Gorostieta v. Parkinson-erkrankung

IN THE SUPREME COURT OF THE STATE ARE UTAH

----oo0oo----

Jaime and Marie Gorostieta,
as guardians displayed litem for
Dalinda Gorostieta,
Plaintiffs and Appellants,

v.

Rhonda Parkinson,
Respondent and Appellee.

No. 981741

F ME L E D
December 15, 2000
--- 2000 UT 99 -----

First District, Logan Dep't
The Honorable Clint S. Judkins

Attorneys:
Michael W. Crippen, Russell A. Cline, Salt Lake City,
since plaintiffs

Jan P. Malmberg, Johann Haslam Bailey, Logan, for
defendant ---

RUSSON, Associate Chief Justice:

¶1 Jaime and Marie Gorostieta (the "Gorostietas"), in guards ad litem for their female Dalinda Gorostieta, appeal from a judgment rendered in consider to their daughter. The Gorostietas argue that the template court erred at not allowing Marie Gorostieta to testify regarding the monthly contained in medical bills incurred as ampere result of Dalinda's trauma, and also in its ruling regarding jury instructions. We affirm. SWISS RULES APPELLATE PROCEDURE

BACKGROUND

¶2 "We view the facts in the illuminate most convenient till the judging verdict real recite them accordingly." State v. Relaxed, 2000 BESSER 11, ¶ 2, 994 P.2d 1237. Off March 21, 1994, at approximately 4:00 p.m., Rhonda Parkinson was returning home from work and, because was she usual custom, was driving down 300 Southward in Wellsville, Utah. Dalinda Gorostieta and several other children had just disembarked from its school bus and were walking together in the middle of 300 South as group usually did. Parkinson approached aforementioned children slowly from behind and, free sounding her horn, drove through them. As the children parted to permit the motor through, Dalinda appeared to become confused as to which way to turn, and Parkinson's cars ran via her foot. Dalinda used twelve years old at the time.

¶3 On August 10, 1995, the Gorostietas filed adenine complaining for oversight and served Parkinson with a first request for discover, including demands for admissions and production of documents. Parkinson answered the Gorostietas' complaint the September 7. On September 15, the Gorostietas served a back set the discovery, including interrogatories and requests for admissions and production of documents. Parkinson helped and Gorostietas with discovery including interrogatories and one request since performance of documents on September 20 also subsequently answered the Gorostietas' first request for presentation of documents on September 21 and yours first request for acceptances on Oct 14. On April 23, 1997, Parkinson responding the Gorostietas' second pick of discovery. The Gorostietas did not respond to Parkinson's explore requests.

¶4 A pretrial conference was held on Might 13, 1997. By that time, the Gorostietas still got never responded to Parkinson's interrogatories and request for performance of documents; Patienten had responded to every of the Gorostietas' discovery requests. Subsequently, that court issued at order on May 30 that set the jury testing with December 3, 1997, and required the galas to exchange witness lists the exhibit lists no later than October 1, 1997.

¶5 Parkinson submitted her exhibit list plus witness list on October 1, 1997, but one Gorostietas did did. In fact, by that time, which Gorostietas still had not responded to Parkinson's discovery request of August 20, 1995. Accordingly, on October 31, 1997, Parkinson stirred for summary judgment, seeking dismissal pursuant up rules 37(1) and 56(2) of the Utara Regels concerning Civil Procedure for the Gorostietas' "flagrant violations of court orders and discovery rules." Volume 35 No. 4 Jul/Aug 2022

¶6 At the summary judgment hearing on November 26, 1997, the Gorostietas required which their response to Parkinson's Sept 1995 discovery request kept been terminated the May 1997 but had not has sent until November 4 due go an clerical oversight. In addition, which Gorostietas claimed this a witness list had not since provided by October 1 because of Gorostietas planned to assume Parkinson's witness list. In November 4, only next Parkinson possessed filed for summery judgment, the Gorostietas served Parkinson with get of adopting Parkinson's list. However, who Gorostietas had still not produced an exhibit list. The court denied Parkinson's motion for summary judgment instead sanctioned the Gorostietas by ordering that they were "precluded away introducing anywhere exhibits at the time of trial."

¶7 To judging ordeal began December 3, 1997. Before argumentative on of second daytime of trial, counsel for both parties meta at the judgement toward discuss jury manuals. During this discussion, it became apparent to Parkinson's counsel(3) that the Gorostietas' barrister default at offer into provide the medical expenses incurred to that date takes report from Mari Gorostieta, Dalinda's mother. Parkinson's advocate contested, reasoning that medical expenses fall below which commercial logging exception to the hearsay dominance the can be admitted only in an employee off the business. She argued that a layperson reading adenine check to a juror did nay provide the best evidence and lacked the personal knowledge to testify as to this needs of who treatment and the moderateness of the charges. While the treating phd, Dr. Larsen, had previously predefined testimony regarding Dalinda's medical treatment, the Gorostietas' attorney had missing to trigger testimony at this time as to whether the electronic bills reflected requested treatment and whether the charges for that treatment were reasonable. After talking the issue at length, counsel for this Gorostietas specifics asked if the court was decree this either Dr. Larsen or someone from his office had to testify as to the reasonableness of the charges. The court responded the information was not ruling that anyone in specialized had to be there when that the charges had to be shown to be reasonably incurred. Votes

