Opinion
No. 1 CA-CV 12-0803
01-07-2014
ALBERT M. COURY, III, a single man, Plaintiff/Appellee, v. JOSEPH J. KOLNICK and LAURA ANNE KOLNICK, husband and wife, Defendants/Appellants.
Law Office of Robert B. Stanewich, Phoenix By Peter A. Boyle Counsel for Defendants/Appellants Rowley Chapman & Barney, Ltd., Mesa By Kevin J. Chapman Counsel for Plaintiff/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2010-091171
The Honorable Emmet J. Ronan, Judge
The Honorable Linda A. Akers, Judge
AFFIRMED
COUNSEL
Law Office of Robert B. Stanewich, Phoenix
By Peter A. Boyle
Counsel for Defendants/Appellants
Rowley Chapman & Barney, Ltd., Mesa
By Kevin J. Chapman
Counsel for Plaintiff/Appellee
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined. GOULD, Judge:
¶1 Joseph J. and Laura Anne Kolnick appeal the trial court's order granting a new trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 This case arises from an accident between Kolnick's vehicle and Coury's motorcycle. As Kolnick made a left-turn at an intersection, he failed to observe Coury's motorcycle entering the intersection. As a result, Coury struck Kolnick's vehicle, causing Coury to sustain damages to his motorcycle, as well as several alleged personal injuries.
¶3 Coury filed suit against Kolnick, claiming permanent physical disabilities and disfigurement, and seeking compensation for past and future medical expenses and past and future loss of income, as well as general damages including pain and suffering.
¶4 Coury moved for partial summary judgment, asserting that Kolnick was 100% liable as a matter of law. Coury argued that Kolnick admitted he turned left in front of Coury and did not see Coury's motorcycle before initiating his turn. Coury also contended there was no evidence showing that he was traveling in an unsafe or unlawful manner. Coury asserted that a driver making a left turn was permitted to turn only when safe to do so, and that Kolnick's conduct was negligent per se pursuant to Arizona Revised Statutes ("A.R.S.") section 28-772 (stating that a driver intending to turn left at an intersection "shall yield the right-of-way" to oncoming traffic, regardless of whether the left-turning driver diligently looks for such traffic).
¶5 Kolnick denied liability, suggesting that Coury was negligent. Kolnick argued that he was keeping a proper lookout when he entered the intersection, and that he did not see Coury. He also argued that Coury's view of the intersection may have been obstructed by another vehicle as Coury approached the intersection.
¶6 The court granted Coury's motion, finding that Kolnick had a duty to yield to oncoming traffic under A.R.S. § 28-772.
¶7 Prior to trial, Coury filed a motion in limine seeking to preclude Kolnick from (1) denying his negligence at trial, and (2) arguing any comparative negligence by Coury. In response, Kolnick contended that the partial summary judgment did not preclude him from asserting comparative negligence. After the matter was reassigned to a new judge, the court granted the motion in limine, basing its decision on the prior ruling that had found Kolnick 100% liable. The court barred Kolnick from denying his negligence or alleging comparative negligence on the part of Coury, and determined that the only issues for the jury were causation and damages.
¶8 The court conducted a four-day jury trial. In opening statements, Coury's counsel asserted that he suffered injuries all along his right side, but the "battleground" was a permanent injury causing numbness in his upper right thigh. In response, Kolnick's counsel told the jury that Coury had a history of prior accidents, but agreed that the main issue was whether the accident caused the numbness and tingling in Coury's right thigh. Kolnick's counsel also told the jury that he would ask for minimal damages, asserting that the evidence would show that Coury suffered only minor injuries.
¶9 Coury testified that after the collision, his right side contacted Kolnick's vehicle. Coury further testified that he was limping at the scene, his right side was stiff, and after the accident he sustained bruising on his right calf, hip, thigh, and ankle. In support of his testimony, Coury presented photographs showing damage to his motorcycle and dents and scrapes to the right rear of Kolnick's vehicle. Coury also acknowledged, however, having had prior accidents and prior injuries, including injuries to his neck, back, right ankle and wrist, ribs, and right knee.
¶10 Consistent with Coury's testimony, Kolnick testified that at the accident scene, he saw Coury limping and observed that Coury's right arm and leg were hurting him. Kolnick testified that "it was a good impact" and "I'm sure it hurt."
