Smith v. Olsen,  No. 1 CA-CV 22-0565/1 CA-CV 23-0041 (App. Div. I May 30, 2024) (J.Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2022-0565%20Smith%20v.%20Olsen.pdf

ARIZ R. CIV. PROC. 16 & 37 AUTHORIZES TRIAL COURT TO BAR DEFENDANT FROM OBJECTING TO PLAINTIFF'S TRIAL EXHIBITS AND OFFERING HIS OWN WITNESSES AND EXHIBITS AS SANCTION FOR DEFENDANT'S FAILURE TO PARTICIPATE IN PREPARTION OF JOINT PRETRIAL STATEMENT AND FAILURE TO ATTEND PRETRIAL CONFERENCE/DAMAGES FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS WERE DUPLICATIVE  OF  DAMAGES FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND ARE THUS VACATED

The parties shared an easement to their property in a remote area in Cave Creek.  They didn't get along and plaintiff alleged defendant frustrated her right to use the easement, intentionally and negligently inflicted emotional distress on her, assaulted her, trespassed on her property and intentionally interfered in contractual relations.  The defendant ignored the trial court's order to participate in the preparation of a joint pretrial statement and failed to attend the pretrial conference resulting in the court finding the defendant had waived his right to object to plaintiff's trial exhibits and witnesses and had waived the right to introduce any exhibits or call witnesses other than himself.  Defendant was given an opportunity to show “good cause” for his failures but made no effort to do so.  After a ten day jury trial the plaintiff was awarded $3 million including $1.5 million in punitive damages.  The trial court awarded an additional $460,820.08 in attorneys' fees and $4,047.35 in taxable costs. Defendant appealed and the Arizona Court of Appeals affirmed in part, reversed in part and remanded.

Arizona Rules of Civil Procedure 16 and 37 authorize the court to sanction a party for failure to participate in preparing a joint pretrial statement, attend the pretrial management conference and provide discovery. Here defendant was given ample opportunities to participate in the preparation of he joint pretrial and to later accept the court's invitation to submit additional joint pretrial statements. Defendant waived his right to object to plaintiff's exhibits and witnesses and waived the right to call his own witnesses and offer his own exhibits. He was properly allowed to testify himself and to cross examine the plaintiff and his witnesses.

There was ample evidence to support the jury's award of compensatory damages for breach of easement, assault, trespass and intentional infliction of emotional distress, including evidence defendant, physically blocked plaintiff's access to the easement,  threatened to shoot plaintiff's dog, poisoned her dog, placed harassing signs on the road, put poisonous snakes near her house, violated an injunction against harassment, forced plaintiff's daughter off the property, called her derogatory names and told false stories about her to the police, friends and on social media. However, the $375,000 awarded for negligent infliction of emotional distress was duplicative of the award for intentional infliction of emotional distressed and based upon the same conduct. The judgment must be reduced by this amount.

Finally, while defendant's conduct demonstrated an evil mind and intentional conduct worthy of an award of punitive damages, here the amount awarded (2.67:1 and 3:1 ratio to compensatory damages) was unconstitutionally too high. Evaluating the degree of reprehensibility of the defendant's conduct, the ratio of the compensatory to punitive damages and comparison to other civil penalties, the court of appeals reduced the punitive damages from $1.5 million to a 1:1 ratio to compensatory damages or $525,000.