Carrier v. Pro-Tech Restoration

• Decision Date: 08 August 1997
• Docket Number: No. 960118,PRO-TECH,960118
• Citation: 944 P.2d 346
• Parties: 327 Utah Adv. Rep. 3 Shirley CARRIER, Plaintiff and Respondent, v.RESTORATION dba Stone Carpets, William Roger Smith, and The City of Pleasant Grove, Defendants and Petitioners.
• Court: Utah Supreme Court

Page 346

944 P.2d 346

327 Utah Adv. Rep. 3

Shirley CARRIER, Plaintiff and Respondent, v. PRO-TECH RESTORATION dba Stone Carpets, William Roger Smith, and The City of Pleasant Grove, Defendants and Petitioners.

No. 960118.

Supreme Court of Utah.

Aug. 8, 1997.

Lynn C. Harris, Provo, and Vicki Rinne, Highland, for Carrier.

M. Dayle Jeffs, Provo, for Pro-Tech Restoration and Stone Carpets.

Robert L. Moody, Provo, for Smith.

John M. Chipman, Salt Lake City, for Pleasant Grove.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

ZIMMERMAN, Chief Justice:

Defendant Pro-Tech Restoration ("Pro-Tech") seeks review of the court of appeals' decision ordering a new trial because the trial court had incorrectly determined that Pro-Tech and defendant William Smith had sufficiently disparate interests to warrant separate allocations of peremptory challenges under rule 47 of the Utah Rules of Civil Procedure. See Carrier v. Pro-Tech Restoration, 909 P.2d 271 (Ct.App.1995), cert. granted, 920 P.2d 1194 (Utah 1996). Pro-Tech argues that the court of appeals applied the wrong standard of review and incorrectly presumed that allocating too many peremptory challenges to defendants prejudiced plaintiff Shirley Carrier. Pro-Tech further argues that rule 47, as interpreted by the court of appeals, violates constitutional guarantees of due process and equal protection under the Fifth and Fourteenth Amendments of the United States Constitution, respectively, and the constitutional guarantee of uniform operation of the laws under article I, section 24 of the Utah Constitution. Defendant Pleasant Grove City joins in Pro-Tech's challenge and additionally argues that the court of appeals erred in concluding that all three defendants presented a united front against plaintiff. We affirm.

We begin with a brief review of the facts before addressing the appropriate standard of review and our analysis. This case arose out of an automobile accident between plaintiff Carrier and defendant Smith in Pleasant Grove, Utah. At the time of the accident, Smith was working for Pro-Tech, driving one of its vans south on 500 East as he approached the intersection of 1100 North and 500 East. This intersection was usually controlled by a stop sign on 500 East, but the stop sign was missing on the day of the accident. Carrier, who was driving east on 1100 North, collided with Smith as he crossed the intersection.

Carrier brought a negligence action against Smith, Pro-Tech, and Pleasant Grove City. She sued Smith on the basis of his alleged negligent operation of the van, Pro-Tech on the theory of respondeat superior, and Pleasant Grove on the basis of its alleged negligent failure to maintain the stop sign. Each defendant answered Carrier's complaint by asserting that she was more at fault in causing the accident than they.

Initially, Smith and Pro-Tech were represented by the same attorney. During the early stages of the litigation, Smith left Pro-Tech's employ for reasons unrelated to the instant case. Later, Smith testified at his deposition that Pro-Tech had instructed him to provide false information regarding the accident to place more blame for the accident on Carrier. Pro-Tech denied this charge. Eventually, this dispute with Pro-Tech led Smith to obtain separate counsel.

Prior to trial but after the dispute between Smith and Pro-Tech arose, Carrier moved to limit the number of peremptory challenges to be allotted to defendants under rule 47 of the Utah Rules of Civil Procedure. In her memorandum in support of this motion, Carrier argued that rule 47 requires that co-parties be awarded only one set of peremptory challenges. The trial court denied Carrier's motion and granted each defendant three peremptory challenges for the selection of the main jury panel and one challenge for selecting the alternate juror. Carrier disputed the accuracy of the trial court's ruling as to Smith and Pro-Tech ¹ and requested that the trial court place the reasons for its ruling on the record. In response, the trial court stated, "[T]hey are disparate enough just by the nature of the case to permit [allocating separate sets of peremptory challenges]." Though the trial court relied upon "the nature of the case" to justify its decision, there were no cross-claims between any of the defendants and no counterclaims against plaintiff. Furthermore, "[t]here was no separate, related litigation between any of the defendants." Id. at 272.

