Gorostieta v. Parkinson
| Citation | 2000 UT 99,17 P.3d 1110 |
| Decision Date | 15 December 2000 |
| Docket Number | No. 981741.,981741. |
| Parties | Jaime and Marie GOROSTIETA, as guardians ad litem for Dalinda Gorostieta, Plaintiffs and Appellants, v. Rhonda PARKINSON, Defendant and Appellee. |
| Court | Supreme Court of Utah |
Michael W. Crippen, Russell A. Cline, Salt Lake City, for plaintiffs.
Jan P. Malmberg, John Haslam Bailey, Logan, for defendant.
¶ 1 Jaime and Marie Gorostieta (the "Gorostietas"), as guardians ad litem for their daughter Dalinda Gorostieta, appeal from a judgment rendered in regard to their daughter. The Gorostietas argue that the trial court erred in not allowing Marie Gorostieta to testify regarding the amounts contained in medical bills incurred as a result of Dalinda's injury, and also in its ruling regarding jury instructions. We affirm.
¶ 2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. On March 21, 1994, at approximately 4:00 p.m., Rhonda Parkinson was returning home from work and, as was her usual custom, was driving down 300 South in Wellsville, Utah. Dalinda Gorostieta and several other children had just disembarked from their school bus and were walking together in the middle of 300 South as they usually did. Parkinson approached the children slowly from behind and, without sounding her horn, drove through them. As the children parted to allow the car through, Dalinda appeared to become confused as to which way to turn, and Parkinson's car ran over her foot. Dalinda was twelve years old at the time.
¶ 3 On August 10, 1995, the Gorostietas filed a complaint for negligence and served Parkinson with a first request for discovery, including requests for admissions and production of documents. Parkinson answered the Gorostietas' complaint on September 7. On September 15, the Gorostietas served a second set of discovery, including interrogatories and requests for admissions and production of documents. Parkinson served the Gorostietas with discovery including interrogatories and a request for production of documents on September 20 and then answered the Gorostietas' first request for production of documents on September 21 and their first request for admissions on October 14. On April 23, 1997, Parkinson answered the Gorostietas' second set of discovery. The Gorostietas did not respond to Parkinson's discovery requests.
¶ 4 A pretrial conference was held on May 13, 1997. By that time, the Gorostietas still had never responded to Parkinson's interrogatories and request for production of documents; Parkinson had responded to all of the Gorostietas' discovery requests. Thereafter, the court issued an order on May 30 that set the jury trial for December 3, 1997, and required the parties to exchange witness lists and exhibit lists no later than October 1, 1997.
¶ 5 Parkinson submitted her exhibit list and witness list on October 1, 1997, but the Gorostietas did not. In fact, by that time, the Gorostietas still had not responded to Parkinson's discovery request of September 20, 1995. Accordingly, on October 31, 1997, Parkinson moved for summary judgment, seeking dismissal pursuant to rules 371 and 562 of the Utah Rules of Civil Procedure for the Gorostietas' "flagrant violations of court orders and discovery rules."
¶ 6 At the summary judgment hearing on November 26, 1997, the Gorostietas claimed that their response to Parkinson's September 1995 discovery request had been completed in May 1997 but had not been sent until November 4 due to a clerical oversight. In addition, the Gorostietas claimed that a witness list had not been provided by October 1 because the Gorostietas planned to adopt Parkinson's witness list. On November 4, only after Parkinson had filed for summary judgment, the Gorostietas served Parkinson with notice of adopting Parkinson's list. However, the Gorostietas had still not produced an exhibit list. The court denied Parkinson's motion for summary judgment but sanctioned the Gorostietas by ordering that they were "precluded from introducing any exhibits at the time of trial."
¶ 7 The jury trial began December 3, 1997. Before arguments on the second day of trial, counsel for both parties met with the judge to discuss jury instructions. During this discussion, it became apparent to Parkinson's counsel3 that the Gorostietas' attorney proposed to offer into evidence the medical expenses incurred to that date through testimony from Marie Gorostieta, Dalinda's mother. Parkinson's counsel objected, arguing that medical expenses fall under the business record exception to the hearsay rule and can be admitted only by an employee of the business. She argued that a layperson reading a bill to a jury did not provide the best evidence and lacked the personal knowledge to testify as to the necessity of the treatment and the reasonableness of the charges. While the treating doctor, Dr. Larsen, had previously given testimony regarding Dalinda's medical treatment, the Gorostietas' attorney had failed to elicit testimony at that time as to whether the medical bills reflected necessary treatment and whether the charges for that treatment were reasonable. After discussing the issue at length, counsel for the Gorostietas specifically asked if the court was ruling that either Dr. Larsen or someone from his office had to testify as to the reasonableness of the charges. The court responded that it was not ruling that anyone in particular had to be there but that the charges had to be shown to be reasonably incurred.
