from the Superior Court in Maricopa County No. CV 2013-011046
The Honorable Michael D. Gordon, Judge
Office of James Michael Abernethy, PLLC, Phoenix By James
Michael Abernethy Counsel for Plaintiffs/Appellants
Skelton & Hochuli, PLC, Phoenix By Edward G. Hochuli,
Whitney M. Harvey, Justin M. Ackerman Counsel for
Margaret H. Downie delivered the opinion of the Court, in
which Presiding Judge Andrew W. Gould and Judge John C.
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. We hold that the Sotos' appeal is
timely and affirm the new trial order.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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
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 ...