Johnson v. VCG Rests. Denver, Inc.
| Decision Date | 31 December 2015 |
| Docket Number | Court of Appeals No. 13CA0802 |
| Citation | 488 P.3d 92 |
| Court | Colorado Court of Appeals |
| Parties | Albert JOHNSON, Plaintiff–Appellee, v. VCG RESTAURANTS DENVER, INC., d/b/a PT's All Nude, a Colorado corporation; and Ryan Lee Schonlaw, Defendants–Appellants. |
The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Plaintiff–Appellee.
Berg, Hill, Greenleaf & Ruscitti, LLP, Rudy E. Verner, Boulder, Colorado; Lindsey M. Killion, Lakewood, Colorado, for Defendants–Appellants.
Opinion by JUDGE HAWTHORNE
¶ 1 As a matter of first impression in Colorado, we hold that C.R.C.P. 47(b) does not grant a trial court the discretion to permit an alternate juror to deliberate and participate fully with the principal jurors in considering and returning a verdict when one party objects. We also hold that erroneously permitting an alternate juror to do so is presumptively prejudicial.1
¶ 2 In this action to recover damages for personal injuries, defendants, VCG Restaurants Denver, Inc., (VCG) and Ryan Lee Schonlaw, appeal the district court's judgment entered on a jury verdict in favor of plaintiff, Albert Johnson. We reverse and remand for a new trial.
¶ 3 Mr. Johnson was a patron at VCG's adult nightclub. While waiting outside after the nightclub had closed, he was confronted by VCG's employees. An altercation ensued between Mr. Schonlaw (VCG's employee) and Mr. Johnson. As a result of this altercation, Mr. Johnson suffered physical injuries. He ultimately brought claims against several defendants, some of whom are parties to this appeal.
¶ 4 In a pretrial order, the court informed the parties: The alternate juror sat through the entire trial, and the court permitted the alternate to participate in all pre-deliberation discussions. After the close of evidence, the court asked the parties if they wanted to allow the alternate to deliberate. Mr. Johnson agreed to do so, but defendants objected. The court overruled defendants' objection.
¶ 5 Then the court told the jury that all seven members, including the alternate, were going to deliberate. The court explained, "I decided the appropriate thing to do is to allow all seven of you to constitute the jury in this case, so you will all deliberate."
¶ 6 The jury deliberated and found in favor of several defendants, but it returned a verdict in Mr. Johnson's favor with respect to Mr. Schonlaw and VCG. The trial court entered a final judgment of $74,452.83 against Mr. Schonlaw and $246,462 against VCG.
¶ 7 Defendants contend that the trial court erred in allowing an alternate juror to deliberate with the jury over their objection. We agree.
¶ 8 We review de novo a district court's order interpreting a rule of civil procedure because it presents a legal question. City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010). We apply statutory construction principles to procedural rules. Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 12, 295 P.3d 956. Thus, we interpret a procedural rule according to its commonly understood and accepted meaning, otherwise known as its plain language. Id. ; Farmers Reservoir & Irrigation Co., 239 P.3d at 1275.
¶ 9 We begin by examining Rule 47(b)'s plain language and then address whether erroneously applying the rule constitutes reversible error.2
¶ 10 Under Rule 47(b), "[i]f the court and the parties agree, alternate jurors may deliberate and participate fully with the principal jurors in considering and returning a verdict." Although defendants objected to the alternate juror deliberating, the court overruled their objection stating, "These jurors have sat through five days of a very difficult trial, not only that because I allow pre-deliberation discussions, every one of those jurors has been involved in any pre-deliberation discussion that has been made, so I'm going to exercise my discretion and allow the alternate to deliberate." Apparently, the court relied on its discretion to prohibit or limit pre-deliberation discussions of evidence under C.R.C.P. 47(a)(5) as a basis for allowing the alternate juror to participate in those deliberations. But even if Rule 47(a)(5) grants the court discretion to do so—a ruling neither challenged by defendants nor resolved in this opinion— Rule 47(a)(5) does not extend to allowing the alternate juror to ultimately deliberate with the regular jurors.
