Opinion
1 CA-CV 12-0472
06-11-2013
RICHARD LEE JOHNSON, Plaintiff/Appellant, v. DISCOUNT ENTERPRISES, INC., an Arizona corporation; and MOHAMED HUSSEIN, Defendants/Appellees.
Law Office of Robert N. Edwards by Robert N. Edwards Attorneys for Appellant Elardo Bragg Appel & Rossi, PC by John A. Elardo Venessa J. Bragg Attorneys for Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-017914
The Honorable Mark H. Brain, Judge
AFFIRMED
Law Office of Robert N. Edwards
by Robert N. Edwards
Attorneys for Appellant
Anoka, MN Elardo Bragg Appel & Rossi, PC
by John A. Elardo
Venessa J. Bragg
Attorneys for Appellees
Phoenix PORTLEY, Judge ¶1 Richard Johnson appeals from a jury verdict on his claims against Discount Enterprises, Inc., and Mohamed Hussein (collectively, "Discount"), claiming that the trial court erred by excluding certain evidence at trial and by denying his request for attorneys' fees as a sanction. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 While driving a Discount taxicab at Sky Harbor airport, Hussein struck and injured Johnson, a pedestrian. In his complaint, Johnson alleged that Hussein was negligent, and Discount was Hussein's employer and vicariously liable for his actions. ¶3 Discount asserted Hussein was an independent contractor and, therefore, it was not vicariously liable. Through a public records request, Johnson obtained a copy of Discount's contract with the City of Phoenix, in which Discount agreed to accept responsibility for the conduct of its taxicab drivers at Sky Harbor regardless of whether the driver was a Discount employee or an independent contractor. Johnson then asked the court to sanction Discount pursuant to Arizona Rule of Civil Procedure ("Rule") 37 for failing to disclose the contract and award Johnson attorneys' fees he incurred litigating the vicarious liability issue. The court granted the motion in part, prohibited Discount from presenting evidence or arguing that Hussein was an independent contractor, but did not award Johnson attorneys' fees. ¶4 One of the main issues in dispute was whether Johnson was in a crosswalk at the time of the collision. Discount's intended trial exhibits included two documents that had not previously been disclosed. The first, entitled "Incident Report" stated that the taxi "collided with pedestrian in cross walk." The second document, entitled "Narrative," summarized the investigation conducted on the day of the collision, stating that "Drive Cam footage clearly shows the driver [] at fault" and indicated the driver failed to see Johnson "step from the curb to cross in a designated crossing." ¶5 Johnson asked the court to allow him to introduce the documents at trial as a sanction for Discount's failure to timely disclose them. Among other arguments, Discount argued the documents were hearsay and lacked foundation. The court ordered Discount to make the investigator available for a deposition concerning the circumstances under which the documents were prepared, and the deposition was completed prior to the start of trial. ¶6 At trial, Discount sought to exclude the Incident Report and Narrative on various grounds. Although Johnson maintained the two documents were non-hearsay admissions of a party-opponent, the court excluded both on hearsay grounds. ¶7 After the presentation of the evidence, including the Drive Cam footage, the jury returned an $80,000 verdict in favor of Johnson, but found he was ninety-five percent at fault. After apportioning fault and deducting sanctions awarded to Discount pursuant to Rule 68, the court entered judgment for Johnson in the amount of $1,536.71. ¶8 Johnson moved for a new trial on the grounds that the court had erroneously and prejudicially excluded the two documents because they constituted non-hearsay party admissions. After the motion was denied, Johnson filed this appeal.
DISCUSSION
A. Exclusion of the Incident Report and Narrative
¶9 Johnson first challenges the exclusion of the Incident Report and Narrative, asserting the ruling created prejudicial error that required the trial court to grant him a new trial. "Generally, we will affirm a trial court's admission or exclusion of evidence absent a clear abuse of discretion or legal error and resulting prejudice." Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399, ¶ 10, 10 P.3d 1181, 1186 (App. 2000). We also review the denial of a motion for new trial for an abuse of discretion. Nelson v. Phoenix Report Corp., 181 Ariz. 188, 191, 888 P.2d 1375, 1378 (App. 1994).
