Ekberg v. M-14p

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CRAIG EKBERG, et al., Plaintiffs/Appellants,

v.

M-14P, Incorporated, Defendant/Appellee.

No. 1 CA-CV 22-0122
FILED 10-27-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-004790
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Stone Law Firm, PLC, Scottsdale
By C. Randall Stone
Counsel for Plaintiffs/Appellants

Williams Commercial Law Group, LLP, Scottsdale
By Daryl M. Williams
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.
 EKBERG, et al. v. M-14P
Decision of the Court

B A I L E Y, Judge:

¶1 Plaintiff Craig Ekberg appeals the superior court’s judgment
after a jury verdict for Defendant M-14P, Incorporated (“M-14P”). Because
Ekberg has shown no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Ekberg is a private pilot based in California and owns a
Nanchang CJ-6 airplane. He had previously purchased an engine for the
plane from M-14P, a company located in Kingman, Arizona and owned by
Jill Gernetzke.

¶3 In 2014, Ekberg bought a replacement custom-modified
engine from Gernetzke that began exhibiting functional and performance
issues after about fifty hours of flying time. Several damaged cylinders and
pistons were replaced, and M-14P also repaired the plane’s carburetor.
Ekberg was not satisfied, however, and considered the replacement engine
to be a “failed engine.” Gernetzke concluded the damaged engine parts
resulted from modifications made by Ekberg and his mechanic.

¶4 Meanwhile, Ekberg had left the plane’s original engine at M-
14P’s facility, and he and Gernetzke had discussed what to do with it. M-
14P later billed Ekberg for the tear-down, evaluation, and storage of the
original engine; Ekberg denied approving the work and declined to pay the
bill.

¶5 In June 2018, Ekberg filed a complaint against M-14P relating
to the replacement engine, alleging breach of contract and breach of the
warranty of merchantability. M-14P counterclaimed, seeking
reimbursement for tearing down, evaluating, and storing the original
engine.

¶6 After a four-day jury trial, the jury returned a unanimous
verdict for M-14P on both Ekberg’s claims and M-14P’s counterclaim,
awarding M-14P slightly less than $10,000 in damages, for engine work and
storage. The court granted M-14P’s request for an award of attorneys’ fees
under Arizona Revised Statutes (“A.R.S.”) section 12-341.01 but denied a
request for an award of fees as sanctions. The resulting final judgment
awarded M-14P nearly $10,000 in damages and more than $270,000 in
attorneys’ fees plus taxable costs.

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 EKBERG, et al. v. M-14P
Decision of the Court

¶7 We have jurisdiction over Ekberg’s timely appeal under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and 12-2101(A)(1).1

DISCUSSION

I. Ekberg’s Noncompliant Briefing

¶8 Ekberg’s opening brief fails to comply with Arizona Rule of
Civil Appellate Procedure (“ARCAP”) 13 in that it largely lacks appropriate
references to the record. See ARCAP 13(a)(4)-(5), (7). As a result, the issues
he seeks to press on appeal have been waived. See Ritchie v. Krasner, 221
Ariz. 288, 305, ¶ 62 (App. 2009); Flood Control Dist. of Maricopa Cnty. v.
Conlin, 148 Ariz. 66, 68 (App. 1985). M-14P’s answering brief, however, also
makes unsupported assertions, see ARCAP 13(b)(1), largely focused on
disparaging Ekberg. Accordingly, we rely on our review of the record for
our recitation of the facts, see State Farm Mut. Auto. Ins. Co. v. Arrington, 192
Ariz. 255, 257 n.1 (App. 1998), and view the evidence in the light most
favorable to sustaining the court’s rulings, In re Marriage of Yuro, 192 Ariz.
568, 570, ¶ 3 (App. 1998). Even absent waiver, Ekberg’s arguments on
appeal fail.

