*1 UT 99 GOROSTIETA, as Marie Jaime Dalinda Go litem ad guardians Appellants,
rostieta, Plaintiffs PARKINSON, Defendant
Rhonda Appellee.
No. 981741. of Utah. Court
Supreme 15, 2000.
Dec.
RUSSON, Chief Justice: Associate (the "Go- Marie Gorostieta T1 Jaime their rostietas"), litem for guardians ad Gorostieta, appeal from Dalinda daughter daugh- regard rendered judgment *3 trial argue that The Gorostictas ter. allowing Marie Gorosticta in not erred contained regarding the amounts of Dalinda's as a result bills incurred medical jury in its injury, and also affirm. We instructions.
BACKGROUND light the facts in view 12 "We jury and recite verdict to the most favorable Loose, 2000 UT accordingly." State them 1994, 21, 2, March 1237. On 1 994 P.2d Parkinson Rhonda p.m., 4:00 approximately and, as was work returning home from custom, driving down 300 her usual Wellsville, Dalinda Gorostieta Utah. South just disem had other children and several walk and were school bus from their barked of 800 South together in the middle ing approached usually Parkinson they did. and, without slowly from behind children horn, As through them. drove sounding her through, allow the car parted to the children as to confused appeared to become Dalinda turn, car ran and Parkinson's way to years old was twelve her foot. Dalinda over time. at the 10, 1995, Gorostietas August 13 On negligence and served complaint for filed a discovery, request for with a first Parkinson pro- including requests for admissions duction, answered Parkinson of documents. 7. September complaint on the Gorostietas' served September the Gorostietas On interroga- discovery, including set of second pro- requests admissions for tories Parkinson served of documents. duction discovery including inter- Gorostietas production of request for rogatories and a and then an- September 20 on documents request pro- first for Gorostietas' swered 21 and on documents duction request admissions on October first for answered April 14. On discovery. The set of second the Gorostietas' Cline, A. Salt Crippen, Russell Michael W. respond to Parkinson's did Gorostietas City, plaintiffs. Lake discovery requests. May was held Bailey, pretrial conference 14 A Malmberg, Haslam John P. Jan time, still By that Logan, for defendant. had responded never interrog ny Parkinson's Gorostieta, from Marie Dalinda's mother. request production atories and of docu objected, Parkinson's counsel arguing that ments; responded Parkinson had to all of the expenses fall under the business ree- discovery requests. Thereafter, ord exception hearsay rule and can be May issued an order on 80 that set only by admitted employee of the busi for December argued ness. She layperson that a reading a required parties exchange bill to a witness lists provide the best evi and exhibit lists no later than October dence and personal lacked the knowledge to testify as to necessity of the treatment and the reasonableness charges. submitted her exhibit list doctor, While treating Larsen, Dr. had witness list on October but the previously given testimony regarding Dalin- fact, time, Gorostietas did not. by that *4 treatment, da's medical the Gorostietas' at the Gorostietas still had responded not to torney had failed to elicit testimony at that discovery request Parkinson's September time as to whether the medical Accordingly, bills reflected on October necessary treatment and Parkinson summary moved for the judgment, charges for that treatment seeking pursuant were dismissal reasonable. to rules 371 and 56 of the discussing After Rules Civil the length, Procedure for issue at counsel the "flagrant Gorostietas' violations for the of court Gorostietas specifically asked if the court ruling was discovery orders and that rules." either Dr. Larsen or someone from his testify office had to as to T6 At summary judgment the hearing on the reasonableness charges. the The 26, 1997, November the Gorostietas claimed responded court that it was not that response that their to Parkinson's anyone particular in had to be there but that discovery request had completed been charges the had to be shown to be reason May in 1997 but had not been sent until ably incurred. November 4 due to a clerical oversight. In addition, the attorney Gorostietas Parkinson's argued claimed that a wit- then that ness list provided by had not been because the being issue was October 1 in raised the trial, because middle of planned the the adopt Gorostietas the to Gorostietas were con- Parkinson's fined to the submitted, witness list. witness list On November that which only they after adopted Parkinson had summary had filed for from Parkinson. Further- more, judgment, argued, Parkinson Gorostietas served that list anyone include but Dr. Larsen who could notice of adopting Parkinson's list. testify to the Gorostietas had pro- still not reasonableness of the medical duced an exhibit list. The court expenses. denied Par- The trial agreed, court and there- fore, kinson's motion for summary judgment Gorostietas' counsel but was to al- be sanctioned lowed to recall Dr. ordering Gorostietas Larsen. It quickly that was they learned, however, "precluded were introducing any from that Dr. Larsen in was surgery exhibits at the time of and could trial." not return until 4:80 that afternoon. jury %7 began The December arguments Before day trial, mid-day, on the T9 About second the Gorostietas' case counsel parties for both met judge with the nearly completed. was The court recessed jury to discuss During instructions. and jury this dis excused the to allow to counsel cussion, apparent became present to presence Parkinson's motions out of the jury. time, At this counsel that attorney pro Parkinson's counsel ar- Gorostietas' posed to offer into evidence gued the medical ex that the Gorostietas had to move for a penses incurred to that through date testimo continuance in order to await Dr. Larsen's 1. Rule 37 of the Utah Rules of Civil Procedure 3. We have only been partial a procedures outlines sanctions and in the event a in the record, and transcript therefore, it is not cooperate discovery. fails to in apparent clear how the matter became to Parkin- son's counsel. 2. Rule 56 of the Utah Rules of Civil Procedure requirements outlines procedures for a summary judgment. motion for Dalin- fault to 35% jury attributed The not allow should that
testimony and
The Gorostietas'
Parkinson.
