                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


               MICHAEL SOTO, et al., Plaintiffs/Appellants,

                                      v.

            ANTHONY M. SACCO, et al., Defendants/Appellees.

                           No. 1 CA-CV 15-0092
                             FILED 5-19-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2013-011046
               The Honorable Michael D. Gordon, Judge

                                AFFIRMED


                                 COUNSEL

Law Office of James Michael Abernethy, PLLC, Phoenix
By James Michael Abernethy
Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli, PLC, Phoenix
By Edward G. Hochuli, Whitney M. Harvey, Justin M. Ackerman
Counsel for Defendants/Appellees



                                 OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.


D O W N I E, Judge:

¶1           Michael Soto and Julie Kunstler Soto appeal from an order
granting a new trial that became effective after Michael rejected a remittitur
                          SOTO v. SACCO et al.
                           Opinion of the Court

of damages awarded by a jury.1 We hold that the Sotos’ appeal is timely
and affirm the new trial order.

                FACTS AND PROCEDURAL HISTORY

¶2              The Sotos were passengers in a cab driven by Anthony Sacco
when it collided with another vehicle. The Sotos sued Sacco, Discount
Enterprises Inc., and Total Transit, Inc. d/b/a Discount Cab (collectively,
“Defendants”). Defendants admitted Sacco’s negligence and respondeat
superior liability. A jury trial ensued solely on the issue of damages.

¶3            Trial evidence established that Michael sustained multiple
fractures to the humerus of his dominant arm that required surgery to
implant a plate and screws. Witnesses testified that Michael no longer
enjoyed certain activities he participated in before the accident, and he
experienced significant pain and emotional distress as a result of the
accident. However, Michael’s treating physician testified that the fractures
healed during four months of physical therapy, and he placed no
restrictions on Michael or his activities. The physician recommended that
Michael use his arm normally, with the understanding it may never be “100
percent strong,” and he suggested Michael refrain from an activity only if
it became “very uncomfortable.” Michael made no claim for lost wages or
future medical expenses. His medical bills totaled approximately $40,500.

¶4            During closing arguments, counsel for the Sotos asked the
jury to award Michael $725,000. Defendants suggested an award of $90,000.
The jury awarded Michael $700,000.

¶5             Defendants filed a “Motion for New Trial, to Alter or Amend
the Judgment, and for Remittitur.” After briefing and oral argument, the
trial court granted a remittitur, reducing Michael’s award to $250,000 in an
unsigned minute entry filed November 19, 2014. The court directed the
Sotos to “file a notice as to whether or not they accept the reduced verdict”
by November 25, 2014.

¶6            On November 24, 2014, the Sotos filed a “Notice of Plaintiffs’
Rejection to Court’s Remittitur.” Based on that submission, the court set a
scheduling conference for February, but stated it would vacate the hearing



1      The jury awarded Julie $40,000 in damages, but her award is not at
issue on appeal. When necessary to distinguish between the Sotos, we refer
to them by their first names.


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                           Opinion of the Court

“upon either party’s perfection of an appeal.” The Sotos thereafter filed a
“Request for Expedited Order to Perfect Appeal,” stating:

      It appears that Rule 59(i) was meant to be essentially self-
      executing and Plaintiffs[‘] rejection would trigger the
      appellate time. (“No further written order shall be required
      to make an order granting or denying the new trial final.”)
      However, that appears to presume that this Court had issued
      a signed “final Order” which was then filed with the Clerk.
      To Plaintiffs[‘] knowledge, this has not yet been done. Thus,
      in order to comply with the procedural requirements that
      there be a signed, final Order filed with the Clerk, Plaintiffs
      have attached a Proposed Order as Exhibit A hereto which
      mirrors this Court’s minute entry rulings and Plaintiffs would
      ask that this Court sign such Order expeditiously so that they
      may pursue their appellate rights.

¶7            During a December 16 hearing, the court and counsel
discussed the Sotos’ request for a signed order. On December 17, the court
filed a signed “Final Order” that stated, in pertinent part:

      [T]he Court previously granted the Remittitur as to Plaintiff
      Michael Soto and denied it as to Julie Soto. The Court also
      offered the Plaintiffs the opportunity to accept the Remittitur,
      which would have resulted in vacating the new trial order
      pursuant to Rule 59(i)(1), Ariz. R. Civ. P.

      Pursuant to Rule 59(m), Ariz. R. Civ. P., the Court specifies
      with particularity the grounds for granting the motion. The
      Court finds that the verdict with respect to Michael Soto was
      excessive and not supported by the evidence.

      Now that the Plaintiffs have rejected the Remittitur, the Court
      affirms the Status Conference set for February 27, 2015, in
      order to proceed with the new trial. The Court, however, will
      be deprived of further jurisdiction over the matter if either
      side perfects an appeal. To be clear, the Court intends this
      order for a new trial to be a final written order resolving all
      issues raised under Rule 59(i), Ariz. R. Civ. P.

The Sotos filed a notice of appeal on January 14, 2015.




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                                  DISCUSSION

I.      Appellate Jurisdiction

¶8             “The timely filing of a valid notice of appeal is a prerequisite
to the exercise of appellate jurisdiction.” Santee v. Mesa Airlines, Inc., 229
Ariz. 88, 89, ¶ 3 (App. 2012). We have an independent duty to examine our
jurisdiction, Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 576,
¶ 15 (App. 2015), and we therefore requested supplemental briefing
regarding the timeliness of the Sotos’ appeal.

