Opinion
No. 1 CA-CV 13-0378
03-25-2014
RASOOL KASHKOOL, Plaintiff/Appellant, v. FABIOLA JEAN-GILLES, Defendant/Appellee.
Rasool Kashkool Plaintiff/Appellant Law Office of Robert B. Stanewich, Phoenix By Robert B. Stanewich Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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. CV2011-005346
The Honorable Katherine M. Cooper, Judge
REVERSED AND REMANDED
COUNSEL
Rasool Kashkool
Plaintiff/Appellant
Law Office of Robert B. Stanewich, Phoenix
By Robert B. Stanewich
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined. NORRIS, Judge:
¶1 Rasool Kashkool appeals from the superior court's order denying his motion to continue trial and granting Fabiola Jean-Gilles's pretrial motion for judgment as a matter of law under Rule 50 of the Arizona Rules of Civil Procedure. Although the superior court did not abuse its discretion in denying Kashkool's motion to continue, it should not have granted Jean-Gilles's Rule 50 motion before giving Kashkool an opportunity to present his case to the jury. Accordingly, we reverse the superior court's grant of judgment as a matter of law and remand for further proceedings consistent with this decision.
¶2 Kashkool and Jean-Gilles were involved in a motor vehicle accident. Kashkool subsequently sued Jean-Gilles and sought recovery for his alleged personal injuries, damage to his car, and damages for his inability to use his car. In compulsory arbitration, see Ariz. R. Civ. P. 72-77, the arbitrator found Jean-Gilles "not liable for the accident" and entered the award in her favor. On December 14, 2011, Kashkool appealed the arbitrator's award.
¶3 Also on December 14, 2011, Kashkool, through counsel, disclosed his list of trial witnesses and exhibits. On November 27, 2012, the superior court granted Kashkool's counsel's motion to withdraw. On January 31, 2013, the superior court scheduled the matter for trial to begin on May 8, 2013.
A. Motion to Continue
¶4 On April 29, 2013, nine days before trial, Kashkool moved to continue, explaining he had not hired an attorney or secured witnesses for trial. The superior court considered and denied the motion on May 8, 2013, at the beginning of the time set for trial. On appeal, Kashkool essentially argues the superior court abused its discretion in denying his motion to continue trial. We disagree.
¶5 First, after counsel withdrew, Kashkool had over five months to hire new counsel. Second, at the final trial management conference on April 19, 2013, Kashkool represented to the court that he had hired an attorney and would be prepared for trial. Third, although Kashkool argues on appeal he was entitled to a continuance because he had been unable to secure witnesses, the court explicitly advised him at the final trial management conference that it was his responsibility to secure his witnesses for trial. Based on these circumstances, the superior court did not abuse its discretion in denying the continuance. See Aries v. Palmer Johnson, Inc., 153 Ariz. 250, 256, 735 P.2d 1373, 1379 (App. 1987) ("[A] motion for continuance is addressed to the sound discretion of the trial court and its ruling will not be disturbed unless that discretion has been abused." (citing Yates v. Superior Court, 120 Ariz. 436, 586 P.2d 997 (App. 1978))).
B. Rule 50 Judgment as a Matter of Law
¶6 After the court denied Kashkool's motion to continue, Jean-Gilles, through defense counsel, moved for judgment as a matter of law under Rule 50. The court granted the motion, explaining:
To sustain his burden of proof on causation, Plaintiff must present the testimony and/or opinion of a qualified medical provider that, to a reasonable degree of medical probability, Plaintiff's alleged injuries were caused by the accident involving the defendant. Plaintiff cannot and will [sic] have this evidence to present, since his medical providers were not subpoenaed nor informally scheduled to testify. Further, their anticipated testimony cannot be presented through deposition testimony because they were not deposed.
¶7 Kashkool argues on appeal that, in granting the Rule 50 motion, the superior court deprived him of an opportunity to present his case to the jury. We agree.
¶8 Relief under Rule 50 presumes a jury trial has begun and the nonmoving party "has been fully heard" on the issue prior to the court's ruling. Ariz. R. Civ. P. 50(a)(1) (court may enter judgment as a matter of law "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue"); see also 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2533 (3d ed. Supp. 2013) ("Rule 50(a)(1) requires that nonmovants be 'fully heard' before a court can issue a judgment as a matter of law against them." (citing, inter alia, cases in which Rule 50 motion was unavailable prior to trial)).
¶9 Additionally, although Kashkool may not have been able, for lack of requisite medical evidence, to demonstrate the accident caused his medical injuries, he could have testified about the accident, its cause, the damages to his car, and damages sustained from his inability to use his car. See Butler v. Wong, 117 Ariz. 395, 396, 573 P.2d 86, 87 (App. 1977) (recognizing that plaintiff must prove defendant's negligence caused his injuries and that "[m]edical testimony, although inconclusive, may be of value when considered with the other evidence" in proving causation). Accordingly, instead of granting Jean-Gilles's Rule 50 motion, the court should have allowed Kashkool to present his case to the jury and then, if appropriate, made evidentiary rulings or entertained a Rule 50 motion once Kashkool had been "fully heard."
¶10 For the foregoing reasons, we reverse the judgment in favor of Jean-Gilles and remand for further proceedings consistent with this decision.