                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
    AMERICAN POWER PRODUCTS, INC., A CALIFORNIA CORPORATION;
           LFMG/APP, LLC, AN ARIZONA CORPORATION,
        Plaintiffs/Counterdefendants/Appellants/Cross-Appellees,

                                   v.

             CSK AUTO, INC., AN ARIZONA CORPORATION,
           Defendant/Counterclaimant/Appellee/Cross-Appellant.

                          No. CV-14-0261-PR
                         Filed February 5, 2016

          Appeal from the Superior Court in Maricopa County
             The Honorable George H. Foster, Jr., Judge
                         No. CV2005-019594
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                235 Ariz. 509, 334 P.3d 199 (App. 2014)
                   REVERSED AND REMANDED

COUNSEL:

Herbert Dodell, Dodell Law Corporation, Woodland Hills, CA; and David
B. Goldstein (argued), Hymson Goldstein & Pantiliat, PLLC, Scottsdale,
Attorneys for American Power Products Inc. and LFMG/APP LLC

Leon B. Silver (argued), Andrew S. Jacob, Gordon & Rees LLP, Phoenix,
Attorneys for CSK Auto Inc.

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER and BERCH (RETIRED) joined.

JUSTICE BRUTINEL, opinion of the Court:
                  AMERICAN POWER PRODUCTS v. CSK AUTO
                           Opinion of the Court

¶1             During jury deliberations after a lengthy trial, a juror asked
the bailiff how long deliberations usually lasted. Without consulting
anyone, the bailiff answered, “an hour or two should be plenty.” We hold
that the trial court did not err by denying the plaintiff’s motion for a new
trial based on the bailiff’s statement without first holding an evidentiary
hearing. Although the statement was plainly improper, it was not
objectively prejudicial and there was no significant fact question about
what occurred.
                             I. BACKGROUND

¶2           In 2005 American Power Products, Inc. (“American”) sued
CSK Auto, Inc. (“CSK”) for breach of contract, and CSK counterclaimed.
The eventual trial lasted twelve trial days and included twenty-four
witnesses and 164 exhibits, one of which was more than 4000 pages long.

¶3           Closing arguments were heard on a Friday before a three-day
weekend. Although American sought more than $5 million in damages, its
counsel attempted to simplify the case and focus the jury’s attention on a
small number of exhibits. For example, at one point he said, “I am not
encouraging you to look at every single exhibit, but this is an important
one.” Later, in rebuttal, he encouraged the jurors to “just look at Exhibit
No. 412. Tab two. That’s all I want you to look at.”

¶4             Counsel for CSK argued that the jury should award more than
$1.6 million on its counterclaims. In the alternative, however, he suggested
that the jury might simply reject all the claims and counterclaims and award
American the $10,733 that CSK conceded it owed and that the parties had
agreed would be the “starting point” for computing damages. After
deliberating for one to two hours, the jurors returned a 6-2 verdict awarding
American $10,733.

¶5            Subsequently, American hired a private investigator who
obtained affidavits from two jurors about their deliberations. The affidavit
from juror H.T. described a communication between the bailiff and the jury
that qualified as possible “extraneous prejudicial information” under
Arizona Rule of Evidence 606(b)(2). Juror H.T.’s affidavit stated that “[at]
one point the bailiff . . . came into the room. Someone asked her how long
deliberations typically lasted. She told us an hour or two should be plenty.”



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                            Opinion of the Court

¶6            Relying on the affidavits, American moved for a new trial.
American argued that, “at a minimum [the affidavits] create a ground for
further inquiry whether deliberations were improperly curtailed both by
improper jury conduct and the bailiff’s statement that one or two hours of
deliberations were enough.” CSK argued that Evidence Rule 606 precluded
admission of all statements in the affidavits except juror H.T.’s description
of the communication between the bailiff and the jury.1 CSK did not
dispute that the bailiff communication occurred as alleged. Rather, CSK
argued that, although improper, the communication was insubstantial and
did not raise an inference of actual prejudice.

¶7             At oral argument on the motion, the court indicated that it
agreed with CSK that only the statement about the bailiff communication
would be admissible under Evidence Rule 606 and that the bailiff
communication was not prejudicial.              The court characterized the
communication as a “throwaway question” that was “not directed to this
case, not to the substance of this case at all.” In addition, when counsel for
American contended that the jury’s rapid verdict was “so aberrational that
it’s kind of stunning,” the court responded that it “[didn’t] think it was
stunning at all.” The court also implied that the quick verdict might have
resulted from the attorneys’ failure to heed the court’s admonition to
simplify the case, which, the court pointed out, featured a confusing
combination of detailed contract provisions, numerous acronyms, and
technical jargon. The trial court denied the motion for a new trial without
holding an evidentiary hearing.

