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American Power Products, Inc. v. CSK Auto, Inc.

Court of Appeals of Arizona, First Division

August 5, 2014

AMERICAN POWER PRODUCTS, INC., a California corporation; LFMG/APP, LLC, an Arizona corporation, Plaintiffs/Counterdefendants/Appellants/Cross-Appellees,
CSK AUTO, INC., an Arizona corporation, Defendant/Counterclaimant/Appellee/Cross-Appellant.

Appeal from the Superior Court in Maricopa County No. CV2005-019594 The Honorable George H. Foster, Jr., Judge

Hymson Goldstein & Pantiliat, PLLC, Scottsdale By David B. Goldstein Co-Counsel for Plaintiffs/Counterdefendants/Appellants/Cross-Appellees

Dodell Law Corporation, Woodland Hills, CA By Herbert Dodell Co-Counsel for Plaintiffs/Counterdefendants/Appellants/Cross-Appellees

Polsinelli PC, Phoenix By Leon B. Silver, Nathan J. Kunz, Andrew S. Jacob Counsel for Defendant/Counterclaimant/Appellee/Cross-Appellant

Presiding Judge Patricia K. Norris delivered the opinion of the Court, in which Judge Samuel A. Thumma joined. Judge Kent E. Cattani dissented.


Presiding Judge Patricia K. Norris

¶1 The dispositive issue in this appeal is whether the superior court should have denied Appellant American Power Products, Inc.'s motion for a new trial without first holding an evidentiary hearing to determine whether an ex parte communication between the bailiff and the jury was improper and prejudicial. Because the court did not have the necessary facts to decide the effect of the communication on the jury, it should not have ruled on American's motion without first holding such a hearing. Accordingly, we remand for further proceedings consistent with this opinion.


¶2 In 2003, American and CSK Auto, Inc. entered into a contract under which American agreed to sell electric scooters and other items to CSK on an open account. In December 2005, American sued CSK for, inter alia, breach of contract and negligent misrepresentation. American sought more than $5, 000, 000 in damages. CSK answered, asserted various affirmative defenses and counterclaims, and sought, inter alia, damages in excess of $950, 000. During trial, the parties made a number of concessions regarding the status of the open account and stipulated that the "starting point" for the jury's computation of damages would be $10, 733 in favor of American.

¶3 During 12 trial days over three weeks, the parties introduced 164 exhibits into evidence (one of which was 4, 000 pages long) and 24 witnesses testified. Trial scheduling was apparently an issue. During voir dire and again midway through trial, the superior court informed the jury the trial would be completed "October 6th, perhaps the 10th." On the seventh day of trial, a juror asked the court, "By taking off Thursday Sept. 29th - will this cause the trial to run past the original completion date?" In response, the court advised the jury it had "[told] counsel they need to get this case in on time. . . . The 6th is a Thursday and we [will] let you deliberate on Friday." The court instructed the jury on Friday morning starting at 10:25 a.m. Counsel then presented closing arguments, working through the noon hour and recessing for lunch at 1:43 p.m. After apparently deliberating between one and two hours on a Friday afternoon before a three-day weekend, the jury returned a 6-2 verdict at 4:13 p.m. in favor of American. The jury awarded American $10, 733.

¶4 After the verdict, American hired a private investigator to interview several jurors. The investigator spoke with at least three of the jurors and obtained affidavits from two. As relevant here, Juror H.T.'s affidavit stated that "[at] one point the bailiff . . . came into the room. Someone asked her how long deliberations typically lasted. She told us an hour or two should be plenty." Both affidavits stated that the deliberations were not fair, most of the jurors refused to consider the evidence and just wanted to go home, and other jurors felt pressured to go along.

¶5 American moved for a new trial. Relying in part on the affidavits, it argued that at a minimum it was entitled to an evidentiary hearing for "further inquiry [into] whether deliberations were improperly curtailed [by] . . . the bailiff's statement that one or two hours of deliberations were enough." CSK did not dispute the bailiff had communicated with the jury or the content of the communication as reported in H.T.'s affidavit. After briefing and oral argument, the court denied the motion without holding an evidentiary hearing.


