Opinion
Nos. 32705-8-II; 33185-3-II.
June 27, 2006.
Appeals from a judgment of the Superior Court for Pierce County, No. 02-2-12168-9, Vicki L. Hogan, J., entered December 27, 2004.
Counsel for Appellant(s), Marilee C. Erickson, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Susan R. Hamilton, Allstate Staff Counsel, 900 4th Ave Ste 1470, Seattle, WA 98164-1079.
Terry Jay Price, Reed McClure, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), John Stephan Moceri, Attorney at Law, 4301 S Pine St Ste 205, Tacoma, WA 98409-7205.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
Norberto and Karen Flawau appeal the judgment in favor of Kimberly Bowman for injuries from a dog bite by Flawau's pit bull, King. They argue that the trial court made evidentiary errors, erred in allowing deposition testimony to be displayed during Bowman's closing argument, and erred in denying Flawau's motion to vacate judgment based on newly discovered evidence. We affirm.
FACTS
Kimberly Bowman was an employee at Banfield Pet Hospital. Norberto Flawau regularly brought his dog, King, to this pet hospital, and Bowman knew them because King was a client in the hospital. At approximately 8:30 a.m. on February 9, 2002, Bowman was working at the walk-in clinic of the hospital when a dog bit her right forearm. At the time of her injury, the walk-in clinic had not yet opened and pet owners were waiting with their animals. Bowman testified that Mr. Flawau had King in the clinic that morning and that King bit her.
After Bowman was injured, she ran to her co-worker, Anna Fain, crying hysterically. Bowman told Fain that King had bitten her. Fain then took Bowman to the emergency room. On the way out of the pet clinic, Fain testified that she saw Mr. Flawau and King and that she said to him, 'Your dog will not be seen today.' Deposition of Anna Fain (Fain Dep.) at 7. On October 16, Bowman sued the Flawaus for personal injuries and damages in tort. Bowman stated that King bit her and that she has suffered resulting injury. Mr. Flawau stated that he did not recollect being at the pet clinic on February 9. He explained that he never took King to the drop-in clinic and could not have been there on February 9 because King is on a 'wellness plan' (a medical plan for pets that consists of vaccinations, examinations, teeth cleaning) and the clinic is not part of this plan. Report of Proceedings (RP) 173. He explained that he had no reason to take King to the pet clinic on February 9, because King had received vaccination shots two and a half weeks earlier, as a part of the wellness plan. Mr. Flawau also explained that he plays golf every Saturday and Sunday. He could not specifically remember golfing on February 9, but he stated that according to his pattern golfing, he could assume that he was golfing on February 9.
Mr. Flawau testified at trial that King was a very loving dog. He also testified that his entire front and side yard is fenced with a cyclone fence and that he has 'Beware of Dog' signs posted at each entrance to the fence. RP at 190.
On December 3, 2004, a jury found for Bowman and awarded her damages. Flawau then filed a CR 60(b)(3) motion to vacate judgment based on newly discovered evidence. The evidence consisted of (1) a Fort Lewis Golf Course cash receipt journal page for February 9, 2002, (2) a credit card receipt signed by Mr. Flawau on February 9, 2002 at 11:03 a.m., and (3) the Fort Lewis Gold Course golf rental sheet for February 9, 2002. The trial court denied Flawau's motion.
ANALYSIS
I. Evidentiary Rulings
Flawau raises several evidentiary challenges. Admissibility of evidence is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. State v. Brown, 132 Wn.2d 529, 578, 940 P.2d 546 (1997). An abuse of discretion occurs only when no reasonable person would take the view the trial court adopted. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). Discretion is abused if it is based on untenable grounds or is manifestly unreasonable. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
A. Exclusion of Evidence of King's Medical Report Excluded
Flawau argues that the trial court erred in not admitting into evidence Exhibit 37, King's medical report from January 19, 2002, because it showed that King was fully vaccinated and, therefore, he had no reason to be at the clinic on February 9. Bowman argues that King's health was not at issue in the case and that his medical history was not relevant.
