                                                                              FILED
                                                                    COUT-ZT OF APVEALS DIV I
                                                                     STATE OF WASHINGTON

                                                                    20I1NOV 13 AM 10:51




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


DEBRA TALLEY, a single woman;      )            No. 76452-7-1
and AMY J. LAWSON,a single woman,)
                                   )
                    Appellants,    )
                                   )            DIVISION ONE
                    v.             )
                                   )
LANPHERE ENTERPRISES OF            )
WASHINGTON, INC., a Washington     )
corporation d/b/a RENTON HONDA     )
JACOB B. NEARY, personally and as )
agent and/or employee of LANPHERE )
ENTERPRISES OF WASHINGTON          )
INC.; ROBERT D. LANPHERE, JR., as )
President of LANPHERE              )
ENTERPRISES OF WASHINGTON          )
INC,; and JOHN DOES I-V, as agents )
And/or employees of LANPHERE       )
ENTERPRISES OF WASHINGTON, )
INC.,                              )            UNPUBLISHED OPINION
                                   )
                    Respondents.   )            FILED: November 13, 2017
                                   )

       MANN, J. — Debra Talley and Amy Lawson sued Lanphere Enterprises of

Washington, Inc., d/b/a Renton Honda (Renton Honda)for negligence. Renton Honda

admitted that it was negligent but it disputed that its negligence caused Talley and

Lawson's injuries. The jury agreed with Renton Honda and found no proximate cause.
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Talley and Lawson moved the court for a new trial under CR 59(a) because the jury

failed to award damages. The court denied their motions. They appealed, but we find

no abuse of discretion. We do, however, find that Talley and Lawson's appeal is

frivolous. Accordingly, we award Renton Honda its attorney fees and costs on appeal.

                                           FACTS

       On March 2, 2008, Talley and Lawson were passengers in a car that crashed.

An employee of Renton Honda was driving the car at the time of the crash.

       On March 1, 2011, Talley and Lawson sued Renton Honda and its associated

entities for negligence. The case went to trial, but the court ultimately declared a

mistrial after the plaintiffs moved to sever Talley's claims from Lawson's. (The court

ultimately ordered R.E. Bodkin, Talley and Lawson's counsel to'pay for some of the

costs associated with the second trial.)

       On October 24, 2016, a new trial began. Renton Honda admitted that it was

negligent but disputed that its negligence was the proximate cause of the plaintiffs'

claimed injuries. The jury found for Renton Honda. On a special verdict form, the jury

found that Renton Honda's actions were not the proximate cause of Talley and

Lawson's injuries. Since the jury found no proximate cause, it did not reach the issue of

damages.

       Talley and Lawson moved for a new trial under CR 59(a). The court denied the

motion. Talley and Lawson appealed.

                                        ANALYSIS

       Talley and Lawson do not challenge the jury's verdict finding that Renton

Honda's negligence was not the proximate cause of their claimed injuries. Talley and

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Lawson also do not challenge the jury instructions telling the jury that if they did not find

proximate cause that they should not reach damages. Instead, Talley and Lawson

assert that the trial court abused its discretion in denying their CR 59(a) motion for a

new trial. We disagree.

       We review a trial court's denial of a CR 59 motion for abuse of discretion.

Worden v. Smith, 178 Wn. App. 309, 322-23, 314 P.3d 1125(2013). A trial court

abuses its discretion when its decision is manifestly unreasonable, or exercised on

untenable grounds or for untenable reasons. A court abuses its discretion if it bases its

ruling on an incorrect interpretation of the law. We review alleged errors of law de novo.

Smith, 178 Wn. App. at 323.

       Talley and Lawson moved for a new trial under CR 59(a)(5),(7), and (9). We

address each claim in turn.

       CR 59(a)(5) allows the trial court to grant a new trial if damages were so

inadequate that they unmistakably indicate that the verdict was the result of prejudice.

Here, the trial court correctly concluded that damages were not inadequate because the

jury found no proximate cause. The jury was instructed not to award damages if it

found no proximate cause. Talley and Lawson did not challenge this instruction. The

trial court did not abuse its discretion in denying Talley and Lawson's motion under CR

59(a)(5).

       CR 59(a)(7) allows the trial court to grant a new trial after a jury returned a verdict

where "there is no evidence or reasonable inference from the evidence to justify the

verdict." When a proponent of a new trial argues that the jury's verdict was not based

on the evidence, we look to the record to determine whether there was sufficient

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No. 76452-7-1/4


evidence to support the verdict. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597

(1997). We view the evidence in the light most favorable to the nonmoving party.

Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980). The verdict must be

supported by substantial evidence, "evidence of a character which would convince an

unprejudiced, thinking mind of the truth of the fact to which the evidence is directed."

Kelly, 93 Wn.2d at 145. "A jury verdict finding that a defendant is negligent but that the

negligence was not a proximate cause of the plaintiffs injuries is not inconsistent if there

is evidence in the record to support a finding of negligence but also evidence to support

a finding that the resulting injury would have occurred regardless of the defendant's

actions." Estate of Stalkup v. Vancouver Clinic, Inc., P.S., 145 Wn. App. 572, 586, 187

P.3d 291 (2008).

       Here, substantial evidence supports the jury's verdict that Renton Honda's

negligence was not the proximate cause of Talley and Lawson's injuries. The extent of

the plaintiffs' claimed injuries was vigorously disputed at trial. Renton Honda put on

evidence that Talley and Lawson exaggerated their injuries caused by the accident. For

example, Renton Honda admitted a video showing Talley working out in a gym and

appearing to be in much better physical condition than she presented to the jury. An

expert medical witness (neuropsychologist) who reviewed the plaintiffs' medical records

testified that Talley suffered no "bona fide impairment" from the accident. That same

expert also testified that Lawson did not suffer any cognitive disorders as a result of the

accident. Lawson herself testified that she had fallen numerous times since the

accident. Substantial evidence supports the jury verdict.



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No. 76452-7-1/5


       Talley and Lawson argue that because Renton Honda admitted "liability for the

collision and that it caused some injury to each plaintiff' in jury instruction 2, damages

are required. But Talley and Lawson overlook the instruction that specifically addresses

the impact of Renton Honda's admission of liability. Instruction 4 advised the jury that

each plaintiff has the burden of proving "that the March 2, 2008 automobile collision was

a proximate cause of the injury to the plaintiff." The jury was clearly instructed that it

had to determine whether the plaintiffs' alleged injuries were proximately caused by the

collision. Talley and Lawson also argue in passing that instruction 15, which instructed

the jury on the measure of damages in the event that it found proximate cause, required

the jury to award damages after Renton Honda admitted negligence and "some injury"

to each plaintiff. But instruction 15 only applies "[i]f you[]find that defendants

proximately caused injury to a plaintiff." Here, the jury found no'proximate cause. In

addition, Talley and Lawson cite numerous cases where appellate courts have reversed

jury verdicts for inadequate damages, but they cite no case that says that a jury

awarded inadequate damages when the jury did not find proximate cause. The trial

court did not abuse its discretion by denying Talley and Lawson's motion under CR

59(a)(7).

       CR 59(a)(9) allows a trial court to grant a new trial when "substantial justice has

not been done." Talley and Lawson offer no persuasive argument about why

substantial justice was not done. The trial court properly rejected this argument:

       Finally, there is no merit to Plaintiffs' claim that substantial justice has not
       been done. This was a hard-fought case. Plaintiffs called 25 witnesses
       and had almost 90 exhibits admitted into evidence. They had every
       opportunity to present their claims to fourteen conscientious jurors who
       took seriously their responsibilities as officers of the court. Other than

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No. 76452-7-1/6


      their personal disappointment in the verdict, Plaintiffs offer no persuasive
      argument that justice has not been done.

Again, the trial court did not abuse its discretion in denying Talley and Lawson's

motion under CR 59(a)(9).

                                      Attorney Fees

       Renton Honda contends that this appeal is frivolous under RAP 18.9(a). RAP

18.9(a) allows us to order a party to pay terms and compensatory damages if we deem

the appeal frivolous. "[A]n appeal is frivolous if there are no debatable issues upon

which reasonable minds might differ, and it is so totally devoid of merit that there was no

reasonable possibility of reversal." Streater v. White, 26 Wn. App. 430, 435,613 P.2d

187(1980).

       Renton Honda argues that the appeal is frivolous because it raises no debatable

issues of merit. We agree. There is no reasonable possibility of reversal here: Talley

and Lawson ask us to find that a trial court abused its discretion by denying a motion for

a new trial on damages when the jury found no proximate cause and did not reach

damages. This appeal is devoid of merit. Accordingly, we hold that the appeal is

frivolous. Renton Honda may recover its attorney fees and costs on appeal, subject to

compliance with RAP 18.1(d).

       Affirmed.




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