Duke v. Cochise County
| Decision Date | 31 October 1996 |
| Docket Number | No. 2,CA-CV,2 |
| Citation | 189 Ariz. 35,938 P.2d 84 |
| Parties | Mary W. DUKE, surviving spouse of Dale Duke, Sr., individually and on Behalf of Sylvia A. Joy, surviving child of Dale Duke, Sr., Plaintiffs/Appellants/Cross-Appellees, v. COCHISE COUNTY, Cochise County Sheriff's Office, and Cochise County Board of Supervisors, Defendants/Appellees/Cross-Appellants. 95-0185. |
| Court | Arizona Court of Appeals |
In this appeal, appellants Mary W. Duke and her daughter, Sylvia A. Joy, seek restoration of jury verdicts totaling $3,550,000 awarded against Cochise County, the Cochise County Sheriff's Department, and the Cochise County Board of Supervisors (collectively, the County). Appellants contend that the trial judge abused his discretion by refusing to recuse himself post-trial, by remitting their verdicts for wrongful death, and by vacating the verdict awarding Duke damages for emotional distress. The County cross-appeals, contending that appellants were not entitled to sanctions against the County pursuant to Ariz.R.Civ.P. 68, 16 A.R.S. For the following reasons, we affirm the remittitur, but reverse the order vacating the award for emotional distress and vacate the imposition of Rule 68 sanctions.
In September 1993, four inmates escaped from the maximum security unit of the Cochise County Jail. One of the escapees, Floyd Thornton, broke into the home of Mary and Dale Duke in Bisbee, Arizona, while the Dukes were away. The Dukes returned around noon and, as Dale Duke opened the door to the house, he was shot in the chest by Thornton and killed. Mary Duke was behind her husband and witnessed the shooting. The inmate took her into the house, tied her up, and held her prisoner for several hours before fleeing. At the time, the Dukes had been married 53 years.
Mary Duke, on behalf of herself and two of her adult children, Sylvia Joy and Daniel Duke, sued the County for wrongful death. She also brought claims for false imprisonment and emotional distress. Prior to trial, all plaintiffs offered to settle for the $2 million limit of the County's liability coverage, but the offer was refused. At trial, the County admitted its own gross negligence and liability for all damages arising from the acts of Thornton. After a trial solely on the issue of damages, the jury returned verdicts awarding Mary Duke $2.3 million for the wrongful death of her husband, $350,000 for emotional distress, and $200,000 for false imprisonment. In addition, it awarded Sylvia Joy $600,000 and Daniel Duke $100,000 for their father's death. The trial court awarded appellants additional costs and fees pursuant to Rule 68(d).
The County filed various post-trial motions, and appellants requested that the trial judge recuse himself before ruling on them, alleging that public statements by County officials about the large verdicts had "created an environment" in which the court's impartiality would be "questioned." The judge declined, finding that the statements would have no bearing on his decisions.
The trial court subsequently granted the County's motion for judgment notwithstanding the verdict and vacated the $350,000 verdict for emotional distress, finding that Duke had failed to prove the required legal element of physical injury as a result of witnessing the murder of her husband. The court also ordered a new trial based on the County's claim of excessive damages, conditioned upon appellants' acceptance of remittiturs of $1.15 million for Duke's wrongful death claim and $300,000 for Joy's claim. Appellants accepted the remittiturs, and Duke appealed the judgment n.o.v. vacating the verdict for emotional distress. After the County cross-appealed the award of Rule 68 sanctions against it, Duke and Joy "counter-cross-appealed" the order granting remittitur of their wrongful death verdicts and the denial of their request for recusal.
We first address appellants' contention that the wrongful death awards were not excessive and that the trial court's remittiturs were an abuse of discretion motivated by the judge's "impartiality." At the outset, the County contends that issue is not properly before us because appellants accepted the trial court's orders of remittitur and did not appeal them, raising the subject only in response to the County's cross-appeal by way of their "counter-cross-appeal." It is well established that appellate courts have jurisdiction only over those matters designated in the notice of appeal or cross-appeal. Flory v. Silvercrest Industries, Inc., 129 Ariz. 574, 633 P.2d 383 (1981); Baker v. Emmerson, 153 Ariz. 4, 734 P.2d 101 (App.1986). Appellants argue, however, that the remittiturs were properly raised pursuant to Ariz.R.Civ.P. 59(i)(2), 16 A.R.S. The County disagrees, citing Flory and Waqui v. Tanner Bros. Contracting Co., 121 Ariz. 323, 589 P.2d 1355 (App.1979).