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable. ER 401. The rule requires only a showing of minimal logical relevance any tendency to make the existence of a fact more or less probable. State v. Bebb, 44 Wn. App. 803, 723 P.2d 512 (1986), aff'd 108 Wn.2d 515, 740 P.2d 829 (1987). Evidence that is not relevant is not admissible. ER 402.
Here, the trial court admitted Exhibit 35, King's Vaccine History Report from February 16, 2004, listing the dates of King's vaccinations. The report included King's vaccinations from January 19. The trial court stated that although King's January 19 vaccinations were relevant, his prior vaccination history was not. Exhibit 37 was not admitted because, unlike Exhibit 35, it did not concern King's January 19 vaccinations and was merely a summary of King's medical history. We find no error in the trial court's ruling.
King's prior medical history was not relevant to Bowman's injury; but, the fact that he was vaccinated on January 19 is relevant. Evidence of King's January 19 vaccinations bolsters Flawau's theory that King had no reason to be in the walk-in vaccination clinic just three weeks later on February 9. There was no abuse of discretion in excluding Exhibit 37.
B. Testimony Regarding the Photographs
Flawau next argues that Exhibit 33 was improperly introduced into evidence. Exhibit 33 consisted of photographs of the Flawau's house, showing a fence around the yard and 'Beware of Dog' signs. During Mr. Flawau's cross-examination, Bowman's counsel handed Mr. Flawau the photographs marked as Exhibit 33. Flawau claims that the court erred in allowing Bowman's counsel to question Mr. Flawau regarding the photographs before Flawau's counsel saw them.
Again, we review evidentiary rulings for abuse of discretion. Brown, 132 Wn.2d at 578. If the specific grounds for objection are not clear at trial court, in order to challenge the trial court's ruling on appeal, a party must have made a timely objection to the evidentiary ruling that states the specific grounds for objection. ER 103(a)(1). We agree that Flawau's counsel should have been given an opportunity to examine Exhibit 33 before it was described to the jury. Further, Flawau's failure to object to admission of the exhibit does not operate as a waiver because the jury already had heard what the exhibit showed and an objection would have been futile.
However, Flawau has failed to demonstrate that he suffered any prejudice because the exhibit was clearly admissible to rebut Flawau's claim that King was a gentle dog. An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). While it was error for the exhibit to be described to the jury before Flawau's counsel could formulate any objections, this error was harmless.
C. Karen Flawau's Rebuttal Testimony
Flawau next argues that the trial court erred when it did not allow Mrs. Flawau to be re-called as a witness after Exhibit 33 was admitted. Flawau attempted to call Mrs. Flawau on surrebuttal, which the trial court denied. Flawau argues that the trial court committed substantial error when it permitted Exhibit 33 to be handed to Mr. Flawau during testimony and when it prevented Mrs. Flawau from being re-called on surrebuttal to the stand to rebut inferences created from the photographs in Exhibit 33.
Bowman counters that any testimony by Mrs. Flawau would have been cumulative because Mr. Flawau had already testified regarding the photographs. Furthermore, Bowman contends that Flawau agreed to dismiss Mrs. Flawau and cannot now argue it was error.
Again, we review evidentiary rulings for abuse of discretion. Brown, 132 Wn.2d at 578. An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal. Fire Prot. Dist., 100 Wn.2d at 196. This court finds no error here because Ms. Flawau had already testified about the photographs and any further testimony would have been cumulative. In addition, it must be remembered that the central issue in the case was the identity of the dog that bit Bowman and not whether that dog was dangerous. King's identity, in turn, was not established by the fact that King was one of a few vicious dogs in a world of gentle beasts; his identity was established by witnesses who knew him. Where the error is from violation of an evidentiary rule, it is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected if the error had not occurred. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). The improper admission of evidence is harmless if the evidence is of minor significance compared to the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (citing Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994)). The photographs of the Flawau's fence did not have a significant impact on the trial's outcome and we hold that there was no error.
