Gunn Hill Dairy Props., LLC v. L. A. Dep't of Water & Power

361 P.3d 703

2015 UT App 261

GUNN HILL DAIRY PROPERTIES, LLC, et al., Plaintiffs and Appellants,

v.LOS ANGELES DEPARTMENT OF WATER AND POWER, et al., Defendants and Appellees.

No. 20140907–CA.

Court of Appeals of Utah.

Oct. 29, 2015.

Richard D. Burbidge, Jefferson W. Gross, Carolyn J. LeDuc, Salt Lake City, Don Howarth, Suzelle M. Smith, and Padraic J. Glaspy, Attorneys for Appellants.

Michael D. Zimmerman, Linda M. Jones, Michael L. Larsen, Brandon J. Mark, Salt Lake City, Clemens A. Landau, John M. Fitzpatrick, and Eric D. Nadolink, Attorneys for Appellees.

Opinion

DAVIS, Judge:

¶ 1 Appellants are current and former owners of dairy farms located in Millard County, Utah (the Dairies).¹Appellees (IPP) own or operate the Intermountain Power Plant. This case comes to us on the Dairies' motion for interlocutory review of the trial court's denial of their motion to change venue. We granted the motion for interlocutory review and we affirm the trial court's ruling.

BACKGROUND

¶ 2 This case has a long history, beginning with the Dairies initially filing suit in 2003 in Los Angeles, California. The California court stayed that case on forum non conveniens grounds. SeeLuth v. Department of Water & Power of City of Los Angeles,2004 WL 1203002, at *1, *6 (Cal.Ct.App. June 2, 2004)(affirming the stay on appeal). The Dairies then filed a complaint in 2005 in the Third District Court, Salt Lake County, Utah. That court granted IPP's motion to transfer the case to the Fourth District Court in Millard County, and the initially assigned judge granted the Dairies' motion to change venue within the Fourth District to adjacent Juab County to avoid potential jury bias in light of the fact that IPP was one of the largest employers in Millard County and the largest taxpayer in that county.

¶ 3 The case remained in Juab County, aside from an earlier interlocutory detour to this court, see Gunn Hill Dairy Props., LLC v. Los Angeles Dep't of Water & Power,2012 UT App 20, ¶ 2, 269 P.3d 980, and went to trial in September 2013. After several weeks of trial, IPP moved for a mistrial based on a question the Dairies' attorney asked a witness that referenced settlement negotiations. The court denied the motion. A week later, the court held an in camera discussion with one juror (Juror 9) after the court's bailiff described to the court a conversation Juror 9 had with the bailiff. In the in camera discussion with the trial court, Juror 9 indicated that prior to the jury being impaneled, her sister-in-law told her that she favored IPP. Juror 9 also indicated that her mother expressed to her a similar preference for IPP during trial, warning Juror 9 that a verdict against IPP would threaten people's jobs. Additionally, Juror 9 indicated to the trial court that her husband was biased against farmers and had been for some time. However, Juror 9 also explained that she had “no idea” how she would vote on the case and felt “very torn.”

¶ 4 The Dairies orally moved for a mistrial in light of Juror 9's statements, arguing that the pressures placed on Juror 9 indicate that IPP succeeded in its attempt to taint the jury pool when it “assembled all of [its] employees” “immediately prior to trial” “and advised them that, if the [Dairies] were successful in this trial, ... [the power plant] would be shut down and jobs would be lost.” IPP disputed the Dairies' claim that it attempted to taint the jury pool and described its pretrial meeting with its employees as a “perfectly privileged conversation” during which it responded to employees' questions and concerns regarding the lawsuit. Nonetheless, IPP's counsel stated, “[S]ince we moved for a mistrial last week, ... we cannot oppose [the Dairies'] motion for mistrial, now, without waiving our own motion for mistrial and I affirmatively believe that a mistrial should have been granted last week.” The trial court indicated that the motion was seemingly unopposed and that “[t]here seems to be justification for a mistrial, at least in the eyes of the plaintiff there is, for this reason, and in the eyes of the defendant, there is for other reasons.” The court then ruled, “Because each side of this case has requested a mistrial and wants to preserve their rights under their claims of mistrial, the Court, really, has no option but to grant the mistrial.”

