*1 Mary guilty of laches. he not found being is remanded to the
Since this matter opinion for under Part I of this
trial court support of the child re-
recalculation benefits, offset, devoid of
tirement issue to the
also remand retroactive to reconsider its decision on
trial court permit or not to a retroactive mod-
whether Mary’s community property
ification portion military to a of Chester’s
claim benefits, considering
retirement without its Mary
prior erroneous conclusion that trial court should
guilty of laches. The equitable and then discretion
exercise appropriate findings of fact and con-
make its decision. supports of law to
clusions Co., supra; v. Idaho Valley
Sun Power Ross, supra.
Ross v. pro- further and remanded for
Reversed attorney fees on
ceedings. No costs or
appeal. BOYLE,
BISTLINE, JJ., JOHNSON
concur.
McDEVITT, J., in the result. concurs
Colleen RICE, Defendant-Respondent.
Jeff
No. 18346. Idaho,
Supreme Court of Falls, Term. March 1991
Twin
Aug. 21, 1991. *2 involving a in a lawsuit
was taken injured in which the prior accident The trial court party was involved. in allow- not abuse its discretion did deposition to be read ing the jury. correctly court excluded
3. The trial par- testimony injured of the hearsay why injured party ty concerning employment to find as a was unable instructor. ski did not abuse its dis- 4. The trial court in- declining to award the cretion jured party costs.
Webb, Burton, Carlson, Pedersen & I. Webb, Falls, plaintiff-appellant. for Twin AND THE BACKGROUND PRIOR Webb, Lloyd argued. J. PROCEEDINGS. Alexander, Sinclair, Doerr, Benoit, Har- Falls, High, defendant- In March Colleen Stewart wood & Twin for Doerr, Valley respondent. argued. teaching a ski class at Sun when John A. with Stewart. Stewart Jeff Rice collided JOHNSON, Justice. Rice, skiing in alleging sued that Rice was and that the collision negligent a manner personal injury pre- case. The This is proximately to suffer a caused Stewart presented dominant issue is whether the epileptic scapula and a series of broken adequately grounds trial court stated the of seizures. Stewart claimed excess for the denial of motion $500,000.00 damages. 59(a)(5). brought pursuant to I.R.C.P. denying hold that in the motion for new trial, Rice introduced evidence that At adequately trial the trial court did not state of had involved a number Stewart been grounds for the denial of the motion the 1984 ski accident. prior accidents because the trial court did not refer to included a 1979 automobile These accidents applicable or the standard accident, accident, an auto- a 1982 ski to the consideration of a motion under this in 1983. While Rice con- mobile accident weigh rule and did not the evidence scapula arose ceded that Stewart’s broken determine the trial court accident, 1984 ski Rice contended out of the injured party and would have awarded the prior caused or contrib- accidents compare jury’s that amount with the epileptic seizures. uted to Stewart’s Therefore, award. we remand the case to expert medical witness- One aspect for a on this es, Wilson, at trial that assum- Dr. testified the motion for new trial. fol- ing did not lose consciousness hold: We also lowing accident but the 1983 automobile necessary merely 1. A new trial is not following the 1984 did lose consciousness all of because the did not award accident, probable the ski it seemed more by special damages supported a result of the 1984 accident. seizures were the doctors who treated Rice counsel for On party, though this injured even deposition of presented to Dr. Wilson a testimony was not contradicted involving the taken in the case expert testimony. other deposition This 1983 automobile accident. after the 1984 taken several months correctly admitted acknowledged that Wilson injured party ski accident. deposition with plaintiff for the costs associated to him as furnished deposition had been scapula. The other her broken preparation records in of Stewart’s occurred, particularly alleged condition. medical analysis of Stewart’s have epileptic episodes, could well deposition in attorney offered the Rice’s *3 by the automobile accident. caused evidence, by the trial been and it was admitted allega- plaintiff suffered or made The said he had as of what Wilson court phys- similar similar natures and tions of ac- Wilson read. On The the car accident. ical defects after state- knowledged considering Stewart’s jury that the could have court also feels indicating that deposition in the ments in- expenses certain medical found that in the 1983 auto- knocked out Stewart was unreason- were curred mobile accident. able. Rice’s During presentation of court also ruled that there was requested that for Rice Stewart’s
