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Soto v. Sacco

Court of Appeals of Arizona, First Division

May 19, 2016

MICHAEL SOTO, et al., Plaintiffs/Appellants,
v.
ANTHONY M. SACCO, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV 2013-011046 The Honorable Michael D. Gordon, Judge

          Law Office of James Michael Abernethy, PLLC, Phoenix By James Michael Abernethy Counsel for Plaintiffs/Appellants

          Jones Skelton & Hochuli, PLC, Phoenix By Edward G. Hochuli, Whitney M. Harvey, Justin M. Ackerman Counsel for Defendants/Appellees

          Judge Margaret H. Downie delivered the opinion of the Court, in which Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.

          OPINION

          DOWNIE, Judge:

         ¶1 Michael Soto and Julie Kunstler Soto appeal from an order granting a new trial that became effective after Michael rejected a remittitur of damages awarded by a jury.[1] We hold that the Sotos' appeal is timely and affirm the new trial order.

         FACTS AND PROCEDURAL HISTORY

         ¶2 The Sotos were passengers in a cab driven by Anthony Sacco when it collided with another vehicle. The Sotos sued Sacco, Discount Enterprises Inc., and Total Transit, Inc. d/b/a Discount Cab (collectively, "Defendants"). Defendants admitted Sacco's negligence and respondeat superior liability. A jury trial ensued solely on the issue of damages.

         ¶3 Trial evidence established that Michael sustained multiple fractures to the humerus of his dominant arm that required surgery to implant a plate and screws. Witnesses testified that Michael no longer enjoyed certain activities he participated in before the accident, and he experienced significant pain and emotional distress as a result of the accident. However, Michael's treating physician testified that the fractures healed during four months of physical therapy, and he placed no restrictions on Michael or his activities. The physician recommended that Michael use his arm normally, with the understanding it may never be "100 percent strong, " and he suggested Michael refrain from an activity only if it became "very uncomfortable." Michael made no claim for lost wages or future medical expenses. His medical bills totaled approximately $40, 500.

         ¶4 During closing arguments, counsel for the Sotos asked the jury to award Michael $725, 000. Defendants suggested an award of $90, 000. The jury awarded Michael $700, 000.

         ¶5 Defendants filed a "Motion for New Trial, to Alter or Amend the Judgment, and for Remittitur." After briefing and oral argument, the trial court granted a remittitur, reducing Michael's award to $250, 000 in an unsigned minute entry filed November 19, 2014. The court directed the Sotos to "file a notice as to whether or not they accept the reduced verdict" by November 25, 2014.

         ¶6 On November 24, 2014, the Sotos filed a "Notice of Plaintiffs' Rejection to Court's Remittitur." Based on that submission, the court set a scheduling conference for February, but stated it would vacate the hearing "upon either party's perfection of an appeal." The Sotos thereafter filed a "Request for Expedited Order to Perfect Appeal, " stating:

It appears that Rule 59(i) was meant to be essentially self-executing and Plaintiffs['] rejection would trigger the appellate time. ("No further written order shall be required to make an order granting or denying the new trial final.") However, that appears to presume that this Court had issued a signed "final Order" which was then filed with the Clerk. To Plaintiffs['] knowledge, this has not yet been done. Thus, in order to comply with the procedural requirements that there be a signed, final Order filed with the Clerk, Plaintiffs have attached a Proposed Order as Exhibit A hereto which mirrors this Court's minute entry rulings and Plaintiffs would ask that this Court sign such Order expeditiously so that they may pursue their appellate rights.

         ¶7 During a December 16 hearing, the court and counsel discussed the Sotos' request for a signed order. On December 17, the court filed a signed "Final ...


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