Callaspo-Brito v. Ballhew

2025 UT App 190

THE UTAH COURT OF APPEALS

GUSTAVO CALLASPO BRITO,
Appellant,
v.
DUSTIN JAMES BALLHEW,
Appellee.

Opinion
No. 20240739-CA
Filed December 26, 2025

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 210906133

Daniel F. Bertch, Attorney for Appellant
Bruce C. Burt, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and AMY J. OLIVER
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Gustavo Callaspo Brito sued Dustin James Ballhew for
injuries resulting from a traffic accident. Following deliberations,
the jury returned an incomplete verdict form: the jury allocated
70% fault to Ballhew but failed to award damages. After a sidebar
with the parties’ attorneys, the district court informed the jury
that it had likely switched the allocation of fault and instructed
the jury to re-deliberate. Shortly thereafter, the jury returned a
corrected verdict in which it changed the allocation of fault in
accordance with the court’s instruction and this time assessed 70%
fault to Callaspo, resulting in a no cause verdict.

¶2 Callaspo appeals. He argues the district court abused its
discretion when it re-instructed the jury because the instructions
Callaspo Brito v. Ballhew

were not fair and neutral. We agree and accordingly vacate the
verdict and remand for a new trial.

BACKGROUND

¶3 Ballhew was driving westbound. As he approached a
traffic light, he attempted to turn left. At this same time, Callaspo
was driving eastbound straight through the intersection.
Ballhew’s vehicle crashed into the front of Callaspo’s car on the
driver side.

¶4 In November 2021, Callaspo sued Ballhew for injuries
resulting from the collision. In June 2023, the parties stipulated
that the case would proceed through arbitration pursuant to Utah
Code section 31A-22-321 (section 321). See Utah Code § 31A-22-
321(1) (“A person injured as a result of a motor vehicle accident
may elect to submit all third-party bodily injury claims to
arbitration . . . .”). Following arbitration, the arbitrator found that
Callaspo had failed to meet his burden of proof and accordingly
awarded Ballhew a judgment of no cause of action. Thereafter,
Callaspo filed a motion for trial de novo.

¶5 A two-day jury trial was held in March 2024. Both parties
testified and both also called experts to evaluate the crash data
and opine as to the cause of the accident. After the close of
evidence, the district court instructed the jury on fault and fault
allocation by reading the instructions from the verdict form. The
court explained that the jury was to assign a percentage of fault to
each party, and that the total percentage assigned must equal
100%. It then instructed that if Callaspo’s fault was less than 50%,
the jury would need to fill out the next section on the form titled
“Damages.”

¶6 Following deliberations, the jury returned the verdict form
to the district court. After reviewing the form, the court asked
counsel to approach the bench for a sidebar. The court informed

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counsel that “there may have been a misunderstanding on the
jury,” because although the jury had allocated 30% of the fault to
Callaspo and 70% of the fault to Ballhew, it had not completed the
damages portion of the form. The court then told counsel that it
was “going to ask” the jury about the apparent misunderstanding.

¶7 After concluding the sidebar, the district court addressed
the jury:

Ladies and gentlemen of the jury, I’ve reviewed
your special verdict form. And there raises a
question about whether or not I was clear in the jury
instructions because there appears to be an
inconsistency in your responses.

And so what we’re going to do is try to clarify
the issue of apportionment to make sure that what
you have reflected in your verdict form is the way
you want it to be. Otherwise, we’re going to have to
maybe send you back into the jury room in order to
perform some calculation on damages. Okay?
Because I think there might be a confusion.

For example, in reading off the special jury
verdict form, it says, Question number 5: “What
percentage of the fault that caused . . . Plaintiff’s
harm was attributable to the Defendant?” And you
put “70 percent.”

Question number 6 says, “What percentages
of Plaintiff’s harm was caused by the Plaintiff?” And
you put “30 percent.” Okay?

Now, under the section of damages, though,
there is nothing filled out in regard to medical
expenses and noneconomic damages. So I’m not
sure if you intended not to award any damages or if

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there was a misunderstanding about the 50 percent
rule.