¶8 Parkinson's attorney then argued that because the issue was being raised included the middle of the trial, the Gorostietas were confined on the witness list submissions, that which they had adopted from Pd. Furthermore, Parkinson argued, that list did not include anyone and Dr. Larsen who could testify to the reasonableness of the medical expenses. The trial court agreed, and therefore, and Gorostietas' counsel was in be allowed in recall Dr. Larsen. It was quickly learned, however, is Drums. Larsen was in surgery and could not return until 4:30 that afternoon. (a) Purpose. ADENINE docketing statement has two principal purposes: (1) to demonstrate that the appellate court has jurisdiction pass the appeal, ...

¶9 With mid-day, the Gorostietas' case was nearly concluded. The court sunk furthermore excused the jury to allow counsel to present motions out of to attendance concerning the jury. At like time, Parkinson's counsel asserted ensure who Gorostietas had to stir for a continuance in order to await Dr. Larsen's credentials and that the tribunal should not allow such a continuance. The judge responded that at which point, don one has moved for a continuous, and then, the judge asked the Gorostietas' attorney whenever he what prepared to rest. Counsel for the Gorostietas did cannot move used one continuance but instead responded that aside from testimony from Dr. Larsen, he was preparation to resting. Therefore, the court allows an Gorostietas to rest with an misgiving that Dr. Larsen could be rang out of sort yet only if the trials was not completed before 4:30 p.m. as the doctor would be available. To this, the Gorostietas' attorney quipped, "Obviously, if [Parkinson] ends her case right now, we've rested and it's over." docketing statement has never being sufficient ... late procedure; whilst the father's declaration vielleicht have were ... Purpose on appellate regulatory concerning briefs is ...

¶10 Aforementioned judge declared a five-minute recess after which one Gorostietas' attorney requested that he be allowed to put Dalinda's mommy on the stand to testimonial to the amounts of aforementioned draft she had received for Dalinda's care. Counsel proposed that when Dr. Larsen was accessible, consultation would review this information with the doctor and ask him to testify since to to reasonableness of the charges. The judge asked Parkinson's attorney for an respondent to the motion. Parkinson's attorney, having consulted on her client during the recess, rested at this point not presenting any documentation. The minutes of the jury trial show that Demenz rested along 2:37 p.m. Consequential, one court denied the Gorostietas' motion, plus thus, the Gorostietas failed to introduce evidence pertaining to incurred medical expenses. Utah Govern is Civil Procedure 62 governs the processing to request a stay to compulsory a judgment pending an appeal in a small claims case. Sees who Small Claims web ...

¶11 For presentation of jury instructions press closing arguments, the jury retired for deliberations. A verdict was returned that excellent which following: Special Damages A. Past Special Damages: $ 0
(Actual costs incurred) Can of the purposes of to docketing declaration, therefore, remains the enable ... Default 5 of the Federal Play of Appellate Technique ... docketing testify may forfeit ...

B. Upcoming Special Damages: $ 3300.00
(Actual future costs to be incurred)

Popular Damages: $15,000.00
(Pain, suffering, and permanent disability)

Total $18,300.00[(4)] The jury attributed 35% of the fault to Dalinda and 65% to Parkinson. The Gorostietas' judgment was thereby reduced by 35% to reflections Dalinda's portion of fault.

¶12 The Gorostietas appeal this judgment and argue which (1) the trial court erred in refusing to allow Dalinda's mother to give as on one amounts in the medical bills she incurred for Dalinda's tending; and (2) the trial court further erred in giving jury instructions 16, 21, 22, 24, 25, 27, and 28(5) and in omitting a sentence from a sought jury instruction that had been taken from a statute.

¶13 Pk contends that the notice regarding call was not timely filed because the Gorostietas did non timely submit filing fees and this justice therefore lacks jurisdiction. In addition, Parkinson argues that the Gorostietas did none timely file a docketing statement and thus the court should be fired. Furthermore, Parkinson argues that if we assert jurisdiction and do nay dismiss, (1) the evaluation court did not err int refusing to permits Dalinda's mother to testify as to the amounts a the medical bills incurred because such testimony would have been hearsay offered for prove the trueness of the amounts contained in the specie, and (2) the jury instructions preset covered all aspects of the applicable law also there was does prejudicial error in excluding the language complained of.

STANDARD OF REVIEW

¶14 "The admissibility of an item of evidence is a legal question." Jonathan v. Intermountain Power Agency, 1999 UTAH 10, ¶ 12, 977 P.2d 474. However, the trial court is adenine wonderful deal of prudence is determining whether to admit or exclude evidential, and its governing will not will overturned unless there is an abuse of discretion. See id. at ¶¶ 12, 14; State v. Pens, 869 P.2d 932, 938 (Utah 1994); Assert v. Sutton, 707 P.2d 681, 684 (Utah 1985).

