Soto v. Saco, __ Ariz. Adv. Rep. __, No. 1 CA-CV 15-0092 (App. Div. I, May 19, 2016) (J. Downie) (Trial Judge Michael D. Gordon)
TIME TO APPEAL NOT TRIGGERED UNTIL THERE IS A SIGNED ORDER/REMITITUR APPROPRIATE DEFERENCE TO TRIAL JUDGE
Plaintiffs were passengers in a cab when it collided with another car. Passengers sued the cab driver and cab company for their injuries. Plaintiff Michael Soto suffered multiple fractures to the humerus of his dominant arm that required surgery to implant a plate and screws. Witnesses testified that Michael no longer enjoyed certain activities he participated in before the accident, and he experienced significant pain and emotional distress as a result of the accident. However, Michael's treating physician testified that the fractures healed during four months of physical therapy and he placed no restrictions on Michael or his activities. During closing arguments, plaintiffs' counsel asked the jury to award $725,000, Defendants suggested an award of $90,000. The jury awarded Michael $700,000. On motion for new trial the trial judge offered plaintiff a remittitur to $250,000 by an unsigned order. Plaintiff rejected the remittitur and asked for a formal final order start the appeal time which the court did. Defendants argue the notice of appeal ultimately filed was untimely because the clock began tick on the 30 day deadline to file upon Plaintiffs' filing of its formal rejection of the remittitur offer. The Arizona Court of Appeal affirmed.
While Rule 59(i)(1) renders a the granting of a new trial final when a remittitur or additur is rejected, there must be a “signed” order to start the clock. The appeal was timely.
Turning to the appropriateness of the remittitur, the trial court is justified if it concludes that “a damage award is not supported by substantial evidence and reflects ‘an exaggerated measurement of damages,' though it is not ‘shockingly or flagrantly outrageous.' . . . Nevertheless, we have cautioned that remittitur should be ordered only “for the most cogent reasons . . . such as lack of evidence to support the damages awarded or a clear indication that the jury misapplied the principles governing damages.”
Here the trial judge is given great deference. He saw the witnesses, heard the testimony first hand, considered reports of verdicts on similar cases submitted by the defense and was in the best position to determine that the verdict here was excessive.