McCombs v. Joyce C. Miller Trust

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHELSEA MCCOMBS, et al., Plaintiffs/Appellants,

v.

THE JOYCE C. MILLER LIVING TRUST, et al., Defendant/Appellee.

No. 1 CA-CV 22-0634
FILED 8-15-2023

Appeal from the Superior Court in Maricopa County
No. CV2019-015120
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Tiffany & Bosco P.A., Phoenix
By William M. Fischbach, Amy D. Sells (argued)
Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli P.L.C., Phoenix
By William D. Holm, Eileen Dennis GilBride (argued)
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge David B. Gass and Judge Andrew M. Jacobs joined.
 MCCOMBS, et al. v. JOYCE C. MILLER TRUST, et al.
Decision of the Court

F U R U Y A, Judge:

¶1 Plaintiffs Chelsea and Chase McCombs appeal from the
denial of a motion for a new trial or, alternatively, relief from a judgment
after a jury found in favor of defendant Joyce C. Miller Living Trust (“the
Trust”).1 For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Ms. Debbie McCombs passed away in a house fire on
February 27, 2018. When firefighters arrived, Ms. McCombs was found
unresponsive, lying in the hallway a few feet from a chair located in the
northeast quadrant of the living room. A double-key deadbolt lock—
requiring a key to open it from both inside and outside the home—was
affixed to the front door. The home’s smoke detectors had been disabled.2

¶3 Ms. McCombs’s children, Plaintiffs, brought a wrongful death
suit against the Trust nearly two years after her death, alleging negligence
and negligence per se. After the fire, the Trust’s insurance company
inspected the property and took photographs of the damage in its post-fire
state. The property was sold within six months of the fire.

¶4 At trial, Plaintiffs argued the double-key deadbolt lock on the
front door, normally prohibited by fire code, and non-functioning smoke
detectors were a cause of Ms. McCombs’s death. The Trust argued Ms.
McCombs likely caused the fire with a lit cigarette, and her death was

1 For the sake of brevity and convenience and because jural status has
not been raised as an issue in this case, our decision uses the parties’ and
the superior court’s shorthand convention of simply referring to the “Trust”
as a named defendant in this case, rather than to the trustee acting for the
Trust. Nevertheless we acknowledge the Trust, as an Arizona non-business
trust (see Arizona Revised Statutes (“A.R.S.”) §§ 10-1871, -1879), is not itself
a jural entity. As such, it is incapable of owning property, transacting
business, pursuing or defending litigation, or otherwise acting in its own
right. See A.R.S. § 14-10106(A); McLeod v. Deutsche Bank Nat’l Tr. Co., 1 CA-
CV 15-0504, 2017 WL 2189498, at *3 ¶ 13 (Ariz. App. May 18, 2017) (mem.
decision) (“Generally, a common-law trust is not considered a legal entity
capable of suing or being sued.”) (citing cases).

2 At the time of the fire, the home belonged to Ms. McCombs’s mother,
Joyce Miller, who passed away the following day for unrelated reasons. The
home then became part of the Trust’s corpus.

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proximately caused by her apparent attempts to fight the fire rather than
escape through an available exit, at least two of which were not affixed with
double-key deadbolt locks.

¶5 Plaintiffs’ expert conceded that while the fire’s exact cause or
point-of-origin could not be discerned, it was possible the fire had been
caused by a lit cigarette. Expert testimony also demonstrated the fire likely
originated in the “northeast quadrant” of the living room, where what the
Trust characterized as Ms. McCombs’s “smoking chair” was located. The
Trust further introduced evidence showing either Ms. McCombs’s brother
Rick, or possibly Ms. McCombs herself, had disabled the smoke alarms in
the residence to prevent the frequent false alarms that occurred when Ms.
McCombs and Rick smoked inside the residence.

