Fleming v. MacKenzie River Pizza Co

No. 05-455
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 174N
CHRISTY FLEMING,
Plaintiff and Appellant,
v.
MacKENZIE RIVER PIZZA COMPANY,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 03-396
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Norman H. Grosfield; Utick & Grosfield, Helena, Montana
For Respondent:
Calvin J. Stacey; Stacey & Funyak, Billings, Montana
Submitted on Briefs: May 23, 2006
Decided: July 25, 2006
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Christy Fleming appeals from the judgment entered by the Eighteenth Judicial District
Court, Gallatin County, awarding $2,569.66 to defendant MacKenzie River Pizza Company
(MacKenzie) based on a jury verdict of $6,462.66 in Fleming’s favor—comprising $1,462.66
in medical expenses and $5,000 for pain and suffering—and a prior $9,032.32 payment by
MacKenzie to Fleming. We affirm.
¶3 Fleming first asserts the jury’s failure to award damages for loss of ability to pursue an
established course of life requires reversal because she presented uncontroverted and credible
evidence that she had a diminished sense of taste after ingesting a substance containing
bleach at a MacKenzie restaurant. MacKenzie responds that the jury was instructed that, if it
found Fleming had been permanently injured or would continue to suffer in the future from
her injuries, it could award damages for loss of ability to pursue an established course of life.
MacKenzie argues the jury decided not to award damages in that regard based on the
evidence and its credibility determinations.
¶4 Fleming also asserts the District Court committed reversible error by allowing
MacKenzie’s counsel to cross-examine her about a medical note dated April 29, 2001, which
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MacKenzie’s counsel apparently obtained—along with other unspecified documents—from
defense counsel in another case involving Fleming. Fleming argues the note was not entered
into evidence and was improperly obtained.
¶5 The record reflects Fleming did not contemporaneously object to the questions posed
by MacKenzie’s counsel about the note. The next morning, outside the presence of the jury,
Fleming raised issues regarding the note and other documents. The District Court ruled that
counsel would not be precluded from questioning a witness about a document that had not
first been introduced as an exhibit, but “no document will be used in this trial unless it has
been provided in discovery.” Fleming does not assert opposing counsel improperly
questioned a witness regarding any of the challenged documents after the court’s ruling. She
does maintain, however, that opposing counsel improperly referred to the note during closing
argument—although she did not object during MacKenzie’s closing. Fleming’s citation to
the transcript leads to something other than a closing argument; however, MacKenzie’s
counsel did refer to the other case in his closing. The record does not specifically reflect
which documents Fleming asserted were improperly obtained and used during trial, but it
appears that a November 24, 2001 medical record mentioned by MacKenzie’s counsel during
closing was available during a pretrial deposition and, in any event, counsel stated that it
“[h]ad nothing to do with this case.” MacKenzie’s counsel also referred to an allegation of
fatigue in the other case’s complaint. Fleming did not object to references to the complaint at
trial and, on appeal, apparently concedes the complaint was properly referenced as a public
document.
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¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that this appeal is without
merit because there was substantial credible evidence to support the jury’s findings and
credibility issues were within the jury’s province, Fleming waived the issue regarding the use
of documents during cross-examination by failing to object, and the assertion regarding
opposing counsel’s closing argument is unsupported by the record.
¶7 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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