to
65%
da and
responded
judge
The
continuance.
such
35%
thereby
moved
had
reduced
no one
point,
judgment
that
then,
judge asked
of fault.
portion
continuance, and
Dalinda's
reflect
prepared
if he was
attorney
Gorostietas'
judgment
{12
this
appeal
not
did
Counsel
rest..
(1)
erred
trial court
argue that
respond-
instead
but
continuance
for a
move
mother
Dalinda's
refusing
allow
Dr. Lar-
testimony from
from
aside
ed that
bills
the medical
amounts
to rest.
sen,
prepared
he
care;
the trial
rest with
for Dalinda's
the Gorostietas
incurred
allowed
court
instruc
giving
called
could be
erred
Larsen
further
Dr.
court
reservation
not
trial was
only if the
22, 24,
and 285
but
of order
out
tions
the doctor
p.m. when
4:80
before
completed
requested
from
omitting a sentence
this, the Gorostietas'
To
available.
a stat
taken
had been
instruction
"Obviously, if [Parkinson]
attorney quipped,
ute.
now,
it's
we've rested
right
case
ends
notice
that the
over."
contends
the Go-
timely
because
filed
appeal was
re-
a five-minute
judge declared
filing fees
timely submit
attorney
did
rostietas
after
cess
put
jurisdiction.
Dalinda's
allowed
lacks
he be
therefore
requested
*5
amounts
testify to the
the stand
on
that the Gorostie-
addition,
argues
mother
Dalinda's
for
had received
the bills
of
docketing statement
timely file
did
tas
Dr. Lar-
that when
proposed
Counsel
care.
dismissed.
appeal should
the
thus
and
this
review
available,
would
counsel
was
sen
if we
argues that
Furthermore, Parkinson
him to
ask
and
the doctor
with
information
(1)
dismiss,
the
do not
jurisdiction and
assert
the reasonableness
testify
as
refusing to allow
err
attor-
Parkinson's
judge asked
charges. The
amounts
to the
as
mother
Dalinda's
Parkin-
motion.
to this
response
ney
her
for
such
incurred because
medical bills
of
having consulted
attorney,
son's
hearsay offered
testimony
have been
point
recess,
at
rested
during the
client
contained
the amounts
truth of
prove the
The min-
any evidence.
presenting
without
(2)
jury instructions
bills,
in the
jury trial show
of
utes
applicable
aspects of the
all
given covered
Consequently,
pm.
2:87
rested
error
prejudicial
no
thus,
and there
law
motion,
denied
of.
complained
language
per-
excluding the
evidence
to introduce
failed
expenses.
taining to incurred
jury
{11
instructions
of
presentation
After
REVIEW
OF
STANDARD
jury
for
retired
arguments,
closing
returned
A
verdict
admissibility
an item
deliberations.
of
114 "The
following:
awarded
v.
Jensen
legal question."
ais
of evidence
Damages
Special
UT
Agency, 1999
Power
Intermountain
A.
B.
Past
(Actual costs
Future
(Actual
Total
General
(Pain,suffering,and
curred)
disability)
Special
Special
future costs
Damages:
Damages:
incurred)
Damages:
to be
permanent
in-
$
$
$15,000.00
$18,300.00
3300.00
0
1985).