¶6 During trial, the court discovered the Trust had failed to
disclose almost 500 photographs of the house, which were taken during the
first few weeks following the fire. The court ordered defense counsel to
immediately identify and produce any “unique” photos not previously
disclosed to Plaintiffs’ counsel, conducted a separate examination of the
defense expert to determine whether the undisclosed photographs formed
the basis for his opinions, prevented him from using any undisclosed
photographs in his testimony, and allowed Plaintiffs’ counsel to use the
disclosure violation to impeach him.

¶7 The jury returned a verdict in favor of the Trust. Plaintiffs
filed post-trial motions for new trial under Arizona Rule of Civil Procedure
(“Rule”) 59 or, alternatively, relief from the judgment under Rule 60 or,
alternatively, sanctions under Rule 37. The superior court denied the
motions, and Plaintiffs timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Rule 59 Motion for New Trial, Rule 60 Motion for Relief from
Judgment, and Motion for Rule 37 Sanctions

¶8 We review denial of a motion for new trial, motion for relief
from a judgment, and motion for sanctions under Rule 37 for an abuse of
discretion. Warne Invs., Ltd. v. Higgins, 219 Ariz. 186, 194 ¶ 33 (App. 2008)
(Rule 59 motion for new trial); Fry v. Garcia, 213 Ariz. 70, 72 ¶ 7 (App. 2006)
(Rule 60 motion for relief from judgment); Takieh v. O’Meara, 252 Ariz. 51,
61 ¶ 34 (App. 2021) (Rule 37 motion for sanctions). “An ‘abuse of discretion’
is discretion manifestly unreasonable, or exercised on untenable grounds,

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or for untenable reasons.” Englert v. Carondelet Health Network, 199 Ariz. 21,
27 ¶ 14 (App. 2000).

¶9 Rule 26.1(a)(9) creates a broad and continuing duty to disclose
“any tangible evidence, documents, or electronically stored information
that may be relevant to the subject matter of the action.” Ariz. R. Civ. P.
26.1(a)(9); (f)(2) (“[E]ach party must serve additional or amended
disclosures when new or additional information is discovered or
revealed.”). Disclosure rules are intended to “allow the parties a ‘reasonable
opportunity’ to prepare, ‘nothing more, nothing less.’” Waddell v. Titan Ins.
Co., Inc., 207 Ariz. 529, 537 ¶ 33 (App. 2004) (finding that “[w]hile a more
complete disclosure . . . would have been preferable,” a party “was not
denied a reasonable opportunity to prepare” by incomplete disclosure).

¶10 Plaintiffs contend the superior court abused its discretion by
denying their motion based upon the Trust’s disclosure violations. We
disagree for two reasons. First, while a violation of Rule 26.1 undoubtedly
occurred, the court correctly found the error to be harmless. Second, the
court undertook sufficient remedial measures to appropriately address the
Trust’s violations.

A. The Trust’s Disclosure Violations Did Not Affect Plaintiffs’
Substantial Rights

¶11 We defer to the court’s determination regarding imposing
sanctions for discovery violations because it is in a better position to
determine whether disclosure violations have occurred and their “practical
effect” on the proceedings. Takieh, 252 Ariz. at 61 ¶ 34 (citation omitted).
Further, “the court must disregard all errors and defects that do not affect
any party’s substantial rights.” Ariz. R. Civ. P. 61.

¶12 The Trust’s theory of the case argued Ms. McCombs had not
tried to escape through the front door during the fire, but rather died
because of her choice to attempt to fight the fire. According to the Trust, this
apparent decision was the intervening superseding cause of Ms.
McCombs’s death. In support of this theory, the Trust argued, among other
things, that “S”-shaped burns found on Ms. McCombs’ body were
consistent with springs from a “couch or chair” in the living room, thereby
suggesting she approached (and fell into) the furniture trying to fight the
fire rather than escaping.

¶13 Plaintiffs, meanwhile, maintained Ms. McCombs passed out
from smoke inhalation while attempting to escape, ostensibly because her
efforts were inhibited by the absence of functioning smoke alarms and the

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double-key deadbolt on the front door. To this end, Plaintiffs presented lay
and expert witness testimony and argument to support their theory.

