, as the dissent notes, CR49(a) contemplates resolving issues that were inadvertently omitted from thejury. Dissent at 1 (citing CR49(a)). Here, it
was likely the Millies' trial strategy to omit the DIV question from thejury's consideration. 10 

### Moreover, at oral argument, counsel for the Millies rejected

9 The trial court already made a determination at the posttrial hearing on the DIY issue. See 3 YTP (Apr. 30, 2013) at 364-65. The trial court stated: But the business that was given to thejury was completed, in a coherent, sensible fashion, and-andthat's that. And this court, I didn't act in that short period oftime, that window that was available-There was no request to do so, and I didn't. And so that opportunity has come and gone. And this is all spelled out in Civil Rule 49(a) and the available case law that goes with that. !d. The Millies did not appeal the court's determination onthe DIY issue under CR 49(a). We decline to reach it. 10 The trial court believed it was the Millies' trial strategy to omit the DIY issue from the jury instructions: I do believe that it was part ofthe plaintiffs' theory ofthe case to do it exactly the way it was done and the way it was presented to thejury. And that was to have the-and you remember the low-ball argument that Mr. Boswell made passionately to thejury, well, that included the fact that there'd never really been a payment made. And he was in effect wanting that to bleed over into thejury's thinking about the remainder ofthe claims. And that was a tactical decision that 22Millies v. LandAmerica Transnation, No. 91301-3 resolving this case under CR49(a). See Wash. Supreme Court oral argument, Millies v. Landamerica Transnation, No. 91301-3 (Oct. 27, 2015), at 41 min., 30 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. The Millies have requested a
new trial, most likely because they want another attempt to prove damages under the CPA and the IFCA. Remanding this case for the trial courtto decide the DIV amount is not the substantialjustice that the Millies seek. CONCLUSION We holdthatthe Millies did not preserve their objection to thejury instructions, and that those instructions became the law ofthe case. The Millies are not entitled to eitherjudgment as a matter oflaw or a new trial. There was sufficient evidence to support a verdict in favor ofTransnation in light ofthe instructions given. We affirm.

he made, I believe is what occurred here. But in the endthejury did not do that; it limited its deliberations strictly to thejury instructions that ithad been given. And, finally, denied or refused to acceptplaintiffs' theory ofthe case. !d. at 365-66. 23Millies v. LandAmerica Transnation, No. 91301-3

WE CONCUR:

24Millies, et ux. v. Landamerica Transnation, et al.

No. 91301-3

STEPHENS, J. (dissenting)-The majority frames the question before us as whetherthis court should disturb thejury'sverdict. Majority at 2. Onthat question, I agree with the majority's conclusion that the verdict should stand. The verdict form did not ask thejuryto determine the diminution invalue (DIY) ofRichard and Susan Millies' (collectively Millies) property ifit found no breach ofcontract. 1 I respectfully dissent, however, because it is not clear the trial court believed it had any options following thejury's verdict, though it retained the authority to resolve

1Although the majority correctly recognizes thejury's verdict did not address the DIVissue, itnonetheless suggests thatthejurymayhave decidedtheDIVwas $0. Majority at 20 n.8 ("[A]n inference canbe made that the easement had no detrimental effect onthe property and the amount ofdamages could be $0.") This is pure speculation, as thejury was not asked about DIV and therefore did not calculate it.Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)

the omitted DIV issue itselfunder CR49(a). In the interest ofdoingjustice, I would remand to afford the trial court the opportunityto exercise this option. Under CR 49(a), a trial court may resolve an issue that was inadvertently omitted from thejury's consideration. CR 49(a) ("As to an issue omitted without such demand the court maymake a finding; or, ifit fails to do so, it shall be deemed to have made a finding in accord with thejudgment on the special verdict."). After the jury returned its verdict, the parties realized that the DIV issue remained unresolved. The trial court looked for a solution. While considering the Milles' motion for directed verdict or new trial, the court specifically asked the parties to briefhow to resolve the DIV issue following thejury's verdict. Clerks Paper's (CP) at 532-33 ("Counsel to brief whether value of diminution in value claim/determination remains."). In doing so, the trial court reserved ruling on whether the result at trial was problematic because there had been no determination
on the DIV claim. Themajority suggests thatthe trial court considered, butrejected, aresolution under CR49(a). I disagree. The context in which the discussion ofCR49(a) arose shows that defense counsel arguedthe courtlackedthe authorityto decide anomitted issue oncethejuryverdictwas accepted. 3VerbatimTr. ofProceedings (VTP) (Apr. 30, 2013) at 352-53 ("[CR49(a)] says thejudge, the bench can then consider it, and mayconsiderit, butonlyinthelimitedwindow oftime. It's aprettylimitedwindow. It really is from the moment thejury delivers the verdict, up until the moment the

-2-Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)



### verdict is filed.") The trial court agreed, concluding that once the verdict was accepted, "that opportunity has come and gone." Id. 

### at 364. But, it is not fatal to a remedy under CR 49(a) that thejury 

### had completed its work ifthere remained an issue that was inadvertently omitted from its consideration. Contrary to the majority'sreading oftherecord, thetrial courtdidnotconcludethattheMilliesmade
a tactical decision to omit the DIV issue from any consideration. Immediately after the passage from the record quoted in the majority opinion, majority at 22 n.10, the court explained whyit thought the DIV question remainedunansweredbythejury's verdict. The court said, "[The jurors] weren't saying that there shouldn't be a recovery on the outstanding amount, but that wasn't given to them. They did not have that decision to be made." 3 VTP (Apr. 30, 2013) at 366. Given the trial court's apparent misunderstanding of its options under CR 49(a), the record does not support the majority's conclusion that the court exercised its authority and declined to award the Millies any DIV damages. See 

### majority at 22 n.9 ("The trial court already made a determination at the posttrial hearing on the DIV issue."). A close examination ofthe transcript from those proceedings reveals that the trial court believed that it lacked authority to decide the issue after the verdict-not that it had already decided the DIV issue. 3 VTP (Apr. 30, 2013) at 364 ("And I think actually you both agreed on this--that at this juncture there's nothing the court can do."). Therefore, in the interest ofdoing substantialjustice, I would remand to allow the trial court to exercise its authority under CR 49(a) and

-3-Millies, et ux. v. Landamerica Transnation, eta!., 91301-3 (Stephens, J. Dissenting)



### consider whether to determine the DIV as an 1ssue omitted from the jury's consideration.2

2 I find misleading the majority's unnecessary comment that Transnation has not "declined to paythe [DIV] damages it concedes the Millies suffered." Majority at 18 n.6. At oral argument, Transnation's counsel suggested the verdict now leaves the Millies unable to recover. JUSTICE GONZALEZ: Do you still concede that you owe the diminution in value to the insured here or do you thinkthat that obligationhas somehow expired? TRANSNATION ATTORNEY: I believe that from the onset ofthis case this was an accepted title insurance claim
.... JUSTICE GONZALEZ: Butyou still owe that amount? TRANSNATION ATTORNEY: I think the question that I'm trying to answer is two parts. One, yes it was an accepted title insurance claim, but whatever happened at trial, I believe, unfortunately, now has thrown up roadblocks for thepetitioner's to recover any ofthatmoneypotentiallyunder thepolicyeven thoughthepolicywas admitted as an accepted claim from its onset. Wash. Supreme Court oral argument, Millies v. Landamerica Transnation, No. 91301-3 (Oct. 27, 2015), at 16 min., 24 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

-4-Millies, et ux. v. Landamerica Transnation, et al., 91301-3 (Stephens, J. Dissenting)

5