Charles R. KENNEDY and Rebecca Z. Kennedy, Plaintiffs and Appellants, v. NEW ERA INDUSTRIES, INC., and M. S. Rosenberger, et al., Defendants and Respondents.
No. 15969.
Supreme Court of Utah.
Aug. 30, 1979.
534 P.2d 534
In my view, such a determination by the jury indicates the jury was actuated either by an improper motive, bias, prejudice, or misunderstanding of the law, in arriving at its verdict of One Dollar for general damages.
Plaintiff contends that failure to instruct the jury about the legal consequences of its apportionment of negligence leads to a harsh and unfair result. This failure to so instruct, according to plaintiff, is inimical to the interest of justice and should be disapproved by this Court. Plaintiff concedes he did not specifically request such an instruction, but such a gesture would have been futile. In McGinn v. Utah Power and Light Co., Utah, 529 P.2d 423 (1974), this Court ruled it was prejudicial error if, in a comparative negligence case, the trial court instructed the comparative negligence case, the trial court instructed the jury as to the effect or impact of its fact-finding answers, in a special verdict would have on the outcome of the case. Plaintiff urges this Court to reassess the McGinn ruling. I would do so.
Don B. Allen, of Ray, Quinney & Nebeker, Salt Lake City, for plaintiffs and appellants.
Stephen G. Crockett of Martineau & Maak, Salt Lake City, for defendants and respondents.
STEWART, Justice:
This is an appeal from a judgment entered by the trial court which imposed sanctions for plaintiffs’ failure to respond adequately to interrogatories. The plaintiffs claim (1) that the trial court abused its discretion in granting a default judgment to M. S. Rosenberger on his counterclaim against them because their answers to interrogatories were substantially completed and detailed, and (2) that the trial court erred in granting judgment on the counterclaim without taking evidence in support of the allegations on which the judgment was based.
We do not reach the merits of plaintiffs’ claims because the case is not properly before this Court. Although the issue of jurisdiction was not raised by either party, it is our prerogative, sua sponte, to refuse to
On July 21, 1972, plaintiffs filed a complaint in the trial court against the following defendants: New Era Industries, Inc.; Aircomb Technology Corporation; KFR Aircomb Corporation, aka Bonded Structures; James R. Henderson; Thomas T. Finlayson; Max King; Arch C. Scurlock; M. S. Rosenberger; Clarence R. Frere; and Merlin N. Toombs. Plaintiffs alleged two claims for relief against M. S. Rosenberger, who is the respondent here. Rosenberger answered, asserted four counterclaims against plaintiff Charles R. Kennedy,1 and cross-claimed against one of the original defendants, Aircomb Technology Corporation. On August 18, 1977, the trial court granted a motion for partial summary judgment in favor of defendant Rosenberger with regard to certain accounts receivable. Pursuant to this judgment the trial court ordered plaintiffs to give Rosenberger an accounting of the moneys due him.
Defendant Rosenberger served interrogatories on plaintiffs on October 19, 1977. Plaintiff Charles R. Kennedy did not answer these interrogatories on time and with sufficient specificity, requiring Rosenberger to seek the aid of the trial court several times to compel proper answers. Finally on June 12, 1978, because of plaintiff‘s failure to comply with the previous orders of the trial court, Rosenberger filed a motion to enter a default judgment on his counterclaim against the plaintiff and to dismiss plaintiff‘s claims against him as a defendant. On June 26, the court rendered a judgment finding that plaintiff‘s failure to respond adequately to the discovery requests as ordered was without excuse or justification and that it had caused delay in the prosecution of the proceedings and substantial additional expense to Rosenberger. The court granted Rosenberger‘s motion to dismiss with prejudice and entered a default judgment in favor of Rosenberger on his counterclaims. The trial court did not rule on Rosenberger‘s cross-claim against Aircomb Technology Corporation; hence, this claim is still alive.
On July 26, 1978, plaintiffs filed a notice of appeal. Plaintiffs here argue that the June 26 judgment was erroneously entered for the reasons stated above.
