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In re Estate of Hanscome

Court of Appeals of Arizona, First Division, Department C

October 3, 2013

In the Matter of the Estate of: NOYES W. HANSCOME, Deceased.
v.
EVERGREEN AT FOOTHILLS, L.L.C., a Washington limited liability company dba EVERGREEN FOOTHILLS HEALTH and REHABILITATION CENTER; EVERGREEN HEALTHCARE MANAGEMENT, L.L.C., a Washington limited liability company, Defendants/Appellants. COLLEEN A. HANSCOME, Personal Representative of the ESTATE OF NOYES W. HANSCOME, on behalf of the ESTATE OF NOYES W. HANSCOME, and COLLEEN A. HANSCOME, individually and on behalf of NOYES W. HANSCOME'S statutory beneficiaries pursuant to A.R.S. § 12-612(A), Plaintiff/Appellee,

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV2006-005515 The Honorable Emmet J. Ronan, Judge The Honorable Richard J. Trujillo, Judge (Retired)

Law Office of Donald Smith, PLLC Peoria By Donald H. Smith And Elizabeth J. Farhart Attorneys for Defendants/Appellants

Wilkes & McHugh, PA Phoenix By Melanie L. Bossie And Law Office of Scott E. Boehm, PC Phoenix By Scott E. Boehm Attorneys for Plaintiff/Appellee

MEMORANDUM DECISION

DIANE M. JOHNSEN, PRESIDING JUDGE

¶1 Evergreen at Foothills L.L.C., dba Evergreen Foothills Health and Rehabilitation Center and Evergreen Healthcare Management, L.L.C. (collectively, "Evergreen") appeal the superior court's denial of their motion for new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Noyes Hanscome was undergoing cancer treatment when he was admitted to a hospital after a fall in December 2004.[1] He was transferred to Evergreen Foothills Health and Rehabilitation Center on January 28, 2005. At the time of his admission to Evergreen, he had two Stage II pressure sores. During his stay at the Evergreen facility, the pressure sores merged, worsened to Stage IV, and became infected. On February 28, 2005, Noyes was returned to the hospital. He died on March 9, 2005 from respiratory failure resulting from septicemia caused by the infected pressure sore.

¶3 Colleen A. Hanscome brought a claim alleging elder abuse on behalf of Noyes' estate under the Adult Protective Services Act ("APSA"), Arizona Revised Statutes ("A.R.S.") sections 46-451 to -459 (2013).[2] She also asserted claims, individually and on behalf of the couple's minor child, Chandler, for negligence and wrongful death. After trial, the jury awarded Chandler $1.8 million in compensatory damages, awarded Colleen zero damages, and awarded Noyes's estate $200, 000. The court entered judgment for those amounts, plus costs and attorneys' fees.

¶4 Ruling on Evergreen's motion for a new trial, the superior court found the jury's award to the estate was fair and reasonable, but reduced the award to Chandler from $1.8 million to $500, 000. The court also awarded an additur of $200, 000 to Colleen.[3] The court ordered that it would grant a new trial if the parties did not accept the adjustments. Both sides rejected the court's adjustments and appealed.

¶5 On appeal, we explained that "although remittitur is a device for reducing an excessive verdict to the realm of reason, if the verdict is within the limits of the evidence, the trial court should not reduce the verdict." In re Estate of Hanscome, 227 Ariz. 158, 162, 14, 254 P.3d 397, 401 (App. 2011) (citation omitted). We were unable to determine from the court's comments on the record whether it had applied the proper standard in reviewing the verdict. Id. at 163, ¶ 16, 254 P.3d at 402. We therefore vacated the court's ruling and remanded for reconsideration, under the appropriate standard, of whether the motion for new trial should be granted and, if so, whether that order should be conditioned upon Chandler's rejection of a remittitur. Id.

¶6 On remand, the superior court concluded that in granting Evergreen's motion for new trial, the court had "improperly substituted its personal belief as to the value of the damages sustained by Chandler Hanscome arising out of the wrongful death of his father." It denied the motion for new trial, ruling that the jury had been properly instructed and finding that its award of $1.8 million in damages to Chandler was not unreasonable.

¶7 We have jurisdiction of Evergreen's timely appeal pursuant to A.R.S. § 12-2101(A)(1) and (4) (2013).

DISCUSSION

A. Punitive Damages.

¶8 Although the jury rejected the plaintiffs' request for punitive damages, Evergreen argues that the superior court erred by admitting evidence offered in support of the punitive damages claim and by instructing the jury on punitive damages. It argues that the evidence and the ...


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