Schwartz v. Benzow

----ooOoo----

Rae Lyn Schwartz,
Plaintiff and Appellant,

v.

David Benzow,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990328-CA

Filed
June 29, 2000 2000 UT App 203  -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
James W. Jensen, Cedar City, and Bruce H. Nagel and Andrew R. Bronsnick, Livingston, New Jersey, for Appellant
Karra J. Porter, Salt Lake City, for Appellee -----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Presiding Judge:

Rae Lyn Schwartz appeals from a jury verdict finding both parties fifty percent at fault, resulting in a judgment for defendant, David Benzow. Specifically, Schwartz appeals three rulings by the trial court: (1) failure to grant a new trial because of an inconsistent jury verdict, (2) admission of hearsay evidence at trial, and (3) refusal to give a requested jury instruction. We affirm.

Schwartz argues that she is entitled to a new trial because the jury verdict was inconsistent. Schwartz first objected to the inconsistent verdict approximately two months after the jury rendered its verdict, in a motion for a new trial, which the trial court subsequently denied. The "failure to object to a verdict, informal or insufficient on its face, before the jury is discharged, constitutes a waiver of that objection." Ute-Cal Land Dev. Corp. v. Sather, 605 P.2d 1240, 1247 (Utah 1980) (citation omitted). "[C]ounsel has the obligation not only to object to the form of the verdict, but to affirmatively seek to examine it." Martineau v. Anderson, 636 P.2d 1039, 1043 (Utah 1981). Because Schwartz failed to raise concerns about the inconsistency of the jury verdict until more than two months after the jury was discharged, Schwartz waived any challenge to the jury verdict.

Next, Schwartz argues that admission of hearsay testimony at trial was prejudicial error. We review evidentiary rulings for an abuse of discretion; however, "'"[a]n erroneous decision to admit or exclude evidence does not constitute reversible error unless the error is harmful."'" State v. Jaeger, 1999 UT 1,¶30, 973 P.2d 404 (alteration in original) (citations omitted). Schwartz objects to the police officer's testimony that one biker told him that she did not recall a jeep passing by at all and that a second biker told him that the jeep was fifteen feet past Schwartz when the crash occurred. However, a third biker, Jeffery Branigan, who was Schwartz's witness, directly testified that he saw the jeep crowd and honk at the bikers but did not see the jeep make contact with Schwartz's bike. Both hearsay statements, admitted through the police officer's testimony, are entirely consistent with the core of Branigan's testimony, namely that he did not see contact between the jeep and Schwartz's bike. Therefore, if the admission of the hearsay statements was error, the error was harmless and not reversible.

Finally, Schwartz claims that it was prejudicial for the trial judge to deny her request for a jury instruction about the illegality of driving across a double yellow line. "We review a judge's refusal to give a jury instruction for correctness, as it is a question of law." Robinson v. All-Star Delivery, Inc., 1999 UT 109,¶9, 992 P.2d 969. Schwartz's failure to notify the court that she wished to submit jury instructions by the court's specified deadline "carries with it the same consequence of failing to submit them at all." State v. Evans, 668 P.2d 566, 568 (Utah 1983). A pretrial order specified that the last day to submit jury instructions was October 20, 1998. The jury instruction under appeal was not filed until November 18, 1999. Therefore, by submitting the jury instruction to the court after the deadline, Schwartz waived any challenge to the trial judge's refusal to give the instruction. Furthermore, we fail to see how the instruction would have benefitted Schwartz, since under the circumstances of this case, breaking the law by crossing the double yellow line mitigates against Benzow's negligence in that if he did so, it would only have helped him to avoid the bikers.

Schwartz's objection to the inconsistent jury verdict, as well as her request for the jury instruction were not timely, and therefore, Schwartz waived these issues. Also, if the admission of the hearsay testimony at trial was error, the error was harmless. Accordingly, we affirm.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge