Schaan v. Magic City Beverage Co.

VANDE WALLE, Chief Justice,

concurring in part and dissenting in part.

[¶ 31] I concur in the result reached in parts I and II of the majority opinion. I respectfully dissent to part III and would affirm the trial court’s order granting the motion for extension of time to file a notice of appeal.

[¶ 32] Although I agree with the majority’s extensive analysis of Magic City’s motion for a new trial or judgment notwithstanding the verdict, and its conclusion that the first motion failed as a motion because it did not state its grounds with particularity, and the second motion was not timely, the analysis does not require we reverse on the issue of excusable neglect in the appeal from the judgment. To the contrary, I believe the extensive analysis required suggests we affirm rather than reverse on the issue of excusable neglect. As the majority notes, we apply the abuse of discretion standard of review on appeal from an order granting a motion for extension of time in which to file an appeal. Although Magic City undoubtedly made some erroneous assumptions in filing the motions and the notice of appeal, I am not convinced the trial court abused its discretion in extending the time in which to appeal. The matter of the trial transcript permeated the proceedings and was intertwined with the filings of the motions as well as with the appeal. Had the first motion been complete or the second motion been timely made, either would have tolled the time for filing a notice of appeal under N.D.R.App.P.4(a). In this instance, where both the appellant and the trial court believed the motions for JAML or a new trial tolled the time for appeal, and granted the extension of time to appeal as a result of excusable neglect, I defer to the judgment of the trial court and conclude the trial court did not abuse its discretion in granting the extension.

[¶ 33] We have said an abuse of discretion occurs “only when [the trial court] acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination;” Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D.1996). Although we disagree with the trial court’s analysis as to the form and timely filing of the motions, that does not mean the analysis is, nor would I characterize the trial court’s order granting the motion to extend the time for appeal as, arbitrary, unconscionable, or unreasonable, nor would I characterize it as irrational under these circumstances. Because we prefer to hear appeals on their merits, e.g., Liebelt v. Saby, 279 N.W.2d 881, 884 (N.D.1979), and we construe the statutes and the rules governing the right to appeal liberally, e.g., First Trust v. Conway, 345 N.W.2d 838 (N.D.1984), we should allow the trial court wide discretion when it grants an extension of time in which to appeal.

[¶ 34] The majority opinion cites several cases in which we have affirmed a trial court’s denial of the extension of time in which to appeal. I am aware of no cases, prior to this case, in which we have reversed an order granting the extension. Mistakes may constitute excusable neglect. See, e.g., K & K Implement v. First Nat. Bank, 501 N.W.2d 734 (N.D.1993) (allowing plaintiff to file late notice of appeal as to remaining defendants because plaintiff and attorney clearly intended to appeal judgment as to all defendants); Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45 (N.D.1988) (allowing defendant filing untimely notice of appeal to benefit from Supreme Court’s determination on appeal). Here, too, the intent of Magic City was clear and I would not reverse in this case.

[¶ 35] With regard to the merits of the appeal from the judgment, Magic City complains that Schaan did not prove discharge based on discrimination due to age, that Schaan did not establish the essential element of replacement by a younger employer, and that the verdict form and supporting instructions do not properly frame the discharge issue. The final instructions and verdict form were not objected to at trial yet Magic City complains no “at-will employment” instruction was given. None was requested at trial. Compare Schuhmacher v. North Dakota Hosp. Ass’n., 528 N.W.2d 374, 382 (N.D.1995) (reversing jury verdict for among other matters, the refusal by the trial court to instruct on the “at-will” termination statute, N.D.C.C. § 34-03-01 when requested). Magic City raised the issue in a post-trial brief but that brief was filed after the decision. Compare Matter of Estate of Luken, 551 N.W.2d 794, 799 (N.D.1996) (holding issue raised in post-trial brief which trial court considered before issuing its order is properly before Supreme Court on appeal).

[¶ 36] The evidence combined with the instructions and jury form which became the “law of the case,” e.g., Erickson v. Schwan, 453 N.W.2d 765, 769 (N.D.1990); Jore v. Saturday Night Club, Inc., 227 N.W.2d 889 (N.D.1975); Rule 51, N.D.R.Crim.P., arguably support the jury verdict. Because we view the verdict in light of the established law of the case, c.f., Deichert v. Fitch, 424 N.W.2d 903, 905 (N.D.1988), I would affirm the judgment.

[¶ 37] WILLIAM A. NEUMANN, J., concurs.