                                                                                           February 10 2015


                                            DA 14-0304
                                                                                           Case Number: DA 14-0304

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 35N



JESSICA BRACHA,

              Plaintiff and Appellant,

         v.

THE ESTATE OF BERNICE HANLEY,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADV-12-0409
                        Honorable Greg Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John E. Seidlitz, Jr., Seidlitz Law Office, Great Falls, Montana

                        James P. O’Brien, O’Brien Law Office, Missoula, Montana

                For Appellee:

                        Paul R. Haffeman, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls,
                        Montana



                                                      Submitted on Briefs: January 7, 2015
                                                                 Decided: February 10, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     On the afternoon of April 5, 2012, Jessica Bracha was traveling west on Central

Avenue near the intersection of 9th Street NW in Great Falls, Montana. At the same time,

Bernice Hanley was traveling east on Central Avenue. Upon reaching the intersection of 9th

Street, Hanley turned left onto 9th Street NW. Bracha was unable to stop her vehicle in time

and collided with Hanley’s vehicle. Bracha incurred serious and permanent injuries as a

result of the accident. Hanley was issued a citation and entered into an agreement with the

County Attorney’s Office under which she agreed to be responsible for any restitution in

return for a reduced penalty.

¶3     Hanley died of natural causes on April 19, 2012. In May 2012, Bracha sued Hanley

in the Eighth Judicial District Court, Cascade County, for careless and negligent operation of

a vehicle. Hanley’s Estate became the defendant in the case. The Estate countered that

Bracha was comparatively negligent. It also filed a motion in limine seeking to exclude

evidence of the issuance of a citation to Hanley and Hanley’s statement against interest

conceding financial responsibility for Bracha’s medical expenses. The District Court granted

the Estate’s motion in limine.

¶4     A jury trial was conducted on February 19-20, 2014. At the close of the Estate’s case,

Bracha moved “for a directed verdict on the issue of negligence,” which the District Court


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denied. Subsequently, the jury returned a verdict in favor of the Estate determining that

Hanley was not negligent. The District Court issued Judgment on February 26, 2014, under

which Bracha received nothing and had to pay the Estate’s costs of the action. Bracha

moved for a new trial and the District Court denied the motion. Bracha appeals. We affirm.

¶5     Bracha sets forth three issues on appeal:

       1. Did the District Court abuse its discretion in granting Hanley’s motion in
          limine?

       2. Did the District Court err in denying Bracha’s motion for a directed
          verdict?

       3. Did the District Court abuse its discretion in denying Bracha’s motion for
          a new trial?

¶6     Bracha argues that the District Court abused its discretion in granting the Estate’s

motion in limine. She claims that Hanley passed away before being deposed in this action;

therefore, Hanley’s only statements pertaining to the accident, including a statement

accepting responsibility, were contained in the agreement with the County Attorney’s Office.

Bracha asserts that without this evidence she could not fairly challenge the Estate’s general

denial of negligence and causation.

¶7     A motion in limine is intended to prevent the introduction of evidence that is

inadmissible, irrelevant, immaterial, inflammatory or unfairly prejudicial. Hulse v. DOJ,

Motor Vehicle Div., 1998 MT 108, ¶ 15, 289 Mont. 1, 961 P.2d 75. Here, the motion sought

to exclude evidence that Hanley had received a traffic citation and that she had entered into a

deferred prosecution agreement with the County Attorney’s Office by accepting financial

responsibility. These actions relate to criminal proceedings while the cause of action before



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us is a civil proceeding. As we noted in Smith v. Rorvik, 231 Mont. 85, 90, 751 P.2d 1053,

1056 (1988) (citations omitted), the “elements of proof in civil and criminal trials are

decidedly different. Evidence that the officer did not issue a criminal citation to the

appellant is generally irrelevant to the question of negligence in a civil trial.”

¶8     During the trial, Bracha conceded that, based upon Rorvik, the District Court had legal

authority to exclude the traffic citation from evidence but she argued that the deferred

prosecution agreement—or at least the part of the agreement where Hanley accepted

financial responsibility—should be admitted. The court determined, however, that the

agreement itself referred to the citation. Additionally, providing the jury with parts of the

deferred prosecution agreement without explanation would likely cause confusion and

speculation. While another court may have exercised its discretion to admit the evidence, the

question before us is not whether the evidence was arguably admissible, but whether the

District Court abused its discretion by excluding it. We conclude it did not. The court’s

expressed concerns that the jury would want to know the context in which Hanley signed a

document accepting financial responsibility and would be confused by the injection of a

criminal case document into the negligence case justified the use of discretion to exclude it.

¶9     We review a district court’s grant or denial of a motion for a directed verdict de novo.

State v. Kirn, 2012 MT 69, ¶ 8, 364 Mont. 356, 274 P.3d 746. On appeal, Bracha argues that

at the close of the Estate’s presentation of evidence, she sought a directed verdict that

Hanley’s negligence caused the accident and that she was not comparatively negligent. The

Estate objected to the motion, noting that “adequate evidence to call into question both

party’s negligence” had been presented to the jury. The District Court explained that the


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standard for granting a directed verdict was “when there’s a complete absence of any

evidence to warrant submission to a jury.” In a narrow ruling, the court observed that

evidence that Bracha was speeding at the time of the accident was before the jury, and

therefore a directed verdict on her comparative negligence was not appropriate.

¶10    Additionally, the record indicates that Bracha’s motion for a directed verdict lacked

specificity. The District Court initially surmised that her motion sought only a ruling that

Bracha herself was not comparatively negligent, and it did not recognize that Bracha was

requesting a directed verdict as to Hanley’s negligence. We note, however, that the court

denied the directed verdict after determining that there was evidence before the jury

regarding both Hanley’s alleged negligence and Bracha’s comparative negligence.

Subsequently, in denying Bracha’s motion for a new trial, the court explained that had

Bracha unequivocally moved for a directed verdict as to Hanley’s negligence at trial, the

motion would still have been denied for the reasons the Estate put forth in opposing the

direct verdict motion. For these reasons, we conclude the District Court did not err when it

denied Bracha’s motion for directed verdict.

¶11    Lastly, we review a district court’s decision to deny a motion for a new trial on the

grounds enumerated in § 25-11-102, MCA, for an abuse of discretion. The decision to grant

or deny a new trial is within the sound discretion of the trial judge and will not be disturbed

absent a showing of manifest abuse of that discretion. Cooper v. Hanson, 2010 MT 113,

¶ 28, 356 Mont. 309, 234 P.3d 59.

¶12    Bracha claimed that under §§ 25-11-102(1), (6) and (7), MCA, there was irregularity

in the proceedings, insufficiency of the evidence to justify the verdict, and an error in law


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during the trial. She argued that the District Court’s failure to address and grant her directed

verdict motion as to Hanley’s negligence constituted an irregularity in the proceedings and

an error in law which resulted in the jury’s verdict that Hanley was not negligent.

¶13    The jury was presented with substantial conflicting evidence about the accident that

occurred on April 5, 2012. It is well-established that weighing such conflicting evidence is

the province of the jury. Campbell v. Canty, 1998 MT 278, ¶ 19, 291 Mont. 398, 969 P.2d

268. Here, after weighing the evidence and determining the credibility of the witnesses, the

jury concluded that Hanley executed a proper left turn in accordance with applicable law and

therefore was not negligent. There is sufficient evidence in the record to support the jury’s

verdict.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of facts are supported by substantial evidence and the legal issues

are controlled by settled Montana law which the District Court correctly interpreted. We

therefore affirm the District Court.


                                                   /S/ PATRICIA COTTER

We Concur:


/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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