Opinion
No. 1 CA-CV 15-0161
06-14-2016
KENNETH KESTENBAUM, Plaintiff/Appellant, v. DIEGO FLOREZ and CRISTA HALL, husband and wife; and AZTEC DVM, L.L.C., an Arizona limited liability company dba AZTEC ANIMAL HOSPITAL, Defendants/Appellees.
COUNSEL Knapp & Roberts, P.C., Scottsdale By David L. Abney Counsel for Plaintiff/Appellant Beaugureau, Hancock, Stoll & Schwartz, P.C., Phoenix By David L. Stoll 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2012-097290
The Honorable David M. Talamante, Judge
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Counsel for Plaintiff/Appellant Beaugureau, Hancock, Stoll & Schwartz, P.C., Phoenix
By David L. Stoll
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined. PORTLEY, Judge:
¶1 In this veterinary malpractice case, Kenneth Kestenbaum appeals rulings by the superior court. First, he argues the court erred by entering summary judgment and dismissing his claims for trespass to chattels, common-law fraud, and special-value-to-owner damages. Second, he argues the court erred by granting judgment as a matter of law against him on his claim for punitive damages, and by finding that he failed to establish the element of causation for the professional negligence claims. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Kestenbaum took his dogs, Ozzy and Comet, to Dr. Diego Florez for regular veterinary care between April 2011 and May 2012. He, and the dogs, then temporarily moved to California. He took the dogs to a California veterinarian who referred the dogs to a specialist, who, in turn, diagnosed Comet with a food allergy, and Ozzy with irritable bowel disorder, an autoimmune disorder, and lymphoma, a terminal cancer. Ozzy later passed away, while receiving chemotherapy.
¶3 Kestenbaum sued Dr. Florez, his wife, and business, Aztec Animal Hospital (collectively, "Defendants"), alleging professional negligence, trespass to chattels, and fraud. The superior court granted Defendants' motions for partial summary judgment on the trespass to chattels and fraud claims, and the remaining claims went to trial.
The complaint also alleged an intentional infliction of emotional distress claim and professional negligence claims relating to two other dogs, but those claims were voluntarily dismissed before trial.
¶4 After opening statements and testimony from Kestenbaum's wife, and personal assistant, Defendants moved for judgment as a matter of law under Arizona Rule of Civil Procedure 50 on the punitive damages claim. The superior court invited Kestenbaum to respond, and after he made an offer of proof about evidence supporting the claim, the court granted the motion.
¶5 Then Dr. Byron Emswiller, Kestenbaum's expert on standard of veterinary care, testified that Dr. Florez failed to meet the standard of care by failing to refer the dogs to a specialist for further treatment. He, however, did not testify that the failure caused injury to either dog to a reasonable degree of veterinary certainty. The court, as a result, granted Defendants' motion for judgment as a matter of law. Kestenbaum appeals from the resulting judgment, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(B).
DISCUSSION
I. Summary Judgment
¶6 Kestenbaum argues the superior court erred by granting summary judgment on his claims for trespass to chattels, common-law fraud, and special-value-to-owner damages. We review a grant of summary judgment "on the basis of the record made in the trial court, but determine whether the entry of judgment was proper de novo." Phx. Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App. 1994) (citation omitted). We construe the evidence and all reasonable inferences in favor of the opposing party, but if we find that a reasonable jury could only find for one party, we will uphold the grant of summary judgment. Chavira v. Armor Designs of Del., Inc., 238 Ariz. 48, 49, ¶ 6, 356 P.3d 334, 335 (App. 2015) (citation omitted). And summary judgment should be granted "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a).
A. Trespass to Chattels
¶7 Kestenbaum argues the superior court improperly dismissed his trespass to chattels claims because there were genuine issues of material fact that needed to be resolved by a jury. Specifically, he argues that Dr. Florez "intermeddled" with his dogs (chattels) by "interfer[ing] with Kestenbaum's possession, use, and enjoyment of his dogs" and "providing inaccurate diagnosis, care, and treatment," and contends that whether he consented to Dr. Florez's treatments was an issue of fact for the jury to decide. Dr. Florez, however, argues that Kestenbaum consented to his actions and "consent is a complete defense to trespass."