¶ 8 Parkinson's attorney then argued that because the issue was being raised in the middle of the trial, the Gorostietas were confined to the witness list submitted, that which they had adopted from Parkinson. Furthermore, Parkinson argued, that list did not include anyone but Dr. Larsen who could testify to the reasonableness of the medical expenses. The trial court agreed, and therefore, the Gorostietas' counsel was to be allowed to recall Dr. Larsen. It was quickly learned, however, that Dr. Larsen was in surgery and could not return until 4:30 that afternoon.
¶ 9 About mid-day, the Gorostietas' case was nearly completed. The court recessed and excused the jury to allow counsel to present motions out of the presence of the jury. At this time, Parkinson's counsel argued that the Gorostietas had to move for a continuance in order to await Dr. Larsen's testimony and that the court should not allow such a continuance. The judge responded that at that point, no one had moved for a continuance, and then, the judge asked the Gorostietas' attorney if he was prepared to rest. Counsel for the Gorostietas did not move for a continuance but instead responded that aside from testimony from Dr. Larsen, he was prepared to rest. Therefore, the court allowed the Gorostietas to rest with the reservation that Dr. Larsen could be called out of order but only if the trial was not completed before 4:30 p.m. when the doctor would be available. To this, the Gorostietas' attorney quipped, "Obviously, if [Parkinson] ends her case right now, we've rested and it's over."
¶ 10 The judge declared a five-minute recess after which the Gorostietas' attorney requested that he be allowed to put Dalinda's mother on the stand to testify to the amounts of the bills she had received for Dalinda's care. Counsel proposed that when Dr. Larsen was available, counsel would review this information with the doctor and ask him to testify as to the reasonableness of the charges. The judge asked Parkinson's attorney for her response to this motion. Parkinson's attorney, having consulted with her client during the recess, rested at this point without presenting any evidence. The minutes of the jury trial show that Parkinson rested at 2:37 p.m. Consequently, the court denied the Gorostietas' motion, and thus, the Gorostietas failed to introduce evidence pertaining to incurred medical expenses.
¶ 11 After presentation of jury instructions and closing arguments, the jury retired for deliberations. A verdict was returned that awarded the following:
Special Damages A. Past Special Damages: $ 0 (Actual costs incurred) B. Future Special Damages: $ 3300.00 (Actual future costs to be incurred) General Damages: $15,000.00 (Pain, suffering, and permanent disability) Total $18,300.004
The jury attributed 35% of the fault to Dalinda and 65% to Parkinson. The Gorostietas' judgment was thereby reduced by 35% to reflect Dalinda's portion of fault.
¶ 12 The Gorostietas appeal this judgment and argue that (1) the trial court erred in refusing to allow Dalinda's mother to testify as to the amounts of the medical bills she incurred for Dalinda's care; and (2) the trial court further erred in giving jury instructions 16, 21, 22, 24, 25, 27, and 285 and in omitting a sentence from a requested jury instruction that had been taken from a statute.
¶ 13 Parkinson contends that the notice of appeal was not timely filed because the Gorostietas did not timely submit filing fees and this court therefore lacks jurisdiction. In addition, Parkinson argues that the Gorostietas did not timely file a docketing statement and thus the appeal should be dismissed. Furthermore, Parkinson argues that if we assert jurisdiction and do not dismiss, (1) the trial court did not err in refusing to allow Dalinda's mother to testify as to the amounts of the medical bills incurred because such testimony would have been hearsay offered to prove the truth of the amounts contained in the bills, and (2) the jury instructions given covered all aspects of the applicable law and there was no prejudicial error in excluding the language complained of.
¶ 14 "The admissibility of an item of evidence is a legal question." Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 12, 977 P.2d 474. However, the trial court has a great deal of discretion in determining whether to admit or exclude evidence,...
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