NO. 94-561

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

ROY A. BAXTER,

Plaintiff and

v.

ARCHIE COCHRANE MOTORS,

a Montana corporation,

Defendant and

Appellant,

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Phillip R. Oliver, Oliver, Graves,

Toennis & Gustafson, Billings, Montana

For Respondent:

Rodney T. Hartman, Herndon, Hartman,

Sweeney & Halverson, Billings, Montana

Filed:

Submitted on Briefs: March 30, 1995

Decided: May 23, 1995

Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Roy A. Baxter appeals from an order of the

Thirteenth Judicial District Court, Yellowstone County, granting a

new trial on the motion of respondent Archie Cochrane Motors, Inc.,

following a jury verdict and award in favor of appellant.

We reverse.

The dispositive issues on appeal are:

1 . Did the District Court err in holding that a new trial

was warranted on the cumulative affect of six errors, none of which

individually warranted a new trial?

2 . Did the District Court err in ordering sua sponte a new

trial on its error on jury instructions when it did not allow

appellant the opportunity for a hearing on the issue raised by the

District Court?

In April 1992, respondent employed appellant as an automobile

salesperson. On January 4, 1993, respondent terminated appellant's

employment for "continued inability to correctly interact with team

members and customers." On August 18, 1993, appellant filed a

wrongful termination action against respondent. The jury returned

a verdict in favor of appellant and awarded him $120,000 in

damages. On July 12, 1994, respondent filed a motion for a new

trial or a judgment notwithstanding the verdict. On August 15,

1994, the District Court issued its order granting respondent's

motion for a new trial. It is from the District Court's order that

appellant appeals.

2
ISSUE 1

Did the District Court err in holding that a new trial was

warranted on the cumulative effect of six alleged errors, none of

which individually warranted a new trial?

The decision to grant or deny a new trial is within the sound

discretion of the trial judge and will not be disturbed absent a

showing of manifest abuse of that discretion. Jim's Excavating

Service, Inc. v. HKM Associates (19941, 265 Mont. 494, 511, 878

P.2d 248, 259.

A new trial may be granted for any of the reasons set forth in

§ 25-11-102, MCA, which materially affect the substantial rights of

the aggrieved party. See Rule 59, M.R.Civ.P. Of the reasons set

forth in 5 25-11-102, MCA, respondent relied on the following:

(1) irregularity in the proceedings of the court,

jury, or adverse party or any order of the court or abuse

of discretion by which either party was prevented from

having a fair trial;

i5j . .excessive damages appearing to have been given

under the influence of passion or prejudice;

(6) insufficiency of the evidence to justify the

verdict or other decision or that it is against law;

(7) error in law occurring at the trial and

excepted to by the party making the application.

In its brief in support of its motion for a new trial,

respondent alleged seven errors which, it argued, required the

District Court to grant a new trial whether the errors were viewed

individually or cumulatively. Specifically, respondent alleged

that:

1 . [App;;;ant's] ,counsel mistakenly informed the jury

during openmg statement that the Montana

3
Constitution endowed [appellant] with a right to maintain

employment;

2 . [Appellant's1 counsel impermissibly argued his case

in opening statement Over [respondent's] objection

despite being admonished not to by the court;

3 . [Appellant's] counsel constantly treated witnesses

in a argumentative style throughout the trial

necessitating [respondent's1 counsel ( s repeated

objections which were regularly sustained, but left the

jury as a result thereof overly sympathetic and

prejudiced in [appellant's] favor;

4 . [Appellant's] witness Carol Kuchera and

[appellant's] counsel wept during the trial in full view

of the jury in an effort to inflame jury passion,

prejudice, and sympathy;

5 . [Appellant's] counsel elicited testimony from

witness Deb Allen that Chuck Gallacher's bad language

ceased or improved following the filing of this lawsuit

which gave the jury the mistaken impression that

[respondent] had thereby admitted liability in this case;

6 . Despite several discussions concerning irrelevant

and prejudicial "other wrongful termination cases," and

several successful objections to [appellant's] attempts

to introduce evidence of such, [appellant's] counsel

himself mentioned the Carol Kuchera case. That case has

not been to trial. Carol Kuchera admitted under oath to

resume fraud and job application fraud. The injection of

her case into [appellant's] case was prejudicial to the

highest degree outweighing any possible probative value

to the jury; and

7 . There was absolutely no credible fact evidence or

expert witness opinion evidence that supports the award

to [appellant] by the jury of $120,000 in this case. The

damage award is not supported by the evidence of the

case.

The District Court concluded that while "items one through six

of the things [respondent] complain[edl of in his brief . . did

occur . . [alny one or two of these irregularities probably d[idl

not really justify a new trial. The District Court was unwilling

to order a mistrial when the irregularities were addressed one by

4
one at trial, but concluded that the cumulative effect of the

irregularities exceeds the bounds of a fair trial.

Appellant argues that the District Court abused its discretion

by granting respondent's motion for a new trial because the errors

either did not occur, were not errors, or even if they were errors,

they were harmless and did not substantially affect respondent's

right to a fair trial. In addition, appellant argues that the

District Court erred by concluding that the cumulative effect of

six harmless errors prejudiced respondent's right to a fair trial.

We agree with the District Court's conclusion that the first

six errors did not justify a new trial when considered

individually. We also agree with the District Court's refusal to

conclude that the jury award in favor of appellant was error.

However, we disagree with the District Court's application of the

doctrine of cumulative error in a civil case. To date, this Court

has applied the doctrine of cumulative error exclusively in

criminal cases. We decline to extend it to civil cases based on

the facts of this case.

We conclude that the District Court erred in holding that a

new trial was warranted on the cumulative affect of six errors,

none of which individually warranted a new trial.

ISSUE 2

Did the District Court err in ordering sua sponte a new trial

on its error on jury instructions when it did not allow appellant

the opportunity for a hearing on the issue raised by the District

Court?

5
We apply the same standard of review, manifest abuse of

discretion, to Issue 2 that we applied to Issue I.

In its order granting a new trial, the District Court

concluded that "even though the parties did not complain or offer

such an instruction, the Court should have more clearly instructed

the jury concerning the elements necessary for plaintiff to prove

in order to recover and/or the right defendant has in discharging

employees for any job-related basis."

While a district court may grant a motion for a new trial for

a reason not set forth in the motion, it may do so only after

giving the parties notice and an opportunity to be heard on the

matter. Rule 59(e), P4.R.Civ.P. Neither party objected to the jury

instructions given by the District Court, nor did respondent raise

this issue in its motion for a new trial. The issue of inadequate

jury instructions was raised sua sponte by the District Court.

Neither party received notice of this matter, and consequently,

neither party was given the opportunity to brief or argue the

matter.

As a result, we conclude that the District Court erred in

ordering a new trial on jury instructions without giving the

parties notice and an opportunity to be heard.

We hold that the District Court's decision to grant a new

trial was a manifest abuse of discretion.

We reverse.

Justice &d~,

6
We concur: