                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


MARGARET S. JIMENEZ and ANDRES                    )         2 CA-CV 2003-0017
L. JIMENEZ, wife and husband,                     )         DEPARTMENT B
                                                  )
                         Plaintiffs/Appellants,   )         OPINION
                                                  )
                    v.                            )
                                                  )
WAL-MART STORES, INC., a Delaware                 )
corporation,                                      )
                                                  )
                         Defendant/Appellee.      )
                                                  )


             APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                     Cause No. CV94042053

                         Honorable Kirk v. Karman, Judge Pro Tempore

                                           AFFIRMED


Law Offices of A. Thomas Cole
 By A. Thomas Cole                                                                 Casa Grande
                                                            Attorneys for Plaintiffs/Appellants

Gust Rosenfeld, P.L.C.
 By Gerard R. O’Meara and Roger W. Frazier                                           Tucson
                                                            Attorneys for Defendant/Appellee


P E L A N D E R, Presiding Judge.


¶1           In this personal injury action, plaintiffs/appellants Margaret Jimenez and her

husband appeal from the trial court’s judgment, entered after a jury verdict, in favor of
defendant/appellee Wal-Mart Stores, Inc. She also appeals from the trial court’s subsequent denial

of her motion for a new trial. Jimenez argues the trial court abused its discretion by allowing Wal-

Mart to rely on a new, undisclosed legal theory at trial and by precluding certain photographic

evidence. Jimenez also argues the pro tempore trial judge was prejudiced against her because,

immediately after this case ended, the judge appeared as an attorney in another action in which

Jimenez’s attorney was a party. Finding no error in the trial court’s rulings and no conflict of

interest, we affirm the judgment.

                                        BACKGROUND

¶2             We view the facts in the light most favorable to upholding the jury’s verdict.

Larsen v. Nissan Motor Corp., 194 Ariz. 142, ¶2, 978 P.2d 119, ¶2 (App. 1998). Jimenez

injured her wrist and knee when she fell outside the garden center entrance to a Wal-Mart store

in early 1994. She had approached the store in a marked crosswalk, which had a handicapped

access ramp where it met the curb and sidewalk. Jimenez fell when she reached the sidewalk,

which had some potting soil spilled on it.

¶3             Jimenez and her husband sued Wal-Mart, alleging it had negligently maintained the

entrance. After a trial in 1997, a jury found in favor of Jimenez and awarded her damages totaling

$200,000, but found her thirty percent at fault. On appeal, this court vacated that award and

remanded the case for a new trial, finding Jimenez had presented prejudicial, undisclosed evidence

and a new legal theory at trial. Jimenez v. Wal-Mart Stores, Inc., No. 2 CA-CV 98-0011

(memorandum decision filed Aug. 20, 1998). The second trial ended in a mistrial. The third trial

resulted in a jury verdict in favor of Wal-Mart. Following that verdict, Jimenez moved for a new



                                                 2
trial, arguing Wal-Mart had effectively turned the tables by relying on an undisclosed legal theory

at trial to secure the defense verdict. The trial court denied that motion, and this appeal followed.

                                          DISCUSSION

I. New Legal Theory

¶4             Jimenez first contends the trial court erred by allowing Wal-Mart’s expert witness,

Dean Jacobson, to unexpectedly testify about his interpretation of certain crosswalk standards.

She argues that testimony amounted to a new, “surprise” legal theory or affirmative defense that

had not been disclosed as required by Rule 26.1, Ariz. R. Civ. P., 16 A.R.S., Pt. 1. Under that

rule, parties have a continuing duty to disclose “[t]he legal theory upon which each claim . . . is

based,” Rule 26.1(a)(2), and “the subject matter on which [an] expert is expected to testify, the

substance of the facts and opinions to which the expert is expected to testify, [and] a summary of

the grounds for each opinion.” Ariz. R. Civ. P. 26.1(a)(6).

