Rollings v. City of Tucson, 2 CA-CV 2014-0069
| Decision Date | 14 May 2015 |
| Docket Number | No. 2 CA-CV 2014-0069,2 CA-CV 2014-0069 |
| Parties | KELLEY ROLLINGS, TRUSTEE OF THE ROLLINGS TRUST DATED APRIL 22, 1982; DONALD B. ROLLINGS, TRUSTEE OF THE ROLLINGS TRUST DATED APRIL 1, 1989; AND BACON INDUSTRIES, AN ARIZONA CORPORATION, Plaintiffs/Appellees/Cross-Appellants, v. THE CITY OF TUCSON, Defendant/Appellant/Cross-Appellee. |
| Court | Court of Appeals of Arizona |
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NOT FOR PUBLICATION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
The Honorable Jeffrey T. Bergin, Judge
VACATED AND REMANDED
Khalidi Law Firm, PLLC, Tucson
By Thabet N. Khalidi
Mesch, Clark & Rothschild, P.C., Tucson
By Gary J. Cohen
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.
¶1 The City of Tucson ("City") appeals from the trial court's judgment awarding damages to Kelley Rollings, Trustee of the Rollings Trust dated April 22, 1982, Donald Rollings, Trustee of the Rollings Trust dated April 1, 1989, and Bacon Industries, Inc., (collectively "Rollings") for damage to Rollings's historic buildings allegedly caused by leaks in the City's water lines. The City argues the court's instructions to the jury regarding trespass and nuisance were incorrect because they omitted the element of intent. The City also contends the court erred in giving an indivisible injury instruction. Rollings cross-appeals from the court's denial of its motion for prejudgment interest. For the following reasons, we vacate the judgment in favor of Rollings and remand for a new trial.
¶2 Rollings owns a number of historic adobe buildings in Tucson. In 2002, Rollings filed a complaint against the City, alleging that it had negligently allowed water to leak from city pipes, causing damage to several of Rollings's buildings. Rollings also asserted claims of trespass and nuisance. A jury found in favor of the City on all claims, and the trial court entered judgment in favor of the City. Rollings appealed to this court, and we reversed the judgment in favor of the City on the nuisance and trespass claims, affirmed the jury's verdict on the negligence claim, and remanded the matter for further proceedings.
¶3 Following a second trial, the jury found in favor of Rollings on the trespass and nuisance claims and awarded damagestotaling $2,945,158. After the trial court entered judgment in favor of Rollings, the City filed a timely motion for a new trial, which the court denied. The City then filed a timely notice of appeal, and Rollings cross-appealed.
¶4 Rollings contends that our previous memorandum decision forecloses the City's argument that intent is an element of trespass and nuisance. Each of Rollings's primary arguments—that our decision and mandate required the second trial court to instruct the jury that trespass and nuisance are strict liability torts, that the law of the case doctrine applies, and that the City should be judicially estopped from asserting intent is an element of trespass and nuisance—turns on our decision in the first appeal. See Cyprus Bagdad Copper Corp. v. Ariz. Dep't of Revenue, 196 Ariz. 5, ¶ 7, 992 P.2d 5, 7 (App. 1999) (); Ziegler v. Superior Court, 134 Ariz. 390, 393, 656 P.2d 1251, 1254 (App. 1982) (); Bank of Am. Nat'l Trust and Sav. Ass'n v. Maricopa Cnty., 196 Ariz. 173, ¶ 7, 993 P.2d 1137, 1139 (App. 1999) (). Accordingly, we first must decide if the question of whether intent is an element of trespass and nuisance was before us in the first appeal.
¶5 During the first trial, Rollings requested an instruction that "plaintiffs need not show that the City acted negligently or wrongfully" to prove trespass or nuisance. The City, in contrast, argued that "the law requires negligence be shown in order for liability to be assessed against a water company for leaks from its mains," regardless of whether the claim is one for "nuisance, trespass, or otherwise." The court declined to give the requested instruction.
