Hertz v. Coy
| Decision Date | 22 July 2014 |
| Docket Number | No. 1 CA-CV 12-0608,1 CA-CV 12-0608 |
| Parties | RHONDA JEAN HERTZ, a single woman, Plaintiff/Counterdefendant/Appellee, v. LAURA LYNN COY, Defendant/Counterclaimant/Appellant. LAURA LYNN COY, Cross-Claimant/Appellant, v. SAMUEL F. COY, Cross-Defendant/Appellee. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Navajo County
The Honorable Monica L. Stauffer, Judge
AFFIRMED
The Hendrickson Law Firm, PLLC, Tempe
By Brian W. Hendrickson
Law Office of Mark J. Leonardo, Malibu, CA
By Mark J. Leonardo, Pro Hac Vice
By William D. Holm, Lori L. Voepel, Eileen Dennis GilBride
Samuel F. Coy, Show Low
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
¶1 This appeal arises out of rulings made during an eleven-day jury trial on breach of contract and intentional infliction of emotional distress claims. Finding no abuse of discretion or error of law, we affirm.
¶2 Laura Lynn Coy ("Laura")1 and her husband, Samuel F. Coy ("Sam"), moved from Show Low to Port Hueneme, California, in 2001. They soon discovered that pigeons had infested their California house and five hundred gallons of droppings remained between the attic's framing and drywall. The Coys sued the seller and eventually recovered $593,471.17 in damages (the "Wachtel litigation").
¶3 Rhonda Hertz ("Rhonda"), Sam's former supervisor at Show Low Pontiac-GMC-Buick-Nissan, LLC ("SLP"), loaned Sam and Laura various amounts totaling $129,387.39 to pay attorneys' fees incurred during the Wachtel litigation. Laura signed a notarized letter in April 2004 acknowledging debts to Rhonda in the amounts of $60,000 due at that time, as well as liability for $15,000 Rhonda would be advancing.
¶4 Sam returned to Arizona in 2002 and resumed employment at SLP, while Laura remained in California with their two children. Samand Laura executed a separation agreement requiring Sam to pay monthly child and spousal support and to give Laura his share of the Wachtel litigation proceeds.
¶5 Laura filed for divorce in California in 2005. During the divorce proceeding, Laura claimed that she had signed the notarized document acknowledging her obligation to Rhonda under duress. The California family court, however, declined to hold Sam solely responsible for the loans from Rhonda, and dissolved the marriage in 2010.
¶6 Rhonda sued Sam and Laura for breach of contract in 2006 and obtained a default judgment against Sam. Laura answered the complaint and also filed a counterclaim against Rhonda, a cross-claim against Sam, and a third-party complaint against SLP.
¶7 In the cross-claim and counterclaim, Laura alleged that (1) Rhonda's and Sam's actions intentionally caused her emotional distress, (2) Rhonda induced Sam to breach the Coys' separation agreement and interfered with a contract and prospective economic advantage, (3) Sam engaged in fraud and conspired to defraud Laura, (4) Sam interfered with Laura's prospective economic advantage and breached their separation agreement as well as the covenant of good faith and fair dealing, (5) Laura was entitled to indemnity and declaratory relief from Sam, and (6) Rhonda aided and abetted tortious conduct and conspired to defraud Laura. Laura's third-party complaint against SLP similarly asserted claims for intentional interference with contract and prospective economic advantage, aiding and abetting tortious conduct, and conspiracy to defraud.
¶8 The trial court granted summary judgment in SLP's favor on all claims in the third-party complaint. It later granted summary judgment in Rhonda's favor on all claims between Laura and Rhonda except for Rhonda's breach of contract claim and Laura's intentional infliction of emotional distress claim.
¶9 During the subsequent trial, Laura testified that Sam and Rhonda's behavior reactivated trauma she had suffered as a child. Specifically, Laura claimed that Rhonda threatened to make Laura homeless if Laura didn't "get [her] claws out of Sam." Laura also testified that she suffered emotional distress when Sam reported her to the Social Security Administration for working and earning money notwithstanding her receipt of Social Security disability benefits. According to Laura, Sam, Rhonda, and others hid Sam's income using loans and funneled money tohelp Sam avoid paying Laura additional child support.