¶11 Peter Tessier, an eyewitness who saw the accident, testified that Coury was "sandwiched" between the motorcycle and the vehicle when the motorcycle "glanced" off the back of Kolnick's vehicle. He described Coury as shaken up and stated that Coury was favoring his whole right side and that he definitely had a leg injury. Tessier testified Coury's hand and shoulder took the impact of the collision.
¶12 Coury did not seek medical attention until two days after the accident, when he saw Dr. Jerry Gerrard, a chiropractor. Gerrard treated him until December 2008, and resolved all of Coury's complaints except the numbness, tingling and weakness in his right thigh/leg. Coury testified, however, that he continued to have tingling and numbness in his right thigh, as well as muscle weakness in his right leg.
¶13 Dr. Gerrard testified that he had treated Coury for various complaints since 2000 and that Coury had preexisting compression fractures of the spine. He stated that Coury had not complained of numbness in his leg in any prior visit and that approximately eighty percent of the symptoms he presented with after the accident were new, including a permanent injury to the neck.
¶14 Coury hired Dr. Gregg Friedman, a chiropractor, to perform an independent medical examination. Friedman testified that Coury had a prior L2 compression fracture that could cause numbness in his thigh, but noted that the records did not indicate that Coury had numbness before the accident. He testified that the cause of Coury's numbness could be from trauma, disc injury, or inflammation, but Friedman opined the damage most likely occurred in the accident. Friedman stated that the numbness was a permanent condition, and that as a result of this condition Coury had suffered a twelve percent impairment. He acknowledged that there were few truly objective findings to support his opinion, and that he relied on Coury's credibility in determining that the numbness was caused by the accident.
¶15 Dr. Harry Tamm, a neurologist, conducted an independent medical examination on Coury for the defense. Tamm agreed that Coury suffered neck and mid-back strain from the accident and agreed that the accident caused Coury's thigh problems. He stated, however, that all his findings were subjective, that one could not accurately measure the physiology of the nerve, and that he had to rely on the accuracy of Coury's information in reaching this conclusion.
¶16 In closing arguments, Kolnick's counsel argued that the case was about whether Coury's right thigh numbness was caused by the accident, and acknowledged that Coury had banged his leg. Counsel asserted that ultimately, the case rested on Coury's credibility. Counsel noted that the objective evidence of the MRI and an x-ray showed no problem at the nerve root, and that the other evidence presented in support of Coury's claim was based on Coury's subjective complaints. Kolnick's counsel also suggested that there was evidence showing that Coury's thigh numbness could have been caused by his weight, which was 272 pounds at the time of the accident.
¶17 The jury found unanimously in favor of Kolnick. Coury filed a motion for new trial, arguing that the verdict was not supported by the evidence. Kolnick responded that Coury's complaints were all subjective and that the jury, which could view Coury over four days of trial and watch his movement, was permitted to assess his credibility and to reject his testimony. Kolnick noted that Coury presented no objective evidence that he was injured at the scene, and that although he was limping after the accident, based on his failure to seek immediate medical attention, the jury could have reasonably inferred he was not injured.
¶18 The court granted Coury's motion on the grounds the verdict was contrary to the evidence. The court noted that in his opening statement Kolnick's counsel indicated that the issue for trial was whether Coury sustained a permanent injury as a result of the accident, had acknowledged that Coury suffered some injuries from the accident, and had asked the jury to award "minimal damages." The court also noted that Coury described injuries to the investigating officer at the scene and that both Tessier and Kolnick testified that Coury appeared injured on his right side, with Kolnick stating the collision was a "good impact." The court concluded,
There was no evidence . . . from which the jury could conclude, or even draw a reasonable inference, that Plaintiff [Coury] was not injured in this accident. Defendant's expert medical witness testified that he suffered injuries. Defense counsel told the jury Plaintiff [Coury] suffered some injuries in the accident and they should award him damages for those injuries. The jury's verdict finding totally in favor of the Defendant is not justified by the evidence.Kolnick appeals from the order granting a new trial. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(a) (Supp. 2012).
