COURT OF APPEALS DECISION DATED AND FILED July 7, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from judgments of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. McDonald Enterprises/Fond du Lac Limited Partnership, by its general partner, appeals from judgments dismissing its claims against Excel Engineering, Inc. and Signature Homes by Adashun Jones, Inc.[1] after a jury trial. We affirm the judgments.
¶2 McDonald owns a parcel adjoining a subdivision developed by
Signature Homes. McDonald alleged “that
the actions of Signature Homes and Excel Engineering, the developer and
engineering firm associated with [the] subdivision, caused contaminated water to
drain from the subdivision to McDonald’s property causing crop damage,
long-term, adverse changes to the property, and a nuisance, among other claims.” McDonald also alleged negligent design and
construction of the subdivision. McDonald
Enters. v. Excel Eng’g, Inc., No. 2006AP1412, unpublished slip op. at
¶2 (
¶3 After a jury trial, the jury found that Excel Engineering acted unreasonably in designing the subdivision, but that such unreasonable action did not interfere with McDonald’s use and enjoyment of its property. The jury also found that Excel had a duty to use ordinary care yet failed to do so in designing the subdivision, and Excel inflicted harm, but not significant harm, on McDonald’s property. The jury found that Signature Homes did not act unreasonably and used ordinary care in developing the subdivision. The jury also found that McDonald contributed to the harm to its property and apportioned liability eighty percent to Excel and twenty percent to McDonald. After unsuccessful postverdict motions, McDonald appeals.
¶4 On appeal, McDonald argues that the jury instructions and special verdict form did not accurately state or reflect the law of negligence, the jury’s verdict was inconsistent, there was no credible evidence to support the jury’s findings that Excel did not cause significant harm to McDonald and absolving Signature of all liability, and the jury view was prejudicial.
¶5 McDonald’s challenges to the jury instructions and special
verdict are waived because McDonald neither objected at the time of trial nor
raised these challenges in its postverdict motions. During the jury instruction conference, the
circuit court declined to submit a separate negligence instruction to the jury
and combined the instructions for negligence and nuisance. The court determined that
¶6
¶7 We reject McDonald’s argument that waiver does not
apply. McDonald undoubtedly waived any
objection to the jury instructions and verdict form. We do not review waived claims. LaCombe v. Aurora Med. Group, Inc.,
2004 WI App 119, ¶5, 274
¶8 McDonald argues that the verdict was inconsistent and that the inconsistency did not result from McDonald’s failure to object to the verdict form. Specifically, McDonald argues that the jury should not have apportioned liability (eighty percent on Excel and twenty percent on McDonald) without first finding negligence.
¶9 The verdict asked the jury whether Excel’s failure to use
ordinary care caused any harm to McDonald’s property; the jury answered “yes”
although such harm was not significant. The
jury was then asked if McDonald contributed to the harm to its property; the
jury answered “yes.” The jury was then
told that if it answered “yes” to this question, it was to apportion liability,
which it did. Given how the jury was
instructed and the verdict form was constructed, see LaCombe, 274
¶10 McDonald challenges the sufficiency of the evidence and argues
that the jury should have found that Signature failed to use ordinary
care. We will sustain a jury’s verdict
if there is any credible evidence to support it. D.L. Anderson’s Lakeside Leisure Co. v.
Anderson, 2008 WI 126, ¶22, 314
¶11 On appeal, McDonald essentially asks us to reweigh the evidence
and independently assess the witnesses’ credibility. This we cannot do. “Matters of weight and credibility are left
to the jury.” Frayer v. Lovell, 190
¶12 McDonald argues that the jury view was prejudicial. However, McDonald’s appellate briefs do not
set out how or why the view was prejudicial.
We will not develop this argument for McDonald. See
Vesely v. Security First Nat’l Bank, 128
¶13 Signature moves the court to deem this appeal frivolous;
McDonald objects. We cannot award fees
under Wis. Stat. Rule 809.25(3) “unless
the entire appeal is frivolous.” Lenhardt
v. Lenhardt, 2000 WI App 201, ¶16, 238
By the Court.—Judgments affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The caption of McDonald’s January 22, 2009 notice of appeal designates Signature Homes as a respondent, but the text of the notice of appeal identifies neither Signature Homes nor the January 16, 2009 judgment in favor of Signature as the subject of the appeal. Signature did not move to dismiss this appeal due to a defective notice of appeal. We need not decide this issue as Signature has appeared in this appeal via motions and a respondent’s brief.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] McDonald filed three postverdict motions: motion for judgment notwithstanding the verdict due to juror conduct during the jury view, motion to change the jury’s answer on the question of whether Excel significantly harmed McDonald’s property, and motion for a new trial due to an inconsistent verdict. None of these motions addressed the jury instructions.
[4] For this reason, we do not discuss the evidence adduced at trial.