Ring v. Taylor

• Citation: 685 P.2d 121,141 Ariz. 56
• Decision Date: 01 March 1984
• Docket Number: CA-CIV
• Parties: Royce A. RING and Anne L. Ring, husband and wife; James E. Rivers, Plaintiffs, Counter-defendants, Appellees, v. Bobby Sid TAYLOR, Defendant, Counter-claimant, Appellant. 16144.
• Court: Arizona Court of Appeals

Page 121

685 P.2d 121

141 Ariz. 56

Royce A. RING and Anne L. Ring, husband and wife; James E. Rivers, Plaintiffs, Counter-defendants, Appellees, v. Bobby Sid TAYLOR, Defendant, Counter-claimant, Appellant.

1 CA-CIV 6144.

Court of Appeals of Arizona Division 1, Department D.

March 1, 1984.

Review Denied June 14, 1984.

Jennings, Strouss & Salmon by M. Byron Lewis, Michael A. Beale, Jefferson L. Lankford, Phoenix, for appellees Ring

Treon, Warnicke & Roush, P.A. by Richard T. Treon, Arthur G. Newman, Jr., Gerald J. Strick, Phoenix, for appellee Rivers.

Hofmann, Salcito, Stevens & Myers, P.A. by Leroy W. Hofmann, Phoenix, for appellant Taylor.

OPINION

OGG, Judge.

This is an appeal by appellant Bobby Sid Taylor from jury verdicts returned in favor of appellees Anne Ring, Royce Ring and James Rivers.

For the reasons set forth below, we affirm the trial court's judgment.

We begin by briefly reviewing the facts giving rise to this matter. On April 9, 1977 at approximately 1:30 in the morning, Anne Ring was driving an Oldsmobile convertible eastbound on Maryland Avenue in the City of Phoenix. Anne's brother, James Rivers, was a passenger in the vehicle. As the Ring vehicle approached the intersection of Maryland and Central Avenues, two pickup trucks approached the intersection, both northbound on Central. Appellant Taylor was driving the pickup in the curb lane while Douglas Wistrom was driving his pickup in the inside lane. Testimony given at trial indicates that Taylor and Wistrom were driving side by side as they approached Maryland Avenue. Apparently they were "timing the lights" as they proceeded up Central. As the pickups reached the intersection, the traffic light for vehicles proceeding north on Central turned from red to green. Apparently the Ring vehicle had already entered the intersection at the time the pickups proceeded through. As a result, the Wistrom pickup collided with the Ring vehicle, thereby causing the Ring and Wistrom vehicles to collide with Taylor's pickup.

Anne Ring and James Rivers were seriously injured as a result of the collision and subsequently filed suit against both Taylor and Wistrom. Additionally, Royce Ring was listed as a plaintiff in his wife's suit, seeking compensation for loss of consortium. Prior to trial, the Ring and Rivers lawsuits were consolidated. Shortly before trial was to begin, plaintiffs and defendant Wistrom entered into a covenant not to execute upon any judgment that might be obtained against Wistrom. The covenant was apparently executed due to the fact that Wistrom had no insurance and was judgment-proof, and as a concession to Wistrom's attorney. After a lengthy trial, the jury returned verdicts in the amount of $1,300,000.00 each in favor of plaintiffs Anne Ring and James Rivers, as well as a verdict of $21,500.00 in favor of plaintiff Royce Ring. The verdicts were entered against both Taylor and Wistrom. Pursuant to the covenant not to execute, plaintiffs may look only to defendant Taylor (appellant) for satisfaction of the judgments.

IMPROPER CONDUCT OF PLAINTIFFS RING'S COUNSEL

Appellant's first contention is that counsel for plaintiffs Ring improperly represented to the jury, during his opening statement, that he would present evidence that a Brenda Howard was in a car behind the pickups as they approached Maryland Avenue and that she thought the light was red for northbound Central Avenue traffic at the time of the collision. Appellant claims that since Brenda Howard did not testify at trial and her written statement was not admitted into evidence, he was denied a fair trial. That portion of counsel's opening statement to which appellant objects reads in part as follows:

... One gal who thinks the light was red is named Brenda Howard. She was a young lady who was in the back seat, I think the back seat of a car which was also northbound on Central Avenue that night, some distance behind these two trucks who were going like this up and down Central.

* * *

* * *

I suppose Mr. Hofmann is concerned because Brenda Howard, now, four years later in her deposition, will come here into the courtroom and say today: I don't remember anything about this accident. I just know that I was in the back seat of that car. She'll also tell you that at the time the accident occurred, and she was there at the scene with all the ambulances and the police, a police officer came to her and gave her a form. He said: Fill this out and tell us what happened. She'll tell you that at that time, she wrote down: I think the light was red for these trucks, but I'm not sure. She's not going to tell you she saw the light, and I wish she had and I wish I could bring her here and have her say that, but that isn't what she said at the time of the accident. She said: I was in this car and it was slowing down as it approached the light. And she said: I think the light was red, but I'm not sure....

