                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                    ELENA NOGUERO, Plaintiff/Appellant,

                                         v.

       AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
                     Defendant/Appellee.

                              No. 1 CA-CV 15-0364
                                FILED 10-20-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2011-080366
               The Honorable David M. Talamante, Judge

                                   AFFIRMED


                                    COUNSEL

Mayes Telles PLLC, Phoenix
By J. Blake Mayes
Counsel for Plaintiff/Appellant Pro Bono

Tyson & Mendes LLP, Phoenix
By Lynn M. Allen, J.P. Harrington Bisceglia
Counsel for Defendant/Appellee
                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


H O W E, Judge:

¶1           Elena Noguero appeals several of the trial court’s evidentiary
rulings during her jury trial against American Family Mutual Insurance
Company (“American Family”). Noguero also appeals the trial court’s
denial of her motion for judgment notwithstanding the verdict. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            After a 2008 monsoon, Noguero made a claim with American
Family, her homeowner’s insurance carrier, for water damage caused by
water coming through the windows. An American Family adjuster
inspected the home and found some water damage to areas of drywall but
concluded that neither the windows nor the roof had storm-related
damage. Thus, the adjuster determined that because the damages to
Noguero’s home were not related to the storm, her insurance policy did not
cover them. However, Noguero continued to report and file claims for
water damage in her home over the next couple of years, but after each
subsequent re-inspection American Family concluded that the damage was
not storm-related and denied Noguero’s claims. In 2010, Noguero filed a
separate claim for damages relating to a hail storm.

¶3            In 2011, Noguero sued American Family for breach of
contract and breach of the covenant of good faith and fair dealing, alleging
that American Family did not fully pay or properly adjust her claims
relating to the 2008 and 2010 storms and caused delay in the repair of her
home. Noguero also alleged that as a result of the consistent water damage,
her home began to grow mold. Noguero sought actual and punitive
damages, declarative relief, and attorneys’ fees.

¶4           After two years’ of discovery and pre-trial motions, the trial
court granted the parties’ joint scheduling order in August 2013. The order
stipulated that the deadline for all non-expert disclosures would be
September 10, 2013, and the deadline for all discovery would be November



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                   NOGUERO v. AMERICAN FAMILY
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22, 2013. On November 21, 2013, Noguero disclosed her neighbor as a
non-expert witness who would testify regarding her observations of
Noguero’s home before and after the storms and the measures she helped
Noguero take to attempt to save Noguero’s home-based pet accessory
business. American Family did not immediately object to the disclosure, but
the following month moved for summary judgment regarding the breach
claims and damages. The trial court ordered that neither party make further
discovery motions until it could rule on American Family’s motion for
summary judgment. In April 2014, the trial court granted that motion in
part relating to damages.

¶5            Noguero then moved for relief from the trial court’s partial
grant of summary judgment, arguing that the trial court made errors of law
and fact in making its ruling. At a subsequent pre-trial conference one week
before the October 2014 trial, the trial court stated that it was “inclined to
grant the Plaintiff’s Motion,” but could not rule on it until American Family
had an opportunity to respond. American Family accordingly responded to
the motion. American Family also moved to strike Noguero’s November 21
disclosure as untimely and to preclude Noguero’s neighbor from testifying.
The trial court granted American Family’s motion and precluded the
neighbor from testifying.

¶6             During trial, Noguero testified that she ran a small pet
accessory business out of her home, but despite her efforts, she lost roughly
$1 million in inventory because of the water-damaged and moldy condition
of her home. She also stated that because of the mold, she eventually felt
forced to move out of her home for health reasons. Noguero testified that
she rented an apartment and then a house, and moved to admit copies of
her residential leases into evidence as additional expenses she incurred.
American Family objected on hearsay grounds, which the trial court
sustained.

¶7            At the end of Noguero’s direct testimony, a juror asked her if
her neighbors’ homes experienced similar leaking through the roofs or
windows after the 2008 and 2010 storms, and if so, whether the neighbors’
homes were the same model as hers. American Family objected, arguing
that although Noguero could testify about what her observations of her
neighbors’ homes after the storms were, the specific damages, repairs, and
other related information constituted inadmissible hearsay that Noguero
lacked the requisite foundation to provide. The trial court sustained the
objection, however, finding the question irrelevant.




