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Duke v. Cochise County

October 31, 1996


APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY. Cause No. 300019. Honorable Matthew W. Borowiec, Judge.

Petition for Review was filed and DENIED by order of the Arizona Supreme Court.

Philip G. Espinosa, Presiding Judge. Concurring: James D. Hathaway, Judge, John Pelander, Judge.

The opinion of the court was delivered by: Espinosa

ESPINOSA, Presiding Judge.

In this appeal, appellants Mary W. Duke and her daughter, Sylvia A. Joy, seek restoration of jury verdicts totaling $3,550,000 awarded against Cochise County, the Cochise County Sheriff's Department, and the Cochise County Board of Supervisors (collectively, the County). Appellants contend that the trial Judge abused his discretion by refusing to recuse himself post-trial, by remitting their verdicts for wrongful death, and by vacating the verdict awarding Duke damages for emotional distress. The County cross-appeals, contending that appellants were not entitled to sanctions against the County pursuant to Ariz. R. Civ. P. 68, 16 A.R.S. For the following reasons, we affirm the remittitur, but reverse the order vacating the award for emotional distress and vacate the imposition of Rule 68 sanctions.


In September 1993, four inmates escaped from the maximum security unit of the Cochise County Jail. One of the escapees, Floyd Thornton, broke into the home of Mary and Dale Duke in Bisbee, Arizona, while the Dukes were away. The Dukes returned around noon and, as Dale Duke opened the door to the house, he was shot in the chest by Thornton and killed. Mary Duke was behind her husband and witnessed the shooting. The inmate took her into the house, tied her up, and held her prisoner for several hours before fleeing. At the time, the Dukes had been married 53 years.

Mary Duke, on behalf of herself and two of her adult children, Sylvia Joy and Daniel Duke, sued the County for wrongful death. She also brought claims for false imprisonment and emotional distress. Prior to trial, all plaintiffs offered to settle for the $2 million limit of the County's liability coverage, but the offer was refused. At trial, the County admitted its own gross negligence and liability for all damages arising from the acts of Thornton. After a trial solely on the issue of damages, the jury returned verdicts awarding Mary Duke $2.3 million for the wrongful death of her husband, $350,000 for emotional distress, and $200,000 for false imprisonment. In addition, it awarded Sylvia Joy $600,000 and Daniel Duke $100,000 for their father's death. The trial court awarded appellants additional costs and fees pursuant to Rule 68(d).

The County filed various post-trial motions, and appellants requested that the trial Judge recuse himself before ruling on them, alleging that public statements by County officials about the large verdicts had "created an environment" in which the court's impartiality would be "questioned." The Judge declined, finding that the statements would have no bearing on his decisions.

The trial court subsequently granted the County's motion for judgment notwithstanding the verdict and vacated the $350,000 verdict for emotional distress, finding that Duke had failed to prove the required legal element of physical injury as a result of witnessing the murder of her husband. The court also ordered a new trial based on the County's claim of excessive damages, conditioned upon appellants' acceptance of remittiturs of $1.15 million for Duke's wrongful death claim and $300,000 for Joy's claim. Appellants accepted the remittiturs, and Duke appealed the judgment n.o.v. vacating the verdict for emotional distress. After the County cross-appealed the award of Rule 68 sanctions against it, Duke and Joy "counter-cross-appealed" the order granting remittitur of their wrongful death verdicts and the denial of their request for recusal.


We first address appellants' contention that the wrongful death awards were not excessive and that the trial court's remittiturs were an abuse of discretion motivated by the Judge's "impartiality." At the outset, the County contends that issue is not properly before us because appellants accepted the trial court's orders of remittitur and did not appeal them, raising the subject only in response to the County's cross-appeal by way of their "counter-cross-appeal." It is well established that appellate courts have jurisdiction only over those matters designated in the notice of appeal or cross-appeal. Flory v. Silvercrest Industries, Inc., 129 Ariz. 574, 633 P.2d 383 (1981); Baker v. Emmerson, 153 Ariz. 4, 734 P.2d 101 (App. 1986). Appellants argue, however, that the remittiturs were properly raised pursuant to Ariz. R. Civ. P. 59(i)(2), 16 A.R.S. The County disagrees, citing Flory and Waqui v. Tanner Bros. Contracting Co., 121 Ariz. 323, 589 P.2d 1355 (App. 1979).

Rule 59(i)(2) provides:

If a statement of acceptance is filed by the party adversely affected by reduction or increase of damages, and the other party thereafter perfects an appeal, the party filing such statement may nevertheless cross-appeal and the perfecting of a cross-appeal shall be deemed to revoke the consent to the decrease or increase in damages.

Appellants argue that the plain language of the rule allows the accepting parties to cross-appeal a remittitur whenever the other party perfects an appeal "of any kind." Those words, however, do not appear in the rule, nor is such a construction ...

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