Puckett v. Manghram

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KELLY JOE PUCKETT, Plaintiff/Appellee,

v.

TIFFANY TYLONDA MANGHRAM, an adult woman; REESE
INTERNATIONAL TRUCKING INC., a foreign corporation,
Defendants/Appellants.

No. 1 CA-CV 24-0723
FILED 07-29-2025

Appeal from the Superior Court in Yavapai County
No. V1300CV202180364
The Honorable Linda Wallace, Judge Pro Tempore

AFFIRMED

COUNSEL

Jensen Phelan Law Firm P.C., Prescott
By Christopher W. Jensen, Sean Phelan
Counsel for Plaintiff/Appellee

Righi Fitch Law Group, P.L.L.C, Phoenix
By Richard Righi
Co-Counsel for Defendants/Appellants

The Cavanagh Law Firm, P.A., Phoenix
By Levi T. Claridge, Victoria R. Kelly, Karen C. Stafford
Co-Counsel for Defendants/Appellants
 PUCKETT v. MANGHRAM, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Kent E. Cattani joined.

F O S T E R, Judge:

¶1 Defendants Tiffany Manghram and Reese International
Trucking, Inc. (“Reese”) appeal the jury’s verdict awarding Kelly Joe
Puckett $300,000 in damages related to a vehicular collision. For the
following reasons, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 Puckett was driving a 1996 Ford F-250 pickup truck on the
interstate when he was rear-ended by Manghram, who was driving a
tractor-trailer owned by her employer, Reese. Damage to the Ford rendered
it a total loss.

¶3 Puckett timely filed suit against Manghram and Reese for
negligence. A few months before trial, Defendants amended their answer
to admit negligence, which left only causation and damages at issue for
trial. At the final pretrial conference, the parties discussed preliminary jury
instructions with the court and provided proposed jury instructions, but
the parties deferred discussion on loss of use and reasonable certainty
instructions for the week of trial.

¶4 Throughout the four-day jury trial, both parties continued to
discuss the jury instructions. The parties disagreed whether loss of use of
the Ford was compensable and, if it was, whether evidence involving the
rental value of a similar vehicle, and Puckett’s use of the Ford in his hunting
guide business, was relevant.

¶5 Before closing arguments, Puckett moved for judgment as a
matter of law, which the superior court denied. Following release of the
jury for deliberations, Defendants moved for a mistrial on the grounds that
Puckett’s attorney stated the jury should “send a message” with its verdict,
despite punitive damages not being at issue. Defendants alternatively
argued that if the error was not sufficient for a mistrial, the court should
provide a curative instruction to the jury. The court denied both requests.

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The jury found in favor of Puckett and awarded him damages totaling
$300,000. Puckett had requested $572,529.23.

¶6 Following post-trial briefing, the court entered final judgment
for Puckett in the amount of $333,546.60 that included: (1) $300,000 in
damages from the jury; (2) $10,864.72 in “pre-judgment interest on
[Puckett’s] liquidated property damage claim”; (3) $5,809.18 in costs
incurred; and (4) $16,890.70 in sanctions.

¶7 Defendants timely appealed and this Court has jurisdiction
pursuant to A.R.S. §§ 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶8 Defendants challenge the jury award, arguing that the court
(1) “incorrectly instructed the jury,” (2) “erred [in] limiting testimony from
[expert] Casey Franklin regarding loss of use,” (3) “failed to issue a curative
jury instruction” regarding closing arguments and (4) erred in not granting
a mistrial for statements made during closing arguments.

I. Defendants waived their objection to the jury instructions.

¶9 Defendants argue the court “incorrectly instructed the jury as
to Arizona law on the issue of loss of use.” Whether a jury instruction
correctly states the law is reviewed de novo. Cavallo v. Phx. Health Plans, Inc.,
254 Ariz. 99, 104, ¶ 15 (2022); Desert Mountain Props. Ltd. P’ship v. Liberty
Mut. Fire Ins. Co., 225 Ariz. 194, 199, ¶ 11 (App. 2010). It is “reversible error
for the trial court to refuse to instruct the jury on a legal theory which is
within the issues of the case and is supported by substantial evidence.”
Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 539 (1982). But a party
objecting to a jury instruction must not only assert the objection on the
record but must also state the issue and grounds for objecting. Ariz. R. Civ.
P. 51(c)(1). A timely objection may be “made before the instructions and
arguments are delivered to the jury.” Ariz. R. Civ. P. 51(c)(2)(A) cmt.
(pursuant to the 2017 amendment adopting Federal Rule of Civil Procedure
51); see Henricks v. Acevedo, 2 CA-CV 2022-0072, 2023 WL 3608261, at *2, ¶ 8
(Ariz. App. May 23, 2023) (mem. decision).

