Marks v. District Court In and For Seventeenth Judicial Dist. of State, 81SA431

• Decision Date: 08 March 1982
• Docket Number: No. 81SA431,81SA431
• Citation: 643 P.2d 741
• Parties: Galen MARKS, Robert R. Larsen, John Vowell, and Brighton Community Hospital Association, Petitioners, v. The DISTRICT COURT In and For the SEVENTEENTH JUDICIAL DISTRICT OF the STATE of Colorado, and the Honorable Marvin W. Foote, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 741

643 P.2d 741

Galen MARKS, Robert R. Larsen, John Vowell, and Brighton

Community Hospital Association, Petitioners, v. The DISTRICT COURT In and For the SEVENTEENTH JUDICIAL

DISTRICT OF the STATE of Colorado, and the

Honorable Marvin W. Foote, one of the

Judges thereof, Respondents.

No. 81SA431.

Supreme Court of Colorado, En Banc.

March 8, 1982.

Rehearing Denied March 29, 1982.

Pryor, Carney & Johnson, Thomas L. Roberts, Englewood, Plaut & Lipstein, P. C., Frank Plaut, Lakewood, Quiat, Dice & Associates, Stephen D. Dawson, Denver, for petitioners.

Donald E. Tyler, pro se.

LEE, Justice.

In this original proceeding under C.A.R. 21, the petitioners (defendants in the trial court) seek a writ of prohibition restraining the respondent district court from proceeding with a new trial on the single issue of damages rather than a new trial on all issues. The trial court had found that the jury verdict was excessive due to jury bias, prejudice, and passion. The court ordered a new trial on the issue of damages only unless the plaintiff would agree to a lesser award. We issued a rule to show cause why the relief requested by the petitioners should not be granted. We now make that rule absolute.

This action arose out of a dispute concerning Dr. Donald E. Tyler's surgical privileges at the Brighton Community Hospital. Effective January 1, 1975, Dr. Tyler was barred from membership in the active medical staff of the hospital. Dr. Tyler commenced this action in the district court seeking damages from the hospital and the other petitioners, Gaylon Marks, Robert Larsen, and John Vowell. The action asserted claims for relief in the nature of defamation, breach of fiduciary duties, breach of express contract, outrageous conduct, wrongful interference with the plaintiff's practice of medicine, and conspiracy to remove the plaintiff from emergency room call duty. The case was tried to a jury and a verdict in favor of plaintiff Tyler was returned in the amount of $730,000 in compensatory and exemplary damages. On motion for new trial the trial judge found the jury verdict to be excessive and the result of bias, passion, and prejudice. A new trial on the issue of damages only was ordered unless the plaintiff would agree to remit $588,283.05 of the award which the court deemed to be excessive, leaving in effect a verdict of $141,716.95. The plaintiff refused to remit.

The petitioners assert that the trial court erred as a matter of law in ordering a new trial on the single issue of damages since it had found that the excessive jury verdict was the result of bias, prejudice, and passion. We agree that the trial court should have ordered a new trial on all issues, and now make the rule absolute.

I.

As a preliminary matter several grounds have been asserted to invalidate the motions for a new trial and the orders issued thereon, all of which we find to be without merit.

This case involves a complicated procedural history. After a jury verdict favorable to the plaintiff had been returned and the jury dismissed, a contradictory signed verdict form was discovered. The trial judge declared a mistrial based on the conflict in the two verdicts. The order for a mistrial was reversed in Tyler v. District Court, Colo., 613 P.2d 899 (1980), where this court directed the trial judge to vacate the order for mistrial and to enter a judgment in accordance with the jury verdict. At the time when the mandate of this court was received by the trial court on August 8, 1980, the trial judge was outside the continental United States. The court clerk, without any order from the court and while the trial judge was absent, entered judgment in the register of actions on August 26, 1980. Counsel for the defendants filed motions requesting successive extensions of time in which to file post-trial motions. Two judges who had previously disqualified themselves from hearing the case granted the extensions. Motions for judgment notwithstanding the verdict or for a new trial were then filed within the extended periods. The plaintiff then filed a motion to strike the defendants' motions and to vacate orders granting the extension of time for the filing of such motions.

