Opinion
No. 2 CA-CV 2014-0077
11-28-2014
THIRZA STALNAKER AND RALPH STALNAKER, A MARRIED COUPLE, Plaintiffs/Appellants, v. CITY OF TUCSON, A MUNICIPAL CORPORATION DULY ORGANIZED UNDER THE LAWS OF THE STATE OF ARIZONA; AND NATHANIEL JAMES WINSTON III, SERGEANT OF TUCSON POLICE DEPARTMENT, Defendants/Appellees.
COUNSEL Law Office of the Thrush Law Group, Tucson By Bradley E. Thrush Counsel for Plaintiffs/Appellants Lewis Brisbois Bisgaard & Smith LLP By Michael B. Smith Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20124785
The Honorable Charles V. Harrington, Judge
AFFIRMED
COUNSEL Law Office of the Thrush Law Group, Tucson
By Bradley E. Thrush
Counsel for Plaintiffs/Appellants
Lewis Brisbois Bisgaard & Smith LLP
By Michael B. Smith
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Appellants Thirza and Ralph Stalnaker (the "Stalnakers") appeal from a judgment entered in favor of appellees, City of Tucson and Tucson Police Department Sergeant Nathaniel Winston (collectively, the "City") following a jury trial. On appeal, they argue the trial court erred in various evidentiary rulings. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See Kaman Aerospace Corp. v. Ariz. Bd. of Regents, 217 Ariz. 148, ¶ 2, 171 P.3d 599, 601 (App. 2007). In November 2011, Winston was investigating a car accident. He suspected that the Stalnakers' daughter, N.S., had been driving the car and he observed that she was exhibiting signs of intoxication. After another officer arrived to help Winston, N.S. became increasingly agitated and refused to obey the officers' commands. Winston directed the second officer to handcuff her.
¶3 While this was going on, the Stalnakers arrived and Thirza attempted to approach N.S. while she was being handcuffed. Winston told Thirza to stay away, but she ignored his commands and continued towards N.S. Winston placed Thirza under arrest and attempted to handcuff her. But Thirza resisted, attempted to pull away from him, and struggled to prevent him from handcuffing her. In order to gain control of the situation, Winston eventually tripped Thirza, she fell, and he handcuffed her. Thirza was injured during this altercation and received medical attention. She was then arrested and charged with obstructing governmental operations.
¶4 The Stalnakers sued the City, alleging assault, negligence, gross negligence, malicious prosecution, false imprisonment, and negligent and intentional infliction of emotional distress against Winston, negligent hiring and training, negligent supervision, and gross negligence against the City of Tucson. The claims for malicious prosecution and false imprisonment were dismissed during trial, and a jury found in favor of the City on all remaining counts. We have jurisdiction over the Stalnakers' appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
TPD's Prior Investigations into Winston's Actions
¶5 The Stalnakers first argue the trial court erred in precluding evidence that the Tucson Police Department (TPD) had investigated Winston's actions in other cases based on citizens' reports that he had used excessive force. They contend this evidence was relevant to Winston's credibility and also fell within the exceptions to Rule 404(b), Ariz. R. Evid. We first note that the Stalnakers failed to raise their Rule 404 argument to the trial court and have therefore waived review of the issue on appeal. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶¶ 6-7, 119 P.3d 467, 470-71 (App. 2005) (an objection on one ground does not preserve another for appeal). Although they have asked us to review the issue pursuant to Brown v. Arizona Public Service Co., 164 Ariz. 4, 6, 790 P.2d 290, 292 (App. 1990) and Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984), they have not explained, nor do we see, how this issue falls into any of the enumerated exceptions to the general rule that issues not raised below are waived on appeal. Consequently, we do not address this issue. See Romero, 211 Ariz. 200, ¶¶ 6-7, 119 P.3d at 470-71.
The Stalnakers underlined two portions of Stokes in their statement of the standard of review, but did not connect those principles to this case in any way. Underlining is not adequate argument and we conclude these two exceptions to waiver do not apply here in any event.
