Canterino v. the Mirage Casino-Hotel

42 P.3d 808, 118 Nev. 191

• Court: Nevada Supreme Court
• Decided: March 19, 2002
• Docket: 30659
• Status: Published

Opinions

OPINION ON REHEARING

By the Court,

Young, J.:

On January 29, 2001, we issued an opinion affirming in part and reversing in part a district court order granting a new trial in this personal injury action, and remanding for a new trial on the issue of damages only. We subsequently granted respondent’s petition for rehearing, and we now modify our previous opinion and remand for a new trial on the issues of both liability and damages.

The circumstances of this case are fully set forth in Canterino v. The Mirage Casino-Hotel.¹ In brief, Joseph Canterino sued the Mirage Casino-Hotel for damages after he was beaten and robbed in the hotel, and the jury awarded him more than five and one-half million dollars. The district court found the award excessive, reduced it to one and one-half million dollars and issued a conditional order of remittitur. Canterino rejected the remittitur, and the district court ordered a new trial. Canterino appealed, seeking reinstatement of the jury award. We concluded that a new trial on the issue of damages was necessary because the district court erred by instructing the jury, ex parte, that the two jurors who voted against finding the Mirage liable could not participate in the damage award determination. We limited the scope of the new trial to the issue of damages.

We granted rehearing for the limited purpose of considering whether the new trial should encompass the issue of liability as well as the issue of damages. In our previous opinion we quoted Perkins v. Komarnyckyj,2 an Arizona Supreme Court decision, in support of our decision that all jurors must participate in all jury deliberations. However, we did not follow Perkins’ holding that all issues must be retried on remand following an erroneous ex parte jury instruction that damages should be decided only by the jurors who agree on liability. Instead, we concluded that only the damages portion of the jury verdict was flawed by the district court’s erroneous instruction in this case. Having reconsidered the matter, we conclude that Perkins’ holding that all issues must be retried is the better-reasoned decision.

In Perkins, a patient sued his dentist and his periodontist for malpractice, alleging that they failed to diagnose a squamous cell carcinoma in its early stages and that the resulting delay in treatment significantly reduced his chance of survival.³ The patient died during the jury trial, and the complaint was amended to an action for wrongful death, with the patient’s survivors substituted as plaintiffs. During deliberations, the ten-person jury sent the judge some written questions. The judge provided the jury with written answers, without informing the parties that the jury had asked questions or consulting them regarding the proper answers.⁴ One question was particularly important; the jury asked: “If any jurists [sic] should find for the defendants, should those jurists take part in the determination of the percentage of liabilities and damages?” The judge responded that “[t]he jurors who agree on liability are the ones who should fix damages and sign the form of verdict.”⁵ The jury returned a verdict in favor of plaintiffs; eight jurors found against both defendants and two jurors found in favor of both defendants. The jury decided that the plaintiffs’ damages totaled $1,098,054, and that the dentist was 67% at fault, the periodontist 33% and the patient 0%.⁶

On appeal, the court of appeals ruled that the trial court erred by answering the jury’s note without notifying the parties and by instructing that the jurors who voted against the defendants’ liability were not to participate in the deliberation of the remaining issues. The court of appeals affirmed the judgment on liability, since all jurors had participated in that determination, but reversed the damages award and remanded for retrial on the damages issue alone.⁷

The Arizona Supreme Court granted review to determine whether the entire judgment must be reversed and remanded when the trial judge communicates ex parte with jurors, and erroneously directs those jurors who voted in favor of the defendants on liability not to participate in deciding damages, or whether the case was properly remanded for retrial on the issue of damages alone.⁸ We are faced here with precisely the same question.

The Arizona Supreme Court decided that the entire judgment must be reversed. Specifically, the court concluded that “the judge’s error was inherently prejudicial, and no further showing is needed to require reversal, remand, and retrial on all issues.”⁹ In reaching this conclusion, the court observed that a jury’s decision on an issue is not final until the jury’s verdict is submitted to and accepted by the trial court.¹⁰ The court explained:

[U]ntil they return the verdict, the jury may decide again and again to reconsider one or all of the issues in the case. For example, a jury might vote that both defendants in a tort case are liable, and then later, in the course of allocating percentages of fault or fixing damages, conclude that one defendant was not really liable at all. Consequently, we do not and cannot know or assume that at any point in the deliberations, a majority of the jury unalterably concluded that Defendants were liable for [the patient’s] death. Defendants were deprived of their right to have all of the jurors participate in deciding all of the issues.¹¹

The Arizona Supreme Court’s observations closely parallel this court’s oft-repeated observations about the impermanent nature of a judicial decision before it is reduced to writing and filed by the court clerk. For example, in Rust v. Clark County School District,¹² we noted that until the entry of a final judgment; the district court remains free to reconsider and issue a written judgment different from its oral pronouncement; thus, only a final judgment has any effect and only a final judgment may be appealed. We agree with Perkins’ reasoning that a jury’s decision is similarly impermanent until it has been submitted to and accepted by the trial court; and we adopt Perkins ’ holding that an erroneous ex parte instruction excluding jurors who disagreed on the liability issue from deciding the damages issue requires a new trial on all issues.

We therefore modify our previous opinion regarding the juror participation issue, and we remand for a new trial on all issues.¹³

Becker, J., and Gibbons, D. J., concur.

1 117 Nev. 19, 16 P.3d 415 (2001).

2 834 P.2d 1260 (Ariz. 1992).

3 834 P.2d at 1261.

4 Id.

⁵

⁶

7 Id. at 1262.

⁸

9 Id. at 1264.

10 Id. (citing Ralston v. Stump, 62 N.E.2d 293, 294 (Ohio Ct. App. 1944) (“Until the conclusion of the jury is submitted to and accepted by the court, it is nothing more than a tentative agreement among the jurors, subject to revocation or change at any time before such submission and acceptance.”), and 75B Am. Jur. 2d Trial § 1752, at 521 & n.95 (1992)).

¹¹

12 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987).

13 The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this matter. The Honorable Michael P. Gibbons, Judge of the Ninth Judicial District Court, was designated by the Governor to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const, art. 6, § 4.