¶14 The jurors’ general verdict for the Trust establishes the jurors’
implicit agreement with the Trust’s theory over Plaintiffs’. The record
contains sufficient evidence from which the jurors could have concluded,
regardless of the fire’s origins, events occurring during and after the fire
were the proximate cause of Ms. McCombs’s death.

¶15 Plaintiffs argue on appeal, as they did in their motions before
the court, that the undisclosed photographs depicting the coils on the
various pieces of burned furniture in the living room constitute further
proof Ms. McCombs was trying to escape, rather than fighting the fire. They
claim their inability to properly prepare to present and characterize this
further proof prejudiced their case before the jury. But we concur with the
court’s finding that “[b]ased on the jury’s verdict, the specific source of the
fire within the living room or the specific piece of furniture that caused the
burn or brand mark on the Decedent’s body was not material.”

¶16 During trial, Plaintiffs’ expert agreed the fire originated in the
northeast quadrant of the living room and even opined it may have been
caused by either an electrical fire or a cigarette. He did not state that the
exact mechanism of the fire’s origin was material to his analysis and the
materiality of that mechanism is not apparent from his testimony or
Plaintiffs’ arguments. Additionally, the Trust’s inclusion of “couch or
chair” as the source of the “S”-shaped burns—rather than exclusively
attributing them to the coils on the “smoking chair”—already suggested
that any of the furniture in the living room could have caused the burns.

¶17 Thus, the key factual dispute was the nature of Ms. McCombs’
response to the already-developed fire; specifically, whether she tried to
fight it or tried to flee from it. The mechanism of the fire’s origin or the
source of Ms. McCombs’ burns are only superficially relevant to resolution
of that issue. Moreover, Plaintiffs were not denied opportunity to present
their theory to the jury. As noted, Plaintiffs introduced much evidence and
argument to convince the jury Ms. McCombs was trying to flee the fire.
Therefore, at most, the undisclosed photographs would have been
cumulative evidence to support their main theory. We are unpersuaded
that any loss of the ability to present cumulative evidence demonstrates
prejudice. Because the undisclosed photographs would only have tended
to present cumulative evidence of factors that were not essential to the
factual findings implicit to the jury’s verdict, Plaintiffs have failed to
establish any prejudice warranting a new trial.

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B. The Court Imposed Sufficient Sanctions

¶18 The record shows the court imposed multiple sanctions
pursuant to Rule 37 for the Trust’s disclosure violations. Sanctions imposed
under Rule 37 must be appropriate under the circumstances and preceded
by due process. Roberts v. City of Phoenix, 225 Ariz. 112, 119–20 ¶ 27 (App.
2010). We defer to the court’s imposition of sanctions under Rule 37. Id. at
119 ¶ 24; see also Ariz. R. Civ. P. 37, cmt. (“Rule 37(d) now contains language
underscoring the court’s discretion to impose any sanctions it deems
appropriate in the circumstances, which in turn reinforces that the issuance
of such sanctions is subject to review for abuse of discretion.”).3

¶19 After the Trust attempted to use an undisclosed photograph
to impeach Chase McCombs’s testimony on cross-examination, the court
issued a limiting instruction requiring the jury to disregard any discussion
of the photographs. The court further precluded the Trust from using the
photographs in its examination of its own expert witness, and Plaintiffs
were permitted to cross-examine the Trust’s expert on his failure to disclose
the nearly 500 photographs. And as the court pointed out, Plaintiffs
declined to continue the trial to review the newly disclosed photographs
with their expert and determine whether the photographs would influence
his opinion. Considering both our deference to the court’s prejudice
determination and the multiple sanctions imposed at trial, we find no abuse
of discretion in denying Plaintiffs’ motions for a new trial, relief from
judgment, or additional Rule 37 sanctions.