counsel prevailing party” and denied “no overall automobile acci- deposition from the 1983 party. to either jury. Over the costs case read to the dent be attorney, the trial objection of Stewart’s appealed. Stewart appropri- that it was more court concluded jury than deposition read the to ate to II. deposition to consider to allow as an exhibit. AD- THE TRIAL COURT CORRECTLY more than presented evidence of Stewart MITTED STEWART’S DEPOSITION $21,500.00 expenses that were in medical AC- THE 1983 AUTOMOBILE FROM the collision with allegedly the result of CIDENT CASE. $14,315.12repre- expenses, these Rice. Of asserts Stewart by Dr. provided to Stewart sented services deposition her not have admitted should ($10,300.80) by Dr. and West Hermann arising out of the 1983 in the case taken ($4,014.32). Dr. Hermann testified disagree. automobile accident. We the treat- represented his amount of bill Hermann received from ment that Stewart argues deposition that her was Stewart Dr. Her- of the 1984 ski accident. because 32(a)(4) under either I.R.C.P. not admissible among the epilepsy was mann stated that 804(b)(1). counters that the I.R.E. Rice or Dr. things he treated Stewart. for which admission of admissible as an deposition is the treat- acknowledged that some of West 801(d)(2). opponent under I.R.E. party from him was be- received ment Stewart ignored parties have that both We believe the seizures. cause of ad- deposition for which the basis of the items an exhibit—as one mitted as find- special returned a verdict preparing to by Dr. Wilson considered ninety percent to ing that Rice contributed of concerning the causation opinion give ten the accident Stewart the cause of epileptic seizures. the total jury determined percent. The by Stewart damages sustained provides: I.R.E. 705 Rice to be accident with as a result of the underly- data of facts or Disclosure $4,504.25. opinion. expert may ing expert —The pursuant for a new moved opinion or inference terms of testify in (a)(6) judg- or for to I.R.C.P. therefor expert’s] reasons give [the 50(b). In pursuant to I.R.C.P. ment n.o.v. underly- prior disclosure without motions, trial court stat- denying these data, provided that the ing or facts ed: otherwise, fur- provided may require that, requested ther finds that there The court first underlying facts discovery the jury’s rules support the adequate evidence may in expert disclosed. The data were The court believes
verdict.
required to disclose
any event
to reimburse
defendant
intended for the
underlying
attempted
testify
employees
of Sun
data
cross-exam-
facts
Valley
ination.
her
the reasons
Val-
told
were
Sun
ley
not hire her
at the ski
would
back
added.)
(Emphasis
school and what her doctors said
not
about
During the cross-examination of Dr.
being
a ski
instructor. This
Wilson, counsel for Rice asked Wilson
clearly
hearsay.
would
have been
deposition
whether he had read Stewart’s
testify concerning
her ef-
was allowed
in the 1983 automobile
accident case
employment.
forts to obtain
arriving at the conclusions to which he had
testified. Wilson said he had. Wilson said
IV.
deposition
he had reviewed the
as
*4
the
records
order to make an
IN DENYING STEWART’SMOTION FOR
analysis of Stewart’s medical condition.
NEW TRIAL THE TRIAL COURT
attorney
When
deposi
Rice’s
the
offered
ADEQUATELY
DID NOT
STATE
evidence,
tion in
attorney object
Stewart’s
GROUNDS FOR DENYING THE MO-
ed for lack of foundation. The trial court
59(a)(5).
TION UNDER I.R.C.P.
deposition
part
admitted the
as
of what
ruling
Stewart asserts that in
on Stew-
clearly
Wilson said he had read.
It was
pursuant
art’s motion for new trial
admissible under I.R.E. 705.
59(a)(5),
I.R.C.P.
the trial court did not com-
Later,
attorney requested
Rice’s
ply with the directions of this
Court
deposition
be read into the record.
Quick
Crane,
759,
111
v.
Idaho
727 P.2d
only objection interposed
point
at that
(1986).
agree.
