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Canterino v. Mirage Casino-Hotel3/19/2002
fault, the periodontist 33% and the patient 0%.
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.
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. 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." 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. The court explained:
" 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.*fn11"
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, 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.
BECKER, J., and GIBBONS, D.J., concur.
MAUPIN, C.J., concurring:
For the reasons stated by the majority with regard to the trial court's communication with the jury, I agree that this case should be remanded for a full trial on both liability and damages. I write separately with regard to the claims of misconduct lodged against Mr. Canterino's counsel to elaborate upon my separate concurrence submitted with the original opinion in this matter.
In my original separate concurrence, I concluded that the remarks of Canterino's counsel did not merit a new trial. I am still of that opinion. My prior concurrence attempted to appl
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