[4]
has
ruling will
State
State
an abuse
977 P.2d
v.
great deal
v.
Pena,
to admit
Sutton,
not be overturned
discretion.
of discretion
or exclude
P.2d
However,
P.2d
See
evidence, and its
938
id. at
unless
(Utah 1994);
determining
trial court
¶¶12,
there
(Utah
14;
is not
but
presented for review
$18,300.
issue is
5. This
How-
for
a verdict
returned
4. The
reply
$18,200.
appellants' brief
anywhere in
ever,
briefed
judgment was entered
for the
record
explanation in the
brief.
is no
There
discrepancy.
Logan,
"[a] trial court's
long
original
as the
notice and
filing fees were mailed forthwith. The record
ruling concerning
instruction is re
viewed for correctness."
v. Naylor,
Butler
reflects that
copies
faxed
of the notice of
85, ¶10,
1999 UT
October 2. ANALYSIS {19 38) Rule of the Utah Rules of court, appellate As an our Appellate provides: Procedure "power strictly of review is limited to the At the filing any time of notice separate, presented record appeal." Van Cott v. joint, or appeal case, cross in a civil Wall, 53 Utah 178 P. party taking appeal pay shall (on application rehearing). "Parties clerk of the trial filing court the fee estab- claiming error seeking below and appellate lished law. The clerk the trial court duty review have the responsibility shall accept a notice appeal unless support allegations adequate filing paid. fee Wetzel, record." State added.) (Emphasis 3(a) 1993); see pro- rule R.App.P. also Utah vides: 11(e)(1)-(2). The record in this case contains
only partial transcripts. such, appeal may As An where we be taken from a district or are adequate record, juvenile without an appellate we must court to the court with regularity jurisdiction assume the proceedings appeal be over the from all final Wetzel, low. See judgments, 868 P.2d at orders except as otherwise law, by filing a ap- notice of I. NOTICE OF APPEAL peal with the clerk of the trial court within *6 the time allowed Rule 4. Failure an 117 Parkinson contends that the no of appellant any take step other than the appeal tice of timely was not filed because timely filing a notice appeal does not of of the timely pay Gorostietas did not filing the the validity appeal, the but is affect of fee. she contends that we are ground only for such appel- action as the jurisdiction without to hear this matter. late court appropriate, deems may 3(f) Parkinson relies on rule of the Utah include appeal dismissal of the or other Appellate Rules of posi Procedure for her dismissal, sanctions short of as well as the 3(a) tion. The Gorostietas counter that rule attorney award of fees. and, dispositive further, is that because the rules are silent payment as to how the added.) of fees (Emphasis It is clear from plain the made, is to be permitted the clerk was 8(a) to use language of timely rule that filing the of discretion in allowing paid by the fees to be appeal the only jurisdictional notice of is the mail. step. plain 3(a) language The of rule makes it clear timely payment that "the of fees on judgment T18 The final signed on appeal from the district court to this August August 1998. Because thirty- has longer jurisdictional." Court is no State v. days, one the appeal notice of was due on Johnson, 1129 n. 1 4(a) (re- 25. See R.App.P. 1985). quiring appeal notice of to be filed within thirty days). The record reflects that on 1 20 The accepted clerk copy the faxed of September 25, secretary from the office of the appeal notice of timely as a filed notice of the attorney called appeal. the clerk at 3(f) argues Parkinson that rule indi- the First District in Logan Court cates that a appeal notice of is not filed until filing the of appeal. the notice of The clerk filing the paid. fees are plain language secretary told the 3(f) that accept not, would the however, of rule does state that the appeal by notice of fax secretary so that the appeal notice of is not considered filed until did not have to travel City from Salt Lake paid. Rather, the fees are language the necessary, timely filing is "24 While of accept a not to clerk the directs notice reflect, Parkin nor does not do does not paid. We record are the fees the unless appeal within arose timely son any problems allege, were filing fees the address per- untime the the with of being mailed as result upon appellate
