Fieger v. East Nat. Bank

Decision Date06 June 1985
Docket NumberNo. 83CA0086,83CA0086
Citation710 P.2d 1134
PartiesJill Hilton FIEGER, Plaintiff-Appellant, v. EAST NATIONAL BANK and Dan Rosendale, Defendants-Appellees. . III
CourtColorado Court of Appeals

G.E. Shields, P.C., G.E. Shields, Lakewood, for plaintiff-appellant.

Rothgerber, Appel & Powers, James M. Lyons, Angelina Irizarry, Brent R. Cohen, Denver, for defendants-appellees.

BERMAN, Judge.

Plaintiff, Jill Hilton Fieger, appeals from an adverse jury verdict on her claims for breach of contract, negligence, and outrageous conduct against defendant, East National Bank of Denver f/k/a Colfax National Bank (bank), and for breach of contract and outrageous conduct against defendant Dan Rosendale, individually and as senior vice president of the bank. The claims arose out of a forged endorsement by plaintiff's father on a certificate of deposit held by the bank. Plaintiff predicates error on the jury selection process and various instructions which the trial court gave or alternatively refused to give to the jury. We reverse and remand for a new trial.

I.

Plaintiff contends that the trial court erred as a matter of law and violated C.R.C.P. 47(h) when it permitted the bank and Rosendale four peremptory challenges each while allowing plaintiff only four. We agree.

At the conclusion of the hearing on the motions in limine and after each side agreed that there were no further pre-trial issues to be discussed, counsel for the bank, in an off-the-record discussion, stated that he wanted four peremptory challenges for his client. The court, back on record, ruled that each defendant would be entitled to four peremptory challenges, for a total of eight. The court reasoned that since "each defendant was sued individually and not as an agent, and since two separate verdicts can be brought against defendants," each should be allowed four challenges. Plaintiff objected to this ruling.

C.R.C.P. 47(h) governs the number of peremptory challenges and provides:

"Each side shall be entitled to four peremptory challenges, and if there is more than one party to a side they must join in such challenges. Additional peremptory challenges in such number as the court may see fit may be allowed to parties appearing in the action either under Rule 14 or Rule 24 if the trial court in its discretion determines that the ends of justice so require." (emphasis supplied)

Defendants do not appear in this action either under C.R.C.P. 14 or C.R.C.P. 24. In addition, there is nothing in the record to indicate that defendants were asserting antagonistic defenses. Thus, we do not reach the issue of whether each side is limited to four peremptory challenges if the interests of multiple parties on the same side are in conflict. See Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979).

We are aware of the decision by a division of this court in Blades v. DaFoe, 666 P.2d 1126 (Colo.App.1983)(cert. granted December 19, 1983) but decline to follow the rule there enunciated that in the absence of prejudice the verdict will not be set aside for error in allowing one or more peremptory challenges in excess of that provided by C.R.C.P. 47(h). Instead, we agree with the reasoning in the dissent to that decision and conclude that where one side is permitted and exercises more peremptory challenges than are allowed by C.R.C.P. 47(h), the error is prejudicial as a matter of law and the complaining party need not show actual prejudice. Kentucky Farm Bureau Mutual Insurance Co. v. Cook, 590 S.W.2d 875 (Ky.1979); Nieves v. Kietlinski, 22 Ohio St.2d 139, 258 N.E.2d 454 (1970); Moran v. Jones, 75 Ariz. 175, 253 P.2d 891 (1953).

The purpose of allowing peremptory challenges is to enable a party to reject certain jurors based upon a subjective perception that they may be adverse or unsympathetic to his position even though no basis for a challenge for cause exists. See Nieves v. Kietlinski, supra. Although peremptory challenges are not constitutionally required, the right to exercise such challenges is a substantial one, and it should be enforced as an aid in securing an impartial jury. Moran v. Jones, supra; Nieves v. Keitlinski, supra. By allowing one side a disproportionate number of additional challenges, it permits the side with the greater number to unfairly tip the balance in its favor. See Patterson Dental Co. v. Dunn, supra. Such a manipulation of the scales of justice is sufficient to warrant a finding of prejudice as a matter of law.

In addition, an actual prejudice requirement would in effect nullify C.R.C.P. 47(h) which allows either side to excuse a juror, not because he is prejudiced against their side, but for intuitive and often unexplainable reasons. If we were to require a showing of actual prejudice, "the complaining litigant would be required to discover the unknowable and to reconstruct what might have been and never was, a jury properly constituted after running the gauntlet of challenge performed in accordance with the prescribed rule ...." Kentucky Farm Bureau Mutual Insurance Co. v. Cook, supra.

Finally, our Supreme Court has the power to prescribe rules of civil procedure. See Colo. Const. art. VI, § 21; § 13-2-108, C.R.S. (1984 Cum.Supp.). Under similar circumstances, the United States Supreme Court, pursuant to its statutory authority to prescribe civil rules of procedure, held that the rule, "if within the power of this court, has the force of a federal statute ...." Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). We perceive no logical reason why the same interpretation should not be given to the rules enacted by our Supreme Court.

C.R.C.P. 47(h)...

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6 cases
  • Borquez v. Robert C. Ozer, P.C., 93CA1805
    • United States
    • Colorado Court of Appeals
    • November 9, 1995
    ...3 Colo. 15 (1876). Also, the form and style of instructions rest within the sound discretion of the trial court. Fieger v. East National Bank, 710 P.2d 1134 (Colo.App.1985). Pursuant to C.R.C.P. 35(a), when the mental or physical condition of a party is in controversy, the court in which th......
  • People v. Interest of R.J.
    • United States
    • Colorado Court of Appeals
    • July 18, 2019
    ...they may be adverse or unsympathetic to his position even though no basis for a challenge for cause exists." Fieger v. E. Nat’l Bank , 710 P.2d 1134, 1136 (Colo. App. 1985). While peremptory challenges are not constitutionally required, the right to exercise such challenges is a substantial......
  • Faucett v. Hamill, 90CA0285
    • United States
    • Colorado Court of Appeals
    • April 25, 1991
    ...Such a manipulation of the scales of justice is sufficient to warrant a finding of prejudice as a matter of law." Fieger v. East National Bank, 710 P.2d 1134 (Colo.App.1985). Also see Bustamante v. People, 133 Colo. 497, 297 P.2d 538 Thus, by permitting defendant to challenge for cause the ......
  • Thrifty Rent-A-Car System, Inc. v. City and County of Denver
    • United States
    • Colorado Court of Appeals
    • March 26, 1992
    ...was not obliged to dismiss its claim that the fee was a tax after the opinion in Westrac was announced. See Fieger v. East National Bank, 710 P.2d 1134 (Colo.App.1985) (one panel of the court declined to follow the decision of a different panel). Hence, we reject the City's argument that we......
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