¶5             Adequate disclosure “should fairly expose the facts and issues to be litigated, as

well as the witnesses and exhibits to be relied upon.” Bryan v. Riddel, 178 Ariz. 472, 477, 875

P.2d 131, 136 (1994). But, a party need only disclose the “substance” of the witness’s expected

testimony, not the details. See Ariz. R. Civ. P. 26.1(a)(3); Englert v. Carondelet Health

Network, 199 Ariz. 21, ¶7, 13 P.3d 763, ¶7 (App. 2000). We review a ruling denying a sanction

for violation of Rule 26.1 for an abuse of discretion. Allstate Ins. Co. v. O’Toole, 182 Ariz. 284,

287, 896 P.2d 254, 257 (1995). Similarly, we will not disturb a trial court’s ruling on a motion

for new trial absent an abuse of discretion. Englert, 199 Ariz. 21, ¶5, 13 P.3d 763, ¶5.

¶6             Jacobson, a materials scientist, testified at the two trials for which we have

transcripts about the general safety of the crosswalk and its compliance with applicable building

                                                 3
codes and other safety standards.1 At the first trial, he testified that the crosswalk and handicapped

access ramp complied with all applicable codes and standards. Jacobson did concede the existence

of a “technical difference” between a certain safety standard and the actual crosswalk, in that a

portion of the access ramp was included within the yellow lines marking the crosswalk. He then

stated that the crosswalk presented no danger to pedestrians. On cross-examination, Jacobson

agreed that any “problem” with the crosswalk was “[i]n the definition of the yellow lines.”

¶7             At some point after the case was remanded for a new trial, Wal-Mart informed

Jimenez that Jacobson would testify consistently with his prior testimony. Jacobson testified in

the third trial that the crosswalk and ramp complied with all codes and standards, but

acknowledged that the yellow lines probably should have been moved. As he had in the first trial,

he again stated that nothing about the crosswalk presented a dangerous condition. Jacobson further

testified that, under his interpretation of the law, the crosswalk was satisfactory and both it and

the ramp conformed to “standard and acceptable construction practice.”

¶8             Jimenez contends Jacobson “flip-flopped” his opinion by changing his position

“from admitted non-compliance to statutory compliance.”             She complains that Wal-Mart

effectively presented a new legal theory in offering his undisclosed, changed testimony. But

Jimenez has mischaracterized Jacobson’s testimony. At the first trial, Jacobson noted there was

a “technical difference” between the crosswalk and a certain safety standard. But he also

repeatedly testified that the crosswalk complied with applicable building codes and safety standards

and was not a danger to pedestrians. At the third trial, Jacobson essentially gave the same


       1
        Although Jacobson apparently testified at the second trial which ended in a mistrial, the
record does not contain the transcripts from that trial.

                                                  4
testimony. Although his testimony was not identical in both trials, its basic substance remained

the same. Jacobson’s original testimony did not amount to admitting that Wal-Mart’s crosswalk

did not comply with applicable standards, and his later testimony was not a “flip-flop[].” Given

the absence of any clear disclosure violation, this case bears no resemblance to Englert, on which

Jimenez relies.

¶9             The parties clearly addressed the pertinent codes and standards and their

applicability to the crosswalk throughout this extended action. Jimenez’s own expert witness

testified at both trials about his interpretation of the codes and opined that the crosswalk violated

safety standards and was inherently dangerous. Jacobson merely disagreed, testifying that the

crosswalk was reasonably safe and complied with all codes and standards. The trial court did not

abuse its discretion in implicitly finding Jimenez was not surprised by Jacobson’s testimony and,

therefore, that no discovery violation had occurred. See Allstate. Similarly, the trial court did

not abuse its discretion by denying Jimenez’s motion for a new trial based on this argument. See

Englert.

II. Excluded Photographs

¶10            Jimenez next contends the trial court abused its discretion by excluding certain

photographs Jacobson had taken that had been admitted without objection at the first trial. The

photographs generally showed various hazards near Wal-Mart’s garden center entrance, including

water, soil, and plants on the handicapped access ramp. Jimenez asserts that, by not objecting at

the first trial and not raising the issue in the first appeal, Wal-Mart waived any argument at the

third trial that the photographs were inadmissible. She also argues admission of the photographs

in the first trial constituted the law of the case, which prevented the trial court from excluding

                                                 5
them in the third trial. We will not disturb a trial court’s ruling on the admissibility of evidence

absent a clear abuse of discretion and resulting prejudice. Pima County v. Gonzalez, 193 Ariz.

