In re Bollin

• Decision Date: 08 September 2015
• Docket Number: No. 2 CA-CV 2014-0127,2 CA-CV 2014-0127
• Parties: MARCIA V. BOLLIN, Plaintiff/Appellant/Cross-Appellee, v. CUMMINGS PLUMBING, INC., AN ARIZONA CORPORATION, Defendant/Appellee/Cross-Appellant.
• Court: Arizona Court of Appeals

MARCIA V. BOLLIN, Plaintiff/Appellant/Cross-Appellee, v. CUMMINGS PLUMBING, INC., AN ARIZONA CORPORATION, Defendant/Appellee/Cross-Appellant.

No. 2 CA-CV 2014-0127

ARIZONA COURT OF APPEALS DIVISION TWO

September 8, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20125466

The Honorable James E. Marner, Judge

AFFIRMED

COUNSEL

Munger Chadwick, P.L.C.

By Mark E. Chadwick, Tucson

Counsel for Plaintiff/Appellant/Cross-Appellee

McEvoy, Daniels & Darcy, P.C.

By Sally M. Darcy, Tucson

Counsel for Defendant/Appellee/Cross-Appellant

MEMORANDUM DECISION

Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.

ESPINOSA, Judge:

¶1 Appellant Marcia Bollin appeals the trial court's rulings granting appellee Cummings Plumbing's (Cummings) motion for judgment as a matter of law on her claims for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. She also challenges, and Cummings cross-appeals, portions of the trial court's judgment denying their requests for attorney fees and costs. Cummings additionally cross-appeals the trial court's preclusion of one of its expert witnesses. For the following reasons, we affirm.

Factual and Procedural Background

¶2 In the fall of 2010, Bollin hired Cummings to install a Heating, Ventilation and Air Conditioning (HVAC) system in her residence. The contract provided that Cummings would complete all work "in a professional manner according to standard practices." A few months after installation, Bollin began noticing a "chemical smell" coming from the HVAC system and dust accumulating in "certain areas" of her house. Bollin notified Cummings of both issues and was told "there's no way anything can get in the[ system]" because it was sealed.

¶3 Cummings conducted an annual "checkup" on Bollin's HVAC system in November 2011. Bollin told the Cummings technician she was concerned about the smell and the dust in her home. She also informed him about a pigeon problem she was having on her roof, expressing concern that pigeon debris and feces might be entering into her home through the HVAC system. Afterinspecting the system, the employee told her "not to be concerned about the pigeons" and "everything was fine."

¶4 In April 2012, Bollin asked Cummings to inspect the HVAC system again because she was worried that the previously reported fumes and dust inside her home were affecting her health. After Bollin showed a technician some white dust accumulating in her house—which he could not explain—he telephoned his supervisor, Jason Carnes. Bollin then informed Carnes about the odors and dust but he "stern[ly]" told her the HVAC system "was functioning fine," and the problems were caused by something Bollin was doing.

¶5 In June 2012, Bollin contacted Carnes and asked him to clean the ducts on the HVAC system, to which he agreed. About two weeks after the ducts were cleaned, Bollin perceived no improvement with the dust, so she telephoned Carnes again. According to Bollin, she "begged him to come out," but Carnes refused, stating "he was through with . . . making any deals," and "you[ a]re one in a million that sees white." When Bollin asked what he had meant by the latter comment, Carnes repeated it several more times, and at one point stated "well, you know, people lie."

¶6 The following day, Bollin hired a different company to inspect the HVAC system. The new technician noted gaps in the HVAC on the roof and was concerned that pigeons nesting around the gap could have been causing "some problems inside the house." Based on this information, Bollin called Cummings to "tell them what [had been] found." When the receptionist told her Carnes would come to her house, Bollin complained of the treatment she had received from him the previous day and asked for someone else instead.

¶7 Carnes nevertheless went to Bollin's home, and she directed him to one of her televisions, which was "covered" in dust, ran her finger down the television, and with her "finger up" said, "now, . . . am I still one in a million that sees white?" Carnes responded in a raised voice, "I just left my boss. I don't have to be here. I can leave . . . ." Bollin described his behavior as "demeaning. . . intimidating, bullying," and it made her feel "hopeless." Eventually, Bollin hired another company to clean and close the gap in the ducts, and the dust stopped around July 2012.

