                                                                                     March 17 2015


                                       DA 14-0018
                                                                                    Case Number: DA 14-0018


           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2015 MT 84
                                   _________________

CHRISTINA TEMPEL,

           Plaintiff and Appellant/Cross-Appellee,
                                                               OPINION
      v.                                                         AND
                                                                ORDER
LAUNA BENSON,

           Defendant and Appellee/Cross-Appellant.
                                  _________________

¶1    Christina Tempel appeals from a Missoula County jury verdict awarding Tempel

some, but not all, of the damages she sought in her negligence action against Launa

Benson. The dispositive issues on appeal are as follows:

      1. Whether Tempel waived her right to appeal the jury’s verdict by accepting the
      benefits of the judgment entered on that verdict.

      2. Whether the District Court abused its discretion in determining that Benson’s
      conduct did not warrant discovery sanctions.

¶2    We dismiss Tempel’s appeal of the verdict and affirm the District Court’s order

denying sanctions.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3    Tempel sued Benson for negligence after the two were involved in a car crash in

Missoula. During discovery, Tempel sent Benson a request asking Benson to admit

violating certain traffic laws on the day of the crash; Benson denied the request. Tempel

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eventually moved for summary judgment on the issue of Benson’s negligence and the

District Court granted that motion. Tempel also moved for sanctions against Benson

under M. R. Civ. P. 37 for Benson’s failure to admit violating traffic laws. The District

Court denied that motion.

¶4     The case proceeded to a jury trial on damages. The court submitted a special

verdict form to the jury, and the jury awarded Tempel $168,851.94 in past medical

expenses, $40,000 in future medical expenses, $35,000 in past and future pain and

suffering, $21,830 in loss of earning capacity, $2,754 in loss of household services, and

$0 each for past loss of earnings, emotional distress, and loss of enjoyment of life. In

accordance with the verdict, the District Court entered judgment in favor of Tempel in

the amount of $268,435.94.

¶5     Benson paid Tempel the full judgment amount plus interest. Tempel accepted the

funds and signed a document entitled, “Acknowledgment of Payment of Judgment

Reserving Claims for New Trial.” Tempel moved for a new trial on the issue of damages

for emotional distress, loss of enjoyment of life, and future medical expenses associated

with a prescription drug called Cymbalta. Benson opposed the motion and moved for

entry of satisfaction of judgment. Concluding that the jury’s verdict was supported by

substantial evidence, the District Court denied Tempel’s motion for a new trial and

entered an order of satisfaction of judgment.

¶6     Tempel filed a notice of appeal. Benson moved this Court to dismiss the appeal,

arguing that Tempel waived her right to appeal by accepting the benefits of the judgment.

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We responded by directing the parties to make their arguments about dismissal in their

appellate briefs. On appeal, Tempel requests a new trial, challenges several evidentiary

rulings, and appeals the District Court’s decision not to impose sanctions against Benson.

Benson cross-appeals on several issues that the Court need consider only if a new trial is

ordered.

                              STANDARDS OF REVIEW

¶7     Dismissal of an appeal for waiver is a matter for determination by this Court. See

Reichert v. State, 2012 MT 111, ¶¶ 20, 22, 365 Mont. 92, 278 P.3d 455. We review for

abuse of discretion a district court’s determination whether an alleged discovery abuse

meets the requirements for mandatory sanctions. Doherty v. Fed. Nat’l Mortg. Assoc.,

2014 MT 56, ¶ 12, 374 Mont. 151, 319 P.3d 1279.

                                     DISCUSSION

¶8     1. Whether Tempel waived her right to appeal the jury’s verdict by accepting the
benefits of the judgment entered on that verdict.

¶9     The right to enjoy the benefits of a judgment and the right to appeal that judgment

are inconsistent. In re Black’s Estate, 32 Mont. 51, 53, 79 P. 554, 555 (1905). Generally,

a party who voluntarily accepts a judgment’s benefits waives the right to appeal that

judgment. H-D Irrigating, Inc. v. Kimble Props., Inc., 2000 MT 212, ¶ 19, 301 Mont. 34,

8 P.3d 95. But if a judgment contains severable parts, accepting the benefits of one

aspect of the judgment is not antithetical to appealing another, independent portion of the

judgment. Black’s Estate, 32 Mont. at 54, 79 P. at 555. Determining the independence

of the judgment’s components requires considering whether reversal of the appealed
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aspect of the judgment can “possibly affect” the appellant’s right to the benefits already

accepted. H-D Irrigating, ¶ 19.