If you were understanding question number
5 to mean that you were giving 70 percent of the
fault to the Plaintiff for the accident, then he would
have been over the threshold of 50 percent. And
then there would be no further damages needed to
be calculated or awarded. And that’s the way that
I’m reading it.

So we need to ask you if you would like to go
back in and deliberate with that understanding and
see if your percentages need to change or not. And
if not, you’re going to need to perform and make a
deliberation on the amount of damages. Does that
make sense?

Why? Because we had an undisputed
agreement as to the amount of damages that are
there in this case. And you’ve awarded none. And
the only explanation for that is you maybe
misinterpreted question six—or five and six on how
you have the allocation of the percentages. I’m not
sure, but I’m guessing maybe you switched the
allocations of your percentages, though I’m not
sure.

So what we’re going to do is we’re going to
give you the special verdict form back. We’re going
to ask you to go back into the jury room and address
those issues that we’ve highlighted for you.

¶8 After the jury exited the courtroom, Callaspo objected to
the district court’s instruction, arguing that it “was very
prejudicial” to suggest to the jury that it had “mixed” up the fault
allocations rather than “just pointing out the error” and sending

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the jury to re-deliberate. The court countered that it had “no
intention to try to influence the jury one way or the other” and
that it had merely tried “to explain the different possibilities or
the different contradictions that were apparent on the face of the
document.”

¶9 Less than ten minutes after being sent to re-deliberate, the
jury returned the final verdict form. This time, the jury allocated
70% of the fault to Callaspo and 30% of the fault to Ballhew.

ISSUES AND STANDARDS OF REVIEW

¶10 Callaspo now appeals, arguing the district court
improperly instructed the jury after determining that the verdict
was insufficient. “When reviewing a trial court’s decision to
clarify a jury verdict we seek to determine whether the trial court
exceeded its permitted range of discretion.” Eggett v. Wasatch
Energy Corp., 2001 UT App 226, ¶ 17, 29 P.3d 668, aff’d, 2004 UT
28, 94 P.3d 193.

¶11 In response to Callaspo’s appeal, Ballhew argues that this
court does not have jurisdiction to consider this appeal because
the only appeal permitted after a section 321 arbitration hearing
is a trial de novo. “Whether appellate jurisdiction exists is a
question of law, which we review for correctness.” Park City Mun.
Corp. v. Woodham, 2024 UT 3, ¶ 13, 545 P.3d 221 (quotation
simplified).

ANALYSIS

I. Jurisdiction

¶12 As a threshold matter, we must determine whether we
have jurisdiction to consider this appeal. Ballhew argues that
Callaspo has no right to appeal from the district court’s judgment
because “the only appeal permitted after a [section 321]

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arbitration hearing is the trial de novo.” Ballhew acknowledges
that this argument is not supported by statute or case law but is
instead premised on the appeals process from a small claims
action. He urges us to treat appeals following section 321
proceedings the same as small claims appeals—by generally
limiting appeals to a trial de novo in the district court. See Utah
Code §§ 78A-8-106, 78A-5-102(4). But the right to appellate review
is governed by statute, and we are not at liberty to adopt a scheme
clearly at odds with the plain language of the controlling
provisions.

¶13 Utah Code section 78A-8-106 governs appeals from small
claims actions. Under that section, either party may appeal the
judgment in a small claims action to the district court for a trial de
novo. See id. § 78A-8-106. The statute specifically provides that
“[t]he decision of the trial de novo may not be appealed unless the
court rules on the constitutionality of a statute or ordinance.” Id.
§ 78A-8-106(2) (emphasis added). Thus, the controlling statute
clearly prohibits appeals from a trial de novo in small claims
actions except for in the narrow circumstances where the
constitutionality of a statute or ordinance is at issue.

