Peck v. Riverview Lounge, Inc.

NO. 95-038
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ARDELL MARY PECK,
Plaintiff and Respondent,
v.
JUL 25 \gg5
RIVERVIEW LOUNGE, INC.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert J. Emmons, Emmons & Sullivan, Great Falls,
Montana
For Respondent:
Dennis Patrick Conner, Attorney at Law, Great
Falls, Montana
Submitted on Briefs: June 1, 1995
Decided: July 25, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
,
Riverview Lounge, Inc. (Riverview) appeals the decision of
the Eighth Judicial District Court, Cascade County, granting Ardell
Mary Peck's motion for a new trial. We affirm.
The sole issue on review is whether the District Court erred
in granting Peck's motion for a new trial.
Peck filed a complaint in the Eighth Judicial District Court,
Cascade County, alleging she was injured during a slip and fall
accident on Riverview property. The dispute ultimately proceeded
to a jury trial. During closing arguments, Riverview's attorney
made several allegedly improper and prejudicial comments to the
jury. The jury returned a verdict in favor of Riverview. Peck
moved the District Court for a new trial.
Peck filed a document entitled "Plaintiff's Motion for New
Trial and Brief in Support." This was a single, three-page
document. The motion section of the document set forth the
statutory grounds for a new trial while the brief section set forth
the particular facts upon which a new trial was justified.
Riverview objected to the motion for a new trial, claiming
that no improper or prejudicial comments were made during closing
arguments and that Peck failed to state the particular grounds in
support of her motion for a new trial as required by the Montana
Rules of Civil Procedure. The District Court granted Peck's motion
for a new trial. The court found that Riverview's attorney had
argued facts outside the record during closing argument. The court
went on to conclude that the argument was prejudicial and warranted
a new trial. The court also found that Peck's Motion for New Trial
and Brief in Support satisfied the requirements of a motion for a
new trial.
Riverview appeals only on the grounds that Peck's Motion for
New Trial and Brief in Support did not satisfy the technical
requirements for a motion for a new trial.
Issue
Did the District Court err in granting Peck's motion for a new
trial?
We review a district court's granting of a motion for a new
trial to determine if there was a manifest abuse of discretion.
Stanhope v. Lawrence (1990), 241 Mont. 468, 787 P.2d 1226.
Riverview argues that Peck failed to strictly comply with
Rules 7 (b)(1) and 59 (a), M.R.Civ.P.,because her motion for a new
trial did not state with particularity what grounds she felt
warranted a new trial. Riverview argues that Peck's motion for a
new trial should not be granted due to her failure to comply with
these rules.
Peck insists that her motion did comply with the relevant
rules of civil procedure. Peck claims that her motion for a new
trial and her brief in support of her motion for a new trial were
submitted to the District Court as a single document and should
therefore be considered together.
,
Rule 7 (b)(1) M.R.Civ.P., states:
An application to the court for an order shall be by
motion which, unless made during a hearing or trial,
shall be made in writing, shall state with particularity
the srounds therefor, and shall set forth the relief or
order sought. The requirement of writing is fulfilled if
the motion is stated in a written notice of the hearing
of the motion.
(Emphasis added.) Rule 59(a), M.R.Civ.P., states, in relevant
part :
A new trial may be granted to all or any of the
parties and on all or part of the issues for any of the
reasons provided by the statutes of the state of Montana.
A motion for a new trial shall state with particu-
laritv the qrounds therefor, it not beinq sufficient
merely to set forth the statutorv srounds, but the motion
may be amended, upon reasonable notice, up to and
including the time of hearing the motion.
(Emphasis added.)
The general rule is that a motion for a new trial must be
denied if the movant does not state with particularity the grounds
for the motion. See Halsey v. Uithof (1975), 166 Mont. 319, 532
P.2d 686. However, in this case, Peck did not fail to state with
particularity the grounds for her motion; rather, the reasons were
included under the heading of "Brief" rather than under the heading
of "Motion." The brief and the motion were contained within the
same three-page document. The document was served upon Riverview
within ten days following Notice of Entry of Judgment as mandated
,
by Rule 59 (b) M.R.Civ.P. Although contained under the heading
"Brief" rather than under the heading "Motion," the document did
set forth with particularity the grounds upon which the motion was
based.
In reference to the Rules of Civil Procedure, we recently
stated:
The rules should be followed at all times by any practic-
ing attorney. In this case, the Landowners' counsel
failed to abide by the mandates and did not specifically
set out grounds on which any hearing should have oc-
curred. Considerable evidence was allowed subsequent to
the District Court's order granting summary judgment.
Nonetheless, we have stated that the rules encouraqe
disposition of cases on their merits and therefore we
will consider all evidence presented to the District
Court. (Citations omitted.)
Adams v. Department of Highways (1988), 230 Mont. 393, 398-99, 753
P.2d 846, 849 (emphasis added) .
Riverview does not allege that Peck failed to state the
particular grounds for a new trial, but merely that the motion is
fatally flawed because the particular grounds were listed under the
heading of "Brief" rather than under the heading of "Motion." Such
a technical flaw is not fatal to Peck's case.
,
Rule 8 (e)(1) M.R.Civ.P., states, in part, " [n]o technical
forms of pleading or motion are required." Also, in its findings
of fact, the District Court correctly pointed out:
The Defendant had notice from December 9, 1994, the date
of service of Plaintiff's Motion for New Trial and Brief
in Support, of the precise grounds on which Plaintiff
sought relief. This finding is further supported by this
Court's observation of Defendant's preparedness for the
hearing, including by Defendant's brief, by Defendant's
submission of excerpts of trial testimony and final
argument, and by defense counsel's oral argument at the
hearing.
Riverview clearly knew on what grounds Peck sought a new trial and
was not prejudiced by the specific grounds being listed in the
brief section rather than the motion section of Plaintiff's Motion
for New Trial and Brief in Support.
We conclude that the Plaintiff's Motion for New Trial and
Brief in Support satisfied the notice requirements of Rules 7(b) (1)
and 59(a), M.R.Civ.P.The District Court did not manifestly abuse
its discretion in granting Peck's motion for a new trial
Af firmed.
/
Chief Justice
We concur: