Opinion
C.A. No. 02C-12-003WLW.
Submitted: December 27, 2007.
Decided: March 31, 2008, Revised: April 16, 2008.
Upon Plaintiffs' Motion for a New Trial.
Denied.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware and Marry F. Higgins, Esquire, Odessa, Delaware; co-counsel for Plaintiffs.
Robert K. Pearce, Esquire of Ferry Joseph Pearce, P.A., Wilmington, Delaware; attorneys for Defendant Richard Davis.
Norman H. Brooks, Esquire of Marks O'Neill O'Brien Courtney, P.C., Wilmington, Delaware; attorneys for Defendant RHIS.
ORDER
On November 7, 2007, Plaintiffs Tina A. Atwell and Ashley Atwell (Tina's daughter) moved for a new trial against Defendant RHIS, Inc., d/b/a Reliable Home Inspection Service (RHIS). The Court finds that a new trial is not warranted.
Background
Prior to purchasing the home in which she still lives, Plaintiff Tina Atwell (Plaintiff) contracted Defendant RHIS to conduct a home inspection. After the inspection, which noted certain shortcomings but none that involved the furnace or moisture issues, she purchased the house from Defendant Richard Davis (Davis or Seller). During her first winter in the house, Plaintiff discovered severe water damage, dampness, mold and other water-related issues with the house. She and her daughter allegedly suffered a variety of medical problems related to the mold. Plaintiff filed suit on behalf of herself and her daughter against Davis and RHIS.
In the initial pleadings, Plaintiffs also sued Lititz Mutual Insurance Company who was found not liable in a summary judgment decision. Atwell v. RHIS, Inc., 2005 WL 1952932 (Del.Super., May 31, 2005).
The case went to trial and the jury was hung, 11-1 in favor of the Plaintiffs. The case was retried and this time the jury returned a verdict in favor of Defendant RHIS. Between the first and second trials, Defendant Davis settled with Plaintiffs. Plaintiffs now pray for a new trial, arguing that the Court erred in allowing RHIS' defense counsel to explain the settlement to the jury.
Plaintiffs settled with Defendant Davis for $237,500.00.
Defendant RHIS explained that there had been another defendant and that Defendant RHIS was now in a countersuit against him.
Plaintiffs' theory at the second trial was that Defendant RHIS was negligent in its home inspection when it wrongly reported the furnace to be an up flow when in fact it was a down flow furnace, by failing to discover the pool of water in the plenum into which the furnace pushed hot air, and by failing to discover and report the resulting moisture problems and potential for and actual mold growth and damage in the house. A later in depth inspection of the house discovered water surrounding the house foundation which flowed under the slab floor and collected in the heater duct work sump. From the condition of the house, the water in the heating ducts likely predated the purchase (Seller had covered evidence of mold by, for example, freshly painting the walls using textured paint and replacing moldy vent covers with new ones). RHIS' defense was that the Home Inspector was contracted to make a visual inspection only, which would not reveal the flow direction of the furnace or the pool of water in the plenum. The Seller had successfully concealed visual water damage and RHIS also defended on the basis that the damages, in any event, were excessive; therefore Defendant RHIS was not negligent in its inspection and resulting report.
Plaintiffs' motion for a new trial argues first that the Court was in error to allow Defendant RHIS counsel to describe and explain the earlier settlement to the jury and that Plaintiff suffered prejudice as a result. RHIS' description included a power-point presentation that disclosed the prior caption on one of the slides. Second, the Court was in error to allow RHIS to question Defendant Davis while the jury knew of Davis' settlement. Third, that the Court was in error to allow RHIS to close using powerful metaphors and colorful symbolism about the settlement. Plaintiffs argue further that as a matter of fairness a new trial should be granted because the jury verdict allegedly goes against the great weight of the evidence and justice will not be served if it is allowed to stand. Plaintiffs assert that the record "clearly shows RHIS' negligence and its damaging effects on Plaintiffs." Plaintiffs assert that the two expert witnesses agreed that Defendant RHIS failed to provide a report that met the requirements of the ASHI Standards of Practice.
Plaintiffs provide the following excerpts from trial to found their argument:
[From opening statement of the defense, Oct. 10, 2007] Now, when the plaintiffs filed this complaint against both of these defendants, [RHIS] then, through me, filed a cross claim against Mr. Davis. We're essentially saying that we did nothing wrong. If we're found to be liable, it's you, Mr. Davis, who should pay the plaintiff her damages. Essentially, at this point, since Mr. Davis has settled, you are not going to hear this part of the plaintiffs' case. He has no incentive now to prove to you that Mr. Davis was at fault.
[From closing statement of the defense, Oct. 23, 2007] You may recall the testimony of Mr. Davis. He essentially came in and fell on the sword. I mean, he's a nice fellow. He has settled out; he doesn't have a worry now in this case. He's not in jeopardy. He essentially fell on the sword . . .
* * *
The bad news is that, at this point, [Plaintiffs' counsel] now has an opportunity to come back and speak to you, but that should come as no surprise. Just be very mindful of any of his comments that do not address my comments.
Pls. Mot. for New Trial ¶ 6.
The American Society of Home Inspectors, which provides the home inspection standards relied upon in this case by agreement of the parties.