¶9            The general rule is that a party must file a notice of appeal “no
later than 30 days after entry of the judgment from which the appeal is
taken.” ARCAP 9(a). The trial court here filed a signed judgment on
September 12, 2014 based on the jury’s verdict. Defendants filed a timely
motion for new trial or remittitur, which tolled the time to appeal. See
ARCAP 9(e)(1)(D) (appeal time begins to run from entry of signed order
disposing of a time-extending motion).

¶10            Rule 59(i)(1) addresses remittiturs and states, in pertinent
part:

        When a motion for new trial is made upon the ground that
        the damages awarded are either excessive or insufficient, the
        court may grant the new trial conditionally upon the filing
        within a fixed period of time of a statement by the party
        adversely affected by reduction or increase of damages
        accepting that amount of damages which the court shall
        designate. If such a statement is filed within the prescribed
        time, the motion for new trial shall be regarded as denied as
        of the date of such filing. If no statement is filed, the motion for
        new trial shall be regarded as granted as of the date of the expiration
        of the time period within which a statement could have been filed.
        No further written order shall be required to make an order granting
        or denying the new trial final.

(Emphasis added.) Under the rule, “[n]o further written order” is required
to make the conditional grant or denial of a new trial final. The question
thus becomes whether the time to appeal began to run on November 25,




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2014 — the deadline for the Sotos to accept or reject the remittitur.2 Under
the facts of this case, we hold that it did not.

¶11             The trial court issued no signed order regarding the motion
for new trial until December 17, 2014.3 The January 14, 2015 notice of appeal
was therefore timely. An order granting or denying a motion for new trial
must be signed to be appealable. See Tripati v. Forwith, 223 Ariz. 81, 84, ¶¶
10, 15 (App. 2009). The conditional nature of a Rule 59(i) order does not
alter the fact that it operates to either grant or deny a new trial. Because the
Sotos filed a notice of appeal within 30 days of the only signed order
resolving Defendants’ motion for new trial, their appeal was timely, and we
have jurisdiction pursuant to Arizona Revised Statutes section
12-2101(A)(5)(a).

II.    New Trial Order

¶12           The new trial order was based on the trial court’s conclusion
that “the verdict with respect to Michael Soto was excessive and not
supported by the evidence.” As a threshold matter, we disagree with the
Sotos’ contention that Rule 59(m) required the court to make more detailed
findings regarding the grounds for the new trial order. “Rule 59(m) does
not apply to Rule 59(i) in that Rule 59(i) is express as to the grounds. Rule
59(i) does not require the trial court to specify the particulars in relation to
which the verdict was excessive.” Hancock v. Linsenmeyer, 15 Ariz. App. 296,
299 (1971).

¶13            We turn then to the determination that Michael’s award was
“excessive and not supported by the evidence.” It has “long been the rule
in this jurisdiction that the exercise of the power of remittitur rests in the
sound discretion of the court.” Spur Feeding Co. v. Fernandez, 106 Ariz. 143,
149 (1970). Remittitur is appropriate if the court concludes that a damage
award is not supported by substantial evidence and reflects “an


2        Although the Sotos filed a notice rejecting the remittitur the day
before the court-imposed deadline, Rule 59(i) makes the affected party’s
filing the triggering event only if it accepts the additur or remittitur —
something that did not occur here.
3        Additionally, the November 24 unsigned ruling granted
Defendants’ “Motion for Remittitur” but did not conditionally grant a new
trial, as Rule 59(i)(1) contemplates as part of its self-executing function. The
December 17 signed order cured that deficiency.




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exaggerated measurement of damages,” though it is not “shockingly or
flagrantly outrageous.”4 In re Estate of Hanscome, 227 Ariz. 158, 162,
¶¶ 13–14 (App. 2011). After reviewing decades of Arizona jurisprudence
involving additurs and remittiturs, our supreme court explained that, like
the jury, the trial judge has “the opportunity to observe the witnesses’
demeanor on the stand, and his 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.”
Creamer v. Troiano, 108 Ariz. 573, 575 (1972). Nevertheless, we have
cautioned that remittitur should be ordered only “for the most cogent
reasons . . . such as lack of evidence to support the damages awarded or a
clear indication that the jury misapplied the principles governing
damages.” Hanscome, 227 Ariz. at 162, ¶ 14.

¶14            The trial judge in this case heard the evidence first-hand and
could reasonably conclude that the award to Michael reflected “an
exaggerated measurement of damages.” Hanscome, 277 Ariz. at 162, ¶ 13.
Although Michael suffered serious short-term injuries and emotional
distress, there was no evidence of permanent medical disability and no
claim for future expenses. Defendants proffered information regarding
verdicts in cases involving individuals under 50 years of age with similar
fractures that supported their contention the damage award was excessive.
Cf. Desert Palm Surgical Grp., 236 Ariz. at 583–84, ¶¶ 43–44 (comparing
verdict to comparable civil cases to determine whether it constituted “an
excessive award of general damages”). Under these circumstances, a
reasonable trial judge could conclude that a new trial was appropriate.




4       A trial court must order a new trial, not remittitur, if it concludes a
verdict is the result of passion or prejudice. See Hanscome, 277 Ariz. at 162,
¶ 13 (tainted verdict requires a new trial); Hancock, 15 Ariz. App. at 299 (“[A]
Rule 59(i) order, by necessary implication requires that the trial court
entertain the opinion that the verdict was not the result of passion or
prejudice.”).


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                             CONCLUSION5

¶15          For the foregoing reasons, we affirm the judgment of the
superior court.




                                  :ama




5    Defendants filed a motion to strike portions of the Sotos’ reply brief.
We deny that motion.


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