Miller v. Hill

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TERRY J. MILLER, et al., Plaintiffs/Appellees,

v.

SHIRL A. HILL, Defendant/Appellant.

No. 1 CA-CV 19-0851
FILED 3-18-2021

Appeal from the Superior Court in Maricopa County
No. CV2015-095148
The Honorable Joshua D. Rogers, Judge
The Honorable David J. Palmer, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connelly
Counsel for Plaintiffs/Appellees

Swenson, Storer, Andrews & Frazelle, P.C., Phoenix
By Lloyd J. Andrews
Counsel for Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Defendant/Appellant Shirl A. Hill appeals the superior
court’s order granting Plaintiffs/Appellees motion for new trial following
a jury verdict in Hill’s favor. For reasons that follow, we affirm the court’s
order granting a new trial as to damages, but reverse the remainder of the
court’s order.

FACTUAL AND PROCEDURAL HISTORY

¶2 Hill, Sona Koltookian1, and Terry J. Miller and Janet M. Miller
(the “Millers”) are neighbors who share a common cinderblock wall (“party
wall”) separating their properties. All three neighbors live in the Ironwood
Village neighborhood and their properties are subject to its Covenants,
Conditions and Restrictions (“CC&Rs”). According to the CC&Rs, a
property owner who damages a party wall is solely responsible for the cost
to repair it. However, if a party wall is damaged from something other than
a property owner’s negligence, willful acts, or omissions, the cost for repair
must be split equally between owners who share the party wall.

¶3 In 2015, the Millers sued Hill alleging negligence and breach
of contract for a damaged party wall. Hill denied causing the damage, but
did not dispute that the wall was damaged or that the CC&Rs governed the
dispute. Though not specifically pled in the complaint, at trial the Millers
introduced evidence and argued that even if Hill was not responsible for
the damage to the party wall, she was, nevertheless, obligated to share
equally in repair costs with the Millers pursuant to the CC&Rs. Both Hill
and her expert witnesses conceded the obligation.

¶4 Three verdict forms were submitted to the jury, only two of
which addressed damages. The jury returned a verdict in Hill’s favor,
signing the verdict form that did not address damages: “We, the Jury, duly
empaneled and sworn in the above-entitled action, upon our oaths, do find

1 Sona Koltookian was dismissed as a party to this action in January 2020.

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Decision of the Court

in favor of Defendant Shirl A. Hill.” Thereafter, the court granted Hill’s
motion for attorneys’ fees and costs.

¶5 The Millers moved for a new trial arguing inter alia that the
jury verdict was not supported by the evidence and was contrary to law.
See Ariz. R. Civ. P. 59(a)(1)(H). Following oral argument, the superior court
issued an under advisement ruling granting the motion for new trial. The
court agreed with the Millers, that Hill was contractually liable to share
equally in the costs of whatever repairs to the damaged party wall were
necessary. Hill moved for clarification and requested that any order
granting a new trial be limited to the issue of damages. In a second under
advisement ruling, the court reasoned that where “[t]he only verdict to set
aside is that which finds in favor of the Defendant . . . it is clear that if and
when the case proceeds . . . no issues have been resolved.” The court
ordered that the new trial would reopen all claims previously disposed of
by the jury.

¶6 Hill timely appealed. This court has jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1) and -2101(A)(5).

DISCUSSION

¶7 Hill argues the superior court abused its discretion by
vacating the jury verdict and granting a new trial. Hill argues, in the
alternative, that if a new trial is held it should be limited to the issue of
damages. The superior court has discretion to grant a new trial if “the
verdict, decision, findings of fact, or judgment is not supported by the
evidence or is contrary to law.” Ariz. R. Civ. P. 59(a)(1)(H). “[W]e apply an
abuse of discretion standard when reviewing a trial court’s decision to
grant a new trial.” McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 266, ¶ 16
(App. 2011).

