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Taylor v. Lapomarda
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 216
Docket:  	Cum-97-195
Argued:  	October 10, 1997	
Decided:	November 7, 1997

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, and LIPEZ, JJ.

BROOKE TAYLOR v. PASQUALE LAPOMARDA, JR., d/b/a THE CASA COMPANY
RUDMAN, J.

	[¶1]  Brooke Taylor appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) denying her motion for a
mistrial and for a new trial or, in the alternative, for entry of a judgment
conforming to the jury's intent, to correct the "clerical error" of failing to
enter a judgment consistent with the jury's intent, or for additur to increase
the verdict to an amount conforming to the jury's intent.  On appeal, Taylor
contends that evidence that the jury misunderstood the comparative
negligence portion of the verdict form, obtained by the court after the jury's
discharge, mandates a mistrial and a new trial.  We disagree and affirm the
judgment.
I.
	[¶2]  Taylor initiated this negligence action after she fell from a
staircase at property maintained by Pasquale Lapomarda, Jr.  The trial court
instructed the jury on comparative negligence and the use of the special
verdict form.{1}  Taylor has not contested either the sufficiency of the
instructions of law or the court's directions as to the use of the jury verdict
form.
	[¶3]  The original verdict form returned by the jury stated that
Taylor's negligence was equal to or greater than Lapomarda's negligence.  
However, contrary to the judge's instructions and to the directions printed
on the verdict form, the jury proceeded to answer questions four and five,{2}
stating that Taylor's total damages were $8,500 and that her damages minus
a sum for her contributory negligence equalled $500.
	[¶4]  Noting the inconsistency in the verdict form, Taylor moved for a
mistrial.  The court declined to grant a mistrial, choosing to reinstruct the
jury and to give them a second verdict form.  The jury's responses to the
second form were identical to its responses to the first, except for its
statement that Taylor's negligence was not equal to or greater than
Lapomarda's negligence.  After the reading of this verdict, the court asked
the parties if they had "anything further before the jury is discharged."  Both
parties responded in the negative.  The court then discharged the jury, and
the jury left the courtroom.  After the jury was discharged, however, Taylor
again moved for a mistrial, contending that because the jury had returned
two verdicts "which are entirely inconsistent with each other," it must have
misapprehended the court's instructions.  Before the court could rule on
this motion, the jury officer interrupted to inform the court that the jury
wished to speak to it.  The jury officer indicated that, after the jury had left
the courtroom, members of the jury stated that they had intended to award
Taylor $8,000 and that they had "messed up really bad."  In response to this
information, the court sent the jury a note stating:
  
	Members of the jury, I understand from the deputy that you
	would like to speak to me.  Please write down on paper anything
	you would like me to know.  Thank you.  /s/ Justice Mills. 
 
	Subsequently, the jury replied:

	Your honor:
	We the jury feel that question #5 is written to mean 2
things; either the net amount of the award or the amount of
damages deductible for Plaintiff's negligence.  
	Our intent is to award Brooke Taylor a net amount after
deducting her negligence from Mr. Lapomarda's of:

	$8,500		- 	$500 		=	$8,000
	(Mr. Lapomarda)		(Ms. Taylor)		Net to Ms. Taylor 

Taylor then reiterated her motion for a mistrial, which the court denied.  
The court later entered a judgment for Taylor in the amount of $0.{3}   Taylor
then moved for a mistrial and for a new trial or, in the alternative, "for the
entry of judgment based on the jury's note to the presiding Justice, or to
correct a clerical error pursuant to M.R. Civ. P. 60(a) of failing to enter
judgment consistent with the jury's intent, or for additur to increase the
judgment in plaintiff's favor to $8,000, as the jury apparently intended." 
The court denied Taylor's motion, stating, "the verdict in this case should
not be disturbed as a result of the communication from the jury after it was
discharged."  This appeal followed.    
II.
	[¶5]  We review the denial of a motion for a mistrial for an abuse of
discretion.  Sheltra v. Rochefort, 667 A.2d 868, 871 (Me. 1995).  "A trial
court's discretion to grant a motion for a mistrial is limited to those rare
cases where no remedy short of a new trial will satisfy the interests of
justice."  Id. (citations omitted).  Similarly, "[t]he trial court's disposition of
a motion for a new trial will be upheld unless shown to be a 'clear and
manifest abuse of discretion.'"  LeClair v. Commercial Union Ins. Co., 679
A.2d 90, 92 (Me. 1996) (quoting McCain Foods, Inc. v. Gervais, 657 A.2d
782, 783 (Me. 1995)).
	[¶6]  Contrary to Taylor's contentions, the trial court did not exceed
the bounds of its discretion by not granting her motion for a mistrial and for
a new trial.  Taylor argues that because the answers reflected on the first
verdict form were internally inconsistent, because the answers reflected on
the second verdict form were inconsistent with the answers on the first
verdict form, and because the jury's note demonstrates an intent
inconsistent with both verdicts, no means short of a new trial existed to
reconcile the jury's "diverging views of the case."  This argument
misperceives the trial court's limited authority to inquire into a jury verdict
following the discharge of the jury.   Maine Rule of Evidence 606(b) states:
  