¶10 The jury returned a verdict in favor of Rhonda on the breach of contract claim and in favor of Sam and Rhonda on the intentional infliction of emotional distress claim. The trial court incorporated the verdict in a final judgment with Rule 54(b) language.2 This appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(A)(1).
¶11 Laura challenges several trial rulings on appeal. We view the evidence and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdict. See Romero v. Sw. Ambulance, 211 Ariz. 200, 202, ¶ 2, 119 P.3d 467, 469 (App. 2005).
¶12 Laura challenges the exclusion of expert testimony from psychiatrist Dr. Carole Lieberman, as well as Dr. Lieberman's report, based on untimely disclosure. Citing Laura's "systemic delay, obstruction, and noncompliance" throughout the course of the litigation, the trial court rejected Laura's claim that the failure to disclose was inadvertent and thus should have been excused. See Ariz. R. Civ. P. 26.1(a)(6) (). We review the trial court's ruling on discovery and disclosure matters for abuse of discretion. Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998).
¶13 Arizona Rule of Civil Procedure ("Rule") 37(c)(1) provides, in relevant part, that "[a] party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial . . . the information or witness not disclosed, except by leave of court for good cause shown." Laura first disclosed Dr. Lieberman as an expert on January 3, 2012 and Dr. Lieberman's report on January 12, 2012, just thirty-nine days before trial. Both disclosures were past the disclosure deadline of December 23, 2011,and Laura had not requested an extension under Rule 26.1(b)(2) before the deadline.
¶14 Once the trial court concluded that the disclosure deadline violation was not harmless because Rhonda would then have to subpoena Dr. Lieberman's file, take her deposition and provide all the information to her expert, the trial court was authorized to impose sanctions unless Laura established good cause. See Ariz. R. Civ. P. 37(c)(1). Factors relevant to good cause include: (1) the reason for the failure to properly disclose evidence, (2) the willfulness or inadvertence of the party's or attorney's conduct, (3) prejudice to either side that may result from excluding or allowing the evidence; (4) the opposing party's or attorney's action or inaction in attempting to resolve the dispute short of exclusion; and (5) the overall diligence with which a case has been prosecuted or defended. Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258 (1995).
¶15 Laura argued that her attorney mistakenly believed that he had served a disclosure statement identifying Dr. Lieberman on November 1, 2011, and thus the disclosure violation was inadvertent. But even if counsel had notified opposing counsel on November 1, 2011 that Dr. Lieberman would be a witness, the export report could not be provided by the December 12, 2011 deadline because Dr. Lieberman had yet to evaluate Laura and did not do so until January 2012. Laura did not timely seek to extend the December 12 deadline for expert reports. Moreover, Laura did not provide a compelling basis for the trial court to excuse her failure to comply with the December 12 deadline.
¶16 The other factors set forth in Allstate also support the finding that Laura failed to establish good cause. Not only did Rhonda promptly bring the issue to the trial court's attention and request enforcement of the court's deadlines, Laura used the videotaped deposition of a different expert, Dr. Jeff Titcher, at trial.
¶17 Although Laura now claims prejudice from the preclusion of the Lieberman evidence, she did not present that argument to the trial court, and we decline to consider her argument made for the first time on appeal. See Sobol v. Marsh, 212 Ariz. 301, 303 n.4, ¶ 6, 130 P.3d 1000, 1002 n.4 (App. 2006) () Even without the Lieberman evidence, the jury evaluated Laura's case because both Laura and Dr. Titcher testified. The jury had to determine the credibility of the witnesses in determining whether Laura proved her case.
The fact that Dr. Lieberman was precluded from testifying was not because of any error made by the trial court, but Laura's failure to disclose the information and the prejudice that would result.3
¶18 Because the trial court was in the best position to determine the appropriate sanctions given the history of the case, the court did not abuse its discretion by precluding Laura's expert on finding that Laura failed to establish good cause for her untimely disclosure. See Zuern v. Ford Motor Co., 188 Ariz. 486, 489, 937 P.2d 676, 679 (App. 1996) (...
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