Sutton v. Martin

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SUTTON PLACE IMPROVEMENT ASSOCIATION, an Arizona nonprofit corporation, Plaintiff/Counterdefendant/ Appellant, v. WILLIAM L. MARTIN and AMY M. AMARO-MARTIN, Defendants/Counterclaimants/ Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CV 09-0788 DIVISION ONE FILED: 10/28/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2007-008302 The Honorable A. Craig Blakey, II, Judge AFFIRMED Gutilla Murphy Anderson, P.C. By Alisan M.B. Patten Patrick M. Murphy Steven R. Napoles Attorneys for Plaintiff/Counterdefendant/Appellant Phoenix Law Office of Christopher J. Curran, P.C. By Christopher J. Curran Attorney for Defendants/Counterclaimants/Appellees Chandler B A R K E R, Judge ¶1 Sutton Place Improvement Association ( Sutton Place ), a homeowners association, filed a claim in the superior court against William Martin ( Mr. Martin ) and his wife Amy AmaroMartin ( Mrs. Martin ) (collectively, the Martins ) seeking permanent injunctive relief from the Martins alleged violations of their residential counterclaimed alleging deed that restrictions. Sutton The Place had Martins violated the Arizona Civil Rights Act (Arizona Revised Statutes ( A.R.S. ) section 41-1491), the Federal Fair Housing Act (42 U.S.C. § 3604), and the parties implied covenant of good faith and faith dealing. ¶2 The jury ultimately awarded the Martins $200,000 in compensatory damages on their counterclaims. Thereafter, Sutton Place filed a Motion for Remittitur requesting a reduction in the jury verdict. The trial court denied both Sutton Place s Motion for Remittitur as well as Sutton Place s original Request for Permanent Injunctive Relief. of these rulings. Sutton Place now appeals both In addition, Sutton Place appeals various evidentiary rulings made by the trial court during the course of litigation. For the reasons set forth below, we affirm the trial court s rulings. Facts and Procedural Background ¶3 Sutton The Martins Place housing own a residential community. 2 The property property is within subject the to various deed restrictions through its Board restriction exterior submitted of states of real to and that are Directors that all property approved enforced ( Board ). plans for within by by the Sutton Sutton One such improvement deed the be prior Board to must subdivision Place s Place to making such improvements ( Deed Restriction ). ¶4 In December 2003, pursuant to the Deed Restriction, the Martins began discussing with the Board extensive changes they wished to make to the exterior of their house. In May 2005, the Board approved the Martins proposed renovation plans. After obtaining final approval from the city of Phoenix in January 2006, the Martins began demolition in February 2006. ¶5 In April 2006, Sutton Place sent the Martins the first of a series of informal complaints claiming that the Martins were not proceeding in accordance approved by the Board. with the plans previously In April 2007, Sutton Place filed a lawsuit against the Martins requesting that the court enjoin the Martins from making unapproved modifications to their house. ¶6 The selectively Martins enforced upon their race. is Hispanic. counterclaimed the Deed that Restriction Sutton against Place them had based Mr. Martin is African American and Mrs. Martin The Martins maintained that because of their race Sutton Place had treated their project with more scrutiny and rigor than other projects in the community. 3 For example, the Martins claimed they were the only community to be sued by Sutton Place. property owners in the The Martins alleged that this difference in treatment violated the Arizona Civil Rights Act (A.R.S. § 41-1491), the Federal Fair Housing Act (42 U.S.C. § 3604) and the parties implied covenant of good faith and fair dealing. ¶7 Before the case went to trial, the Martins filed a complaint with the Arizona Attorney General s Office, Civil Rights Division, alleging that Sutton Place had violated the Arizona Fair Housing Act by discriminating against them in the enforcement of their Deed Restriction Martin s and Mrs. Martin s race. on the basis of Mr. Following an investigation, the Attorney General s Office dismissed the complaint, finding insufficient evidence to establish a violation of the Arizona Fair Housing Act. Accompanying the dismissal was a document entitled Final Investigative Report ( Report ). contained (1) summaries of interviews The Report conducted by the investigator of various Board members and members of the Sutton Place community, investigator during (2) the factual observations investigation, and made (3) a by the four-page letter from Sutton Place to the investigator laying out Sutton Place s defense to the Martins allegations of discrimination. 