Henson v. Turner

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NOT DESIGNATED FOR PUBLICATION

No. 113,694

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUDY A. HENSON,
Appellant,

v.

KENNETH W. TURNER,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHALMERS, judge. Opinion filed June 17, 2016.
Affirmed.

Melinda G. Young, of Bretz & Young, LLC, of Hutchinson, for appellant.

Alan R. Pfaff and Nathan R. Elliott, of Withers, Gough, Pike, Pfaff & Peterson, LLC, of Wichita,
for appellee.

Before BRUNS, P.J., POWELL and GARDNER, JJ.

Per Curiam: Judy A. Henson appeals the district court's order denying her motion
for a new trial following a jury trial in this personal injury action. She asserts that the
jury's award of $5,000 in medical expenses and noneconomic losses for the injuries she
sustained in a motor vehicle accident is inadequate and contrary to the evidence. But
Henson has failed to show from the record that the verdict was either inadequate or
contrary to the evidence. Although Henson further contends that the district court should
have granted her a new trial because the jury disregarded its instructions during
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deliberations, she has failed to establish that the jury consciously ignored the instructions.
Accordingly, we affirm the jury's verdict and the district court's posttrial rulings.

FACTS

On July 17, 2012, Henson filed a petition in Reno County District Court alleging
that about 2 years earlier, Kenneth Turner had ran a red light while driving a vehicle and
caused a collision with a vehicle she was driving. In addition, Henson alleged that she
suffered past damages and would continue to suffer damages in the future as a result of
the accident. In his answer, Turner admitted that the accident had occurred but denied
that he was at fault or caused the damages claimed by Henson.

After Henson and Turner completed discovery, the district court entered a pretrial
conference order on January 10, 2014. In the order, the district court stated that the
following issues of fact should be resolved at trial: (1) whether Turner negligently
operated his motor vehicle; (2) whether Turner caused a collision with Henson; (3) the
nature and extent of Henson's damages; (4) the parties' comparative fault; (5) Henson's
recoverable damages; and (6) whether Henson failed to mitigate her damages. Thereafter,
on July 1, 2014, the parties filed their proposed jury instructions with the district court.

A 3-day jury trial commenced on July 8, 2014. Unfortunately, the record on appeal
does not contain the transcript from the first 2 days of the jury trial. Rather, the record
includes only a transcript from the third day of trial, which covered the jury-instruction
conference, the reading of the instructions to the jury, the parties' closing arguments, and
the jury's verdict. Thus, it is impossible to determine from the record on appeal what
evidence was presented at trial.

We can glean from the record that the district court read the jury the following
instructions in addition to several others:
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"Instruction Number 2. You must consider and weigh only evidence which was
admitted during the trial including exhibits, admissions, stipulations and witness
testimony either in person or by deposition.
. . . .
"Instruction Number 5. You must decide whether the testimony of each witness
is believable and what weight to give that testimony. In making these decisions you have
a right to use your common knowledge and experience.
. . . .
"Instruction Number 13. You must decide this case by comparing the fault of the
parties. In doing so you will need to know the meaning of the terms negligence and fault.
"Negligence is a lack of reasonable care. It is the failure of a person to do
something that a reasonable person would do or it is doing something that a reasonable
person would not do under the same circumstances. A party is at fault when he or she is
negligent and that negligence caused or contributed to the event which brought about the
claim for damages.
"I am required to reduce the amount of damages you may find for any party . . .
by the percentage of fault, if any, that you find is attributable to the party. A party will be
able to recover damages only if that party's fault is less than 50 percent of the total fault
assigned. A party will not be able to recover damages, however, if that party's fault is 50
percent or more.
. . . .
"Instruction Number 16. When answering the questions on the verdict form you
should keep the following things in mind. Fault. One, your first obligation as to
determine if any party is at fault. Two, if you decide that any person is at fault you must
then assign a percentage of fault to each party you find to be at fault. Three, for a person
not at fault show zero percent on the verdict form. Four, if you find any person at fault,
show 1 percent to 100 percent on the verdict form for that person. Five, if one or more
persons are assigned fault the total of all faults must be 100 percent.
"Amount of damages. One, you are to determine the total amount of damages of
each party claiming damages. Two, your percentage of damages must be made without
regard to the percentage of fault you may have assigned to that party. Three, the court
will make any reduction of the damages necessary for the assigned percentage of fault.
You should not do so.

