Butterfield v. SEVIER VALLEY HOSP.

missing transcript.12 dire from the trial adequate appeal, record on ... must as [we] support argument, of this Talbot asserts that regularity sume the proceedings be Litherland, low." provide the trial court failed "to a tran- See State has (internal seript jury process, despite ¶ 11, 12 of the selection quotation P.3d 92 omitted). We therefore repeated requests" sup trial do not consider this issue further. jury plement the record with the voir dire. single request supplement Talbot's CONCLUSION

record, however, actually was a "Motion Re garding Request Transcript Correction of long sup- So as Talbot's arrest was Transcripts Trial and Inclusion of the Ree- ported by probable cause, the fact that ord," May filed on 2009. With this mo may Deputy have exceeded the instructions tion, given by to him bearing sought original the Sheriff has no Talbot to correct his "transcript request, which [had been] intend whether Talbot's arrest was "lawful" under request transcripts ed" to for both the trial the constitution. supported The arrest was sentencing "inadvertently only but by probable listed cause based on all the facts and sentencing [dates] omitted the trial" cireumstances known to the Sheriff and his team, law enforcement arresting order, of which the dates. In a June this court granted stayed pro Deputy part, Talbot's motion and was a knowledge and the of the ceedings transeripts so that the trial could be Deputy's imputed fellow officers Deputy knowledge under the collective doe- Upon receipt included the record. transcripts, briefing trine at the time he arrested Talbot. rescheduled. decline to consider Nowhere in Talbot's motion Talbot's voir dire is the absence of issue mentioned, due to his failure jury appropriately supple- voir dire nor did he 11(h). ment the record under rule supplement make further motion to transcripts record after the trial had been Accordingly, 1 24 we affirm. included in the record and made available to him. DAVIS, 1 25 WE CONCUR: JAMES Z. Presiding Judge, and CAROLYN B. 121 Rule 11 of Appel the Utah Rules of " McHUGH, Presiding Judge. Associate procedure late Procedure 'establishes a supplementing appeal] the record [on when

necessary.'" Smith v. Four Corners Mental Ctr., Inc.,

Health (quoting Olson v. Park-Craig-Olson, Inc., (Utah Ct.App. App 2010UT 357 " 1991)). 11(h) Specifically, appro '[rJule Clint BUTTERFIELD and Heidi Butter priate[ly only used] when the record must be field, individually and on behalf of their augmented because of an omission or exclu child, Kylie Butterfield, minor Olson, 1359). (quoting sion.'" Id. at Appellants, 11(h) ("If R.App. See also Utah P. anything material to either is omitted from the HOSPITAL; SEVIER VALLEY and IHC ..., record error or accident Services, Inc., Health Defendants direct the omission or Appellees. misstatement necessary be corrected and if supplemental that a record be certified and No. 20090122-CA. transmitted."). Appeals Court of of Utah. 122 Talbot has made no motion under Dec. 11(b) supplement rule the record in- cluding currently excluded voir dire.

Because Talbot has provide "failled] to place

12. At the transcript process place in the trial where the tion took and a was selected to found, usually voir dire would the tran- hear this case." reads, script merely "Whereupon, selec- Provo, Young, Appellants.

Allen K. for Bott, Bednar, Joann E. Steven C. Castleberry, City, David C. Salt Lake for Appellees. ORME, THORNE, Judges

Before VOROS.

OPINION VOROS, Judge: Butterfield, individually Clint and Heidi daughter Kylie and on behalf of their Butter- Plaintiffs), (collectively, appeal field from a forty Valley Hospi- The court excused in favor of Sevier jury verdict Services, (the parties' suggestions Health Hospital) and IHC cause based tal Defendants). ap- (collectively, questionnaires Inc. review of the its own jury selection for of their motion reserved the balance of trial court's denial peal the We affirm. change venue. April Days 1 5 The case was tried

