Arizona Court of Appeals Division One Holds That Court May Grant Relief Under Rule 59(g) Only to the Moving Party.

Noyes Hanscome died shortly after being transferred to the hospital from Evergreen Foothills Health and Rehabilitation Center (“Evergreen”), where he was undergoing cancer treatment.  His wife, Colleen, subsequently brought an action for elder abuse on behalf Mr. Hanscome’s estate.  She also alleged claims for negligence and wrongful death on behalf of herself and her three year old son, Chandler.  At the close of trial, the jury awarded Chandler $1.8 million in compensatory damages; awarded Colleen zero damages; and awarded the estate $200,000.  Shortly thereafter, the Evergreen moved for a new trial, asserting that the jury award was excessive.  In their reply brief, Evergreen suggested for the first time that the court could apply remittitur to the verdict.  The court denied a new trial but asked for supplemental briefing on the issue of remittitur.  In her supplemental brief, Colleen argued that an additur was more justified than a remittitur.  Following oral argument, the court found the award to the estate “fair and reasonable” but concluded that it could not find that “adequate evidence” supported the actual damage award of $1.8 million to Chandler and reduced it to $500,000.  The court also concluded that it was required “in good conscience” to award an additur to Colleen of $200,000 because “the only reasonable explanation for a zero award is the jury’s belief that she received a substantial sum from [the] life insurance carrier.”  Colleen notified the court that she would not accept the remittitur, and Evergreen timely rejected the additur.  The court then issued a “final order” noting the rejection of its proposal and ordering a new trial to determine the amount of damages suffered by Colleen and Chandler.  Colleen appealed, arguing that in offering a remittitur, the court applied the incorrect legal standard.  Evergreen cross-appealed, arguing that the court abused its discretion by offering the additur for Colleen.

On appeal, the Arizona Court of Appeals vacated the order granting a new trial, holding that it was unclear on the record whether the trial court had applied the correct legal standard in offering a remittitur.  When faced with a motion for new trial asserting that the damages were excessive or the verdict resulted from passion or prejudice or was not justified by the evidence, Arizona trial courts must determine whether the verdict is so manifestly unfair, unreasonable, and outrageous as to shock the conscience.  If the trial court finds that a verdict is so tainted, remittitur is not a proper remedy; rather, the court should order a new trial.  If, instead, the verdict merely reflects an exaggerated measurement of damages in an area in which reasonable persons may differ, the trial court may exercise its discretion to order remittitur.  In this case, the Court of Appeals concluded that the court’s frequent references to using its “good conscience” and sense of fairness” suggests that it may have erred in concluding that it had discretion to offer a remittitur.  The Court, therefore, vacated the order granting a new trial and remanded the lower court’s ruling for reconsideration, under the appropriate standard, of whether a new trial should be granted. 

With respect to Evergreen’s cross-appeal, Colleen conceded that the court had erred as a matter of law in adding to her verdict, arguing instead that she should be granted a new trial.  The Court then rejected Colleen’s request for a new trial, concluding that she had not timely filed the appropriate motion.  Arizona Rule of Civil Procedure 59(g) posits two alternatives: the first sentence allows a court to order a new trial “on its own initiative” not later than 15 days after entry of judgment and the second sentence allows the court to grant relief to a non-moving party “for a reason not stated in the motion.”  The Court of Appeals explained that the second sentence to Rule 59(g) was added to clarify that the trial court has the power when an effective new trial motion has been made to decide it on grounds thought meritorious by the court although not advanced in the motion.  Although neither the Rule nor comment explicitly states whether a court may grant a new trial to a party who never timely moved for a new trial, the Court of Appeals concluded that courts may grant relief under Rule 59(g) only to the moving party.  In this case, because Colleen did not timely seek any relief under Rule 59(g), the Court concluded that she was not entitled to a new trial. 

Judge Weisberg authored the opinion; Judges Hall and Swann concurred.