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"You may assign fault to Kenneth Turner, Judy Henson. The person you may
find received damages is Judy Henson."

In addition, the second page of the verdict form asked the jury to list damages as
follows:

"3. Without considering the percentage of fault set forth in question 2, what
damages do you find were sustained by the plaintiff, Judy Henson?

"A. Noneconomic loss to date $_________
"B. Future noneconomic loss $_________
"C. Medical expenses to date $_________"

During deliberations, the jury submitted the following question to the district
court: "With this being a 'No Fault State' where [were] the insurance companies in all
this as far as medical insurance reimbursement?" In response, the parties agreed upon the
following answer to be given by the district court: "You are not to consider the subject of
insurance in arriving at your verdict." About 1 hour later, the jury submitted another
question: "If the defendant is found to be 100 percent responsible would it affect the
dollar percentage of monetary damages that we have agreed on? Would 80 percent mean
he would only be responsible for 80 percent of found damages?" The parties agreed that
the district court should simply respond: "Please refer to Instructions 13 and 16."

Shortly thereafter, the jury indicated that it had reached a verdict. After
reconvening, however, the district court discovered that there was an amount awarded for
economic damages but nothing for noneconomic damages. After conferring with both
attorneys at the bench, the district judge explained to the jury, "[I]f you find economic
loss[,] you must make a finding as to some amount of noneconomic loss under one. So
I'm going to send you back to deliberate on that." Eight minutes later, the jury submitted
a third question. Evidently referencing the verdict form, the jury asked: "Should
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noneconomic loss be for both A [Noneconomic loss to date] and B [Future noneconomic
loss] when medical expenses are found." The parties agreed that the district court should
respond by stating, "Damages must be awarded for A. Damages for B is left for your
determination."

Ultimately, the jury returned a verdict in favor of Henson. Specifically, the jury
found that Turner was 90 percent at fault and Henson was 10 percent at fault. The jury
awarded Henson $4,879.25 in medical expenses to date, $120.75 in noneconomic losses
to date, and nothing for future noneconomic losses. Thus, the total award was $5,000.

On September 2, 2014, the district court entered an order of judgment
memorializing the jury's verdict, and a few weeks later, Henson filed a timely motion for
new trial. In her motion, she argued that the jury disregarded the district court's
instructions and that the verdict was inadequate as well as contrary to the evidence
presented at trial. In response, Turner argued that the verdict was consistent with the
evidence and there was no reason to believe that the jury disregarded the district court's
instructions. At a hearing on the motion held on March 6, 2015, the district court denied
Henson's motion for a new trial, finding that the jury followed the law and the verdict
was not the result of any passion or prejudice. The district court further found that the
jury's questions were an indication of its efforts to comprehend the instructions rather
than its intention to disregard them. Thereafter, Henson filed a timely notice of appeal.

ANALYSIS

Henson contends on appeal that the district court erred by not granting her motion
for a new trial. Whether a district court grants a new trial under K.S.A. 2015 Supp. 60-
259(a) is a matter of discretion. As such, we will not reverse a ruling on a motion for new
trial unless there is a showing that the district court abused its discretion. Miller v.
Johnson, 295 Kan. 636, 684-85, 289 P.3d 1098 (2012). A district court abuses its
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discretion when its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an
error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).