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                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court

¶8             In presenting its defense, American Family called an
industrial hygienist to testify. The hygienist stated that he had gone to
Noguero’s home in connection with the lawsuit to observe a “destructive
test.” He related that while there, he noted stains around one window’s
corners in the family room. When asked if he drew a conclusion regarding
the causation of the water damage around a family room window Noguero
objected for lack of foundation, arguing that the hygienist could not answer
the question because he was not an engineer. Noguero also objected to the
hygienist’s testimony regarding causation of water damage, arguing that
American Family had disclosed another expert to provide that testimony.
The trial court sustained the objection only for lack of foundation, ruling
that the witness could testify regarding what leaks he observed but not
opine on the cause of the leaks. The hygienist testified that the staining on
Noguero’s wall was consistent with leaks coming from the windows’
corners. Noguero did not object to this testimony. The hygienist then
continued to discuss potential defects in the windows, but the trial court
interrupted him and reminded the jury that it had limited the hygienist’s
testimony to his observations and not his opinions on causation.

¶9             Later, after excusing the jury for the day, the trial court
explained its ruling to the parties. The trial court stated that although it
believed that American Family had sufficiently disclosed the hygienist, he
was not a causation expert and thus lacked foundation to make any
conclusions to that effect. The trial court further stated that it reduced the
hygienist’s testimony essentially to that of a lay witness to not violate the
independent expert rule, as American Family had retained an expert
witness to testify on causation matters. Noguero maintained that the
hygienist’s testimony that he observed that the staining on her walls was
consistent with leaks from the windows’ corners was a “roundabout” way
of testifying regarding the causation of the leaks.

¶10           American Family also called one of its property claim
managers to testify. The manager testified that, as part of his job, he reviews
the claims adjuster’s files to ensure that the claims are properly handled and
approves denial letters sent to insureds. The manager testified that he
became involved with Noguero’s case in April 2010. He stated that he sent
contractors to inspect and re-inspect Noguero’s home after she continued
to complain of water damage, but that each inspection concluded that the
damage was not storm-related. Absent storm damage, the manager denied
Noguero’s homeowner’s insurance claim.

¶11         American Family asked what his evaluation of the condition
of Noguero’s home was after seeing the photographs from the multiple


                                      4
                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court

inspections; the manager responded that he believed the condition of the
home was inconsistent with storm damage. After laying foundation about
the manager’s experience with handling storm damage claims, American
Family asked if, upon looking at those photographs, he believed that the
condition of Noguero’s home was “indicative of monsoon microburst-type
events.” Noguero objected, arguing that because the manager was not an
expert witness, he could not opine about the effects of certain weather
conditions. The trial court sustained the objection, stating that the manager
could testify about his claim decision and upon what information he relied
to make that decision, but not whether storm damage actually existed.
Subsequently, American Family asked the manager what his own
conclusion was relating to Noguero’s claim after receiving the re-inspection
report and photographs. The manager responded that he decided, based on
the information, that no storm damage to the roof existed and that he
communicated his decision denying the claim to Noguero.

¶12            American Family also asked whether he believed that the
claims adjuster reasonably investigated the cause of loss. Noguero objected
for lack of foundation and the trial court sustained the objection. American
Family then asked the manager if he believed that the claim had been
handled reasonably. Noguero again objected, but the trial court permitted
the manager to answer. The manager stated that he believed the
investigation, coverage decisions, and evaluation of the claim were
appropriate and fair.

¶13            Additionally, American Family retained and presented
testimony from a construction expert. The expert opined that, upon
reviewing photographs of the home and various depositions from
contractors who inspected the home, the roof could not be a source of water
intrusion. He testified that his assistant took the photographs he relied on
and that he never actually went to inspect the house. He stated, however,
that relying upon notes from others’ inspections is a common practice in his
industry. He had given his assistant certain instructions to assess the
interior and exterior of the house, look at its conditions, and document his
findings with photographs. The expert also collaborated with his assistant
in preparing the report. American Family moved to admit the expert’s
report and the attached photographs. Noguero objected to the admission of
the photographs for lack of foundation. Without ruling on the objection, the
trial court allowed Noguero to voir dire the expert. Noguero, however, did
not ask any foundation questions about the photographs during that time.
Noguero then renewed her objection to the admission of the photographs,
but the trial court overruled it explaining that it was admitting the



                                     5
                    NOGUERO v. AMERICAN FAMILY
                        Decision of the Court

photographs only because the construction expert relied on them in
rendering his opinion.

