Bobbie Teeple v. Estate of Dylan Cox

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0800

Bobbie Teeple, et al.,
Appellants,

vs.

Estate of Dylan Cox, et al.,
Respondents.

Filed May 18, 2015
Affirmed
Johnson, Judge

Otter Tail County District Court
File No. 56-CV-12-2339

David O.N. Johnson, Meyer, Puklich, Merriam & Johnson, P.L.C., Eden Prairie,
Minnesota (for appellants)

Paul R. Aamodt, Minneapolis, Minnesota (for respondents)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Stoneburner, Judge.

UNPUBLISHED OPINION

JOHNSON, Judge

A teenage boy shot and killed his teenage girlfriend and then himself. Several of

the girl’s relatives brought this wrongful-death case against the boy’s parents and the


Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
boy’s estate. An Otter Tail County jury found that the boy’s parents are not responsible

for the girl’s death. The jury found that the boy’s estate is responsible but did not award

money damages. On appeal, the girl’s relatives seek a new trial on the issue of damages.

We affirm.

FACTS

On March 21, 2011, Dylan Cox shot and killed Tabitha Belmonte with a shotgun

and then shot and killed himself. At the time, Cox and Belmonte were high-school

students and teenage parents. They were living with their infant daughter and Cox’s

parents in a home owned by Cox’s parents.

In August 2012, nine of Belmonte’s relatives and Belmonte’s estate commenced

this wrongful-death action against Cox’s estate and Cox’s parents. The named plaintiffs

include Belmonte’s mother, Bobbi Teeple; Belmonte’s half-brother, Nathaniel Grismer;

and Belmonte’s maternal grandfather, Theodore D. Bergeron.1 The complaint alleged an

intentional-tort claim against Cox’s estate and a negligence claim against Cox’s parents.

The case was tried to a jury on three days in January 2014. The jury returned a

special-verdict form in which it found that Cox’s possession of a shotgun did not create a

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The partial appellate record indicates that some of the remaining plaintiffs are not
“next of kin” and, thus, may not assert a wrongful-death claim. “[F]or the purpose of the
wrongful death statute, ‘next of kin’ means blood relatives who are members of the class
from which beneficiaries are chosen under the intestacy statute.” Wynkoop v. Carpenter,
574 N.W.2d 422, 427 (Minn. 1998). The term “next of kin” includes “a decedent’s issue,
parents and parents’ issue,” and “grandparents and descendants of grandparents.” Id.
(citing Minn. Stat. § 524.2-103 (1992 & 1996) (intestacy statute)). Steven Teeple, Sr., is
married to Bobbi Teeple but did not adopt Belmonte. Laura E. Bunten is a daughter of
Steven Teeple, Sr. Steven L. Teeple, Jr., presumably is a son of Steven Teeple, Sr. The
record does not reveal the relationship between Belmonte and plaintiffs Tiffany Teeple,
Theodore J. Bergeron, and Denise L. Niehaus.

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foreseeable risk of injury to others, which defeated the negligence claim against Cox’s

parents. The jury also found that the shooting was not caused by mental illness or mental

defect, which would make Cox’s estate liable for any compensable injuries sustained by

the plaintiffs. But when asked, “What sum of money will fairly and adequately

compensate plaintiffs for pecuniary damages arising from the death of Tabitha

Belmonte?,” the jury answered, “$0.” No party filed a post-trial motion. In March 2014,

the district court administrator entered judgment in favor of the defendants and against

the plaintiffs. The plaintiffs appeal from the judgment entered in favor of Cox’s estate.

DECISION

Appellants argue that they are entitled to a new trial on the issue of damages.

Specifically, they argue that the jury’s decision to not award damages is contrary to the

evidence and is the result of passion or prejudice. In response, Cox’s estate argues that

(1) appellants cannot obtain a new trial from this court because they did not move for a

new trial in the district court, (2) appellants cannot obtain appellate review because they

have not provided this court with an adequate transcript of the trial, and (3) appellants’

arguments are without merit because the jury’s verdict is justified by the evidence.

