Opinion
No. 1999-C-3305
February 4, 2000
IN RE: Sallinger, Michael; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, Nos. 78033; to the Court of Appeal, First Circuit, No. 98 CA 2160
Granted in part, otherwise denied. The ruling of the Court of Appeal that plaintiff was precluded from raising the failure of the jury to award general damages is vacated and set aside. The case is remanded to the Court of Appeal to determine the merits of this issue and to reexamine the allocation of costs.
JPV
PFC
WFM
BJJ
CDT
JTK
KIMBALL, J., not on panel.
LEMMON, J., concurs with reasons.
The purpose of the requirement of a contemporaneous objection is to alert the judge to a problem recognized by the attorney at a time when the judge can correct the error, if there is one. A party generally cannot "sit on an error" at the appropriate time for correcting the error and then raise the error on appeal, when it is too late for correction by the trial court.
There was an error in the present case. La. Code Civ.Proc. art. 1813E requires the judge, when the jury's answers are inconsistent with each other, either to return the jury for further consideration of its answers (the "jury apparently was still available for further deliberation in the present case when the objection was attempted) or to order a new trial.
This court has never addressed the issue whether a party's failure to make a contemporaneous objection to an error in the jury's answers under La. Code Civ. Proc art. 1813 precludes the party from raising the error on appeal. See Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742. However, there is no need to reach that issue here, because the party made a contemporaneous objection that was overruled.
Plaintiff's counsel erroneously asked for relief in the form of a judgment notwithstanding the verdict (JNOV), and the judge interrupted the objection and ruled that a JNOV motion must be in writing. However, as the court of appeal observed, counsel was aware immediately of the inconsistent answers, and he timely attempted to call the inconsistency to the attention of the court. Moreover, a timely post-judgment written motion for a JNOV would have been too late for the trial judge to correct the error.