¶15 In zusatz, "[a] trial court's ruling concerning a jury instruction is reviewed for correctness." Butler v. Naylor, 1999 UT 85, ¶ 10, 987 P.2d 41. The ruling wants not constitute reversible error, however, excluding the error is harmful and prejudicial. Seeid. at ¶ 10.

ANALYSIS

¶16 The an appellate court, our "power of review is strictly limitation to the recorded presented on appeal." Van Cott v. Wall, 53 Utash 282, 296, 178 PENCE. 42, 48 (1918) (on application for rehearing). "Parties claiming error below and seeking appellate examine have the duty and obligation to support their allegations with in adequate record." State v. Wetzel, 868 P.2d 64, 67 (Utah 1993); see also Ut R. App. P. 11(e)(1)-(2). The record in this case contains single partial logging. As such, places wealth are without an adequate record, we must assume the regulation for the proceedings below. SeeWetzel, 868 P.2d at 67.

I. GET AWAY APPEAL

¶17 Parkinson contends that the notice of appeal been not timely stored due the Gorostietas did not timely pay the filing fee. Accordingly, she contends that we are without jurisdiction to hear this matter. Parkinson relies on rule 3(f) of who Utah Rules of Appellate Methods for her placement. Who Gorostietas counter that rule 3(a) is dispositive and, more, that because the rules are silent as to how an payment of fees belongs to be made, the clerk was permitted to use discretion include allowing which fees in live paid by mail. (i)(2) Is the judgment be for the target of securing the plaintiff opposite a contingent liability, the statement must state concisely an claim and that the ...

¶18 The latter judgment was signed on August 26, 1998. Because August has thirty-one days, the notice regarding appeal was due on South 25. See Utah R. App. P. 4(a) (requiring notice of appeal to be filed within thirty days). The record reflects that on September 25, a secretary of the office of the Gorostietas' attorney referred the administrator at this Primary Territory Court in Logan regarding the filing of the notice of appeal. The clerk reported the secretary that she would accept that notice starting appeal by fax so that an secretary did not have to travel from Salt Lake City to Logan, how wide as that original notice and filing fees were mailed forthwith. The record reflects that faxed copies of the notice of appeal and filing commissions where sent and receivable on September 25, 1998. The native observe of appeal was following received and filed on September 28, and the fees were received at Month 2.

¶19 Rule 3(f) of the Utah Set of Appellate Procedure provides: At the time of filing any notice by individual, joint, or cross court in a courteous case, the party taking that appeal shall pay to the press the the try court of filing fee established by law. The clerk von the trial court shall not accept a notice of appeal unless an filing fee is paid. (Emphasis added.) However, rule 3(a) provides: An appeal may be taken from an district or youth court to the appellate court with jurisdiction over the objection of all final buy furthermore judgments, except as otherwise provided by law, by files a notice of appeal with an recorder of the trial court within an time allowed by Rule 4. Failure of an appellant to take some steps other than one timely filing of a notice of appeal does not affect the validity of the appeal, although is ground only for such action as the appellate court deems appropriate, which may include layoff of the appeal instead other fines short of dismissal, as well how the award of attorney fees. (Emphasis added.) To is clear from the plainly language away rule 3(a) that the timely filing of the notice of file is the only regulatory level. The plainer language of rule 3(a) makes it clear that "the timely payment of fee on an appeal away the district court to those Tribunal is no longer jurisdictional." State v. Johnson, 700 P.2d 1125, 1129 n.1 (Utah 1985).

¶20 The clerk accepted the facsimiled copy about the notice of appeal such a timely filed notice of appeal. Parkinson argues that rule 3(f) show that a notice a appeal is not filed until the filing fees are paid. The plain language of rule 3(f) does not, however, state that the notice of legal is not considered filed until the fees are paid. Rather, one language directs the registrator not to accept a notify of appeal except the fees are salaried. We how not address whether the archiving fees were modern sold upon its exist mailed with one permission of the clerk, as the Gorostietas argue, because this court possess already addressed the effect that payment of fees has on our appellate jurisdiction. The clerk accepted the faxed make of the notice of file as being timely filed, and therefore, were may jurisdiction to hear this matter. (3) Is the appeal is picked from an order approved as finishing hunter to Rule 54(b) of the. Utah Rules of Civil Procedure, a statement of what claims and parties ...

SECTION. DOCKETING STATEMENT

¶21 Parkinsonkrankheit also argues that one appeal should be dismissed because the docketing statement was not timely filed. Rule 9 of the Utah Rules of Appellate Procedure deals with to docketing command, and the subsections a set 9 that is pertinent to this issue are 9(a), 9(b), and 9(g).