This Court held in Shurtz v. Thorley, 90 Utah at 384, 61 P.2d at 1264, quoting North Point Consolidated Irr. Co. v. Utah & Salt Lake Canal Co., 14 Utah 155, 46 P. 824 (1896), that “[a] judgment, to be final, must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.”2 The Court further stated that a final judgment is a judgment which ends the controversy between the parties litigant. J.B. & R.E. Walker, Inc. v. Thayn, 17 Utah 2d 120, 405 P.2d 342 (1965). In the case at hand the order entered by the trial court clearly was not a final order. The action against other defendants and Rosenberger‘s cross-claim remains alive.
Unquestionably there are times when interlocutory appeals or appeals from certain orders made in the course of litigation before the litigation as a whole comes to an end should be appealable. Our rules provide appropriate provisions in such circumstances.
The order appealed from in this case was entered by the trial court without a
It is unfortunate that the plaintiffs did not ask the trial court to reconsider its default judgment on both the main claim raised by them against Rosenberger and the counterclaims against Kennedy on the ground the judgment was unduly harsh since the failure on plaintiff‘s part was only with respect to the counterclaims. No doubt the trial judge would have recognized the disproportionately harsh remedy in entering a default on the main claim, as to which there was no dereliction, if he had reconsidered the action.
In the absence of such determination [i.e., that a judgment in a multiple party case is a final judgment] and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The lost time and effort occasioned by the briefing and oral argument in this case is a small price to pay for insisting that the parties comply with the rules of procedure so that the proper relationship between this Court and the trial courts may be maintained.
This appeal is dismissed without prejudice to another appeal at the proper time pursuant to
Costs to Defendant.
CROCKETT, C. J., and WILKINS and HALL, JJ., concur.
MAUGHAN, Justice (dissenting):
The majority opinion aborts an appeal from a default judgment entered as a sanction under
The action in which the judgment was entered involves other litigants, and the default judgment does not finally resolve all issues raised by all the pleadings. It nevertheless purports to constitute a full, complete and final disposition of the controversies between appellants and respondent.
The ground on which the majority dismisses the appeal is that the judgment, as it read when the notice of appeal was filed and when the record on appeal was originally transmitted, was not final and appealable because it did not contain “an express determination by the court that there is no just reason for delay” and “an express direction for the entry of judgment.”
Before briefs were submitted in this case, an “amended judgment” which includes the requisite
The majority opinion takes the view that, once a notice of appeal was filed, the district court lacked authority to remedy the above noted defect in the originally transmitted judgment. The opinion cites a number of cases from other states on the jurisdictional point. Without drawing other distinctions between those cases and the one before us, it should be sufficient to observe that none of them treats the application of
Deleting language I consider irrelevant,
If anything material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the Supreme Court, . . . on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk of the district court.
The statement of the majority opinion that the District Courts are without jurisdiction to amend the record after a notice of appeal has been filed is clearly in conflict with the quoted rule. Even after the record on appeal is transmitted, the trial judge may correct any omission or misstatement in it. The kind of omission whose correction is least likely to excite controversy is the
The authority of the trial court to correct and modify the record is limited, but it is not confined to the identification of documents which were a part of the trial record and inadvertently excluded from the record on appeal. In United States v. Mori, 444 F.2d 240 (5th Cir. 1971), one issue was whether the trial judge, even after the filing of a brief on appeal, could correct the record to show that one of his comments made during trial (and shown by the original record on appeal to have been made in the presence of the jury) was in fact made when the jury was not present. The court said:
Subsequent to the filing of defendant‘s brief on appeal, the Government petitioned the trial court under
Federal Rule of Appellate Procedure 10(e) to correct the record to reflect that the challenged comment took place outside the presence of the jury. After hearing arguments by counsel for the defendant and by counsel for the Government, the trial court, without a further evidentiary hearing granted the Government‘s motion to correct the record. Defendant objects to the timing of the Government‘s motion and the procedure employed to resolve the dispute. These objections are without merit.1
I agree that this Court should not undertake to separately review every trial court order entered en route to final determination of a case, but we should adapt to the realities of litigation and review those judgments which the litigants and the trial judge demonstrate they intend to be final and which are final in substance.
The probable result of this dismissal is that the issue will be presented to us at the conclusion of the trial and will be rebriefed and reargued. If we then modify the summary judgment which is the subject of this appeal, some of the litigants must return to the courtroom and present evidence, perhaps to a new jury, which could as well have been presented in the course of the original trial. The majority‘s action is contrary to the desires of the litigants and the trial judge and is unlikely to relieve any strain on trial or appellate court resources.