Roundy v. Staley
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IN THE UTAH COURT OF APPEALS
----ooOoo----
Laina Roundy,
Plaintiff and Appellant,
v.
Travis Staley,
Defendant and Appellee.
OPINION
(For Official Publication)
Case No. 981062-CA
F I L E D
July 22, 1999
1999 UT App 229
-----
Third District, Salt Lake
Department
The Honorable David S. Young
Attorneys:
Peter C. Collins, Salt Lake
City, for Appellant
Christian W. Nelson, Lynn
S. Davies, and John E. Hansen, Salt Lake City, for Appellee
-----
Before Judges Greenwood, Bench, and Jackson.
GREENWOOD, Associate Presiding Judge:
¶1
Plaintiff Laina Roundy appeals
from a jury verdict denying her damages in a personal injury suit as a
result of the jury's finding that she was sixty percent negligent and defendant,
Travis Staley, was forty percent negligent. Roundy claims the trial court
erred in refusing to grant her a new trial based on the improper admission
and nondisclosure of testimony and a surveillance video that impeached
testimony about her injuries. Roundy also argues the trial court erred
in granting a directed verdict in favor of Staley on her claim for punitive
damages. We reverse and remand for a new trial.(1)
BACKGROUND
¶2
Roundy sustained injuries
when she and Staley were involved in a automobile accident. Roundy brought
a negligence action against Staley and also sought punitive damages under
section 78-18-1 of the Utah Code. See Utah Code Ann. § 78-18-1
(1996 & Supp. 1998).
¶3
Before trial, Roundy sought
discovery from Staley on two different occasions, requesting information
about witnesses and evidence that Staley planned to use at trial. Although
Staley's counsel mentioned during jury selection that he might call Ron
Gunderson as a rebuttal witness, he never disclosed Gunderson as a witness
or the surveillance tape Gunderson had made of Roundy in his answers to
her requests for discovery.
¶4
The trial focused primarily
on the color of the traffic light at the time of the accident, which party
had the right-of-way, and the nature and extent of Roundy's injuries. Staley
called Dr. Gerald Morass to testify as an expert on Roundy's injuries.
Although Dr. Morass had prepared an independent medical examination report
concluding that Roundy suffered from five percent permanent impairment,
he testified that after seeing a surveillance video of Roundy, he doubted
Roundy's truthfulness about the extent of her injuries. When Roundy learned
of the tape through Dr. Morass's testimony, she requested that the trial
court order Staley to disclose Gunderson's identity and the video tape.
The trial court denied Roundy's request and the evidence, showing Roundy
engaging in activities that she had testified she was unable to perform,
was presented to the jury. At the conclusion of the trial, Staley moved
for a directed verdict on Roundy's punitive damages claim, and Roundy moved
for a new trial based on the admission of Gunderson's testimony and the
tape. The trial court granted the directed verdict and denied Roundy's
motion for a new trial. The jury subsequently found Roundy sixty percent
negligent and Staley forty percent negligent, preventing Roundy from collecting
damages. Roundy appeals.
ISSUES AND STANDARD OF REVIEW
¶5
Roundy argues the trial
court erred in refusing to grant her motion for a new trial based on the
nondisclosure of Gunderson as a witness and the surveillance video. "Because
the grant of a new trial is ordinarily left to the sound discretion of
the trial court, we will review the court's decision in this regard under
an abuse of discretion standard." Child v. Gonda, 972 P.2d 425,
429 (Utah 1998). Typically, denial of a motion to compel discovery is reviewed
under an abuse of discretion standard, see Archuleta v. Hughes,
969 P.2d 409, 414 (Utah 1998), but the question of whether the trial court
erred in denying Roundy's motion to order disclosure of the video tape
and its preparer presents a question of law that we review for correctness.
See State v. Pena, 809 P.2d 932, 936 (Utah 1994).
ANALYSIS
I. Preservation of Issue for Appeal
¶6
At oral argument, Staley
argued that the issue of whether the trial court erred in admitting Gunderson's
testimony and the tape was not properly before this court because Roundy
failed to preserve the issue for appeal. We disagree. Although Roundy objected
neither to introduction of the tape nor to Gunderson's testimony concerning
the tape, Roundy had previously discussed introduction of this evidence
with the trial judge. Our review of the record reveals that this colloquy
amounted to an oral motion to compel Staley to disclose Gunderson's identity
and to provide the video tape--a motion the court unequivocally denied,
stating that the testimony and the tape would be admitted as rebuttal evidence.
