Appellate practice: timely objection/motion required in trial court to preserve error.

In re Estate of Tucker, 2011 VT 54
Appellant, testator’s daughter, seeks reversal of the trial court’s judgment declining to admit testator’s purported last will and testament to probate. This judgment followed a trial by jury, which rendered a special verdict finding that testator lacked testamentary capacity. Appellant raises various issues relating to the burden of proof, the jury instructions, and the denial of post-judgment motions. We conclude that all of appellant’s claims are moot or unpreserved, and accordingly, we affirm.

Daughter’s first claim of error relates solely to the court’s decision in allocating the burden of proof on undue influence. The jury rendered its verdict solely on testamentary capacity. Daughter must show that the asserted error produced prejudice and the jury relied upon the asserted error. See Lorrain v. Ryan, 160 Vt. 202, 209, 628 A.2d 543, 548 (1993) (“[Appellants] must show that an error in instructing the jury produced prejudice.

. . . Where there are multiple theories that could support the jury’s action, it is appellant’s responsibility to demonstrate . . . that the jury relied on the erroneous theory.”). Here, the asserted error played no part in the jury’s verdict, so there could be no prejudice. See Parizo v. Wilson, 101 Vt. 514, 518, 144 A. 856, 858 (1929) (“The rule is well settled that a judgment will not be reversed for an error that, by the verdict, is rendered immaterial.”).

Daughter next claims that the trial court erred in failing to inform the jury from the outset that the burden of proof for testamentary capacity was on daughter.We conclude that the late objection does not properly preserve the reservation of burden of proof issue for appeal. In addition to requiring that a party raise objections with “specificity and clarity,” In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (quotation omitted), we also require that an objection be raised in a “timely manner,” Burton v. Jeremiah Beach Parker Restoration & Constr. Mgmt. Corp., 2010 VT 55, ¶ 6, ___ Vt. ___, 6 A.3d 38, and “in a manner which gives the trial court a fair opportunity to rule on it.” White, 172 Vt. at 343, 779 A.2d at 1270 (quotation omitted). Daughter’s objection to the reservation of the burden of proof was not timely and failed to give the trial court an opportunity to properly consider the issue and to weigh her reasons for claiming that a determination of the burden of proof should not be reserved.

We also decline to reach argument about the instructions because daughter did not properly preserve it before the trial court. Vermont Rule of Civil Procedure 51(b) specifically addresses the requirement of objections to jury instructions in order to preserve claims of error. It states that “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” To preserve an objection to jury instructions, a party must additionally renew any objection made during the charge conference after the court instructs the jury. Venturella v. Addison-Rutland Supervisory Union, 2010 VT 115, ¶ 5, ___ Vt. ___, 12 A.3d 558 (mem.). In this case, daughter raised no objection at the trial court about the court’s failure to instruct the jury on insane delusions.

Lastly, we address daughter’s argument that the trial court erred in failing to rule in her favor on a number of post-trial motions. The motions that daughter raises on appeal include: (1) a motion for judgment as a matter of law; (2) a motion for relief from judgment; (3) a motion for a new trial. We hold the trial court properly denied daughter’s post-trial motion for judgment as a matter of law. Daughter did not make a motion for judgment as a matter of law before the submission of the case to the jury. See V.R.C.P. 50(a)(2) (“Motions for judgment as a matter of law may be made at any time before submission of the case to the jury.”). In the absence of such a motion, daughter’s challenge to the sufficiency of the evidence is waived, Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 27, 187 Vt. 309, 992 A.2d 1042, and the trial court properly denied the post-verdict motion on this ground. The other post-verdict motions all relate to daughter’s claim, discussed above, that the trial court failed to allocate the burden of proof on testamentary capacity prior to trial. As we have held above, this claim—made in different forms in daughter’s various arguments—was waived. Daughter could not save this claim by including it in post-verdict motions.