II. Display of Deposition Transcripts During Closing Argument
Flawau argues that the trial court erred in allowing Bowman to display partial transcripts of the depositions of Anna Fain and Bowman's treating physician, Dr. Jarvis, during closing argument. Flawau contends that Bowman did not demonstrate that either Fain or Dr. Jarvis were unavailable at the time of trial and, therefore, admitting their depositions violated CR 32(a). Although Flawau arguably waived this argument by failing to object to the jury viewing the videotapes of these depositions during the trial, we will still address this issue.
Under CR 32, a deposition may be used at trial if it is admissible and if it is used against any party who was present or represented at the time of the deposition or who has reasonable notice. CR 32(a). The deposition may be used if the court finds that the witness 'resides out of the county and more than 20 miles from the place of trial,' or so long as it is the 'deposition of a health care professional, even though available to testify at trial, taken with the expressly stated purpose of preserving the deponent's testimony for trial § CR 32(a)(3) and (a)(5)(B).
The only evidence of unavailability in the record is that Fain resided more than 20 miles from the trial court at the time of her deposition. This is sufficient evidence to support a finding of unavailability. Although it is not clear that the trial court made the specific finding regarding availability, an objection that a witness is able to testify in person must be specific and must be made at the time the deposition is read; otherwise, the objection is waived. See State Bank of Clarkston v. Morrison, 85 Wash. 182, 184, 147 P. 875 (1915). Therefore, Flawau waived any argument regarding Fain's unavailability, and Fain's deposition was admissible under CR 32. Also, Dr. Jarvis's deposition was admissible regardless of his availability because he was a health care professional. CR 32(a)(5)(b).
Flawau also claims that it was error for the trial court to allow Bowman's counsel to show the jury a partial transcript of the witness's depositions during closing argument. However, it is within the trial court's discretion to allow counsel to read portions of depositions to the jury during closing argument. Taylor v. Cessna Aircraft Co., 39 Wn. App. 828, 833, 696 P.2d 28 (1985) (citing Gephart v. Stout, 11 Wn.2d 184, 118 P.2d 801 (1941)). Similarly, it is within the trial court's discretion to allow reference to deposition testimony displayed in written format. There was no abuse of discretion.
III. Relief from Judgment for Newly Discovered Evidence
Finally, Flawau argues that the three pieces of evidence he discovered after trial constituted 'newly discovered evidence' and that the trial court erred in not granting him a new trial. Appellant Br. at 27. Bowman counters that the evidence would not change the trial result, that it could have been discovered before trial, and that it was merely cumulative and impeaching. We agree with Bowman. Flawau failed to demonstrate that he exercised due diligence in seeking the evidence at trial court and it cannot be considered 'newly discovered evidence.'
We will not disturb a trial court's denial of a motion to vacate judgment under CR 60(b) on appeal unless the trial court manifestly abused its discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000) (citing In re the Guardianship of Adamee, 100 Wn.2d 166, 173, 667 P.2d 1085 (1983). A motion to vacate a default judgment is addressed to the trial court's sound discretion. United Pac. Ins. Co. v. Discount Co., 15 Wn. App. 559, 562, 550 P.2d 699 (1976). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Hutcheson, 62 Wn. App. 282, 297, 813 P.2d 1283 (1991).
Under CR 60(b)(3), the trial court may relieve a party from a final judgment for newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under rule CR 59(b). Here, Flawau has failed to demonstrate due diligence. The fact that he personally endeavored to uncover these records and encountered significant difficulties is not enough. As the trial approached, it was incumbent on him to use the legal tools available to unearth the records. Flawau had a number of options to do so, from subpoenas to depositions of golf course employees. He cannot rely on his own informal efforts in this situation. The purpose of the due diligence requirement is to make the first trial the final one. Casual attempts to secure evidence are simply not enough.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and HUNT, J., concur.