Cox’s estate is correct that appellants are not entitled to appellate relief for the

three reasons stated. First, appellants cannot obtain appellate relief because they failed to

move for a new trial in the district court. Appellants could have asked the district court to

grant them a new trial on damages by bringing a motion pursuant to rule 59 of the

Minnesota Rules of Civil Procedure. See Minn. R. Civ. P. 59.01(e), (g). They did not do

so. As the supreme court explained in Sauter v. Wasemiller,

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 the motion for a new trial provides both trial court and
counsel with a unique opportunity to eliminate the need for
appellate review or to more fully develop critical aspects of
the record in the event appellate review is sought. Counsel is
required to focus the trial court’s attention on the specifics of
an objection which, though properly framed during trial,
might not have been fully explained or the impact of which
might not have been understood during trial. The trial court
is given time for reflection and the opportunity to consider the
context in which the alleged error occurred and the effect it
might have had upon the outcome of the litigation. In short, it
is given the opportunity to correct its own errors without
subjecting the parties and the appellate courts to the time,
expense and inconvenience involved in an appeal.

389 N.W.2d 200, 201-02 (Minn. 1986).

If appellants had moved for a new trial before taking this appeal, we would have

reviewed the district court’s ruling with great deference because a district court has broad

discretion to grant or deny a motion for new trial such that “we will reverse that decision

only for a clear abuse of that discretion.” Frazier v. Burlington N. Santa Fe Corp., 811

N.W.2d 618, 629 (Minn. 2012). Indeed, district courts have the “broadest possible

discretion” when considering whether a new trial is necessary due to excessive or

insufficient damages. See Bisbee v. Ruppert, 306 Minn. 39, 48, 235 N.W.2d 364, 371

(1975). Because appellants did not bring a motion for new trial, the district court never

had an opportunity to consider whether, in its discretion, a new trial is warranted. If an

appellant did not move for a new trial in the district court but seeks a new trial on appeal,

an appellate court will not consider the appellant’s new-trial argument for the first time

on appeal. Sauter, 389 N.W.2d at 201-02; Heise v. J.R. Clark Co., 245 Minn. 179, 191,

71 N.W.2d 818, 826 (1955) (citing cases); cf. Alpha Real Estate Co. v. Delta Dental

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Plan, 664 N.W.2d 303, 311 (Minn. 2003); Tyroll v. Private Label Chemicals, Inc., 505

N.W.2d 54, 56 (Minn. 1993). In the absence of a post-trial motion for new trial, an

appellant may obtain only limited appellate review of the questions whether the evidence

sustains the findings of fact and whether the findings sustain the conclusions of law and

the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).

But we need not consider those questions in this case because appellants do not argue that

they are entitled to judgment as a matter of law and do not seek that form of limited

appellate review. See Heise, 245 Minn. at 191, 71 N.W.2d at 826; Moen v. Sunstone

Hotel Properties, Inc., 818 N.W.2d 573, 581-82 (Minn. App. 2012).

Second, even if we were to consider appellants’ arguments for a new trial for the

first time on appeal, appellants could not obtain appellate relief because they failed to

provide this court with an adequate trial transcript. As a general rule, the appellant shall

“order from the reporter a transcript of those parts of the proceedings not already part of

the record which are deemed necessary for inclusion in the record.” Minn. R. Civ. App.

P. 110.02, subd. 1(a). If a transcript is necessary for the proper consideration of the

issues presented on appeal but the appellant has not submitted the necessary parts, this

court will not consider the merits of the appeal. See State v. Anderson, 351 N.W.2d 1, 2

(Minn. 1984); Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977); Noltimier v.

Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968); Collins v. Waconia Dodge,

Inc., 793 N.W.2d 142, 146 (Minn. App. 2011), review denied (Minn. Mar. 15, 2011);

State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986); Fritz v. Fritz, 390 N.W.2d

924, 925 (Minn. App. 1986). This principle applies with full force when an appellant

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seeks a new trial on the ground that the verdict is not justified by the evidence, Custom

Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976), and, more

specifically, when the challenged issue is the amount of damages, Bowman v. Pamida,

Inc., 261 N.W.2d 594, 596 n.3 (Minn. 1977).

