Neely v. Bennett

• Decision Date: 31 May 2002
• Docket Number: No. 20000851-CA.,20000851-CA.
• Parties: Ranae NEELY, Plaintiff and Appellant, v. Steven E. BENNETT, Defendant and Appellee.
• Court: Utah Court of Appeals

51 P.3d 724

2002 UT App 189

Ranae NEELY, Plaintiff and Appellant, v. Steven E. BENNETT, Defendant and Appellee.

No. 20000851-CA.

Court of Appeals of Utah.

May 31, 2002.

George Waddoups and Nancy A. Mismash, Debry & Associates, Murray, for Appellant.

Karra J. Porter, Christensen & Jensen PC, Salt Lake City, for Appellee.

Before Judges JACKSON, ORME, and THORNE.

OPINION

THORNE, Judge.

¶ 1 Appellant Ranae Neely appeals from the trial court's denial of her motions for a directed verdict and for additur or a new trial. We affirm.

BACKGROUND

¶ 2 "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." State v. Brown, 948 P.2d 337, 339 (Utah 1997).

¶ 3 In May 1996, while waiting in his Ford Escort for a traffic light to change from red to green, Stephen Bennett's foot slipped from the clutch causing his car to lurch forward and strike the rear of Neely's Ford Ranger at an approximate speed of 5 miles per hour. Both Bennett and Neely got out of their respective vehicles and inspected the damage. Bennett's car had a small dent on the right front bumper and Neely's truck suffered a small amount of damage to its rear bumper. The estimated cost to repair both vehicles was later determined to be $200. After the accident, and without repairing the minor damage to the rear bumper, Neely decided to store her truck in her garage, chiefly to preserve the truck as evidence of her claim.

¶ 4 While neither Bennett nor his children, who were his passengers in the Escort, suffered any ill effect from the accident, Neely's husband took her directly from the accident site to a local hospital emergency room. There, approximately two hours after the accident, Neely reported that she had not struck her head, but that she had a mild headache. After conducting an examination, the emergency room physician noted Neely's headache on her chart as well as noting that she had tenderness in her neck and upper back. The doctor then released Neely.

¶ 5 The next day, Neely informed her supervisor that she had been in a minor accident and that while she was upset by the incident she was otherwise okay. A few days after that conversation, Neely showed up at work wearing a neck brace and complaining of neck pain. Later, however, Neely's supervisor drove by Neely's home and noticed Neely outside without the neck brace. Approximately one week after the appearance of the neck brace, Neely approached her supervisor and told her that something was wrong with her brain and that surgery was possibly the only treatment. Then, after another week, Neely told the supervisor that something was wrong with her jaw. Three more weeks passed before Neely arrived at work with a previously nonexistent stuttering problem. ¶ 6 By April of 1997, Neely attributed several conditions to the May 1996 accident, including: chronic headaches, head pain, jaw pain, tinnitis, vision problems, neck pain, back pain, shoulder pain, stuttering, forgetfulness, lightheadedness, anxiety, dizziness, and depression. She further claimed that these conditions resulted in chronic severe pain and nightmares.

¶ 7 Therefore, Neely filed suit seeking nearly $100,000 in damages from Bennett. The suit proceeded to trial where Neely presented several witnesses, including many of her treating physicians and an accident reconstructionist, all of whom Bennett's counsel thoroughly cross-examined.

¶ 8 Through the process of cross-examination, Bennett's counsel was able to reveal, inter alia, the following information to the jury: Neely was involved in a similar, low speed, rear-end collision in 1992, which resulted in medical complaints strikingly similar to the complaints Neely alleged as a result of her accident with Bennett; Neely's truck weighed close to 1000 pounds more than Bennett's car; Neely initially reported that she had not struck her head, that her only complaint was a mild headache, and that her initial examination noted only mild tenderness in her upper back and neck. Moreover, Bennett's counsel was able to highlight the evolution of Neely's story, information that cast substantial doubt on Neely's credibility.

¶ 9 Following the presentation of the evidence, Neely moved for a directed verdict, which the trial court denied, and the case was submitted to the jury. After the jury returned a unanimous verdict awarding Neely $2,902 in past special damages, $1,000 in general damages, and $0 in future special damages, Neely filed a motion for additur or new trial. This motion was also denied. Neely now appeals.

ISSUES AND STANDARD OF REVIEW

¶ 10 Neely first argues that the trial court erred in denying her motion for a directed verdict. She next argues that the trial court erred in denying her motion for additur or new trial. We review both claims to determine whether the trial court exceeded the bounds of its discretion. See Brewer v. Denver & Rio Grande W.R.R., 2001 UT 77, ¶ 33, 31 P.3d 557 ("We reverse [a trial court's denial of a motion for a directed verdict] only if, viewing the evidence in the light most favorable to the prevailing party, we conclude that the evidence is insufficient to support the verdict." (quotations and citation omitted)); Crookston v. Fire Ins. Exch., 817 P.2d 789, 805 (Utah 1991) ("In reviewing the judge's ultimate decision to grant or deny a new trial, we will reverse only if there is no reasonable basis for the decision." (footnote omitted)).

ANALYSIS

¶ 11 When an appellant challenges a trial court's ruling concerning either a motion for a directed verdict, or a motion for additur or new trial, the appellant is obligated to first "marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." Brewer, 2001 UT 77 at ¶ 33, 31 P.3d 557 (quotations and citation omitted); see also Crookston, 817 P.2d at 799 ("To demonstrate that the evidence is insufficient [in the context of reviewing a trial court's denial of a motion for a new trial] to support the jury verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.").

The marshaling process is not unlike becoming the devil's advocate. Counsel must remove himself or herself from the client's shoes and fully assume the adversary's position. In order to properly discharge the duty of marshaling the evidence, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous.

West Valley City v. Majestic Inv., Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991). This duty is not satisfied by merely making the "pertinent excerpts from the record readily available to a reviewing court," id., nor by presenting "in minute detail all the evidence before" the trial court. Heinecke v. Department of Commerce, 810 P.2d 459, 464 (Utah Ct.App.1991). In the face of an appellant's failure to properly marshal the evidence, our most likely action is summary affirmance of the challenged trial court decision. See, e.g., Crookston, 817 P.2d at 800.

¶ 12 After reviewing Neely's brief, while noting that she has presented an extensive array of facts encompassing some 68 pages and 284 numbered paragraphs, we conclude that she has failed in her duty to marshal. Rather, she has focused her efforts solely on rearguing the evidence presented at trial that was favorable to her position. Much like the appellants in both Heinecke and Majestic, Neely seems to have misunderstood the nature of her marshaling duty. Had she carefully reviewed our marshaling case law, she would have discovered that an exhaustive or voluminous recitation of all the facts presented at trial, even if this recitation includes within its body the facts that support the challenged ruling, is not what is expected.¹ The marshaled facts should "correlate...