¶14 In contrast, section 321 governs arbitration proceedings in
third-party litigation. Under that section, a plaintiff may elect to
submit a personal injury claim to “binding arbitration” in
exchange for capping any potential recovery. See id. § 31A-22-
321(1)–(2). A claim may not be submitted to arbitration, however,
unless the plaintiff or the plaintiff’s representative has
“previously and timely filed a complaint in a court that includes
a third-party bodily injury claim” and “filed a notice to submit the
claim to arbitration within 14 days after the complaint has been
answered.” Id. § 31A-22-321(1)(a). After a claim is submitted to
arbitration, any award issued from those arbitration proceedings
“shall be the final resolution of all bodily injury claims between
the parties and may be reduced to judgment” unless either party
“files a notice requesting a trial de novo in the court” or “the
arbitration award has been satisfied.” Id. § 31A-22-321(11). Once a

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request for a trial de novo has been filed, “the claim shall proceed
through litigation in accordance with the Utah Rules of Civil
Procedure and Utah Rules of Evidence.” Id. § 31A-22-321(12)(a).

¶15 The Utah Supreme Court has appellate jurisdiction over
“orders, judgments, and decrees of any court of record over which
the Court of Appeals does not have original appellate
jurisdiction.” 1 Id. § 78A-3-102(3)(j). District courts “are courts of
record,” whereas justice courts “are courts not of record.” Id.
§ 78A-1-101(2). “Except as otherwise provided by law, a party
may appeal a final order or judgment from a district court . . . to
the appellate court by filing a notice of appeal with the trial court
clerk . . . .” Utah R. App. P. 3(a)(1).

¶16 Construing all of this together, we conclude that Callaspo
has a statutory right to appeal. Here, Callaspo appeals from a
judgment of the district court. Although the claim was subject to
a section 321 arbitration proceeding prior to the district court
judgment, there is nothing in the plain language of section 321
that restricts a losing party from appealing a district court
judgment following arbitration.

¶17 Moreover, this conclusion is bolstered by the statutory
scheme of section 321, which treats arbitration proceedings as
something different from district court proceedings. Section 321
requires as a prerequisite to submitting a claim to arbitration that
the claim be included in a timely filed complaint in a court with
jurisdiction, see Utah Code § 31A-22-321(1)(a), and it further
contemplates that the case may resume in the court if either party
is dissatisfied with the arbitration award, see id. § 31A-22-321(11).
In other words, any proceedings in the district court following

1. Barring certain exceptions not at issue in this case, the Utah
Supreme Court “may transfer to the Court of Appeals any of the
matters over which the Supreme Court has original appellate
jurisdiction.” See Utah Code § 78A-3-102(4). This case was so
transferred.

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failed arbitration simply resume the litigation of the case that had
already begun in district court; the arbitration award is put aside,
discovery commences, the relevant rules of procedure and
evidence control, and the parties may request—for the first time—
a jury trial. See id. § 31A-22-321(12). This procedure is inapposite
to the appeals process involved in a small claims action, where the
controlling statute specifically provides that “unless the court
rules on the constitutionality of a statute or ordinance,” “[t]he
appeal is a trial de novo.” See id. § 78A-8-106(2).

¶18 Because we have jurisdiction to hear this appeal, we now
proceed to consider the merits of Callaspo’s argument.

II. Inconsistency in the Verdict Form

¶19 After reviewing the initial verdict form, the district court
concluded that the verdict was inconsistent. To remedy this
problem, the court elected to re-instruct the jury. On appeal,
Callaspo argues that the court abused its discretion in the manner
in which it re-instructed the jury because the instructions
“suggest[ed] an outcome” and “encourag[ed] the jury to change
its prior findings.” We agree.