BACKGROUND trial, Plaintiffs filed a renewed Motion before Kylie gave birth to 12 Heidi Butterfield Change of Venue. Defendants did not Hospital. July 2000 at Butterfield motion, response to this and the file a written breathing delivery, Kylie not Upon trial court never ruled on it.1 pulse low. The doctors and her her own attempted her. present to revive and nurses trial, day fifty-five po- the first of T6 On eventually Primary Chil- flown to was She jurors appeared for voir dire. The tential signifi- Center. She suffered dren's Medical by asking conducted voir dire trial court cant, impairment. In November permanent jurors general questions regarding potential Sevier Plaintiffs sued Defendants impartial ability their to be relation- alleged Kylie's condition County. They parties ships they might have had with by negligent efforts resuscitation was caused ju- questioned individual witnesses. Counsel countered that Hospital. Defendants at the challenged jurors for rors and cause. The of a stroke or Kylie's was the result condition challenges. ruled on those This court cause. some other process repeated panel until was a Plaintiffs filed Mo- T3 In October jurors. potential winnowed to nineteen The Change Venue. The motion was tion for of peremptory parties then each exercised four impartial ground that a fair and based on the challenges panel eight to reduce the County impaneled in Sevier jury could not be jurors and three alternates who sat. county's population and the small due to the community. in the Hospital's prominence challenged Plaintiffs for cause four of T7 only Hospital one The jurors: potential the final nineteen Jurors major employers and is one of fourteen 12, 18, 15. The trial court denied Plain- Hospital operated The is owned there. 5, 12, challenges tiffs' to Jurors but Services, Inc. of Salt Lake by IHC Health peremptory Plaintiffs removed them with recognized Plaintiffs' City. The trial challenged Plaintiffs Juror 13 for strikes. impartial jury impaneling an concern about requested individual voir dire to cause and but, expressing confidence that an relationship 18's with a defense discuss Juror motion. impaneled, denied the could Apparently satisfied with Juror witness. trial, a T4 In March weeks before description relationship, of the 13's jurors potential was drawn. pool of According- their to her. withdrew given question- potential a Each selection, of ly, by the conclusion of none information, eliciting such as whether naire actually heard the case eight who a potential knew or had relation- challenged by Plaintiffs at were cause ship party. Based on with witness court asked questionnaires, the trial these trial, Following a two-week "identify and Defendants to those a verdict in favor of Defendants. returned [they] like potential fe[lt] which alleging Plaintiffs filed a motion for new trial exclude," "I'll [they'd] adding, take a like to error, including grounds various at those." Plaintiffs identified closer look grant of venue. court's failure jurors, including four numerous The trial and Plain- eventually decided the case. trial court denied motion appeal. tiffs now took the matter under advisement. to receive many make motions as trial continued there were oral 1. The trial court noted that particular rulings Plaintiffs never on motions. pending that it did not have time written motions orally. Instead, change of venue motion reasserted their it directed the to rule on. ISSUE AND STANDARD OF REVIEW than focusing actually selected. at See id. ap Defendants assail this 19 Plaintiffs contend that the trial court proach both it derives from a crimi by denying Change erred their Motion for because, nal they argue, case and once the Venue, impartial jury which asserted that an impaneled, has been dispositive impaneled County. could not be Sevier question is whether the "ultimately case was ruling We will a trial not overturn court's Widdison, tried impartial jury," fair and change-of-venue motion unless the court ¶60, 38, 2001UT 28 P.3d 1278. City clearly abused its discretion. Redevelopment Agency Grantsville $12 agree with Defendants and 53, 233 Tooele, P.3d 461. A appellant hold that where an change- raises a its discretion trial court abuses when its "de of-venue completion after the aof beyond reasonability," the limits of [is] cision civil question determinative ¶ Arguelles, State whether the case was tried a fair and (internal omitted), quotation such so, jury. If purpose [person] that "no reasonable would take the change-of-venue procedure and, was achieved (altera adopted by view the trial court." Id. event, appellant can demonstrate (internal original) tion in quotation marks prejudice. omitted). statute, By civil cases are to be ANALYSIS (a) county "tried in the in which: the cause of 110 Plaintiffs contend that an impartial arises; (b) any action defendant resides at jury impaneled could County not be in Sevier the commencement of the action." Utah "[vlirtually for the reason that all of the 78B-3-307(1) (2008). § However, Code Ann. potential jurors personal have a stake in the may change court place the of trial outcome, because most will need to use Sevi- purpose for the achieving impartial of "an Valley care, Hospital" er for medical it as is trial": only hospital addition, the in county. the In motion, may, The court change on the that, argue Hospital's due to the place of trial ... when there is reason to "very prominent presence in a of less impartial believe that an trial cannot be 20,000 people," than jury two-thirds of the county, city, had in the precinet desig pool and "over half the that decided complaint. nated the the case had some connection to the facility or trial its witnesses." 