paid the There docketing statement. filing of the ly ar- clerk, the Gorostietas as mission of the dock purpose of fore, that the appears already ad- court has this gue, because 9(b), was statement, in rule as set forth eting has fees of payment the effect dressed does still served. ac- The clerk jurisdiction. appellate our of a result as suffered any prejudice allege appeal of the notice copy of faxed cepted the docket untimely filing of the the Gorostietas' therefore, have filed, we timely being as language Finally, plain ing statement. matter. hear this jurisdiction to for failure that dismissal 9(g) indicates rule is dis docketing statement timely file the STATEMENT DOCKETING II. cretionary. argues that also compliance though Even the dock because be dismissed appeal should critical, is Procedure Appellate Rules of 9 Utah timely Rule filed. eting statement dismiss we do not foregoing, Procedure in view of Appellate Rules the Utah appeal. statement, this docketing deals pertinent that are rule 9 subsections MEDICAL TOAS III TESTIMONY 9(b), 9(a), 9(g). are issue EXPENSES docketing 9(a) provides Rule the trial allege that days "[wlithin filed shall statement Gorostieta, allowing Marie in not court erred filed." Utah appeal ... a notice after mother, testify regarding 9(b) Dalinda's 9(a). purpose Rule states R.App.P. in- medical bills in the contained amounts docketing statement: injury. Par- of Dalinda's a result curred as assign- appellate court It used testi- Marie Gorostieta's kinson counters or to Supreme Court ing cases to charged for mony to the amounts jurisdic- have both Appeals when Court hearsay thus have been services the Su- tion, making certifications truth of for the offered when inadmissible deter- Court, classifying cases for preme therein. contained amounts them, in accorded priority to be mining the appro- when summary dispositions making *7 Background A. assign- making calendar priate, thoroughly ments. under to In order 127 issue, of the case background stand 9(b); ex rel. Nelson see also R.App.P. Utah filed The Gorostietas explored. be 568, must P.2d City, 919 Lake v. Salt Stuckman within August 1995 complaint their 1996). (Utah 9(g) provides Rule two sets served one month comply: to consequences for failure to all timely responded discovery. Parkinson comply fail Docketing statements requests. How discovery the Gorostietas' Fail- accepted. not be rule will with this responded ever, had not the Gorostietas in dismissal comply may result ure to more requests after discovery Parkinson's petition. or the appeal years. than two added). (emphasis 9(g) R.App.P. judge issued trial In €28 clerk above, the trial court As stated for both May on pretrial order appeal copy of the notice accepted a faxed lists exchange witness produce parties to Therefore, pursuant 25, 1998. later than October no exhibit lists twenty-one 9(b), had the Gorostietas to rule comply with failed docketing to file days, until October this order. the Gorostietas statement. Therefore, moved for sum- € 29 docketing 29, making the file until October It was seeking dismissal. mary judgment, days late. thirteen statement (B) only an order ... prohibiting [the disobe- after summary Parkinson's motion for judgment finally party] the Gorostietas re- dient introducing designated sponded discovery requests. matters in addi- evidence.... tion, only after Parkinson moved for sum- 37(b)(2).7 Id. mary judgment did the CGorostietas serve her 1 33 repeated dilatory Given the conduct of they
with notice that adopt her witness attorney and the failure to failed, however, list. The Gorostietas to ever comply order, pretrial with the there is am- produce an exhibit list. ple evidence that the trial court did not abuse its discretion the Gorostietas judge 130 The grant refused to Parkin- could any not introduce exhibits at the time ' son's motion for summary judgment but or- oftrial. dered that imposed sanctions be prohibiting Nevertheless, 1 34 while it is true that the the Gorostietas from introducing any exhibits precluded Gorostiectas had been from intro at trial. ducing any exhibits, expenses proffered could have been into evidence for T 81 Trial given courts are broad appeal purposes they but never were. discretion imposition of discov the bills are not before us as a ery sanctions they because it is that must part of the record for our review and neither deal first hand parties with the and the dis transcript is a of the testimony. doctor's As covery process. See Morton v. Continental previously stated, upon burden is Co., Baking 1997). 