II. The Superior Court’s Admission of Ekberg’s Facebook Post

¶9 Ekberg argues the superior court abused its discretion in
admitting into evidence Exhibit 138, a Facebook post he made the night
before the last day of trial. Exhibit 138 states, “Day two of trial, trauma
mixed with fun,” and includes photos of the courthouse, the court seal, and
the courtroom (including one of M-14P’s counsel), Ekberg’s hotel, a
partially filled wine glass, and comments made by friends of Ekberg.

¶10 Ekberg states the superior court did not admonish him on the
use of Facebook or social media, and although there were posted notices
prohibiting photography in the courthouse, he avowed he did not see them
and apologized for taking the photos. The superior court acknowledged
not admonishing the parties on the prohibition of taking photographs.
Ekberg contends the Facebook post was not relevant and was unduly
prejudicial. See Ariz. R. Evid. 401, 403.

1 M-14P asks us to take judicial notice of additional proceedings
pending between the parties in California. We decline to do so. See In re
Henry’s Estate, 6 Ariz. App. 183, 188 (1967) (declining to take judicial notice
of legal proceedings transacted in another court).

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 EKBERG, et al. v. M-14P
Decision of the Court

¶11 The superior court is the gatekeeper of the evidence, see State
v. Damper, 223 Ariz. 572, 577, ¶ 20 (App. 2010), and we will affirm its rulings
on the admission of evidence absent an abuse of discretion or legal error
and resultant prejudice, see Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88,
¶ 7 (App. 1998). Thus, we will not reverse if the jury would have reached
the same verdict without the admitted evidence. Id.

¶12 M-14P argues Ekberg failed to properly preserve his claim of
error. When M-14P’s counsel offered Exhibit 138 into evidence, Ekberg’s
counsel stated only that he was renewing his “general objection.” To
preserve his claim of error in admitting Exhibit 138, Ekberg needed to
timely object and “state[] the specific ground” for the objection “unless it
was apparent from the context.” Ariz. R. Evid. 103(a)(1). Although timely,
the “general objection” provided no “specific ground.” However, Ekberg
had previously objected to the admission of Exhibit 138, and although his
objection at that time was at best inartful, the grounds of relevance and
undue prejudice are apparent from the context.

¶13 Even apart from waiver, Ekberg has shown no error. M-14P
contends the Facebook post was relevant to rebut Ekberg’s “weeping,
emotional breakdown on the witness stand during the course of the trial,”
when he testified that Gernetzke was the first person who had
“[d]isappointed [him] as a friend” and to support M-14P’s theory that
Ekberg’s primary motivation was to “make M-14P miserable.” The
superior court allowed M-14P’s counsel to offer Exhibit 138 for a very
narrow purpose, to “address Mr. Ekberg in the context of taking photos in
the courtroom” as a rebuttal to his character. Although Ekberg argues his
personal character had nothing to do with the contractual issues at hand,
proper evidence addressing his character was admissible because he was a
testifying witness. See Ariz. R. Evid. 404(a)(3). The superior court properly
could conclude the post was relevant to his credibility as a witness.
Moreover, Ekberg has shown no prejudice, given that the evidence
overwhelmingly favored M-14P and the jury would have reached the same
verdict without the admitted evidence. See Brown, 194 Ariz. at 88, ¶ 7; Ariz.
R. Civ. P. 61 (“Unless justice requires otherwise, an error in admitting or
excluding evidence--or any other error by the court or a party--is not
grounds for granting a new trial, for setting aside a verdict, or for vacating,
modifying, or otherwise disturbing a judgment or order. At every stage of
the proceeding, the court must disregard all errors and defects that do not
affect any party’s substantial rights.”). Accordingly, Ekberg has not shown
the superior court abused its discretion in admitting Exhibit 138 into
evidence.

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 EKBERG, et al. v. M-14P
Decision of the Court

III. Counsel for M-14P’s Closing Arguments

¶14 Ekberg next argues that M-14P’s counsel committed
misconduct throughout his closing argument by using Exhibit 138 to paint
Ekberg as a wealthy and uncaring person who was partying throughout the
trial and that M-14P’s counsel appealed to the jury’s prejudices based on
both wealth and gender.

