Opinion
No. 1 CA-CV 15-0008
03-31-2016
DAVID BETTS, a single man, Plaintiff/Appellant, v. DANA A. BODNAR and KATHLEEN L. BODNAR, husband and wife; ANDREW J. BODNAR, a single man, Defendants/Appellees.
COUNSEL Jennings, Strouss & Salmon, P.L.C., Phoenix By David Brnilovich, Ryan Womack Counsel for Plaintiff/Appellant Wees Law Firm, L.L.C., Phoenix By James F. Wees Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-055546
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL Jennings, Strouss & Salmon, P.L.C., Phoenix
By David Brnilovich, Ryan Womack
Counsel for Plaintiff/Appellant Wees Law Firm, L.L.C., Phoenix
By James F. Wees
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined. SWANN, Judge:
¶1 This is an appeal from the denial of a motion for new trial under Ariz. R. Civ. P. 59(c)(5) and (i). Based on the unchallenged verdicts, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Dana and Kathleen Bodnar own a boat service and repair business, where they employ their son, Andrew Bodnar. The company also employed David Betts until July 2010.
¶3 In September 2010, a discussion among Betts, Dana, and Andrew in Betts's driveway led to a physical altercation. According to Betts, Dana and Andrew each punched him in the face, then chased him into the garage, threw him to the ground, and kicked his knees and back. According to Dana and Andrew, Betts kicked Dana who responded by punching Betts in the face, Andrew then pushed Betts and Dana apart, and Betts retreated into the house through the garage.
¶4 The parties filed claims against each other for assault and battery. At trial, Betts claimed that in addition to the superficial injuries he suffered from the punches to his face, Dana and Andrew caused a degenerative disc injury in his back when they threw him to the garage floor. He testified that the injury produced constant pain that medical treatment could not alleviate, and that he was therefore unable to work. Betts offered evidence of medical costs for his back injury, the anticipated cost of future treatment, and his lost wages. Dana and Andrew denied any liability for Betts's back injury.
Betts also filed claims against the Bodnars' business entities for negligence and negligent retention, and the entities filed counterclaims. But those claims and counterclaims were dismissed with prejudice before trial and are not at issue in this appeal. --------
¶5 The jury left all verdict forms blank except for those concerning punitive damages -- it made no express determination on liability and awarded no compensatory damages, but assessed $2,500 in punitive damages against Dana and $2,500 in punitive damages against Andrew. No party objected to the verdict or the manner in which the forms had been completed, and the court excused the jury.
¶6 Betts later asked the court to order an additur of more than $319,000 for his past and future medical expenses. He requested, in the alternative, that the court order a new trial on damages because the damages were insufficient and not justified by the evidence. The court added $1 to the verdict as compensatory damages, and denied Betts's motion for a new trial on damages.
¶7 Betts timely appeals.
DISCUSSION
¶8 As an initial matter, we note that neither Dana nor Andrew argued at trial that the jury's verdicts were defective or nonresponsive; nor did they appeal or cross-appeal. Though the verdicts were unclear at best, and defective at worst, we cannot grant relief to a party who has not appealed. Accordingly, for purposes of this decision only, we must assume that Betts was eligible for punitive damages of this magnitude even in the absence of a compensatory-damages verdict, and that the court could provide retroactive support for the punitive awards by ordering nominal compensatory damages. See Trustmark Ins. Co. v. Bank One, Arizona, 202 Ariz. 535, 543, ¶ 39 (App. 2002) (holding that a party who does not challenge a defective verdict under Ariz. R. Civ. P. 49(c) when it is rendered waives any objection to the defect); ARCAP 13(b)(2) ("An appellate court . . . may modify a judgment to enlarge the rights of the appellee or reduce the rights of the appellant only if the appellee has filed a notice of cross-appeal."). We decide only the issues raised by Betts: whether the court erred by denying his motion for new trial and limiting his compensatory damages to a nominal amount.
¶9 Betts contends that the punitive-damages awards reflected the jury's determination that the defendants were responsible for his medical expenses related to his back injury. But the jury could have found liability on the claims without finding that the defendants caused Betts's back injury -- the jury could have chosen to believe the testimony that Betts was punched in the face but not thrown to the ground and kicked. Or, even if the jury believed Betts's version of events, it could have disbelieved his claims regarding the severity of his injury and his inability to work. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 12 (2012) ("[A] jury may appropriately discredit a witness's uncontradicted testimony for various reasons, including the witness's personal interest in the case."). Proof of damages is not an element of either assault or battery. Johnson v. Pankratz, 196 Ariz. 621, 623, ¶ 6 (App. 2000).
¶10 Nominal compensatory damages were consistent with the jury's decision to limit Betts's recovery to modest punitive awards. The court did not abuse its discretion by limiting Betts's recovery and denying his motion for a new trial under Ariz. R. Civ. P. 59(a)(5) and (i).
CONCLUSION
¶11 We affirm the verdicts and the denial of Betts's motion for new trial.