Pls. Mot. for New Trial ¶ 6 ( citing Tr. of Patrick Porzio [expert witness for defendant], Oct. 19, 2007.
Defendant RHIS argues that counsel did not make any improper statements under the law and rules of court. That there is nothing forbidding the use of a powerpoint in opening statements and that in fact the Supreme Court does not forbid settlement explanations so long as the amount is not recited, and has supported remarks that help avoid jury confusion by discussing settling defendants. RHIS argued that even if the remarks are found to be improper, they do not "sufficiently prejudice" the Plaintiffs so as to deny them a fair trial.
Pls. Resp. at 2 ( citing Sammons v. DFES Dr. Sobel, 913 A.2d 519 (Del. 2006) and Alexander v. Cahill, 829 A.2d 117, 127 (Del. 2003).
Discussion
Plaintiffs argue that the Court should grant a new trial because it was in error that it allowed defense counsel's statements about the settling Defendant Davis in his opening and closing arguments and that the verdict goes against the great weight of evidence proved at trial. Granting a new trial is within the discretion of the trial court. Strauss v. Biggs enunciated the two-pronged test used to determine whether a trial court's error rises to the level that a new trial is warranted. Strauss provided that first, the Court will consider whether the specific rulings were correct. If it finds any in error or abuse of discretion, it will determine whether the mistakes constituted "significant prejudice so as to have denied the appellant a fair trial."
Del. Civ. Proc. R. 59(a).
Strauss v. Biggs, 525 A.2d 992 (Del. 1987).
Id. ( citing Eustice v. Rupert., 460 A.2d 507, 510 (Del. 1983)).
Plaintiffs argue that Wright v. Moore holds that it is abuse of the Court's discretion to allow the defense counsel to make statements about the settling defendant. However, Wright does not so hold. Wright declares that it is abuse of the Court's discretion to allow evidence of a settlement "to prove liability for or invalidity of the claim or its amount." Like federal courts, Delaware courts allow judges to "disclose the fact of third-party defendant settlements for a purpose other than to prove liability invalidity of the claim or its amount." The purpose of the Court's instruction is to avoid jury confusion. Here, Plaintiffs correctly note that it was defense counsel and not the Court that outlined the nature of the all the parties. However, this explanation was provided only during opening and closing statements, which are not evidence. The Court instructed the jury that statements by the attorneys are not evidence, and the jury is expected to follow the Court's instructions. Therefore allowing defense counsel's statements were not in error or abuse of discretion.
931 A.2d 405 (Del. 2007).
Wright v. Moore, 931 A.2d at 407-408 ( citing DRE 408).
Wright at 407-408.
Id. at 408.
Kornbluth v. State, 580 A.2d 556, 560 (Del.,1990).
RHIS argues that Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 540-541 (Del. 2006) specifically approves a defense counsel's remarks about a co-defendant settling. The Court disagrees, that case only provides that the trial judge may instruct the jury about cross-claims (and that the failure to do so was cured by an explanation of cross-claim defendants on the verdict sheet and therefore was not an abuse of discretion). To be clear, while Defendant exceeded the bounds of expectations that this Court normally expects from counsel in opening and closing statements, the statements complained of by the Plaintiffs did not cross the line given the jury instruction that the attorney's statements are not evidence.
Plaintiffs' second argument also fails. "The denial of a motion for a new trial will constitute an abuse of discretion if the jury verdict was against the great weight of the evidence, no reasonable jury could have reached the result, and the denial was untenable and unreasonable." The Court must weigh the evidence in order to determine if the verdict is one that might have reasonably been reached. The Court may set aside a verdict when the figure is so clearly inadequate as to indicate that it was the result of passion, prejudice, partiality or corruption.
Wilhelm v. Ryan, 903 A.2d 745, 755 (Del. 2006).
McCloskey v. McKelvey, 174 A.2d 691 (Del. 1961).
Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255 (Del. 1966).
The Court does not find that the jury award "shocks the Court's conscience and sense of justice", nor does it go against the weight of evidence, or is it out of proportion to the evidence presented and injuries. Plaintiffs did not present uncontradicted testimony that established a causal link between negligence and injury.
Matusky v. Bonsall, 2003 WL 262489 (Del.Super., February 03, 2003).
Plaintiffs argue that the experts provided this link. Plaintiffs argue that Defendant's witness, Mr. Porzio, testified to the inaccurate, misleading, and inadequate nature of Defendant's report in several instances. However, just like every other witness, the jury is free to determine an expert witness' credibility, the weight and relevancy of their testimony. Clearly, the jury found Mr. Porzio credible.
The Court finds no reason to undermine the jury's determination. The Court does not agree that there was but one interpretation of the experts' testimony, and hesitates to comment on the experts' credibility. This is in the special province of the jury, the finder of facts. The Court does not find in this instance that the "verdict of no damages is unacceptable as a matter of law."
Dimick v. Schiedt, 293 U.S. 474, 385-386 (1935).
Ellwood v. Cunningham, 2007 WL 3105106 at *3 (Del.Super., October 22, 2007) ("zero damage verdicts are only against the great weight of the evidence when uncontradicted expert testimony establishes causation" ( citing Amalfitano v. Baker, 794 A.2d 575 (Del. 2001)).
Conclusion
Based on the foregoing, the motion for a new trial is denied. IT IS SO ORDERED.