4 ¶8 The Martins made a motion in limine to exclude the Report 1 under Rule 403 of the Arizona Rules of Evidence. parties pretrial Martins motion conference, in part, the trial ruling that court the At the granted Report the would be excluded except for purposes of impeachment. Specifically, the parties (1) were permitted to ask witnesses whether the statements had been made under oath to an investigator and (2) whether they specific parties had statement were told in the the prohibited investigator Report from XYZ attributed asking (meaning to witnesses the them). The whether the investigator was from the Attorney General s Office. ¶9 During sought to the exclude all same pretrial references at conference, trial to Sutton Sutton Place Place s insurance coverage under Rules 403 and 411 of the Arizona Rules of Evidence. The Martins countered that Sutton Place had opened the door to the discussion of insurance. The Martins informed the court that during the course of litigation, Sutton Place sent the Martins a cease and desist letter demanding that the 1 Both parties appear confused as to whether the trial court s ruling precluded all documents released by the Attorney General s Office in connection with the investigation, (i.e., the complaint, the final investigative report, the dismissal, and the denial of application for reconsideration), or whether it precluded only the Report. We find that the court s ruling was limited to the Report. The Martins motion in limine referenced only the Report, and the trial court granted that motion without expanding the ruling to other documents. 5 Martins remove their newly installed outdoor firepit. Sutton Place stated that due to an underwriter s policy its insurer would not renew Sutton firepit was removed. Place s insurance policy unless the The underwriter, however, later informed the Martins that no policy prohibiting outdoor firepits existed. Once the Martins delivered basic information to the insurer about the firepit information that the Board was in possession of the insurer renewed Sutton Place s coverage. The Martins later learned that the insurer had only discovered the firepit because a member of the Board - Mr. Baker - informed the insurer about it. ¶10 In ruling on Sutton Place s motion to exclude all evidence of its insurance, the trial judge stated, I guess I m going to have to play it by ear as it comes up. And with respect to Mr. Baker s role in it, if any, I m going to allow that portion of it. It may be that it does show an intent by the association - I don t know at this time - to harass or otherwise make it more difficult to go forward with the project. ¶11 calling Sutton as a Place also objected witness Mr. on Calderon. relevancy Mr. grounds Calderon was to an insurance adjuster for Sutton Place s insurance carrier and was connected coverage. to the insurer s decision to renew Sutton Place s The trial court overruled the objection and allowed Mr. Calderon to testify. 6 ¶12 At trial, the Martins counterclaims were submitted to the jury and Sutton Place s Request for Permanent Injunctive Relief was submitted to the court. Martins and in compensatory Remittitur a general damages. under verdict Sutton Rule 59(i) The jury found for the awarded Place of the them filed Arizona a $200,000 in Motion for Rules Procedure requesting a reduction in the jury verdict. court denied the motion. of Civil The trial Additionally, the trial court denied Sutton Place s original Request for Permanent Injunctive Relief against the Martins alleged unapproved house modifications. Discussion 1. Exclusion of Attorney General Report ¶13 Sutton Place argues on appeal that the trial court abused its discretion by not admitting in its Report issued by the Attorney General s Office. entirety the A trial court has considerable discretion in ruling on the admissibility of evidence, and we will not reverse such a ruling absent (1) a clear abuse of discretion or misapplication of the law; and (2) resulting prejudice. State v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (1984); Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980); Conant v. Whitney, 190 Ariz. 290, 292, 947 P.2d 864, discretion 866 (App. manifestly 1997). An unreasonable, grounds, or for untenable reasons. 7 abuse or of discretion exercised on is untenable Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982) (quoting Quigley v. City Court of Tucson, 132 Ariz. 35, 643 P.2d 738 (1982)). That the circumstances conclusion than that reached by could the justify [trial a court] different does not warrant the [appellate] court in substituting its judgment for that of the [trial court]. A difference in judicial opinion is not synonymous with abuse of discretion. Quigley, 132 Ariz. at 37, 643 P.2d at 740. ¶14 Here, the trial court excluded the evidence based on the Martins objection under Rule 403 of the Arizona Rules of Evidence. may be Rule 403 provides that otherwise admissible evidence excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ariz. R. Evid. 403. Our supreme court has stated, if other evidence is available of equal probative value but without greater the attendant probability risks of of the offered substantial evidence, outweighing then a exists. Shotwell v. Donahoe, 207 Ariz. 287, 296, ¶ 34, 85 P.3d 1045, 1054 (2004) (quoting State v. Gibson, 202 Ariz. 321, 324, ¶ 17, 44 P.3d 1001, 1004 (2002)). ¶15 The process of weighing the prejudicial impact of evidence against its probative value is peculiarly within the 8 function of the trial court. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 266, ¶ 53, 92 P.3d 882, 896 (App. 2004). Indeed, because [t]he trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice, it has broad discretion whether to exclude evidence under Rule 403. in deciding State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998), aff'd, 195 Ariz. 1, 985 P.2d 486 (1999). elaborate on its ruling. The trial court did not However, findings are not required. Trial judges are presumed to know the law and to apply it in making their decisions. 1263 (1991) (quoting Feltrop v. Missouri, 501 U.S. 1262, Walton v. Arizona, 497 U.S. 639, 653 to the (1990)). ¶16 In reviewing this issue, probative value of the Report. we look first See Shotwell, 207 Ariz. at 296, ¶ 34, 85 P.3d at 1054 ( A proper Rule 403 balancing of probative value and prejudicial effect begins with a proper assessment of the probative value of the evidence on the issue for which it is offered. (quoting Gibson, 202 Ariz. at 324, ¶ 17, 44 P.3d at 1004)). Sutton Place argues that many of the Report s interview summaries and factual observations are probative of key issues at trial. Although we agree that the Report contains relevant evidence, we also find that this evidence does not make the Report in its entirety highly probative. 9 We reach this conclusion because of the availability through less prejudicial means. of the same evidence See id. ( [I]f other evidence is available of equal probative value but without the attendant risks of the offered evidence, then a greater probability of substantial outweighing exists. (quoting Gibson, 202 Ariz. at 324, ¶ 17, identify could 44 any not P.3d at factual have been 1004)). Sutton Place observations or obtained presenting by witness has failed statements less to that prejudicial physical evidence or by calling individual witnesses to testify at trial. Indeed, four out of seven of interviewed in the Report did testify at trial. the witnesses Thus, we cannot say that the Report s broadly accessible, and to some degree repetitive, evidence gave the Report more than minimal probative value. ¶17 Sutton Place argues that the Report in its entirety had probative value because it could have been used to conduct more complete impeachment through prior inconsistent statements. First, Sutton Place argues that the admitted Report would have added credibility to the witnesses prior statements by establishing that they were made to an investigator from the Attorney General s Office, rather than a private investigator. However, by allowing the parties to establish that the statements were given to an investigator under oath, the prior statements had sufficient credibility 10 to conduct proper impeachment. Any additional value to be gained by establishing that the statements were given to an investigator specifically from the Attorney General s Office was minimal. ¶18 Second, Sutton Place argues that admitting the Report would have allowed a more complete impeachment because it would have been extrinsic evidence of the witnesses prior statements. We again determine that the trial court s ruling adequately maintained the Report s impeachment value in this regard. The court s ruling permitted the parties to confront witnesses by reading aloud, in the presence of the jury, the exact language contained in the Report. Any additional value that might have been gained by admitting into evidence a hard copy of the same statement was minimal. Moreover, the court s ruling did not preclude Sutton Place from introducing other extrinsic evidence of witnesses statements such as calling the investigator to testify to what witnesses said during their interviews, in the event the witnesses denied the statements attributed to them. 2 2 Sutton Place briefly argues that under Rule 613(b) of the Arizona Rules of Evidence it was entitled to use the Report as extrinsic evidence of prior inconsistent statements. We disagree. Rule 613(b) merely establishes what requirements must be met before extrinsic evidence of a prior inconsistent statement may be admitted. The Rule does not state the converse, namely that extrinsic evidence of a prior statement must be admitted in all cases where the requirements are met. United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir. 1987) (applying the federal rule). [W]here it is sought to impeach a