DISCUSSION
¶19 We review a decision on a motion for new trial for an abuse of discretion and apply a more liberal standard where the court grants a new trial rather than denies one. McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 266, ¶ 16, 265 P.3d 1061, 1065 (App. 2011). The granting of a new trial on the grounds the verdict is against the weight of the evidence is, of all the grounds for a new trial, the "least susceptible to appellate scrutiny." City of Glendale v. Bradshaw, 114 Ariz. 236, 238, 560 P.2d 420, 422 (1977). A trial court judge sits as a ninth juror in a civil case and has broad discretion to grant a new trial where it finds the verdict inconsistent with the evidence. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 15, 272 P.3d 645, 649 (2012). When considering a motion for new trial on the ground that the verdict is not supported by the evidence, the trial court weighs the evidence and assesses the credibility of the witnesses. McBride, 228 Ariz. at 266, ¶ 18, 265 P.3d at 1065. Because the trial court has that opportunity, it has a perspective that a reviewing court lacks when merely reading the record. Bradshaw, 114 Ariz. at 238, 560 P.2d at 422.
¶20 In reviewing an order granting a new trial, we view the evidence in the light most favorable to upholding the court's order. McBride, 228 Ariz. at 265, ¶ 17, 265 P.3d at 1064. We will disturb a trial court's decision granting a motion for new trial only if "the probative force of the evidence clearly demonstrates that the decision . . . is a manifest abuse of discretion." Bradshaw, 114 Ariz. at 238, 560 P.2d at 422. Such an abuse would occur if all the trial evidence supported one party's position, the jury verdict followed that evidence, and the court granted a new trial. Id. The granting of a new trial would not be an abuse of discretion even if we concluded the evidence is equally balanced for plaintiff and defendant. Joy v. Raley, 24 Ariz. App. 584, 585, 540 P.2d 710, 711 (1975).
¶21 Kolnick argues, however, that we should apply a de novo standard of review. Kolnick bases this argument on the fact that when the trial court made its ruling, it considered statements made by Kolnick's counsel in opening statements acknowledging that Coury had suffered some injuries, and suggesting that the only point of dispute was whether he suffered a permanent injury. Kolnick contends that by considering those statements, the court misapplied the Arizona Rules of Evidence.
¶22 A trial court's interpretation and application of a court rule presents a legal question, which we review de novo. Maher v. Urman, 211 Ariz. 543, 546, ¶ 6, 124 P.3d 770, 773 (App. 2005). However, applying de novo review to the discrete issue of the court's application of a rule does not require this court to abandon the appropriate "abuse of discretion" standard as to the court's ultimate decision to grant a new trial. In addition, Kolnick has not identified the evidentiary rule the court allegedly violated, nor has he offered any substantive argument beyond asserting the error. He has therefore abandoned the argument. See Modular Systems Inc. v. Naisbitt, 114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (arguing only that a court erred is the same as not arguing the issue and the issue is deemed abandoned). Moreover, a jury may properly consider admissions made in counsel's opening statement. See Moore v. Blackstone, 20 Ariz. 328, 330-331, 180 P. 526, 527 (1919) ("Unquestionably the jury had the right to take this statement [made in opening statement] into consideration. Such admission of counsel obviated the necessity of fuller proof").
¶23 Kolnick argues that the court's other grounds for granting the new trial - namely, the police officer's recounting of Coury's injuries and Tessier's and Kolnick's own observations that Coury was hurt - were discredited or subjective, because they relied on statements or actions of Coury. He argues that Tamm's testimony regarding Coury's injuries was qualified by his testimony that in reaching this opinion, he relied on the accuracy of the information provided by Coury. Kolnick asserts that Coury was impeached by his failure to remember and disclose prior accidents and injuries. He further contends that Kolnick's testimony he was sure the impact "hurt" Coury was speculation, and that Tessier's testimony about the accident was not credible because it was inconsistent. As a result, Kolnick argues that the jury was free to disregard all of this evidence.
¶24 The issue before us, however, is not whether the jury could have disregarded certain evidence to reach its verdict or whether sufficient evidence supports the verdict. The issue before us is whether, when viewing the evidence in the light most favorable to upholding the trial court's decision, the evidence supporting the jury's verdict was so probative that the verdict was clearly correct and the trial court's ruling granting a new trial clearly an abuse of discretion. Raley, 24 Ariz. App. at 584, 540 P.2d at 711; Bradshaw, 114 Ariz. at 238, 560 P.2d at 422.
