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. The Honorable George H. Foster, Jr., Judge. No. CV2005-019594. Opinion of the Court of Appeals, Division One. 235 Ariz. 509, 334 P.3d 199 (App. 2014) .
Herbert Dodell, Dodell Law Corporation, Woodland Hills, CA; and David B. Goldstein (argued), Hymson Goldstein & Pantiliat, PLLC, Scottsdale, Attorneys for American Power Products Inc. and LFMG/APP LLC.
Leon B. Silver (argued), Andrew S. Jacob, Gordon & Rees LLP, Phoenix, Attorneys for CSK Auto Inc.
JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES TIMMER and BERCH (RETIRED) joined. JUSTICE BRUTINEL, opinion of the Court.
[¶1] During jury deliberations after a lengthy trial, a juror asked the bailiff how long deliberations usually lasted. Without consulting anyone, the bailiff answered, " an hour or two should be plenty." We hold that the trial court did not err by denying the plaintiff's motion for a new trial based on the bailiff's statement without first holding an evidentiary hearing. Although the statement was plainly improper, it was not objectively prejudicial and there was no significant fact question about what occurred.
[¶2] In 2005 American Power Products, Inc. (" American" ) sued CSK Auto, Inc. (" CSK" ) for breach of contract, and CSK counterclaimed. The eventual trial lasted twelve trial days and included twenty-four witnesses and 164 exhibits, one of which was more than 4000 pages long.
[¶3] Closing arguments were heard on a Friday before a three-day weekend. Although American sought more than $5 million in damages, its counsel attempted to simplify the case and focus the jury's attention on a small number of exhibits. For example, at one point he said, " I am not encouraging you to look at every single exhibit, but this is an important one." Later, in rebuttal, he encouraged the jurors to " just look at Exhibit No. 412. Tab two. That's all I want you to look at."
[¶4] Counsel for CSK argued that the jury should award more than $1.6 million on its counterclaims. In the alternative, however, he suggested that the jury might simply reject all the claims and counterclaims and award American the $10,733 that CSK conceded it owed and that the parties had agreed would be the " starting point" for computing damages. After deliberating for one to two hours, the jurors returned a 6-2 verdict awarding American $10,733.
[¶5] Subsequently, American hired a private investigator who obtained affidavits from two jurors about their deliberations. The affidavit from juror H.T. described a communication between the bailiff and the jury that qualified as possible " extraneous prejudicial information" under Arizona Rule of Evidence 606(b)(2). 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."
[¶6] Relying on the affidavits, American moved for a new trial. American argued that, " at a minimum [the affidavits] create a ground for further inquiry whether deliberations were improperly curtailed both by improper jury conduct and the bailiff's statement that one or two hours of deliberations were enough." CSK argued that Evidence Rule 606 precluded admission of all statements in the affidavits except juror H.T.'s description of the communication between the bailiff and the jury. CSK did not dispute that the bailiff communication occurred as alleged. ...