Appellant contends that plaintiff's counsel never intended to call Brenda Howard as a witness, knew her statement given to the police was "clearly inadmissible" and was attempting to get inadmissible evidence before the jury through his opening statement. Appellees counter by arguing that they intended to have Brenda Howard testify at trial and were planning to have the statement admitted into evidence pursuant to Rule 803(5), Arizona Rules of Evidence. ¹

We, of course, cannot ascertain what the intentions of counsel were in regard to calling Brenda Howard as a witness. We note that the record does disclose that a subpoena was issued directing Ms. Howard to appear at trial on March 5, 1981. Appellees' counsel represents that Ms. Howard did in fact appear on March 5, but was asked to return on a subsequent date due to the fact that another witness was testifying at the time she appeared. The record indicates that appellees Ring filed a written motion to have the written statement of Brenda Howard admitted into evidence which was denied upon the trial court's determination that appellees had failed to demonstrate that the witness was unavailable. See Rule 804, Arizona Rules of Evidence.

While it is possible that appellees' counsel never intended to call Brenda Howard to the witness stand, this very issue was presented to the trial court on appellant's motion for a new trial. The trial court was in a much better position to determine the intentions of appellees' counsel. Accordingly, we find no abuse of discretion in denying appellant's motion for a new trial. See Reeves v. Markle, 119 Ariz. 159, 579 P.2d 1382 (1978).

Moreover, prior to ordering a new trial due to misconduct of counsel, the trial court must determine that the improper conduct actually influenced the verdict. See Anderson Aviation Sales Company, Inc. v. Perez, 19 Ariz.App. 422, 508 P.2d 87 (1973); Rule 59(a), Arizona Rules of Civil Procedure. Once again, the trial court is in the best position to make such a determination and, as a reviewing court, we will not disturb its ruling absent a clear showing of prejudicial error. Taylor v. Dirico, 124 Ariz. 513, 606 P.2d 3 (1980); Hales v. Pittman, 118 Ariz. 305, 576 P.2d 493 (1978). Counsel's alleged improper comments in this case fall far short of this standard. Counsel's comments indicate that Ms. Howard never saw the light, that she was in the back seat of a car northbound on Central Avenue behind the two pickups, and that she thought the light was red because the car she was in was slowing down. Viewing these comments in the context of a lengthy trial of more than three weeks, the trial court's conclusion that any improper conduct on the part of counsel did not influence the jury's verdict is clearly supported by the record, especially in light of the fact that the jury was instructed that the remarks of counsel were not to be considered as evidence.

Therefore, we conclude that the trial court did not abuse its discretion in denying appellant's motion for a new trial, regardless of counsel's intentions in commenting on Brenda Howard's testimony or written statement, neither of which was subsequently admitted into evidence.

TESTIMONY OF PATRICIA ALLEN

Appellant also alleges error warranting a new trial based upon the testimony of one Patricia Allen. Appellant claims that the trial court erred in: (1) not permitting appellant to impeach Ms. Allen with a prior recorded statement; (2) denying appellant's request to depose Ms. Allen prior to her testifying; and (3) permitting Ms. Allen to opine that appellant and Douglas Wistrom were "racing".

A. PRIOR STATEMENT

We consider first the prior recorded statement. The statement in issue was obtained by an agent of appellant's insurance carrier via a phone conversation with Patricia Allen conducted on August 23, 1979. Appellant failed to disclose the existence of the recorded statement when specifically requested, through subsequent interrogatories, to divulge the existence of "any written or recorded statement made by any party or witness". There is no question that Ms. Allen was a witness to the accident.

Appellees moved in limine to have any use of the undisclosed statement by appellant's counsel barred when they learned, through Patricia Allen, that the statement had been taken. The oral motion was made on March 11, 1981, after trial had commenced and the day before Ms. Allen was scheduled to testify.

Appellant claims that he was not required to divulge the statement since it was to be used to impeach Patricia Allen. See Rule VI(a)(1), Uniform Rules of Practice of the Superior Court of Arizona. ² Appellees counter by arguing that the statement was to be used in an attempt to contradict Ms. Allen's testimony on a substantive issue and was therefore discoverable. See Helena Chemical Company v. Coury Brothers Ranches, Inc., 126 Ariz. 448, 616 P.2d 908 (App.1980); see also, Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965). Additionally, appellees point out that the proper procedure to follow would have...