18, ¶14, 969 P.2d 183, ¶14 (App. 1998).

¶11            Jimenez’s argument rests primarily on the holding in Carrillo v. State, 169 Ariz.

126, 817 P.2d 493 (App. 1991). According to her, “Carrillo is clear that issues waived in a first

trial can’t be urged for the first time in the second.” But the court in Carrillo considered only the

waiver of issues in multiple appeals, stating that issues not raised and argued in a first appeal may

not be raised later in a second appeal. Id. at 132, 817 P.2d at 499. Because it did not address the

potential waiver of issues, or proper retrial procedure, after remand of a case, Carrillo is not

controlling.

¶12            Moreover, as Wal-Mart points out, substantial authority permits parties on retrial

to “make new motions, raise new objections, and present additional evidence.” United States v.

Tham, 960 F.2d 1391, 1397 n.3 (9th Cir. 1991);2 see People v. Seit, 611 N.Y.S.2d 875, 877

(App. Div. 1994) (defendant had no “vested right to introduce inadmissible evidence at his retrial

merely because that evidence was erroneously admitted without objection at his first trial”); cf.

Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 579 (N.D. 1991) (on retrial after remand, “it will

again be for the trial court to exercise its discretion in determining the relevancy and admissibility”



       2
         In United States v. Tham, 960 F.2d 1391, 1397 n.3 (9th Cir. 1991), the court specifically
rejected the broad holding of United States v. Akers, 702 F.2d 1145 (D.C. Cir. 1983), in which
“the court held that a retrial renders the first trial a nullity along with any evidentiary rulings
therein.” Mindful of the doctrine of law of the case, the Ninth Circuit instead asked “whether a
trial court, faced with identical objections to the same piece of evidence, must adhere to a previous
ruling.” Tham, 960 F.2d at 1398 n.3. The court concluded, however, that a trial court faced with
new and timely objections to evidence in a retrial is not bound by its previous rulings. Id.

                                                  6
of evidence admitted at first trial); see also United States v. Akers, 702 F.2d 1145 (D.C. Cir.

1983); State v. Darwin, 288 A.2d 422, 426 (Conn. 1971) (“[E]vidence which was not objected

to at the first trial may be contested at the second.”). As Jimenez argues, however, the doctrine

of law of the case may limit a trial court’s rulings in a retrial. That doctrine “describes the judicial

policy of refusing to reopen questions previously decided in the same case by the same court or

a higher appellate court.” Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz.

275, 278, 860 P.2d 1328, 1331 (App. 1993). But, “we will not apply law of the case if the prior

decision did not actually decide the issue in question, if the prior decision is ambiguous, or if the

prior decision does not address the merits.” Id. at 279, 860 P.2d at 1332.

¶13             Jimenez contends that the trial court ruled in the first trial that the photographs were

admissible and that law of the case prevented the court from changing that ruling and excluding

the photographs in the third trial. In the first trial, however, the photographs were offered and

admitted without objection. Such a “ruling” does not amount to an actual decision on the merits;

no objection, argument, or substantive ruling was made. And, in our prior memorandum decision,

we did not address any issues relating to the photographs.

¶14             In the third trial, Wal-Mart filed a motion in limine to exclude the photographs as

irrelevant and as inadmissible evidence of its subsequent remedial measures. See Ariz. R. Evid.

401, 402, 407, 17A A.R.S. After a hearing, the trial court granted Wal-Mart’s motion. In view

of the specific objections to the photographs in the third trial and the absence of any prior

substantive ruling on them, the trial court was justified in reaching a different conclusion on their

admissibility. That it did so did not violate law of the case principles. See Tham, 960 F.2d at

1398; see also Powell-Cerkoney.