78B-8-309(2). § Id. applies A similar rule criminal cases. may change The court Party I. Challenges When a Venue Ap- place of trial to impartial achieve a "fair and Trial, peal After the Determinative trial": Question is Whether the Case Was Tried prosecution If the or a defendant in a to Impartial Jury. criminal action believes that a fair and outset, 11 At disagree on impartial juris- cannot be had in the what law controls. argue that our diction where the action pending, is either analysis guided by should be a trio of erimi- motion, may, by supported by an affidavit cases, James, nal change-of-venue State v. setting facts, forth ask to have the trial of (Utah 1989), Widdison, 767 P.2d 549 jurisdic- case transferred to another 60, 1278, 2001 UT and v. State tion. Stubbs, 2005 UT partic P.3d 407. ular, they urge 29(d)(1). us to look four-part to the Utah provisions R.Crim. P. These James, test set forth in James. See 767 P.2d make clear purpose aof of at 552. That test was devised in the context venue is to a fair impartial achieve pre-trial of a venue context, heard on inter In this lack of fairness and locutory appeal. See id. at tiality 550. It thus at trial jury." is a function of "a tainted ¶ examines the State, characteristics of the communi Lafferty 2007 UT ty P.3d 530. from which the will be drawn rather ° case, change-of- question is "whether [the] if a the determinative 114 In a criminal ultimately tried a fair defendant was impan motion is filed before venue eled, pro undertake a trial court must jury.""'" Lafferty, UT added) (altera evaluating "demographic, analysis ¶ 42, spective (emphasis unrelated Stubbs, 65, ¶ and cultural evidence geographic, original) (quoting tion bias of an (quoting identity P.3d 407 State v. Widdi ¶ Stubbs, 1278)). son, 60, 38,28 P.3d actual venire." 2001UT ¶ Specifically, the court realm, supreme 17 In the civil our court "(1) standing of the victim consider applied has not the James factors even (2) community; in the the accused pretrial context. are aware of one re (8) community; the nature and size appellate ported decision in which an Utah (4) offense; and the nature and gravity of the a motion to reviewed the denial of James, 767 P.2d at 552. publicity." extent interlocutory appeal, City change venue on interlocutory appeal, On Redevelopment Agency Grantsville See, e.g., the same factors. will examine City, 233 P.3d 461. That Tooele ("We Stubbs, 65, 13, 123 P.3d 407 appeal dispute City arose from a between the expressly limited our review under have Stockton, and the Town of of Grantsville interlocutory appeals...."). test James hand, City one and the of Tooele and pre of the James factors is purpose agencies certain of its on the other. See id. can be whether a fair and dict dispute concerned the distribution T1. The community in a that has been ex selected proper million dollars from the sale of $15 a criminal case. posed publicity about ty formerly belonging Army to the Tooele contrast, prediction is 'I 15 In after 11-8, argued Depot. See Grantsville is not necessary. appellate record "[TJhe City up that "Tooele residents make more descriptive data about the charac limited to than one-half of the total residents of Tooele community in the trial of the which teristics County" and that the case involved the place and from whose citizens is to take possible "the redistribution of millions of dol ¶ 14. Id. After jury will be culled." City lars from Tooele coffers to other local juror's reviewing court can examine "the the communities, unlikely it that an [was] Lafferty, answers." actual voir dire ¶ impaneled." Id. tial could be 52 73, ¶ 42, stage, At that the 175 P.3d 530. (internal omitted). quotation marks question longer whether determinative rejected supreme court Grants- 118 The had," impartial fair and trial cannot be "a analysis, dismissing claim with little ville's James, P.2d at but whether the case 767 conjecture": concerns as "mere Grantsville's by impartial a fair and in fact "tried was 73, ¶ 42, point, argument P.3d At this Grantsville's jury," Lafferty, 2007 UT 175 impaneled is impartial an cannot be omitted). (internal quotation marks 530 conjecture. jury in this case will mere The {16 factors retain some rele The James City, as