§59.6 Analysis

• Jurisdiction: Washington

Evidence in support of motion; affidavits

The civil rules do not require the moving party to produce a transcript of the trial proceedings. It may be advantageous to produce a trial transcript, however, if the movant's arguments require detailed analysis of the testimony.

If the grounds asserted for a new trial require demonstration of facts not in the record, the court has authority under CR 43(e)(1) to accept affidavits, oral testimony, and depositions. CR 59(c) requires submission of affidavits in support of the motion at the time the motion is filed. Opposing affidavits may be submitted within 10 days, which may be extended by as much as 20 days by stipulation or for good cause shown. The rule permits, but does not require, the court to accept reply affidavits.

(c)Combination with motion for judgment as a matter of law

A motion for new trial may be combined with a motion for judgment as a matter of law under CR 50. See CR 50(b), (i); see also Kaech, 106 Wn.App. at 268. If the motion under CR 50 is granted, the court is required to rule upon the CR 59 motion in the alternative. See CR 50(c).

(d)Effect of filing motion

The timely filing of a motion for new trial extends the time for filing a notice of appeal from the judgment. See RAP 5.2; Simonson v. Veit, 37 Wn.App. 761, 765, 683 P.2d 611, review denied, 102 Wn.2d 1013 (1984). Appeal from the judgment may be filed within 30 days of the order disposing of the motion for new trial. Amotion for new trial that is untimely filed, however, does not extend the time for appeal. Griffin v. Draper, 32 Wn.App. 611, 613, 649 P.2d 123, review denied, 98 Wn.2d 1004 (1982).

(e)Preservation of error

A party generally may not assert error in a motion for new trial if the party had an opportunity to object during trial and failed to do so. This principle has been applied to a variety of grounds for new trial. See, e.g., State v. McKenzie, 56 Wn.2d 897, 901, 355P.2d834 (1960) (surprise testimony); Casey v. Williams, 47 Wn.2d 255, 257, 287P.2d343 (1955) (sleepingjuror);Fleenor v. Erickson, 35 Wn.2d 891,901,215P.2d885 (1950) (juror misconduct); Sun Life Assurance Co. of Can. v. Cushman, 22 Wn.2d 930, 945, 158P.2d101 (1945) (alleged juror bias resulting from contacts with a party); Buckley v. Snapper Power Equip. Co., 61 Wn.App. 932, 939, 813P.2d125, review denied, 118 Wn.2d 1002 (1991) (bias of trial judge); Cerjane v. Kehres, 26 Wn.App. 436, 440, 613P.2d192 (1980) (improper jury instruction); Larson v. Ga. Pac. Corp., 11 Wn.App. 557, 560-61, 524P.2d251 (1974) (misconduct of opposing counsel).

Even if timely objections have been made, objections that lack specificity or are otherwise defective may fail to preserve error. See, e.g., Bitzan v. Parisi, 88 Wn.2d 116, 125, 558 P.2d 775 (1977). To properly preserve error for review, you must be familiar with the requirements of ER 103, regarding objections to evidentiary rulings, and of CR 51, regarding proposed jury instructions and objections to the charge. See Chapter 51 (Rule 51. Instructions to Jury and Deliberation) of this deskbook.

In unusual cases, failure to object may be excused on the ground that the error is so flagrant and prejudicial that it could not have been remedied by a cautionary instruction. See Warren v. Hart, 71 Wn.2d 512, 518, 429P.2d873 (1967). It has also been held that error may be preserved if the trial court has been "adequately apprised" of an issue. Schneider v. City of Seattle, 24 Wn.App. 251, 255 n.2, 600P.2d666 (1979), review denied, 93 Wn.2d 1010 (1980). These exceptions to the general rule have limited application, however, and should not be relied upon at trial.

(f)Motions to alter or amend the judgment

CR 59(h) has yet to be discussed or analyzed in any published Washington decision. Other than the amount of time each rule gives for filing, CR 59(h) is identical in wording to Fed. R. Civ. P. 59(e), which has been applied to various types of requests to modify judgments. See generally 11 Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §2817 (2012).

(g)Motions for reconsideration

CR 59 expressly encompasses motions for reconsideration in its caption, but does not indicate whether all, or only some, types of motions for reconsideration fall within its scope. Some practitioners believe that CR 59 can only be used to challenge a final verdict and only provides relief in the form of a new trial. In Davies v. Holy Family Hosp., 144Wn.App.483,497,500,183P.3d283 (2008), the court made it clear that a party may seek reconsideration of an order granting or denying summary judgment based on CR 59(a)(9). "By its language, CR 59 applies to a motion for a new trial or a motion for reconsideration." Id. at 497 (citing Go2Net, Inc. v. CI Host, Inc., 115 Wn.App. 73, 90, 60 P.3d 1245 (2003)) (emphasis added). Courts have yet to clarify whether parties may seek reconsideration of other types of interlocutory orders, but the text of the rule provides that a party may seek reconsideration of "any other decision or order." In light of this broad language, it seems unlikely that a court would limit the type of order or judgment that can be reconsidered.