988 P.2d appellant provide adequate record for only We will interfere if an abuse of discre review, and without an adequate record, we tion clearly shown. See id. Persistent must assume the regularity proceed dilatory judicial tactics that pro frustrate the ings Wetzel, below. See State v. adequate cess are trigger rule 37 sanc (Utah 1993). tions, and the appropriate choice of the sanc tions within the judge's trial discretion. B. Expenses Medical See id. general 185 It is a rule that 132 Rule 16 of the Utah Rules of foundation reliability Civil to establish the of medi 6 provides Procedure party expenses if cal provide or the is to evidence of reason party's attorney comply necessity,. fails to ableness pre with a See Hansen order, may Co., Supply the court Mountain Fuel "make such orders P.2d (Utah 1998) regard just, (noting requirement thereto as among are others, compensation in any tort action expenses is that orders in Rule 37(b)(2)(B), (D)." (C), 16(d). necessary) (citing Utah R.Civ.P. reasonable and Charles McCormick, J. Handbook on Rule 37 of the Law the Utah Rules of CivilProcedure Damages (1985); § at 828-27 provides: Jacob A. Stein, Stein on Personal Injury Damages If a ... obey fails to an order to (2d ed.1991); §§ 5:1-5:8 22 Am.Jur.2d Dam provide permit discovery, ... ages (1988)); §§ 197-206 Simmons v. Wil in which the action *8 pending may is make kin, 8362,366, 321, (1932) 80 Utah 15 P.2d 323 such regard orders in to the failure as are (holding special that damages must be shown
just, among and the following: others to be necessarily reasonable and resulting accident)8 Therefore, from injuries onee 1, 6. Rule 16 was amended effective November 7. The applica- 1999 amendment to rule 37 is also only 1, ble to cases filed after November 1999. 1999, to the 1993 amendment to correspond advisory See Utah R.Civ.P. 37 rule 16 of the committee note. Federal Rules of Civil Procedure. Therefore, rule 37 of the procedures 1997 Utah Rules of Civil the new applicable are applicable applied Procedure is the rule to be to cases filed on or after only 1, November the case before us. See advisory Utah R.Civ.P. 16 committee note. applicable rule for the case before Decker, 239, 8. See also Larsen v. Ariz. 196 995 us is taken from the 1997 Utah Rules of Civil 281, (Ct.App.2000) P.2d (holding 286 that trial Procedure. . court did not abuse its discretion when it found that no foundation had established bills were 1118 previously have been that in exhibits tained to required shown, is evidence
have been Intermountain See admission.10 denied accurately expenses medical that show 1162, P.2d 574 Fitzgerald, v. Ass'n Farmers that resulted necessary treatment reflect Ross, 573 v. (Utah 1978); see also State 1165 are charges that injuries and 1978) (holding that 1288,1289-90 P.2d reasonable. to officer allowing police erred court trial it was claim 136 that records telephone of testify contents to Marie not to allow court error evidence).11 To al into introduced were con testify as read to Gorostieta present testify would to so a witness low as received bills she medical of tents informa jury unsubstantiated directly to reasonableness. evidence See exhibits. exeluded in the contained tion by Marie testimony offered any argues that 1165- Farmers, P.2d 574 Intermountain would bills medical Gorostieta Ross, at 1290. 66; 578 P.2d unnecessary find hearsay. We have been pro rule evidence The best 137 have evidence whether to address of a writ the content prove "[tlo that vides already has this court hearsay because been required, writing ... ing, ... rule,9 original evidence the best under that ruled rules in these except as otherwise con material testify as to may not witness Corp., ness); Finishers Garment v. Am. necessary Castillo and were reasonable and caused (holding 646, (Tex.Ct.App.1998) 654 S.W.2d 965 George, 73 Cal. accident); v. McAllister results (rul 702, (1977) 258, Cal.Rptr. 706 140 admissibility of evidence App.3d allows that statute necessity of and tort, prove to reasonableness plaintiff affidavit damages for ing recover that Union v. Grand expenses); and Forcier charges were reasonable medical prove dental raust 796, 389, Stores, Inc., 801 264 A.2d Vt. 128 tort); v. Lawson Safeway, result of as required bills (1970) properly admitted (not- (holding that 127, (Colo.Ct.App.1994) Inc., 131 and reason- were reasonable physician testified compensable dam- measure ing correct that