Rule 59(i)(2) provides:
If a statement of acceptance is filed by the party adversely affected by reduction or increase of damages, and the other party thereafter perfects an appeal, the party filing such statement may nevertheless cross-appeal and the perfecting of a cross-appeal shall be deemed to revoke the consent to the decrease or increase in damages.
Appellants argue that the plain language of the rule allows the accepting parties to cross-appeal a remittitur whenever the other party perfects an appeal "of any kind." Those words, however, do not appear in the rule, nor is such a construction consistent with its underlying purpose and the cases cited by the County.
In Flory, our supreme court found the issue of remittitur not properly raised on appeal when it was neither referred to nor mentioned in the accepting parties' cross- appeal, noting the mandatory requirements ofRule 8(c), Ariz.R.Civ.App.P., 17B A.R.S. The court further found that acceptance of the remittitur was not automatically revoked pursuant to Rule 59(i)(2) in view of the rule's purpose of reversing the common law "estoppel" rule, which bound the accepting party to a remittitur even when haled into the appellate arena by the other party. State v. Tucson Title Insurance Co., 101 Ariz. 415, 420 P.2d 286 (1966). The Flory court cited Waqui, in which this court stated:
The rule obviously is intended to afford the accepting party an opportunity to challenge a remittitur or additur by cross-appeal, and has no application in this case, where the cross-appeal is not directed to the additur.
121 Ariz. at 327, 589 P.2d at 1359. Although neither Flory nor Waqui is directly on point, they do support the County's contention that nothing in Rule 59(i) creates any new rights of appeal for a party which has itself initiated the appeal. Moreover, the rule's purpose of obviating the estoppel rule would not be served by its application here. See State Bar Committee Note (1967 Amendment), Ariz.R.Civ.P. 59(i). Appellants accepted the remittitur, and Duke originally appealed only the judgment vacating the award for emotional distress. The County limited its cross-appeal to the Rule 68 sanctions against it. Therefore, appellants are precluded from interjecting the remittitur issues on appeal.
Furthermore, even assuming that the propriety of the remittiturs were properly before us, our review of the record supports the trial court's decision that the wrongful death awards were excessive, given the trial court's great discretion in remittitur orders. Mammo v. State, 138 Ariz. 528, 675 P.2d 1347 (App.1983); see Duncan v. State, 157 Ariz. 56, 754 P.2d 1160 (App.1988) (). Likewise, we find meritless and unfounded appellants' contention that the trial judge was "biased and prejudiced" and that his remittitur order was a result of "hometown pressure" and the County's "extensive lobbying efforts" about its financial dilemma over the verdicts, particularly when appellants merely requested recusal and did not file a formal notice and affidavit as required by Rule 42(f)(2). See State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. denied, 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962).
We next address Duke's contention that the trial court erred in vacating her award for emotional distress. Duke first asserts that the County failed to move for a directed verdict on the issue, a required predicate to its motion for judgment n.o.v. Ariz.R.Civ.P. 50(b), 16 A.R.S. The record, however, indicates the contrary. While no motion for directed verdict actually appears, it can be inferred that such a motion was made off the record, 1 and Duke at no point argued or suggested to the trial court that the motion for judgment n.o.v. was precluded. Generally, an argument not raised below cannot be raised for the first time on appeal. Dillig v. Fisher, 142 Ariz. 47, 688 P.2d 693 (App.1984). We therefore address the issue on its merits.
In order to recover for negligent infliction of emotional distress, a plaintiff must have been within the "zone of danger" and must prove physical injury resulting from the shock of witnessing injury to a closely related person. Keck v. Jackson, 122 Ariz. 114, 116, 593 P.2d 668, 670 (1979). To recover for intentional infliction of emotional distress, a plaintiff must show that the defendant's conduct was extreme and outrageous, causing plaintiff severe emotional distress; physical injury need not occur. Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (App.1987); Restatement (Second) of Torts § 46 (1965).
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