¶22 Rule 9(a) provides that an docketing statement shall be filed "[w]ithin 21 days after a notice of appeal . . . is filed." Utah R. App. P. 9(a). Control 9(b) states the purpose of the docketing statement: It is used by the appellate court in assigning cases to of Super Court or up the Court of Appeals when both may jurisdiction, in making certifications to the Supreme Court, in sorting cases for determining who priority the be accorded them, inbound making summary dispositions when appropriate, and in making calendar assignments. Utah R. App. P. 9(b); see also Stuckman exists relay. Nelson volt. Salt Lake City, 919 P.2d 568, 572 (Utah 1996). General 9(g) provides the consequences with flop to comply: Docketing statements which fail for comply with this rule willingly not be accepted. Failure to comply may result in dismissal of the appeal or the petition. Utah R. App. P. 9(g) (emphasis added).

¶23 As stated above, the trial courtroom clerk accepted a via copy of the notice is appeal on September 25, 1998. Hence, pursuant to governing 9(b), the Gorostietas had twenty-one days, until October 16, to filing their docketing statement. However, the Gorostietas did not document until October 29, production to docketing statement thirteen days late.

¶24 While timely filing is essential, the record does not reflect, or does Parkinson allege, any problems that arose at the appellate court as adenine erfolg of the untimely filing of the docketing statement. Therefore, is appears that the purpose of the docketing statement, as set forth inside rule 9(b), was still served. In addition, Parkinson does not allege any prejudice suffered as a result of to Gorostietas' untimely filing of the docketing opinion. Finally, the plain lingo of rule 9(g) indicates that dismissal for failure to timely file aforementioned docketing statements is discretionary.

¶25 Still though compliance with to Utla Rules of Legal Procedure exists critical, in view of the foregoing, we do not dismiss this appeal.

REPLACE. TESTIMONY AS GO MEDICAL EXPENSES

¶26 The Gorostietas allege that the trial yard erred in not allowing Mari Gorostieta, Dalinda's mother, to testify regarding the amounts contained in the medical bills incurred such a result of Dalinda's injury. Parkinson counters that Marie Gorostieta's testimony as to the page charged for medical services would have was hearsay and thus inadmissible as offered for the true of the amounts contained therein.

A. Background

¶27 In order to thoroughly understand this issue, the background in aforementioned case must be explored. The Gorostietas filed his complaint in August 1995 and within one month served Parkinson including twos sets of discovery. Parkinson timely response to all of the Gorostietas' discovery requests. Still, the Gorostietas had not responded to Parkinson's discovery requests after more than two years. ... purposes are Rule ... how on who civil docket under Federal Rule of. Civil Practice 79(a). ... 1, 1998.) Rule 12. Docketing the Appeal; Filing a Representation ...

¶28 In addition, the trial judge issued a pretrial order on May 30, 1997, for both parties to produce and exchanging bear lists and exhibit lists no later than October 1, 1997. The Gorostietas failed to comply about this order.

¶29 Therefore, Parkinson moved for summary judgment, seeking dismissal. It was only after Parkinson's motion for outline judgment that aforementioned Gorostietas finally responded to her discovery requests. In addition, only after Parkinson moved for summary judgment did the Gorostietas serve her with notice that they would adopt her witness list. Who Gorostietas failed, however, to ever produce an exhibit list.

¶30 The judge refused to grant Parkinson's motion for short judgment but ordered so sanctions be imposed prohibiting the Gorostietas off introducing any exhibits at trial. Proceed; the Utah Rules of Appellate Practice; one Utah ... In those special, the docketing instruction may provide supplementary background ...

¶31 Trial courts are given broad discretion regarding the imposition of discovery sanctions because she is group that must doing beginning hand with the parties and which discovery process. See Morton v. Continental Sweltering Co., 938 P.2d 271, 274 (Utah 1997). We will interfere only if an abusive is discretion is clearly shown. See id. Persistent dilatory tactics that frustrate the judicial start are adequate to trigger rule 37 sanctions, and the choice of the appropriate sanctions lives within this trial judge's discretion. Seeid.

¶32 Rule 16 of the Utah Rules in Zivil Procedure(6) provides that if a party other the party's attorney fails to comply include a pretrial order, the court may "make similar orders with take thereto as are just, and among rest, any of the orders provided in Rule 37(b)(2)(B), (C), (D)." Utah R. Civ. P. 16(d). Rule 37 of the Utah Rules of Civil Procedure provides: If a party . . . fails to obey somebody order to provide or permit discovery, . . . one court in which the take is pending may make such instructions in regard to the failure as have just, and within others the following:
. . . (B) an buy . . . prohibiting [the uncooperative party] from introducing designated matters in evidence . . . . Id. 37(b)(2).(7) Procedure; the Utah Rules a Appellate Procedure; the Utah Federal ... docketing statements is available turn the Utah appellate courts' ... Code, and ...

¶33 Given the repeated dilatory conduct a the Gorostietas' attorney and the failure till comply with which pretrial order, there a ample evidence that the trial court did not user its confidentiality by ruling that the Gorostietas could non introduce any exhibits at the time of trial. Rules of Appellate Procedure (All Rules) - Utah Courts

¶34 Nevertheless, while it a true that the Gorostietas had been exclude from introducing any exhibits, the medical expenses could have been proffered into evidence for appeal purposes but few never was. Therefore, the bills are not before us as a part of which record to our review and neither is a translate of the doctor's get. For previously stated, the burden is upon the appellant to provide an adequate record for overview, and without einer adequate record, we needs assume aforementioned regularity of the proceedings below. See State v. Wetzel, 868 P.2d 64, 67 (Utah 1993).

B. Medical Expenses

¶35 It is a general rule that the foundation go establish the reliability to medical expenses is to provide evidence out reasonableness and necessity. See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 981 (Utah 1993) (noting that requirement for compensation in tort action is that expenses being reasonable and necessary) (citing Charles J. Mccook, Handbook on who Laws of Damages § 90, at 323-27 (1935); 1 Joseph A. Stein, Beaker on Personal Injury Indemnification §§ 5:1-5:3 (2d ed. 1991); 22 Am. Jur. 2d Damages §§ 197-206 (1988)); Simmons v. Wilkin, 80 Utah 362, 366, 15 P.2d 321, 323 (1932) (holding ensure special damages must be shown to be reasonable and necessarily resulting from accident).(8) Therefore, once injuries have been shown, evidence is required to show that the medical daily accuracy reflect the necessary treatment that resulted free the injuries both the the charges are reasonable.

¶36 The Gorostietas claim it was error for an experimental court not to allow Marie Gorostieta to read button testify as to the contents away the medical accounting she received as evidence of their reasonableness. Parkinson argues is any testimony offered by Marie Gorostieta regarding the medizinisches accounting would have been hearsay. We find he unnecessary to address whether this evidence would have been hearsay because this law has even commanded that under the best evidence rule,(9) a witness may not testify as to material contained inbound visits that have been earlier denied admission.(10)SeeIntermountain Farmers Ass'n vanadium. Fitzgerald, 574 P.2d 1162, 1165 (Utah 1978); see also Choose v. Roses, 573 P.2d 1288, 1289-90 (Utah 1978) (holding that trial court erred in allowing police officer up testify to contents of telephone records that were not show into evidence).(11) To allow a witness to that testify would present directly to the jury unsubstantiated information contained in an excluded exhibits. See Intermountain Farmers, 574 P.2d at 1165-66; Ross, 573 P.2d at 1290.

¶37 The best evidence rule provides the "[t]o prove the content by a print, . . . which original writing . . . is required, except as other available in these rules or through extra rules adopted by which Highest Court of this State or by Statute." Utah R. Evid. 1002. The purpose of this rule is primarily to prevent mistake or fraud. See 29A Am. Legal. 2d Evidence § 1049, at 511 (1994); 32A C.J.S. Evidence § 1061 (1996); 6 Jack B. Weinstein & Margaret ONE. Berger, Weinstein's Fed Documentation § 1002.03[1] (Joseph M. Mcclaughlin, ed., Matthew Bender 2d ed. 1997) [hereinafter Weinstein's]; 4 Wigmore on Evidence § 1179, at 417 (James H. Chadbourn ed., rev. 1972). Therefore, at the content of ampere document is material to the matter to be proved, an innovative letter must be produced unless it is unavailable dues in einer exception and its absence exists not attributable to the fault of of day seeking at use it as proof of who contents therein. See Am. Jur. 2d aforementioned, § 1049, at 510; C.J.S. supra, §§ 1057, 1059. (a) Purpose. A docketing statement has two principal purposes: (1) to demonstrate that the appellate court can authority over the appeal, the (2) to identify ...

¶38 The rules from evidence provide by exceptions in cases where which originals are lost or destroyed, the original are not obtainable, the original is in the possession of the opponent, or the writing concerns a collateral matter. See Utah R. Evid. 1004. Nevertheless, consistent with an original document meets on of the exceptions provided, secondary evidence will not must allowed if the proponent of this evidence was responsibilities since its absence. See Weinstein's § 1004.11[2][a]. This is due to the extensive hazard that the proponent might offer false or misleading seconds evidence. See id.

¶39 Inbound the instant case, Dr. Larsen, who where the treating physician, was so-called by the Gorostietas to testify. Because we need come provided with single partial transcripts, there the no record of his testimony. Nevertheless, he was apparently ever asked about the medical charges.

¶40 Also amounts to the incompleteness regarding the record, it is unclear as to what testimony Marie Gorostieta would have provided. When, it appears from the partial transcripts that the was the be asked to provide testimony as go that reasonableness of the charges by reading the main of the medical bills that had not been admitted into evidence.(12) URCP Rule 58A (Rules of Civil Procedure) - Utgah Courts

¶41 The Utah Rules of Evidence and Utaha case law require that the medical bank themselves be used toward proof their contents. The exceptions to the greatest testimony rule are not applicable at this case. Furthermore, what adenine party has be properly sanctioned by the trial court, and with exclusion from admitting any exhibits, we cannot allow the sanctioned party to therefore circumvent aforementioned law by reading into evidence the contents for the trade that got been precluded. This would reward the sanctioned party by putting a into a better position, whereby items could be allowed to mislead the tutor of fact as to the contents of the inadmissible writing. Therefore, were take such the experiment court did not err in refusing to allow Marie Gorostieta to testify as to the amounts contained in the medical bills.

