Connell v. Connell, III ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LAURA H. CONNELL, Plaintiff/Appellee,
v.
EDWARD F. CONNELL, III, Defendant/Appellant.
No. 1 CA-CV 20-0132
FILED 3-2-2021
Appeal from the Superior Court in Maricopa County
No. CV 2017-055452
The Honorable Theodore Campagnolo, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
Zachar Law Firm, P.C., Phoenix
By David J. Catanese
Counsel for Plaintiff/Appellee
Edward F. Connell, III, Scottsdale
Defendant/Appellant
CONNELL v. CONNELL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 Edward Connell III appeals the judgment for compensatory
and punitive damages in favor of his ex-wife Laura Connell.1 For reasons
that follow, we vacate the judgment’s interest award and remand for
correction; in all other respects we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On September 5, 2016, a verbal argument between the parties
escalated with Edward striking Laura across the side of her face, hitting her
left temple and eye. Laura ran from the room and called the police, and
Edward left the house. Laura sought and received an order of protection
against Edward, and they soon divorced.
¶3 After the incident, Laura began to experience vision issues,
later accompanied by dizziness, increased fatigue, and difficulty
concentrating, all of which inhibited her job performance. She was
diagnosed initially with a contusion to her left eye, and as more symptoms
developed, her treating physicians concluded that she had suffered a
concussion and resulting traumatic brain injury.
¶4 Laura ultimately sued Edward for assault and battery,
seeking compensatory damages (medical expenses, loss of earnings, and
pain and suffering) and punitive damages. At trial, Edward argued that
Laura was not credible and had fabricated the case for monetary gain, that
he had hit her only in self-defense, and that Laura’s damages were caused
not by the September incident but rather by her preexisting chronic fatigue
syndrome. After the court denied Edward’s motion for judgment as a
matter of law, the jury returned a verdict in Laura’s favor, awarding her
$150,000 in compensatory damages and $250,000 in punitive damages.
¶5 The superior court entered judgment for Laura, including
costs and Rule 68 sanctions of expert witness fees and double taxable costs
1 To avoid confusion, we refer to the parties by first name.
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post-offer, plus 6% interest on the total amount from the date of the jury’s
verdict. After the court denied Edward’s renewed motion for judgment as
a matter of law or for new trial, Edward timely appealed. We have
jurisdiction under A.R.S. § 12-2101(A)(1), (5)(a).
DISCUSSION
I. Jury Bias.
¶6 Edward first argues that the superior court erred by
empaneling a jury that included biased jurors. We review for an abuse of
discretion the superior court’s voir dire rulings, as well as its rulings on
motions to strike the panel at large or individual jurors for cause. See State
v. Glassel, 211 Ariz. 33, 45, 47, ¶¶ 36, 46 (2005).
¶7 Each party is entitled to be tried by a fair and impartial jury.
Moran v. Jones, 75 Ariz. 175, 181 (1953); see also Ariz. Const. art. 2, § 23. To
effectuate that right, prospective jurors are subject to thorough questioning
to ensure that prospective jurors are “qualified, fair, and impartial.” Ariz.
R. Civ. P. 47(c)(3)(A). Any prospective juror who has shown bias or
prejudice for or against any party may be struck from the panel for cause.
See Ariz. R. Civ. P. 47(d)(1)(D); see also A.R.S. § 21-211(4).
¶8 Edward asserts that the entire jury pool was tainted by
Prospective Juror 4’s comment that she was “already biased” and would, if
empaneled, rule for Laura because “I can tell she’s been abused.” Edward
argues that, although Prospective Juror 4 was dismissed for cause on this
basis, the other jurors were tainted by her comment, and that the court thus
erred by denying his request to strike the entire panel. But the court quickly
stopped Prospective Juror 4’s commentary and followed up by instructing
the panel that Prospective Juror 4’s opinion was not evidence and expressly
inquiring whether anyone was “affected by number 4 to the point that they
could not be fair in this case.” Given the superior court’s prompt curative
steps, Edward has not shown error. See State v. Carlson, 202 Ariz. 570, 578
¶ 27 (2002) (noting that a defendant “must show that the jurors have formed
preconceived notions concerning [her] guilt and that they cannot lay those
notions aside”) (alteration in original and citation omitted).
