Carrier v. Pro-Tech Restoration, PRO-TECH

• Decision Date: 21 December 1995
• Docket Number: PRO-TECH,No. 940550-CA,940550-CA
• Citation: 909 P.2d 271
• Parties: Shirley CARRIER, Plaintiff and Appellant, v.RESTORATION, dba Stone Carpets; William Roger Smith; and Pleasant Grove City, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 271

909 P.2d 271

Shirley CARRIER, Plaintiff and Appellant, v. PRO-TECH RESTORATION, dba Stone Carpets; William Roger

Smith; and Pleasant Grove City, Defendants and Appellees.

No. 940550-CA.

Court of Appeals of Utah.

Dec. 21, 1995.

Lynn C. Harris, Provo, and Vicki L. Rinne, Highland, for Appellant.

John M. Chipman and Clifford J. Payne, Salt Lake City, for Appellee Pleasant Grove.

M. Dayle Jeffs, Provo, for Appellee Pro-Tech.

Robert L. Moody, Provo, for Appellee Smith.

Before ORME, DAVIS and JACKSON, JJ.

ORME, Presiding Judge:

Plaintiff Shirley Carrier appeals the judgment against her and the trial court's denial of her motion for a new trial. She contends the trial court granted an excessive number of peremptory jury challenges to defendants. ¹ We agree and reverse.

FACTS

Plaintiff and defendant William Roger Smith were involved in an automobile collision in Pleasant Grove City. Plaintiff approached the intersection of 1100 North and 500 East, driving east on 1100 North while Smith was travelling south on 500 East. The intersection was usually controlled by stop signs on 500 East, but on this snowy day the stop sign regulating Smith and all other southbound traffic was missing. The collision occurred in the intersection.

Plaintiff suffered injury and brought a negligence action against Smith; Smith's employer, Pro-Tech Restoration; and Pleasant Grove City. Pro-Tech was named in the complaint only on a theory of respondeat superior and Pleasant Grove on the basis of its alleged negligence in failing to maintain or replace the stop sign.

Prior to trial, plaintiff filed a motion to limit the number of peremptory challenges to be allotted to defendants. The court denied the motion and allowed each defendant its own set of four peremptory strikes during jury selection. ² While plaintiff conceded that Pleasant Grove City had "disparate interests" from the other two defendants for purposes of the governing rule, she disputed the trial court's ruling that Smith and Pro-Tech had sufficiently disparate interests to warrant separate allocations of peremptory challenges. She requested that the court state the grounds in support of its ruling. The court simply stated that "they are disparate enough just by the nature of the case to permit [the award of extra sets of peremptory challenges]."

Initially, the same attorney represented Smith and Pro-Tech. After Smith was in another, unrelated automobile accident, in which he sustained injuries that made it difficult for him to continue working, he left Pro-Tech's employ. Later, at his deposition, Smith testified that his boss at Pro-Tech had instructed him to falsify facts pertaining to the accident. Pro-Tech claimed that no such conversation ever took place. This disagreement created enough animosity between the parties that, subsequently, Smith obtained separate counsel.

However, no defendant filed a cross-claim against any other defendant or a counterclaim against plaintiff. Each defendant answered plaintiff's amended complaint by, inter alia, asserting that plaintiff was more at fault in causing the accident than defendants. There was no separate, related litigation between any of the defendants.

The jury found plaintiff sixty percent negligent, Smith forty percent negligent, and Pleasant Grove City not negligent to any extent. This appeal followed.

STANDARD OF REVIEW

This appeal turns on the interpretation of Rule 47 of the Utah Rules of Civil Procedure and, thus, presents a question of law. See State v. Cosey, 873 P.2d 1177, 1181 (Utah App.), cert. denied, 883 P.2d 1359 (Utah 1994). "[W]e accord conclusions of law no particular deference, but review them for correctness." Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

RULE 47 AND ITS INTERPRETATION

Plaintiff claims the trial court erred in granting defendants twelve peremptory challenges while giving plaintiff only four. Rule 47(e) of the Utah Rules of Civil Procedure provides, in part, that "[e]ach 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 appeal, states that "where there are several parties on either side, they must join in a challenge before it can be made." Id. 47(c). Although it may seem from the language of subdivision (c) that all defendants and all plaintiffs in a given case will receive only one set of peremptory challenges to be shared, i.e., one set per "side," prior Utah Supreme Court opinions suggest otherwise.