                                                   7
¶15            The trial court did not otherwise abuse its discretion in granting Wal-Mart’s motion

to exclude the photographs, nor does Jimenez so argue. She contends the photographs countered

Wal-Mart’s defense that her injury had been “self-caused” when she “simply tripped” at a

“meticulously well-kept entrance.” But she does not dispute that the excluded photographs were

all taken some time after her fall and did not depict the store entrance as it was when she fell. The

relevance of the photographs, therefore, was questionable. See Ariz. R. Evid. 401, 402.

Furthermore, some of the photographs showed that, after Jimenez’s fall, Wal-Mart painted the

curb area of the crosswalk red. Evidence of such subsequent remedial measures is generally not

admissible. Ariz. R. Evid. 407. Accordingly, it was well within the trial court’s discretion to

exclude the challenged photographs.

III. Judicial Bias

¶16            Jimenez lastly contends the trial judge pro tempore, Kirk Karman, acted improperly

and prejudicially because, after this case ended, Karman immediately recused himself and

appeared as an attorney for a party in another action (Cole v. Jones) in which Jimenez’s attorney,

Thomas Cole, was the adverse party.3 Jimenez has filed several documents in this court, which

show that, in July 1999, Cole and his wife filed a complaint against Edward and Twilla Jones.

In 2000, Karman appeared as an attorney for Edward Jones in two actions against Jean Showe.

In late 2001, Karman was assigned as a judge pro tempore to the Jimenez case. In September

2002, following the jury trial and verdict for Wal-Mart in February, Karman denied Jimenez’s

motion for a new trial, effectively ending the case. One month later, Karman recused himself.


       3
        This court previously denied Jimenez’s motion to remand the case for determining her
challenge to the trial judge.

                                                 8
The next day, Karman appeared as cocounsel for Edward and Twilla Jones in the action Cole had

filed against them.

¶17            Jimenez argues that the timing of Karman’s recusal was suspicious and speculates

that it was “highly probable [Karman] had spoken with Jones about Cole v. Jones before his

recusal.” She further asserts that a $4,500 sanction, entered against Cole after the second trial

ended in a mistrial, demonstrates Karman’s prejudice against her and her attorney.4 But Jimenez

has merely demonstrated that, before acting as a judge in this action, Karman represented Edward

Jones in matters unrelated to either Jimenez or her attorney, Cole. Moreover, only after the

Jimenez case had ended and he had recused himself did Karman appear as an attorney for Jones

in Cole v. Jones. Jimenez relies on conjecture to raise the issue of judicial impropriety, but does

not provide any evidence of actual bias. That Karman sanctioned Cole for his actions leading to

a mistrial does not amount to evidence of prejudice or hostility. See State v. Curry, 187 Ariz.

623, 631, 931 P.2d 1133, 1141 (App. 1996); G.K. Techs. v. Indus. Comm’n, 155 Ariz. 599, 604,

749 P.2d 389, 394 (App. 1988). In sum, Karman’s actions raise no substantial question about his

impartiality and did not require him to recuse himself during the pendency of this action. See

A.R.S. § 12-409(B); Ariz. R. Civ. P. 42(f)(2)(D), 16 A.R.S., Pt. 1 (“Under § 12-409(B)(5) the

sufficiency of any ‘cause to believe’ shall be determined by an objective standard, not by reference

to affiant’s subjective belief.”); cf. Miller v. Superior Court, 189 Ariz. 127, 129, 938 P.2d 1128,




       4
         Jimenez’s counsel also contends on appeal the trial court abused its discretion by imposing
that sanction on him for writing a letter to the editor during the course of these proceedings. We
previously granted Wal-Mart’s motion for partial dismissal of the appeal, however, concluding
we lack jurisdiction over that issue.

                                                 9
1130 (App. 1997) (that judge reported misconduct of prosecutor to state bar association was not

ground to disqualify judge).

IV. Cross-Issue

¶18           Wal-Mart raises as a cross-issue the admissibility of certain safety standards

promulgated under the Americans with Disabilities Act. In light of our resolution of the other

issues on appeal, we do not address this argument.

                                       DISPOSITION

¶19           Affirmed.



                                               _______________________________________
                                               JOHN PELANDER, Presiding Judge

CONCURRING:



_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
PETER J. ECKERSTROM, Judge




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