Before reaching the merits of Henson's claims, we will briefly review some long-
standing rules of appellate review:

"1. The rule of this jurisdiction is that a presumption of validity attaches to a
judgment of the district court until the contrary is shown and that before this court will set
aside a judgment it must be affirmatively made to appear that such judgment is
erroneous. [Citations omitted.]
"2. The burden is upon an appellant to designate a record sufficient to present its
points to this court, and to establish the claimed error. [Citation omitted.]
"3. On appeal, error below is never presumed and the burden is on the appellant
to make it affirmatively appear. [Citations omitted.]
"4. It is incumbent upon the appellant to include in the record on appeal any
matter upon which [the appellant] wishes to base a claim of error. [Citations omitted.]
"5. Where an appellant has failed to procure an official transcript or abstract the
testimony of record or reconstruct it in some accepted manner, this court will not review
any action of the trial court requiring an examination of the evidence. [Citation
omitted.]" (Emphasis added.) First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595,
602-03, 647 P.2d 1268 (1982).

The rules discussed in Lygrisse are particularly salient here. In her brief, Henson
attempts to summarize the evidence admitted at trial, but she fails to cite to the record.
See Supreme Court Rule 6.02(a)(4) (2015 Kan. Ct. R. Annot. 41) ("The court may
presume that a factual statement made without a reference to volume and page number
has no support in the record on appeal."). Moreover, Henson neglected to explain this
rather apparent problem in her initial brief or—since Turner raised the point in his brief—
in a reply brief. Because Henson failed to provide a transcript of the first 2 days of the
jury trial, it is impossible for us to determine whether the verdict was contrary to the
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evidence. See State v. Auch, 39 Kan. App. 2d 512, 519, 185 P.3d 935 (2008); McBride
Electric, Inc. v. Putt's Tuff, Inc., 9 Kan. App. 2d 548, 550-52, 685 P.2d 316 (1984).
Henson, therefore, cannot carry her burden to designate facts in the record to support her
claims based on the evidence admitted at trial. See Friedman v. Kansas State Bd. of
Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013); Hajda v. University of Kansas
Hosp. Auth., 51 Kan. App. 2d 761, 768-69, 356 P.3d 1 (2015), rev. denied 303 Kan. ___
(February 18, 2016).

Henson also asserts that the jury disregarded the district court's instructions. It is
important to note that she does not challenge the contents of the jury instructions or the
agreed-upon answers to the jury's questions. Nor does she challenge the manner in which
the district court provided the answers to the jury. Instead, Henson asserts that we should
find that the jury disregarded the instructions based on (1) the $120.75 award of
noneconomic damages and (2) the fact that the jury asked three questions. More
specifically, she argues that "[t]he repeated questions from the jury and the verdict itself
shows [sic] that this jury failed to comprehend, or even read, the trial court's instructions"
and "[h]ad the jury truly consider[ed] [Henson's] non-economic loss and the amount of
money that would reasonably compensate her for her injuries and losses resulting from
the wreck in question, the jury would not have simply rounded its verdict up to a whole
number." We disagree.

K.S.A. 2015 Supp. 60-259(a)(1) sets forth the following exclusive list of grounds
for which the district court may grant a new trial:

"(A) Abuse of discretion by the court, misconduct by the jury or an opposing
party, accident or surprise that ordinary prudence could not have guarded against, or
because the party was not afforded a reasonable opportunity to present its evidence and
be heard on the merits of the case;
"(B) erroneous rulings or instructions by the court;
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"(C) the verdict, report or decision was given under the influence of passion or
prejudice;
"(D) the verdict, report or decision is in whole or in part contrary to the evidence;
"(E) newly discovered evidence that is material for the moving party which it
could not, with reasonable diligence, have discovered and produced at the trial; or
"(F) the verdict, report or decision was procured by corruption of the party
obtaining it, and in this case, the new trial must be granted as a matter of right, and all
costs incurred up to the time of granting the new trial must be charged to the party
obtaining the verdict, report or decision."

See Sterba v. Jay, 249 Kan. 270, 274, 816 P.2d 379 (1991).

