Sedillo v. City of Flagstaff

Decision Date03 February 1987
Docket NumberNo. 1,CA-CIV,1
Citation153 Ariz. 478,737 P.2d 1377
PartiesNancy SEDILLO, individually and as personal representative of the Estate of Tony Barela Sedillo, deceased; Toni Sedillo a minor, by and through her next friend and mother, Nancy Sedillo; Estate of Timothy Sedillo; Michael Sedillo, a single man; Matthew Sedillo, a minor, by and through his next of friend and mother, Theresa Fernandez; Eleanor Sedillo, mother of Tony Barela Sedillo, Plaintiffs-Appellants, v. CITY OF FLAGSTAFF, an Arizona incorporated city, Defendant-Appellee. 8536.
CourtArizona Court of Appeals
OPINION

CORCORAN, Judge.

The City of Flagstaff (City) was found liable in a wrongful death action brought by the Sedillos. Plaintiffs timely filed a motion for additur, or in the alternative, a motion for new trial on the issue of damages. The trial court denied the motions. Plaintiffs timely appealed to this court. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1). The City did not cross-appeal.

The issues presented on appeal are:

1. Whether appellants, who were not awarded any damages in the trial court, are aggrieved parties with standing to appeal to this court;

2. Whether the trial court's denial of appellants' motion for additur, or in the alternative, for a new trial, amounted to an abuse of discretion 3. Whether the City of Flagstaff is entitled to a new trial on the issue of liability when it did not appeal from the judgment and did not request a new trial in its answering brief, but only verbally requested a new trial on the issue of liability in its oral argument in this court.

We conclude that those appellants who did not receive any damages in the trial court, despite the jury's unequivocal finding that the City was liable for the wrongful death of the decedent, are aggrieved parties with standing to appeal. We further conclude that the amounts of appellants' verdicts were not supported by the weight of evidence adduced in the trial and that the trial court's denial of additur or of a retrial was an abuse of discretion. We therefore reverse. We also conclude that the City is not entitled to a new trial on the issue of liability.

1. Facts

Early Sunday morning, January 9, 1983, appellant Nancy Sedillo was driving home with her husband, Tony, and their three-year-old daughter, also named Toni. While traveling on Cedar Hill in Flagstaff, Nancy Sedillo encountered a large patch of ice on the road and lost control of the vehicle. The car skidded across the ice, hit an embankment and flipped upside down. Mr. Sedillo, who at the time of the accident was asleep in the front passenger seat, was thrown from the car and killed. Nancy and Toni Sedillo both escaped serious injury.

On the night of the accident, the road was generally dry except for the patch of ice which had formed due to water overflowing from a culvert located alongside the road. The City Public Works Department had attempted to temporarily repair the culvert the day before the accident; however, the repairs did not prevent the formation of ice on the road.

Mrs. Sedillo, her daughter Toni, the decedent's mother and three sons from a former marriage of the decedent filed this wrongful death action in the superior court on December 9, 1983 alleging that the City negligently constructed and maintained the culvert from which the water overflowed, thereby forming an ice patch, and that that negligence caused Mr. Sedillo's death.

Disputed issues of material fact regarding the City's liability were considered by the jury. The jury resolved these liability issues by returning verdicts in favor of all six Sedillos, but only awarded damages to three of them: Nancy Sedillo, decedent's widow, was awarded $5,000; Matthew, decedent's minor son from a former marriage, was awarded $5,000; and Toni, his daughter, was awarded $50,000. No damages were awarded to decedent's mother or to his remaining two adult sons. The jury also found in favor of decedent and awarded $4,031.65 to his estate for funeral and burial expenses and for loss of property in the accident.

Following the trial, appellants moved for additur, or in the alternative, for a new trial, claiming that the jury awards were insufficient and were contrary to the evidence of damages presented at trial. The trial court denied the post-trial motions and this appeal followed.

2. Standing

As an initial matter, the City argues that those appellants who were not financially dependent upon the deceased--Eleanor Sedillo, the deceased's mother, and the deceased's two adult sons, Michael Sedillo and Tim Sedillo (now deceased)--are not "aggrieved parties" and therefore do not have standing to appeal to this court because they have not been denied a "property right" as a direct result of the trial court's judgment. The City cites rule 73(a), Arizona Rules of Civil Procedure. The City's reliance on rule 73(a) is in error. That rule was abrogated effective January 1, 1978 and was replaced by rule 1, Arizona Rules of Civil Appellate Procedure. However, that fact does not affect the result reached herein.