1. Non-Hearsay Opposing Party's Statement ¶10 Johnson contends that the trial court erred in excluding the Incident Report and Narrative on hearsay grounds because they were made by an opposing party's authorized agent and, accordingly, were not hearsay. See Ariz. R. Evid. 801(d)(2)(D). This court discussed the admissibility of evidence pursuant to a substantially identical version of Rule 801(d)(2)(D) in Shuck v. Texaco Refining & Marketing, Inc., 178 Ariz. 295, 872 P.2d 1247 (App. 1994). There, Darlene Shuck slipped and fell at a Texaco gas station in an oil puddle covered with a blue paper towel. Id. at 296, 872 P.2d at 1248. The trial court precluded her husband from testifying that he returned to the gas station later that night and spoke with someone whom he understood to be in charge at the station who said the paper towels were on the oil spill because the station was out of the appropriate substance to absorb the oil. Id. at 297-98, 872 P.2d at 1249-50. ¶11 On appeal, we found that the trial court abused its discretion in precluding the husband's proposed testimony about the conversation, which was admissible under Rule 801(d)(2)(D) because it was made by Texaco's agent or servant, during the existence of the relationship, and concerned a matter within his employment. Id. at 298-99, 872 P.2d at 1250-51. In addition, we wrote a declarant need not "have personal knowledge of the matter asserted in the statement" for it to be admissible as an admission by a party-opponent under Rule 801(d)(1)(D). Id. at 299, 872 P.2d at 1251. ¶12 In this case, the investigator testified at his deposition that he was employed by Discount as a road supervisor/accident investigator at the time of the collision and created the Narrative as part of his job responsibilities. Accordingly, the Narrative satisfies the requirements of Rule 801(d)(2)(D) and was admissible as an admission by a party-opponent. ¶13 As to the Incident Report, there is no indication in the record that the investigator prepared that document. Accordingly, we find that the trial court did not err by excluding the Incident Report. See Ariz. R. Evid. 901(a).
Discount attempts to distinguish Shuck because the statement in that case was made orally, while the statements in this case were in writing. Rule 801(d)(1)(D) does not make such distinctions, and neither will we.
We reject Discount's suggestion that Rule 801(d)(2)(D) required Johnson to establish that Discount adopted or believed the investigator's conclusions.
--------
2. Prejudice ¶14 Discount argues that even if the trial court erred by excluding the Narrative, the ruling was not prejudicial to Johnson because there was no reasonable probability that the verdict might have been different if the document had been admitted. Town of Paradise Valley v. Laughlin, 174 Ariz. 484, 487, 851 P.2d 109, 112 (App. 1992) ("[A]n error is harmless if there is no reasonable probability the verdict might have been different."). ¶15 The investigator testified in his deposition that the information in the Narrative, including his statements that Johnson was in a "designated crossing" and that Hussein was at fault, was derived from his review of the Drive Cam video. The video was admitted as an exhibit at trial and played for the jury. The jury was able to review the video and draw its own conclusions concerning whether Johnson was in a crosswalk and whether Hussein was at fault; as it did. Thus, even though the Narrative was admissible, it would have been cumulative to the other trial evidence and would not have added any additional information, aided the jury or changed its verdict. DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768 (1979) (stating "[t]he exclusion of cumulative evidence does not necessarily require reversal by an appellate court"); see also Ariz. R. Evid. 403. ¶16 Moreover, Johnson has not provided a complete trial transcript. Without the complete transcript, we are unable to evaluate all of the evidence and therefore cannot say the jury would have reached a different result if the Narrative had been admitted. Laughlin, 174 Ariz. at 487, 851 P.2d at 112 (stating appellate court will not presume prejudice, but it "must be evident from the record"); Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) ("A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal."); see also ARCAP 11(b). Consequently, the exclusion of the Narrative did not constitute reversible error warranting a new trial.
B. Sanctions
¶17 Johnson next argues the trial court abused its discretion by refusing to award him attorneys' fees incurred in litigating the vicarious liability issue after Discount failed to disclose its contract with the City of Phoenix. We review the ruling on discovery violations and sanctions for an abuse of discretion. Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9, 227 P.3d 481, 484 (App. 2010). ¶18 Johnson contends Rule 37 required the court to order Discount to reimburse him for the attorneys' fees and expenses he incurred litigating the vicarious liability issue. We disagree. ¶19 The relevant portion of Rule 37(c) provides:
A party or attorney who makes a disclosure pursuant to Rule 26.1 that the party or attorney knew or should have known wasAriz. R. Civ. P. 37(c)(1) (emphasis added). ¶20 Although initially using the word "shall" regarding attorneys' fees, the Rule qualifies that language by allowing the court to impose other appropriate sanctions "in lieu of" fees. Id. The Rule defines appropriate sanctions to include an order refusing to allow the disobedient party from supporting a defense; the very sanction that the court imposed here by prohibiting Discount from arguing at trial that Hussein was an independent contractor for whom it was not vicariously liable. See Ariz. R. Civ. P. 37(b)(2)(B) & (c)(1). Rule 37(c)(1), as a result, did not require the court to also award attorneys' fees to Johnson as a sanction. Discount's failure to disclose its contract with the City was sanctionable, and the court had broad discretion to impose an appropriate sanction. We find no abuse of discretion in the court's sanction order. ¶21 Johnson requests an award of the attorneys' fees on appeal. Because he did not prevail, we deny his request.
inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorney's fees of such investigation or discovery. In addition to or in lieu of these sanctions, the court on motion of a party or on the court's own motion, and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B) and (C) of subdivision (b)(2) of this Rule and may include informing the jury of the failure to make the disclosure.
CONCLUSION
¶22 Based on the foregoing, we affirm the judgment.
______________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: ______________________
SAMUEL A. THUMMA, Judge
______________________
DONN KESSLER, Judge