¶10   The jury in this case awarded Tempel $268,435.94 in damages. Benson presented

Tempel with a check satisfying the judgment amount. Tempel was under no obligation to

accept Benson’s payment, but she did. The District Court determined that the judgment

was satisfied, and Tempel does not contest that determination. Notwithstanding the

judgment’s satisfaction, Tempel argues that she has not waived her right to appeal

because the aspects of the judgment that she appeals are independent of the portion under

which she accepted benefits.

¶11   When an appellant accepts benefits of a judgment but then appeals a part of that

judgment, we have required that the appeal not relate to the benefits already accepted. In

Black’s Estate, the appellant accepted the benefits of the judgment but then appealed the

judgment generally. We dismissed the appeal because the appeal on the whole of the

judgment encompassed the parts of the judgment that already had benefited the appellant.

Black’s Estate, 32 Mont. at 55, 79 P. at 556. We explained that, after an appellant

accepts a judgment’s benefits, an appeal on part of the judgment may proceed only if

review “will not disturb the determination already had of those [independent issues]

about which no complaint is made,” and “the only question left to be determined by the

appellate court is whether recovery should be greater.” Black’s Estate, 32 Mont. at 54,

79 P. at 555. We applied these principles again in Niles v. Carbon Cnty., 174 Mont. 20,

568 P.2d 524 (1977), in which the appellant accepted the benefits of a judgment that

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awarded him a sum equivalent to the delinquent taxes he had paid on a property, but

appealed the judgment for its failure to award him a tax deed on the property. Niles, 174

Mont. at 21-22, 568 P.2d at 525. We dismissed the appeal because of the mutually

exclusive relationship between the payment for delinquent taxes and a possible tax deed:

the appellant was “entitled either to a tax deed . . . or to a sum representing the delinquent

taxes and penalties he had paid”—he could “not have both.” Niles, 174 Mont. at 23, 568

P.2d at 526.

¶12    Where the claims on appeal may be resolved autonomously, we have determined

that the independence between the appealed portion of the judgment and the portion

under which the appellant accepted benefits permits the appeal to proceed. For instance,

in H-D Irrigating, the plaintiff sued the defendant for constructive fraud while the

defendant sued the plaintiff to recover on the terms of a promissory note. H-D Irrigating,

¶ 1. A judge tried the case, found merit in both claims, and awarded the defendant the

amount of the promissory note, less damages for the defendant’s misrepresentations.

H-D Irrigating, ¶¶ 1, 15. The defendant collected a portion of that judgment before

appealing the finding of constructive fraud. H-D Irrigating, ¶ 18. We determined that

the appeal could proceed because the plaintiff “has not contested its obligation pursuant

to the promissory note, nor does it dispute that it owes at least the amount [the defendant]

collected regardless of the outcome of the appeal and cross-appeal.” H-D Irrigating,

¶ 20. See also Maloney v. Heer, 257 Mont. 500, 505-06, 850 P.2d 957, 960 (1993);




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Ferguson v. Town Pump, Inc., 177 Mont. 122, 127, 580 P.2d 915, 918 (1978), overruled

on other grounds by Bohrer v. Clark, 180 Mont. 233, 240, 590 P.2d 117, 121 (1978).

¶13    Here, the parties tried a single issue: Tempel’s damages resulting from Benson’s

negligence. The damages Tempel sought and the damages the jury delivered all derived

from Tempel’s negligence claim.1 This situation is different from that in H-D Irrigating,

where the parties litigated two claims, and the appellant recovered on one claim while

appealing the other. Here, the damages collected relate to the damages appealed because

they all rest on the same claim. See Am. Enter., Inc. v. Van Winkle, 39 Cal. 2d 210, 217

(1952) (“The test of whether a portion of a judgment appealed from is so interwoven with

its other provisions as to preclude an independent examination of the part challenged by

the appellant is whether the matters or issues embraced therein are the same as, or

interdependent upon, the matters or issues which have not been attacked.”).