¶6 On appeal, American argues the superior court abused its discretion in denying its motion for a new trial without first holding an evidentiary hearing. For the following reasons, we agree.

I. Consideration of the Juror Affidavits

¶7 As a preliminary matter, we must determine whether and to what extent the superior court was entitled to consider the juror affidavits. See Kirby v. Rosell, 133 Ariz. 42, 46-47, 648 P.2d 1948, 1052-53 (App. 1982); Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1536 (4th Cir. 1986). Arizona Rule of Evidence 606(b)(1)[1] bars a juror, during an inquiry into the validity of a civil verdict, from testifying about "any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment." As relevant here, however, a juror may testify about whether "extraneous prejudicial information was improperly brought to the jury's attention." Ariz. R. Evid. 606(b)(2)(A).

¶8 Under Rule 606(b)(2)(A), the portion of H.T.'s affidavit describing the bailiff communication was admissible because it concerned extraneous information that could have prejudiced the jury. See Perez ex rel. Perez v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 356, 929 P.2d 1303, 1304 (1997) (superior court considered juror affidavits detailing communication with bailiff); accord State v. Pearson, 98 Ariz. 133, 136, 402 P.2d 557, 559-60 (1965) (under common law of evidence, juror affidavits could be considered to show "misconduct of a party or a court officer" (citations omitted)). But, as CSK argues, neither H.T. nor the other jurors could testify about discussions between the jurors during deliberations, the effect of those discussions on other jurors, and the jurors' mental processes. Thus, those portions of the affidavits were inadmissible under Rule 606(b). When a juror affidavit contains both admissible and inadmissible statements, a court may properly consider only those portions that are admissible under the exceptions set forth in Rule 606(b)(2). See Kirby, 133 Ariz. at 46, 648 P.2d at 1052. Accordingly, the only juror statement the superior court could properly consider -- and that we may consider on appeal -- is H.T.'s statement regarding the bailiff communication.

II. Bailiff Communication

¶9 In Perez, the Arizona Supreme Court discussed the proper test a court should apply when determining whether a bailiff's ex parte communications with the jury warrant a new trial. Rejecting "a strict rule of presumed prejudice in cases involving such communications, " the court recognized that each situation should be examined on a case-by-case basis, using a two-prong inquiry asking, first, whether there was an improper communication and, second, whether the communication was prejudicial. 187 Ariz. at 356, 929 P.2d at 1304. To address these questions, the supreme court identified several factors a court should consider, including "(1) whether the communication was improper or simply involved an 'administrative detail, ' (2) whether the communication, despite its impropriety, concerned an innocuous matter, (3) whether the substantive response accurately answered the question posed, (4) whether an essential right was violated, and (5) whether the nature of the communication prevents ascertainment of prejudice." Id. (citing Perkins v. Komarnyckyj, 172 Ariz. 115, 834 P.2d 1260 (1992)).

¶10 A superior court may, in the exercise of its discretion, hold an evidentiary hearing to determine whether the bailiff engaged in a prejudicial ex parte communication with the jury before ruling on a new trial motion raising this issue. Cf. Brooks v. Zahn, 170 Ariz. 545, 552-53, 826 P.2d 1171, 1178-79 (App. 1991) ("[T]he trial court may, in the exercise of its discretion, conduct an evidentiary hearing to determine whether the jury considered extraneous prejudicial information during deliberations." (citing Kirby, 133 Ariz. at 46, 648 P.2d at 1052; Foster v. Camelback Mgmt. Co., 132 Ariz. 462, 463-64, 646 P.2d 893, 894-95 (App. 1982))). A court, however, will abuse its discretion in denying such a motion without first holding an evidentiary hearing when it does not have the facts necessary for it to determine whether a bailiffs communication with the jury was improper and prejudicial. See Perez, 187 Ariz. at 357 n.3, 929 P.2d at 1305 n.3 (superior court abused discretion in limiting evidentiary hearing to exclude facts necessary to determining prejudice); State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788, 790 (1994) (superior court abused discretion by refusing to conduct evidentiary hearing after learning one juror received note from alternate regarding alternate's belief about ...

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