Rosenau v. Heimann

Opinion

COMPTON, Acting P. J.

This case involves a cross-appeal challenging the trial court’s ruling granting a conditional new trial on the issue of excessive damages. Plaintiffs contend in essence that the trial court used incorrect reasons in granting the conditional new trial, should not have reduced damages, and erroneously denied prejudgment interest. Defendant urges that we dismiss the cross-appeal since the underlying appeal has been dismissed and, if not, that we affirm the new trial decision as a proper exercise of the trial court’s discretion.

Procedural History

Plaintiffs Christa Rosenau and Gizela Rezat sued attorney Gerhard Heimann on various theories related to his unauthorized use of funds they brought as immigrants from Germany and placed in bank accounts with defendant as an authorized signatory. A jury returned verdicts in favor of plaintiffs, but the trial court ruled it would grant defendant’s motion for a new trial as to excessive damages unless Ms. Rosenau consented to a reduction of her compensatory damages from $195,200 to $75,000 and her punitive damages from $780,000 to $125,000

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and Ms. Rezat, who was awarded $28,000 in compensatory damages, consented to a reduction of her punitive damages from $85,000 to $35,000. Counsel for plaintiffs agreed to accept the remittitur under protest.

Defendant filed a notice of appeal from the judgment on December 6, 1988. On December 8, 1988, plaintiffs filed a cross-appeal from “the new

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trial order and specifically those portions of the conditional Judgment entered pursuant to the remittitur and calculations of pre-judgment interest.” On December 23, 1988, defendant was notified by the superior court that he was in default for failure to file a notice designating record on appeal. This court found defendant in default and dismissed his appeal August 10, 1989. The remittitur related to the dismissal of defendant’s appeal issued October 12, 1989, and it was ordered that plaintiffs should recover costs on appeal.

Plaintiffs had been notified of their failure to file a notice designating record for their cross-appeal in a notice filed in the superior court December 27, 1988; they moved for relief from default, which was granted by this court on January 24, 1989. Plaintiffs filed their opening brief September 18, 1989, between the date of the order of dismissal of defendant’s appeal and the issuance of the remittitur; and defendant filed his cross-respondent’s brief October 17, 1989.