¶8 Trespass to a chattel occurs when a party intentionally (a) dispossesses another of a chattel, or (b) uses or intermeddles with a chattel in the possession of another. Restatement (Second) of Torts § 217 (1965); Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 330-31, 762 P.2d 609, 617-18 (App. 1988); see also 87 C.J.S. Trespass § 7 (2016). Consent is a defense, so long as it is not obtained by fraud or duress. See Restatement (Second) of Torts §§ 252, 252A (1965). Consent is the "willingness in fact for conduct to occur," and need not be communicated to the actor, but may be shown by action or inaction. Restatement (Second) of Torts § 892(1) (1979).
Dispossess is defined as "[t]o deprive (another) of the possession or occupancy of something, such as real property." The American Heritage Dictionary of the English Language 521 (5th ed. 2011).
Intermeddle is defined as "[t]o interfere in the affairs of others, often officiously; meddle." The American Heritage Dictionary of the English Language 915 (5th ed. 2011).
¶9 Although Kestenbaum contends he did not consent to ineffective treatments, he does not challenge the fact that he voluntarily took his dogs to Dr. Florez. Moreover, in his second amended complaint, Kestenbaum admitted: (1) he continued to take his dogs to Dr. Florez even though the vet "did not have a diagnosis" for the dogs' ailments, and communicated that fact to him; and (2) when Comet began demonstrating signs of ear infections, Kestenbaum "requested that [Dr.] Florez diagnose and treat" the dog, which he did, and continued to administer the prescribed medications even though Kestenbaum knew that Dr. Florez "did not have an explanation for the irritation." Despite his assertions that he did not consent to ineffective treatments, Kestenbaum clearly consented to veterinary treatments by continuing to take the dogs to Dr. Florez. Consequently, on this record, the court did not err by granting partial summary judgment on the trespass to chattels claims.
Kestenbaum failed to assert any facts or present admissible evidence supporting his allegation that Dr. Florez intentionally intermeddled with the dogs. See Restatement (Second) of Torts § 8A (1965) (stating that intent, as used in reference to intentional harms to chattels, means "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.").
B. Fraud
¶10 Kestenbaum argues the court erred by granting summary judgment on his fraud claim because facts existed to support the claim. Or, stated differently, there were genuine issues of fact to preclude summary judgment.
¶11 In their summary judgment motion, Defendants asserted that Kestenbaum failed to prove that any misrepresentations by Dr. Florez — that additional diagnostics or referrals were unnecessary — were the proximate cause of any injuries. They also argued Kestenbaum had not presented any admissible evidence demonstrating that Dr. Florez knew his veterinary treatments were ineffective.
¶12 A plaintiff asserting common-law fraud must establish, by clear and convincing evidence, Klinger v. Hummel, 11 Ariz. App. 356, 358, 464 P.2d 676, 678 (1970), all nine elements, namely:
(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury.Moore v. Meyers, 31 Ariz. 347, 354, 253 P. 626, 628 (1927) (citation omitted); see Gallagher v. Viking Supply Corp., 3 Ariz. App. 55, 59, 411 P.2d 814, 818 (1966) ("A failure to prove any one of the elements is fatal.") (citation omitted). "Each element must be supported by sufficient evidence," and "[f]raud may never be established by doubtful, vague, speculative, or inconclusive evidence." Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, ¶ 18, 985 P.2d 556, 562 (App. 1998) (citations omitted).
¶13 Kestenbaum alleged that Dr. Florez "knew, or should have known" that his diagnosis and treatment for Ozzy was ineffective, and that he "knew" his treatment of Comet was ineffective. Because a fraud claim requires that the speaker have knowledge of the falsity of his representation, Kestenbaum needed to present admissible evidence in response to the summary judgment motion that Dr. Florez knew his prescribed veterinary treatments would be ineffective. Kestenbaum did not present any evidence on the issue, nor did he contest Dr. Florez's affidavit, which stated that he did not know that the treatments he was recommending would be ineffective.