¶8            A divided court of appeals reversed and remanded. Am.
Power Prods., Inc. v. CSK Auto, Inc., 235 Ariz. 509, 517 ¶ 25, 334 P.3d 199, 207
(App. 2014). The majority found that the trial court could not determine
from the record how the jury might have interpreted the bailiff’s comment.
This uncertainty meant that prejudice should be presumed, and therefore
the trial court erred by denying the new trial motion without holding an
evidentiary hearing. The dissent concluded that the trial court acted within



1
 Arizona Rule of Evidence 606(b)(1) states, “During an inquiry into the
validity of a verdict in a civil case, a juror may not testify about any
statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment.”
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                             Opinion of the Court

its discretion in determining, on the basis of H.T.’s uncontested affidavit
alone, that the communication was not prejudicial.

¶9          We granted review because this case raises an issue of
statewide importance. We have jurisdiction under article 6, section 5(3) of
Arizona’s Constitution and A.R.S. § 12–120.24.

                              II. DISCUSSION

¶10            We review the trial court’s denials of a motion for a new trial
and a requested evidentiary hearing for abuse of discretion. See State v.
Miller, 178 Ariz. 555, 556, 875 P.2d 788, 789 (1994); Adroit Supply Co. v. Elec.
Mut. Liab. Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975).

¶11             Bailiffs are prohibited from communicating ex parte with the
jury, other than about mere administrative details. Ariz. R. Civ. P. 39(e),
(g); see Perez ex rel. Perez v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 359,
929 P.2d 1303, 1307 (1997) (noting that improper ex parte communications
may come from a bailiff or a judge and “there is far more potential for
improper advice from a bailiff than from a judge on substantive legal and
important procedural matters”). If an ex parte communication prejudices
jury deliberations, the verdict must be vacated and a new trial ordered.
Perez, 187 Ariz. at 362, 929 P.2d at 1310. But we do not presume prejudice
from the mere occurrence of an ex parte communication. Id. at 361, 929 P.2d
at 1309. Instead, courts examine ex parte communications on a “case-by-
case basis, applying a two-prong inquiry: (1) Was there an improper
communication? and (2) Was the communication prejudicial or merely
harmless?” Id. at 358, 929 P.2d at 1306. Because we agree with the parties
and the court of appeals that the bailiff’s statement was improper, we focus
on whether it was prejudicial.

              A. Lack of Factual Dispute

¶12           If there is no significant factual question, the trial court may
grant or deny a motion for a new trial without holding an evidentiary
hearing. See State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996)
(concluding that the trial court did not abuse its discretion in denying
defendant a new trial without first holding an evidentiary hearing when a
juror’s post-verdict affidavit stated that jurors had considered notes from
an alternate juror but did not indicate that the notes contained extraneous

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                             Opinion of the Court

information that was damaging or prejudicial). If there is a significant
question as to what occurred or whether the affiant is credible and whether
the alleged facts, if true, would establish a basis for granting the motion, the
court must hold an evidentiary hearing before ruling on a motion for new
trial. See, e.g., Perez, 187 Ariz. at 357 n.3, 929 P.2d at 1305 n.3 (finding that
the trial court erred in limiting evidentiary hearing to one of three alleged
improper communications when details of the communications were not
fully known); Miller, 178 Ariz. at 557, 875 P.2d at 790 (finding that the trial
court erred in denying motion for a new trial without first holding an
evidentiary hearing when the only information about the improper
communication came second-hand from the prosecutor).

¶13             Here the trial court was not required to hold an evidentiary
hearing before ruling on the motion for new trial because there was no
dispute as to what occurred. Both parties agreed that the bailiff said that
“one or two hours should be plenty.” In finding that the trial court erred,
the court of appeals reasoned that the jury could have understood the
bailiff’s statement as either (1) an innocuous estimate of the typical duration
of jury deliberations or (2) an “indirect comment on the relative complexity
of the evidence and the applicable law.” CSK, 235 Ariz. at 514 ¶ 15, 334 P.3d
at 204. Because it concluded that the trial court did not have the facts
necessary to determine which of the two interpretations the jury adopted,
it found an evidentiary hearing necessary to address questions “regarding
the context of the communication itself,” including the specific content of
the communication, “whether the jurors asked follow-up questions in
response to the bailiff’s response, or the amount of time that elapsed
between the communication and the jury’s verdict.” Id. at 515 ¶ 16, 334 P.3d
at 205.

