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State v. United States Steel Corp.6/24/1996
Generally, an improper appeal by an opposing party to the prejudices and sympathies of the jury is a ground for granting a motion for a new trial where 1) the moving party has been injured by the improper appeal; 2) the moving party took proper steps to preserve his [or her] right to relief ; 3) the moving party sought to have the harmful effect of the improper appeal remedied by an appropriate jury instruction; and 4) the effect of the improper appeal was not adequately dissipated by the steps taken, 58 Am. Jur. 2d New Trial § 59 (1971); cf. Nelson v. Hartman, 199 Mont. 295, 648 P.2d 1176 (Mont. 1982); Philpott v. Jordan, 572 P.2d 1030, 280 Ore. 803 (1977); Bachran v. Morishige, 52 Haw. 61, 469 P.2d 808 (1970); or 5) the error was so fundamental that gross inJustice would result if a new trial is not granted. 11 Wright & Miller, Federal Practice and Procedure: Civil § 2805 (1973).
These requirements prevent a party "from gambling on the outcome of the jury's deliberations while secretly preserving the error to be raised on a motion for a new trial in the event of an unfavorable verdict." Weathers v. Kaiser Foundation Hospitals, 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 519, 485 P.2d 1132, 1135 (1971).
With respect to the allegedly improper remarks by [defendant's] counsel during opening statement, [plaintiff] did not object to them prior to the verdict. With respect to [defendant's] allegedly improper testimony, [plaintiff's] only objection prior to the verdict was made on the ground or relevancy. Moreover, [plaintiff] did not promptly seek to have the alleged harmful effect of the allegedly improper remarks and testimony overcome by means of an instruction to the jury or a motion for a mistrial.
Leyson v. Steuermann, 5 Haw. App. 504, 510-11, 705 P.2d 37, 43 (1985) (emphases added), overruled on other grounds, Bernard v. Char, 79 Haw. 362, 903 P.2d 667 (1995).
We therefore hold that the trial court did not abuse its discretion by denying the state's motion for new trial and for sanctions based on USX's discovery violations.
B. USX's Cross-Appeal
USX argues on its cross-appeal that the trial court erred in denying its motion for attorneys' fees on the basis that HRS § 607-14 does not apply to the state. However, because we vacate the judgment in favor of USX and remand for further proceedings, we need not reach USX's arguments regarding the propriety of the trial court's denial of USX's motion for attorneys' fees.
The obligation to pay attorneys' fees under HRS § 607-14 applies only to "losing parties," and, in view of our remand of this case, the state cannot be considered the "losing party." See Sapp v. Wong, 62 Haw. 34, 42, 609 P.2d 137, 142 (1980) ("In view of what we have said, we must reverse this case on appeal, vacate the judgment and remand for a new trial. Hence, appellants cannot at this time be considered to be the losing parties, even if we assume that appellant's amended complaint is an action in the nature of assumpsit.").
III. Conclusion
For the foregoing reasons, the circuit court's order granting USX's motion to dismiss the state's negligent misrepresentation claim and the judgment in favor of USX on the state's claim for unfair or deceptive acts or practices in the conduct of any trade or commerce are vacated, and the case is remanded for further proceedings. The judgment of the circuit court is otherwise affirmed.
Ronald T.Y. Moon
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