¶10 Here, the court held discussion regarding the appropriate
language for the jury instruction, including application of the Restatement
(Second) of Torts (1979) and Puckett’s responsibility for mitigation of
damages related to loss of use. Defendants proposed language for the
reasonable certainty instruction which the court declined. But before
opening statements commenced, the court asked the parties “do we have

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approval of the preliminary jury instruction as presented to counsel?” Both
parties answered “yes.” The Defendants did not object when the
preliminary instructions were given to the jury. Therefore, Defendants did
not adequately inform the court of their opposition. See Dawson v.
Withycombe, 216 Ariz. 84, 100, ¶ 40 (App. 2007) (party had preserved their
objection on appeal when the party reiterated his argument to the court).

¶11 When the parties discussed the final jury instructions with the
court, Defendants proposed an additional sentence to the loss of use
instruction following Puckett’s testimony on the third day of trial. The
additional sentence read:

Mr. Puckett is not entitled to loss of use for the 1996 Ford F-
250 unless he proved that the vehicle was used for commercial
purposes.

¶12 Defendants requested that the language “be included . . . so
that the jury is instructed appropriately.” The court denied the proposed
sentence. The court then asked the parties if there was anything further—
Defendants replied: “No.” On the last day of trial, the court asked the
parties if there was any disagreement “[w]ith respect to the final jury
instructions. The version that we had from yesterday, are there any
modifications to it?” Again, Defendants replied: “No.”

¶13 A vague and broad statement that an instruction misstates the
law is not sufficient to adequately inform the court of a party’s objection.
See Spillios v. Green, 137 Ariz. 443, 446–47 (App. 1983). In both instances,
Defendants failed to adequately assert and preserve their objections to the
court before it instructed the jury on loss of use. See United Bank of Ariz. v.
Wine, 18 Ariz. App. 23, 24 (1972) (citations omitted) (appellate review must
include both the proposed instructions and the objections raised; otherwise,
no issue is preserved for review); Ariz. R. Civ. P. 51. Here, the court
provided Defendants an opportunity to object and Defendants failed to do
so. Ariz. R. Civ. P. 51(b)(3)(C).

¶14 Furthermore, Defendants cannot establish prejudice from the
alleged incorrect instruction because there they did not request a special
verdict. Where, as here, there is an argument that one theory of damages is
not proper, “[a] request for special verdicts would have been the proper
method of assuring that the award of damages was not partly based on a
count which had been erroneously submitted to the jury. Not having asked
for special verdicts, [a defendant] will not be heard to challenge the validity
of the general verdict.” Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338,

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341 (App. 1983). See also Lohmeier v. Hammer, 214 Ariz. 57, 62, ¶ 14 (App.
2006) (a general verdict reflects the jury’s conclusion that all crucial
elements have been proven in favor of the successful party). Defendants did
not properly preserve an objection to the loss of use jury instructions, and
they waived appellate review of the issue.

II. The court did not err in limiting Defendants’ expert opinion
regarding the standard on loss of use.

¶15 To support their argument that the loss of use instruction was
error, Defendants contend the court (1) erred in limiting testimony from
their expert Franklin on the loss of use standard and (2) failed to include a
proposed loss of use jury instruction, based on Franklin’s testimony, which
they allege is consistent with the law. Courts review the exclusion of expert
testimony for an abuse of discretion. Webb v. Omni Block, Inc., 216 Ariz. 349,
352, ¶ 6 (App. 2007).

¶16 In support of their first point, Defendants argue that the
court’s decision to limit Franklin’s testimony on loss of use to only standard
practices of the insurance industry misled the jury and was therefore error.
Had the court not limited Franklin’s testimony, Defendants contend,
Franklin would have testified as to when damages are recoverable and
calculated when evaluating loss of use in Arizona.

¶17 A witness may be qualified as an expert due to the person’s
specialized knowledge if the expert will assist the trier of fact, “the
testimony is based on sufficient facts or data,” the testimony is formed
through “reliable principles and methods,” and the expert’s opinion is
reliable. Ariz. R. Evid. 702. “The trial judge must act as a gatekeeper by
applying this rule to admit ‘only relevant and reliable expert testimony.’”
State v. Carlson, 237 Ariz. 381, 391, ¶ 25 (2015) (citation omitted).

