*1 defining properly provision a residual social costs as it of its assessed share of benefit chargeable Accordingly, deny petition benefit costs not otherwise costs. we NAC’s § employer. 35A-4-307(l)(g) (“Any See id. for relief. charged that are to an
benefit costs employer and not defined this subsection ¶ 19 WE PAMELA T. CONCUR: costs.”). urged are are also social We GREENWOOD, Presiding Judge, Associate as treat NAC’s benefit costs this case BENCH, Judge. and RUSSELL W. However, provision in social costs. no Security expressly Employment Act autho- validly
rizes otherwise assessed benefit costs merely
to be treated social costs as delayed employer received notice that appeal
claimant wished to the initial determi-
nation. Further, we are not convinced that a equities balance of the warrants treat- here ROUNDY, Appellant, Laina Plaintiff and benefit costs as social costs. Be- NAC’s Department employed cause the system handling appeals
inefficient filed STALEY, Appellee. Travis Defendant and centers,5 employment might some sanction However, justified. be social costs are not No. 981062-CA. paid pockets inept Department from the employees Department’s or even from the Appeals Court of Utah. budget, Unemployment but rather from the Fund, Compensation employers to which all July 1999. §§ Ann.
contribute. See Utah Code 35A-4- (1997 Supp.1998) (governing
301 to -313 & contributions);
employer § id. 35A-4-
401(1) (1997) (providing unemployment fund); § paid
benefits are from the id. 35A- (1997) (establishing governing
4r-501
fund). Consequently, characterizing these
benefit costs as social costs would shift their
expense Department, onto but onto employers.
all the choice Given between en- NAC,
tirely employers blameless who
discharged good claimant without cause and created
thus the need for claimant to seek benefits,
unemployment NAC should bear its
appropriate share of the cost of claimant’s
unemployment benefits.
CONCLUSION Appeals 18 The Workforce Board cor-
rectly concluded that because Utah Adminis-
trative Code R994-406-309 is consistent with § Ann. Code 35A-4-406 and therefore
valid, appeal timely claimant’s filed.
reject argument NAC’s relieve advisedly. past argu- propriate procedures
5. We receipting, tracking, use the tense At oral ment, Department counsel for the assured us the transmitting important these documents. Department immediately implement ap- would *2 Collins, Bugden, Collins & Mor-
Peter C. ton, City, Appellant. Salt Lake Davies, Nelson, Lynn S. Christian W. Nelson, Richards, Brandt, and John Miller & Hansen, seeing Scalley Reading,. pairment, Lake he testified that after E. & Salt City, Appellee. Roundy, video of he doubted Roundy’s truthfulness about the extent of GREENWOOD, P.J., Associate Before injuries. When learned of the JACKSON, JJ. BENCH *3 tape through testimony, Dr. Morass’s she requested Staley that the trial court order OPINION identity disclose Gunderson’s and the video GREENWOOD, Presiding Associate tape. Roundy’s The trial court denied re- Judge: evidence, Roundy quest showing en- and ¶ Roundy appeals from a Plaintiff Laina gaging in activities that she had testified she jury denying damages per- in a verdict perform, presented was unable to was to the injury jury’s sonal suit as a result of the jury. Staley At the conclusion of the finding sixty percent negligent that she was Roundy’s a on moved for directed verdict defendant, Staley, forty per- and Travis was claim, punitive damages Roundy and moved negligent. Roundy trial cent claims the a trial for new based on the admission of refusing grant erred in her a new testimony tape. Gunderson’s and the The improper admission and trial based granted trial court the directed verdict and nondisclosure of and a surveillance Roundy’s motion for a new trial. The denied impeached testimony video that about her jury subsequently Roundy sixty per- found injuries. Roundy argues also the trial court negligent Staley forty percent negli- cent granting a verdict in favor erred directed gent, preventing Roundy collecting from Staley punitive damages. of on her claim for damages. Roundy appeals. We reverse and remand for a new trial.1 BACKGROUND AND ISSUES STANDARD OF REVIEW ¶2 Roundy injuries sustained when she ¶ Roundy argues the trial court Staley were involved in a automobile refusing