The City's argument is misplaced. Arizona's Wrongful Death Statute, A.R.S. §§ 12-612, et seq., provides each appellant with a claim for compensatory damages due to a decedent's death. Such damages can include allowances for loss of companionship, comfort and guidance. Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965). Because the jury found that the City was responsible for the death of Tony Sedillo, each appellant has been vested with a cognizable right to compensation and each appellant has standing to appeal to this court. A person who is dissatisfied with the amount of judgment is an aggrieved party entitled to appeal. Cornell v. T.V. Dev. Corp., 17 N.Y.2d 69, 268 N.Y.S.2d 29, 215 N.E.2d 349 (1966). When a party is not complaining about the amount of damages awarded him, but is instead complaining that he was awarded no damages whatsoever, that party is clearly "aggrieved" within the meaning of rule 1, Arizona Rules of Civil Appellate Procedure. Therefore, the three appellants who did not receive any damages in the trial court have standing to appeal to this court.

3. Damages

The question of whether additur should be granted in any case is within the discretion of the trial court, and a reviewing court will not reverse the trial court's ruling absent a clear abuse of that discretion. Bustamante v. City of Tucson, 145 Ariz. 365, 701 P.2d 861 (App.1985). However, each case regarding additur must stand on its own peculiar facts, and the ultimate test of whether additur was appropriate will always be whether justice resulted. Any case in which the grant or denial of additur works an unjust result must be reversed. Sequoia Mfg. Co. v. Halec Constr. Co., 117 Ariz. 11, 25, 570 P.2d 782, 796 (App.1977). In this case, those appellants who were granted some damages were granted unjustly small damages in light of the evidence adduced at trial. Therefore, the trial court abused its discretion by refusing to grant additur or a new trial.

Moreover, three members of the decedent's family received no damages, although the jury established the City's liability as to those appellants by its verdicts. The jury was therefore under an obligation, by virtue of A.R.S. § 12-613, to give such damages as it deemed "fair and just" with reference to the injuries suffered. In Boies, the Arizona Supreme Court construed A.R.S. § 12-613 in such a way as to avoid the application of comparative negligence principles to wrongful death actions. Comparative negligence principles were not recognized in Arizona at the time Boies was decided. Boies was written in 1965--19 years before our Uniform Contribution Among Tortfeasors Act (UCATA) became effective. A.R.S. §§ 12-2501, et seq. The present case was filed on December 9, 1983--also before that act became effective. 1

Those appellants who were not granted any damages--the decendent's mother and his two adult sons--are statutory beneficiaries under Arizona's wrongful death statute. A.R.S. § 12-612; see, e.g., Begay v. City of Tucson, 148 Ariz. 505, 508, 715 P.2d 758, 761 (1986). The evidence concerning the decedent's close family relationships was not impeached, contradicted or refuted by any substantive evidence offered by the City.

As to the statutory beneficiaries' economic losses caused by the death, the evidence established that, at his death, the decedent was a full-time supervisor for the Arizona Department of Transportation, and that in 1979 he became a concrete inspector to broaden his background and develop his expertise. He had been steadily employed with the State of Arizona for 14 years. Relying on acceptable economic analyses, appellant's financial consultant estimated the deceased's future earnings to approximate $1.2 million to age 65, and he testified that this amount had a present value of approximately $237,300. The financial consultant's accuracy was not impeached.

By statute, the jury was also authorized to consider the statutory beneficiaries' loss of love, affection, companionship, consortium, personal anguish and suffering. Southern Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975), cert. denied, 425 U.S. 913, 96 S.Ct. 1510, 47 L.Ed.2d 763 (1976). In Boies, the Arizona Supreme Court held that the legislature's intent in enacting A.R.S. § 12-613 was to specifically include allowances for loss of companionship, comfort and guidance by a decedent's statutory beneficiaries. 99 Ariz. at 203, 407 P.2d at 920.

In addition to the financial consultant's unimpeached testimony that the present value of decedent's...

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