¶18 In Arizona, when a vehicle is damaged but repairable due to
negligence, the property damage claim includes compensation for the cost
of repairs, any remaining loss in market value after repairs and the loss of
use of the vehicle during the repair period. See Farmers Ins. Co. v. R.B.L. Inv.
Co., 138 Ariz. 562, 564–65 (App. 1983). But Arizona has not squarely
adopted a particular section of the Restatement relating to loss of use in
cases where the harm results in a total loss. Aztlan Lodge No. 1, Free &
Accepted Masons of Prescott v. Ruffner, 155 Ariz. 163, 165 (App. 1987) (in the
absence of controlling law, courts look to the Restatement).

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¶19 Here, the preliminary jury instructions suggested the jury
follow Restatement § 931. The preliminary jury instructions, in relevant
part, stated:

Plaintiff Kelly Joe Puckett also claims that Defendant Tiffany
Manghram and/or Reese International Trucking, Inc.’s
negligence caused him to be unable to use his 1996 Ford F-250
pickup. The damage for a total loss of use of a vehicle is the
reasonable cost to rent a similar 1996 Ford F-250 pickup for a
reasonable amount of time.

Plaintiff Kelly Joe Puckett is entitled to recovery for the loss of
use of his 1996 Ford F-250 pickup even if he had a substitute
vehicle that he used during the time period of deprivation.
Plaintiff is not entitled to recover damages for any harm that
he could have avoided by use of reasonable effort or
reasonable expenditure after the collision.

¶20 Under § 931, when a party is entitled to judgment for the
detention or interference with the use of property, the resulting
compensation includes:

(a) the value of the use during the period of detention or
prevention or the value of the use of or the amount paid
for a substitute, and

(b) harm to the subject matter or other harm of which the
detention is the legal cause.

Restatement § 931.

¶21 Defendants argue that Franklin should have been allowed to
testify as to the “correct” standard of law rather than the preliminary
instructions provided. They argue Restatement § 927 “is most applicable to
this scenario.” Section 927 states, in relevant part, that upon a judgment of
conversion, destruction or impairment of a party’s interest in property, the
party may recover:

(1)(a) the value of the subject matter or of his interest in it at
the time and place of the conversion, destruction or
impairment . . . .

[. . . ]

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[and] damages also include:

(2)(d) compensation for loss of use not otherwise
compensated.

Restatement § 927.

¶22 Defendants assert that Franklin’s testimony should not have
been limited because “it was entirely appropriate for Franklin to testify on
the topic given his expertise” and the “fact that the law in Arizona is
undecided on whether loss of use damages are available for a totaled
vehicle.” But by the time Franklin testified, the jury had received
preliminary jury instructions aligned with § 931. The court stated its unease
with providing the jury a different standard through an expert who was not
an attorney and could not speak to Arizona law. Had the court permitted
Franklin to testify as to Defendant’s understanding of the law, such
testimony would have potentially confused the jury. See Youngkin v. Maurer, 74 Ariz. 67, 70 (1952) (jury instructions given by the trial court are applied
as the law of the case unless and until determined otherwise by an appellate
court); see also Pacific Gas & Elec. Co. v. Alamanzo, 22 Ariz. 431, 444 (1921) (an
erroneous instruction is considered the law at trial “until reversed”).

¶23 Even so, both sections of the Restatement provide for loss of
use compensation. Compare Restatement § 927 with Restatement § 931. And,
§ 927 references § 931 to justify additional damages for the loss of use prior
to payout or replacement. See Restatement § 927 cmt. o. Defendants did not
demonstrate how the court’s decision to limit Franklin was legally incorrect
following their stipulation to the preliminary jury instructions. Therefore,
the court did not err in limiting Franklin’s testimony to the industry
standard.

¶24 Next, Defendants argue the court erred in rejecting their
additional jury instruction on commercial purpose for loss of use, based on
Franklin’s testimony. Specifically, Franklin testified that as an insurance
industry standard, loss of use was only compensable if the damaged vehicle
was used in a commercial enterprise and there was a loss of revenue from
that enterprise. But Franklin’s testimony was inconsistent. He initially
testified that the loss of use standard required “the person that was
claiming loss of use . . . prove that there was a commercial loss.” He then
stated that the standard practice was to compensate for three to five days
of loss of use even where no commercial purpose existed. After Franklin
testified, Defendants submitted their proposed jury instruction discussing
commercial purpose from Franklin’s testimony, which the court denied.

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The court reasoned that Franklin’s testimony gave “loss of use as separate
from the reimburse[ment] for rental coverage” and that Franklin
understood those as “two separate types of issues.” Since Franklin’s
conflicting testimony did not establish a clear standard, and because § 927
does not limit recovery of damages for loss of use to commercial
enterprises, the court did not abuse its discretion in not relying on it. See
Ariz. R. Evid. 702 (b) (the testimony is founded on adequate facts).