of residents from Tooele consist trial; helpful to a they ""can be vance at surrounding residents from the well as assessing overall fairness of court the trial community. Additionally, pro- voir dire (emphasis add jury pool," id. the n. 3 litigants opportunity with the vides the ed) Stubbs, 65, ¶ 17, (quoting jurors. potentially biased weed out 407). example, might encour For analyze did not or even Id. 158.2 The court to latent age trial court to be sensitive factors, though it the James even mention pre types ... James aims to bias "of the Stubbs, interlocutory order. See 123 P.3d reviewing an vent." ¶¶ 51-53. If the James factors do not ruling trial court's "is 407. But when the verdict, interlocutory appeal, a on following jury apply to a civil case challenged appeal a action, court, question involved in the Although by supreme rule or in the main cited not a except of Civil Procedure inferen- a member or 47 of the Utah Rules his interest as citizen of rule, holding. 47(0(5) tially supports Under that its municipal corporation." Utah R. Civ. P. "[plecuniary juror may interest added). be removed (emphasis action, juror part in the result of the where, here, apply fortiori do not as By IL This Case Was Tried responses Impartial Jury. court An review voir dire jurors actually who tried the case. T21 Plaintiffs contend that their case was not tried a fair impartial trials, € appeals 19 In after civil our jury, jurors eight because five of the who sat inquiry largely court has directed its personal on the case "had connections with the trial court whether had out "weed[ed] " Defendant[s] [their] witnesses." '[A] potentially jurors." example, biased Id. For juror, through who association Stocks, in Chamblee v. 9 Utah 2d with a developed witness or has (1959), supreme P.2d 980 court affirmed affection, relationship respect, esteem, pretrial the denial of a motion for disinterested, indifferent, cannot be deemed post-verdict venue in a appeal. id. at Cox, impartial'" State v. 826 P.2d plaintiff 980. The sued the sheriff. (Utah Ct.App.1992) (quoting plaintiff argued See id. The that because the Brooks, (Utah 1977). official, sheriff elected "a member of Thus, supreme court bas held that a one of the oldest families in Moab and Grand party's who describes a witness as a County, many had [and] friends the coun "very good friend" cannot be ty, impossible it would be to have an disqualified, Brooks, must be see 563 P.2d at supreme trial." Id. The court's 801, unless "adequately analysis jurors focused on actually probel[s][the] juror's bias," and re sat: "The wisdom of the court's denial here ceives "sufficient evidence that the will quite clearly was established when the Cox, impartially," act see 826 P.2d at 660 questioned were shortly for cause before (second (internal in original) quota alteration they were sworn." Id. at Although all omitted). tion Similarly, in State v. Stubbs, knew, panel either or knew the su of, defendant, any disposi preme "none evinced court noted change-of-venue that a try tion to fairly," granted the case other than motion should except because of the "many prospective ju two connections between the who were chosen removed for ¶ 19. rors and family." the victim's Id. cause or a peremptory challenge. Id. responses "Voir dire revealing evidence of supreme analysis concluded its as partiality give bias or presumption rise to a follows: "Plaintiff at challenged only potential biased, that juror a juror is and the juror the one for cause being and on asked must be dismissed that presumption unless is by twice any the trial court if others were to ¶ Holley, rebutted." v.West 2004 UT challenged cause, Id.; be for stood mute." instance, 103 P.3d 708. For a presumption see Thorley also Estate Thorley, v. 579 of of bias has been in raised civil cases when a (Utah 1978) ("Trial 927, P.2d 930 procedure prospective juror experi indicated that her an opportunity question jurors affords to ence being past of sued in gave the her a prejudice reason; determine bias or for negative id., plaintiffs, view of see and where proceed the trial does not until an prospective juror the stated that she "would obtained."). tial partial be somewhat to the" defendant in the sum, case, Parrish, 120 purpose 533, because the of a Jenkins v. 627 P.2d 535 (Utah 1981), grounds overruled on other by protect of venue is to parties' the Baker, (Utah 1994). State v. 884 P.2d 1280 right by a fair to trial an jury, once impaneled, a has been the determinative A. Invited Error question is impaneled jurors whether the in impartial. were fact Accordingly, we hold T22 argue Defendants ap- that Plaintiffs' that reviewing post-trial when change of peal rejected must they "passed be venue motion under Utah Code section 78B- the for cause and chose not to 3-309(2), question the before us is whether who decided this case." by case was tried a fair and response Plaintiffs' essentially two-fold. jury. First, relying James, on Stubbs and

