Court of Appeals of Arizona, Second Division, Department B
July 19, 2013
JUNE BURTON, a single woman, Plaintiff/Appellee,
LAWLEY AUTO SALES, L.L.C., and LAWLEY MOTORS, L.L.C., Arizona limited liability companies, Defendants/Appellants.
Not for Publication Rule 28, Rules of Civil Appellate Procedure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 outrageous." The court denied the motion. This appeal followed.
Record on Appeal
¶4 As a preliminary issue, Burton points out that Lawley has not ordered any transcripts to be prepared as part of the record on appeal. She argues this court "cannot decide this issue without a trial transcript to ascertain the evidence produced at trial supporting the trial court's modification of the jury instruction, and the specificity of [Lawley]'s objection to the modified jury instruction."
¶5 To preserve an objection to a jury instruction for appeal, the objecting party must state the particular grounds for its objection. S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, ¶ 20, 31 P.3d 123, 132 (App. 2001); see also Rule 51(a), Ariz. R. Civ. P. ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."). "'The purpose of this rule is to fully advise the trial court of the basis of a litigant's position so that it may not be led into involuntary error.'" S Dev. Co., 201 Ariz. 10, ¶ 20, 31 P.3d at 132, quoting Edward Greenband Enters. of Ariz. v. Pepper, 112 Ariz. 115, 118, 538 P.2d 389, 392 (1975). The record here is sufficient to demonstrate that Lawley made the particular objection it now raises on appeal. The minute entry from the final day of trial reflects that, before the jury received its final instructions, Lawley objected to Burton's proposed change in one of the IIED instructions. In response, the court found it would "allow the request to amend the Jury instructions and eliminate the factor that the Defendant had any knowledge that the Plaintiff was particularly susceptible to any emotional distress."
¶6 The absence of trial transcripts will not interfere with our assessing the merits of Lawley's argument on appeal. Burton notes correctly that an appellant has the responsibility to order any transcript it deems necessary to resolve its appeal. See Ariz. R. Civ. App. P. 11(b). However, even in the absence of a transcript, this court may review a trial court's factual findings or rulings, but will assume they are supported by the transcript. See Cardinal & Stachel, P.C. v. Curtiss, 225 Ariz. 381, ¶ 5, 238 P.3d 649, 651 (App. 2010). Moreover, both parties here agree there was no evidence in the record to support an instruction that Burton was "particularly susceptible to emotional distress, " and so we need not examine whether the record supports the court's finding to that effect. Rather, Lawley asks us to make a legal determination that any claim of IIED requires proof the defendant was aware of the plaintiff's particular susceptibility to emotional distress.
¶7 "We will not reverse a jury's verdict because of a jury instruction unless the challenged instruction was erroneous and prejudicial to the appellant's rights." Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 8, 119 P.3d 467, 471 (App. 2005). The test is whether the instructions, as a whole, "'adequately set forth the law applicable to the case.'" Lashonda M. v. Dep't of Econ. Sec, 210 Ariz. 77, ¶ 8, 107 P.3d 923, 927 (App. 2005), quoting State v. Rosas-Hernandez, 202 Ariz. 212, ¶ 31, 42 P.3d 1177, 1185 (App. 2002).
¶8The tort of IIED consists of three elements:
 the conduct by the defendant must be "extreme" and "outrageous";  the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and  severe emotional distress must indeed occur as a result of defendant's conduct.
Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); see also Citizen Publ'g Co. v. Miller, 210 Ariz. 513, ¶ 11, 115 P.3d 107, 110 (2005). "[A]s the term 'outrageous conduct' . . . [is] not readily capable of precise legal definition, a case-by-case analysis is required." Lucchesi v. Frederic N. Stimmell, M.D., Ltd, 149 Ariz. 76, 79, 716 P.2d 1013, 1016 (1986). Traditional factors that have been applied to determine whether conduct rises to the level of extreme or outrageous include the position occupied by the defendant and the defendant's knowledge that the plaintiff was particularly susceptible to emotional distress. Id.
¶9 Lawley argues that, by failing to instruct the jury that Burton had to prove Lawley had knowledge Burton was particularly susceptible to emotional distress, the trial court "dramatically broaden[ed] the reach of the tort" of IIED. Lawley concedes it has not found "any legal authority that is directly on point" to support its argument, and we agree with the court's conclusion that the jury properly could conclude Lawley's conduct was outrageous without proof of "particular susceptibility." Arizona case law consistently has relied on Restatement (Second) of Torts § 46 (1965) to assess claims of IIED. E.g., Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 553-54, 905 P.2d 559, 562-63 (App. 1995); Lucchesi, 149 Ariz. at 78-79, 716 P.2d at 1015-16; Citizen Publ'g Co., 210 Ariz. 513, ¶ 11, 115 P.3d at 110. The comments to Restatement § 46 demonstrate that each factor relevant to proving outrageous conduct may provide an independent basis for liability. One comment acknowledges that "the extreme and outrageous character" of conduct "may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress." Restatement § 46 cmt. f. However, another comment describes four scenarios establishing "extreme and outrageous" conduct based instead on the actor's abuse of a position of authority. Restatement § 46 cmt. e. Consistent with the Restatement's approach, Arizona case law indicates that conduct may be found outrageous without regard to the plaintiffs particular susceptibility to emotional distress. E.g., Duke v. Cochise Cnty., 189 Ariz. 35, 36-37, 40, 938 P.2d 84, 85-86, 89 (App. 1996) (acts of escaped inmate who broke into home and shot owner were "unquestionably extreme and outrageous"); Pankratz v. Willis, 155 Ariz. 8, 15, 744 P.2d 1182, 1189 (App. 1987) (unilateral separation of child from parent may constitute extreme and outrageous conduct).
¶10 We also reject Lawley's argument that the modification was improper because a person cannot act intentionally or recklessly without having "some idea of the impact of its actions on the plaintiff." This contention provides no reason an actor could not, for example, "intend to cause emotional distress" in a person who is not particularly susceptible to such distress, or act in a manner that "recklessly disregard[s] the near certainty" his actions would cause emotional distress in a typical person. See Ford, 153 Ariz. at 43, 734 P.2d at 585. The trial court's instruction was legally correct, and Lawley has failed to identify reversible error. See Romero, 211 Ariz. 200, ¶ 8, 119 P.3d 467, 471 (App. 2005).
¶11 For the foregoing reasons, the judgment of the trial court is affirmed.
CONCURRING: PHILIP G. ESPINOSA, Judge, PETER J. ECKERSTROM, Judge