¶14           The jury ultimately found in American Family’s favor on all
counts. The week following the trial court’s entry of judgment, Noguero
filed a “Motion for Judgment Notwithstanding the Verdict,”1 arguing that
the verdict was contrary to the weight of the evidence presented at trial.
Although the motion mentioned Arizona Rule of Civil Procedure 59
regarding new trials, it cited as the appropriate standard of review one for
motions for judgment as a matter of law. Noguero requested that the trial
court “set aside the verdict,” “direct a verdict for Plaintiff’s breach of
contract and breach of the covenant of good faith and fair dealing,” and
“grant a new trial for damages only.” American Family opposed the
motion, citing Arizona Rule of Civil Procedure 50 regarding motions for
judgment as a matter of law and arguing that because Noguero failed to
move for a judgment as a matter of law before the trial court submitted the
case to the jury, she could not make such a motion after the verdict.
Noguero did not reply. The trial court denied the motion. Noguero timely
appealed.

                               DISCUSSION

              1. Evidentiary Ruling Before Trial

¶15            Noguero argues that the trial court made several erroneous
evidentiary rulings throughout the litigation. The trial court has
considerable discretion in ruling on the admission of evidence, Brown v.
U.S. Fidelity and Guar. Co., 194 Ariz. 85, 90 ¶ 25, 977 P.2d 807, 812 (App.
1998), and absent an abuse of that discretion and resulting prejudice, we
will not disturb the trial court’s ruling, Jaynes v. McConnell, 238 Ariz. 211,
216 ¶ 15, 358 P.3d 632, 637 (App. 2015). An abuse of discretion is “an
exercise of discretion which is manifestly unreasonable, exercised on
untenable grounds or for untenable reasons.” State v. Woody, 173 Ariz. 561,
563, 845 P.2d 487, 489 (App. 1992). The trial court did not abuse its discretion
in any of its evidentiary rulings.

¶16           Noguero first argues that the trial court abused its discretion
by granting American Family’s motion to preclude her neighbor from
testifying about the condition of Noguero’s home before and after the storm
and about the efforts Noguero took to try to save her business. Noguero


1       Pursuant to the language of Arizona Rule of Civil Procedure 50, we
refer to this motion as a “judgment as a matter of law.”


                                       6
                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court

argues that although she disclosed her neighbor two months after the
November 21, 2013, non-expert disclosure deadline, the trial court might
have permitted the neighbor to testify if American Family had not “lied in
wait” to object until roughly one week before the October 2014 trial. The
trial court did not abuse its discretion.

¶17            As relevant here, Arizona Rule of Civil Procedure 26.1(a)
requires that a party seeking to use information at trial seek leave of court
to extend the time for disclosure as provided in Rule 37(c)(2) if that party
disclosed the information after the deadline set in a scheduling order or, in
the absence of such a deadline, 60 days before trial. Rule 37(c)(2) precludes
the use of untimely disclosed information unless the trial court finds that
the party’s failure to timely disclose the information was harmless or for
good cause, and that the disclosing party disclosed the information as soon
as practicable after its discovery. In determining whether good cause exists
for untimely disclosures, the trial court may consider a number of factors
including (1) the willfulness or inadvertence of the party’s conduct,
(2) prejudice to either side that may result from excluding or allowing the
evidence, (3) opposing counsel’s action or inaction in attempting to resolve
the dispute, and (4) the overall diligence with which the case has been
litigated. Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258
(1995).

¶18            Here, the trial court did not abuse its wide discretion over
discovery matters in precluding Noguero’s neighbor from testifying
because Noguero did not timely disclose her. The trial court issued a
scheduling order that set a September 10, 2013, non-expert disclosure
deadline. Noguero did not disclose her neighbor as a witness until two
months later. Despite the untimely disclosure, Noguero did not seek leave
of court to extend the time for disclosure as required to use her neighbor’s
testimony during trial. Further, Noguero failed to establish that good cause
existed for the untimely disclosure. See Zimmerman v. Shakman, 204 Ariz.
231, 236 ¶ 16, 62 P.3d 976, 981 (App. 2003) (stating that the trial court
possesses considerable latitude in determining whether a party has shown
good cause for a late disclosure and concluding that when no good cause
exists, “barring the introduction of evidence not previously disclosed may
be a reasonable sanction”). Finally, the trial court’s exclusion of the
neighbor’s testimony did not prejudice Noguero because Noguero herself
testified on the matters relating to the condition of her home and the efforts
she took in trying to keep her business. Thus, the trial court did not abuse
its discretion in precluding Noguero’s neighbor from testifying.




