In the Matter of The EState W. Hanscome v. Foothills

• Decision Date: 21 April 2011
• Docket Number: No. 1 CA–CV 10–0007.,1 CA–CV 10–0007.
• Citation: 227 Ariz. 158,254 P.3d 397,606 Ariz. Adv. Rep. 39
• Parties: In the Matter of the ESTATE OF Noyes W. HANSCOME, Deceased.Colleen A. Hanscome, Personal Representative of the Estate of Noyes W. Hanscome, on behalf of the Estate of Noyes W. Hanscome, and Colleen A. Hanscome, individually and on behalf of Noyes W. Hanscome's statutory beneficiaries pursuant to A.R.S. section 12–612(A), Plaintiff–Appellee–Appellant,v.Evergreen at Foothills, L.L.C., a Washington limited liability company dba Evergreen Foothills Health and Rehabilitation Center; Evergreen Healthcare Management, L.L.C., a Washington limited liability company, Kim Benjamin Bangerter, executive director, Defendants–Appellants–Appellees.
• Court: Arizona Court of Appeals

227 Ariz. 158

254 P.3d 397

606 Ariz. Adv. Rep. 39

In the Matter of the ESTATE OF Noyes W. HANSCOME, Deceased.Colleen A. Hanscome, Personal Representative of the Estate of Noyes W. Hanscome, on behalf of the Estate of Noyes W. Hanscome, and Colleen A. Hanscome, individually and on behalf of Noyes W. Hanscome's statutory beneficiaries pursuant to A.R.S. section 12–612(A), Plaintiff–Appellee–Appellant,

v.Evergreen at Foothills, L.L.C., a Washington limited liability company dba Evergreen Foothills Health and Rehabilitation Center; Evergreen Healthcare Management, L.L.C., a Washington limited liability company, Kim Benjamin Bangerter, executive director, Defendants–Appellants–Appellees.

No. 1 CA–CV 10–0007.

Court of Appeals of Arizona, Division 1, Department E.

April 21, 2011.

Law Office of Scott E. Boehm, P.C. by Scott E. Boehm and Wilkes & McHugh, P.A. by Melaine L. Bossie, Elizabeth A. Gilbert, Phoenix, Attorneys for Colleen A. Hanscome.Smith Farhart & Hornstein, L.L.P. by Elizabeth J. Farhart, Donald H. Smith, Peoria, Attorneys for Evergreen at Foothills.

OPINION

WEISBERG, Judge.

¶ 1 Evergreen at Foothills, L.L.C., dba Evergreen Foothills Health and Rehabilitation Center; Evergreen Healthcare Management, L.L.C.; and Kim B. Bangerter, director of Evergreen Foothills Health and Rehabilitation Center (collectively “Defendants”) appeal from the superior court's order that they accept an additur to a jury's award of zero damages to Colleen A. Hanscome, widow of Noyes W. Hanscome, as an alternative to a new trial on damages. Colleen appeals on behalf of her minor son, Chandler, from the court's order remitting the jury's verdict on Chandler's damages for the wrongful death of his father, again as an alternative to a new trial on damages. Because both sides rejected the awards of additur and remittitur, the court ordered a new trial to determine the amount of wrongful death damages. For reasons that follow, we affirm the damage award to Noyes' estate but reverse the additur to Colleen, vacate the remittitur of Chandler's damage award, and remand for further proceedings.

BACKGROUND

¶ 2 Noyes Hanscome was undergoing cancer treatment when he was admitted to the hospital in December 2004 for an unrelated head injury. He was later transferred to Evergreen Foothills Health and Rehabilitation Center on January 28, 2005. On February 28, 2005, Noyes was re-transferred to the hospital and died on March 8, 2005. Colleen alleged that due to the substandard care Noyes had received at the Evergreen Center, he suffered a premature ¹ and painful death. Colleen brought an action for elder abuse on behalf of Noyes' estate under the Adult Protective Services Act (“APSA”), Arizona Revised Statutes (“A.R.S.”) sections 46–451 to –459 (Supp. 2009). She also alleged claims for negligence and wrongful death on behalf of herself and Chandler.

¶ 3 The case went to trial, and in closing argument, Colleen's counsel suggested an award of $5 to 10 million to compensate Chandler for Noyes' wrongful death. Although the jury was instructed on punitive damages, it declined to award such damages. The jury, however, awarded Chandler $1.8 million in compensatory damages; awarded Colleen zero damages; and awarded Noyes' estate $200,000. The court entered judgment for $2 million in addition to costs and attorney's fees.

¶ 4 Defendants moved for a new trial. They asserted that by giving a punitive damage instruction, the court had “opened the door to the concept of punishment” and inflamed the jury to award the “outrageously excessive” amount of $1.8 million to Chandler. They also asserted that “the jury found a way to punish Defendants and take care of Chandler by inflating his compensatory damages without having to comply with the clear and convincing standard that punitive damages require.” Defendants additionally challenged instructions that barred consideration of insurance proceeds to reduce the damages and that allowed the jury to draw a negative inference from the loss of certain records. Finally, they challenged the propriety of Colleen's closing argument and argued that her counsel improperly had waited until rebuttal to address damages. In their reply, Defendants for the first time suggested that the court could apply remittitur to the verdict.

