Sonanes v. Core Constr. Serv. of Arizona, Inc.
| Decision Date | 20 December 2011 |
| Docket Number | 1 CA-CV 10-0796 |
| Court | Arizona Court of Appeals |
| Parties | MARIA 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. |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
The Honorable Karen A. Potts, Judge
AFFIRMED
Koglmeier Smith, P.L.C.
By John M. Alston and Kenneth P. Smith
Attorneys for Plaintiff/Appellant
Mesa
Righi Hernandez, P.L.L.C.
By Richard L. Righi, Chris H. Begeman,
and Jalana Commerford
Attorneys for Defendant/Appellee Core Construction
Phoenix
O'Connor & Campbell, P.O.
By J. Daniel Campbell and Shane Dyet
Attorneys for Defendant/Appellee Partitions &
Accessories, Co.
Phoenix
¶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: After conferringwith counsel, and receiving no objection, the trial court responded: "This question is answered in your final jury instructions." The relevant instructions provided:
¶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, ororder 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 toconsider 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"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) (); Commonwealth v. Pytou Heang, 942 N.E.2d 927, 952 (Mass. 2011) .
¶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 thatthey 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) (); Bustamante v. City of Tucson, 145 Ariz. 365, 366, 701 P.2d 861, 862 (App. 1985) ().
¶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 be admitted to impeach a verdict unless they involve matters that are not inherent in the verdict." Brooks v. Zahn, 170 Ariz. 545, 549, 826 P.2d 1171, 1175 (App. 1991).Exceptions to this rule are found in Arizona Rule of Evidence 606(b):
Upon an inquiry into the validity of a verdict in a civil action, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict, or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror, concerning a matter about which the juror would be precluded from testifying, be received for these purposes.
(Emphasis added.) If the "information does not come within a recognized exception to Rule 606(b), the information is not admissible and cannot be considered." Richtmyre v. State, 175 Ariz. 489, 493, 858 P.2d 322, 326 (App. 1993). Compare State v. Pearson, 98 Ariz. 133, 136, 402 P.2d 557, 559 (1965) (), Kirby v. Rosell, 133 Ariz. 42, 43, 46-47, ...
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