Roundy v. Staley

¶1(dissenting):

¶2¶ 23 I respectfully dissent.

¶3¶ 24 The main opinion holds that appellant preserved for appeal the issue of whether the trial court erred in admitting Gunderson’s testimony and surveillance tape. I disagree. Appellant failed to make any objection to the trial court regarding the admissibility of this evidence. At the trial court, appellant contended only that appellee’s failure to disclose constituted a discovery violation. Appellant’s concern about nondisclosure is insufficient to preserve for appeal the issue of the admissibility of the underlying evidence.

To preserve an issue for appeal, a party claiming error in the admission of evidence must object on the record in a timely fashion. One who fails to make a necessary objection or who fails to insure that it is on the record is deemed to have waived the issue.

¶4Lamb v. B & B Amusements Corp., 869 P.2d 926, 931 (Utah 1993) (citation omitted); see also Utah R. Evid. 103(a)(1) (providing “[e]r-ror may not be predicated upon a ruling which admits or excludes evidence unless ... a timely objection or motion to strike appears of record, stating the specific ground of objection”).

¶5¶ 25 The main opinion concedes that appellant did not object to the admission of the evidence, but concludes that her oral motion to compel disclosure sufficiently preserved the admissibility issue. In supporting this conclusion, the main opinion cites Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (App.1997). Samplesis easily distinguished from the instant case because the appellate court there held that a renewed admissibility objection was unnecessary to preserve the issue for appeal when the trial court had already made an admissibility determination. See id. at 215. In other words, in Samples, the admissibility issue had previously been raised and ruled upon. By comparison, a determination concerning a request for disclosure is very different from a determination as to the admissibility of the evidence. In the case at bar, there has never been an objection and consequent determination on the question of admissibility.

¶6¶ 26 In holding that the motion to compel preserved the admissibility issue, the main opinion misstates the trial court’s ruling. The main opinion asserts that, in denying appellant’s motion to compel, the trial court ruled that Gunderson’s testimony “would be admitted as rebuttal evidence” at trial. The *411trial court, however, did not state that the evidence would be admitted. In denying appellant’s motion to compel, the trial court stated as follows:

[T]he Court finds that the disclosure of the testimony for the rebuttal witness need not be made by the defense. And if the witness is called to testify later on, based upon other testimony needing to be rebutted, that that can be presented at that time. And if you have an objection about that before the witness is called, we may deal ivith that.

¶7(Emphasis added.) The trial court therefore clearly ruled only that disclosure was unnecessary at that time because of the rebuttal nature of the evidence. The trial court did not rule that the evidence would be admitted at trial; nor did it make any admissibility determination.

¶8¶ 27 It is critically important to note the trial court’s clear statement above that “if you have an objection about that before the witness is called, we may deal with that.” Despite this clear invitation to raise an appropriate objection once the evidence was presented for admission at trial, appellant failed to make any objection. By failing to object at all when the evidence was offered and admitted, appellant waived her grounds for appeal.

¶9¶ 28 The main opinion also errs in asserting that even if appellant had made an appropriate objection at the time the evidence was introduced, “the trial court could not have excluded the evidence.” This is not correct. The trial court clearly had the ability to exclude the evidence if a valid evidentiary objection had actually been made at trial, such as an objection under Rule 403 of the Utah Rules of Evidence.1 As already illustrated, the trial court actually invited eviden-tiary objections if appellee attempted to use the evidence at trial.

¶10¶ 29 Simply stated, appropriate evidentiary objections could have been sustained at trial, and such objections had to be made to preserve the admissibility issue for appeal. Appellant’s failure to raise the issue is therefore fatal to her appeal. See, e.g., Lamb, 869 P.2d at 931. The threshold determination that the issue was not preserved should preclude our consideration of the merits of the case on appeal. See id.(“Plaintiffs failure to make an objection on the record bars our consideration of the issue on appeal.”).

¶11¶ 30 In his separate concurring opinion, Judge Jackson contends that the trial court abused its discretion in denying appellant’s motion for a new trial based on surprise. See Utah R. Civ P. 59(a)(3) (stating “a new trial may be granted [for] ... surprise, which ordinary prudence could not have guarded against”). “The question of whether to grant a motion for a new trial is within the discretion of the trial court, whose ruling will not be disturbed on appeal unless the facts show a clear abuse of discretion.” Chournos v. D’Agnillo, 642 P.2d 710, 713 (Utah 1982) (emphasis added). I find no abuse of discretion, much less a “clear” abuse of discretion, and I would therefore not disturb the trial court’s denial of appellant’s post-judgment motion. As stated by our supreme court:

Failure to interpose a timely objection to testimony challenged on the ground of surprise would itself be a sufficient reason to deny a motion for a new trial on that ground_ Rule 59(a)(3) was not intended to give attorneys the option of waiting until after the case has been decided adversely by the court before they pursue deficiencies in their proof by offering additional evidence to counteract alleged surprises encountered during trial.

¶12Id.

¶13¶ 31 Even if the issue was preserved in the motion for a new trial, as urged by Judge Jackson, I would conclude that the trial court’s ruling was not an abuse of discretion. Therefore, I dissent and decline to consider the merits of the issues addressed in the main opinion.