II. Rule 50 Motion for Judgment as a Matter of Law

¶20 We review the court’s denial of a motion for judgment as a
matter of law de novo, viewing the evidence in the light most favorable to
the non-moving party. ABCDW LLC v. Banning, 241 Ariz. 427, 433 ¶ 16
(App. 2016); Desert Mountain Props. Ltd. P’ship v. Liberty Mut. Fire Ins. Co.,
225 Ariz. 194, 200 ¶ 12 (App. 2010). We will affirm if substantial evidence
supports the outcome. Sec. Title Agency, Inc. v. Pope, 219 Ariz. 480, 492 ¶ 51
(App. 2008) (citation omitted).

3 Rule 37(c) requires an express finding of harmlessness to avoid
imposition of sanctions. Ariz. R. Civ. P. 37(c)(1). We note that even under
Rule 37(c)(1)’s stringent requirements, the court’s actions withstand
scrutiny; not only did the court impose several Rule 37 sanctions to remedy
the disclosure violation during trial, but it also made an express finding the
Trust’s failure to disclose did not prejudice Plaintiffs.

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¶21 During trial, Plaintiffs moved for judgment as a matter of law,
asking the court to determine the Trust was negligent per se for installing
the double-key deadbolt lock on the front door.4 The parties disputed which
fire codes, if any, applied to the property at the time of Ms. McCombs’s
death. Plaintiffs argued the International Fire Code (“IFC”) applied to the
property and prohibited the double-key deadbolt lock affixed to the
property’s front door. The Trust argued no applicable code prohibited the
double-key deadbolt lock on the residential property at the time of Ms.
McCombs’s death, given the year the home was built.

¶22 After hearing argument on the issue and before reading the
final jury instructions, the court “found as a matter of law that a fire code
covers this property.” The court subsequently instructed the jury: “The law
applicable to the home on the date of the fire stated that egress doors shall
be openable from the inside without the use of a key or any special
knowledge or effect—sorry, any special knowledge or effort.” The jury
instruction reflects the IFC prohibition on double-key deadbolt locks on
egress doors, as requested by Plaintiffs.

¶23 We find no error in the court’s denial of Plaintiffs’ motion for
judgment as a matter of law. The judge instructed the jury that the IFC’s
prohibition applied to the property at the time of Ms. McCombs’s death,
making the double-key deadbolt lock a violation. But even if the court had
granted Plaintiffs’ motion, the jurors would still be required to find the
Trust’s negligence caused Ms. McCombs’s death. See, e.g., Alaface v. Nat’l
Inv. Co., 181 Ariz. 586, 598 (App. 1994) (“A plaintiff who makes a claim of
negligence per se must show that the defendant’s actions were the
proximate cause of his or her injuries.”). Even if, as Plaintiffs suggest,
granting the Rule 50 motion would have “taken [the issues of duty and
breach] out of the jury’s hands,” the jury could still have found—and
effectively did find—in favor of the Trust on causation. The record contains
substantial evidence to support the jury’s implicit finding the double-key

4 Plaintiffs failed to preserve the arguments made in their pre-verdict
Rule 50 motion; no post-verdict motion for judgment as a matter of law was
filed, and Plaintiffs did not re-address the negligence per se arguments in
their post-trial motion for new trial. However, we may “consider questions
of law and evidentiary rulings ‘regardless of whether they were presented
to the lower court in a motion for a new trial.’” Marquette Venture Partners
II, L.P. v. Leonesio, 227 Ariz. 179, 182 ¶ 7 (App. 2011). Because the Trust did
not raise waiver, we exercise our discretion to address Plaintiffs’ argument
on its merits.

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deadbolt lock, even if a violation of the applicable fire code, did not
proximately cause Ms. McCombs’s death. Therefore, the court did not err.

III. Motion for Mistrial

¶24 Plaintiffs challenge the court’s refusal to grant their motion
for mistrial. We review the court’s denial of a motion for mistrial for an
abuse of discretion. State v. Marshall, 197 Ariz. 496, 500 ¶ 10 (App. 2000).
Superior courts have considerable discretion because they are “in the best
position to determine whether the evidence will actually affect the outcome
of the trial.” State v. Jones, 197 Ariz. 290, 304 ¶ 32 (2000). To determine
whether a mistrial is appropriate, courts will consider “(1) whether the jury
has heard something it should not hear, and (2) the probability that the jury
was influenced by what it heard.” State v. Williamson, 236 Ariz. 550, 560 ¶
29 (App. 2015).