In general, new theories and new arguments that could have been raised before entry of the adverse decision cannot be raised for the first time in motions for reconsideration. See, e.g., Wilcox v. Lexington Eye Inst., 130 Wn.App. 234, 241, 122P.3d729 (2005), review denied, 157 Wn.2d 1022 (2006); Eugster v. City of Spokane, 121 Wn.App. 799, 811,91 P.3d 117 (2004), review denied, 153 Wn.2d 1012 (2005). However, in a motion for reconsideration following a nonjury trial, new issues or theories may be raised and preserved for appeal if they are based on the evidence. See, e.g., Reitz v. Knight, 62 Wn.App. 575, 581 n.4, 814P.2d1212 (1991).

(h) Disposition of motion for new trial

CR 59 and the case law applying it provide the court with a number of options. The following sections address many (but not all) options available with a CR 59 motion.

Conditional rulings; additur and remittitur

If the court finds that the award of damages is so excessive or inadequate as unmistakably to indicate that the verdict resulted from passion or prejudice, or if the verdict is unsupported by "substantial evidence," the court may order a new trial unless the party defending the verdict accepts an increase or reduction in the amount of the damages. See RCW 4.76.030; State Dep't of Corn v. Fluor Daniel, Inc., 130 Wn.App. 629, 632-33, 126 P.3d 52 (2005), aff'd, 162 Wn.2d 786, 161 P.3d 372 (2007); Green v. McAllister, 103 Wn.App. 452, 462, 14 P.3d 795 (2000). The court can leave the jury's liability verdict intact and order a new trial on the issue of damages only. Green, 103 Wn.App. at 462; CR 59(a). If the verdict is "'within the range' of the credible evidence," the trial court has no discretion to order additur or remittitur. Green, 103 Wn.App. at 461. Additur and remittitur are not appropriate when the ground for new trial does not relate to the amount of damages. See Workman v. Marshall, 68 Wn.2d 578, 583, 414 P.2d 625 (1966).

Alternative ruling with CR 50(b) motion

When the movant has requested judgment as a matter of law and a new trial in the alternative, and the court grants judgment as a matter of law, CR 50(c) requires the trial court to decide, in the alternative, the motion for new trial. This procedure facilitates appellate review and reduces the need for multiple appeals by permitting the appellate court to consider both the CR 50 and CR 59 motions at the same time.

Partial grant of new trial

CR 59(a) authorizes the court to grant a new trial as to "all or any of the parties, and on all issues, or on some of the issues, when such issues are clearly and fairly separable and distinct...." This language implies that a court should limit the scope of a new trial whenever the error appears to affect only a part of the verdict. However, the question of whether issues are "clearly and fairly separable and distinct" may be difficult to resolve when the merits of the liability claim are intertwined with the damage issues or when there is reason to believe that the jurors reached a compromise verdict in an action in which liability was genuinely disputed. See Mina v. Boise Cascade Corp., 104 Wn.2d 696, 707, 710P.2d184 (1985).

The traditional rule was that a new trial limited to damages was proper only when liability was clear and the amount of damage was in dispute. Lofgren v. W. Wash. Corp. of Seventh Day Adventists, 65 Wn.2d 144, 153, 396 P.2d 139 (1964). Such a strict rule is no longer necessary, however, because "the possibility of compromise verdicts has been largely eliminated by the adoption of comparative negligence and the use of special verdict forms." Mina, 104 Wn.2d at 707. Still, "[i]f there is a possibility that the verdict was the result of a compromise, limiting retrial to certain issues is improper." Id. In a close case on the issue of liability, in which inadequate damages are awarded, a new trial on all issues may be required. Lindquist v. Dengel, 92 Wn.2d 257, 264, 595 P.2d 934 (1979). There is no formula for determining when issues are "fairly separable and distinct"; separability generally will turn on the particular facts of the case and nature of the issues in dispute.

When different theories of liability are intertwined, it is proper to grant a new trial as to all issues rather than limiting the new trial to a single theory as to which error was committed. Holt v. Nelson, 11 Wn.App. 230, 243, 523 P.2d 211, review denied, 84 Wn.2d 1008 (1974). Similarly, when a jury found negligence but was unable to reach a verdict on causation, and the two issues were not easily separable, retrial of both issues has been held to be proper. Lahmann v. Sisters of St. Francis ofPhila., 55 Wn.App. 716, 724-25, 780 P.2d 868 (1989). By contrast, when juror misconduct...