¶25 The evidence presented at trial was conflicting. Kolnick does not contend that Coury lacked evidence to support his position, or that Kolnick's own evidence was so powerful as to mandate a finding that the jury's verdict was correct. In asserting and emphasizing that he had successfully challenged Coury's credibility, Kolnick underscores that the evidence could have supported either party and that how it was viewed depended on how the jury assessed the credibility of the witnesses. Under these circumstances, because the trial court observed the witnesses and heard their testimony first-hand, the trial court and not this court is in the best position to determine if the verdict is not justified by the evidence. We are therefore unable to conclude the court abused its discretion.
¶26 Kolnick further argues that any new trial should be limited to damages other than those related to Coury's claimed permanent thigh injury. Kolnick contends that the trial court's ruling requires only that some damages be awarded; the ruling does not, however, support the jury's verdict as to Coury's permanent thigh injury claim. Coury cites Rule 1, Arizona Rules of Civil Procedure, which provides that the civil procedure rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." Kolnick argues that Rule 1 qualifies the court's decision under Rule 59(a)(8). Kolnick does not explain how Rule 1 applies, but appears to be suggesting that the court's ruling should be construed to preclude Coury's thigh injury claim so as to minimize unnecessary expenses when the case is retried. Rule 1, however, cannot in itself alter the court's ruling.
¶27 The court's ruling does not address Coury's thigh injury claim. Kolnick contends that the absence of any mention of that claim in the order granting a new trial means that the claim should not be retried. However, given that the thigh injury claim was the major claim at issue and was the subject of most of the testimony, we find it more likely that, had the court intended to exclude that claim from its new trial order, it would have expressly done so. As already noted, the evidence was conflicting and rested largely on witness credibility. Absent an indication from the trial court, we can find no basis for excluding the major claim of the trial from the trial court's ruling.
We note that in responding to Coury's motion for new trial, Kolnick did not raise the issue of excluding Coury's permanent thigh injury claim should a new trial be granted. Kolnick has, therefore, waived this argument. CDT Inc. v. Addison, Roberts & Ludwig, CPA, P.C., 198 Ariz. 173, 178, ¶ 19, 7 P.3d 979, 984 (App. 2000) (this court considers only those arguments, theories, and facts properly presented in the trial court).
¶28 Kolnick also asks this court to review the trial court's partial summary judgment decision finding Kolnick 100% liable, which precluded Kolnick from arguing comparative fault. We conclude we lack jurisdiction to consider this argument.
¶29 A notice of appeal must identify the judgment or part of the judgment from which the appellant is appealing. ARCAP 8(c). We do not have jurisdiction to consider matters not contained in the notice. Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982). Kolnick's notice of appeal stated that he was appealing from the order granting Coury's motion for new trial. The motion for new trial did not involve issues pertaining to the partial summary judgment ruling. Consequently, Kolnick has not appealed from that ruling.
¶30 Moreover, we have jurisdiction only when conferred by statute, and absent a statute conferring jurisdiction, we cannot consider the merits of an action. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). Here, the statutory basis for jurisdiction of the appeal offered by Kolnick is A.R.S. § 12-2101(B), which has been renumbered as A.R.S. § 12-2101(A)(1) (Supp. 2012). This statute authorizes an appeal from a "final judgment." A.R.S. § 12-2101(A)(1). If the order granting a motion for new trial were a final judgment, then we might have jurisdiction over the partial summary judgment order under A.R.S. § 12-2102, which authorizes an appellate court to review intermediate orders involving the merits of the action upon an appeal from a final judgment. A.R.S. § 12-2102(A) (2003).
¶31 However, the order granting a motion for new trial is not a final judgment. In granting the motion for new trial, the court essentially vacated the underlying judgment, leaving the dispute unresolved and the rights of the parties undetermined. See Pope v. Olsen & Graf, 14 Ariz. 528, 529, 132 P. 434, 434 (1913). Thus, Kolnick's appeal was properly taken from the order granting a motion for new trial, not because it was a final judgment, but because the appeal was specifically authorized by A.R.S. § 12-2101(A)(5)(a).
¶32 As a result, we conclude there is no applicable statutory basis for jurisdiction under the circumstances presented here; we therefore may not consider the merits of Kolnick's argument regarding the partial summary judgment ruling.
CONCLUSION
¶33 The trial court's decision is affirmed.