¶ 11 The parties do not dispute that defendants objected to allowing the alternate juror to deliberate. And Rule 47(b) provides no exception to the requirement that the court and all parties must agree to an alternate juror's participation in deliberations. Thus, the trial court erred in ignoring the rule's plain language requiring defendants' agreement before permitting the alternate juror to deliberate.
¶ 12 Mr. Johnson does not assert that Rule 47(b)'s plain language requires a contrary conclusion. Instead, he argues that there is no constitutional provision barring civil juries consisting of seven jurors. And he asserts that the language of C.R.C.P. 48 stating that "[t]he jury shall consist of six persons, unless the parties agree to a smaller number, not less than three," and almost identical language under section 13–71–103, C.R.S. 2015, indicates that a court has the discretion to allow a jury of seven to deliberate. Furthermore, he claims that the court's discretion to discharge an alternate juror under section 13–71–142, C.R.S. 2015, grants courts the discretion to permit alternate jurors to deliberate.
¶ 13 Regardless of whether a court may empanel six or seven jurors or discharge an alternate, the question is whether Rule 47(b) permits alternates to deliberate when one party objects. Mr. Johnson does not explain why we should look to Rule 48 or sections 13–71–103 and 13–71–142 when Rule 47(b) directly addresses this issue. If a rule is clear and unambiguous on its face, we should not look beyond its plain language. See Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). And as discussed previously, Rule 47(b)'s plain language does not grant a court discretion to permit an alternate to deliberate without the parties' agreement.
¶ 14 Mr. Johnson also relies on the dissent in Haralampopoulos v. Kelly, 361 P.3d 978 (Colo.App.2011), rev'd, 2014 CO 46, 327 P.3d 255, for the proposition that after a court empanels an alternate juror, it has the discretion to permit that alternate to deliberate following a lengthy trial. However, the supreme court did not reverse that decision based on the dissent's rationale as to the alternate juror issue. And in any event, Haralampopoulos's dissent is inapplicable because it concluded that all parties agreed to permit the alternates to deliberate, while defendants here objected to the alternate juror deliberating. As the dissent stated, "[f]or this reason, the cases that guardian relies on, which hinge on the appellant not having agreed to allow the alternates to deliberate, are inapposite." Id. at 1005 (Webb, J., dissenting). Accordingly, we conclude that the court erred in permitting the alternate juror to deliberate with the regular jurors.
¶ 15 The question remains whether this error requires automatic reversal, as defendants contend. Although we decline to adopt an automatic reversal rule for two reasons, we nonetheless reverse.
¶ 16 First, the standard in civil cases should be no higher than the standard adopted in criminal cases. See Springs v. Perry, 8 P.3d 517, 519 (Colo. App. 2000) (). Holding otherwise would create an incongruity in the law, which is disfavored. See Morales–Guevara v. Koren, 2014 COA 89, ¶ 30, 405 P.3d 262. Second, our supreme court recently narrowed the circumstances where automatic reversal applies in criminal cases. See People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194. And as discussed below, even before Novotny, our supreme court held that an automatic reversal rule does not apply in the criminal context when an alternate juror deliberates despite a party's objection. People v. Boulies, 690 P.2d 1253, 1257 (Colo. 1984).
¶ 17 Alternatively, Mr. Johnson asserts that the error was harmless. We hold that allowing an alternate juror to deliberate despite a party's objection creates a presumption of prejudice which, if not rebutted, requires reversal. Thus, we apply the presumption of prejudice rule applied in our supreme court's prior analysis of an alternate juror participating in deliberations in a criminal case. Id. at 1257. And because Mr. Johnson fails to rebut this presumption, we conclude the error was not harmless.
¶ 18 Whether to apply a presumption of prejudice when a court permits an alternate juror to deliberate with the regular jurors in a civil jury trial despite a party's objection is also a matter of first impression in Colorado. Although civil litigants do not have a constitutional right to a jury trial, the supreme court's analysis in the criminal context—where a jury trial is a constitutional right—is nonetheless informative.
¶ 19 The supreme court first addressed the issue of whether an alternate juror is permitted to deliberate in Boulies . Although the court remanded the case to the trial court to determine whether the alternate was present during deliberations, it elaborated on the principles applicable to resolving whether prejudicial impact is presumed. See id. at 1255. The court was asked to adopt a rule requiring the defendant to demonstrate that the alternate juror affected the deliberations. I...
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