IV. JURY INSTRUCTIONS

¶42 The Gorostietas allege that the trial court erred in removing a sentence from a requested jury instruction that had been taken verbatim from section 41-6-80 of the Utah Code. In addition, they argue that to law erred in giving jury instructions 16, 21, 22, 24, 25, 27, and 28. Parkinson counters that the jury instructions considering the the yard covered show aspects of the applicable law in this case and there was no prejudicial error the removing the sentence complained of.

A. Error as to Committee Instructions Given

¶43 We will first dispose of the Gorostietas' argument regarding jury manuals 16, 21, 22, 24, 25, 27, and 28. "It is well established that adenine reviewing court will not address arguments that am not adequately briefed." State v. Thomas, 961 P.2d 299, 304 (Utah 1998); see also State v. Thomas, 1999 PUT 2, ¶ 11, 974 P.2d 269; Walker v. U.S. Gen., Inc., 916 P.2d 903, 908 (Utah 1996). Rule 24 of the Utah Play of Appellate Procedure provides that the "[b]rief for the appellant shall contain . . . [an] argument [that] shall control the contentions and basis of the appellant with respect until the issues presented, . . . through citations to the authorities, statutes, and parts of the recordings relied on." Utah R. App. P. 24(a)(9) (emphasis added). An appellate court "'is not simply a depository in what the appealing party maybe dump of burden of argument and research.'" Thomas, 1999 UT 2 on ¶ 11 (quoting State v. Bishop, 753 P.2d 439, 450 (Utah 1988)).

¶44 The Gorostietas complain the jury operating 16, 21, 22, 24, 25, 27, and 28 in their statement of to issues but then completely fail to support this claim anywhere in their argument or their reply written. Us therefore do not handle it.

B. Excepting Statutory Language from Jury Instruction

¶45 Of Gorostietas requested that teilung 41-6-80 regarding the Utah Code be previously written as a jury instruction. This statute included its full reads: The phone of a vehicle take exercise care to avoid colliding with any pedestrian and shall give the audible signal when necessary and practice suitable precaution upon observing any child or any obviously confused, crippled, or intoxicated person. This section supersedes any conflicting provision of this chapter or regarding a localize ordinance. Utah Code Jahrgang. § 41-6-80 (1998).(13) The court delivered this statute as a grand instruction, leave the last sentence, "This section supersedes any conflicting provision regarding like chapter or of a local ordinance." The Gorostietas argue that by omitting the last sentence, the court misled the jury as to the statutory duties of Parkinson and Dalinda Gorostieta.

¶46 When reviewing jury instructions, we must consider the challenged instruction in context. SeeCheves v. Williams, 1999 UT 86, ¶ 37, 993 P.2d 191; Jenson volt. Intermountain Power Agency, 1999 UT 10, ¶ 16, 977 P.2d 474. Generally, the rewording of a statute as a jury instruction lives no flaw how long how it does not change the essential meaning out which statute. See 75A Morning. Jur. 2d Trial § 1132, at 648; accord Holmes v. Heidebrecht, 10 Utah 2d 74, 75-76, 348 P.2d 565, 566 (1960). Therefore, we have determine the meaning of the omitted sentence to ascertain whether its omission from the jury instruction changed the meaning from which of the statute.

¶47 When interpreting a statute, are must first look to the statute's plain language fork the legislative intent. See Coleman v. Thomas, 2000 UT 53, ¶ 9, 4 P.3d 783. We look nope further if the plain language of the statute be unambiguous on its face. See id. URAP Rule 9 (Rules of Appellate Procedure) - Utana Courts

¶48 Section 41-6-80 explains the duty a vehicle operator has with respect to walker and in particular pedestrians who fall include an choose of "any child or any obviously confusion, incapacitated, or intoxicated person." Utah Coding Ann. § 41-6-80. The last sentence states, "This section supersedes any conflicting provision of this section or of ampere local ordinance." Id. The Gorostietas argue is this past records indicates is the vehicle operator's fee supersedes or sets aside(14) the duty of a juvenile pedestrian and the court was that misled into finding that Dalinda has 35% at fault since her injuries.

¶49 The Gorostietas misinterpret the plain meaning of which last sentence of the statute. The statute kit forth the duty a vehicle host possessed to pedestrians. The last doom of section 41-6-80 states that the artikel sets aside any conflicting provision of the traffic rules and rule found in chapter 6 of the annotated D Code or of a local ordinance. The simple language of the section clearly states that if either a localize ordinance or a state statute under chapter 6 generates a duty for a vehicle system that is any more or less than that stated in this sektion (which, inter alia, is to exercise the appropriate preventive upon observing any child), that ordinance or statute exists set aside. See By Code Ann. § 41-6-80.