Henson does not specify which of these grounds justifies a new trial. Based on her
assertions, however, the only grounds Henson could be claiming are that there was some
sort of misconduct by the jury that the verdict was given under the influence of passion or
prejudice, or—as she has alleged—that the verdict was contrary to the evidence. See
K.S.A. 2015 Supp. 60-259(a)(1)(A), (C), (D). Evidently, the district court interpreted her
arguments in the same manner because it found that there was not "any passion or
prejudice" or failure to follow the law.

In general, courts presume that a jury properly calculated damages and will set
aside a verdict as contrary to the law only when, under the evidence given, the verdict is
contrary to the jury instructions. City of Mission Hills v. Sexton, 284 Kan. 414, 421-22,
160 P.3d 812 (2007). To overcome this presumption, the party challenging the verdict
must provide more than mere allegations. Instead, he or she must present evidence that
"'the jury consciously conspired to undermine the jury process by ignoring the
instructions.'" 284 Kan. at 422 (quoting City of Ottawa v. Heathman, 236 Kan. 417, 426,
690 P.2d 1375 [1984]). Moreover, juror misconduct is not grounds for a new trial unless
the party claiming error shows that the misconduct substantially prejudiced a party's
rights. Duncan v. West Wichita Family Physicians, 43 Kan. App. 2d 111, 114, 221 P.3d
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630 (2010), rev. denied 291 Kan. 910 (2011); Butler v. HCA Health Svcs. of Kansas, Inc.,
27 Kan. App. 2d 403, 408, 6 P.3d 871, rev. denied 268 Kan. 885 (1999).

Here, Henson only makes bare allegations that the jury must have disregarded the
instructions. Her first point that the jury did not "truly consider [her] non-economic loss
and the amount of money that would reasonably compensate her for her injuries" is
necessarily based on the testimony and evidence admitted at trial. As previously stated,
Henson has not included the transcript of the evidence presented at trial, much less shown
how the jury ignored the evidence or the instructions given by the district court. Thus, we
lack a sufficient record to make such a judgment. See McBride Electric, Inc., 9 Kan. App.
2d at 551-52.

Henson also claims that the jury must have ignored the instructions because of the
questions it asked. The district court, however, believed that the jury's questions
evidenced a desire to better understand the instructions rather than a desire to ignore
them. We find this analysis to be reasonable. Furthermore, Henson's point is an invitation
to speculate about the jury's deliberations or speculate about its mental processes, which
is not the proper function of this court. See State v. King, 297 Kan. 955, 969, 305 P.3d
641 (2013).

A review of the limited record we have been provided on appeal reveals that the
jury's questions did not reflect a disregard of the jury instructions. As the district court
noted in its decision to deny a new trial, Henson's attorney "spent a great deal of time"
during voir dire talking to the panel of potential jurors about insurance. See K.S.A. 60-
454; Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 629, 244 P.3d 642 (2010)
(stating that Kansas has a "long-standing position that insurance should not be interjected
in a trial"). As such, it is not surprising that the jury may have had a question about the
role of insurance during deliberations. Moreover, the parties agreed to have the district
court properly respond to the insurance question by telling the jurors not to consider
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insurance in reaching their decision. See Unruh v. Purina Mills, 289 Kan. 1185, 1198-99,
221 P.3d 1130 (2009). Therefore, we do not find that Henson has shown an intent on the
part of the jury to contravene the instructions.

In summary, the district court appropriately instructed the jury to decide the case
based on the evidence presented at trial, and we presume that the jurors follow this
instruction. State v. Sisson, 302 Kan. 123, 131, 351 P.3d 1235 (2015); City of Mission
Hills, 284 Kan. at 438. Furthermore, we find that the sparse record on appeal precludes
Henson from establishing that the jury undermined the jury process by consciously
ignoring the instructions given by the district court. By the same token, Henson has failed
to establish that there was any juror misconduct—much less any misconduct that
substantially prejudiced her rights. We, therefore, conclude that the district court did not
abuse its discretion in denying Henson's motion for a new trial.

Affirmed.