Craviolini v. Scholer & Fuller Associated Architects

• Decision Date: 09 June 1966
• Docket Number: No. 8046--PR,8046--PR
• Citation: 101 Ariz. 33,415 P.2d 456
• Parties: J. J. CRAVIOLINI and L. C. Anderson Company, Inc., dba a joint venture, Appellants and Cross-Appellees, v. SCHOLER & FULLER ASSOCIATED ARCHITECTS, an Arizona corporation, and Emerson C. Scholer and Santry C. Fuller, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 456

415 P.2d 456

101 Ariz. 33

J. J. CRAVIOLINI and L. C. Anderson Company, Inc., dba a joint venture, Appellants and Cross-Appellees, v. SCHOLER & FULLER ASSOCIATED ARCHITECTS, an Arizona corporation, and Emerson C. Scholer and Santry C. Fuller, Appellees and Cross-Appellants.

No. 8046--PR.

Supreme Court of Arizona, In Banc.

June 9, 1966.

Rehearing Denied July 12, 1966.

Nolen L. McLean, Tucson, for appellants and cross-appellees.

Dunseath, Stubbs & Burch, by Dean Burch, Tucson, for appellees and cross-appellants.

UDALL, Justice.

Pursuant to Rule 47(b), 17 A.R.S., Rules of Supreme Court, appellants, plaintiffs herein, petitioned this Court to review the decision of the Court of Appeals in the case of Craviolini v. Scholer & Fuller Associated Architects, 2 Ariz.App. 412, 409 P.2d 571, which affirmed the judgment of the trial court. This appeal is another phase of a matter that has heretofore been before this Court: Craviolini v. Scholer & Fuller Associated Architects, 89 Ariz. 24, 357 P.2d 611.

This is an appeal from a tort action for intentional interference with a construction contract. Plaintiffs appeal from the trial court's granting of defendant's motion for a directed verdict for one dollar in favor of the plaintiffs. Appellees, defendants herein, have cross-appealed contending the doctrines of election of remedies or judicial estoppel apply to this matter and, therefore, it was error not to grant their motion for summary judgment.

The facts necessary to dispose of this appeal are as follows: Plaintiffs as a joint venture, undertook the construction of what is now known as Catalina High School located in Tuscon, Arizona. This action sought compensatory and punitive damages against defendants for alleged intentional interference with the construction contract between plaintiffs and the Pima County Board of Supervisors acting as and for the Board of Education, School District Number One.

The case was tried before a jury and the minutes reflect that after the plaintiffs rested their case the following occurred:

'R. Dean Burch argues to the Court on Motion for Directed Verdict in favor of the Plaintiffs in the amount of $1.00 plus costs.

'Nolen L. McLean argues in opposition.

'ORDERED that Motion for Directed Verdict in favor of the Plaintiffs J. J. Craviolini and L.A. (sic) Anderson Company, Inc., in the sum of $1.00 plus costs is granted and

'IT IS ORDERED that Judgment be entered in favor of the Plaintiffs, J. J. Craviolini and L. C. Anderson Company, Inc., and against the defendants, Scholer & Fuller Associated Architects, an Arizona corporation, and Emerson C. Scholer and Santry C. Fuller in the sum of $1.00 plus costs.

'IT IS FURTHER ORDERED that Judgment be entered in favor of the Clerk of Superior Court and against the defendants, Scholer & Fuller Associated Architects, an Arizona Corporation and Emerson C. Scholer and Santry C. Fuller for four days' Jury fees in the sum of $384.00.'

Plaintiffs' single assignment of error is that the trial court erred by not permitting the jury to determine the amount of damages, if any, since defendants admitted liability by the form of the motion used. We must determine whether the trial court erred by granting defendants' motion in favor of the plaintiffs in the amount of one dollar without characterizing the damages as actual, or punitive or both.

The novel trial practice of moving for a directed verdict for the opposing party is not without precedent in Arizona, although very few jurisdictions have approved such a practice. Rule 50, Rules of Civil Procedure, 16 A.R.S., does not explicitly prohibit this form of motion, and if the rule requires that the motion be made in favor of the movant the requirement is by implication.

The case of Sharp v. Western Union Tel. Co., 39 Ariz. 349, 6 P.2d 895, 80 A.L.R. 293, is cited by defendants for approval by this Court of the form of motion used in the instant case. The above case does approve of the result obtained by such a motion as indicated by the following remarks:

'At the oncoming of the trial, and after a jury was impaneled, defendant admitted liability for nominal damages, objected to the introduction of any evidence, and moved for a directed verdict in favor of plaintiff for nominal damages, on the ground that under the pleadings plaintiff was entitled to such damages only. Defendant's motion was granted, and the jury was instructed to return a verdict for plaintiff for nominal damages in the sum of $1. This was done, whereupon judgment was duly entered upon such verdict.'

Defendants submit that while the procedure outlined in the above case was not identical to that selected by the trial court in this case, the result is the same in both instances.

The trial court had before it a motion for directed verdict and a motion for directed verdict for one dollar in favor of the plaintiffs. It is not entirely clear why the trial judge elected the latter motion in preference to the motion for directed verdict. Defendants suggest that the motion granted was nothing more than one for a directed verdict with an offer to pay the costs of the action. Plaintiffs contend the motion admits liability and based on the facts, we should reverse for a determination of damages only.

The motion adopted by the court would seem to suggest the defendants were admitting liability for nominal damages, but that plaintiffs had not proven and, therefore, were not entitled to compensatory or punitive damages. The suggestion that the motion was an offer to pay costs was unnecessary when Rule 54(f), Rules of Civil Procedure, 16 A.R.S., is examined. This rule provides, in part:

'Except when express provision therefor is made either in a statute or in the Rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.'

Thus, the trial court could have assessed costs to defendants without granting their motion. The above rule would have permitted such. We conclude that by choosing to grant the motion, and impliedly denying the motion for directed verdict, the trial court believed that liability for technical nominal damages had been proven but not compensatory or punitive damages. Cf. Bartlesville Zinc Co. v. James, 66 Okl. 24, 166 P. 1054; Van Houten v. Campbell, 9 N.J.Misc. 214, 153 A. 391. While there was a hearing on the motions, which was reported, neither party favored this Court with the transcript. Therefore, we can only examine the record before us and try to determine if the trial court was correct in granting this form of motion.

Where the amount of damages is either undisputed or subject to arithmetical computation and liability is established, the court may assess the damage as it becomes a question of law. Ward v. Johnson, 72 Ariz. 213, 232 P.2d 960. If the amount of damages is unliquidated, the assessment of damages is a matter for the jury, and if it appears that a party is entitled to some damages, the case should not be withdrawn from the jury.

Since we construe the form of motion selected by defendants to admit liability for nominal damages, we must examine the record to determine whether there is any evidence of actual damages in this case. There is no doubt that an amount was not fixed by contract since this was an allegation of an intention tort. The amount was not subject to arithmetical computation nor was the amount sued for admitted by the appellees.

An examination of the evidence indicates that the issue of damages should have been resolved by the jury. The record is not devoid of any evidence of actual damage. There was testimony that acts of the defendants resulted in a loss to the contractor of eighty hours extra lay-out labor, extra cost of shoring method,...