1187
by
deposi
Stewart’s counsel was that the
Quick Crane,
the Court stated that
already
tion was
an exhibit and there was
to allow the Court to determine whether a
no reason to read it
jury.
to the
Since it
ruling
trial court abused its
discretion
on
already admitted,
reading
the
of the
judgment
motions for
and for a
n.o.v.
new
deposition
jury
to the
did not add
new
pursuant
59(a)(5)
(a)(6),
trial
to I.R.C.P.
and
evidence. Whether it would have been ad
distinguish
the trial court “must
between
missible otherwise as
of the defense is
grounds upon
the various motions and the
not at issue here.
It is within the discre
based,
they
which
are
simply
and not ...
tion of the trial court to determine when an
lump
together
general
them all
and issue a
presented
exhibit is
jury
for its con
773,
grant or denial.” Id. at
remittitur
with the motion for
III.
n.o.v.,
judgment
stated,
simply
he
“It is
feeling
the court’s
ample
that there is
THE TRIAL COURT
EX-
CORRECTLY
justify
evidence before this
these
CLUDED STEWART’S HEARSAY
Clearly,
verdicts.”
this does not reveal
TESTIMONY AS TO WHY STEWART
judge appreciated
whether the trial
the
COULD NOT FIND EMPLOYMENT
judgment
difference
a
between
n.o.v.
AAS
SKI INSTRUCTOR.
59(a)(6),
a new trial based on I.R.C.P.
nor
Stewart asserts that applied
does it indicate whether he
the
incorrectly prevented
testify
Stewart from
correct standard for either. Further-
ing why
employment
she could not find
as
more, since the trial court made no
disagree.
a ski instructor. We
59(a)(5)
to either
I.R.C.P.
reference
During
trial,
rule,
at
language
the
the
it
contained in
objections
trial court
impossible
sustained
to testimo-
is
to deter-
Court
ny by
hearsay.
Stewart that was
mine
whether
trial court even ruled
508
59(a)(5)
motion,
a
motion is
question
on Rule
defendants’
award,
applied
jury’s damage
let alone whether
he
correct
as
compared
standard
that rule.
to the amount of
trial court on
view of the evidence
[its]
771,
(emphasis
at
Id. dispari- have would awarded. Where ed). great suggest, ty is so as to but not In this the trial court denied Stew- necessarily establish, that the award is for judgment art’s motions n.o.v. and for might expected acting be of a pursuant new trial to I.R.C.P. passion preju- under the influence of (a)(6) revealing without whether the trial dice, the court in the interests of will appreciated the difference grant or, justice alternatively, applied standard to be on each of motion, denying a condition as appeal, these motions. On Stewart raises remittitur, permissible order only the issue of trial court’s denial of law, statutory or an additur. case the motion for new trial original). (Emphasis in 59(a)(5). I.R.C.P. Galey, In Sanchez v. 112 Idaho 59(a)(5) provides: (1987) I), P.2d Court {Sanchez may granted A new trial to all or *5 findings the court to found of the trial be any parties all or and on of inadequate granting to sustain the of a in an of the issues action for the in remittitur or the alternative a new trial following reasons: findings. for Id. and remanded further at 616, remand, P.2d at the 733 1241. On trial inadequate Excessive or 5. findings support court made additional damages, given appearing to have been ruling, upheld and the its this Court deci- passion preju- under the influence of or 1064, 115 Idaho Galey, sion. Sanchez dice. 1070, 702, (1989) II). 772 P.2d 708 {Sanchez Finch, 620, In Dinneen v. 100 Idaho Quick Recently, applied we Dinneen 624-25, 575, (1979), 603 P.2d 579-80 the remanding findings specific in more the in process described the the Court detail a ruling granting of a trial court remittitur considering trial court should follow a pursuant trial or the alternative a new 59(a)(5): motion I.R.C.P. 59(a)(5) (a)(6). I.R.C.P. O’Dell v. Bas- 59(a)(5)] ruling In on I.R.C.P. mo- [an 817, abe, 796, 809, 1082, 119 Idaho 810 P.2d tion, required it is not that the movant 1095, (1991). Quick said: 1104 In we point must be able to to the record of logic requiring see no the trial proceedings and some demonstrate oc- explain not a grant court to a but denial passion currence which created motions, although such the extent of of prejudice. This the is true whether Rule explanation trial will obvi- [the court’s] 59(a)(5) by motion new trial is a for a greater grant. In ously a either with complaining defendant of excessive distinguish trial must [the court] by plaintiff complaining of an award or a the motions and the between various courts, inadequate award. Trial unlike upon they grounds are based and which jurors, advantage having have the of here, not, simply lump as was the case many heard and hundreds determined together general issue a them all damage court in a jury of claims. A trial grant or denial. exactly trial hears the same evidence as 773, Ill Idaho at P.2d at 727 hears, in- and makes own [its] not refer court did credibility Since assessments of ward 59(a)(5) language So, or the con weight. trial the either when after a in the rule in denial of Stewart’s tained a verdict is thereafter as- returns which motions, impossible is sailed, post-trial it either as excessive or as inade- is to determine whether quate, judgment the trial then Court court’s of Stewart’s mo judge] even ruled play, requiring into of called [the applied standard for tions or the correct weighing of evidence. sole
509
Also,
did not cause or contribute to the
the rule.
