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Sweet v. Roy4/26/2002
exclude them under Rule 403 because their prejudicial effect outweighed their probative value. Defendants' counsel never followed up to fill the foundational gap. With no other evidence to support it, the court dismissed the intentional-infliction-of-emotional-distress counterclaim.
Defendants claim that the court erred in excluding the tapes because the jury could infer that the ex-boyfriend acted as plaintiff's agent from the information he conveyed on the tapes. Although the ex-boyfriend never stated that he was acting for plaintiff, defendants argue that the information about defendants' alleged responsibility for the vandalism of plaintiff's mobile home must have come from plaintiff.
The trial court has broad discretion in determining the adequacy of the foundation for admitting evidence. See State v. Streich, 163 Vt. 331, 344, 658 A.2d 38, 47 (1995). As part of its discretion the court can require the foundational showing prior to the admission of the evidence or, alternatively, admit the evidence subject to the later foundational showing. V.R.E. 104(b). The court appropriately chose the former alternative in view of the abusive, threatening and profane nature of the content of the messages.
The court made a ruling that the evidence was irrelevant absent some showing that the ex-boyfriend was plaintiff's agent. Defendants never attempted to show agency beyond the content of the tape itself and plaintiff's testimony that she talked to the ex-boyfriend because he is her child's father. There was no showing that plaintiff knew of the threats or authorized them in any way. Again, the court had broad discretion in making its evidentiary ruling. See State v. Hooper, 151 Vt. 42, 46, 557 A.2d 880, 882 (1988). We think the court acted within that discretion in excluding the answering machine messages.
III.
A.
Defendants have raised three issues with respect to damages. First, they argue that the $10,000 compensatory damages award was excessive in light of the fact that plaintiff could itemize damages of only $418 for spoiled food and electrician's services.
The court charged the jury, without objection, that they could award damages for "inconvenience, mental suffering, emotional distress, worry, anxiety, humiliation, and indignity." The evidence was that plaintiff was unable to live in the mobile home for a number of days, first because of the broken windows, and then because of the absence of heat and electricity. She testified that after the cutting of the electric line, she "felt terrified," she was afraid of what would happen next, she had "sleepless nights," and she was "under a lot of stress."
In response to the defendants' motion to set aside the verdict as excessive, the court ruled that the award was within the jury's discretion, especially because of the evidence of emotional distress. We also agree with the court's analysis on this issue.
We recently summarized the law applicable to a challenge to a monetary verdict on the ground it was excessive:
"In evaluating this claim, we must consider the evidence in the light most favorable to the damages found by the jury and uphold the verdict if there was evidence reasonably supporting it." Winey v. William E. Dailey, Inc., 161 Vt. 129, 144, 636 A.2d 744, 753 (1993) (citation omitted). "To overturn a jury award, an appellant must demonstrate that the verdict was entirely excessive . . . ." Turgeon v. Schneider, 150 Vt. 268, 272, 553 A.2d 548, 551 (1988) (internal quotations omitted). In re Estate of Peters, 171 Vt. 381, 393, 765 A.2d 468, 477 (2000). We also noted that we will not interfere with a jury award where exact computation
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