witness by showing a prior inconsistent statement and the witness admits the prior inconsistent statement, the witness 11 Indeed we see adequately no such preserved requests. Thus, the potential consider the the court s impeachment value ruling of the Rule 403 Report. ¶19 Next, we other side of the balancing test, i.e., danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasted time, or needless presentation Evid. 403. of cumulative evidence. See Ariz. R. Consistent with the trial court s ruling, the Report presented a danger of misleading the jurors in their role as fact finders and creating unfair prejudice. ¶20 Many actually of the factual Report s conclusions. factual observations Moreover, many of were those conclusions were stated in the Report without the supporting facts on conclusions. which the For investigator example, the relied Report to reach concluded, those without specific factual support, that a majority of the houses [in the Sutton Place community] showed continuity in architecture and is thereby impeached and further testimony is not necessary. Id. (quoting United States v. Jones, 578 F.2d 1332, 1340 (10th Cir. (1978)). Here, for example, one witness s (Hall s) response to whether she made a statement in the Report implied an admission. Counsel chose not to follow up with an explicit question as to whether she admitted or denied the statement. Under these circumstances, in light of the impeachment permitted, the trial court did not abuse its discretion under Rule 613(b) by not admitting the Report as extrinsic evidence. See State v. Garza, 216 Ariz. 56, 66, ¶ 37, 163 P.3d 1006, 1016 (2007) (stating that appellate courts review evidentiary rulings for abuse of discretion). 12 paint color, that the Martins addition to their house did not show any continuity in architectural design or paint color, and that the Ellegood s house (another house in the community with a second-story addition comparable to the Martins but which did not receive comparable scrutiny) aesthetically blended into the Association. Like other factual conclusions in the Report, these conclusions were relevant to central issues in the case. Here, the conclusions cut against the Martins claims that their renovation project was treated differently because of their race and not because the project simply did not fit in with the rest of the community. ¶21 were However, because many of the conclusions in the Report relevant to key issues at trial, the judge could have reasonably anticipated that many of the facts supporting those conclusions would be presented to the jury. To admit into evidence the investigator s conclusions, when the foundational evidence trial, supporting would amount those to conclusions admitting would the be opinion presented of an at expert witness as to what conclusions the jury should draw, even though the jury [would have] the opportunity and the ability to draw its own conclusions from the evidence presented . . . . Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984). Therefore, the trial court had a basis to determine 13 that the Report s factual conclusions presented a danger that the jury would be mislead in its fact finding. 3 ¶22 Additionally, concluded Martins Place that because outlining the it the trial court was unfairly prejudicial four-page letter Report contained a defense to its the could have complaint Martins with the Attorney General s Office. reasonably from filed to the Sutton by the Given the overlap between the Martins complaint to the Attorney General s Office and the Martins counterclaims at trial, Sutton Place s fourpage letter amounted to a summary of its defense at trial. The trial court could have considered it unfairly prejudicial for Sutton Place to have been able to place this summary in the hands of the jury without giving the Martins a similar Arizona Supreme opportunity to do so. ¶23 To conclude on this issue, as the Court noted in Shotwell, when it rejected a per se rule for the admission of Equal Employment Opportunity Commission reasonable cause determinations, there are significant benefits in the trial court having the authority to make case-by-case 3 We are aware of the rule laid out in Shotwell, stating that a public report s inclusion of some conclusory statements . . . is not, by itself, enough to render it inadmissible. 207 Ariz. at 295, ¶ 32, 85 P.3d at 1053. Significantly, however, the Shotwell court did not state that conclusory statements may not be considered in weighing evidence under Rule 403. 14 decisions. 207 Ariz. at 294, ¶¶ 22-23, 85 P.3d at 1052. The court noted: Trial judges shackled by a per se rule lack the ability to control the effects of potentially unfair, prejudicial, duplicative, time consuming, confusing, and irrelevant evidence . . . . The discretionary approach allows trial judges, on a case-by-case basis, to apply the Rules of Evidence in a commonsense manner . . . in the context of the cases in which they are presented. Id. at ¶ 23. Here, court s ruling. the facts of record support the trial Thus, there was no abuse of discretion in the trial court s refusal to admit the Report. 