incurred); Tatum, v. necessary McMunn and rea- expenses ages necessarily medical ably 908, (1989) (holding 558, 914 rendered); 379 S.E.2d 237 Va. v. Garreff value of services sonable through plaintiff's testi- bills offered medical that 571 566, 336 So.2d Co., & Kirschman Morris pre- may require if rebuttable more mony alone decide jury should (Fla.1976) (holding that necessity is chal- sumption of reasonableness testimony proved reasonable plaintiff's whether 39, Monroe, Wash.App. 15 Kennedy lenged); v. expenses); Zack's Props., medical and necessary 80, 899, (1976) physician's (upholding 43, 906 S.E.2d P.2d Ga.App. 526 547 Gafford, 241 v. Inc. reasonableness as to competence not alleviate (1999) does (holding statute 82 County services); Milwaukee necessity evidence additional of medical provide plaintiff's burden 489, (App. 398 N.W.2d 527 Long, Wis.2d v. 189 neces- reasonable were bills that medical 1065, Inc., Syd's, curiam) (holding NE.2d does 1994) 598 that statute sary); (per v. Smith expenses prove reasonable- (Ind.1992) (holding plaintiff's burden that medical eliminate 1066 expenses); past neces- necessity medical reasonable proven both to be ness must be cf. 117, White, A2d 741 Md. Shpigel 357 sary); v. Inc., 11 v. Intrusion Prepakt, Co. Arnold Mach. 496, (1960) provides 497 (holding that statute P.2d 357 Uiazh determine responsibility to (holding has amount, fair- is admissible prove bill necessary and rea- represent repair charges); v. bills Phelps reasonableness ness, and expenses). 491 NE.2d sonable Mass. MacIntyre, provides medi- (1986) (holding statute necessary, evidence of as admissible bills are cal fair, is also known rule best evidence 9. The v. Cra charges); reasonable Schaeffer Boyce, N. See Ronald rule. original document (Mo.Ct.App.1990) den, S.W.2d Kimball, 10-1 Law Evidence L. Edward expenses in- recovery for medical (holding that (1996). proof of depends on accident as result of curred reasonableness); Chamberlain necessity and argue best evidence Although does not Thames, N.C.App. 509 S.E.2d appeal, Par- response to the rule in rebuttable (1998) (holding establishes that statute to allow argue the trial court did kinson charges but reasonableness presumption of evidence bills into read the Gorostieta Marie v. Erie proven); Coleman necessity still be must *9 rule. evidence of the best a violation 3655, Inc., WL Supermarket, No. Thriftway 11, 1315955, **17 Cty. Rptr. LEXIS 1995 Phila. Rules the Utah rule 70 of cases cite These 11. physician tes- where (affirming of bills admission encompassed Evidence, essentially which rule necessity); Mar tified as to reasonableness (R.1.1992) 1003, 669, 1002, Kurdziel, rules current the now 612 A.2d tinez 1003, 1004 plaintiff's 1002, R.Evid. remove does not (holding that statute Compare (1977). and reasonable- Utah R.Evid. proving causation burden by adopted by or other rules Supreme cal bills that had not been admitted into by Court of this State or Statute." Utah evidence.12 purpose R.Evid. 1002. The of this rule is T41 The Utah Rules of Evidence and Utah
primarily prevent mistake or fraud. See case require law that the medical bills them- § 29A Am.JurZ2d Evidence at 511 selves prove be used to their contents. The (1994); (1996); § 32A C.J.S. Evidence 1061 6 exceptions to the best evidence rule are not B. Margaret Jack Weinstein Berger, & A. applicable Furthermore, in this case. where a Weinstein's Federal § Evidence 1002.03[1] party properly has been sanctioned (Joseph ed., McLaughlin, M. Matthew Bend- court, and thereby precluded from ad- ed.1997) er ]; 2d [hereinafter Weinstein's 4 mitting any exhibits, we cannot allow the Wigmore (James § on Evidence at 417 party sanctioned to then cireumvent the law rev.1972). ed., H. Chadbourn by reading into evidence the contents of the when the content of a document is material exhibits precluded. have been This proved, the matter to be original writ- would reward the party sanctioned by put- ing produced must be unless it is unavailable ting it into a stronger position, whereby it due to an exception and its absence is not could be allowed to mislead the trier of fact attributable to the fault of the seeking as to the contents of the writing. inadmissible proof to use it as of the contents therein. Therefore, we hold that the trial court did supro, 510; § See Am.Jur.2d C.J.S. refusing not err in to allow Marie Gorostieta supra, §§ as to the amounts contained in the medical bills.