The case was then tried before a jury. The jury returned a verdict finding Carrier sixty percent negligent, Smith forty percent negligent, and Pleasant Grove free of fault. Carrier moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied these motions. Subsequently, Carrier moved for relief from judgment, arguing that under a recent case issued by this court, the trial court had erred by granting separate sets of peremptory challenges to Smith and Pro-Tech. See Randle v. Allen, 862 P.2d 1329 (Utah 1993). The trial court denied this motion.

Thereafter, Carrier filed a notice of appeal and then sought summary disposition from this court. We declined to summarily reverse but instead deferred our ruling "until plenary presentation and consideration of the case." See Utah R.App. P. 10(f). After the parties submitted their briefs, we poured the case to the court of appeals.

The court of appeals reversed the trial court's decision to allocate separate peremptory challenges to Smith and Pro-Tech. Carrier, 909 P.2d at 276. The court reasoned that under rule 47 and our cases interpreting that rule, there was not a "substantial controversy" between Smith and Pro-Tech, ² stating:

At the time the trial court ruled on plaintiff's pretrial motion, it knew no cross-claims had been asserted, had no indication whatsoever that Smith intended to file an independent suit against Pro-Tech, and had no reason to think there was fundamental incompatibility among defendants in terms of the theories each would advance. On the contrary, defendants jointly urged a single defense: plaintiff was more negligent than Pro-Tech's employee, Smith.

Id. at 274-75. Pro-Tech filed a petition for rehearing, which was denied by the court of appeals. Pro-Tech then filed a petition for a writ of certiorari with this court, and we granted the petition. 920 P.2d at 1194.

We now address the appropriate standard of review. On certiorari, we review the decision of the court of appeals, not of the trial court. Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992). "We review the court of appeals' decision for correctness and give its conclusions of law no deference." Newspaper Agency Corp. v. Auditing Div., 938 P.2d 266, 267 (Utah 1997) (citing State v. Christensen, 866 P.2d 533, 535 (Utah 1993)).

The correctness of the court of appeals' decision depends initially upon whether it applied the appropriate standard of review to the trial court's decision. Id. The court of appeals characterized the standard of review as follows:

This appeal turns on the interpretation of Rule 47 of the Utah Rules of Civil Procedure and, thus, presents a question of law. "[W]e accord conclusions of law no particular deference, but review them for correctness."

Carrier, 909 P.2d at 272 (quoting Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985)) (additional citation omitted). We conclude that this is a mischaracterization of the effective standard of review: first, because this case does not turn on a single interpretation of the rule's language, but upon a determination of the legal effect of a set of facts; and, second, because in reviewing such a determination, an appellate court must address the appropriate level of discretion that should be granted to the trial court's ruling as to the legal effect of those facts. The precise issue presented is one we have not addressed before. Therefore, in the interest of analytical clarity for future cases, we think it important to explicitly discuss it.

To explain: The issue presented to the court of appeals was the correctness of the trial court's decision under rule 47 of the Utah Rules of Civil Procedure to allocate separate sets of peremptory challenges to defendants. Rule 47(e) provides, "Each party shall be entitled to three peremptory challenges, except as provided under Subdivisions (b) and (c) of this rule." Utah R. Civ. P. 47(e). Subdivision (c), the focus of the instant dispute, states in relevant part, "Either party may challenge the jurors, but where there are several parties on either side, they must join in a challenge before it can be made." Id. R. 47(c) (emphasis added). This language appears to give no discretion to the trial court and would therefore seem a pure law question, as the court of appeals suggested. However, in Sutton v. Otis Elevator Co., we construed this language to mean that co-parties are not on the same side of a lawsuit if "there is a substantial controversy between them respecting the subject-matter of the suit." 249 P. 437, 457 (Utah 1926) (emphasis added). Under Sutton, in deciding whether co-parties are entitled to separate sets of peremptory challenges, the trial court must determine whether a "substantial controversy" exists between them. This determination is a mixed question of fact and law. ³ The trial court must make fact findings as to the nature of any controversy between co-parties and then determine whether those facts meet the legal standard of "substantial controversy." While this ultimate conclusion is one of law and therefore is reviewed for "correctness," State v. Pena, 869 P.2d 932, 936 (Utah 1994), that does not answer the question of whether the trial court has any discretion in reaching its conclusion and, if so, how much. For as we explained in Pena, recognizing that a determination of the legal effect of a specific set of facts is reviewed for "correctness" only begins the analysis as to the operative standard of review. See id. at 937.

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