¶25 During the Trust’s closing argument, counsel stated: “[B]ased
on some of the minimal facts that you had at the beginning of this case, one
of the jurors said, after hearing what has been reported, it sounded like this
is a money grab. It is a money grab, that’s why we’re here.” Plaintiffs timely
objected that the argument contained facts not in evidence. Later, the
Trust’s counsel again stated: “It wasn’t until the lawyers got involved that
everything changed. That’s because it became a money grab.” The court
issued a curative instruction following the Trust’s closing argument:

I want to remind you of an instruction that was provided to
you, and that is, what the lawyers say is not evidence. . . . I’m
going to ask that you disregard [defense counsel]’s statement
regarding what a purported juror may have said during jury
selection, and remember from the preliminary instructions
you are to decide the case only from the evidence and
testimony presented here in the courtroom[.]

¶26 After the jury began deliberations, the court determined that
allowing the reference to the alleged juror’s statement had been “in error,
because the conversation that was referenced was outside the presence of
the jury and was a private communication” between the parties and
Prospective Juror 16, who was ultimately struck for cause. Despite this
error, the court nevertheless denied Plaintiffs’ mistrial motion and stated
“[t]he theory of the case that you believe that [P]laintiffs have a motive for
testifying in a particular way in order to maximize their recovery, the Court
doesn’t find to be inappropriate.”

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¶27 The court did not abuse its discretion in refusing to grant a
mistrial based on counsel’s improper closing argument. The court is in the
best position to assess the jury’s response to counsel’s comments and
determine whether, considering the degree and nature of counsel’s
transgression, the jury was likely to be impermissibly influenced by the
comments. See Jones, 197 Ariz. at 304 ¶ 32. And although counsel’s reference
to comments made by a prospective juror in voir dire was improper, the
subsequent references to a “money grab” were made in the context of
assessing a witness’s motive to testify in a particular way, which was
permissible argument. Further, the court fashioned a remedy it thought
proportionate to the impropriety by issuing a curative instruction, asking
the jurors to disregard the offending portions of closing argument. We
presume juries follow curative instructions, State v. Dann, 205 Ariz. 557, 571
¶ 48 (2003). We hold Plaintiffs have failed to overcome this presumption.
Therefore, we find no abuse of discretion.

IV. Denial of Motion to Strike Juror 26 for Cause

¶28 Plaintiffs argue the superior court erroneously refused to
strike Prospective Juror 26 (“Juror 26”). We review the court’s refusal to
strike a prospective juror for cause for an abuse of discretion and only look
to whether the record supports the judge’s findings. State v. Speer, 221 Ariz.
449, 455 ¶ 23 (2009); State v. Allen, 253 Ariz. 306, 331 ¶ 47 (2022) (“Reviewing
courts defer to the trial judge’s perceptions of the juror and question only
whether the judge’s findings are supported by the record.”). We defer to
the court as it “has the power to decide whether a venire person’s views
would actually impair his ability to apply the law.” Jones, 197 Ariz. at 302 ¶
24 (further stating “deference must be paid to the trial judge who sees and
hears the juror”).

¶29 During voir dire, Juror 26 expressed a viewpoint that the case
“might be an opportunistic lawsuit.” He reportedly based this view on
what he had “seen on TV, and heard on radios and TV and everything else
about what goes on today,” but not necessarily on anything about this
particular lawsuit. He continued:

You know, I look at it and I think, well, you’ve got a case
where the heir is suing the estate. So you expect that heir is
probably expecting to get something from the estate anyway.
Frankly, I’m not sure I understand why anybody would do
that, unless it was they could maybe get a little bit more of an
insurance settlement or something if they did it this way.