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as
influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection
therewith, except that a juror may testify on the question
whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence
was improperly brought to bear upon any juror.  Nor may his
affidavit or evidence of any statement by him concerning a
matter about which he would be precluded from testifying be
received.

This rule codifies the "settled doctrine of this State" that evidence of juror
statements "may be offered only to show external misconduct of individual
jurors or the exertion of outside influence upon the jury."  Marr v. Shores,
495 A.2d 1202, 1204 (Me. 1985)  (citations omitted).  "This rule excludes  
. . . testimony from a juror about his or her own thought processes in
arriving at the verdict.  A juror cannot testify that the juror misunderstood
the evidence or the instruction . . . If the law were to allow a juror to testify
to these matters having no verifiable external manifestations, no verdict
would be safe."  Field & Murray, Maine Evidence § 606.2 at 248-49 (4th ed.
1997).  
	[¶7]  Taylor does not allege that the jury's verdict was the product of 
external juror misconduct or an outside influence.  Her basis for challenging
the verdict -- that the jury did not understand how to calculate comparative
negligence using the verdict form -- falls outside the limited inquiry into
jury verdicts permitted by Rule 606(b).  Nevertheless, Taylor urges us to
engage in a fact-specific inquiry and to find that, despite the jury's
discharge, it was "still together in the courthouse functioning as a jury"
when it sent its note to the court.  Such an inquiry would be a marked
departure from our prior decisions and one that we deem neither wise nor
desirable.  
	[¶8]  In Patterson v. Rossignol, we articulated the public policy
considerations that militate against permitting jurors to impeach their
verdicts:

(1) the need for stability of verdicts; (2) the need to conclude
litigation and desire to prevent any prolongation thereof; (3) the
need to protect jurors in their communications to fellow jurors
made in the confidence of secrecy of the jury room; (4) the need
to save jurors harmless from tampering and harassment by
disappointed litigants; (5) the need to foreclose jurors from
abetting the setting aside of verdicts to which they may have
agreed reluctantly in the first place or about which they may in
the light of subsequent developments have doubts or a change of
attitude.

245 A.2d 852, 857 (Me. 1968).  Subsequently, in Cyr v. Michaud, we
determined that these policy considerations "apply to prohibit correcting a
mistake in the recording of a verdict by using evidence, obtained after juror
discharge, to establish that the jury misunderstood the verdict form
provided to them."  454 A.2d 1376, 1383 (Me. 1983).{4}  
	[¶9]  The facts of Cyr are very similar to the facts of this case.  In Cyr,
the jury found that the plaintiff's total damages were $100,000 and, in
response to the question, "[t]o what dollar and cents amounts do you deem
it just and equitable having regard to the plaintiff, Mary Ann Cyr's fault, to
reduce the total damages," awarded the plaintiff $80,000.  Id. at 1379. 
After the jury's discharge, a third person informed the court that one of the
jurors had indicated that the jury had intended to reduce the plaintiff's
damages by $80,000 and thus only to award her $20,000.  Id. at 1381. 
Subsequently, the defendant secured affidavits from all of the jurors stating
that their verdict was to award the plaintiff $20,000.  Id. at 1379, 1381.  We
found "that the policy considerations in favor of finality of a judgment and
especially those in preventing juror harassment outweigh any benefit to be
obtained by permitting inquiry into the juror's thought processes after the
jury has been discharged."  Id. at 1383.  To this end, we observed:

[t]o admit affidavits of jurors to correct a mistake in recording
the verdict would permit all losing parties to attack verdicts,
thereby vitiating the finality and definitiveness of a judgment. 
Every dissatisfied litigant would be able to attempt to effectuate a
revision of a verdict.  To encourage parties to seek affidavits
from jurors after they had been discharged unquestionably
exposes jurors to harassment and to annoyance . . . In addition,
after being discharged, jurors may talk with persons who may
express an approval or disapproval of the jury's verdict.  After
such discussion, the juror may wish he or she had voted
differently in the deliberations of the jury.  The juror may then
be tempted to say that he did vote differently, and that either
the foreman incorrectly recorded his verdict or that he
misunderstood the verdict form.