trial court’s
does
accident
evidence,
epileptic
weighing
seizures.
not reveal the
of
of
the trial
determination
key
issues in the case was
One of
Stewart,
court would have awarded
and the
accident caused or con-
whether the 1984
comparison
jury’s
of this amount
with
seizures. Dr.
epileptic
tributed to the
Wil-
Therefore, we must remand to al-
award.
son,
neurologist
who testified on behalf
portion
low the trial court to rule on this
Stewart, gave
opinion
his
on direct ex-
according
proce-
Stewart’s motions
had not lost con-
amination that
Dinneen, Quick,
specified
dures
San-
sciousness in the 1983 automobile accident
I,
II,
chez
Sanchez
O’Dell.
in the 1984 ski
but had lost consciousness
accident, then the 1984 accident was the
Although
party,
it is not cited
either
probable
epileptic
cause of the
seizures.
we
Reynolds,
have reviewed Black v.
cross-examination,
On
Dr. Wilson admitted
277,
(1985)
deciding
Idaho
Among given jury the instructions following: V. was the condition, person pain, A who has a or THE FAILURE OF THE TO JURY disability injury at time of an the is not AWARD ALL THE SPECIAL DAM- damages entitled to recover therefor. AGES THAT WERE BY SUPPORTED However, he is entitled to recover dam- STEWART’S EVIDENCE AND NOT ages any aggravation preex- for of such BY REBUTTED ANY EXPERT TES- condition, isting pain, disability proxi- or REQUIRE TIMONY DOES NOT THE mately resulting injury. from the A GRANTING OF NEW TRIAL. you If find that this occurrence before Stewart asserts that a preexisting bodily plaintiff the had a con- granted ground should be on the that the pain causing dition which was or disabili- jury $14,315.12 did not award at least the ty, and further find that because of this expenses in medical for the services of Dr. pain occurrence the condition or the or Hermann and Dr. West because no other disability aggravated, the was then if expert proof. disagree. rebutted this your plaintiff in verdict is favor of the you aggravation should consider the premise position The of Stewart’s is that pain disability the condition or the or the jury the should not have been allowed to aggravation, proximately due to such but disregard uncontradicted and credible testi- condition, you not consider should mony by Dr. Hermann Dr. that and West pain, disability may or which have exist- charges solely the for their services were occurrence, prior ed or from which injuries to in the 1984 attributed Stewart’s may suffering the now be which ski accident. The of Dr. Her- by not caused or contributed to rea- West, however, mann and Dr. reveals that son of this occurrence. epileptic each of them treated Stewart for apportion, possible, are to be- seizures as of their medical services. You condition, pain, disability evidence in the case could have tween the or Other jury prior to this occurrence and the condi- caused the to conclude that the by obviously opin- tion, pain, disability prevailed. or this In the court’s caused prevailing party. there no liability according- ion overall occurrence and assess apportionment ly. reasonably If no can 54(d)(1)(B)provides: you, by be made then the defendant is Prevailing Party. determining damage. liable for the entire party prevailing to an action is a which evidence, including costs, the We conclude from to party and entitled Dr. and from Wilson’s in sound discretion the shall consider instruction, may judgment the the in that well final or result of action expenses sought to apportioned by have the medical relation the relief the re- parties, attempt compensate spective an to whether there mul- were issues, claims, multiple tiple counter- injuries medical services attributable to the claims, claims, crossclaims, party third epileptic other the than seizures. The multiple other or cross issues between denying court itself concluded parties, and the extent to which each post-trial