¶14    Closer examination of the specific items that Tempel seeks to retry further reveals

the relationship between the appealed portion of the judgment and the portion under

which Tempel accepted benefits. Tempel does not appeal the jury’s award of zero

damages for past loss of earnings. Tempel does seek a new trial on her future medical

expenses associated with her Cymbalta prescription, which she claims were disregarded

by the jury. But on the special verdict form, the jury indicated that it awarded Tempel
1
  In her complaint, Tempel alleged negligence and negligence per se as different “count[s].”
These different “count[s]” nonetheless target the same conduct, seek the same determination, and
represent a single claim. See Giambra v. Kelsey, 2007 MT 158, ¶ 46, 338 Mont. 19, 162 P.3d
134 (“Negligence per se is simply ‘[n]egligence as a matter of law’” (quoting Black’s Law
Dictionary 1057 (Bryan A. Garner ed., 7th ed., 1999))); Schwabe v. Custer’s Inn Assocs., 2000
MT 325, ¶ 27, 303 Mont. 15, 15 P.3d 903 (discussing negligence and negligence per se as
different “theor[ies] of negligence[.]”), overruled on other grounds by Giambra, ¶ 58.
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$40,000 in future medical expenses.      Tempel accepted this $40,000 as part of the

$268,435.94 that Benson paid to satisfy the judgment. Tempel cannot appeal future

medical damages after accepting future medical damages.

¶15   Tempel also seeks damages for emotional distress and loss of enjoyment of life

after already collecting $35,000 for past and future pain and suffering. Tempel cites

Thompson v. City of Bozeman, 284 Mont. 440, 447, 945 P.2d 48, 52 (1997), in which we

permitted retrial on some damages while upholding the rest of a damages verdict. But in

Thompson, the plaintiff did not accept the benefits of the judgment before appealing. See

Thompson, 284 Mont. at 441-42, 945 P.2d at 49. Moreover, in Thompson, we affirmed

economic damages (medical expenses and lost wages) while permitting retrial of

non-economic damages (pain and suffering). Thompson, 284 Mont. at 441, 447, 945

P.2d at 49, 52. The Thompson jury awarded nothing for the plaintiff’s non-economic

damages; given the jury’s award of economic damages, we concluded that there was

insufficient evidence to sustain that zero damages award. Our ruling was based on the

uncontroverted evidence of at least some pain and suffering. Thompson, 284 Mont. at

446-47, 945 P.2d at 52. In remanding for a new trial, we contrasted the zero damages

award to cases in which the jury awarded some pain and suffering damages, but less than

what the plaintiff claimed the evidence supported. Thompson, 284 Mont. at 446, 945

P.2d at 52 (citing generally, Barnes v. United Indus., Inc., 275 Mont. 25, 909 P.2d 700

(1996); Maykuth v. Eaton, 212 Mont. 370, 687 P.2d 726 (1984)).




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¶16    In contrast to Thompson, Tempel already has recovered some non-economic

damages through a pain and suffering award. Pain and suffering, emotional distress, and

loss of enjoyment of life all are general damages, and together they comprised Tempel’s

claim for non-economic damages in this case.         While awards for pain and suffering

damages, on one hand, and emotional distress and loss of enjoyment of life damages, on

the other, are not mutually exclusive, see Niles, 174 Mont. at 23, 568 P.2d at 526,

bifurcating judgment and allowing retrial on one component of these damages risks

double recovery through a larger award than any one jury, viewing all losses at once,

would devise. See 1 Damages in Tort Actions § 8.02[5][c], 8-10 (2014) (“The potential

confusion of loss of enjoyment claims with pain and suffering claims is considerable.

The injuries are not unrelated . . . .”).

¶17    Tempel argues that this case may be retried on the additional damages she seeks

without the possibility of duplicating damages, but she does not explain how. Given the

jury’s award of a portion of the non-economic damages Tempel sought, and Benson’s

avowed intention to contest pain and suffering if retrial is needed, we are unable to

conclude that reversal of the judgment “cannot possibly affect” the fruits of the judgment

that Tempel already accepted.         H-D Irrigating, ¶ 19.   In this situation, should any

non-economic damages need retrying, fairness dictates retrying all non-economic

damages. In that event, the jury could reduce the damages that Tempel already has

recovered for pain and suffering—an increase in Tempel’s damages award is not “the

only possible outcome” of her appeal. Ferguson, 177 Mont. at 127, 580 P.2d at 918; see

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Maloney, 257 Mont. at 505-06, 850 P.2d at 960. This means the portion of the judgment

that Tempel appeals “affect[s],” H-D Irrigating, ¶ 19, or “disturb[s],” Black’s Estate, 32

Mont. at 54, 79 P. at 555, the portion of the judgment under which she accepted benefits.