¶9 Edward further asserts that three of the jurors ultimately
empaneled—Prospective Jurors 3, 11, and 31—were biased against him.
But Edward did not challenge any of these prospective jurors for cause, nor
does the record establish such bias. Although Prospective Juror 3 was
initially unsure whether he could be fair and impartial in a domestic
violence case, he later affirmed that he could set aside any preconceived
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notions and determine the case based on the evidence presented during
trial. The court followed up on Prospective Juror 11’s hesitation about
impartiality in a domestic violence case, but her response to the court’s
rehabilitative question was simply listed as “INAUDIBLE,” suggesting she
affirmed an ability to listen to both sides—a conclusion supported by the
fact that Edward opted not to challenge this prospective juror for cause.
And Edward’s argument that Prospective Juror 31 “did not believe self-
defense could ever be a valid reason to hit a woman” appears to
misconstrue the prospective juror’s actual agreement with the notion that,
even “leaving out the self-defense,” sometimes “it’s ok to, to hit another
person.” Given this record, and given Edward’s apparent assessment at
trial that none of these prospective jurors warranted a challenge for cause,
he has not shown grounds for reversal.
II. Compensatory Damages.
¶10 Edward next argues that the jury’s compensatory damages
award was excessive and that the superior court thus erred by denying his
request to reduce the award or for new trial. See Ariz. R. Civ. P. 59(a)(1)(E),
(f)(1). We review this ruling for an abuse of discretion. Desert Palm Surgical
Grp., P.L.C. v. Petta, 236 Ariz. 568, 581, ¶ 37 (App. 2015).
¶11 Generally, “the amount of an award for damages is a question
peculiarly within the province of the jury.” Larriva v. Widmer, 101 Ariz. 1, 7
(1966). If the court finds that the verdict clearly resulted from passion or
prejudice, however, a new trial is necessary. Desert Palm, 236 Ariz. at 582,
¶ 38; see also Soto v. Sacco, 242 Ariz. 474, 478, ¶ 9 (2017). And the superior
court has discretion, in appropriate circumstances, to “reduc[e] an excessive
verdict to the realm of reason.” Desert Palm, 236 Ariz. at 581, ¶ 38 (quoting
Muccili v. Huff’s Boys’ Store, Inc., 12 Ariz. App. 584, 590 (App. 1970)). Such
remittitur is proper “only for the most cogent of reasons, such as lack of
evidence supporting the damages awarded.” Id.; see also In re Estate of
Hanscome, 227 Ariz. 158, 162, ¶ 14 (App. 2011) (noting that “a clear
indication that the jury misapplied the principles governing damages” may
be a proper basis for remittitur); Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 12
(App. 2003) (noting that “substantial evidence” sufficient to support a
verdict is evidence that would permit a reasonable person to reach that
result).
¶12 Here, the evidence presented provided ample support for the
jury’s award of $150,000 in compensatory damages for medical expenses,
lost earnings, and pain and suffering. Laura’s treating physicians and
specialists testified that she had suffered a concussion and a resulting
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traumatic brain injury from being struck by Edward in September 2016.
The physicians described how Laura’s brain injury was linked to eye pain
and vision issues accompanied by balance problems, dizziness, and nausea;
certain cognitive deficits including difficulties in communication, complex
reasoning, and organization; as well as increased fatigue.
¶13 In addition to presenting medical bills totaling almost
$17,000, Laura described how her symptoms limited her productivity as a
mortgage banking loan originator and offered testimony from a vocational
expert comparing her pre- and post-injury earnings to calculate more than
$63,000 in lost earnings attributable to the head injury. And the variety,
scope, and almost two-year duration of physical and cognitive symptoms
resulting from the injury provided a sufficient basis for the additional
$70,000 awarded as compensation for her pain and suffering.
¶14 Edward’s contrary argument primarily attacks Laura’s
credibility, asserting that her testimony was false and fundamentally
inconsistent, and that because the medical providers relied on Laura’s
report of symptoms and medical history, their testimony was similarly
unsound. But “[t]he credibility of a witness’ testimony and the weight it
should be given are issues particularly within the province of the jury.”
Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12 (2000);
see also State v. Fischer, 242 Ariz. 44, 50, ¶ 19 (2017). And here, on appeal
from a denial of a request for remittitur or new trial, we similarly “defer to
the discretion of the trial judge who tried the case and who personally
observed the proceedings” and thus had the opportunity to observe the
witnesses. Fischer, 242 Ariz. at 50, ¶ 21; see also Creamer v. Troiano, 108 Ariz.
573, 575 (1972). Accordingly, and given an adequate evidentiary basis to
support the award, the superior court did not abuse its discretion by
denying Edward’s motion asserting excessive compensatory damages.
III. Punitive Damages.
¶15 Edward next challenges the award of punitive damages,
arguing both that the evidence did not support any award of punitive
damages and that $250,000 was an excessive award. We review the jury’s
decision to award punitive damages for an abuse of discretion, Ahmed v.
Collins, 23 Ariz. App. 54, 58 (App. 1975), although we consider de novo
constitutional challenges to the amount of such an award. Nardelli v. Metro.
Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 609, ¶¶ 83–84 (App. 2012).
¶16 Punitive damages may be awarded in tort cases “to punish
the wrongdoer and to deter others from emulating his conduct.” Linthicum
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v. Nationwide Life Ins. Co., 150 Ariz. 326, 330 (1986). To warrant an award of
punitive damages, the plaintiff must show, by clear and convincing
evidence, “[s]omething more than the mere commission of a tort”: that the
“tortfeasor’s ‘evil hand was guided by an evil mind.’” Quintero v. Rogers,
221 Ariz. 536, 541, ¶¶ 15–16 (App. 2009) (alteration in original) (quoting
Rawlings v. Apodaca, 151 Ariz. 149, 162 (1986)). The tortfeasor may manifest
such an “evil mind” by committing malicious actions with an “intent to
injure the plaintiff,” Linthicum, 150 Ariz. at 331, including “wrongful
conduct [that] was motivated by spite [or] actual malice.” Gurule v. Illinois
Mut. Life & Cas. Co., 152 Ariz. 600, 602 (1987). The existence of an “evil
mind” may be “express or may be implied from the nature of the acts and
the circumstances.” Johnson v. Pankratz, 196 Ariz. 621, 624, ¶ 13 (App. 2000).
¶17 Here, contrary to Edward’s assertion, the record supports a
finding that his actions were reprehensible and motivated by malice and an
intent to injure Laura. Laura described Edward flying into a rage as their
argument escalated, then throwing a knife and fork at her before charging
across the room to strike her across the face. Edward admitted throwing
the knife and fork, although he claimed not to have thrown them at Laura.
He also admitted hitting her and, at least initially, that there was “no
excuse” for his conduct.
¶18 While Edward characterized his actions as just “lightly
slapp[ing]” Laura and now suggests that body camera footage from the
evening of the incident undermines Laura’s claim that she was injured, the
jury was free to weigh this characterization against Laura’s description of
events and the medical evidence showing that Laura sustained a significant
resulting injury. See Estate of Reinen, 198 Ariz. at 287, ¶ 12 (describing
witness credibility and weight of evidence as matters for the jury).
Moreover, Laura’s testimony that Edward had been physically violent
against her on multiple previous occasions, along with evidence that
Edward had previously committed domestic violence against his first wife,
provided additional support for an award of punitive damages to deter
future misconduct. See Gurule, 152 Ariz. at 601 (noting that compensatory
damages provide adequate deterrence “[i]f defendant did not act with an
‘evil mind’”).
¶19 Edward further argues that the amount of the award was
untethered to the evidence and was so excessive as to violate due process.
Due process imposes a substantive limit on the amount of a punitive
damages award. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
416 (2003). In assessing the reasonableness of an award, we consider factors
including “the degree of reprehensibility of the defendant’s misconduct”
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and “the disparity between the . . . harm suffered by the plaintiff and the
punitive damages award,” id. at 418, as well as “the proportionality of the
award to the wrongdoer’s financial position to ensure that the goals of
punishment and deterrence are served without financially devastating the
defendant.” Hyatt Regency Phx. Hotel Co. v. Winston & Strawn, 184 Ariz. 120,
134 (App. 1995).