Seventy years ago, the Utah Supreme Court recognized that parties are not necessarily on the same "side" within the meaning of the rule simply because they are joined as defendants. Sutton v. Otis Elevator Co., 68 Utah 85, 143-45, 249 P. 437, 457-58 (1926). ³ As the Court observed, if the conflict between defendants is "more sharp than the controversy between plaintiff and defendants," the Legislature could not have intended that such defendants would share one set of peremptory challenges. Id. at 143, 249 P. at 457. The Court explained that for two or more co-parties to constitute separate "sides," and therefore each be entitled to a separate set of peremptory challenges, there must be a "substantial controversy between them respecting the subject-matter of the suit." Id. at 141, 249 P. at 457.

In Sutton, a passenger injured in an elevator fall sued both the elevator company and the hotel where the elevator was located. Id. at 95, 249 P. at 439. The hotel admitted its own liability and then assisted in proving plaintiff's case against the elevator company, thereby advancing the hotel's breach of contract suit against the elevator company, then pending in federal court. Id. at 135-37, 249 P. at 454-55. The Sutton court held that the foregoing facts clearly demonstrated the existence of a "substantial controversy" between the two defendants:

[W]here the record indisputably shows that one defendant practically admits its own liability, and, whether it admits it or not, substantial grounds appear for such admission, and where it further appears that such party is seeking to establish liability against the other as a foundation for recoupment of damages for breach of contract against the codefendant, it is an unblushing travesty to hold that both parties are on the same side of the controversy in the sense intended by the statute in question.

Id. at 144-45, 249 P. at 458 (emphasis added).

In sum, the Sutton court established that there must be a "substantial controversy" between co-defendants for a trial court to grant additional sets of peremptory strikes under the predecessor of Rule 47. Id. at 141, 249 P. at 457. See supra note 3. Further, the Court held that one way to satisfy the requirement for a "substantial controversy" is if one defendant has proceeded with independent litigation against a co-defendant. Id. at 143-45, 249 P. at 457-58. However, the Sutton court alluded to other circumstances that might, indeed, satisfy the "substantial controversy" requirement. The Court speculated that if defendants had filed "cross-complaint(s)" against one another, such a conflict may demonstrate a "substantial controversy." Id. at 143, 249 P. at 457. This set the stage for the Utah Supreme Court's ruling in Randle v. Allen, 862 P.2d 1329 (Utah 1993).

In Randle, the plaintiff sued the driver, Allen; the Utah Department of Transportation (UDOT); and Salt Lake County for the wrongful death of his wife in an automobile accident. Id. at 1331. Randle charged that Allen negligently operated his vehicle and that UDOT and Salt Lake County negligently designed and maintained the intersection where the accident occurred. Id. at 1332. Allen cross-claimed against UDOT and the County alleging, as Randle had, negligent design and maintenance of the intersection. Id. at 1333. The Utah Supreme Court noted However, the Court held that no substantial controversy existed between UDOT and the County because they had merely cross-claimed against Allen and each other for indemnification and contribution. Id. at 1333. The Randle court explained that when a cross-claim is merely derivative, like a claim for indemnification or contribution, there is no "substantial controversy" under Rule 47. Id. The claims of UDOT and the County were derived from the negligence action and were not independent of Randle and Allen's negligence claims. Id. UDOT and the County were unified in their defense that it was the drivers of the vehicles--not the negligent design or condition of the intersection--that caused the accident. Id. Therefore, their derivative cross-claims did not demonstrate a "substantial controversy" for purposes of Rule 47. Id.

that because Allen had to defend against Randle's claim and also establish the liability of the governmental entities, his interest in juror selection aligned him partly with the plaintiff and partly with the other defendants. Id. The Court held that given this distinct position, the trial court did not err in allowing defendant Allen his own set of peremptory challenges. Id. at 1334.

Again, the Randle court decided that a non-derivative cross-claim, like the one asserted by Allen against UDOT and the County, did meet the "substantial controversy" test. Id. at 1333. "[A] 'substantial controversy' exists when a party on one side of a lawsuit has a cross-claim against a co-party that constitutes, in effect, a separate, distinct lawsuit from the action existing between the plaintiffs and defendants." Id. at 1333 (quoting Sutton v. Otis Elevator Co., 68 Utah 85, 141, 249 P. 437, 457 (1926)).

After Randle, the general rule in Sutton stands undisturbed, i.e., different "sides" exist for purposes of Rule 47(e) if there is a "substantial controversy" between co-parties "respecting the subject-matter of the suit." Sutton, 68 Utah at 141, 249 P. at 457. While the Sutton court, in applying its rule, went on to conclude that an...