Davis v. Grand County Service Area

• Decision Date: 26 October 1995
• Docket Number: No. 940582-CA,940582-CA
• Citation: 905 P.2d 888
• Parties: Robert DAVIS and Michele Davis, Plaintiffs and Appellants, v. GRAND COUNTY SERVICE AREA, dba Allen Memorial Hospital, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 888

905 P.2d 888

Robert DAVIS and Michele Davis, Plaintiffs and Appellants, v. GRAND COUNTY SERVICE AREA, dba Allen Memorial Hospital,

Defendant and Appellee.

No. 940582-CA.

Court of Appeals of Utah.

Oct. 26, 1995.

Bruce Wycoff, Salt Lake City, for Appellants.

M. Dayle Jeffs, Provo, for Appellee.

Before ORME, GREENWOOD and WILKINS, JJ.

ORME, Presiding Judge:

Plaintiffs Robert and Michele Davis appeal the trial court's denial of both their motion for a new trial premised on a theory of jury and community bias, and their subsequent motion to reconsider, based on a claim of inadequate jury voir dire. We affirm.

FACTS

Robert and Michele Davis brought a medical malpractice action against Allen Memorial Hospital for the wrongful death of their newborn son. ¹ Prior to trial, the Davises, on at least two occasions, communicated to their then-attorney their concern that they would not receive a fair trial in Moab, Utah, in a malpractice action against the area's only hospital. Despite this concern, their attorney did not seek a change of venue.

Prior to trial, the Davises' counsel submitted a list of twenty-eight questions he wanted the court to ask prospective jurors during voir dire. In response to defense counsel's objection, the court disallowed proposed question No. 17, which stated: "Do you believe that a verdict against Allen Memorial Hospital in this case could affect you?" ² After The court conducted voir dire and asked all of the proposed questions that had been allowed with the exception of question No. 13, which stated: "What magazines do you or members of your household subscribe to?" Although provided adequate opportunity, neither party objected to the court's failure, apparently due only to oversight, to ask question No. 13. At the conclusion of voir dire, both sides passed the jury for cause.

                indicating to the parties which voir dire questions would be allowed, the court asked the Davises' counsel if he had "[a]ny exceptions to be noted."   Plaintiff's counsel did not take exception to the court's rulings on voir dire
                

Trial was held in Moab over the course of four days. At the conclusion of trial, the jury rendered a verdict in favor of Allen Memorial Hospital, determining the hospital was not negligent in its care of the Davises' infant.

On December 16, 1993, the Davises, acting pro se, ³ filed a motion for a new trial claiming the jury was biased and that due to the small size of the community, it was not possible for them to receive a fair trial in Moab. In support of their motion, the Davises contended they were prevented from receiving a fair trial because (1) one of the jurors was sleeping throughout much of the trial; (2) during voir dire, the jurors who claimed to have known the defendants did not say without a doubt that they could act impartially; (3) the court allowed one of the defense witnesses to remain in the courtroom throughout the trial, enabling her to shape her testimony to fit with the testimony and evidence previously presented; and (4) the court allowed another judge to remain in the courtroom as a spectator, even though he had recused himself as the trial judge due to his previous "legal involvement" with defendant Allen Memorial Hospital. Significantly, however, nothing was said in the moving papers about the potential bias created by the jurors' likely exposure to numerous pre-trial articles in the local newspaper, The Times-Independent, concerning the precarious financial condition of Allen Memorial Hospital. On February 2, 1994, the trial court denied the Davises' motion for a new trial.

On February 23, 1994, the trial court extended the Davises' time to appeal to April 4, 1994. On March 2, having obtained new counsel, the Davises filed a motion for reconsideration of the order denying their motion for a new trial. They supported their motion to reconsider with a memorandum and fourteen pre-trial articles, published in The Times-Independent, addressing the financial plight of Allen Memorial Hospital. The Davises argued the juror voir dire was inadequate to ferret out which jurors may have been exposed to the negative publicity surrounding the hospital and asked the court to grant them a new trial on this basis.

Recognizing that the trial court would not rule on the motion to reconsider prior to the running of the extended time to file an appeal, the Davises filed a notice of appeal on April 4, 1994. The trial court entered its order denying the motion for reconsideration on May 2, 1994. On May 9, the Davises filed a second notice of appeal. The Utah Supreme Court consolidated the two appeals and transferred the case to this court.