¶8 Hill asserts the superior court erred in vacating the jury
verdict where the Millers never formally pled in their complaint that Hill
was liable for only a portion of the damages pursuant to the CC&Rs.
Arizona Rule of Civil Procedure (“Rule”) 15(b)(2), however, “permits
theories of liability to be treated as if raised in the actual pleadings if they
are tried by express or implied consent of the parties.” Dietz v. Waller, 141
Ariz. 107, 112 (1984). Issues tried without objection amount to implied
consent, and if no request to amend is made, the case will be treated as
though the amendments were made. Gilliland v. Rodriquez, 77 Ariz. 163, 167
(1954); see also Electrical Advertising, Inc. v. Sakato, 94 Ariz. 68, 71 (1963)

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(“Failure to formally amend the pleadings will not affect a judgment based
upon competent evidence.”). Hill never objected to the Millers’
presentation of evidence, or argument, regarding her obligation to split
repair costs pursuant to the CC&Rs and even conceded such. Additionally,
Hill had notice of the issue where it was raised multiple times at trial. See
Electrical Advertising, Inc. 94 Ariz. at 71 (finding implied consent where the
issue was tried without objection by plaintiff); see also Dietz, 141 Ariz. at 112
(finding no implied consent when party was given no conceivable notice
during pre-trial or trial proceedings of the issue). Because Hill impliedly
consented, Hill’s obligation to split repair costs was properly raised.

¶9 In its under advisement ruling granting the motion for new
trial, the court found:

[t]he undisputed evidence presented at trial was that,
according to the CC&Rs, if no one was at fault for the damage
to the party wall at issue in this case, each of the property
owners are obligated to share equally in the costs to repair the
wall. . . . Thus, as a matter of law, Defendant is at least
contractually liable to share equally in the costs of whatever
repairs were determined to be necessary.

¶10 And where the jury reached a verdict without finding Hill
liable for any damages, the court did not err in concluding that the verdict
was unsupported by the evidence and contrary to law.

¶11 On appeal, the Millers argue the jury verdict forms did not
match the CC&Rs and did not give the jury the option to hold Hill at least
50 percent liable for the cost to repair the wall. Certainly, the Millers were
aware of the verdict forms prior to their submission to the jury; yet the
Millers never objected to the jury verdict form. Rule 49(f)(1) provides that
“the court may order that an informal or defective verdict be reformed . . .
[and] [i]f the verdict is not responsive to the issue submitted to the jury, the
court should inform the jury of the issue and require further deliberations.”
Here, the Millers did not invoke Rule 49(f)(1). And “by not challenging the
verdict when rendered, [the Millers] waived [their] objection to any error.”
Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 543, ¶ 39 (App. 2002);
see also Farmers Ins. Co. v. Tallsalt, 191 Ariz. 177, 180 (App. 1997) (although
verdict not responsive, because neither party “asked the trial court to ‘call
the jurors’ attention thereto, and send them back for further deliberation,”
issue waived on appeal), vacated on other grounds, 192 Ariz. 129 (1998). For
this reason, the Millers’ argument regarding the unresponsive and
defective nature of the verdict forms fails.

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¶12 Rule 59 requires that:

[a] new trial, if granted, must be limited to the question or
questions found to be in error, if separable. If a new trial is
ordered solely because the damages are excessive or
inadequate and if the issue of damages is separable from all
other issues in the action, the verdict may be set aside only on
damages, and must stand in all other respects.

Ariz. R. Civ. P. 59(e).

¶13 A new trial can be granted solely on the issue of damages
when liability and damages are not inextricably entwined and can be
separated without prejudice to the parties. Martinez v. Schneider Enters., Inc.,
178 Ariz. 346, 349 (App. 1994); Englert v. Carondelet Health Network, 199 Ariz.
21, 27, ¶ 15 (App. 2000). Here, the jury found that Hill was not negligent
nor wholly liable for the damage to the party wall. And, the issue of
damages is easily separable where the determination of costs and the equal
apportionment of those costs between Hill and the Millers is all that is left
to decide. Accordingly, we affirm the superior court’s order for a new trial
but only on the issue of damages. To order otherwise would give the Millers
a second bite at the apple on the issues of negligence and breach of contract
after a jury has already found in favor of Hill on those claims.

CONCLUSION

¶14 For the foregoing reasons, we affirm the superior court’s
order for a new trial, but only on the issue of damages. In all other respects,
we vacate the court’s order for a new trial and remand for further
proceedings consistent with this decision. We deny the Millers’ request for
attorneys’ fees and costs on appeal.

AMY M. WOOD • Clerk of the Court
FILED: AA

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