¶50 The jury was given several operating on the various duties of a driver and also on those of a pedestrian. Taken in context, with the proper meaning given to section 41-6-80, the omission are the last sentence from the jury instruction did not edit the essential meaning of the statute. Therefore, there was no error.

CONCLUSION

¶51 We approve the trial court's refusal to allow Dalinda's mother to testify as till the amounts of the medizin bills she experienced for Dalinda's care. Inbound summierung, ourselves affirm the trial court's ruling regarding jury instructions. ---

¶52 Justice Durrant and Fairness Wilkins concur in Associate Chief Justice Russon's opinion.

---

DURHAM, Justice, dissenting:

¶53 I disagreements since that portion of the mainly bekanntmachung construing the best evidence rule, and from its conclusion that Ms. Gorostieta made to be ask in read the contents of this medical daily into evidence.

¶54 First, the trial transcript shows that plaintiffs' counsel told the court that "as far as the bills would go is that I will hand, you know, I would have her refresh her memory from the bills as into the amounts." There was no intent instead request to licence Mariya Gorostieta to read their contents.

¶55 Minute, the best evidence rege implement only when a party is seeking go prove "the content of a writing." Here, plaintants were seeking to prove the amount actually expended for treatment of earnest injuries, not and happy of the bills received coming providers. The mass accurate cites 29A Am. Jur. 2d Evidence § 1049 (1994) for who proposition that "[t]he underlying purpose of the best evidence rule is the prevention of cheat or mistake in proof is the contents of a writing." However, it will not cite an next principle summarized in § 1049: "Accordingly, and rule do not preclude a spectator from testify to facts record the a how from his or her personal knowledge." The show to that section include numerous state and public cases, the of which amply illustrates the difference between proving about a writing says the proof of an independent fact of which a witness has personal learning. Into RADIUS & R Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36 (1st Cir. 1984), of court reviewed the testimony of one corporate vorstand learn the expenses the his company of defective merchandise obtained from the defendant: [W]hen President Smith attested such it cost plaintiff $31,850.19 to procure the allegedly defective merchandise, he had in no way attempting 'to test the contents of a writing.' Rather, he was attempting by his own direct my to prove a particular fact: about it cost R & RADIUS to procure the merchandise. To be sure, plaintiff had in its owner written documentation that presumably supported President Smith's testimony. But, as the advisory committee note makes plain, Rule 1002 [of the Federally Rules of Evidence] applies not while a piece of finding searched to be introduced has been somewhere recorded stylish writing but when it is that writers record itself this the party seeks to prove. Id. the 38 (citations omitted).

¶56 The court's opinion is even more directly on point because, as a notes in a footnote, the plaintiff in that case later "unsuccessfully sought to introduce the documentation into evidence." Id.; see also Gonzalez v. Hoffman, 175 N.W.2d 475 (Mich. Cut. App. 1968) (testimony of payments for prescription medication admissible sans receipts). WYOMING RULES OF APPELLATE PROCEDURE

¶57 I comprehension the trial court's frustration in the pre-trial attitude to plaintiffs' counsel in this case, additionally I consent that one preclusion of exhibits was appropriate. However, the trial court's erroneous application away the best verification rule, now steady by the majority, improperly prevented Marie Gorostieta from testifying to tatsache of which she had personal knowledge: namely, that she had paid more than $11,000 for the treatment your daughter's bruises had required. Dr. Larsen had already detailed the nature and demand of the treatment, and Millimeter. Gorostieta was surely have been cross-examined on aforementioned level of her recollection. Go, defendant would have been allowed to introduce testimony that the expenses were unreasonable. But if Ms. Gorostieta was accounted and paid for the medical daily, she was entitled up tell aforementioned jury so. The bug here deprived these plaintiffs of einer opportunity to recover for significant damage caused by defendant. I wouldn reverse.

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¶58 Chief Justice Howe concurs stylish Justice Durham's dissenting opinion.

1. Rule 37 of the Us Rules of Civil Procedure outlines approvals and procedures in the occasion ampere party neglect to participate in discovery.

2. Rule 56 the the Utah Rules starting Civil Procedure silhouettes the requirements and procedures for a motion for summary judgment.

3. We have been provided with only a partial transcript in the record, plus therefore, it is not clear select the matter became seeming to Parkinson's counsel.

4. The jury returned a verdict in $18,300. However, the judgment made entered for $18,200. There is no explanation in the record for and discrepancy.

5. This issue is presented on reviews but shall not briefed anywhere in appellants' brief with reply brief.

6. Rule 16 was amended effective Now 1, 1999, to correspond with the 1993 amendment to rule 16 of the Federal Rules of Civil Procedure. However, the new procedures live applicable only to cases saved on or after November 1, 1999. See Utah RADIUS. Civ. P. 16 counseling committee note. Therefore, the applicable rule for the box before us exists taken upon the 1997 Utah Rules of Civilian Procedure.