¶15 In closing argument, an attorney should not appeal to
prejudice based on wealth or a party’s financial ability to pay. See Tryon v.
Naegle, 20 Ariz. App. 138, 142 (1973). Arguments made to a jury not
supported by facts or reasonable inference that result in prejudice may
constitute reversible misconduct. See, e.g., Grant v. Ariz. Pub. Serv. Co., 133
Ariz. 434, 451-52 (1982); Sisk v. Ball, 91 Ariz. 239, 245 (1962).

¶16 A verdict or judgment may be vacated, and a new trial
granted if the prevailing party’s misconduct materially affected the rights
of the aggrieved party. Ariz. R. Civ. P. 59(a)(1)(B). “Misconduct materially
affects an aggrieved party’s rights where it appears probable the
misconduct actually influenced the verdict.” Maxwell v. Aetna Life Ins. Co.,
143 Ariz. 205, 215 (App. 1984).

¶17 M-14P argues Ekberg failed to object to its counsel’s closing
argument, and the assertion of improper closing argument is waived on
appeal when a party fails to object at trial. See Sandretto v. Payson Healthcare
Mgmt., Inc., 234 Ariz. 351, 364, ¶ 56 (App. 2014). But the record shows
Ekberg objected three times: (1) to a reference to Ekberg as a
multimillionaire who “is kind of down here partying,” (2) to argument
characterizing Ekberg as someone with a “cavalier attitude” who was
partying while engaged in “illegal conduct” (taking photos in the
courtroom), and (3) to argument Ekberg was a “scofflaw” who “violated
the rules of this court” by taking courtroom photos, including “a picture of
me in the courtroom and he plasters my picture on the Internet so that his
buddies can ridicule me, Jill Grenetzke’s [sic] lawyer.” The court sustained
the first objection, which was based on a lack of evidence and relevance,
and the third objection, based on foundation. The court overruled the
second objection, in which Ekberg’s counsel simply argued, “Maybe he’d
like to get back to the case that we have here.” On this record, we find no
waiver of the issue raised by Ekberg.

¶18 On the merits, after reviewing the applicable record, Ekberg
has shown no reversible error. The verdict is supported by more than
adequate evidence, see Tryon, 20 Ariz. App. at 140, and Ekberg has shown

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 EKBERG, et al. v. M-14P
Decision of the Court

no prejudice. In its final jury instructions, the superior court advised the
jury that it was to determine the facts from the evidence presented and
cautioned that “[t]he lawyers’ questions and arguments are not evidence.”
We presume the jury followed the court’s instructions. See State v. LeBlanc, 186 Ariz. 437, 439 (1996). Moreover, the superior court, having observed
first-hand the witnesses and evidence presented, was best qualified to
determine whether a new trial was warranted on the basis the jury acted
out of passion or prejudice. On this record, Ekberg’s generalized claim that
the jury’s verdict resulted from passion or prejudice is unsupported, and
we have found no errors requiring reversal of the verdict and judgment.
See Brown, 194 Ariz. at 88, ¶ 7; Ariz. R. Civ. P. 61.

IV. Attorneys’ Fees and Costs on Appeal

¶19 Both sides request attorneys’ fees and costs on appeal. In our
discretion, we decline to award attorneys’ fees, and we deny M-14P’s
requests for sanctions, made both in its brief and separately by motion.2 We
do, however, award taxable costs to M-14P contingent upon its compliance
with ARCAP 21.

CONCLUSION

¶20 The judgment is affirmed.

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

2 After the completion of briefing, counsel for M-14P filed a “Motion
for Sanctions and Supplementation of the Record,” asking this court to
accept an FTR video clip and partial transcript of the beginning of the fourth
day of trial, which was inadvertently not transcribed in the official
reporter’s transcript, as well as a transcript of deposition testimony played
during trial. Ekberg did not object to supplementation of the record;
accordingly, we grant the motion to supplement the record, but we deny
the motion for sanctions.

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