Croasmun v. Advocate Publishing

----ooOoo----

Randy Croasmun,
Plaintiff and Appellee,

v.

Advocate Publishing Co.
dba High Desert Advocate,
Harry Copelan, and Howard Copelan,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990097-CA

F I L E D
May 4, 2000 2000 UT App 122 -----

Third District, Tooele Department
The Honorable Raymond S. Uno

Attorneys:
James Andre Boles, Reno, Nevada, for Appellants
David W. Zimmerman and Margaret Niver McGann, Salt Lake City, for Appellee

----- Before Judges Greenwood, Davis, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Defendants argue that the trial court abused its discretion by excluding the excerpts they offered from Marilyn Brenneman's deposition testimony.(1) "In general, '[t]rial courts have broad discretion in managing the cases assigned to their courts,' and '[w]e will not interfere with a trial court's case management unless its actions amount to an abuse of discretion.'" Macris & Assocs. v. Images & Attitude, Inc., 941 P.2d 636, 642 (Utah Ct. App. 1997) (citation omitted).

While it seems doubtful the trial court abused its discretion in this case, we need not conclusively decide whether the decision to exclude was erroneous because defendants have failed to show they were prejudiced by the exclusion. Even if a trial court erroneously excludes testimony, we will reverse only "if the error was prejudicial to the substantial rights of a party." Berrett v. Denver & Rio Grande W. R.R., 830 P.2d 291, 293 (Utah Ct. App.), cert. denied, 836 P.2d 1383 (Utah 1992).

Having reviewed the entire Brenneman deposition, it is clear that the excluded portions would have made no difference in the final outcome of the trial. Prejudice is shown only if the presentation of the excluded evidence creates a "reasonable likelihood that . . . a different result would have eventuated." Id. (citation omitted). That is not the case here. The excluded portions of the Brenneman deposition simply confirm two facts which had already been presented by other witnesses: (1) that while living in Washington, plaintiff was convicted of a theft-related crime(2) and (2) that during this same period he was involved in a shooting death for which he was never prosecuted. These same facts came out in the deposition testimony of Larry J. Peterson and during both defendant Howard Copelan's and plaintiff's testimony. The excluded testimony was largely cumulative and would have made no difference in the eventual outcome of the case.

In addition, the excluded Brenneman deposition testimony, which only discusses limited events that occurred in Washington, was simply not relevant to the numerous defamatory statements that defendants made concerning other alleged events that took place in Washington, nor to plaintiff's alleged misdeeds that happened after plaintiff moved to Wendover. There was ample evidence introduced at trial establishing these other defamatory statements, and they are more than sufficient to sustain the verdict against defendants. Therefore, regardless of whether the exclusion of Brenneman's deposition testimony was erroneous, defendants were not prejudiced.

Affirmed.
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
James Z. Davis, Judge

1. Defendants adequately preserved this issue for appeal because they proffered the excluded, non-designated portions of the Brenneman deposition by reading it into the record. By contrast, defendants did not read into the record the excluded, non-designated portions of Larry J. Peterson's deposition. Without that testimony in the record, it is impossible to evaluate whether its exclusion was prejudicial. See Downey State Bank v. Major-Blakeney Corp., 578 P.2d 1286, 1288 (Utah 1978) ("A judgment will not be reversed for an alleged error in the exclusion of evidence unless it appears in the record that the error was prejudicial. [A party's] failure to make a proffer of proof as to what his evidence would show precludes him from asserting on appeal that the exclusion was error.")(footnote omitted).

2. Plaintiff was involved in a bizarre scam in Washington that featured the unlikely sales combination of furniture and sexual favors.