2. Admission of Evidence Related to Sutton Place s Insurance ¶24 Sutton Place argues that the trial court abused its discretion in admitting evidence of Sutton Place s insurance coverage over its objections based on Rules 403, 411, and 402. ¶25 As to the objections under Rules 403 and 411, the court s ruling was to play it by ear as it comes up with the possible exception of Mr. Baker s involvement in the insurancerenewal process. The court left open the issue of whether other insurance-related evidence would be admissible. 4 4 In ruling on the remainder of Sutton Place s pretrial motion, the court stated, I guess I m going to have to play it by ear as it comes up. This did not cause Sutton Place s Rule 403 or Rule 411 objections to become standing objections. We will review Sutton Place s later objections and their associated rulings only on the grounds raised by Sutton Place at those times. 15 ¶26 Thus, we will first review for abuse of discretion the court s rulings under Rules 403 and 411 to permit evidence of Mr. Baker s involvement in the insurance-renewal process. Thereafter, we will review Sutton Place s other objection under Rule 402. a. Rule 403 Objection ¶27 We begin with the court s ruling under Rule 403 and consider the probative value of evidence related to Mr. Baker s involvement in the insurance-renewal process. During the pretrial conference, the Martins informed the court that the Board sent the Martins a threatening cease and desist letter stating that if the Martins did not remove their new firepit, the Board would file a temporary restraining order forcing them to do so. The Board was arguably obligated to send the letter because, according to Sutton Place, unless the Martins removed the firepit, coverage. the entire would that obligation when he informed the insurer about the firepit. Mr. of informed the Board, became the the court insurance of member Martins its Mr. a the lose that Baker, However, community catalyst Baker did this even though such firepits were not prohibited under Sutton Place s insurance policy. ¶28 A reasonable inference to draw from these facts, although certainly not the only inference, is that Mr. Baker went out of his way to inform the insurer about the firepit in 16 order to create a justifiable and legitimate ground on which the Board could harass the Martins. of Mr. Baker s involvement We therefore find that evidence in the insurance-renewal process could reasonably have been seen by the court as substantially probative of the Martins claims of harassment. ¶29 Next we consider the prejudicial effect of evidence related to Mr. Baker s role in the insurance-renewal process. Sutton Place argues that admitting evidence of Sutton Place s insurance created a risk that the jury would improperly inflate its award, believing that Sutton Place s insurer would cover the cost. that Although this may be a danger in certain circumstances, danger involvement was tempered here. only informed the Evidence of that Sutton jury Mr. Baker s Place had insurance coverage that might be affected by an outdoor firepit. From this, the jury is not necessarily led to a conclusion that Sutton Place also had insurance to cover it for racial discrimination or for violations of good faith and fair dealing. ¶30 Accordingly, the court did not abuse its discretion in determining that the probative value of Mr. Baker s role in the insurance-renewal process was not the risk of unfair prejudice. b. Rule 411 Objection 17 substantially outweighed by ¶31 We next review the trial court s decision to overrule Sutton Place s Rule discretion standard. 411 objection under the same abuse of Rule 411 states: Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. ¶32 Rule 411 does not prohibit the insurance evidence was used in this case. insurance evidence may be that wrongfully. Ariz. R. Evid. 411. purpose part of relating of to Sutton establishing the Board. a for establishing evidence because used party The Martins in which The rule states that other had purposes insurance besides it acted The Martins reference to Place s harassment manner and insurance was for clearly did not on the seek discrimination the to introduce insurance evidence to imply that because Sutton Place had insurance it discriminated against them. The following excerpt from the Martins counsel s closing argument accurately identifies the use to which this was put. Martins decided they wanted to put a fireplace on their roof, and all of a sudden the insurance company is called by Don Baker no less, and they try to say that, Oh, you re trying to have our insurance cancelled. This is all your