Therefore, further objection to the admission of Gunderson's testimony
and the tape at the time they were introduced would have been futile. See
Beltran v. Allan, 926 P.2d 892, 901 (Utah Ct. App. 1996) (Billings,
J., dissenting) ("It is well established that the law does not require
litigants to do a futile or vain act.").
¶7
Furthermore, this court
recently stated that "'absent an order creating a judicially imposed deadline
[for disclosing witness lists], a trial court may not sanction a party
by excluding its witnesses.'" Rehn v. Rehn, 974 P.2d 306, 314 (Utah
Ct. App. 1999) (quoting Berrett v. Denver & Rio Grande W. R.R.,
830 P.2d 291, 296 (Utah Ct. App. 1992)). In this case, the trial court
did not set a specific date for disclosure of witnesses and evidence. Therefore,
even if Roundy had objected to the admission of the testimony and tape
at the time this evidence was introduced, the trial court could not have
excluded the evidence. We thus conclude that because any objection to the
introduction of Gunderson's testimony and the tape would have been futile,
Roundy's oral motion to compel disclosure of this evidence was sufficient
to preserve this issue for appeal. See Samples v. Mitchell,
495 S.E.2d 213, 215 (S.C. Ct. App. 1997) (holding judge's ruling on admissibility
of surveillance video during trial sufficient to preserve issue for appeal
despite counsel's failure to make a contemporaneous objection when the
evidence was introduced because "no opportunity existed for the court to
change its ruling"). Furthermore, the issue before us in this appeal is
whether the trial court should have ordered disclosure, not admissibility
of the video and Gunderson's testimony. Roundy preserved that issue in
her oral motion to disclose and does not assert any other basis for inadmissibility
of the evidence.
II. Disclosure of Evidence
¶8
Roundy argues that Utah's
discovery rules required Staley to disclose Gunderson's identity and the
tape in response to Roundy's requests for discovery. Although no Utah cases
have directly addressed the issue of whether a party must disclose a surveillance
video in response to requests for discovery, the Utah Supreme Court has
held that the
purpose [of Utah's
discovery rules] is to make procedure as simple and efficient as possible
by eliminating any useless ritual, undue rigidities or technicalities which
may have become engrafted in our law; and to remove elements of surprise
or trickery so the parties and the court can determine the facts and resolve
the issues as directly, fairly and expeditiously as possible.
Ellis v. Gilbert, 19
Utah 2d 189, 190, 429 P.2d 39, 40 (1967).
¶9
Most courts addressing this
issue have held that a party in possession of a surveillance video tape
must disclose it to the opposing party prior to trial. See Martino
v. Baker, 179 F.R.D. 588, 589 (Colo. 1998). For example, in Samples
v. Mitchell, 495 S.E.2d 213 (S.C. Ct. App. 1997), the defendant in
a personal injury case offered a surveillance video tape of the plaintiff
at trial after failing to disclose the tape in his answers to plaintiff's
discovery requests. See id. at 214. In holding that the trial court
erred in admitting the tape, the appellate court noted,
"This question seems
to arise most often when the defendant in a personal injury case has videotaped
or collected some other visual evidence of the plaintiff after the accident
to impeach the plaintiff on the extent of his or her injuries. Discovery
of the evidence is generally permitted."
Id. at 215 (quoting 6
James Wm. Moore et al., Moore's Federal Practice § 26.41(4)(b)
(3d ed. 1997)). The court also stated that "[m]any states that have wrestled
with the question [of whether surveillance tapes are discoverable] have
held at least the existence of the video tape must be revealed in response
to discovery requests." Id. Finally, the court concluded that the
"defendant's surveillance video of the plaintiff was clearly relevant to
a personal injury claim" and failure to disclose the tape constituted "an
inaccurate response to [plaintiff's] interrogatories." Id. at 216.
¶10
Similarly, the Mississippi
Supreme Court in Williams v. Dixie Electric Power Ass'n, 514 So. 2d 332 (Miss. 1987), held that a defendant who taped the plaintiff prior
to and during trial was required to disclose this evidence in response
to plaintiff's requests for discovery. See id. at 336-37. The court
emphasized that the purpose of discovery rules is to "promote fair trials"
and that "[o]nce an opponent requests discoverable material, an attorney
has a duty to comply with the request regardless of the advantage a surprise
may bring." Id. at 335; see also Samples, 495 S.E.2d
at 217 ("The entire thrust of the discovery rules involves full and fair
disclosure, 'to prevent a trial from becoming a guessing game or one of
surprise for either party.'" (Citation omitted.)).