                                      7
                    NOGUERO v. AMERICAN FAMILY
                        Decision of the Court

              2. Evidentiary Rulings During Trial

¶19            Noguero also argues that the trial court made numerous
erroneous evidentiary rulings during trial. First, Noguero argues that the
trial court abused its discretion by admitting photographs of her home
during the construction expert’s testimony because the expert neither took
the photos nor visited Noguero’s home. To be admissible, photographs
must be a reasonable and faithful representation of the object depicted and
must assist the jury in understanding the testimony. Lohmeier v. Hammer,
214 Ariz. 57, 61 ¶ 8, 148 P.3d 101, 105 (App. 2006). But the person who took
the photographs need not be the one to verify the photographs at trial, nor
does the verifying witness need to have been present when the photographs
were taken as long as the witness can attest that the photographs accurately
portray the scene depicted. Id. Additionally, Arizona Rule of Evidence 703
permits expert witnesses to base their opinions on facts or data the expert
was made aware of, and further allows the disclosure of those facts or data
to the jury if the probative value in helping the jury evaluate the expert’s
opinion substantially outweighs its prejudicial effect. This rule permits the
admissibility of otherwise non-admissible evidence for the “limited
purpose of disclosing the basis for the opinion.” Ariz. R. Evid. 703 cmt.

¶20          The trial court did not abuse its discretion by admitting the
photographs here because the construction expert provided sufficient
foundation and he relied on them in forming his opinion. Although the
expert did not take the photographs and was not present when the
photographs were taken, the expert nonetheless provided enough
information from which the jury could reasonably conclude that the
photographs were authentic. He testified that he sent his assistant to
Noguero’s house to conduct the inspection with instructions to assess the
interior and exterior of the house and document his findings with
photographs. The construction expert also testified that he worked with the
same assistant in reviewing the photographs and preparing the subsequent
report based on those photographs. From this testimony, and the lack of
any challenge to their authenticity, a jury could reasonably conclude that
the photographs were authentic. See Ariz. R. Evid. 901(a) (providing that
the required authenticating of evidence is satisfied if the proponent
produces sufficient evidence to support a finding that the item is what the
proponent claims it is); see also State v. King, 226 Ariz. 253, 257 ¶ 9, 245 P.3d
938, 942 (App. 2011). Thus, sufficient foundation supported the admission
of the photographs.

¶21          The photographs are also admissible under Rule 703 because
the construction expert testified that he relied on the photographs in


                                       8
                    NOGUERO v. AMERICAN FAMILY
                        Decision of the Court

reaching his opinion. In fact, the photographs, although admitted as their
own exhibit, were originally part of the construction expert’s written report.
The trial court informed the jury that it admitted the photographs solely
because the construction expert relied on them in rendering his opinion.
This clarification sufficiently instructed the jury of the limited purpose of
the photographs’ disclosure pursuant to Rule 703. See State v. Baltzell, 175
Ariz. 437, 441, 857 P.2d 1291, 1295 (App. 1992) (affirming the trial court’s
admission of photographs “as demonstrating and explaining the basis of
the investigator’s opinion”). Accordingly, the trial court did not abuse its
discretion.

¶22            Second, Noguero argues that the trial court erred by allowing
the hygienist and the manager to testify about ultimate causation issues
even though they were not expert witnesses, and that their testimony was
therefore duplicative in violation of Arizona Rule of Civil Procedure
26(4)(D). Lay witnesses may give an opinion, even to the ultimate issue,
when the opinion is rationally based on the witness’ perception and is
helpful to clearly understanding the witness’ testimony or to determine a
fact in issue. Ariz. R. Evid. 701. Here, the hygienist testified that, rationally
based on his perception, he believed that the staining on Noguero’s wall
was consistent with leaks from the corners of her windows. He did not
testify that the water damage to Noguero’s house was caused only by
window leaks. He also did not testify about how much water could have
come in through those leaks or to what extent, if any, the water that stained
the walls damaged the house. See Rimondi v. Briggs, 124 Ariz. 561, 564, 606
P.2d 412, 415 (1980) (concluding that the witness did not provide expert
testimony because he related his observations but did not testify on what
actually caused the accident). To the extent that the hygienist attempted to
or began to give an opinion, the trial court interrupted the testimony and
precluded the hygienist from making them. Thus, the hygienist’s testimony
did not constitute expert testimony for which special foundation was
required.