Id. at 1383 (citations omitted).
	[¶10]  In this case, the Superior Court properly determined that
grounds for a mistrial did not exist.  When the jury's first verdict form
revealed that it had misunderstood the court's instructions, the court acted
within the bounds of its discretion by reinstructing the jury.  Then, before
excusing the jury after it returned the second verdict, the court gave both
parties the opportunity to inquire further of the jury.  Taylor made no
further inquiry of the jury; nor did she ask to approach sidebar and renew
her request for a mistrial; rather, she chose to wait until the jury had left
the courtroom to move for a mistrial.  At that point, when the jury officer
informed the court that the jurors wished to speak to it, the court agreed to
receive a note from the discharged jury.  In so doing, the court appropriately
made sure that the jury's misgivings were not the product of an outside
influence or of external juror misconduct, which pursuant to Rule 606(b)
might have required a mistrial.  Upon verifying that the jury's concern
stemmed not from outside influence or from external juror misconduct, the
court properly applied our decision in Cyr and declined to disturb the
verdict.  Throughout, the court acted well within its discretion.
III.
	[¶11]  Taylor's motion for entry of a judgment conforming to the jury's
intent is not a motion familiar to this Court.  Inasmuch as we can discern, it
represents an attempt to obtain relief from judgment pursuant to M.R. Civ. P.
60(b).  We review the denial of relief pursuant to Rule 60(b) for an abuse of
discretion.  New Maine Nat'l Bank v. Nemon, 588 A.2d 1191, 1193-94 (Me.
1991).  Because Cyr prohibits "correcting a mistake in the recording of a
verdict by using evidence, obtained after juror discharge, to establish that
the jury misunderstood the verdict form provided to them," the trial court
did not exceed the bounds of its discretion by not entering a judgment
conforming to the jury's post-discharge note.  See Cyr, 454 A.2d at 1383.
IV.
	[¶12]  Taylor's motion to correct the "clerical error" of failing to
enter a judgment consistent with the jury's intent misconstrues M.R. Civ. P.
60(a).  Rule 60(a) states, in relevant part:  "Clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from oversight
or omission may be corrected by the court at any time of its own initiative or
on the motion of any party . . . ."  This rule is limited to correcting clerical
errors.  Daniel v. Palmer, 580 A.2d 689, 689 (Me. 1990).  Taylor does not
contend that the judgment entered by the court failed to reflect the second
verdict form returned by the jury; as such, she has not stated a claim for
relief under Rule 60(a).  See id. 
V.
	[¶13]  Lastly, the Superior Court acted well within its discretion by
denying Taylor's motion for additur.
 
The law is well established that the assessment of damages is
the sole province of the jury, and the amount fixed must stand
unless it is apparent from the record that the jury acted under
some bias, prejudice or improper influence, or made some
mistake of law or fact.  We have noted that the trial court is in a
far better position than an appellate court to make this
determination.  The trial court's denial of a motion for additur to
a verdict . . . will be reversed only if we determine that the
decision was a 'clear and manifest abuse of discretion.'  In
reaching our determination, we consider the evidence in the
light most favorable to the non-moving party. . . .

LeFay v. Coopersmith, 576 A.2d 192, 195 (Me. 1990) (citations omitted).   
Whereas we normally would evaluate the evidence presented at trial, in the
light most favorable to Lapomarda, to determine if the Superior Court
exceeded the bounds of its discretion by denying Taylor's motion, Taylor's
failure to include a transcript of the trial proceedings in the record on
appeal precludes us from doing so.  Because Cyr dictates that we not
examine the jury's post-discharge note, we lack any evidentiary basis on
which to determine that the Superior Court exceeded the bounds of its
discretion. 
	The entry is:
Judgment affirmed.

Attorneys for plaintiff: Paul F. Macri, Esq., (orally) William D. Robitzek, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 John G. Connor, Esq. 415 Congress Street, Suite 304 Portland, ME 04101 Attorney for defentdant: Jonathan W. Brogan, Esq., (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-04600
FOOTNOTES******************************** {1} The instructions, in relevant part, were: After comparing the negligence of the plaintiff and the defendant, if you find that the plaintiff was equally or more responsible for the damages she sustained then [sic] was the defendan