grant erred in her motion a for Roundy brought negligence accident. ac- new trial based on the nondisclosure of Gun- against Staley sought punitive tion and also derson as a witness and the surveillance vid damages under section 78-18-1 of grant eo. “Because the of a new trial is (1996 § Code. Ann. See Utah Code 78-18-1 ordinarily left to the sound discretion of the Supp.1998). & court, trial we will review court’s decision trial, Roundy sought discovery 3 Before regard under an this abuse of discretion occasions, Staley from on two different re- Gonda, standard.” Child v. 972 P.2d questing about information witnesses and ev- (Utah 1998). Typically, denial of a mo Staley planned idence to use at trial. compel discovery tion to is reviewed under Although Staley’s during counsel mentioned standard, an abuse of discretion see Archule jury might he call selection that Ron Gunder- (Utah 1998), Hughes, ta v. 969 P.2d witness, son as a rebuttal he never disclosed question but the of whether the trial court as a witness or the Gunderson denying Roundy’s erred in motion to order Roundy tape Gunderson had made of in his tape preparer disclosure of the video and its discovery. requests answers to her for presents question of law that we review for primarily 4 The trial focused on the color Pena, correctness. See State v. accident, light of the traffic at the time of the (Utah 1994). 932, 936 right-of-way, which had the and the Roundy’s injuries. nature and extent of Sta-
ley testify ANALYSIS called Dr. Gerald Morass to as an injuries. expert Roundy’s Although Dr. Appeal I. Preservation Issue for prepared independent Morass had medi- argument, Staley argued 6 At oral report concluding cal examination Roun- dy percent permanent suffered from five im- the issue of whether the trial court Roundy grant 1. Because new trial at which we do not address this issue. punitive damages, she renew her claim for Roundy preserved that testimony. is- son’s admitting Gunderson’s erred this motion to disclose and does properly before sue in her oral tape inadmissibility Roundy failed not assert other basis Although disagree. appeal. We issue of the evidence. objected to introduction
Roundy
neither
testimony con
to Gunderson’s
nor
II. Disclosure of Evidence
previously dis
cerning
tape,
Roundy argues that Utah’s
with the
of this evidence
introduction
cussed
Staley
required
to disclose Gunderson’s
rules
reveals
of the record
judge.
Our review
identity
response
and the
to an oral motion
colloquy
amounted
discovery. Although no Utah
requests for
Staley
Gunderson’s
to disclose
directly
addressed
issue
cases
*4
tape
identity
provide
to
the video
and
—a
party
a surveillance
a
must disclose
whether
denied, stat
unequivocally
the court
motion
discovery,
requests
response
in
to
for
video
tape
be
testimony and the
would
ing that the
that the
Supreme Court has held
the Utah
Therefore,
as rebuttal evidence.
admitted
discovery
is to
purpose [of
rules]
Utah’s
objection
of Gunder
to the admission
further
simple
procedure as
and efficient as
make
they
tape
the time
testimony and the
at
son’s
ritual,
any
possible by eliminating
useless
been futile. See
would have
were introduced
may
rigidities or technicalities which
(Utah
undue
Allan,
892,
P.2d
901
Beltran v.
926
law;
engrafted in our
and
(“It
have become
J., dissenting)
(Billings,
is
Ct.App.1996)
trickery
surprise or
so
remove elements of
require
does not
that the law
well established
act.”).
can determine
parties
the
and the court
vain
litigants to do a futile or
directly,
the
as
the facts and resolve
issues
¶ Furthermore,
recently stated
7
this court
fairly
expeditiously
possible.
“
as
and
creating
judicially
a
an order
that
‘absent
Gilbert,
189, 190,
P.2d
19 Utah 2d
429
disclosing witness Ellis v.
imposed
[for
deadline
(1967).
39, 40
lists],
party
a
not sanction
a
court
”
Rehn,
Rehn v.
by excluding its witnesses.’
addressing
courts
this issue
9 Most
(Utah
306,
(quot-
Ct.App.1999)
P.2d
314
974
possession
in
of a surveil
held that a
R.R.,
v. Denver & Rio Grande W.
Berrett
op
the
tape must disclose it to
lance video
(Utah
291,
Ct.App.1992)). In
296
Martino v.
posing party prior to trial. See
case,
specific
trial court did not set
this
the
(D.Colo.1998).
Baker,
588,
F.R.D.
and evidence.
of witnesses
date for disclosure
Mitchell,
example,
Samples
in
v.