¶20 Here, Edward’s conduct qualified as reprehensible: he caused
Laura physical harm through intentional malice rather than accident, acted
with indifference to her safety, and had done so before. See Campbell, 538
U.S. at 419. The $250,000 award of punitive damages was less than twice
the amount of the compensatory award. See id. at 424–25 (rejecting a bright-
line ratio that passes constitutional muster, but reiterating that “[s]ingle-
digit multipliers are more likely to comport with due process” and noting
a prior decision suggesting that a ratio greater than four to one “might be
close to the line”). And the jury heard evidence that Edward’s recent
annual income exceeded $300,000 per year and that he had other assets,
supporting a $250,000 punitive damages award. See Hawkins v. Allstate Ins.
Co., 152 Ariz. 490, 497 (1987) (“Obviously, the goals of punishment and
deterrence would be circumvented if the financial position of the defendant
allowed it to comfortably absorb the award.”). Accordingly, we affirm the
award of punitive damages.
IV. Interest.
¶21 Edward argues that the judgment improperly awarded
interest beginning on the date of the jury verdict rather than the date of the
entry of the judgment. We agree that the interest award was faulty.
¶22 The judgment, entered December 20, 2019, contained
monetary awards to Laura in four categories: (1) $150,000 in compensatory
damages, (2) $250,000 in punitive damages, (3) $648.48 in pre-Rule 68 offer
of judgment taxable costs, and (4) $8,892.80 in expert fees and double
taxable costs post-offer as Rule 68 sanctions. The judgment awarded these
amounts (totaling $409,541.20) with 6% interest “on the total amount of the
judgment,” running “from the date of the jury’s verdict on October 23,
2019.” The jury’s verdict liquidated Laura’s claim for compensatory
damages, entitling her to prejudgment interest on that amount from the
date of the verdict.2 See A.R.S. § 12-347 (calling for inclusion of “interest on
2 Laura could have received prejudgment interest on this portion of
the award beginning on the date of her offer of judgment as a component
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the verdict from the time it was rendered”); A.R.S. § 44-1201(D)(1)
(prohibiting prejudgment interest on any unliquidated claim); Hall v.
Schulte, 172 Ariz. 279, 284–85 (App. 1992) (holding that the jury’s verdict
liquidated a plaintiff’s previously unliquidated claim for damages based on
pain, suffering, and psychological injury, meaning prejudgment interest
should run from the date of the verdict); Emps. Mut. Cas. Co. v. McKeon, 170
Ariz. 75, 78 (App. 1991) (noting an entitlement to prejudgment interest on
any liquidated claim, whether based in contract or tort).
¶23 But neither the amount of taxable costs nor the Rule 68
sanction amount (including reasonable expert witness fees) had been
determined or otherwise liquidated at that point. Cf. Pueblo Santa Fe
Townhomes Owners’ Ass’n v. Transcon. Ins. Co., 218 Ariz. 13, 25, ¶ 50 (App.
2008) (holding that an amount dependent on a reasonableness
determination is not liquidated until the court in fact determines
reasonableness). And § 44-1201(D) prohibits an award of interest—
prejudgment or post-judgment—on punitive damages.
¶24 Accordingly, we vacate the interest award and remand for the
superior court to enter a judgment awarding Laura: (1) $150,000 in
compensatory damages, with interest at the statutory rate of 6.0% from the
date of the jury’s verdict on October 23, 2019 until paid in full; (2) $250,000
in punitive damages, with no interest award; and (3) $648.48 in pre-Rule 68
offer of judgment taxable costs, and $8,892.80 in Rule 68 sanctions, both
with interest at the statutory rate of 5.75% from December 20, 2019 until
paid in full.
of the Rule 68 sanctions. See Ariz. R. Civ. P. 68(g)(2); Metzler v. BCI Coca-
Cola Bottling Co. of L.A., Inc., 235 Ariz. 141, 146, ¶ 20 (2014). But her request
for Rule 68 sanctions sought only expert witness fees and double taxable
costs, see Ariz. R. Civ. P. 68(g)(1), not prejudgment interest on this
previously unliquidated claim, see Ariz. R. Civ. P. 68(g)(2), so her
entitlement to interest is now limited to after the date the jury’s verdict
liquidated the claim. See Metzler, 235 Ariz. at 144, ¶ 11.
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CONCLUSION
¶25 For the foregoing reasons, we vacate the judgment’s award of
interest and remand for entry of judgment as set forth above. In all other
respects, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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