¶11
In this case, Roundy twice
requested that Staley identify all witnesses he intended to call at trial.
Although Roundy did not specifically request information concerning the
surveillance video, her interrogatories were sufficiently broad that Staley
should have revealed Gunderson's identity and the tape. Thus, we conclude
the trial court clearly erred in refusing to order Staley to reveal Gunderson's
identity and the surveillance video. This holding is consistent with the
purpose of Utah's discovery rules, facilitating fair trials with full disclosure
of all relevant testimony and evidence.
¶12
We reject Staley's argument
that he was not required to disclose the tape and related testimony because
it was rebuttal evidence. Although this evidence was used in an attempt
to impeach Roundy's testimony regarding her injuries, this alone does not
render it rebuttal evidence. See Williams, 514 So. 2d at
336 (rejecting argument that undisclosed witness's testimony was rebuttal
evidence because undisclosed evidence only rebutted part of plaintiff's
testimony and stating "if we accepted such a theory, 'there would be no
basis for the principle for ever requiring the defendant to disclose in
advance the evidence it would offer at trial, for all such evidence in
this sense is rebuttal'" (citation omitted)). Rather, rebuttal evidence
is that which a party may or may not use, depending on the testimony elicited
at trial.
¶13
In this case, Staley deposed
Roundy and knew the substance of her testimony before trial. We find Staley's
argument that he only planned to use the tape if it contradicted Roundy's
testimony disingenuous. To the contrary, it is apparent that Staley prepared
the tape for introduction at trial. Thus, we cannot characterize the tape
and testimony as rebuttal evidence. See McCullough v. Archibold
Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993) (holding "the nondisclosure
of a rebuttal witness is excused only when that witness was unknown and
unanticipated; known and anticipated witnesses, even if presented in rebuttal,
must be identified pursuant to a court order, such as a pre-trial order,
or to a proper discovery request"); cf.Chiasson v. Zapata Gulf Marine
Corp., 988 F.2d 513, 516 (5th Cir. 1993) (noting doctor used to impeach
plaintiff's testimony in personal injury case not "rebuttal witness," and
"'a defense witness whose purpose is to contradict an expected and anticipated
portion of the plaintiff's case in chief can never be considered a "rebuttal
witness," or anything analogous to one'" (citation omitted)); Martino,
179 F.R.D. at 589 (noting surveillance tapes are "primarily substantive
evidence and not totally or even basically impeachment evidence," and holding
defendant required to disclose surveillance tapes when "there would be
a discrepancy between the testimony the plaintiff will give and that which
the films would seem to portray" (citation omitted)).
¶14
Staley also argues that
he was not required to disclose the testimony or the tape because it is
protected attorney work- product. We disagree. Evidence prepared in anticipation
of introduction at trial is clearly discoverable under Utah Rule of Civil
Procedure 26(b)(1). See Utah R. Civ. P. 26(b)(1) ("Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense
of any other party, including the existence, description, nature, custody,
condition and location of any . . . tangible thing[] and the identity and
location of persons having knowledge of any discoverable matter."). As
one court aptly noted, a defendant who refuses to reveal a video tape of
the plaintiff in a personal injury case fails to
comport with the
broad purpose of our discovery rules in encouraging and demanding that
parties disclose and supply relevant evidence upon request. A full, free,
and open disclosure of relevant facts which would expedite and promote
the resolution of the disputed factual issue did not prevail in this case.
By failing to provide this information through discovery, the defendant
denied the plaintiffs an opportunity to present their case in a manner
which would allow [plaintiff] Mrs. McDougal to preserve and protect her
credibility.
McDougal v. McCammon,
455 S.E.2d 788, 796-97 (W.V. 1995); see
also State v. Koehr, No. 62252, 1992 Mo. App. LEXIS 1508, at *8-9 (Mo. Ct. App. Sept. 22, 1992) (noting majority rule that although surveillance information is work product, such evidence is not protected if it will be used by the defendant at trial because "plaintiff needs an opportunity to examine the material to guard against mistaken identity, possible exaggeration, distortion, and even fraud by the defendant"); Samples, 495 S.E.2d at 216 (holding surveillance video of plaintiff not protected attorney work product because "[i]f [defendant's] attorney believed [the plaintiff] had no right to this evidence, . . . she should have either objected to the interrogatory or disclosed the existence, but not the content, of the evidence and moved for a protective order").