Thereafter, on December 4, 1980, the trial judge considered all of the motions. He denied plaintiff's motion to strike; he ordered the clerk's entry of judgment on August 26 vacated; and he prepared and signed a written form of judgment and ordered entry of the judgment on December 4, 1980. On December 10, 1980, the judge entered a written order on defendants' motions. He denied the motions for judgment notwithstanding the verdict but ordered a new trial on the issue of damages only unless the plaintiff would agree to a remittitur of that portion of the jury award which the court found to be excessive.

We find no fatal error in the foregoing procedure. It is contended that the judges who authorized the extension for filing new trial motions in August and September of 1980 acted beyond their jurisdiction because they had been disqualified from hearing the case. C.R.C.P. 97. Therefore, it is argued, the motions for new trial filed within the allegedly void extension period were not timely filed under C.R.C.P. 59(b) and the judgment entered by the court clerk on the jury verdict had become final. We do not agree for the following reasons.

The clerk's entry of judgment was not authorized under the circumstances present here. Ordinarily, under C.R.C.P. 58(a), the clerk of the court, unless the court otherwise directs, shall forthwith prepare and enter the judgment without awaiting any direction from the court. In such case the entry of judgment is a ministerial act and participation by the judge is not required. Jones v. Galbasini, 134 Colo. 64, 299 P.2d 503 (1956). See also, Joslin Dry Goods v. Villa Italia, 35 Colo.App. 252, 539 P.2d 137 (1975). In this case, however, no judgment was entered upon the jury's verdict inasmuch as the trial judge declared a mistrial and ordered a new trial. Appellate proceedings in Tyler v. District Court, supra, resulted in reversal of the trial court's order declaring a mistrial and directions to the trial court "to vacate its order granting a mistrial and to enter a judgment in accordance with the verdict of the jury." The mandate required action by the trial judge and the entry of judgment under these circumstances was not merely a ministerial act to be performed by the court clerk. It follows that, since there was no valid entry of judgment on August 26, the post-trial motions were not untimely filed and thus could properly be considered by the court after a proper entry of judgment had been made.

The trial judge could not carry out the mandate of this court because of his absence from the country. It was necessary on his return that he correct the judgment record and vacate the improperly entered judgment, and thus cause a proper judgment to be entered on the jury's verdict as directed by this court. The judgment did not become effective until it was thus entered on December 4, 1980. We find no error in this procedure, and do not find the actions of the disqualified judges to be determinative, especially when parties relying upon the orders filed motions within time granted by the district court and the party contesting the order has not demonstrated that any harm resulted from this procedure. ¹

It is further argued that the trial judge was without jurisdiction to order a new trial on the basis of jury misconduct without affidavits presented with the new trial motion. This argument misperceives the "excessive damages" ground for new trial in Rule 59(a)(5). This ground is not equivalent to jury misconduct as contemplated by C.R.C.P. 59(a)(2) for which affidavits are required. See, Cawthra v. City of Greeley, 154 Colo. 483, 391 P.2d 876 (1964). Moreover, the trial judge is authorized by Rule 59 to order a new trial on any valid ground within 15 days after entry of judgment, in this case December 4, 1980. The judge's rulings came within this time period.

II.

The respondent argues that this is not an appropriate circumstance for our exercise of original jurisdiction under C.A.R. 21. We do not agree. A writ of prohibition may be granted when a district court has acted in excess of its jurisdiction or has committed a gross abuse of discretion in circumstances where an appeal is neither an appropriate nor adequate remedy. See, e.g., Sanchez v. District Court, Colo., 624 P.2d 1314 (1981); Coquina Oil Co. v. District Court, Colo., 623 P.2d 40 (1981); Prudential Property and Casualty Insurance Co. v. District Court, Colo., 617 P.2d 556 (1980); Western Food Plan, Inc. v. District Court, 198 Colo. 251, 598 P.2d 1038 (1979); Weaver Construction Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976). We find that the issues raised here are sufficient to meet our test for jurisdiction. When a retrial of all issues is warranted, a new trial limited to a single issue cannot adequately be remedied on appeal. Therefore, a writ of prohibition may here be available to "restrain rather than remedy an abuse of jurisdiction." Prudential Property and Casualty Insurance Co., supra, 617 P.2d at 558....