¶ 5 The Dairies subsequently moved to change venue again, this time from Juab County to Utah County, the northernmost county in the Fourth District. The trial court initially granted the Dairies' motion to change venue (the First Order) but later vacated its ruling. In the First Order, the court stated, “Based on [the Dairies'] unopposed motion, and the court's own experience and observations of events occurring during the first trial, ... the court is persuaded that an impartial trial may not be had in Juab County due to IPP's influence in Juab County.” The court concluded that its “in camera discussion with [Juror 9] confirm[ed] [the Dairies'] allegation that there is substantial concern among the citizens of Juab County about the potential effect of a ruling against IPP.” The trial court later vacated this order after learning that the Dairies had agreed to give IPP more time to file its opposition to the motion to change venue.

¶ 6 When the trial court revisited the motion, it concluded that the Dairies' arguments in favor of changing venue were based on conjecture rather than evidence and denied the motion (the Denial Order). The court implicitly rejected any connection between Juror 9 and the Dairies' alleged existence of a community-wide bias, stating, “During the trial, inappropriate communications by members of a specific juror's family caused pressure to bear on one juror.” Additionally, the court observed that despite the Dairies' claims that IPP's influence in Juab County was pervasive, in “[t]he actual experience of the court and the parties ..., an impartial jury was impaneled without much difficulty.” The Dairies now seek interlocutory review of the Denial Order.

ISSUE AND STANDARD OF REVIEW

¶ 7 The Dairies challenge the trial court's denial of its motion to change venue. A trial court “may, on motion, change the place of trial ... when there is reason to believe that an impartial trial cannot be had in the county, city, or precinct designated in the complaint.” Utah Code Ann. § 78B–3–309(2)(LexisNexis 2012). We review a trial court's ruling on a motion to change venue for an abuse of discretion. City of Grantsville v. Redevelopment Agency of Tooele City,2010 UT 38, ¶ 53, 233 P.3d 461.

ANALYSIS

¶ 8 The Dairies raise several challenges to the Denial Order. First, the Dairies argue that the court's in camera discussion with Juror 9 reveals that the jury was not impartial when it was impaneled and that, accordingly, there is no basis for the court to presume that an impartial jury could be impaneled on retrial. The Dairies also argue that the trial court abused its discretion by applying the wrong legal standard. We address each argument in turn.

I. Jury Impartiality

¶ 9 The Dairies contend that the trial court abused its discretion in denying the motion to change venue to the extent the court based its ruling on the clearly erroneous factual finding that “an impartial jury was impaneled without much difficulty.” The Dairies contend that the trial court's declaration of a mistrial and the court's statements in the First Order contradict this finding and that the court abused its discretion by entering contradictory factual findings.

A. Grounds for Mistrial

¶ 10 According to the Dairies, the trial court declared a mistrial based on the Dairies' argument that Juror 9's in camera statements to the trial court revealed that she was not impartial when the jury was impaneled and that as a result, an impartial jury was never impaneled in this case. The Dairies also argue that IPP “did not oppose the motion.”

¶ 11 The trial court's oral ruling indicates that it declared a mistrial “[b]ecause each side of this case ha[d] requested a mistrial and want[ed] to preserve their rights under their claims of mistrial.” As a result, the court declared that it, “really, ha[d] no option but to grant the mistrial.” The court clarified in a written ruling related to the Dairies' venue motion that “[t]he initial trial in Juab County ended in a mistrial as a result of jury tampering where one juror was improperly subjected to influence and pressures from [her] family members during the trial and before deliberations.”

¶ 12 Moreover, when the trial court described its in camera discussion with Juror 9 to the parties, the court did not specifically describe Juror 9 as being biased before or during trial. Rather, the court indicated that Juror 9's family engaged in improper communications with her and pressured her to vote in favor of IPP but that Juror 9 had not actually decided how she would vote. Juror 9's statements did not suggest that her family's concerns were related to anything her relatives heard from IPP or IPP employees. This description coincides with the trial court's statement in the Denial Order that “[d]uring the trial, inappropriate communications by members of a specific juror's family caused pressure to bear on one juror.” While we agree that the outside pressures put on Juror 9 by members of her family raised legitimate questions about her ability to remain impartial, Juror 9's statements do not necessarily demonstrate that she was biased when the jury was impaneled. Accordingly, we reject the Dairies' argument that the trial court granted a mistrial specifically because an impartial jury was not initially impaneled. The trial court's finding in the Denial Order that an impartial jury was readily impaneled is not contradicted by the court's declaration of a mistrial.

B. The First Order

¶ 13 Additionally, the Dairies argue that the trial court abused its discretion when it failed to explain its finding in the Denial Order that an impartial jury was impaneled in light of the...