For
Therefore,
objected
even
105,
(App.1997), the de
in an Staley argues also that he was injuries, regarding required testimony this alone does not disclose or the Williams, render it tape protected attorney rebuttal evidence. See because it is work- (rejecting argument product. disagree. prepared So.2d Evidence undisclosed witness’s anticipation was rebuttal of introduction at trial is clear only ly evidence because undisclosed evidence discoverable under Utah Rule of Civil 26(b)(1). part plaintiffs testimony rebutted of and Procedure R. See Utah Civ. P. George, 898 City St. (“Parties discovery re- Wadsworth Constr. 26(b)(1) may obtain of 1995) (“[A]n (Utah erro- 1378-79 P.2d matter, privileged, which is any garding exclude evidence decision to admit or neous in the subject matter involved relevant to error unless not constitute reversible does action, it relates to whether pending if An is harmful error is harmful. error seeking discov- of the or defense claim reasonably likely the error affected it is any other the claim or defense ery or to (Internal proceedings.” of the existence, the outcome description, including the party, omitted.)). any citations nature, and location custody, condition identity and and the tangible thing[ ] ... of Gun- Staley argues that admission having knowledge of persons location tape harm- testimony and the derson’s matter.”)- aptly As one discoverable only evidence was relevant less because this noted, reveal a refuses to a defendant who jury damages issue the to the issue of —-an injury personal in a plaintiff video of the However, a determination of not reach. did fails to case liability hinged parties’ in this case our purpose of comport with the broad Staley credibility. introduced Gun- Because de- encouraging discovery rules impeach testimony and the derson’s supply manding parties disclose and credibility, Roundy’s this evidence was di- full, request. A upon relevant evidence liability. Fur- rectly to the issue of relevant free, relevant facts open disclosure of thermore, that this case the record reveals promote the res- expedite and which would hinged versus largely disputed factual issue did not olution of fact, specifi- Roundy’s counsel Staley’s. By failing provide case. prevail cally closing arguments “[t]his stated through discovery, the de- this information exactly precisely with the case has to do opportuni- plaintiffs an denied the fendant Therefore, credibility plaintiff.” in a manner which ty present their case impeached Roundy’s testimony had not been *6 McDougal to [plaintiff] Mrs. allow would testimony and by admission of Gunderson’s credibility. preserve protect likely jury reasonably it the tape, the is verdict. might have reached a different McCammon, 229, W.Va. McDougal v. 193 error conclude the trial court’s therefore (W.V.1995); 788, see also 796-97 455 S.E.2d testimony and the admitting Gunderson’s Koehr, 62252, Mo.App. No. 1992 v. State prior was harmful. tape without disclosure 230232, 1508, *8-9, at *3 1992 WL LEXIS 1992) 22, majority (noting (Mo.Ct.App. Sept. CONCLUSION although information is
rule protected is not product, such evidence work ¶ Roundy preserved the issue properly by at trial the defendant if it will be used and the of the of admission opportunity to “plaintiff needs an because trial colloquy with the through her counsel’s against mis guard to examine the material motion judge tantamount to an oral that was identity, exaggeration, distor possible taken compel Staley to the evidence. to disclose defendant”); tion, by fraud the and even discovery purpose the of Utah’s Because (holding at 216 surveil Samples, 495 S.E.2d ex- the fair and efficient rules is to foster attorney protected plaintiff of lance video parties, we change of information between at product “[i]f [defendant’s] work in re- trial court erred conclude the right plaintiff] had no torney believed [the disput- Staley to disclose the fusing to order evidence, either ... should have this she accompany- tape and The video ed evidence. interrogatory or disclosed the objected the evidence, nor not rebuttal were content, existence, evi the of the but not attorney work-product. they protected were order”). protective for a dence and moved Furthermore, directly the surveillance credibility factor Having the trial undermined determined —a liability. of Staley crucial to the determination failing require erred in Therefore, harm- we the error was conclude video and Gunder- disclose the surveillance Roundy a new Accordingly, grant ful. testimony, determine we must next son’s 59(a)(7) (providing P. R. Civ. see Utah error was harmful. See Cal whether law”), regarding admissibility on the of trial court of this “[e]rror new trial basis court, may puni- appellant At trial con- at which she renew her claim for evidence. only appellee’s damages. tive tended failure to disclose Appellant’s constituted a violation. for a new 18 Reversed remanded concern about nondisclosure is insufficient to trial. preserve appeal the issue of the admissi- bility underlying evidence. result): JACKSON, Judge (concurring in appeal, To an issue for a agree Judge I19 with Greenwood that claiming in the admission of evidence error remand for a new we should reverse and object timely must on the record in a However, trial. I would reach that result fashion. One who fails to make neces- using analysis. a somewhat different sary objection or who fails to insure that it ¶20 primarily focusing Instead of on the deemed to is record is have waived disclosure, presumed motion to order I would the issue. solely Roundy’s challenge reverse based on to the trial court’s denial of her motion for a Corp., B B Lamb v. & Amusements 869 P.2d “[ajccident surprise, (Utah 1993) (citation 926, omitted); new trial because of see ordinary prudence 103(a)(1) which could (providing also Utah R. Evid. “[e]r- 59(a)(3). guarded against.” R. P. Civ. predicated upon ruling ror not be My analysis would eliminate the need to ... which admits or excludes evidence unless preservation evaluate issue and to state the timely ap- or motion to strike multiple record, standards review found pears stating specific ground opinion. main objection”). ¶21 specifically Even if did not opinion appel main 25 The concedes that object during regarding trial the issue of object lant did not to the admission of the surprise, unfair she raised it in her motion evidence, but concludes her oral motion motion, denying for a new trial. In sufficiently preserved disclosure court considered the issue the merits. admissibility supporting issue. alleged “Because the court considered the conclusion, opinion Samples the main cites waived, finding [Roun- error rather than it Mitchell, (App. S.C. S.E.2d 213 dy’s] right appeal the issue on assert 1997). easily Samples distinguished from Seale,
resuscitated.” State v. appellate the instant case because the *7 (Utah 1993). admissibility objec there held that a renewed unnecessary ¶ tion was the issue opinion correctly main The identifies appeal already for when the trial court had abuse of discretion as the standard of review admissibility made an determination. id. See for the denial of a motion for a new words, In Samples, at 215. other in ably analyzes then the law vis-a-vis the facts admissibility previously issue had been raised of this case to establish that there was a upon. By comparison, and ruled a determi surprise harmful at trial that “ordi- concerning request nation for disclosure is nary prudence guarded could not have very different 59(a)(3). from determination as to the against.” R. Civ. P. Based on admissibility of the evidence. In the case at analysis, that I believe that the trial court bar, objection there has never an been denying Roundy’s abused its discretion in consequent question determination on the motion for a new trial.