127 Therefore, supreme court jury. like the bias built into can be a that "there argue to create a Winfield, "we find no reason in challenges for-cause individual jury pool that challenges." Id. special exemption for such no re- "there is and thus address" do not ¶ 17. challengel{ jurors for ] party that a quirement appeal on a an preserve to in order cause Moreover, persuaded by we are not 125 See- change venue." a motion to of denial community-wide argument that Plaintiffs' that ond, seeming to concede while unique are so that the ordi sources of bias the seated "failed to apply. do not nary rules of selection dire," Plaintiffs voir during the oral cause rejected recently a simi supreme court Our response to objections in earlier rely on their 35, Shipp, v. 2005 UT argument State lar on inquiry based preliminary trial court's There, argued the defendant 317. 116 P.3d two and a half weeks jury questionnaires between a witness non-incidental contact that before should, occurring pre-trial like and a a witness and contact between non-incidental Generally, Utah 123 subject occurring during alleged an error to review will decline courts presumption prejudice; rebuttable challenging it party invited that was parking occurs "whether the contact is, either appeal, that when "counsel, court, lot, way the court in] into act, affirmatively represented or statement ¶ 13 recess," during a room before had no he or she court that the [trial] (alteration argued, original), the defendant State [proceedings]." objection to appearance potential for at least 111; 22, ¶ 54, Hamilton, 70 P.3d 2003 UT same, see id. The su impropriety is the ¶ 62, Pinder, 15, 2005 UT accord State rejected the defendant's com preme court 551; Geukgeuzian, 2004 UT P.3d pretrial The difference between parison. that ensures 742. This doctrine 86 P.3d "the district and mid-trial contacts is contacts advantage of an error cannot take party "'a out a ability in voir dire ferret court's led trial when committed at Id. ¶ juror's prejudice bias." prospective committing the error.!" into "Although before voir dire contact 86 P.3d Geukgeuzian, 2004 UT relating ... implicate the concerns Anderson, (quoting State v. possibility impropriety and the appearance Pinder, (Utah 1996)); accord juror, the voir dire of influence over Hamilton, 551; ¶ 62, " already as a means process exists ¶ 54, our It also "fortifies any possible bias and and assess unearth policy long-established Id. ¶ (cita jurors." prejudice opportunity to address the first should have omitted). tions Hamilton, a claim of error'" Anderson, ¶ 54, (quoting alleged pretrial contact 1109). P.2d at sort, a different but in the case at baris of process. "Voir to the voir dire yet applied less amenable Although no Utah case has T provide a tool for counsel is intended to change to a of dire error doctrine the invited skillfully carefully and deter and the court to supreme applied challenge, the venue mine, preju biases and by inquiry, whether during voir a claim of error the doctrine to 128P.3d Winfield, 2006UT dices, acknowledged, will in State v. latent as well as dire particular ¶¶ 13-21. if There, with a fair trial interfere 1171. See Saunders, challenges in it." State serves to review the defendant's declined ¶ 34, Accordingly, we see no 992 P.2d 951. jurors ground eight to seven of the alleged in this why of bias "affirmatively reason the sort represented defendant that the exempted from the uniquely objection to case should he had no the trial court that to selection, including the jury normal rules of And as noted jury panel." Id. jury of above, challenges the denial passes the for party when a who rule that in the selection of invited error of a cause has change in the context venue a motion ¶¶4, 13- jury. Winfield, 2006 UT essentially See analysis appeal, the post-trial 128P.3d of challenge impartiality to the as a the same respect T27 With Plaintiffs jury. dire, 10 on During voir Plaintiffs point, reading second our of the record con stated, "Well, counsel I won't challenge [Ju pass vinces us that Plaintiffs did indeed ror plaintiff 10]. She was a apparently. I jury point for cause. At the at which the better addition, not her." In al jury pool had been narrowed to nineteen though originally Plaintiffs challenged Juror potential jurors-eight per to be struck with "familiar[ity]" because of her with a de strikes, emptory eight jurors, to sit as witness, fense expressly withdrew that three to sit as alternates-the court asked challenge. regard these inviting acts as passed jury whether counsel for cause. any possible error seating of these "passled] Plaintiffs' counsel panel for jurors. Winfield, 4, 21, See subject objections cause" [they] to "the al Accordingly, may Plaintiffs not ready made ... which [the court] overruled." appellate base an jury claim of bias on Jurors Plaintiffs now contend that were refer 10 or 18. ring objections made weeks before trial jury questionnaires. However, based on the 1, 2, 831 That leaves Jurors and 11. the court these; did not "overrule" point While Plaintiffs connections they were granted either or deferred until between Jurors and 11 on the one hand contrast, In objections made Plain and Defendants and their witnesses on the during other, tiffs voir granted, dire were either we conclude that these connections are denied, or withdrawn. Consequently, too attenuated to relationship demonstrate a "objections" affection, reference to reasonably is most respect, or esteem such that only read to refer interposed to those during they could not impartial. remain See State v. Cox, (Utah voir dire. panelists Because all Ct.App.1992). to whom objected Plaintiffs had during voir dire were Juror 1 was a friend Gary Beck, of the son of who employee strikes, was an removed with peremptory of one of the defen Plaintiffs passed for cause the that heard the case. dants and who sat at counsel through table out trial. Plaintiffs request did not to indi 128 Accordingly, we affirm ground vidually voir dire Juror nor did Plaintiffs that, by passing cause, Plaintiffs challenge him for cause. contrary, On the invited error in the court's denial their appeared relieved that Juror 1 motion of venue. knew himself, Beck's son and not Beck as originally thought following question B. Jury dire, During naire. voir Plaintiffs' counsel Moreover, the record of voir dire stated, 1], "[Juror on his form he indicated that, this case event, demonstrates in any Gary he knew Beck.... way [Hle looks Plaintiffs have not shown that the too young to Gary know Beck and I wonder decided the case were biased. Plaintiffs maybe if he knows his son or someone.... identify five of the who sat on the case 1], When I saw I thought [Juror I gonna having personal as resulting connections see a fellow that was Gary about age Beck's 1, 2, 10, 11, bias: Jurors and 18. and so it must be a son. okay." So Juror I's begin by that, 180 We noting as in a Gary connection to Beck is weaker than the direct impartiality juror, of a required connections that reversal Stubbs. premise not claim Stubbs, prose were friends of bias on a where Plaintiffs them cution witnesses or knew family. the victim's selves expressly either declined to challenge Stubbs, 123 P.3d 407. juror that for cause or withdrew an earlier Here, Juror 1 merely a friend of the son of for-cause challenge juror. to that See State employee an of one of the defendants. Wach, ¶¶ v. 38-40, 2001 UT 24 P.3d 948 (stating that failure challenge juror to a con 182 Juror 2 Chappell knew Dr. waiver). stitutes Two of the Plaintiffs but, and nurse Chappell Michelle in her identify appeal fall category. words, into this "not that well." The trial court asked Despite their on appeal concerns about Juror Juror 2 whether her relationship to the 10, at trial preferred Plaintiffs keep to Juror Chappells would affect impartiality, her