fault, Mr. Martin. How could you do this to us? 18 Well, the minute Mr. Martin gave them the information they needed about the fireplace, guess what? The insurance policy was renewed. ¶33 Under these circumstances, the Martins use of Sutton Place s insurance was permissible under Rule 411. The trial court did not abuse its discretion in overruling the objection. c. Rule 402 Objection ¶34 Sutton Place also requests review of the trial court s decision to allow the in-court testimony of Mr. Calderon under Rule 402 of the Arizona Rules of Evidence. ruling for an abuse of discretion. We also review this See Garza, 216 Ariz. at 66, ¶ 37, 163 P.3d at 1016 (stating that appellate courts review evidentiary rulings for abuse of discretion ). ¶35 Rule 402 provides, as otherwise All relevant evidence provided . . . . is admissible, except Ariz. R. Evid. 402. Relevant evidence is anything that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ariz. R. Evid. 401. threshold for relevance is a low one . . . . The State v. Roque, 213 Ariz. 193, 221, ¶ 109, 141 P.3d 368, 396 (2006). ¶36 Mr. In its objection, Sutton Place informed the court that Calderon Place s would insurance testify carrier of regarding whether 19 the or decision not to by Sutton renew Sutton Place s insurance policy. However, as outlined above, the Martins asserted that Sutton Place used the insurance-renewal process as an opportunity to harass the Martins. Mr. Baker s calling the insurer about the firepit was evidence showing it was more likely that Sutton Place harassed the connection with the insurance-renewal process. Martins in The trial court did not abuse its discretion in allowing Mr. Calderon to testify at trial over Sutton Place s relevancy objection. 3. Denial Relief of ¶37 Sutton Place s Request for Permanent Injunctive Sutton Place argues that the trial court abused its discretion in denying Injunctive Relief. Sutton Place s Request for Permanent The decision to grant or deny injunctive relief is within the sound discretion of the trial court, and its decision discretion. will not be reversed absent an abuse of that Valley Med. Specialists v. Farber, 194 Ariz. 363, 366, ¶ 9, 982 P.2d 1277, 1280 (1999). ¶38 Sutton Place argues that in reaching its decision on the permanent injunction the trial court relied in part on the jury s verdict. Sutton Place also argues that because the jury s verdict was based on improper evidence specifically, the exclusion of the Attorney General Report and the inclusion of evidence ruling was of also Sutton based Place s on insurance improper 20 - the evidence. trial court s Sutton Place concludes that because such reliance was improper, the court s decision to deny the permanent have already injunction was an abuse of discretion. ¶39 We within its discretion when found that the it excluded trial the court Attorney acted General Report and also when it permitted evidence of Sutton Place s insurance. trial As a result, neither the jury s verdict nor the court s evidence. ruling Therefore, discretion by denying was the tainted by trial court Sutton Place s reliance did on not request improper abuse for its permanent injunction. 4. Denial of Sutton Place s Motion for Remittitur ¶40 Sutton Place requests that this court reverse trial court s ruling denying its Motion for Remittitur. the We will review the trial judge's decision on such a motion for an abuse of discretion, recognizing that he had substantial latitude in deciding whether to upset the verdict. See Creamer v. Troiano, 108 Ariz. 573, 575, 503 P.2d 794, 796 (1972) (stating that a court s ruling on additur, remittitur, and new trial, because of an inadequate or excessive verdict, will generally be affirmed, because it will nearly always be more soundly based than ours can be ). Our reason for deference is clear, The judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the 21 verdict which cannot be recreated by a reviewing court from the printed record. Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978). has refused damages, to Moreover, where, as here, the trial court interfere appellate courts with the will jury's declare determination an award of of damages excessive . . . only when from the facts the amount at first blush suggests passion or prejudice on the part of the jury. Skousen v. Nidy, 90 Ariz. 215, 219, 367 P.2d 248, 252 (1962) (citing City of Phoenix v. Brown, 88 Ariz. 60, 67, 352 P.2d 754, 759 (1960)). In other words, the award must shock the conscience of this court before we will tamper with the jury s determination. Acuna v. Kroack, 212 Ariz. 104, 114, ¶ 36, 128 P.3d (App. 221, 231 2006) (quoting Hutcherson v. City of Phoenix, 192 Ariz. 51, 57, ¶ 36, 961 P.2d 449, 455 (1998)). ¶41 We are not shocked by the amount the jury awarded the Martins in compensatory damages. There was substantial evidence presented at trial from which a reasonable jury could award them $200,000. Mr. Martin testified that Sutton Place s actions caused him to suffer emotional distress and an increase in his blood pressure severe enough to require medication. He testified that because of Sutton Place s actions, living in his community had become agonizing, enjoyment living there. and that there [was] no He also testified that he was unable to move from the community for financial reasons. 