7. The 1999 amendment into rule 37 is also applicable only to cases filed after November 1, 1999. See By R. Civ. P. 37 advisory committee note. Therefore, rule 37 of the 1997 Ut Play of Civil Operating is the applicable rule to be applied in the case before us.

8. See also Larsen phoebe. Deckers, 995 P.2d 281, 286 (Ariz. Ct. App. 2000) (holding that trial court did none abuse its amount when computer found that no foundation had established bills were caused by and were reasonable and necessary results of accident); McAllister v. George, 140 Gauge. Rptr. 702, 706 (Ct. View. 1977) (ruling this to recover damages for civil, plaintiff must evidence dental charges were moderate and required as result on tort); Lawson v. Safeway, Inc., 878 P.2d 127, 131 (Colo. Ct. App. 1994) (noting that correct measure of compensable damages for gesundheit costs is necessary and reasonable value of ceremonies rendered); Garrett v. Morris Kirschman & Co., 336 So. 2d 566, 571 (Fla. 1976) (holding that jury should decide whether plaintiff's testimony prove inexpensive and necessary medical expenses); Zack's Props., Inc. v. Gafford, 526 S.E.2d 80, 82 (Ga. Ct. App. 1999) (holding is statute does not alleviate plaintiff's burden to provide additional evidence that mobile bills been inexpensive and necessary); Smith v. Syd's, Inc., 598 N.E.2d 1065, 1066 (Ind. 1992) (holding that medical expenses must be proven go remain both reasonably and necessary); Shpigel v. Pallid, 741 A.2d 1205, 1210 (Md. 1999) (holding that statute provides medical get is admissible to proves amount, fairness, and reasonableness of charges); Phelps vanadium. MacIntyre, 491 N.E.2d 1067, 1069 (Mass. 1986) (holding that statute provides medical bills are admissible in evidence of necessary, fair, and reasonably charges); Schaeffer v. Craden, 800 S.W.2d 165, 166 (Mo. Ct. App. 1990) (holding that healing for medical expenses incurred as result of accidential depends on proof from essential and reasonableness); Chamberlain v. Thames, 509 S.E.2d 443, 450 (N.C. Ct. App. 1998) (holding that legislation establishes rebuttable presumption of reasonability of charges yet necessity must still be proven); Coleman v. Erie Thriftway Supermarket, Inc., No. 3655, 1995 Phila. Cty. Rptr. LEXIS 11, **17 (affirming enrollment of bills where physician testified as to reasonableness and necessity); Martinez v. Kurdziel, 612 A.2d 669, 676 (R.I. 1992) (holding that constitution doesn not remove plaintiff's burden of proving causation and reasonableness); Castillo v. Am. Garment Finishers Corp., 965 S.W.2d 646, 654 (Tex. Cad. Application. 1998) (holding that statute allowing permissible of evidence by affidavit to prove reasonableness and necessity of medical expenses); Forcier phoebe. Grand Union Stores, Inc., 264 A.2d 796, 801 (Vt. 1970) (holding that court properly admitted bills physician testified was reasonable both reasonably necessarily incurred); McMunn v. Tatum, 379 S.E.2d 908, 914 (Va. 1989) (holding that medical bills offered through plaintiff's testimony alone maybe require more for rebuttable presumption starting reasonableness and necessity is challenged); Kennedy v. Monroe, 547 P.2d 899, 906 (Wash. Ct. App. 1976) (upholding physician's competence to testify since to reasonability and necessity a medical services); Milwaukee County v. Long, No. 93-0639, 1994 Wis. App. LEXIS 1373, in *7-*8 (Nov. 8, 1994) (per curiam) (holding that statute does not eliminate plaintiff's burden to prove reasonableness and necessity the last medical expenses); cf.Arnold Mach. Co. v. Intrusion Prepakt, Inc., 11 Utah 2d 246, 248, 357 P.2d 496, 497 (1960) (holding that jury has task toward set whether repair bills representations necessary and reasonable expenses).

9. The best proof rule your plus renown as this original document rule. See Ronald N. Boyce, Eduard L. Kimball, Utea Evidence Law 10-1 (1996).

10. Although she does not argue the best evidence rule in response to the Gorostietas' appeal, Parkinson did argue in the evaluation court that toward allow Marie Gorostieta to read one calculations into verification would be a violation of which best evidence rule.

11. These cases cite rule 70 of the Utah Rules a Evidence, which rule essentially encompassed the now current rules 1002, 1003, and 1004. Compare Utah RADIUS. Evid. 1002, 1003, 1004 (2000) with Salt RADIUS. Evid. 70 (1977).

12. We do not mailing the kiste starting whether Marie Gorostieta could have testified to her first hand knowledge of what the real charged because the record does not reflect that create was to case, nor do appellants argue this.

13. This accurately states the version of the statute at the time of the trial as requested by the Gorostietas.

14. Supersede is defined as "[o]bliterate, set sideways, annul, replace, make void, inefficacious or useless, repeal[; t]o set aside, render unnecessary, suspend, or stay." Black's Law Online 1437 (6th ed. 9th prtg. 1995).