VARCO v. UNS Electric – 3/23/2017

April 6, 2017

Arizona Court of Appeals Division Two holds that repeated attorney misconduct can be basis of new trial order if the misconduct is prejudicial, even if the court does not make a finding that the jury’s verdict was incorrect.

A warehouse brought suit against an electrical company for negligently installing a utility pole that resulted in a fire.  Prior to trial, the court granted the warehouse’s motion to exclude certain evidence.  Over the course of trial, counsel for the electrical company repeatedly attempted to ask questions of witnesses seeking information about the excluded evidence, and additionally attempted to introduce several items of evidence that had not been timely disclosed.  Each of these attempts drew an objection that was sustained by the court.  The Jury ultimately ruled in the electrical company’s favor.  On motion by the warehouse’s counsel, the trial court granted a new trial on the ground that misconduct by the electrical company’s counsel caused unfair prejudice.  The electrical company appealed.

The Court of Appeals affirmed, noting that orders which grant new trials are reviewed under a much more liberal standard than those denying them because trial judges generally disfavor such motions and only grant them with great caution.  It found that substantial evidence supported the trial court’s finding that the electrical company’s counsel had committed misconduct and that the misconduct prejudiced the moving party.  It held that, although any one instance of misconduct may not have been enough to prejudice the jury, the cumulative effect of the repeated instances of misconduct supported the trial court’s granting of the motion.  It further held that it was not necessary for the trial court to find that the jury’s verdict was incorrect so long as prejudice resulted from the misconduct.

Judge Miller delivered the unanimous opinion, in which Judges Staring and Espinosa concurred.