¶ 5 At oral argument, when the court asked what “a fair verdict” for Chandler might be, Defendants suggested “around the $500,000 mark.” The court stated that “the ultimate test” was “what is fair and reasonable compensation given the damage sustained,” and later said, “you didn't mention additur, why wouldn't there be a request to add something” to Colleen's award in light of the verdicts for Chandler and the estate. Colleen responded that the test is whether the verdict shocked the trial court's conscience and that although an award in her favor would have been desirable, “it's better to let our system work and let the jury verdict stand.” The court denied a new trial but asked for supplemental briefing on the issue of remittitur.

¶ 6 In her supplemental brief, Colleen argued that an additur was more justified than a remittitur. She cited Sedillo v. City of Flagstaff, 153 Ariz. 478, 479, 737 P.2d 1377, 1378 (App.1987), a wrongful death action in which the plaintiffs unsuccessfully moved for additur, and this court found that the trial court had abused its discretion because the “unimpeached evidence” showed close family relationships had existed between the deceased and his family and that “all suffered substantial emotional, and possibly financial, injuries.” Id. at 482, 737 P.2d at 1381. Colleen stated that she did not expect the court to “take any action” but that “the law would favor an additur.” In their supplemental brief, Defendants asserted that the jury had failed to consider Noyes' short life expectancy and inability to interact with Chandler. They argued that Chandler should receive $200,000 in compensatory damages.

¶ 7 At a second oral argument, the court observed that “the jury was outraged” by Defendants' conduct and that punitive damages would have been proper. Colleen's counsel argued that remittitur was proper in cases in which the jury misunderstood the instructions or had not been properly instructed but that “just what you think is reasonable” was not the standard applied in those cases. He added that he was not asking the court to impose punitive damages when the jury had declined to do so, at which time the court said, “Yeah, but this isn't the bottom line does the evidence support the verdict.” The court also said that the jury “punished the Defendant[s]. They didn't follow the instructions with respect to wrongful death.” The court noted that “the person who lost the contact, the love and affection, the relationship” was Colleen and expressed doubt that Noyes could have participated in Chandler's life “other than to see him and maybe kiss him.”

¶ 8 In its ruling, the court found the award to Noyes' estate “fair and reasonable” and that Defendants' outrageous conduct would have supported a punitive damage award of $1.8 million. It rejected the argument that the evidence had inflamed the jury, and because there was no punitive damages award, the court concluded that the verdicts were based on the jury's view of the evidence. But “[i]n good conscience,” the court could not find that “adequate evidence” supported the actual damage award of $1.8 million to Chandler and reduced it to the sum that Defendants initially had suggested was “fair,” i.e., $500,000. Furthermore, the court concluded that Sedillo required it “in good conscience” to award an additur to Colleen of $200,000 because “[t]he only reasonable explanation for a zero award is the jury's belief that she received a substantial sum from [the] life insurance carrier.” ² The court gave both sides time to consider whether to accept the remittitur and additur in lieu of a new trial.³

¶ 9 Colleen notified the court that she would not accept the remittitur, and Defendants timely rejected the additur. The court then issued a “final order” noting the rejection of its proposal and ordering a new trial to determine the amount of damages suffered by Colleen and Chandler.

¶ 10 Colleen appealed from the judgment on the jury verdict and the court's final order. Defendants filed a “Supplemental Notice of Appeal” challenging the additur. We have jurisdiction pursuant to A.R.S. § 12–2101(B), (F)(1)(2003).

DISCUSSION

¶ 11 Colleen contends that in offering a remittitur of Chandler's verdict, the court applied an incorrect legal standard, i.e., the court's own sense of fairness, and overlooked evidence supporting the $1.8 million verdict. In their appeal, Defendants argue that the court abused its discretion by offering the additur for Colleen. We first consider the grant of a new trial on the issue of Chandler's damages.

Remittitur of Chandler's Award

¶ 12 It is “well settled in Arizona that the amount of an award for damages is a question peculiarly within the province of the jury, and such award will not be overturned or tampered with unless the verdict was the result of passion and prejudice.” ⁴ Larriva v. Widmer, 101 Ariz. 1, 7, 415 P.2d 424, 430 (1966). Thus, when faced with a motion for new trial asserting that the damages were excessive or the verdict resulted from passion or prejudice or was not justified by the evidence, the trial court asks whether the “verdict is so ‘manifestly unfair, unreasonable and outrageous as to shock the conscience.’ ” Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23, 961 P.2d 449, 453 (1998). Furthermore, neither an appellate court nor the trial court may “reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences ... or because ... other results [were] more reasonable.” Id. at 56, ¶ 27, 961 P.2d at 454; see also Creamer v. Troiano, 108 Ariz. 573, 576, 503 P.2d 794, 797 (1972) (if “case has been submitted on correct rulings...