Roundy v. Staley

JACKSON, Judge

(concurring in result):

¶ 19 I agree with Judge Greenwood that we should reverse and remand for a new trial. However, I would reach that result using a somewhat different analysis.

¶20 Instead of primarily focusing on the presumed motion to order disclosure, I would reverse based solely on Roundy’s challenge to the trial court’s denial of her motion for a new trial because of “[ajccident or surprise, which ordinary prudence could not have guarded against.” Utah R. Civ. P. 59(a)(3). My analysis would eliminate the need to evaluate issue preservation and to state the multiple standards of review found in the main opinion.

¶21 Even if Roundy did not specifically object during trial regarding the issue of unfair surprise, she raised it in her motion for a new trial. In denying the motion, the trial court considered the issue on the merits. “Because the court considered the alleged error rather than finding it waived, [Roun-dy’s] right to assert the issue on appeal was resuscitated.” State v. Seale, 853 P.2d 862, 870 (Utah 1993).

¶ 22 The main opinion correctly identifies abuse of discretion as the standard of review for the denial of a motion for a new trial, then ably analyzes the law vis-a-vis the facts of this case to establish that there was a harmful surprise at trial that Roundy’s “ordinary prudence could not have guarded against.” Utah R. Civ. P. 59(a)(3). Based on that analysis, I believe that the trial court abused its discretion in denying Roundy’s motion for a new trial.