Accordingly, Tempel waived her right to appeal by accepting the judgment’s benefits.

¶18    Our decision is not grounded in a determination that Tempel’s appeal is moot. See

Progressive Direct Ins. Co. v. Stuinvenga, 2012 MT 75, ¶ 39, 364 Mont. 390, 276 P.3d

867 (“Voluntary compliance with the judgment may result in a waiver of the right to

appeal—in which case it would be unnecessary to address the question of mootness.”).

We do not address Tempel’s arguments regarding the District Court’s evidentiary rulings

because Tempel waived her right to appeal these rulings when she accepted the judgment.

We must, however, consider Tempel’s argument about sanctions because, by accepting

the jury’s verdict and the court’s judgment, Tempel did not necessarily accept the District

Court’s decision on her motion for sanctions. See Cohen v. Va. Elec. & Power Co., 788

F.2d 247, 249 (4th Cir. 1986) (concluding that the appellant waived her right to appeal a

consent judgment but not her right to appeal the imposition of Fed. R. Civ. P. 11

sanctions).

¶19 2. Whether the District Court abused its discretion in determining that Benson’s
conduct did not warrant discovery sanctions.

¶20    During discovery, Tempel asked Benson to admit that, on the day of the car crash,

she operated her “motor vehicle in violation of Mont. Code Ann. §§ 61-8-302, 61-8-343

and 61-8-345.” Section 61-8-302, MCA, addresses careless driving, and §§ 61-8-343 and

-345, MCA, address yielding the right-of-way when entering or crossing a roadway.
                                         9
Benson denied Tempel’s request for admission.         At Benson’s deposition, Tempel’s

counsel read to Benson the statutory definitions of §§ 61-8-343 and -345 and asked her

whether she had yielded the right-of-way. Benson stated that she had not. After the

deposition, Tempel moved under M. R. Civ. P. 37(c)(2) for attorneys’ fees and

reasonable costs associated with proving Benson’s violation of §§ 61-8-343 and -345.

The District Court denied that motion, concluding that Benson reasonably had believed

that she might prevail on the matter.

¶21     M. R. Civ. P. 37(c)(2) provides, “If a party fails to admit what is requested under

Rule 36 and if the requesting party later proves . . . the matter true, the requesting party

may move that the party who failed to admit pay the reasonable expenses, including

attorney fees, incurred in making that proof.” On that motion, a district court must order

sanctions unless, among other things, “the party failing to admit had a reasonable ground

to believe that it might prevail on the matter” or “there was other good reason for the

failure to admit.” M. R. Civ. P. 37(c)(2)(C), (D).

¶22    In a single request for admission, Tempel requested that Benson admit violating

three separate provisions of the MCA. Tempel did not frame her request in the form of

particular facts for Benson to admit or deny. Although Benson later admitted that she

conducted herself in a way that violated §§ 61-8-343 and -345, this admission of fact was

distinct from the legal conclusion sought in Tempel’s written discovery requests.

Further, in moving the District Court for sanctions, Tempel did not provide the court with

proof that Benson admitted violating § 61-8-302 by driving carelessly after first denying

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that fact. Finally, as the District Court noted in its order awarding summary judgment to

Tempel on the issue of Benson’s negligence, Benson had witness statements suggesting

that she was not negligent or careless. We are satisfied that the District Court acted

within its discretion in determining that Benson’s discovery responses did not give rise to

an order for sanctions under M. R. Civ. P. 37(c)(2).

                                    CONCLUSION

¶23    IT IS HEREBY ORDERED that Tempel’s appeal of the verdict is DISMISSED.

We affirm the District Court’s decision not to sanction Benson’s discovery conduct.

       DATED this 17th day of March, 2015.




                                                 /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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