¶8 Bollin sued Cummings in September 2012 for breach of contract, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED),¹ negligence, and punitive damages. At trial, Cummings moved for judgment as a matter of law on all counts. The court denied the motion as to the breach of contract claim, but granted it on all remaining counts. The jury returned a verdict for Bollin on the contract claim in the amount of $3,059.

¶9 Both parties sought recovery of attorney fees and costs pursuant to A.R.S. §§ 12-341 and 12-341.01, each claiming to have been the successful party. Cummings also sought fees under A.R.S. § 12-349. After applying "both the 'percentage of success factor' test and the 'totality of the litigation' test," the trial court deemed both parties the successful party "to some degree," but declined to award either side attorney fees. In doing so, the court pointed out that Bollin's actions "unnecessarily morphed [the lawsuit] from a relatively straightforward contract claim . . . subject to compulsory arbitration to a multi-count litigation that was lacking in supportive evidence," and noted that Cummings's failure to respond to Bollin's early settlement attempt "contributed to th[e] protracted litigation."

¶10 The trial court entered judgment in August 2014.² Bollin and Cummings filed timely notices of appeal and cross-appeal, respectively, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

Judgment as a Matter of Law

¶11 Bollin contends the trial court erred in granting judgment as a matter of law (JMOL) on all of her noncontract claims. We review the court's rulings de novo. See McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, ¶ 10, 265 P.3d 1061, 1064 (App. 2011). "A motion for JMOL should be granted 'if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.'" A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty., 222 Ariz. 515, ¶ 14, 217 P.3d 1220, 1229 (App. 2009), quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). In deciding the motion, the trial court must not weigh the credibility of witnesses or resolve conflicts of evidence. See Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, ¶¶ 12, 15, 9 P.3d 314, 318-19 (2000).

Intentional Infliction of Emotional Distress

¶12 To establish a viable IIED claim, a plaintiff must show the defendant: (1) engaged in extreme and outrageous conduct; (2) intended to cause or recklessly disregarded the near certainty that emotional distress would arise from its conduct; and (3) actually caused the plaintiff to suffer severe emotional distress. See Nelson v. Phx. Resort Corp., 181 Ariz. 188, 199, 888 P.2d 1375, 1386 (App. 1994). Before submitting an IIED claim to the jury, the trial court must make a preliminary determination as to whether the acts complained of are sufficiently extreme and outrageous to state a claim for relief. See Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (App. 1995). "A plaintiff must show thatthe defendant's acts were 'so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" Id., quoting Cluff v. Farmers Ins. Exch., 10 Ariz. App. 560, 562, 460 P.2d 666, 668 (1969).

¶13 Here, Bollin asserts Cummings "acted outrageously in disregarding known health hazards to [her] for almost two years while intimidating, bullying and insulting her, which caused palpable, severe emotional distress that manifested itself with physical symptoms." Even viewed in the light most favorable to her, the claim is not supported by the record. Assuming Cummings negligently installed the HVAC system, there was no evidence that Cummings deliberately disregarded "known health hazards" or failed to respond to her complaints. Cummings promptly responded to each service request made by Bollin, but concluded the dust and odors were not coming from the HVAC system. Even if Cummings was wrong about the source of the dust and odors, it cannot be said its response to Bollin's complaints went "'beyond all possible bounds of decency.'" Id.

¶14 Nor did Carnes's conduct rise to a level of being extreme or outrageous. His statements to Bollin that she "was one in a million who saw white" and "people lie," though discourteous and unprofessional, were neither extreme nor outrageous. See Midas Muffler Shop v. Ellison, 133 Ariz. 194, 198, 650 P.2d 496, 500 (App. 1982) (liability for IIED does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities). And Carnes's comment that he "d[id no]t have to be here," even if stated in a rude and intimidating manner, did not constitute behavior "'regarded as atrocious and utterly intolerable in a civilized community.'" Mintz, 183 Ariz. at 554, 905 P.2d at 563, quoting Cluff, 10 Ariz. App. at 562, 460 P.2d at 668.

¶15 Bollin's reliance on Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580 (1987), is misplaced. There, Revlon was found liable after it failed to respond to Ford's ongoing complaints of sexual...