129 challenge against unsuccessfully a not. Jurors are not said that it would she acquainted merely challenged preserve are for cause to the issue biased Cobb, Call, v. appeal); a or witness. See State Clatterbuck v. 2007 with (Utah 1989) (considering 1126 774 P.2d 76U, para. 4 App n. 2007 WL 701039 juror's acquaintance" (mem.) with potential "brief (noting that Baker's "cure or waive" bias); cases). to exhibit prosecutor insufficient applies recognize in civil rule Stocks, 9 Utah 2d v. Chamblee challenging impartiali that Plaintiffs are 1959) (Utah fact (holding that whole, ty including as a "knew," of," or "knew that juror. jury pool, just and not one entire plaintiff in "acquainted with" the Nevertheless, above, were ju as stated where the bias); to exhibit State Calli sufficient actually impartial, sat were rors cf. ham, (finding 55 P.3d parties' right to a fair trial -the ultimate juror's of bias arose from state inference purpose change of a motion to venue-has difficulty remaining ment that he would have Moreover, preserved. been we review the being "close due to ruling trial court's for an abuse of discretion. party's grandparents). Per friends" with a Accordingly, Plaintiffs' burden is to demon importantly, Plaintiffs did not haps most so that strate that this biased challenge 2 for cause. Juror person reasonable would have failed to order Arguelles, a of venue. See State 11's connection is no Juror ¶1, 101, (stating a that Gary stronger. 11 had been Beck's Juror "if trial court abuses its discretion we con grade teacher. After receiv daughter's first [person] clude that no reasonable would take said, questionnaire, Plaintiffs ing Juror 11's (first original)(inter view" alteration [its] maybe that we is one of those "[Juror 11} omitted)). quotation nal We cannot out how close that could voir dire and find person conclude that reasonable would relationship whether that would af was and enjoy have ruled that Plaintiffs could not Apparently satisfied with her an fect her." jury in fair an Sevier during subsequent the trial court's voir swers ju County based on the characteristics of dire, requested neither to individu Plaintiffs expressed rors with whom Plaintiffs little or ally challenged 11 nor her for voir dire Juror no dissatisfaction. cause. that an determining In whether these 1 35 Plaintiffs also contend significant we find it impartial, were fair and impaneled in tial could not be Sevier jurors may challenged County think that that Plaintiffs none of them. "because per affect preclude ap a direct outcome of the case would their This fact alone would assert pellate challenge impartiality. to their sonal health care." Plaintiffs ¶¶3, 14-20, "{jJurors worry King, could well both about the judgment objection impact financial such (requiring preserve ju challenge [HJospital, as well as how individual appellate review a for-cause by doctors and staff at ror would be viewed juror). Nor did Plaintiffs prospective [HJospital they need to its expend any peremptory of their should use choose to addition, jurors.3 Again, argue challenges to remove these facilities." preclude this fact would a direct attempts matter how honest a "Inlo impartiality. to their See State v. be, it difficult to exclude from [the would be (hold (Utah 1997) Baker, jurors'] the effect of a considerations $15 County's only judgment against ing peremptory that a defendant must use a million Here, prevent being impar- granted per- "nothing" each would him from were four emptory challenges. Plaintiffs used three of He also indicated that he was "indifferent" tial. peremptory challenges potential jurors to remove being juror. Despite objective a lack of about (Ju- challenges on which had lost for cause juror, that Juror 9 would make a biased indicia 15). However, used rors peremptory him with a Plaintiffs chose remove peremptory challenge their fourth on Juror 9. striking any of the five rather than jurors, many potential 9 did not Unlike Juror jurors complain now were biased. Plaintiffs anyone that involved in the case and stated know hospital." City As in Grantsville v. Rede denying discretion in Plaintiffs' motion for change venue.5 velopment Agency City, Tooele UT allegations these constitute "general apprehensions upon conjec based CONCLUSION ¶ 53 (internal ture," quotation