Baum v. S. S. Kresge Co.

Decision Date07 January 1982
Docket NumberT,No. 4453,No. 79CA0585,K-M,4453,79CA0585
Citation646 P.2d 400
PartiesMary T. BAUM and James J. Baum, Plaintiffs-Appellees, v. S. S. KRESGE COMPANY, d/b/aart Discount Storeed Quintana, Bobby Franklin, and Shirley Dobson, Defendants-Appellants. . III
CourtColorado Court of Appeals

Preston, Altman, Parlapiano, Keilbach & Lytle, John J. Keilbach, Pueblo, for plaintiffs-appellees.

Rector, Retherford, Mullen & Johnson, Anthony A. Johnson, Colorado Springs, for defendants-appellants.

PIERCE, Judge.

Plaintiffs, Mary and James Baum, brought this action for slander, false arrest, and malicious prosecution. The jury in the first trial found all issues in favor of defendants. Plaintiffs, however, were granted a new trial based upon errors in certain jury instructions. A second trial was held and a verdict rendered in favor of the Baums against all defendants for false arrest and malicious prosecution. Defendants contend that the trial court erred in granting plaintiffs' motion for new trial. We agree and therefore reverse and remand.

This court is not restricted to reviewing the propriety of the denial of the defendants' motion for new trial after the second trial. C.R.C.P. 59(g) states:

"The granting of a motion for a new trial shall not be an appealable order, but a party by participating in the new trial shall not be deemed to have waived any objections to the granting of the motion, and the validity of the order granting the motion may be raised by appeal after final judgment has been entered in the case."

Thus, since final judgment has been entered and the notice of appeal designated the granting of a new trial in favor of plaintiffs as error, that issue is properly before this court. See Rice v. Groat, 167 Colo. 554, 449 P.2d 355 (1969); Board of County Commissioners v. Evergreen, Inc., 35 Colo.App. 171, 532 P.2d 777 (1974).

The defendants first argue that jury Instructions 18, 19, 25 and 26, found to be erroneous by the trial court, should not have been the basis for granting a new trial. We agree with this argument.

A party must make a contemporaneous objection to an instruction, and that objection must be specific to be granted a new trial on an erroneous instruction. "Only the grounds so specified shall be considered on motion for new trial or on appeal ...." C.R.C.P. 51. Thus, although the trial court has great discretion in granting a motion for new trial, that order is reversible where, as here, the objections to the jury instructions were not contemporaneously made, or not specifically made on the same grounds as stated in the motion for new trial. See DeMott v. Smith, 29 Colo.App. 531, 486 P.2d 451 (1971).

The purpose behind the contemporaneous objection requirement of C.R.C.P. 51 is to allow the court to correct or clarify erroneous instructions before they are given to the jury. See First National Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979). The untoward result of not following this rule is illustrated here where the late specification of the objections, and the court's consideration thereof, resulted in a costly retrial.

We are aware that there is an exception to this rule which was set forth in First National Bank v. Campbell, supra. However, that exception is not applicable here since the trial court did not act sua sponte within 15 days under C.R.C.P. 59(d). The trial court's order was solely based on the various contentions made in plaintiffs' motion for a new trial and was not rendered within 15 days after judgment. See First National Bank v. Campbell, supra; Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963).

The trial court in granting the motion also considered the denial of plaintiffs' tendered Instruction 53(a) dealing with probable cause in the context of defendants' alleged malicious prosecution. Plaintiffs contemporaneously objected to the...

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3 cases
  • Vikell Investors Pacific, Inc. v. Hampden, Ltd.
    • United States
    • Colorado Court of Appeals
    • September 18, 1997
    ...for appeal. Instead, counsel must state the specific grounds of his or her objections for consideration of the court, Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo.App.1982), and only the grounds so specified shall be considered on appeal. Also, C.R.C.P. 51 mandates that a party must raise ob......
  • Nichols v. Burlington Northern and Santa Fe
    • United States
    • Colorado Court of Appeals
    • March 23, 2006
    ...before the forms are given to the jury. See Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo.1996); Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo.App.1982). We may consider errors in verdict forms only to the extent that the grounds on appeal were specified by objection before the ......
  • Williams v. Chrysler Ins. Co., 95CA0521
    • United States
    • Colorado Court of Appeals
    • July 11, 1996
    ...ruled on the objections. Accordingly, plaintiffs appropriately raised their objections and did not waive them. See Baum v. S.S. Kresge Co., 646 P.2d 400 (Colo.App.1982). II. Plaintiffs contend that the special verdict form and certain jury instructions submitted to the jury by the trial cou......

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