¶15
Having determined the trial
court erred in failing to require Staley to disclose the surveillance video
and Gunderson's testimony, we must next determine whether the error was
harmful. See Cal Wadsworth Constr. v. City of St. George,
898 P.2d 1372, 1378-79 (Utah 1995) ("[A]n erroneous decision to admit or
exclude evidence does not constitute reversible error unless the error
is harmful. An error is harmful if it is reasonably likely that the error
affected the outcome of the proceedings." (Internal citations omitted.)).
¶16
Staley argues that admission
of Gunderson's testimony and the tape was harmless because this evidence
was relevant only to the issue of damages--an issue the jury did not reach.
However, a determination of liability in this case hinged on the parties'
credibility. Because Staley introduced Gunderson's testimony and the tape
to impeach Roundy's credibility, this evidence was directly relevant to
the issue of liability. Furthermore, the record reveals that this case
largely hinged on Roundy's testimony versus Staley's. In fact, Roundy's
counsel specifically stated in closing arguments that "[t]his case has
to do exactly and precisely with the credibility of the plaintiff." Therefore,
if Roundy's testimony had not been impeached by admission of Gunderson's
testimony and the tape, it is reasonably likely the jury might have reached
a different verdict. We therefore conclude the trial court's error in admitting
Gunderson's testimony and the tape without prior disclosure was harmful.
CONCLUSION
¶17
Roundy properly preserved
the issue of admission of the testimony and the tape through her counsel's
colloquy with the trial judge that was tantamount to an oral motion to
compel Staley to disclose the evidence. Because the purpose of Utah's discovery
rules is to foster the fair and efficient exchange of information between
parties, we conclude the trial court clearly erred in refusing to order
Staley to disclose the disputed evidence. The video tape and accompanying
testimony were not rebuttal evidence, nor were they protected attorney
work-product. Furthermore, the surveillance tape directly undermined Roundy's
credibility--a factor crucial to the determination of liability. Therefore,
we conclude the error was harmful. Accordingly, we grant Roundy a new trial,
see Utah R. Civ. P. 59(a)(7) (providing for new trial on the basis
of "[e]rror in law"), at which she may renew her claim for punitive damages.
¶18
Reversed and remanded for
a new trial.
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
-----
JACKSON, Judge (concurring in result):
¶19
I agree with Judge Greenwood
that we should reverse and remand for a new trial. However, I would reach
that result using a somewhat different analysis.
¶20
Instead of primarily focusing
on the presumed motion to order disclosure, I would reverse based solely
on Roundy's challenge to the trial court's denial of her motion for a new
trial because of "[a]ccident or surprise, which ordinary prudence could
not have guarded against." Utah R. Civ. P. 59(a)(3). My analysis would
eliminate the need to evaluate issue preservation and to state the multiple
standards of review found in the main opinion.
¶21
Even if Roundy did not specifically
object during trial regarding the issue of unfair surprise, she raised
it in her motion for a new trial. In denying the motion, the trial court
considered the issue on the merits. "Because the court considered the alleged
error rather than finding it waived, [Roundy's] right to assert the issue
on appeal was resuscitated." State v. Seale, 853 P.2d 862, 870 (Utah
1993).
¶22
The main opinion correctly
identifies abuse of discretion as the standard of review for the denial
of a motion for a new trial, then ably analyzes the law vis-a-vis the facts
of this case to establish that there was a harmful surprise at trial that
Roundy's "ordinary prudence could not have guarded against." Utah R. Civ.
P. 59(a)(3). Based on that analysis, I believe that the trial court abused
its discretion in denying Roundy's motion for a new trial.
______________________________
Norman H. Jackson, Judge
-----
BENCH, Judge (dissenting):
¶23
I respectfully dissent.
¶24
The main opinion holds that
appellant preserved for appeal the issue of whether the trial court erred
in admitting Gunderson's testimony and surveillance tape. I disagree. Appellant
failed to make any objection to the trial court regarding the admissibility
of this evidence. At the trial court, appellant contended only that appellee's
failure to disclose constituted a discovery violation. Appellant's concern
about nondisclosure is insufficient to preserve for appeal the issue of
the admissibility of the underlying evidence.
To preserve an issue
for appeal, a party claiming error in the admission of evidence must object
on the record in a timely fashion. One who fails to make a necessary objection
or who fails to insure that it is on the record is deemed to have waived
the issue.
Lamb v. B & B Amusements
Corp., 869 P.2d 926, 931 (Utah 1993) (citation omitted); see also
Utah R. Evid. 103(a)(1) (providing "[e]rror may not be predicated upon
a ruling which admits or excludes evidence unless . . . a timely objection
or motion to strike appears of record, stating the specific ground of objection").