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When the Trust’s counsel inquired about the basis for his statements, Juror
26 indicated he was “[r]eacting to [his] perspective of human nature,” and
he did not “know anything about the merits” of the case.

¶30 The court declined to strike Juror 26 for cause, finding his
comments were “merely him speculating as to the motive for an heir to sue
what would be the Trust in this case.” The court was persuaded Juror 26’s
views didn’t “have anything to do with the position of the parties” or “the
relationship of the parties,” but rather expressed a general view of “human
nature, and likely being skeptical as to why people are bringing lawsuits
other than to make money.” In the court’s view, Plaintiffs failed to establish
Juror 26’s inability to be fair and impartial. Because it “sees and hears” the
juror, see Jones, 197 Ariz. at 302 ¶ 24, we defer to the court’s assessments
and, on this record, we cannot conclude the court abused its discretion.

V. Exclusion of Insurance Policy

¶31 Plaintiffs sought to introduce a “rental dwelling [insurance]
policy” the Trust took out on the home Ms. McCombs resided in at the time
of her death by questioning the Trust’s trustee, Heather Ackerman, about
the policy’s existence.

¶32 Relevance is a prerequisite to the admissibility of evidence.
Ariz. R. Evid. 402. Evidence is relevant if it tends to make a fact of
consequence “more or less probable than it would be without the
evidence.” Ariz. R. Evid. 401. Superior courts have broad discretion to
determine whether evidence is relevant and admissible, and we will not
disturb such determination absent an abuse of discretion. State v. Smith, 136
Ariz. 273, 276 (1983); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88 ¶ 7 (App.
1998).

¶33 Attempting to establish applicability of the duties5 inherent in
a landlord-tenant relationship, Plaintiffs argued the policy was relevant to
show the Trust had obtained “rental” insurance for the property, which in

5 See Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267 ¶ 9 (2021) (“In
Arizona, duty is based on either special relationships recognized by the
common law or relationships created by public policy.”) (citations omitted);
Piccola By & Through Piccola v. Woodall, 186 Ariz. 307, 310 (App. 1996) (“A
landlord owes a duty of reasonable care which requires inspection of
premises if there is reason to suspect defects existing at the time the tenant
takes possession. The landlord must repair or warn the tenant of such
defects.”).

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turn would support Plaintiffs’ argument the Trust’s predecessor was Ms.
McCombs’s landlord at the time of her death. The court determined that
questioning Ms. Ackerman about the existence of the rental policy was
irrelevant and impermissibly outside the scope of Plaintiffs’ cross-
examination because she had not denied the home was a rental property,
and the policy would remain irrelevant unless and until Ms. Ackerman did
so testify. See Ariz. R. Evid. 611(b) (“A witness may be cross-examined on
any relevant matter.”). Plaintiffs’ counsel acknowledged this point.

¶34 It was not an abuse of discretion for the court to exclude this
evidence. The court instructed the jury that “[f]or a rental agreement to
exist, there must be an offer, acceptance of the offer, consideration, and
terms sufficiently specific so that the obligations created by the agreement
can be determined.” Whether a “rental dwelling insurance policy” existed
on the property does not make the existence of a rental agreement “more or
less probable” as required by Rule 401. The insurance policy’s existence
does not speak directly to the existence of an offer, acceptance,
consideration, or terms of the purported agreement. Nor does it establish
which entity had legal or actual control of the property necessary to impose
the duty. See Dabush, 250 Ariz. at 267 ¶ 11 (“[landlords] only owe a duty to
[tenant] if they had legal control of the premises or exercised actual,
physical control over it.”), 269–70 ¶ 20 (“although a landlord is presumed
to retain control of a common area . . . a tenant may overcome that
presumption by exercising actual, exclusive control over it.”). We therefore
conclude the court did not abuse its discretion in precluding examination
related to the insurance policy as irrelevant to whether a rental agreement
existed between Ms. McCombs and the Trust at the time of her death.

CONCLUSION

¶35 We affirm.

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

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