id. [37 At trial Plaintiffs did not for omitted), and do not demonstrate that the cause of the who sat this case trial court abused its in denying discretion and, ultimately, passed the for cause. change Moreover, the motion to venue. as We therefore affirm the trial court's denial of above, gave noted voir dire change Plaintiffs motion to venue. More- opportunity explore any the court an such over, event, Plaintiffs have not shown fact, In judge specifically concerns. us that the who sat in this case were panel they asked the members whether biased. difficulty going would have Hospital 1 38 Affirmed. for treatment the future if rendered a favor, verdict in Plaintiffs' and whether 4 39 I CONCUR: WILLIAM A. difficulty entering would have large mone JR., Judge. THORNE tary judgment against Hospital. ju All eventually rors who sat answered no'4 The ORME, Judge (concurring): pool one in the stated her {40 I coneur in opinion. the court's I questionnaire difficulty that she have separately only expand write point being impartial because she or her husband upon in opinion's touched concluding lead possibly patient could be a Hospital at the footnote. tellingly, dismissed for cause. And even € 41 always problematic It is appel for an suit, filing after sought themselves go late court to too far point with a that has treatment at Hospital Kylie. for not Bailey Bayles, been briefed. See 1836We conclude that the Plaintiffs re ¶ 13 n. (recognizing P.3d 1158 ceived a fair trial. The trial court conducted sponte that sua consideration of alternate an extensive process. selection legal grounds by theories or and, court questionnaire used a based that regarding timely raises "concerns questionnaire suggestions par from both adequate notice and opportunity [the] to be counsel, ties' removed some meaningful heard in a way"). But it was cause weeks before trial. At (1) recognized argument at oral that the Hos thorough conducted a voir dire. And pital, although listed aas defendant in the importantly, most passed caption, legal is not a entity, building but a cause. view of foregoing, (2) IHC; we owned defendant IHC is a cor that conclude the trial court porate did not entity abuse its principal whose office is in Salt juror's jurisdictions venue there. Other "[A] bare assurance of her own tiality"' is insufficient to rebut an inference of have held that a motion for of venue "is bias if Holley, one has arisen. West v. ordinarily granted request not at the 97, ¶ 14, However, 103 P.3d 708. the mere fact place." who chose the forum in the first Gross panelists these resided in the area served Schwarz, (S.D.N.Y. F.Supp. man v. Hospital not did raise an inference of bias. 1988). And it does if not appear possible, likely, State v. Calliham, 2002 UT 86, ¶ 50, 55 P.3d Cf. county Plaintiffs could have filed suit in a (finding pro inference of bias arose from other than Sevier. § See Utah Code Ann. 78B- spective juror's statement that he believed he 3-307(1)(b) (2008) ("[Aln action shall be tried in could not be because he was "close (b) county in which: defendant re party's grandparents); friends" with a action"); sides at the commencement Wach, ("If 78B-3-307(2) § the defendant is a corpora (finding prospective inference of bias arose from tion, any county corporation in which the has its juror's disclosure that she had been the victim of principal place office or a of business shall be charged). crime similar to the crime considered corporation in which the argument question resides."). In oral arose as to However, without the benefit of brief whether, having by filing chosen the venue ing suit and relevant factual context, we decline County, in Sevier right ground. Plaintiffs had forfeited the resolve the issue on this (3) option ry ground supplemental briefs to City; Plaintiffs had the Lake court"). County, parties lawsuit Sevier Had the raised and briefed bringing their arose, issue, however, action or Salt their cause of I am confident it would where this "principal County, THC has its provided simpler Lake where a much which have basis on 78B-3-807(2) § office," Ann. Code see Utah premise our affirmance than the more (4) (2008); County Plaintiffs chose Sevier and analysis ably set forth in elaborate so as their forum. opinion. lead matter, problems of practical

