Maltby v. Cox Const. Co., Inc. , 1979 Utah LEXIS 900 ( 1979 )

CROCKETT, Chief Justice

(concurring with reservation).

I concur, but add the following comments. The main opinion stresses the thought that while incompetence of counsel may be a ground for nullifying a judgment in a criminal case, it has not been done and therefore should not be done in a civil case. The statement seems too broad and inclusive. The purpose of all court proceedings is, of course, to do justice. If the processes have so clearly gone awry that an injustice has resulted, the court in charge of the trial, or this Court on review, should rectify such an unfortunate occurrence, whether the proceeding is criminal or civil.

In so saying, I am aware that it is generally said that mistake, error of judgment or negligence of counsel in presenting or defending a case is not sufficient cause of vacating a judgment and granting a new trial.¹ However, consistent with the principle stated above, it has been held that, under exigent circumstances, incompetence or negligence of counsel which appears to have resulted in an injustice, will justify the granting of a new trial.² It is therefore my view that in determining whether relief should be granted the matter of critical concern should not be as to the nature of the proceeding, but whether there is such a strong likelihood that an injustice has resulted³ that good conscience requires it to be remedied.

It is further pertinent to observe that it is not necessary to announce any such broad rule as does the main opinion. This is so because, as the opinion indicates, the plaintiff did not demonstrate that there was a reasonable likelihood that the verdict would have been different. In that connection, any question as to the competency of plaintiff’s trial counsel was properly addressed to the trial court; and his denial of the motion for a new trial should be affirmed in the absence of a showing of abuse of discretion.⁴ The opinion is therefore correct in concluding that the plaintiff “has not shown prejudicial error . . . which would warrant a new trial.”

HALL and STEWART, JJ., concur in the views expressed in the concurring opinion of CROCKETT, C. J.

1 . 66 C.J.S. New Trial Section 82b.

2 . Garrett v. Osborn, 164 Colo. 31, 431 P.2d 1012 (1968).

3 . Id. at 1013.

4 . See Hetrick v. Dame, Colo.App., 536 P.2d 1153 (1975).