admissibility. BENCH, Judge (dissenting): ¶ holding 26 In that the motion to ¶ respectfully I23 dissent. preserved issue, admissibility the main ¶ opinion appellant opinion 24 The main that ruling. holds misstates the trial court’s that, preserved appeal opinion denying the issue of whether the The main asserts admitting appellant’s compel, trial court erred in Gunderson’s motion to the trial court tape. disagree. and surveillance I ruled that Gunderson’s “would be objection Appellant any failed to make to the admitted as rebuttal evidence” at trial. The
4H therefore pellant’s failure to raise the issue is however, that court, did not state trial See, Lamb, e.g., appeal. fatal to her denying ap- In admitted. would be evidence that the The threshold determination at 931. compel, trial court pellant’s motion preclude preserved our issue was not should as follows: stated merits of the case on consideration of the the disclosure of finds that Court [T]he (“Plaintiffs make appeal. id. failure to See witness need testimony for the rebuttal objection bars our consider- an on the record ifAnd the wit- by the defense. be made appeal.”). the issue on ation of on, testify later based ness is called testimony needing concurring opinion, to be rebut- separate upon other his ted, presented at that Judge that can be contends that the trial that Jackson objection denying appellant’s about you have an its discretion time. And abused if called, surprise. may trial based on we motion for a new the witness before 59(a)(3) (stating R. P. “a new See Utah Civ ivith that. deal surprise, ... which may granted [for] be added.) court therefore The trial (Emphasis guarded ordinary prudence not have could only was unnec- clearly ruled that disclosure grant against”). question “The of whether of the rebuttal essary that time because at trial is within the discre a motion for new did The trial court nature of the evidence. court, ruling will not tion of the trial whose the evidence would be admitted rule that appeal the facts show on unless be disturbed admissibility trial; any make nor did it at discretion.” Chournos a clear abuse of determination. (Utah 1982) 710, 713 D’Agnillo, 642 P.2d critically important to note the 27 It is added). (emphasis I find no abuse of discre “if clear statement above trial court’s discretion, tion, much less a “clear” abuse you an about before have not disturb the trial and I would therefore called, that.” deal with witness is post-judgment appellant’s court’s denial of ap- clear invitation to raise Despite this by supreme court: motion. As stated our objection once the evidence propriate timely objection interpose a Failure to trial, appellant at presented for admission testimony challenged ground of sur- objection. By failing to failed to make a sufficient reason to prise would itself be offered object all when the evidence was deny a new trial on that a motion for admitted, grounds appellant waived 59(a)(3) was not intend- ground_ Rule appeal. waiting attorneys option of give ed to opinion The main also errs assert- decided ad- until after the case has been appro- appellant made an even if they pursue versely by before the court objection at the time the evidence was priate by offering addi- proof deficiencies their introduced, “the trial court could not alleged sur- to counteract tional evidence This is not correct. the evidence.” excluded during trial. prises encountered ability to had the The trial Id. evidentiary evidence a valid exclude the *8 preserved if the issue was 31 Even trial, actually objection been made at trial, urged by Judge as motion for a new Rule under such as Jackson, the trial I would conclude already As illus- of Evidence.1 Utah Rules ruling an abuse of discretion. court’s was not trated, actually invited eviden- the trial court Therefore, I and decline to consider dissent attempted to use tiary objections appellee if in the the issues addressed the merits of trial. the evidence at opinion. main stated, evidentiary appropriate Simply objections could have been sustained objections pre- had to be made to
and such Ap- admissibility appeal. issue for
serve the delay, relevant, jury, by undue considerations of "Although or provides: evi- 1. Rule time, probative presentation value is cumu- be excluded its needless dence substantially outweighed by waste of or danger unfair Evid. 403. evidence.” Utah R. lative issues, misleading prejudice, confusion of