¶14             But even if we assume that such questions would have been
proper under Evidence Rule 606, we conclude that the mere existence of
potential “context” questions does not compel the trial court to hold an
evidentiary hearing. As the dissent recognized, “neither party disputed
whether the bailiff made the statement at issue, and the parties did not point
to any factual dispute relating to the bailiff’s statement that would need to
be resolved through an evidentiary hearing.” Id. at 517 ¶ 28, 334 P.3d at 207
(Cattani, J., dissenting). Accordingly, the trial court reasonably could have
concluded that the affidavit accurately set forth the bailiff’s answer, all
jurors heard that answer, and if there had been more to the ex parte
communication either the affiant or American would have raised it.

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                  AMERICAN POWER PRODUCTS v. CSK AUTO
                            Opinion of the Court

              B. Absence of Prejudice

¶15           Although we have previously addressed ex parte
communications with jurors, our articulation of the standard for
determining prejudice in such situations “has not . . . been entirely
uniform.” Perez, 187 Ariz. at 360, 929 P.2d at 1308. We have found that an
improper communication did not necessitate a new trial absent an
“affirmatively probable” showing of prejudice. S. Pac. R.R. Co. v. Mitchell,
80 Ariz. 50, 65, 292 P.2d 827, 837 (1956). Similarly, we have noted that “a
communication between judge and jury outside the presence of defendant
and counsel [may be] harmless error.” State v. Rich, 184 Ariz. 179, 180, 907
P.2d 1382, 1383 (1995) (quoting State v. Mata, 125 Ariz. 233, 241, 609 P.2d 48,
56 (1980)). But we have also rejected a harmless error analysis when we
found that the judge’s legally erroneous jury instruction—that only jurors
who had voted in favor of liability should participate in the calculation of
damages—deprived the defendants of the fundamental right to trial by the
full jury. Perkins v. Komarnyckyj, 172 Ariz. 115, 120, 834 P.2d 1260, 1265
(1992) (“Given the nature of the substantive error made in the ex parte
communication in the present case, however, Defendants were deprived of
a fundamental right, and a harmless error analysis is therefore
inappropriate.”). We reasoned in Perkins that “we cannot require a litigant
to show the extent of prejudice resulting from an error when, as a practical
matter, the nature of the error renders it impossible to prove the extent of
any prejudice.” Id. at 119, 834 P.2d at 1264. In other words, because we
could not know or assume what result the full jury might have reached had
a correct instruction been given, the “nature of the error” required us to
“presume[]” prejudice. Id. Finally, while maintaining Perkins’s “nature of
the error” language in Perez, 187 Ariz. at 362, 929 P.2d at 1310, we clarified
and narrowed this standard, declining “to adopt a strict rule of presumed
prejudice” and affirming that improper ex parte communications are
subject to harmless error analysis. Perez, 187 Ariz. at 358, 929 P.2d at 1306.2




2Our  cases reflect that, although the standard of proof differs, see Rich, 184
Ariz. at 181, 907 P.2d at 1384 (requiring in a criminal case that the state
prove an ex parte communication harmless beyond a reasonable doubt), the
same analysis applies to both civil and criminal cases. Id. (citing Perkins,
172 Ariz. at 118, 834 P.2d at 1263); Perez, 187 Ariz. at 360, 929 P.2d at 1308
(citing Rich, 184 Ariz. at 180, 907 P.2d at 1383).
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                             Opinion of the Court

¶16             That the nature of an error may render it impossible to prove
the extent of any prejudice does not warrant a presumption of prejudice
and ordering a new trial in all cases. Rather, it recognizes the practical
reality that, in certain circumstances, it is “impossible to prove the extent of
prejudice,” and that a judge should not require a party to bear that
impossible burden in order to secure a new trial. See Perkins, 172 Ariz. at
119, 834 P.2d at 1264; Perez, 187 Ariz. at 360, 929 P.2d at 1308. Because
Evidence Rule 606 bars jurors from testifying about whether any given
occurrence affected their decisions or those of fellow jurors, the nature of
an ex parte communication with the jury may “render[] it impossible to
prove the extent of prejudice.” Perkins, 172 Ariz. at 119, 834 P.2d at 1264;
Perez, 187 Ariz. at 360, 929 P.2d at 1308; see Ariz. R. Evid. 606(b)(1). A trial
court can never determine with certainty what might or might not have
swayed a juror’s decision because direct testimony on that matter is
prohibited. Ariz. R. Evid. 606(b)(1).