¶20 Rule 47(s) of the Utah Rules of Civil Procedure provides
that an “informal or insufficient” jury verdict “may be corrected
by the jury under the advice of the court, or the jury may be sent
out again.” District courts are given discretion to determine
whether a verdict is informal or insufficient, 2 see KTM Health Care
Inc. v. SG Nursing Home LLC, 2018 UT App 152, ¶ 37, 436 P.3d 151,

2. “‘Insufficient’ means inadequate or lacking in some
requirement, purpose or use. ‘Informal’ means defective in form;
not in the usual form or manner; [or] contrary to custom or
prescribed rule.” Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 26,
94 P.3d 193 (quotation simplified). An incomplete verdict is both
insufficient and informal. See Langton v. International Transport,
Inc., 491 P.2d 1211, 1214 (Utah 1971).

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and “as long as the jury that rendered the verdict remains
empaneled,” the court may seek clarification from the jury
regarding any perceived inconsistency, id. ¶ 39. If a “court orders
a jury to re-deliberate regarding an inconsistency, the court
should explain to the jury the reasons it is being asked to resume
deliberations but must do so in a completely neutral and impartial
way.” Id. ¶ 45. “[T]he court must take pains to remain neutral, and
to make sure that nothing in the court’s communications to the
jury about the inconsistency could possibly be construed as
encouraging the jury to reach a particular result after re-
deliberation.” Id. ¶ 44.

¶21 Here, the district court informed the jury that the verdict
was “inconsisten[t]” because although the jury had allocated 30%
of the fault to Callaspo and 70% of the fault to Ballhew, there was
“nothing filled out” “under the section of damages.” The court
explained that the jury needed to either “clarify the issue of
apportionment” or “perform some calculation on damages.” All
of these statements were neutral and impartial. But after
highlighting this inconsistency in general terms, the court gave
additional pointed guidance:

If you were understanding . . . that you were
giving 70 percent of the fault to [Callaspo] for the
accident, then he would have been over the
threshold of 50 percent. And then there would be no
further damages needed to be calculated or
awarded. And that’s the way that I’m reading it.

So we need to ask you if you would like to go
back in and deliberate with that understanding and see
if your percentages need to change or not. And if
not, you’re going to need to perform and make a
deliberation on the amount of damages. . . .

Why? Because we had an undisputed
agreement as to the amount of damages that are

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there in this case. And you’ve awarded none. And
the only explanation for that is you maybe misinterpreted
. . . how you have the allocation of the percentages. I’m
not sure, but I’m guessing maybe you switched the
allocations of your percentages . . . .

(Emphasis added.)

¶22 We agree with Callaspo that the district court did not
“explain to the jury the reasons it [was] being asked to resume
deliberations . . . in a completely neutral and impartial way.” Id.
¶ 45. Although the court began by objectively explaining to the
jury in general terms what the perceived inconsistency was—the
apportionment of fault and the calculation of damages—the court
then “plac[ed] its thumb on the scale” and detailed exactly how it
perceived the jury had intended to answer those questions. Id.
¶ 51. The court repeatedly opined that it was interpreting the
verdict form to mean that the jury had simply “switched” the
allocation of fault between Callaspo and Ballhew, going as far as
to say that was “the only explanation” for the apparent
inconsistency. By making these statements, the court overtly
“encourag[ed] the jury to reach a particular result after re-
deliberation.” Id. ¶ 44. And the jury’s subsequent verdict was
indeed reflective of the court’s instruction given that the jury
simply “switched” the allocations of fault in the corrected
verdict. 3 For these reasons, the court abused its discretion when it
re-instructed the jury.

3. This is not to suggest that the jury could not have corrected the
verdict by switching the allocation of fault. As Ballhew notes in
his appellate brief, the jury heard testimony supporting that
Ballhew crashed into Callaspo after Callaspo ran a red light. But
in light of the district court’s pointed guidance, we cannot
conclude that the corrected verdict was truly reflective of the
jury’s findings and not influenced by the court.

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CONCLUSION

¶23 Because nothing in the text of Utah Code section 31A-22-
321 limits a party’s right to appeal after an arbitration proceeding,
we have jurisdiction to hear this appeal. And because the district
court abused its discretion when it re-instructed the jury on the
perceived inconsistency in the initial verdict, we vacate the
verdict and remand the matter for a new trial.

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