¶6 The Stalnakers did, however, raise their argument that the evidence went to Winston's credibility below. But they have not preserved their objection to the exclusion of this evidence. The Stalnakers did not make an offer of proof below as to the substance of the excluded evidence, and the substance is not otherwise apparent from the context of the motions in limine, the transcript of the hearing on the matter, or the other evidence marked for identification. Ariz. R. Evid. 103(a); see also State v. Dixon, 226 Ariz. 545, ¶ 44, 250 P.3d 1174, 1183 (2011). Although both parties discussed the investigations in very general terms, we "have no basis for determining precisely what evidence was excluded." Dixon, 226 Ariz. 545, ¶ 44, 250 P.3d at 1183. Accordingly, because we cannot review the excluded evidence to determine its relevance, we do not address their argument. See Ariz. R. Evid. 103(a); see also Dixon, 226 Ariz. 545, ¶ 44, 250 P.3d at 1183.
Winston's Resignation from TPD
¶7 The Stalnakers next argue the trial court abused its discretion by precluding evidence and arguments related to Winston's resignation from TPD following the incident at issue. They contend this evidence was relevant to Winston's credibility because the jury could have concluded that "there was some sort of tacit agreement whereby [the Internal Affairs Division] would whitewash the Stalnaker incident if Sgt. Winston . . . would quietly leave the force." The court determined that the "information sought is irrelevant and, to the extent it has any relevance, it would lead to a mini trial on collateral issues if it were permitted at trial."
¶8 The Stalnakers have failed to cite any authority supporting their argument, failed to develop their argument in any meaningful way which would allow appellate review of the court's ruling, and failed to explain how this information impacted Winston's credibility as a witness. They have therefore forfeited this argument. See Ariz. R. Civ. App. P. 13(a)(6) ("An argument . . . shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (failure to develop and support argument waives issue on appeal).
Malicious Prosecution Claim Against City Attorney
or City Prosecutor
¶9 The Stalnakers next argue the trial court erred in precluding them from admitting evidence to develop any claim of malicious prosecution against the City Attorney or City Prosecutor on the basis that they had not made sufficient disclosures related to any such claim before trial. They contend they provided adequate disclosures of their intent to seek such a claim before trial. We review a court's ruling on evidentiary issues for an abuse of discretion. Higgins v. Assmann Elecs, Inc., 217 Ariz. 289, ¶ 35, 173 P.3d 453, 462 (App. 2007).
¶10 Pursuant to Rule 26.1(a), Ariz. R. Civ. P., a party must disclose the factual basis, legal theory, supporting evidence, and damages for each claim asserted. And A.R.S. § 12-821.01 dictates that a party's notice of claim against a public entity or public employee must "contain facts sufficient to permit the public entity or public employee to understand the basis on which liability is claimed."
The Stalnakers claim that because the trial court did not address the City's argument based on § 12-821.01, it therefore "implicitly rejected" the argument. They have not, however, cited any law to support this proposition, and nothing in the court's ruling indicates it rejected the state's argument. Moreover, on appeal "[w]e may affirm the trial court's ruling if it is correct for any reason apparent in the record." Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540 (App. 2006).
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¶11 Both the Stalnakers' notice of claim and the complaint indicated that they were pursuing a malicious prosecution claim against Winston based on his arrest of Thirza, but do not identify any such claim against the City Attorney or City Prosecutor or specify any injuries or damages arising from Thirza's subsequent criminal prosecution. And the City Prosecutor's Office was dismissed with prejudice as a party by stipulation several months prior to the motions in limine being filed, further supporting the trial court's decision that no notice had been provided of a claim against the office. Consequently, the court did not abuse its discretion in determining that the Stalnakers were precluded from introducing any evidence or argument meant to raise a malicious prosecution claim against the City Attorney or City Prosecutor because they had not provided any notice they were pursuing any such claims. See Higgins, 217 Ariz. 289, ¶ 35, 173 P.3d at 462.
¶12 The Stalnakers, however, argue that listing the assistant city attorney who prosecuted Thirza as a witness in their disclosures was sufficient to put the City on notice. However, the Arizona Rules of Civil Procedure require a party to disclose the factual basis and legal theory upon which a claim is based. Ariz. R. Civ. P. 26.1(a). Thus, simply listing the prosecutor as a witness was insufficient to put the City on notice that the Stalnakers were seeking a claim for malicious prosecution against the City Attorney or City Prosecutor. Moreover, any such claim would have been barred by the failure to include it in the Notice of Claim. See § 12-821.01; Barth v. Cochise County, 213 Ariz. 59, ¶ 10, 138 P.3d 1186, 1189 (App. 2006). This argument therefore fails.