138 The provide rules of evidence exceptions originals cases where the IV. JURY INSTRUCTIONS destroyed, are lost or original is not 142 The allege the trial obtainable, original possession is in the court in removing erred a sentence from a opponent, writing concerns a col requested jury instruction that had been tak- lateral matter. See Utah R.Eivid. 1004. Nev en verbatim from section 41-6-80 of the ertheless, if original even document meets Utah Code. In they argue that the one exceptions provided, of the secondary giving jury erred in instructions evidence will not be proponent allowed if the 22, 24, 25, 27, and 28. Parkinson counters of the responsible evidence was for its ab that the given by instructions § sence. See Weinstein's 1004.11[2][al. This aspects covered all applicable of the law in is due to the extensive propo risk that this case and prejudicial there was no error might nent offer misleading false or second removing complained sentence of. ary evidence. See id. case, 139 In Larsen, the instant Dr. who A. Error Jury as to Instructions Given treating physician, was called dispose We will first testify. Gorostiectas to Because we have argument jury in been only partial transcripts, 16, 21, 22, 24, 25, 27, structions and 28. "It is there is no record of his testimony. Howev- well established that a reviewing court will er, apparently he was never asked about the arguments not address that are not ade charges. quately Thomas, briefed." State v. 961 P.2d 1[40 Also incompleteness (Utah due to the 1998); see also State v. Thom record, it is as, unclear as to testimony what 269; UT 974 P.2d Walker v. Marie Gen., Gorostieta Inc., would have U.S. provided. appears 1996). partial from the tran- Rule 24 of the Utah Appel Rules of seripts that she provide was to be asked to provides late Procedure the "[bJrief of testimony as to the reasonableness appellant shall argument contain ... [an] charges by reading the contents of the medi [that] shall contain the contentions and rea- 12. We do not address the case case, of whether Marie record does not reflect that such was the Gorostieta could have testified to her first hand appellants argue nor do this. knowledge actually paid of what she because the
1120
jury instruc-
as a
rewording of a statute
the
respect
appellant
of
sons
change
long as
does
as
is not error
tion
with citations
...
presented,
issues
See
meaning
the statute.
of
essential
record
statutes,
parts of the
authorities,
648;
1182,
accord
§
Trial
24(a)(9)
75A Am.Jur.2d
(empha-
R.App.P.
on." Utah
relied
"
75-76,
Heidebrecht,
2d
10 Utah
v.
Holmes
'is
sim-
added).
court
appellate
An
sis
(1960).
we
565, 566
P.2d
348
appealing
in which
depository
ply a
omitted
meaning of the
must determine
re-
argument and
of
dump the burden
may
its omission
¶11,
to ascertain
sentence
974
2 at
Thomas,
UT
search'"
mean-
changed the
jury instruction
from
P.2d
Bishop, 753
v.
(quoting State
P.2d
1988)).
of the statute.
ing from that
439,450
in-
jury
complain of
44 The Gorostietas
statute,
a
interpreting
147 When
25, 27,
in
and 28
structions
plain lan
the statute's
look to
first
we must
com-
then
but
the issues
of
statement
their
See Cole
intent.
legislative
for the
guage
anywhere in
claim
support
this
pletely fail
tion
particular
in
pedestrians
statute
"any
This
or
jury
child
category
instruction.
as a
into the
batim
fall
who
in
confused,
or
entirety
incapacitated,
reads:
obviously
any
its
§Ann. 41-6-
Code
person." Utah
toxicated
exercise
vehicle shall
of a
operator
The
states, "This section
sentence
any
The last
pedestrian
80.
colliding with
avoid
care to
of this
conflicting provision
any
supersedes
nee-
signal when
give an audible
shall
The
Id.
ordinance."
a local
chapter or of
precaution
appropriate
essary and exercise
indi
sentence
this last
obviously
argue that
any
any child or
observing
upon
duty super
operator's
vehicle
per-
that the
intoxicated
cates
confused,
or
incapacitated,
duty
a child
aside
or sets
sedes
any
conflict-
supersedes
This section
son.
misled
therefore
and the
pedestrian
a local
chapter or of
this
ing provision
fault for
35% at
Dalinda was
finding that
ordinance.
injuries.
(1998).13 The
§ 41-6-80
Ann.
Utah Code
instruc
as
this statute
delivered
plain
misinterpret the
T49 The Gorostietas
sentence,
section
"This
tion, omitting the last
of the statute.
meaning
the last sentence
conflicting provision
any
supersedes
duty a vehicle
forth
sets
The statute
The Go-
ordinance."
chapter or of a local
last sen-
The
pedestrians.
has to
operator
omitting the last sen
argue that
rostietas
that the see-
41-6-80 states
of section
tence
jury as to
tence,
misled
conflicting provision
any
aside
tion sets
Dalinda Gorost-
legal
duties
chapter
found
regulations
rules and
traffic
ieta.
local
of a
or
Utah Code
the annotated
6 of
the section
language of
plain
in
ordinance.