¶25
The main opinion concedes
that appellant did not object to the admission of the evidence, but concludes
that her oral motion to compel disclosure sufficiently preserved the admissibility
issue. In supporting this conclusion, the main opinion cites Samples
v. Mitchell, 495 S.E.2d 213 (S.C. Ct. App. 1997). Samples is
easily distinguished from the instant case because the appellate court
there held that a renewed admissibility objection was unnecessary
to preserve the issue for appeal when the trial court had already made
an admissibility determination. See id. at 215. In other words,
in Samples, the admissibility issue had previously been raised and
ruled upon. By comparison, a determination concerning a request for disclosure
is very different from a determination as to the admissibility of the evidence.
In the case at bar, there has never been an objection and consequent determination
on the question of admissibility.
¶26
In holding that the motion
to compel preserved the admissibility issue, the main opinion misstates
the trial court's ruling. The main opinion asserts that, in denying appellant's
motion to compel, the trial court ruled that Gunderson's testimony "would
be admitted as rebuttal evidence" at trial. The trial court, however, did
not state that the evidence would be admitted. In denying appellant's motion
to compel, the trial court stated as follows:
[T]he Court finds
that the disclosure of the testimony for the rebuttal witness need not
be made by the defense. And if the witness is called to testify later on,
based upon other testimony needing to be rebutted, that that can be presented
at that time. And if you have an objection about that before the witness
is called, we may deal with that.
(Emphasis added.) The trial
court therefore clearly ruled only that disclosure was unnecessary at that
time because of the rebuttal nature of the evidence. The trial court did
not rule that the evidence would be admitted at trial; nor did it make
any admissibility determination.
¶27
It is critically important
to note the trial court's clear statement above that "if you have an objection
about that before the witness is called, we may deal with that." Despite
this clear invitation to raise an appropriate objection once the evidence
was presented for admission at trial, appellant failed to make any
objection. By failing to object at all when the evidence was offered and
admitted, appellant waived her grounds for appeal.
¶28
The main opinion also errs
in asserting that even if appellant had made an appropriate objection at
the time the evidence was introduced, "the trial court could not have excluded
the evidence." This is not correct. The trial court clearly had the ability
to exclude the evidence if a valid evidentiary objection had actually been
made at trial, such as an objection under Rule 403 of the Utah Rules of
Evidence.(2) As already illustrated, the
trial court actually invited evidentiary objections if appellee
attempted to use the evidence at trial.
¶29
Simply stated, appropriate
evidentiary objections could have been sustained at trial, and such objections
had to be made to preserve the admissibility issue for appeal. Appellant's
failure to raise the issue is therefore fatal to her appeal. See, e.g.,
Lamb, 869 P.2d at 931. The threshold determination that the issue
was not preserved should preclude our consideration of the merits of the
case on appeal. See id. ("Plaintiff's failure to make an objection
on the record bars our consideration of the issue on appeal.").
¶30
In his separate concurring
opinion, Judge Jackson contends that the trial court abused its discretion
in denying appellant's motion for a new trial based on surprise. See
Utah R. Civ P. 59 (a)(3) (stating "a new trial may be granted [for] . .
. surprise, which ordinary prudence could not have guarded against"). "The
question of whether to grant a motion for a new trial is within the discretion
of the trial court, whose ruling will not be disturbed on appeal unless
the facts show a clear abuse of discretion." Chournos v. D'Agnillo,
642 P.2d 710, 713 (Utah 1982) (emphasis added). I find no abuse of discretion,
much less a "clear" abuse of discretion, and I would therefore not disturb
the trial court's denial of appellant's post-judgment motion. As stated
by our supreme court:
Failure to interpose
a timely objection to testimony challenged on the ground of surprise would
itself be a sufficient reason to deny a motion for a new trial on that
ground. . . . Rule 59(a)(3) was not intended to give attorneys the option
of waiting until after the case has been decided adversely by the court
before they pursue deficiencies in their proof by offering additional evidence
to counteract alleged surprises encountered during trial.
Id.
¶31
Even if the issue was preserved
in the motion for a new trial, as urged by Judge Jackson, I would conclude
that the trial court's ruling was not an abuse of discretion. Therefore,
I dissent and decline to consider the merits of the issues addressed in
the main opinion.
______________________________
Russell W. Bench, Judge
1. Because we grant Roundy a new trial at which she may renew her claim for punitive damages, we do not address this issue.
2. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Utah R. Evid. 403.
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