1 As complain-namely now that

which Plaintiffs smaller, community many of

in a close-knit many hospital's of the local knew have been

employees and witnesses-would

wholly had Plaintiffs instead elected avoided County. bring in Salt Lake their lawsuit App 2010UT 361 simply missed the fact Perhaps Plaintiffs Perhaps a choice. real-

that had GILBERT DEVELOPMENT choice, purposes of they had a but for ized CORPORATION, Plaintiff convenience, change- or to avoid their own Appellant, and instance, or in battle at Defendant's of-venue sympathy, know- hopes drawing on local their claim CORPORATION, ingly opted for the venue where Don WARDLEY than the venue where IHC has arose rather Grymes, Terry LoCicero, Lloyd Melling, principal office. its al., Riddle, Ap Chad et Defendants pellees. view, my absolutely it an

43 In would be plaintiff, extraordinary case which a with No. 20090358-CA. filing county in a option its action essentially it an untaint- which would ensure Appeals Court of of Utah. jury pool, opted instead to file in a ed 16, 2010. Dec. obviously would be difficulties where there impartial jury, and would nonethe- picking an judicial rescue when the

less be entitled played out.

predictable difficulties themselves absolutely extraordinary

This is not such an

case.

{44 my premising I from affir- refrain only strictly on this rationale

mance vote my colleagues' that it I share view

ordinarily the issues best to resolve case on parties rather than

raised briefed

something only argu at oral is raised yet-that upon by

ment or-worse is seized post-argument

the court in the course of Bailey, or research.

deliberation ¶ 13 (cautioning n. any ground" rule is limit

that the "affirm on though an alter explaining that even

ed theory ground apparent to the

native court, par surprise to avoid

ties, prudent appellate practice "sound and might appel procedure dictate opportunity

late court afford legal argue an alternate theo

to address and

Case Details

Case Name: Butterfield v. SEVIER VALLEY HOSP.

Court Name: Court of Appeals of Utah

Date Published: Dec 16, 2010

Citation: 246 P.3d 120

Docket Number: 20090122-CA

Court Abbreviation: Utah Ct. App.