¶17            Even so, our rules charge the trial judge with deciding, based
on the available evidence, whether the error likely “affect[ed] the
substantial rights of the parties” such that refusing to order a new trial
would be “inconsistent with substantial justice.” Ariz. R. Civ. P. 61; see also
Ariz. Const. art. 6, § 27 (“No cause shall be reversed for technical error in . . .
proceedings when upon the whole case it shall appear that substantial
justice has been done.”). In cases like Perkins, where the improper
communication creates a structural defect in the trial that deprives a litigant
of an essential right, the trial judge must conclusively presume prejudice.
Perkins, 172 Ariz. at 119–20, 834 P.2d at 1264–65. Such error cannot be
harmless. See id. In all other cases, because the court cannot inquire into
the effect of the communication on individual jurors, the court must
determine whether the communication would likely prejudice a
hypothetical average juror. See United States v. Boylan, 898 F.2d 230, 262 (1st
Cir. 1990); United States v. Calbas, 821 F.2d 887, 896 n.9 (2d Cir. 1987) (noting
that “post-verdict determination of extra-record prejudice must be an
objective one, measured by reference to its probable effect on ‘a
hypothetical average juror’”); accord Kilgore v. Fuji Heavy Indus. Ltd., 240
P.3d 648, 655 (N.M. 2010) (citing 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 606.05 [2][b] (2d ed. 2010)). In other words,
the moving party is not required to prove actual prejudice, but is required
to demonstrate the objective likelihood of prejudice. See Mitchell, 80 Ariz.
at 65, 292 P.2d at 837; Kilgore, 240 P.3d at 656 (“[T]he burden remains on the
moving party throughout the proceedings to prove the ultimate fact in

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                            Opinion of the Court

issue, i.e., that there is a reasonable probability that the extraneous material
affected the verdict or a typical juror.”).

¶18            Having determined that the trial court in this case was not
required to hold an evidentiary hearing, we consider whether the court
abused its discretion in denying American’s motion for new trial. In
deciding if a communication would have prejudiced a hypothetical average
juror, we consider factors such as whether the communication related to the
evidence presented, the applicable law, or the ultimate issue in the case, or
whether it clearly interfered with the jury’s decision-making process. See
Perez, 187 Ariz. at 358–61, 929 P.2d at 1306–09; infra ¶ 20.

¶19            Here the trial court reasonably determined that the bailiff’s
statement had no bearing on the issues. The statement did not relate to any
specific or disputed fact or the strength of the evidence presented by either
side; nor did it involve any legal issue in the case. While the trial was
lengthy and complex, in closing arguments, both parties attempted to
simplify the case and focus the jury’s attention on a few key pieces of
evidence. Both parties discouraged the jurors from leafing through
hundreds of trial exhibits. Thus, unlike the cases in which we have found
prejudice, the bailiff’s comment did not favor one party over the other or
clearly interfere with the jury’s deliberations or decision-making process.
See infra ¶ 20. The court characterized the communication as a response to
a “throwaway question” that was not directed “to the substance of this case
at all” and noted that the rapid verdict was “[not] stunning at all.” We defer
to the findings of the trial court that considered the juror’s affidavit after
having observed the entire trial.

¶20            American cites several cases in which we determined that a
trial court abused its discretion in not finding prejudice and ordering a new
trial. All these cases, however, involved ex parte communications more
serious and substantive—that is, more objectively prejudicial—than that at
issue here. See, e.g., Perez, 187 Ariz. at 357, 929 P.2d at 1305 (finding
prejudice in a medical malpractice action where the bailiff, without
informing the judge or the parties of the jurors’ questions, (1) erroneously
told the jurors they would not be permitted to receive copies of the trial
transcript or re-hear portions of the testimony, (2) erroneously informed the
jurors of the procedure in the event of a deadlock, and (3) discouraged
jurors from asking the judge a question about the effect of a defense verdict
on a specific doctor’s liability); Miller, 178 Ariz. at 557, 875 P.2d at 790

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                            Opinion of the Court

(finding prejudice in a criminal trial where an alternate juror, after being
dismissed at the close of evidence, placed a note on a remaining juror’s car
stating either “My vote is guilty” or “He’s guilty”); Perkins, 172 Ariz. at 116–
17, 834 P.2d at 1261–62 (finding prejudice in a medical malpractice action
where the trial judge erroneously instructed that jurors who had voted
against liability should not participate in the calculation of damages). In
each of these cases, the communication at issue was likely to prejudice
jurors.
                            III. CONCLUSION

¶21           We reverse the court of appeals’ opinion and affirm the trial
court’s denial of American’s motion for new trial. We remand the case to
the court of appeals for consideration of issues raised but not decided on
appeal, including the parties’ claims for attorneys’ fees, court costs, and
other expenses.




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