Opinion
No. 19392-6-III.
Filed: June 14, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kittitas County, No. 96-2-00276-6, Hon. Michael E. Cooper, May 22, 2000, Judgment or order under review.
Counsel for Appellant(s), Julie A. Anderson, 25 N Wenatchee Ave #106, Suite #1, Wenatchee, WA 98801.
Counsel for Respondent(s), Christopher S. Marks, Williams Kastner Gibbs, P.O. Box 21926, Seattle, WA 98111-3926.
Edward Hart appeals the court's denial of his motion for a new trial as well as the court's order granting Greyhound Lines, Inc.'s cost bill. Mr. Hart contends that the trial court abused its discretion when it refused to excuse Juror No. 24 for cause. He also claims that the trial court erred when it refused to grant him a new trial.
Finally, Mr. Hart complains that Greyhound did not follow the statutory procedure outlined in RCW 4.84.010 and 4.84.090 regarding submittal of a cost bill at the end of trial. The trial court's decision is affirmed. facts
Mr. Hart claims he was injured on March 28, 1995, as the result of a fall when he was a passenger on a Greyhound bus. He filed a timely summons and complaint against Greyhound in Kittitas County Superior Court claiming he was injured as the result of Greyhound's negligence. In its answer, Greyhound denied the allegations and asserted affirmative defenses.
The case was tried before a 12-member jury in April 2000. During jury selection, Mr. Hart's trial counsel attempted to strike four jurors for cause based on their alleged bias against Mr. Hart. The motions to strike were denied because the court did not find marital infidelity relevant to the personal injury claim. One of the four challenged jurors (No. 24) remained on the panel after all the peremptory challenges were exercised.
Although the jury found that Greyhound was negligent, it determined the negligence was not a proximate cause of Mr. Hart's injuries. Mr. Hart filed a motion for a new trial based on discovery violations, the challenge for cause issue regarding Juror No. 24 and two other juror misconduct issues. The motion was denied. Because it was successful at trial, Greyhound filed a cost bill with the court pursuant to RCW 4.84.010. The trial court granted the requested fees. Mr. Hart filed a timely notice of appeal. juror challenge for cause
Mr. Hart first claims that the trial court erred when it refused to dismiss for cause Juror No. 24. He also maintains that Juror No. 24's presence on the jury panel was prejudicial and affected the outcome of his trial. For this reason, he contends that the trial court abused its discretion when it denied his motion for a new trial. We disagree.
It is a fundamental tenet of our judicial system that inherent in the right to a jury trial is the right to have the case decided by an unbiased jury. City of Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P.2d 1332 (1989). A prospective juror must be excused for cause if the trial court determines the juror is actually or impliedly biased. Id. However, a trial court's determination that a juror is not subject to a challenge for cause, which is based upon the trial court's assessment of the prospective juror's demeanor and credibility, is entitled to considerable deference on appeal. In re Personal Restraint of Lord, 123 Wn.2d 296, 309, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994). The trial court is in the best position to judge whether a juror's answers merely reflect a lack of prior experience with the justice system or manifest a likelihood of actual bias. See State v. Noltie, 116 Wn.2d 831, 839-40, 809 P.2d 190 (1991).
When, as here, a challenge for cause based on actual bias is made, the trial court must determine whether the prospective juror's state of mind is such that he or she can try the case fairly and impartially. State v. Jackson, 75 Wn. App. 537, 542, 879 P.2d 307 (1994). Even though jurors hold preconceived ideas, they need not be disqualified if they can put those ideas aside and decide the case based on the evidence and the law. Cheney, 55 Wn. App. at 810.
Mr. Hart's attorney believed that issues surrounding Mr. Hart's divorce might become relevant to the issue of damages during trial. For that reason, the attorney decided to ask some general questions on the subject of divorce during voir dire. When the jury venire was asked if they thought they could be fair jurors if they learned that Mr. Hart had an extramarital affair, the following colloquy occurred:
MS. CARRIE L. EVESLAGE [Juror No. 24]: If it involved an extra marital affair, yeah, I would question his character.
MS. CAROL J. ALLDREDGE: I might, too.
MS. ANDERSON [Mr. Hart's attorney]: Number 9, number 24. In your view would there every [sic] be any reason that would justify the extramarital affair?
MS. CARRIE L. EVESLAGE: (Shakes head.)
. . . .
MS. ANDERSON: For any person to have any circumstances to have an extramarital affair? Any circumstances? Number 6, 18, 8, 22. How many of you think that because of your strong feelings on that issue that you could not be a fair juror in this case given the fact this is a case involving a fall on a bus? Number 24?
MS. CARRIE L. EVESLAGE: Yeah.
MS. ANDERSON: You would hold that against him even though it has nothing to do with the underlying case?
MS. CARRIE L. EVESLAGE: I think I probably would, yeah.
MS. ANDERSON: Number 21. Who else? Number 24, number 6 and number 30. I would challenge those numbers for cause.
THE COURT: Can you put aside your knowledge based upon what you heard during voir dire and base the case on the evidence that's actually presented in court? This isn't evidence here. And judge the case based upon what the witnesses say and what the issues that you'll be required to decide rather than on the issue of marriage or infidelity? Can you set aside that and judge the case fairly based on that for those who raised their hand? 6, 30, 21, and 24? Any problem with that?
MR. PATRICK FERRELL: I would continue to question his character.
THE COURT: 24, 21, still feel the same way?
MS. CARRIE L. EVESLAGE: Uh-huh.
THE COURT: 6.
MS. MANDY CATLIN: I do, also.
THE COURT: Mr. Marks.
MR. MARKS [Greyhound's attorney]: Well, Your Honor, that isn't an issue in this trial at all and it's not an issue that Greyhound was going to raise and it's really an inappropriate question with respect to the issues here.
THE COURT: I was waiting for some objection but I didn't hear any.
MR. MARKS: Your Honor, I object to the relevance of the issue. I don't think it's relevant.
THE COURT: I'm not going to grant the request to excuse for cause for this on this issue.
MS. ANDERSON: Okay.
THE COURT: This has nothing to do with this trial. You don't need to ask any more questions concerning that either.
Report of Proceedings (RP) (Apr. 4, 2000) at 67-69.
Contrary to Mr. Hart's assertion, Juror No. 24 did not say that she could not be fair and impartial. Rather, she stated that if she learned he had an affair, she would question Mr. Hart's character. Such a response does not show actual bias in a personal injury case. Furthermore, prior to the voir dire examination of the jurors the court asked the venire if there was anyone present who would not be an impartial juror and 'judge the case based upon what is presented here in court as opposed to their personal belief or bias outside of court[.]' RP (Apr. 4, 2000) at 89. No one in the venire answered in the affirmative. Then too, after the questions regarding divorce were asked the court reminded the jury that the attorney's remarks were not evidence and that the marital status of Mr. Hart was not relevant to the personal injury claim. Just prior to the opening statements, the jury was again reminded that:
It's important to the concept of a fair trial [that] all matters having to do with this case come to you directly in court. Keep your minds free of any outside influence so that your decision in this case is based entirely on the evidence presented during the trial and the court's instructions on the law of the case . . . The concept of a fair trial is easy to talk about and probably even easy to imagine. It takes a concerted and substantial effort on everybody's part, however, to make sure that it happens. So keep your minds open and don't decide any issues in this case until the entire case is submitted to you for your deliberations. You are officers of the court now and you must act impartially with a[n] e[a]rnest desire to determine and declare a proper verdict.
RP (Apr. 4, 2000) at 82-83. A jury is presumed to follow the court's instructions. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).
Mr. Hart's marital status was not mentioned at trial. A careful review of the entire jury selection process shows that, at most, Juror No. 24 exhibited a possibility of bias, which is an insufficient basis for finding that the trial court abused its discretion. Noltie, 116 Wn.2d at 840. The trial court observed her demeanor and credibility, and concluded that actual prejudice was not established. We defer to that decision. For the same reason, the trial court's denial of the motion for a new trial based on the alleged prejudicial effect Juror No. 24 had on the panel was not an abuse of discretion. cost bill
Mr. Hart also asserts that the trial court erred when it approved Greyhound's cost bill at the conclusion of trial. Cost awards are within the discretion of the trial court. An appellate court will not overturn the trial court's ruling as to costs unless it has abused its discretion. Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 41, 785 P.2d 447 (1990). 'Costs have historically been very narrowly defined, and RCW 4.84.010 limits cost recovery to a narrow range of expenses such as filing fees, witness fees, and service of process expenses.' Hume v. Am. Disposal Co., 124 Wn.2d 656, 674, 880 P.2d 988 (1994).
Mr. Hart contends that this court should deny all costs (1) that do not fall within the definition of costs in RCW 4.84.010; (2) that are not detailed by affidavit as required by RCW 4.84.090; and/or (3) that were not admitted into evidence by Greyhound, as required by RCW 4.84.010(5). Specifically, he complains that the cost of the jury demand is not recoverable. He also asserts that no evidence was provided that many of the defense witnesses reported their attendance and mileage to the clerk as required by RCW 4.84.090. Mr. Hart claims that Greyhound should have submitted invoices of the costs of certain documents so he could check the accuracy of the charges. He also claims that Greyhound did not admit into evidence at trial certain documentary evidence for which Mr. Hart was billed. Finally, Mr. Hart maintains that the costs of the documentary evidence actually admitted at trial should have been billed on a pro rata basis.
The right to recover costs is wholly a matter of statutory regulation absent an agreement concerning costs between the parties. Ernst Home Ctr., Inc. v. Sato, 80 Wn. App. 473, 491, 910 P.2d 486 (1996). Costs are defined by RCW 4.84.010 to include specific fees expended by the prevailing party. Items that are allowable as costs are specified in RCW 4.84.010 and 4.84.090 and include: (1) filing fees; (2) costs of service of process; (3) notary fees; (4) costs of reports and records as evidence; (5) statutory attorney fees; (6) statutory witness fees; (7) costs of transcription of depositions used at trial or arbitration; and (8) costs otherwise authorized by law. See 15 Lewis H. Orland Karl B. Tegland, Washington Practice § 452 (5th ed. 1996). Costs have historically been very narrowly defined to include such expenses as filing and witness fees, and service of process expenses. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 743, 733 P.2d 208 (1987).
The determination of a fee award should not be an unduly burdensome proceeding for the court or the parties. Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841, 848, 917 P.2d 1086 [ 905 P.2d 1229] (1995). As long as the award is made after considering the relevant facts and the reasons given for the award are sufficient for review, a detailed analysis of each expense claimed is not required. Id. From the information we were given to review we are satisfied that the court did not abuse its discretion when awarding costs.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: KURTZ, C.J. KATO, J.