Sonanes v. Core Constr. Serv. of Arizona, Inc., 1 CA-CV 10-0796

CourtCourt of Appeals of Arizona
Writing for the CourtDONN KESSLER
PartiesMARIA E. VASQUEZ SONANES, Plaintiff/Appellant, v. CORE CONSTRUCTION SERVICES OF ARIZONA, INC., dba CORE CONSTRUCTION, an Arizona corporation; L.R. BORELLI, INC., dba PARTITIONS & ACCESSORIES, CO., an Arizona corporation, Defendants/Appellees.
Decision Date20 December 2011
Docket Number1 CA-CV 10-0796

MARIA E. VASQUEZ SONANES, Plaintiff/Appellant,
dba PARTITIONS & ACCESSORIES, CO., an Arizona corporation, Defendants/Appellees.

1 CA-CV 10-0796


Filed: December 20, 2011

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2008-090796

The Honorable Karen A. Potts, Judge


Koglmeier Smith, P.L.C.
By John M. Alston and Kenneth P. Smith
Attorneys for Plaintiff/Appellant


Righi Hernandez, P.L.L.C.
By Richard L. Righi, Chris H. Begeman,
and Jalana Commerford
Attorneys for Defendant/Appellee Core Construction


O'Connor & Campbell, P.O.
By J. Daniel Campbell and Shane Dyet
Attorneys for Defendant/Appellee Partitions &
Accessories, Co.


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¶1 Maria E. Vasquez Sonanes ("Sonanes") appeals from the trial court's denial of her motion for additur or new trial based upon an alleged jury mistake. For the reasons that follow, we affirm.


¶2 Sonanes was injured at a construction site when several bathroom stall partitions collapsed and knocked her off of a ladder. She sustained serious injuries to her right knee and required three surgeries.

¶3 Sonanes and her spouse, Ricardo Puerta ("Puerta"), filed a negligence suit against (1) Core Construction Services of Arizona, Inc., dba Core Construction ("Core Construction"), the general contractor on the construction site, and (2) L.R. Borelli, Inc., dba Partitions & Accessories Co. ("Partitions"), the subcontractor responsible for installing the partitions.1 Sonanes sought $127,094.65 in medical expenses, as well as compensation for lost wages, permanent injuries, and pain and suffering.

¶4 During deliberations, the jury submitted the following question to the trial court: "Is there a correlation between the dollar amount awarded vs. the percentages of fault listed below the dollar amount? (on the verdict form)." After conferring

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with counsel, and receiving no objection, the trial court responded: "This question is answered in your final jury instructions." The relevant instructions provided:

On Defendant Core Construction and/or Defendant Partitions claim that . . . Sonanes was at fault, you must decide whether Defendant Core Construction and/or Defendant Partitions has proved that . . . Sonanes was at fault and, under all the circumstances of this case, whether any such fault should reduce . . . Sonanes' full damages. These decisions are left to your sole discretion.
If you decide that . . . Sonanes' fault should reduce . . . Sonanes' full damages, the court will later reduce those damages by the percentage of fault you have assigned to . . . Sonanes.

¶5 The jury reached a unanimous verdict awarding Sonanes $150,000 in damages. The verdict also provided that Sonanes was 90% at fault for her injuries, Core was 10% at fault, and both Partitions and non-party Executive Detailing (Sonanes's employer) were not at fault. The jurors were excused after the parties elected not to poll them.

¶6 Counsel for Sonanes later spoke with jurors who claimed that the $150,000 award already incorporated the 90% reduction for fault. Sonanes then moved for additur based upon insufficient damages. Alternatively, Sonanes requested that the trial court reconvene the jury to ascertain their intent, or

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order a new trial in accordance with Arizona Rules of Civil Procedure 59(a)(5) and (8).

¶7 Following responses by Partitions and Core Construction, Sonanes filed a reply and attached three affidavits. The affidavits were from her counsel, recounting conversations with jurors who asserted their intent to award Sonanes 10% of $1,500,000 or $150,000.

