Arizona Court of Appeals Division One holds that waiver of evidentiary objections at trial is appropriate sanction for failing to participate in pre-trial process.

After living on her property for roughly 10 years, a woman in rural Cave Creek got a new neighbor. Their relationship began amicably but quickly deteriorated, and the new neighbor subjected the woman to years of threats, insults, and other poor conduct. Eventually, in 2017, the woman filed suit against her neighbor.

When the time came for trial, the superior court hearing the case set a deadline for the parties to submit a joint pretrial statement. Despite repeated efforts to get his input, the man never responded to drafts of the joint pretrial statement sent by the woman’s counsel. So, the joint pretrial statement submitted to the court contained only the woman’s expected exhibits and witnesses. After the neighbor also failed to appear for the final trial management conference, the superior court indicated that, unless the neighbor could show good cause, he would be prohibited from introducing his own exhibits or witnesses (other than himself) or objecting to the woman’s exhibits. The neighbor never filed anything, even after the trial date was rescheduled and the new superior court judge gave the neighbor multiple new opportunities to participate in the joint pretrial statement process.

At trial, the superior court was true to its word and deemed any of the neighbor’s objections to the woman’s exhibits as waived, and the neighbor was not allowed to call any witnesses. The jury ruled in favor of the woman, awarding her compensatory damages for her claims of breach of easement, intentional infliction of emotional distress, (“IIED”), negligent infliction of emotional distress (“NIED), assault, and trespass. The jury also award the woman punitive damages on her IIED, assault, and trespass claims—the punitive damage award for the IIED claim was 2.67 times the amount of the compensatory damage award, and the punitive damage award for each of the assault and trespass claims was 3.1 times the amount of the compensatory damage award. The neighbor filed a series of post-trial motions and, after the superior court denied all of them, filed an appeal.

On appeal, the Arizona Court of Appeals, Division One, had no difficulty in affirming the superior court’s sanctions for the neighbor’s failure to participate in the joint pretrial statement. Rule 16 requires courts to sanction litigants for their non-participation, and Rule 37(b)(2)(A)(ii) directs that the appropriate sanction for non-participation is to preclude the offending party from proving up matters at trial. This was true, the Court said, even though much of the evidence admitted was hearsay, irrelevant, or otherwise objectionable—the neighbor had waived those objections, which meant they were waived even where they were valid.

The neighbor also appealed the damages award, claiming the compensatory damages were not supported by sufficient evidence and that the punitive damages were unconstitutionally excessive. The Court rejected the neighbor’s arguments as to the compensatory damages (although it did eliminate the award for the NIED claim, as that award was duplicative of the award for the IIED claim). The Court, however, did agree with the neighbor somewhat as to the punitive damages. Although the Court had no trouble concluding that the woman was entitled to punitive damages, it determined that the ratios—3.1 times the compensatory damages for the IIED claim and 2.97 times the compensatory damages for the assault and trespass claims—was too high. Because the woman had received “substantial” compensatory damages (the Court cited $155,000 as an example of “substantial” damages), the woman was only entitled to, at most, a ratio of punitive damages to compensatory damages of 1:1. The Court accordingly remanded to the superior court to adjust the judgment.

Judge Jacobs authored the opinion, joined by Judges Brown and Thumma.

Posted by: Joshua J. Messer