¶14 During the appellate oral argument Kestenbaum asserted that the "ignorance of its truth" element of fraud is the same as the "should have known" standard. We disagree. The fraud ignorance-of-its-truth element can only be inferred when the representation is made recklessly or without reasonable grounds to believe it was true. See Klinger, 11 Ariz. App. at 358, 464 P.2d at 678; 37 C.J.S. Fraud § 36 ("There is no liability, however, if the representation was a mere prediction which proved incorrect . . . .") (citations omitted); 37 C.J.S. Fraud § 41 (liability may be imposed for representations made in culpable ignorance of their truth). The "should have known" standard, by contrast, denotes constructive knowledge, which is knowledge that "one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." See Black's Law Dictionary 950 (9th ed. 2009). In fact, the "should have known" standard is typically linked to evidence of negligence, not an intentional tort. Cf. Dawson v. Withycombe, 216 Ariz. 84, 102, ¶ 49, 163 P.3d 1034, 1052 (App. 2007). Because Kestenbaum did not produce admissible evidence to demonstrate there was a genuine issue of material fact about whether Dr. Florez knew the falsity of his representation or was ignorant of its truth, the court did not err in granting summary judgment on the fraud claim. See Enyart, 195 Ariz. at 77, 985 P.2d at 562 ("In ruling on a motion for summary judgment, the trial judge views the evidence in light of the substantive evidentiary burden.") (citation omitted).
II. Motions For Judgment As A Matter Of Law
¶15 Kestenbaum argues the superior court erred by granting Defendants' motions for judgment as a matter of law on causation and punitive damages. We review the ruling de novo, viewing "the evidence and all reasonable inferences drawn from the evidence in a light most favorable to the non-moving party." See Dawson, 216 Ariz. at 95, ¶ 25, 163 P.3d at 1045 (citation omitted); see also Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 181-82, ¶ 9, 24 P.3d 1274, 1276-77 (App. 2001) ("A party is entitled to judgment as a matter of law only when the facts presented in support of a claim have so little probative value that reasonable people could not find for the claimant.") (internal quotes and citation omitted); Ariz. R. Civ. P. 50(a).
In support of his argument, Kestenbaum asserts that: (1) Defendants were "[j]umping the gun on the motion for judgment as a matter of law;" (2) the trial court "abused [its] discretion by failing to give any time" to his lawyer to review the expert's testimony; (3) "[t]here was no need to rush a ruling;" (4) the ruling was premature because Dr. Florez's examination was not complete; and (5) he did not have an opportunity to test the defense's independent expert's opinions because the defense had not "even started its case in chief." Kestenbaum failed to provide any legal authority for his assertions, and, as a result, they are waived. See ARCAP 13(a)(7) (stating appellant's argument for each issue presented for review must contain "citations of legal authorities"); In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (declining to address a "bald assertion [that] is offered without elaboration or citation to any constitutional provisions or legal authority"); Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 26, 887 P.2d 550, 556 (App. 1994) (declining to consider issues not properly briefed) (citation omitted).
A. Causation
¶16 Causation is generally a question of fact for the jury, Ritchie v. Krasner, 221 Ariz. 288, 297, ¶ 23, 211 P.3d 1272, 1281 (App. 2009) (citation omitted), "unless reasonable persons could not conclude that a plaintiff had proved this element," Barrett v. Harris, 207 Ariz. 374, 378, ¶ 12, 86 P.3d 954, 958 (App. 2004) (citation omitted). A plaintiff must demonstrate "a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred." Id. at ¶ 11 (citations omitted).
(1) Comet
¶17 Before moving to Arizona, Comet, a golden retriever, got ear infections about twice a year, but after moving here, the frequency of ear infections increased. Dr. Emswiller testified that Dr. Florez's treatment of Comet fell below the standard of care because he failed to refer Comet to a specialist and was administering palliative treatments that were not resolving the cause of Comet's symptoms. He did not testify, however, that a referral to a specialist would have resolved the infections.
¶18 Moreover, the evidence demonstrated that Comet's ear infections continued even after the California veterinarian diagnosed and treated the dog's food allergy. Consequently, because there was no evidence demonstrating a nexus between Dr. Florez's failure to refer Comet to a specialist and the dog's ear infections, even after seeing a specialist, the superior court did not err in entering judgment as a matter of law.