reviewing jury
146 When
ordinance
if
a local
clearly
either
states
challenged
structions,
must consider
we
chapter 6 creates
under
statute
See Cheves
a state
in context.
or
instruction
191;
any more
operator
P.2d
vehicle
Williams,
duty for a
1999 UT
(which,
section
in this
that stated
less than
Agency,
or
Power
v. Intermountain
Jensen
pre-
Generally,
appropriate
alia,
¶16,
is to exercise
P.2d
inter
1999 UT
'"[olbliterate,
set
as
defined
Supersede
stat-
accurately
the version
states
13. This
void,
aside, annul,
inefficacious
replace, make
by the
requested
of the trial
ute at the time
aside,
useless,
unneces-
render
repeall;
set
tlo
Gorostietas.
Dictionary
stay." Black's Law
sary, suspend, or
(6th
prtg.1995).
ed. 9th
*11
upon observing any child),
caution
that ordi-
testifying to facts
writing
recorded in a
from
nance or statute is set aside. See Utah Code
personal
his or her
knowledge." The annota-
§Ann.
41-6-80.
tions to that section include numerous state
cases,
and federal
one of
amply
illus-
given
150 The
several
instruc-
trates the difference
proving
between
what a
tions on the various duties of a driver and
writing says
proof
independent
of an
fact
pedestrian.
also on those of a
Taken in
of which a
personal
witness has
knowledge.
context, with
proper meaning given
to
Associates,
In R
R&
Scene,
Inc. v. Visual
41-6-80,
section
the omission of the last sen-
Inc.,
(1st
726 F2d
Cir.1984),
tence from the
instruction
reviewed
testimony
corporate
of a
execu-
change the
meaning
essential
of the statute.
tive about the cost
company
to his
of defec-
there was no error.
tive merchandise obtained from the defen-
dant:
CONCLUSION
[When President Smith testified that
1 51 We affirm the trial court's refusal
to
plaintiff $31,850.19
cost
procure
the al-
allow
Dalinda's mother
as to the
legedly
merchandise,
defective
he was in
amounts of the medical bills she incurred for
way
no
attempting
prove
'to
the contents
Dalinda's care.
we affirm the
writing' Rather,
of a
attempting
he was
court's
regarding jury instruc-
by his own
testimony
direct
prove
tions.
particular fact what it cost R
R& to
procure the
sure,
merchandise.
To be
1 52 Justice DURRANT and Justice
plaintiff
possession
had in its
written docu-
WILKINS concur in Associate Chief Justice
mentation
presumably
supported
opinion.
RUSSONS
But,
President
testimony.
Smith's
as the
advisory
clear,
committee note makes
Rule
DURHAM, Justice, dissenting:
1002 [of the Federal Rules of Evidence]
153 I dissent
portion
applies not when
piece
of evidence
majority opinion construing the best evidence
sought to be introduced has been some-
rule, and from its conclusion that Ms. Gorost-
where
writing
recorded in
but when it is
ieta was to be asked to read the contents of
that written
party
record itself that
the medical bills into evidence.
prove.
seeks to
(citations
First,
omitted).
Id. at 38
transcript
the trial
shows that
plaintiffs' counsel told the court that "as far
opinion
156 The court's
is éven more di-
as the
go
bills would
hand,
is that I would
rectly
because,
point
as it notes in a
you know, I would have her
refresh her
footnote,
plaintiff
in that case later "un-
memory from the bills as to the amounts."
successfully sought to introduce the doeu-
There was no intent
request
or
permit
Id.;
mentation into evidence."
see also Gon
Marie Gorostieta to read their contents.
Hoffman,
(Mich.Ct.
zales v.
Dr. *12 treatment, Ms. Go- necessity of cross-ex- certainly have been could
rostieta recollection. accuracy of her
amined allowed been have Further, defendant expenses testimony that to introduce Gorostieta Ms. But unreasonable.
were if expenses, paid for billed jury so. tell entitled she was of an plaintiffs these deprived here error damage significant recover opportunity reverse. I would by defendant.
caused concurs HOWE Justice
1 58 Chief dissenting opinion. DURHAM'S
Justice
2000 UT By deceased, COLEMAN,
James SCHEFSKI, person his Through Karen Appel Plaintiff representative,
al
lant, M.D., STEVENS, H.
Michael Appellee.
Defendant
No. of Utah.
Supreme Court 15, 2000.
Dec.