III. The court did not err in denying the motion for mistrial or
declining to provide a curative instruction.

¶25 Defendants next contend the court erred in denying their
motion for a mistrial or alternatively a curative instruction after the “send
a message” statement made by Puckett’s counsel during closing arguments.
Defendants argue that Puckett’s “send a message” statement “improperly
suggested that punitive damages were available in this case” despite
punitive damages not being at issue. Review of a denial of a motion for new
trial is for abuse of discretion. Leavy v. Parsell, 188 Ariz. 69, 72 (1997).
Accordingly, this Court will view the facts “in a light most favorable to
sustaining” a denied motion for mistrial. Miller v. Palmer, 143 Ariz. 84, 88
(App. 1984).

¶26 The “send a message” statement made during closing
arguments was in response to a similar statement made by Defendants
during opening statements. During their opening, Defendants stated:

And that number should be something that makes [Puckett]
whole. That number should be fair. It shouldn’t be a number
that punishes my clients. It shouldn’t be a number that sends
a message to the trucking industry as a whole. It should be a
number that makes Mr. Puckett whole.

(emphasis added).

¶27 In response, Puckett stated the following during closing
arguments,

There was a worry that we were in this case—you heard it in
the opening. This case—this case—don’t buy it—don’t send a
message to the trucking industry. We’re not sending a
message to the trucking industry. The trucking industry don’t
care about this case.

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But at least, according to . . . defense . . . [t]hey care about the
case.

So we do want you to send a message. We want you to send
a message that you, the jury, and this system works, and at
the end of this case, [Puckett] was made whole.

¶28 A statement made during closing argument is proper when
viewed “in the context of the manner in which the case was tried.” Cota v.
Harley Davidson, a Div. of AMF, Inc., 141 Ariz. 7, 15 (App. 1984) (sending a
message to the motorcycle industry was proper when punitive damages
were not at issue because a theory defendant had was defective design). In
the context of the trial as a whole, Puckett’s statement during closing
arguments was a response to Defendant’s own opening statement. The
context makes clear that Puckett’s comment was a request to jurors to make
him whole, which would establish that juries and “this system” work. The
statement did not insinuate a call for punishment as Defendants suggest.
Thus, it was not misconduct, and the court’s denial of the motion for
mistrial was not error.

¶29 Defendants alternatively argue the court should have
provided a curative instruction. They reason that even if denial of a motion
for mistrial was correct, the court should have provided a curative
instruction “to ignore Puckett’s improper statements.” This Court reviews
the superior court’s decision to issue a curative instruction for abuse of
discretion. Zuluaga v. Bashas’, Inc., 242 Ariz. 205, 210, ¶ 12 (App. 2017) (citing
Higgins v. Ariz. Savs. & Loan Ass’n, 90 Ariz. 55, 69 (1961)).

¶30 A curative instruction is a remedy that ameliorates “any
prejudice,” State v. Riley, 248 Ariz. 154, 191, ¶ 144 (2020), and is
“proportionate to the impropriety,” McCombs v. Joyce C. Miller Living Tr., 1
CA-CV 22-0634, 2023 WL 5229247, at *5, ¶ 27 (Ariz. App. Aug. 15, 2023)
(mem. decision). The court’s denial of a curative instruction is proper when
those instructions are covered in other instructions to the jury. See State v.
Alvarez-Lopez, 2 CA-CR 2022-0073, 2023 WL 5737330, at *6, ¶ 35 (Ariz. App.
Sept. 5, 2023) (mem. decision) (court did not err in denying requested
curative instructions when Willits instructions adequately instructed the
jury regarding the State’s duty).

¶31 Here, the “send a message” statement did not amount to an
improper statement needing a curative instruction. Even if it did, the jury
instructions did not direct the jury to consider punitive damages. The
preliminary instructions informed jurors that “[s]tatements or arguments

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made by the lawyers in the case are not evidence.” The final jury
instructions informed jurors that the lawyers’ “opening statements and
closing arguments . . . [were] not evidence.” See State v. Velazquez, 216 Ariz.
300, 312, ¶ 50 (2007) (“Moreover, the jury was instructed that the lawyer’s
comments were not evidence, and [this Court will] presume that jurors
follow their instructions.”). Thus, the court did not err in denying curative
instructions.

IV. Attorneys’ Fees.

¶32 Defendants request costs incurred on appeal pursuant to
A.R.S. § 12-341 and Arizona Rule of Civil Appellate Procedure 21. Because
they are not the successful party on appeal, their request is denied. A.R.S.
§ 12-341. This Court awards Puckett his costs on appeal upon his
compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶33 For the reasons above, this Court affirms.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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