22 ¶42 Mrs. Martin testified that Sutton Place s actions had affected her relationship with her spouse and that her children had felt the impact. She testified that she had stopped using her community pool for fear of irate neighbors and that her children played in the alley adjacent to their house. stated, I feel really isolated. the community. ¶43 She I feel I can t even go inside These facts all supported the judgment. Sutton Place also contends that there was a misconception by the jury of the principles of law governing the estimate of damages. Sutton Place argues that in reaching its determination of damages it was improper for the jury to rely on Mr. Martin s approximation of his and his wife s losses due to increases in interest rates. Importantly, however, because the jury issued a general verdict on damages, Sutton Place cannot say whether the jury relied on determining the Martins damages. this testimony at all in Moreover, even without the addition of the Martins potential losses due to increase in interest rates, $200,000 was not high enough to shock the conscience of this court. ¶44 Sutton Place also points to the statement made by the Martins counsel during her closing argument that $25,000 would be a reasonable humiliation and figure the to compensate anguish that the they Martins have for the suffered. However, just as the court instructed the jury in this case, 23 statements made during closing argument are not evidence. See also Libertore v. Thompson, 157 Ariz. 612, 621, 760 P.2d 612, 621 (App. 1988) ( That a jury s award against a defendant exceeds the suggestion of plaintiff s counsel does not alone prove prejudice. ). Accordingly, the statement made by the Martins counsel during closing argument does not preclude the jury from assessing manner it saw fit. the evidence presented at trial in the Moreover, counsel merely stated that $25,000 would be a reasonable figure. This does not preclude other reasonable figures, even if they are not specifically argued. The jury may expression reasonably of the have Martins seen desire counsel s to not statement overreach as in an their request. ¶45 Further, compensatory our damages case even law has though they upheld are in verdicts excess amounts suggested by counsel in closing argument. of for the Ritchie v. Kasner, 221 Ariz. 288, 301, ¶¶ 37-38, 211 P.3d 1272, 1285 (App. 2009) (upholding a jury award of $5 million when $4 million was requested); Mammo v. State, 138 Ariz. 528, 532, 675 P.2d 1347, 1351 (App. 1983) (upholding a remittitur of $300,000 when only $250,000 had been requested in the pleadings). We recognize that counsel here did not, as was the case in Ritchie, say in closing within something your to the effect of discretion . . . . You 24 the may award think is that completely you should award more, or you should award less. your discretion. However, we It s completely within 221 Ariz. at 301, ¶ 37, 211 P.3d at 1285. decline to establish a magic words test. In short, counsel s statement did not limit the jury from awarding what it viewed as proper compensation for the damages suffered so long as that award is supported by the evidence, as it is here. Accordingly, the trial court did not abuse its discretion in denying Sutton Place s Motion for Remittitur. 5. Attorneys Fees and Costs ¶46 Sutton Place requests that the attorneys fees awarded to the Martins be vacated. It asserts that this would be proper if relief is granted, because the Martins would no longer be the prevailing parties. Sutton Place also requests attorneys fees on Martins counter-claim pursuant to 42 U.S.C § 3613(C)(2) and A.R.S. § 12-341.01. The Martins request their fees pursuant to A.R.S. §§ 12-341.01, 12-342, and 33-1256(H). ¶47 In the trial court, the Martins were awarded their fees pursuant to A.R.S. § 12-341.01. In the exercise of our discretion we also award fees to the Martins pursuant to that same provision in an amount to be determined upon compliance with Arizona Rule of Civil Appellate Procedure 21. Sutton Place s request for fees is denied, as is its request for us to vacate the fees awarded to the Martins below. awarded their costs on appeal. 25 The Martins are Conclusion ¶48 For the foregoing reasons, we affirm. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ _________________________________ DONN KESSLER, Presiding Judge /s/ _________________________________ JON W. THOMPSON, Judge 26

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