Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 28, Rules of Civil Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CV201000668 Honorable Ann R. Littrell, Judge.
Borowiec & Borowiec, P.C. By Joel P. Borowiec Sierra Vista Attorneys for Plaintiff/Appellee.
Law Office of Don D. Skypeck By Douglas H. Fitch Phoenix Attorneys for Defendants/Appellants.
VIRGINIA C. KELLY, Presiding Judge
¶1 Lawley Auto Sales, L.L.C.,  appeals from the trial court's denial of its motion for a new trial. It argues the court committed reversible error when instructing the jury on the charge of intentional infliction of emotional distress by "eliminating the requirement that Lawley be aware [appellee June] Burton was particularly susceptible to emotional distress." We affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the trial court's ruling." Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App. 2009). Burton filed a complaint against Lawley alleging breach of contract, breach of covenant of good faith and fair dealing, commercial fraud, conversion, and intentional infliction of emotional distress (IIED). At trial, both parties requested a jury instruction based on Revised Arizona Jury Instruction 17 (RAJI 17) for intentional torts, which describes "extreme and outrageous" conduct in the context of an IIED claim. RAJI 17 provides
"Extreme and outrageous" means conduct that a reasonable member of the community would regard as atrocious and beyond all possible bounds of decency.
A person's conduct is outrageous if:
1. [Defendant] knew that [plaintiff] is particularly susceptible to emotional distress;
2. [Defendant]'s conduct was not privileged or [defendant] had no legitimate business purpose for its conduct; and
3. [Defendant] abused a position or relationship with the [plaintiff] which gave the [defendant] actual or apparent authority over the [plaintiff], such as an attempt to extort money by a threat of arrest. State Bar of Arizona, Revised Arizona Jury Instructions (Civil) Intentional Torts Std. 17 (2005). Burton asked the court to delete the first subsection regarding the plaintiffs susceptibility to emotional distress. Over Lawley's objection, the court allowed the modification and instructed the jury accordingly.
¶3 The jury reached a verdict in Burton's favor, and the court entered judgment against Lawley. Lawley filed a motion for a new trial, arguing the court had erred in modifying RAJI 17 because it "improperly eliminated one of the three essential elements required . . . to establish behavior is extreme and ...