¶23           Similarly, the trial court did not err in allowing the manager’s
testimony. As a claims manager he is responsible for making claims
decisions accepting or denying an insured’s claim. To the extent that the
manager offered an opinion about whether the photographs he relied on
represented damage consistent with what “microburst-type events” may
cause, the trial court sustained Noguero’s objection and held that the
opinion stretched beyond the scope of his testimony. The manager testified
that in making the decision to deny Noguero’s claim after the 2010 storm,
he relied on an inspection report and photographs. He stated that, based on
that information, he reached his own conclusion that Noguero’s home did


                                       9
                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court

not suffer storm damage and accordingly was not covered by the
homeowner’s insurance policy. Noguero did not object to this subsequent
question or response at trial. See Ariz. R. Evid. 103(a)(1) (providing that an
objecting party must timely make the objection and state the specific
grounds for it to preserve the claim for appeal). Because neither the
hygienist’s nor the manager’s testimonies were expert testimonies on the
ultimate causation issue, they did not violate Rule 26(4)(D) against
duplicative expert testimony. Thus, the trial court did not abuse its
discretion.

¶24            Noguero next argues that the trial court erroneously
overruled her objection for lack of foundation, permitting the manager to
testify that he believed American Family reasonably handled her claim. But
the trial court did not abuse its discretion in permitting the testimony. The
manager’s position as a claims manager requires him to oversee the claims
adjusters working under him and to review their files to make sure the
claims are properly addressed. He also takes that into consideration when
approving denial letters sent to insureds. Thus, the trial court did not abuse
its discretion by allowing the manager to testify whether, based on his
review of Noguero’s claim, the claim was reasonably or properly handled.

¶25            Additionally, Noguero argues that the trial court abused its
discretion by finding the juror question regarding reports of storm damage
to her neighbors’ homes irrelevant and not allowing her to answer.
Evidence is relevant if (1) it has a tendency to make a fact more or less
probable than it would be without the evidence and (2) the fact is of
consequence in determining the action. Ariz. R. Evid. 401. The trial court
properly ruled that reports of storm damage to other homes was irrelevant
to whether her home suffered damage and what that damage was. Here,
the issues at trial related to damages that Noguero’s home suffered and if
American Family, as the homeowner’s insurance provider, breached its
contract by failing to cover those damages pursuant to Noguero’s insurance
policy. That Noguero’s neighbors reported roof or window leaks into their
own homes after either storm would not have a tendency to make more or
less probable that Noguero’s house suffered damage or that American
Family failed to properly adjust Noguero’s homeowner’s insurance claim.
Such information would only help show that a storm passed through the
neighborhood—an issue neither party disputes. Similarly, if Noguero’s
neighbors reported roof or window leaks is not of consequence in
determining those matters, and Noguero did not make an offer of proof
claiming otherwise. Even if the testimony would have been relevant, it
nevertheless would have been inadmissible because Noguero lacked
foundation to testify about the extent and cause of damage to her neighbor’s


                                     10
                   NOGUERO v. AMERICAN FAMILY
                       Decision of the Court

homes. See John Munic Ents., Inc. v. Laos, 235 Ariz. 12, 17 ¶ 13, 326 P.3d 279,
284 (App. 2014). Thus, the trial court did not abuse its discretion.

¶26            Last, Noguero argues that the trial court erred by sustaining
American Family’s hearsay objection to the admission of Noguero’s
residential lease agreements entered into after she moved out of her home.
Hearsay is inadmissible at trial unless it meets an enumerated exception.
Ariz. R. Evid. 803–804. Evidence constitutes inadmissible hearsay if it is an
assertion that the declarant does not make while testifying at the current
trial and is offered to prove the truth of the matter asserted. Ariz. R. Evid.
801(a), (c). Here, Noguero attempted to admit the residential lease
agreements to prove the amount she paid in rent at the apartment complex
and house she rented after moving out of her home. She specifically stated
that she wanted to introduce the leases to show her incurred additional
living expenses that she believed American Family should have, but did
not, cover. Noguero did not, however, lay any more foundation for the
leases’ admissibility and did not argue that they otherwise fell under one of
the hearsay exceptions. Thus, the trial court did not abuse its discretion by
sustaining American Family’s objection and refusing to admit them.