(2) Ozzy
¶19 Ozzy was a healthy Rottweiler when first seen by Dr. Florez. After the dog had several incidents of gastrointestinal upset, Dr. Florez ordered various biochemical tests for the dog. The studies revealed a slight increase in amylase, dropping albumin levels, low total protein, and gastrointestinal issues. Sometime after Ozzy was moved to California, and while under the care of an internal medicine veterinary specialist, the dog died. He was about seven-and-a-half years old at the time of his death. There was no investigation into the cause of Ozzy's death.
¶20 Dr. Emswiller testified that Dr. Florez initially treated Ozzy appropriately. He continued, by stating the results of the biochemical tests indicated that "there [was] something evil going on in the body" that needed to be diagnosed, and lymphoma was one of a number of possible results of dropping protein levels. As a result, he testified that Dr. Florez's conduct fell below the standard of care when he failed to do an ultrasound, a biopsy, or refer Ozzy to an internal medicine specialist.
Dr. Emswiller also testified that an ultrasound should have been done two or three months before Ozzy moved to California.
¶21 However, on cross-examination, Dr. Emswiller could not testify that the onset of lymphoma would have been avoided if Dr. Florez had referred a dog to a specialist. He testified, "we don't know whether that would have stopped it or what," and that Ozzy "probably would have had . . . a later starting point for the chemotherapy," but admitted that chemotherapy may have killed Ozzy, and an earlier diagnosis could have thus resulted in an earlier death.
¶22 When asked if an earlier diagnosis would have prolonged Ozzy's life, Dr. Emswiller testified, "[h]opefully it would have prolonged his life. I can't say for sure by any means, but his quality of life would have improved." The following exchange then occurred:
Let me just ask you a very important question. You can't state within a reasonable degree of medical certainty that Ozzy would have lived had Dr. Florez complied with the standard of care, can you?
A. We can only hope and assume that he would have had a longer life had he been diagnosed timely and treated timely.On re-direct examination, Dr. Emswiller was directed to his deposition testimony, and asked:
Q. Now, there was some reference to your deposition testimony, Dr. Emswiller, and there was some questions from counsel with respect to whether the diagnosis and treatment of lymphoma would have prolonged Ozzy's life?When directed to his deposition, Dr. Emswiller was unwilling to testify that an earlier diagnosis would have extended Ozzy's life by even a year. He stated that "the amount of time you're going to get is - - is debatable," and "[w]e all know that once you have lymphoma you're going to die, but are you going to die in three months because it was discovered late, or are you going to live nine, ten, twelve months when it's discovered very early." After re-cross examination and further re-direct examination the court asked:
A. Correct.
Q. And do you recall what your response was to a question during your deposition regarding how long Ozzy may have lived had he been properly diagnosed?
A. We always hope that if you get a timely, proper diagnosis, that the patient will live much longer and do much less suffering.
THE COURT: Can you tell us to a reasonable degree of veterinary science, do you have an opinion about if Dr. Florez had done everything that you think he should have done Ozzy would have lived? Probably? Possibly? Give me the highest standard you can tell us.(Emphasis added).
THE WITNESS: If he would have possibly been diagnosed early and only had IBD, then he may never have gone to lymphoma.
THE COURT: Can you say what probably would have happened at all?
THE WITNESS: Probably, if it didn't go to lymphoma, he would have been treated for IBD the rest of his life.
THE COURT: Let me rephrase that. Can you -- can you say what probably would have happened if Dr. Florez did everything you think he should have?
THE WITNESS: The animal would have hopefully lived longer and not gotten the lymphoma.
THE COURT: Okay. When you say - I'm sorry to be picky with you, but when you say the animal would have hopefully not gotten lymphoma and lived longer, can you say that he probably wouldn't have gotten lymphoma, and he probably would have lived longer?
THE WITNESS: No, I can't say that.
Kestenbaum contends his expert's trial testimony was a "shocking change," an "unexpected shift," and a "serious and unexpected misstatement by a forgetful expert." However, Dr. Emswiller's deposition testimony was similar to his trial testimony. When asked at the deposition that "[y]ou can't say within a reasonable degree of medical certainty that Ozzy would have lived had Dr. Florez complied with the standard of care," Dr. Emswiller responded, "Correct."