¶8 The trial court denied the motion, stating that Sonanes had filed an untimely reply. In addition, the trial court found that the evidence presented was sufficient to support a $150,000 damage award. Sonanes moved for reconsideration. The trial court denied the motion, explaining that neither the affidavits nor an unauthenticated letter from Juror No. 8 entitled her to the relief she requested. Sonanes appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21 (2003) and 12-2101(A)(1) (Supp. 2011).


¶9 Sonanes claims that the trial court abused its discretion by: (1) failing to correct the jury's alleged mistake on the verdict form to reflect its true intent or to reassemble the jury to determine its intent; (2) refusing to grant Sonanes's motion for additur or new trial; and (3) failing to

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consider Sonanes's reply to the motion for additur and the attached affidavits.


¶10 Sonanes first claims that she is entitled to a corrected verdict because the jury unanimously intended to award her 10% of $1,500,000, not 10% of $150,000. Because the jury allegedly made a mistake on the verdict form, she argues that the trial court abused its discretion in failing to reassemble the jury to confirm its true intent. We disagree.2

¶11 Sonanes relies on State v. Miller to support her argument. 178 Ariz. 555, 875 P.2d 788 (1994). In Miller, the Arizona Supreme Court held that the trial court erred in refusing to hold an evidentiary hearing to determine whether improper communications with a juror affected the verdict. Id. at 557, 875 P.2d at 790. While delay may render a productive hearing improbable, "the lower court is in the best position to determine if the jurors can be reassembled and whether their memories are sufficiently reliable to ensure that [the] defendant received a fair trial." Id. at 558, 875 P.2d at 791. In reversing the order denying the hearing, the Court held that

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"juror misconduct warrants a new trial if the defense shows actual prejudice or if prejudice may be fairly presumed from the facts." Id.

¶12 The conduct in Miller is factually distinguishable from what occurred here. The record presents no evidence of juror misconduct, tampering, or influence that might have tainted the verdict. Consequently, we find the trial court did not abuse its discretion in refusing to reassemble the jury to conduct a hearing on their deliberations. See State v. Snowden, 138 Ariz. 402, 404, 675 P.2d 289, 291 (App. 1983) ("Neither the trial court nor this court is permitted to consider any inquiry into the subjective motives or mental processes leading a jury to assent or dissent from the verdict."); Commonwealth v. Pytou Heang, 942 N.E.2d 927, 952 (Mass. 2011) ("Even where an evidentiary hearing is appropriate, 'evidence concerning the subjective mental processes of jurors, such as the reasons for their decisions,' is inadmissible to impeach a verdict." (quoting Commonwealth v. Fidler, 385 N.E.2d 513, 517 (Mass. 1979))).


¶13 Alternatively, Sonanes argues that a new trial or additur was required to correct the jury mistake. In support of this argument, Sonanes relies on conversations between her attorneys and multiple jury members in which they claimed that

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they intended to award Sonanes $150,000 after factoring in degrees of fault. We review a denial of a new trial or additur for an abuse of discretion. Delbridge v. Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 53, 893 P.2d 46, 53 (App. 1994) ("The trial court has considerable discretion in the grant or denial of a motion for new trial, and we will not overturn that decision absent a clear abuse of discretion."); Bustamante v. City of Tucson, 145 Ariz. 365, 366, 701 P.2d 861, 862 (App. 1985) ("[T]he question of additur is left to the greatest possible discretion of the trial court, and its decision will not be disturbed on appeal except for a case of clear abuse.").

¶14 "The proper evidence of the decision of the jury is the verdict returned by them upon oath and affirmed in open court; it is essential to the freedom and independence of their deliberations that their discussions in the jury room should be kept secret and inviolable . . . ." Fidler, 385 N.E.2d at 516. To admit juror testimony as to what occurred "would create distrust, embarrassment and uncertainty." Id. "Arizona follows the long established rule that testimony from or affidavits of jurors will not...

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