In this case, appellants ordered only a partial transcript. Appellants’ partial

transcript included the testimony of five trial witnesses and plaintiffs’ closing argument.

Cox’s estate supplemented appellants’ partial transcript by supplying transcriptions of the

testimony of two additional trial witnesses and defendants’ closing argument. Cox’s

estate contends that the partial transcript, even after supplementation, is insufficient

because it lacks the testimony of “several additional witnesses,” including Cox’s mother.

We are left to wonder because the record available to this court does not indicate how

many witnesses testified at trial. The burden of producing an adequate appellate record

falls on appellants. See Custom Farm Servs., 306 Minn. at 572, 238 N.W.2d at 609.

Appellants have not satisfied that burden.

Third, even if we were to consider appellants’ arguments for a new trial for the

first time on appeal, and even if the existing partial transcript were sufficient to allow

appellate review, we would conclude that the jury’s verdict is justified by the evidence

and is not the result of passion or prejudice. In a wrongful-death case, a decedent’s next

of kin

may be compensated not only for actual pecuniary loss of
contributions and services but should be compensated as well
for loss of advice, comfort, assistance, and protection which
the jury might find to be of pecuniary value and which the

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 survivor could reasonably have expected if the decedent had
lived.

Fussner v. Andert, 261 Minn. 347, 359, 113 N.W.2d 355, 363 (1961). But a plaintiff in a

wrongful-death case may not recover damages for his or her mental anguish. Id. at 350,

113 N.W.2d at 357. As the supreme court has recognized, “all verdicts attempting to

compensate for the death of a minor child may be arbitrary attempts at a difficult, if not

impossible, task,” such that an appellate court should “extend[] deference to amounts

awarded by trial courts.” Pehrson v. Kistner, 301 Minn. 299, 303, 222 N.W.2d 334, 337

(1974).

Despite the limited appellate record, the jury’s verdict with respect to damages

appears to be justified by the absence or paucity of evidence of any compensable injury.

The partial transcript does not contain any evidence that, after Belmonte gave birth to a

child and became a mother, any plaintiff relied on her for financial contributions or

services. See Fussner, 261 Minn. at 359, 113 N.W.2d at 363. Notably, Belmonte’s

infant daughter is not a party to this case. Furthermore, the partial transcript contains

very little evidence that Belmonte provided appellants with “advice, comfort, assistance,

and protection” during the period of time before her death. See id. For example, in the

seven months between her daughter’s birth and her own death, Belmonte received just

one visit from any of the plaintiffs, and that visit was only 20 minutes in duration.

Belmonte’s mother, Teeple, was out of town for much of that seven-month period, during

which time Belmonte resided with Cox’s parents, who provided assistance to the young

parents and helped them care for their baby. In short, the evidence does not provide a

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strong basis for plaintiffs to prove that Belmonte’s death deprived them of contributions,

services, advice, comfort, assistance, or protection that they “could reasonably have

expected if the decedent had lived.” See id. at 359, 113 N.W.2d at 363. It appears that

the jury made appropriate distinctions between those forms of injury, which are

compensable in a wrongful-death case, and mental anguish, which is not compensable in

a wrongful-death case. See id. at 350, 113 N.W.2d at 357. The jury had no easy task

because the evidence shows that both families experienced great sorrow from losing two

young family members. The record available to us does not lead to the conclusion that

the jury’s verdict is not justified by the evidence or is the result of passion or prejudice.

In the conclusion of their brief, appellants request that this court “make an additur

of an appropriate amount to compensate the family for its loss of Tabitha’s services.”

Appellants do not make an argument for additur in the argument section of their brief and

do not provide any legal authority for such a remedy anywhere in their brief. Thus, we

decline to consider the issue. See Minn. R. Civ. App. P. 128.02, subd. 1(d) (requiring

citations to legal authority); State Dept. of Labor & Indus. v. Wintz Parcel Drivers, Inc.,

558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issue “in the absence of adequate

briefing”).

Affirmed.

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