In his preliminary opinion letter Dr. Emswiller asserted that "[h]ad [a diagnosis of lymphoma] been made earlier, it is more likely than unlikely that treatment would have prolonged Ozzy's life." The letter was not admitted at trial, and there was no trial testimony about Ozzy's cause of death. Moreover, Dr. Emswiller testified that it was undetermined whether the onset of lymphoma occurred in Arizona or California. The only trial evidence was that Ozzy was diagnosed with lymphoma two and a half months after he left Dr. Florez's care, and Dr. Emswiller agreed that Ozzy's form of lymphoma could kill a dog within a matter of weeks.
¶23 Kestenbaum then asked his expert:
Q. And you've also given us some testimony in response to some of the judge's questions about the likelihood that an earlier treatment may or may not have prolonged Ozzy's life?(Emphasis added). The expert was then asked, "Other than to state, Dr. Emswiller, that perhaps it could have prolonged Ozzy's life, is there a different way to -- have you phrased that opinion differently using different words?" Dr. Emswiller responded "No, I haven't." After Dr. Emswiller finished testifying, Defendants successfully moved for judgment as a matter of law on the professional negligence claims.
A. Correct.
Q. Okay. And you indicated that you were not sure?
A. I'm not sure.
Q. Okay. Now, having refreshed your recollection with your earlier statement, do you have -- would you like to clarify your opinion with respect to the question that the judge posed in terms of whether or not it would have prolonged Ozzy's life?
* * * *
THE WITNESS: I have a feeling that had the diagnosis been made in a timely manner, had Ozzy been treated successfully for the IBD, perhaps the lymphoma would not have shown up, but that's the best I can ask for.
¶24 As the plaintiff, Kestenbaum had the burden of proving "the existence of a duty, breach of duty, that the defendant's negligence was the actual and proximate cause of injury, and the nature and extent of damages." Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12, 83 P.3d 26, 29 (2004) (internal quotes and citation omitted). There was no testimony by Dr. Emswiller that Dr. Florez's treatment of Comet and Ozzy, or his failure to refer either dog to a specialist, caused any injury to the dogs to a reasonable degree of medical (veterinary) certainty. Consequently, the court did not err by granting the motion for judgment as a matter of law. Cf. Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16, 231 P.3d 946, 951 (App. 2010) ("[U]nless a causal relationship is readily apparent to the trier of fact, expert medical testimony normally is required to establish proximate cause in a medical negligence case.") (internal quotes and citation omitted).
Kestenbaum argues that the court violated the "law-of-the-case" doctrine by granting the motion before he had rested. Although the court denied Defendants' motion for summary judgment on causation before trial, the ruling did not decide any issues on the merits, and, consequently, the "law of the case" doctrine does not apply. See Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 279, 860 P.2d 1328, 1332 (App. 1993) (stating "we will not apply law of the case if the prior decision did not actually decide the issue in question, . . . or if the prior decision does not address the merits.") (citation omitted). Moreover, once the court heard the testimony of the standard-of-care expert, and knowing from the joint pre-trial statement, that Kestenbaum had no other expert testimony on the issue, the court did not abuse its discretion in ruling on the judgment-as-a-matter-of-law motion at that time.
¶25 Because we affirm the court's ruling on the judgment as a matter of law, we need not address the court's ruling on the punitive damages claim. Similarly, we need not address whether the special-value-to-owner damages under Jones v. Stanley, 27 Ariz. 381, 385, 233 P. 598, 599 (1925) was resolved by summary judgment, or continued to exist until the entry of the judgment as a matter of law.
In resolving Defendants' motion for partial summary judgment, seeking to exclude damages for emotional distress and related damages, the superior court ruled that Kestenbaum was not entitled to recover damages for "emotional distress, pain, suffering, loss of enjoyment, or the dogs' sentimental value in connection with the professional negligence claim." See Kaufman v. Langhofer, 223 Ariz. 249, 250, ¶ 1, 222 P.3d 272, 273 (App. 2009). The court did not resolve whether Kestenbaum was limited to seeking the fair market value of his pet. --------
CONCLUSION
¶26 For the foregoing reasons, we affirm the trial court's rulings and judgment. As the prevailing parties, Defendants are entitled to their costs on appeal, upon compliance with Arizona Rule of Civil Appellate Procedure 21.