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Bogard v. Cannon & Wendt Electric Co., Inc. - 1/27/2009

Arizona Court of Appeals Division One Holds That Reversal on Appeal of A Summary Judgment Motion That is Limited to the Specific Issues Raised in the Motion is Not A General Reversal Without Instructions; On Remand, A New Trial Court Judge Has no Jurisdiction to Reconsider Rulings Not Addressed in the Appeal.


C&W moved for summary judgment on the discrimination and retaliation claims, and argued that Bogard should not be able to recover for emotional distress damages or punitive damages.  The trial court granted summary judgment on the discrimination claim, emotional distress damages claim and punitive damages claim.  The court determined that with respect to the discrimination claim, the EEOC determinations were not admissible evidence of alleged discrimination and could not be use to prove discrimination. The trial court denied summary judgment on the retaliation claim but found that Bogard had failed to mitigate her damages.  The remainder of the case was set for trial. Before the scheduled trial date, the trial court issued a minute entry granting summary judgment on the remaining retaliation claims. Bogard’s claims were dismissed with prejudice.

Bogard appealed.  On appeal, the Arizona Appeals Court vacated the summary judgment with respect to the discrimination claim and remanded to the trial court so that it could provide further explanation regarding its determination that the EEOC findings were inadmissible in accordance with Arizona Supreme Court Case, Shotwell v. Donahoe.  The Appeals Court reversed the summary judgment on the retaliation claim and remanded for further proceedings.

On remand, the case was reassigned to a new trial judge who set the case for trial.  C&W filed a motion in limine seeking exclusion of evidence and argument regarding emotional distress damages, punitive damages, damages that were not mitigated, and the EEOC’s reasonable cause determinations, arguing that the prior trial court ruling on damages became the law of the case when Bogard did not challenge it on appeal.  The trial court denied this motion, taking the position that the court of appeals opinion was one without instructions which therefore restored the parties to the same position as if the judgment had not been rendered. Upon conclusion of the jury trial, the trial court granted C&W’s motion for directed verdict with respect to punitive damages.  The jury returned a verdict in favor of Bogard.  Judgment was entered awarding Bogard $300,000 in mental pain and suffering and $10,000 in lost wages.  The judgment also included attorneys’ fees and costs.

C&W appealed, arguing that the trial court erred by (1) permitting evidence on Bogard’s emotional distress and unmitigated damages; (2) failing to follow the appeals court mandate re the EEOC reasonable cause determinations; and (3) awarding Bogard attorneys’ fees despite deficiencies in her fees application.

The Arizona Appeals Court affirmed the trial court’s ruling with regard to Bogard’s substantive claims and the award of attorneys’ fees but vacated the portion of the judgment awarding damages for mental pain and suffering, and modified the portion of the judgment awarding her lost wages to reflect the reduced amount.

With regard to the damages claim, the Court of Appeals explained that Bogard did not appeal the original trial court’s damages ruling and the appeals decision was limited to the discrimination and retaliation claims raised in the appeal.  The decision was not a general reversal without instructions as the second trial court believed.  Thus, when the original trial court entered judgment, the damages ruling became final and appealable, and the trial court on remand had no jurisdiction to review or change the judgment. 

With regard to the trial court’s ruling regarding the admissibility of the EEOC reasonable cause determinations, the Court of Appeals determined that the trial court had considered the EEOC’s determination within the framework set forth in Shotwell and therefore following the appellate court’s mandate. The Court explained that because the Shotwell decision was handed down after the original trial court’s ruling on the admissibility of the EEOC determinations, the trial court on remand was justified in reconsidering this ruling. 

The court of appeals found that the trial court did not abuse its discretion in awarding attorneys’ fees.

Judge Thompson drafted the opinion; Judges Johnsen and Hall concurred.        

Posted On: 2/3/2009