              3. Motion for Judgment as a Matter of Law

¶27            Noguero argues finally that the trial court erred by not
treating her motion for judgment as a matter of law as a motion for a new
trial and by denying it. Unlike the evidentiary matters above, we review the
trial court’s denial of a motion for judgment as a matter of law de novo.
Goodman v. Physical Resource Eng’g., Inc., 229 Ariz. 25, 27 ¶ 6, 270 P.3d 852,
854 (App. 2011). We will uphold a trial court’s ruling unless the facts
produced to support the claim or defense have so little probative value,
given the quantum of evidence required, that reasonable people could not
agree with the conclusion advanced by the proponent. Id. at 28 ¶ 6, 270 P.3d
at 855. But because Noguero failed to make a pre-judgment motion for
judgment as a matter of law and failed to otherwise preserve her arguments
on the sufficiency of the evidence in an alternative motion for a new trial,
the trial court did not err in denying Noguero’s motion.

¶28           After a party in a jury trial has been fully heard on an issue
and “there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue,” Arizona Rule of Civil Procedure 50(a)
permits the opposing party to move for, and the trial court to grant, a
motion for judgment as a matter of law. The moving party may make such
a motion at any time before submission of the case to the jury and must
specify the judgment sought and the law and facts on which the moving


                                      11
                    NOGUERO v. AMERICAN FAMILY
                        Decision of the Court

party is entitled to judgment. Ariz. R. Civ. P. 50(a)(2). If the trial court denies
the moving party’s motion for judgment and submits the action to the jury,
Rule 50(b) allows the moving party to renew its motion within 15 days of
the judgment. The moving party may join a motion for new trial pursuant
to Arizona Rule of Civil Procedure 59 with the renewal of the motion for
judgment, or a new trial may be requested in the alternative. Ariz. R. Civ.
P. 50(b).

¶29            Here, Noguero did not move for a judgment as a matter of
law before the case was submitted to the jury. Because she did not do so,
she has waived any argument that she was entitled to judgment as a matter
of law on the issues of breach of contract and covenant of good faith and
fair dealing. See Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 27,
945 P.2d 317, 338 (App. 1996) (“Our case law treats a motion for directed
verdict at the close of all the evidence as a pre-requisite to a later motion for
[judgment as a matter of law].”); see also Dawson v. Withycombe, 216 Ariz. 84,
99 ¶ 38 n.10, 163 P.3d 1034, 1049 n.10 (App. 2007) (stating that the appellants
could not raise a sufficiency of the evidence argument for the first time in a
post-judgment motion for judgment as a matter of law because they did not
file a pre-judgment motion for judgment). Failing to move for a judgment
as a matter of law before submitting the case to the jury, Noguero was
limited to making her arguments on the sufficiency of the evidence in a
motion for new trial, which she did not do. See Dawson, 216 Ariz. at 99 ¶ 38
n.10, 163 P.3d at 1049 n.10 (“Thus . . . the appellants were limited to making
a motion for new trial under Rule 59(a).”).

¶30            Noguero counters that although she titled her motion as one
for “Judgment Notwithstanding the Verdict,” the motion substantively
showed that it was one for a new trial under Rule 59(a) and the trial court
should have therefore treated it as such. Although Noguero did cite to Rule
59(a) in her motion and not Rule 50, the remainder of her motion
substantively shows that she intended it as a motion for judgment as a
matter of law. In the opening of her motion, Noguero states that she seeks
a judgment notwithstanding the verdict and cites to standards of law for a
motion for judgment notwithstanding the verdict. Additionally, Noguero’s
prayer for relief specifically requested that the trial court “set aside the jury
verdict” and that the court “grant this motion and direct a verdict for the
Plaintiff’s breach of contract and breach of the covenant of good faith and
fair dealing.” Noguero also specifically asked that the trial court “grant a
new trial for damages only.” Additionally, although American Family
argued in its response to Noguero’s motion that the motion was
procedurally deficient, Noguero did not reply or otherwise raise the



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                  NOGUERO v. AMERICAN FAMILY
                      Decision of the Court

argument that she intended her motion to be one for a new trial. Thus, the
trial court did not err.

             4. Attorneys’ Fees

¶31           Noguero requests attorneys’ fees and costs pursuant to A.R.S.
§§ 12–341 and 341.01. American Family requests attorneys’ fees pursuant to
A.R.S. § 12–341.01. We deny both requests for fees, but award American
Family its costs pursuant to A.R.S. § 12–342.

                              CONCLUSION

¶32          For the foregoing reasons, we affirm.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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