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Civil/Appellate Procedure: Signed Order/Remittitur

Posted by Ted A. Schmidt | Jun 08, 2016 | 0 Comments

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.  

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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