Reason for N.S.'s Detainment
¶13 The Stalnakers next argue the trial court erred by allowing the state to admit evidence that N.S. was detained as part of a driving under the influence of an intoxicant (DUI) investigation. They contend this evidence was irrelevant and unfairly prejudicial. We review the court's ruling for an abuse of discretion. Higgins, 217 Ariz. 289, ¶ 35, 173 P.3d at 462.
¶14 "Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action." Ariz. R. Evid. 401. Relevant evidence may be excluded, however, if it is unfairly prejudicial. Ariz. R. Evid. 403. Evidence is unfairly prejudicial if it suggests "'a decision on an improper basis, such as emotion, sympathy, or horror.'" Higgins, 217 Ariz. 289, ¶ 39, 173 P.3d at 463, quoting Shotwell v. Donahoe, 207 Ariz. 287, ¶ 34, 85 P.3d 1045, 1054 (2004).
¶15 The trial court found that the reasons for N.S.'s detention, her behavior at the scene and other issues were "inextricably intertwined" and relevant to the case. And it found that any prejudice the Stalnakers might suffer was "not substantial enough to preclude the evidence."
¶16 Based on the record, the trial court could reasonably find the reasons for N.S.'s detainment were relevant to explaining N.S.'s behavior, as well as Winston's reactions and orders to both N.S. and the Stalnakers, all of which ultimately led to Winston's altercation with Thirza. And the Stalnakers have not explained why telling the jury that N.S. was being detained for a DUI investigation would necessarily imply that Thirza also was under similar investigation, or would somehow lead to a decision on an improper basis. See Higgins, 217 Ariz. 289, ¶ 39, 173 P.3d at 463. The court thus did not abuse its discretion in finding that the reason for N.S.'s detainment was relevant to the factual issues in the case and that the evidence was not unfairly prejudicial. See id. ¶ 35.
¶17 The Stalnakers contend, however, that a jury question demonstrates the evidence did, in fact, unfairly prejudice the jury against Thirza. Following testimony on the second day of trial, the jury asked if the "blood alcohol . . . of Thirza Stalnaker [was taken] at the scene or at jail." The Stalnakers argue that this question indicates "the jury clearly had formed the erroneous and highly prejudicial impression that Thirza Stalnaker had drunkenly pushed Sgt. Winston and resisted arrest."
¶18 In response to the question, the trial court informed the jury that the answer was "no," and that "both counsel ha[ve] said there is no issue about drinking as is there's no allegation that she had been drinking that evening." The Stalnakers have not explained why this answer did not correct any potential prejudice, and we reject their contention that this jury question alone shows the evidence was unfairly prejudicial. Moreover, neither this question nor anything in the record indicates that providing the jury with the reason for N.S.'s detainment led to a decision based on "'emotion, sympathy, or horror.'" Id. ¶ 39, quoting Shotwell, 207 Ariz. 287, ¶ 34, 85 P.3d at 1054. We therefore reject the Stalnakers' argument.
¶19 The Stalnakers additionally contend the trial court erred in allowing the police report of N.S.'s arrest into evidence based on its finding they had waived any objection to such evidence. However, the Stalnakers have failed to include the transcript of their objection and the court's subsequent ruling on the issue. In the absence of the transcript, we presume it supports the court's ruling. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also Ariz. R. Civ. App. P. 11(b)(1). We therefore cannot say the court abused its discretion in allowing N.S.'s police report to be admitted into evidence. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
TPD's Internal Affairs Investigative File
¶20 The Stalnakers lastly argue that the trial court erred in finding they had waived any objection to the state's admission of a summary of TPD's internal investigative file concerning the incident. They contend this finding was directly contradicted by the joint pretrial statement. According to the relevant minute entry, the court admitted the exhibit over Stalnakers' objection, "[f]or the reasons set forth by the Court on the record."
¶21 Our record, however, does not contain the transcript of the Stalnakers' objection to the evidence or the reasons for the trial court's decision. The Stalnakers, as the appellants, were obligated to "mak[e] certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised." Baker, 183 Ariz. at 73, 900 P.2d at 767; see also Ariz. R. Civ. App. P. 11(b)(1). In the absence of the transcript, we presume it supports the court's ruling. See Baker, 183 Ariz. at 73, 900 P.2d at 767. Given that presumption, we cannot say on the record before us that the court abused its discretion in granting the City's motion. See id.
Disposition
¶22 For the foregoing reasons, we affirm the judgment of the trial court.