MOTION FOR NEW TRIAL

Motions for new trials are generally not favored in the law, in part because it is costly and inefficient to hold multiple trials on the same cause of action. See Crookston v. Fire Ins. Exch., 817 P.2d 789, 803 (Utah 1991). Courts do not grant new trials unless it is reasonably clear that prejudicial error has tainted the proceeding or that substantial justice has not been done. Id. at 804-05. Ultimately, the motion invokes the sound discretion of the trial court, and appellate review of its ruling is quite limited. Id. at 804-05. However, a court will grant a new trial, in limited circumstances, ⁴ if the motion In the instant case, the Davises filed a timely motion for a new trial alleging the jury was biased and that, due to the small size of the community, it was not possible for them to have received a fair trial in Moab. In support of their motion, the Davises contended that four specific errors prevented them from receiving a fair trial. The trial court denied this motion, and the Davises filed a timely appeal.

is timely brought, i.e., if it is brought within ten days after the entry of judgment. Utah R.Civ.P. 59.

However, the Davises, despite filing a timely notice of appeal from the denial of their timely motion for a new trial, have not briefed the issues raised in that motion. ⁵ Instead, their appeal advances a completely different theory--one that was at the heart of their motion to reconsider--namely, that voir dire was inadequate to allow them to meaningfully exercise their peremptory challenges, leaving them with a potentially biased jury. Accordingly, we need not address any errors that may have existed in the court's initial denial of the motion for a new trial, as only the denial of the motion to reconsider is effectively before us. See State v. Yates, 834 P.2d 599, 602 (Utah App.1992).

MOTION TO RECONSIDER

Utah courts have "consistently held that our rules of civil procedure do not provide for a motion for reconsideration of a trial court's order or judgment." ⁶ Ron Shepherd Ins., Inc. v. Shields, 882 P.2d 650, 653 n. 4 (Utah 1994). See Salt Lake City Corp. v. James Constructors, Inc., 761 P.2d 42, 44 (Utah App.1988). Nonetheless, courts will accord some dignity to a motion so entitled if it could properly have been brought pursuant to some rule and was merely erroneously titled. Ron Shepherd Ins., 882 P.2d at 653 n. 4. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1064-65 (Utah 1991). Reviewing courts will analyze such motions for reconsideration in accordance with their substance and purpose. See Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310 n. 2 (Utah App.1994); State v. Parker, 872 P.2d 1041, 1044 (Utah App.), cert. denied, 883 P.2d 1359 (Utah 1994).

In the instant case, the Davises' motion to reconsider is the functional equivalent of a Rule 59 motion requesting a new trial. ⁷ "A motion for a new trial shall be

                served not later than 10 days after the entry of the judgment."   Utah R.Civ.P. 59(b).  The Davises filed their motion to reconsider, which we regard as a second motion for a new trial that is entirely distinct from the first, thirty-one days after the court denied their initial motion for a new trial and almost three months after the entry of judgment.  Because the trial court was without jurisdiction to consider the merits of the Davises' untimely motion, see Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah App.1991), their voir dire claims raised in the motion to reconsider are, in essence, raised for the first time on appeal.  Accordingly, we will review the adequacy of voir dire only against a plain error standard. 8  See State v. Brooks, 868 P.2d 818, 821 (Utah App.), cert. granted, 883 P.2d 1359 (Utah 1994)
                

ADEQUACY OF VOIR DIRE

We now consider whether the errors that the Davises contend the court made in voir dire rise to the level of plain error. The requirements for determining whether plain error has occurred were articulated in State v. Eldredge, 773 P.2d 29 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989), as follows:

The first requirement for a finding of plain error is that the error be "plain," i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error.... The second and somewhat interrelated requirement for a finding of plain error is that the error affect the substantial rights of [a party], i.e., that the error be harmful.

Id. at 35 (citations omitted).

The Davises claim two separate errors occurred during voir dire. First, the Davises point to the trial court's refusal to ask each juror whether he or she "believe[d] that a verdict against Allen Memorial Hospital in this case could affect [them]?" Second, they point to the court's failure to ask the jurors "[w]hat magazines do you or members of your household subscribe to?" The Davises contend that if the court had asked these questions, they would have been able to evaluate the impact the pretrial publicity had on the prospective jurors and more meaningfully exercise their peremptory challenges.

In the instant case, the court did not commit plain error by refusing to ask the prospective jurors whether they "believe[d] that a verdict against Allen Memorial...