motions: party prevailed upon issue each such The intended court believes or claims. The trial court its sound plain- defendant to reimburse that may party discretion determine tiff for the with her costs associated prevailed action not did scapula. broken other may prevail part, upon finding so occurred, plaintiff alleged particularly among apportion the costs between and epileptic episodes, could well have parties equitable in a fair man- been caused the automobile accident. all of considering ner after the issues While we conclude the failure of the action and claims involved in the award amount of entire judgments ob- judgment resultant charges for Dr. the services of Her- tained. require mann and Dr. does not West complaint alleged in this case trial, granting not of a new do intend colliding negligent Rice was with Stew- imply limited that the trial court is in con- proximate art and that as a result sidering what the trial court would have injured. The negligence, Stewart was weighing awarded Stewart requested “$500,000 general prayer dam- required when it considers Stewart’s *7 to time ages, proved or an amount at the The I.R.C.P. motion on remand. damages “in an special of trial” and trial is free to make its own determi- court trial.” proved amount to be at the time of it nation of the amount would negligence was found that Rice’s have awarded Stewart. ninety percent the cause of accident damages at and assessed Stewart’s total VI. $4,504.25. THE TRIAL DID NOT ABUSE COURT 54(d)(1)(B) specifically directs I.R.C.P. IN TO ITS DISCRETION DECLINING discretion, court, exercising its trial in TO AWARD COSTS STEWART. to consider the result relation trial asserts that the court sought determining pre- who the relief prevail she should have ruled that was vailing party Valley Shopping In is. Sun dis ing party and awarded her costs. We 87, Co., 119 Power Idaho Center v. Idaho agree. (1990), analysis we out the P.2d 993 set 803 determining costs, this will make the which Court rejecting Stewart’s claim trial has whether or not a court abused said: discretion: In the instant case the defendant was correctly (1) [Wjhether the trial court found to be at fault 90% discretion; the issue as one say perceived you extent could (2) trial court acted within whether the prevailing party. However the was the of its discretion epileptic epi- the outer boundaries plaintiff’s claim for the ap- legal standards consistently with Upon defendant sodes. this issue the 511 specific choices available plicable 177 817 P.2d it; (3) whether the trial court PERKINS, Plaintiff-Respondent, Jeff reached its decision an exercise reason. ENTERPRISES, INC., an HIGHLAND Valley Shopping Center v. Idaho Sun Corporation, Defendant Idaho 87, 94, 993, Co., 119 Idaho 803 P.2d Power -Appellant. (1991). Applying analysis, No. 18955. conclude that the trial court did not abuse ruling no its discretion that there was Idaho, Supreme Court of party, neither prevailing overall and that Lewiston, April 1991 Term. party should recover their costs. 22, Aug.
VII.
CONCLUSION. evidentiary affirm the trial
We court’s
rulings questioned ap- that have been
peal ruling and the trial court’s that there prevailing party. no remand the
case to the trial court for a on Stew-
art’s motion for a 59(a)(5). Because of the mixed appeal,
result on we award no costs or
attorney appeal. fees on
BAKES, C.J., and BOYLE and
McDEVITT, JJ., concur.
BISTLINE, Justice, specially concurring. fully every aspect
I concur with
majority opinion except for its decision Reynolds,
Part IV to overrule Black v. (1985). majori-
Idaho
ty explain why does not detail it is Black;
necessary appropriate overrule
therefore, I am unconvinced that we need
to reach out and strike down this case. notes,
Furthermore, majority as the neither
party making to this the case cited overruling compelling. Black even less