Bustamente v. City of Tucson

• Decision Date: 11 April 1985
• Docket Number: No. 2,CA-CIV,2
• Citation: 701 P.2d 861,145 Ariz. 365
• Parties: Antonio L. BUSTAMANTE, Jr., and Frances Bustamante, husband and wife, Plaintiffs/Appellees, v. CITY OF TUCSON, Defendant/Appellant. 5247.
• Court: Arizona Court of Appeals

Page 861

701 P.2d 861

145 Ariz. 365

Antonio L. BUSTAMANTE, Jr., and Frances Bustamante, husband and wife, Plaintiffs/Appellees, v. CITY OF TUCSON, Defendant/Appellant.

No. 2 CA-CIV 5247.

Court of Appeals of Arizona Division 2, Department B.

April 11, 1985.

Gordon T. Alley, Tucson, for plaintiffs/appellees.

Kimble, Gothreau, Nelson & Cannon, P.C. by Daryl A. Audilett and Michael J. Gothreau, Tucson, for defendant/appellant.

OPINION

LACAGNINA, Judge.

This is a case of assault and battery by police officers employed by the City of Tucson while arresting Antonio Bustamante, Jr. Bustamante suffered bruises as a result of the use of a night stick and rough handling by the police officers. The jury returned a verdict in the amount of $650.72, the exact amount of Bustamante's special damages. The trial court granted a motion for new trial on the issue of damages only unless the city agreed to an additur of $12,500. The city refused to agree to the additur and claims on appeal that the trial court abused its discretion by ordering the new trial unless the city agreed to the additur. We affirm.

Appellate courts have a difficult task reviewing orders for additur and remittitur. The resolution of each case depends upon its own peculiar facts. There are recognized tests to apply, but they are only guidelines to follow leading toward the ultimate test of justice. The Supreme Court of Arizona has explained our obligation upon review in the case of Creamer v. Troiano, 108 Ariz. 573, 503 P.2d 794 (1972):

"From what we have written, it is obvious that the test for reviewing the granting or refusing of a trial judge's adjustment of a verdict is complex and can only be solved by an ad hoc approach. Almost always when there is a conflict in the evidence, the trial judge should not interfere with what is peculiarly the jury's function, and if he does not, we will nearly always uphold him. If there is no conflict in the evidence on items that obviously were omitted from the verdict, the trial judge must adjust, and we will uphold him if he does. Behind all of these tests still stands the original doctrine--that if the verdict is supported by adequate evidence, it will not be disturbed, and the greatest possible discretion is in the hands of the trial judge. In this court, the ultimate test will always be justice, and any case before us which shows an unjust result because of the granting or denial of either additur or remittitur, will be reversed. Each case will be considered upon its own facts." 108 Ariz. at 576, 503 P.2d at 797.

As noted above, "almost always" and "nearly always" are not exact terms, and therefore, the question of additur is left to the greatest possible discretion of the trial court, and its decision will not be disturbed on appeal except for a case of clear abuse. The supreme court in Creamer provided us with the ultimate test for abuse of discretion when it approved the doctrine--that any case which shows an unjust result because of the granting or denial of an additur will be reversed.

Testimony at the trial demonstrates that there was no conflict in the evidence to justify the jury's failure to award any amount for general damages. The city contends there was a conflict in the evidence regarding Bustamante's injuries and treatment. We disagree. A review of the testimony supports a finding by the trial court that the verdict for special damages only was inadequate and unjust.

Although the testimony of the parties and other witnesses as to Bustamante's injuries varied by degrees, the ultimate uncontroverted fact was that the officers used force to arrest Bustamante, and his body showed evidence of the force. In particular, the...