¶6 The court instructed the jury that, to prove trespass, Rollings had to prove "[t]hat the City trespassed by leaking wateronto [their] property without their permission" and "[t]hat the City's trespass caused damage to [their] property." The court further instructed the jury that, to prove nuisance, Rollings had to prove that "[t]he leaking water unreasonably and substantially interfered with [their] use and enjoyment of their property" and "[c]aused damage to [their] property." In an instruction entitled "Negligence Instruction," the court instructed the jury that "[a] water distributor may not be held liable for leaks unless the injuries complained of are proximately caused by its negligence." The jury found in favor of the City on all claims.
¶7 On appeal, Rollings argued that "the Court's instruction on proximate causation, which apparently was intended as a negligence instruction, gave the impression that any liability had to be based on damages proximately caused by negligence." Relying on City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30 (1938), Rollings claimed that Arizona law was clear that "a plaintiff who sues a city for nuisance or trespass resulting from operation of a municipal system need not prove that the city was negligent in its design, operation, or maintenance of the system." Thus, according to Rollings, "the defendant's negligence is not an element of a claim for nuisance or trespass, and the absence of negligence is not a defense to those claims."
¶8 In its answering brief, the City stated that "[t]he trial court's nuisance, trespass and negligence instructions adequately set forth the applicable law" and argued that the proximate cause instruction "states that it relates solely to the negligence claim and not to Rollings' claims of trespass or nuisance." Neither Rollings's nor the City's briefs addressed whether intent is an element of trespass or nuisance.
¶9 In our memorandum decision, we noted that although the City had challenged Rollings's statement of the law that the jury could find the City liable for nuisance or trespass without finding it negligent, the City had not raised that argument on appeal. Rollings v. City of Tucson, No. 2 CA-CV 2006-0183, n.2 (memorandum decision filed Dec. 24, 2007). We stated that the trial court correctly instructed the jury on the elements of each cause of action, id. ¶ 9, but agreed with Rollings that the instructions the court gaveregarding the elements of nuisance, trespass, and negligence, "when viewed within the context of other instructions, . . . suggested that the jury had to find the City had been negligent in order to find it liable under any of the three causes of action," id. ¶ 8. We stated that "under Arizona law pertaining to claims of trespass and nuisance, Rollings was not required to demonstrate that the City had committed any wrong or error—only that the City's water had invaded Rollings's property and had caused Rollings damage." Id. ¶ 10. We concluded that, particularly in light of the City's closing argument, there was "'substantial doubt as to whether the jury was properly guided in its deliberations'" and that the trial court erred by failing to give Rollings's requested clarifying instruction. Id. ¶ 18, quoting Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 126, 927 P.2d 781, 786 (App. 1996).
¶10 At the second trial, the City requested that the trial court instruct the jury that, to prove trespass, Rollings had to prove "the City trespassed by intentionally leaking water onto [Rollings's] property without their permission" and "'[i]ntent' means that the actor desires to cause the consequences of his acts or that he believes that the consequences are substantially certain to result from it." The City also requested that the court instruct the jury that, to prove nuisance, Rollings had to prove "the leaking water is a legal cause of an invasion of their interest in the private use and enjoyment of land, and the invasion is either 1) intentional and unreasonable; or 2) unintentional and reckless." When the parties were settling final instructions, the City objected to the court's trespass and nuisance instructions, arguing that the instructions should have included intent as an element of both claims. The court overruled both objections and gave instructions on trespass and nuisance that did not include an intent element.
¶11 After reviewing the record in the first trial, the briefs in the first appeal, and our memorandum decision, as set forth above, we conclude that the parties did not properly bring before us in the first appeal the question of whether intent is an element of trespass and nuisance. Rather, the parties limited their arguments to whether Rollings had to prove the City was negligent in the construction or maintenance of the water main in order to establish claims for trespass and nuisance and whether the court'sinstructions to the jury were confusing or misleading. We did not hold, as Rollings suggests, that "strict liability applies to Rollings's claims of trespass and nuisance," nor did we direct the trial court on remand to instruct the jury that Rollings did not need to prove intent to prove its claims of trespass and nuisance. See Rollings, No. 2 CA-CV 2006-0183, ¶¶ 6-19. Instead, we concluded only that the...
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