Opinion
No. 1 CA-CV 14-0518
11-17-2015
DIAN M. ROUNDS, a married woman, Plaintiff/Appellee, v. ARTHUR JOHN PORTER, a single man, Defendant/Appellant.
COUNSEL Cesta Legal, PLLC, Mesa By Thomas J. Cesta Counsel for Plaintiff/Appellee Arthur John Porter, Fountain Hills Defendant/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2011-013843 and CV2011-095476 (Consolidated)
The Honorable Katherine Cooper, Judge
AFFIRMED
COUNSEL Cesta Legal, PLLC, Mesa
By Thomas J. Cesta
Counsel for Plaintiff/Appellee
Arthur John Porter, Fountain Hills
Defendant/Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined. WINTHROP, Judge:
¶1 Defendant/appellant Arthur John Porter appeals a judgment in favor of plaintiff/appellee Dian M. Rounds and the superior court's denial of his motion for new trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Porter, a dentist, employed Rounds as his office manager. Porter terminated Rounds' employment and she filed this action, alleging Porter sexually harassed her in violation of Arizona law, committed battery, inflicted emotional distress on her, and terminated her employment in breach of their agreement and for an unlawful reason. A jury awarded Rounds $86,000 in compensatory damages and $414,000 in punitive damages. The court denied Porter's motion for new trial, entered a judgment on the verdict, and awarded Rounds her attorneys' fees and costs. Porter timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).
We cite the current version of all applicable statutes unless revisions material to this decision have occurred since the relevant events.
ANALYSIS
¶3 Porter argues the trial court erred by denying his pre-trial motion for summary judgment and motions in limine. He also asserts the court erred in denying his motion for new trial.
I. Motion for Summary Judgment
¶4 Before trial, Porter moved for summary judgment, arguing each of Rounds' claims failed as a matter of law and asserting his alleged improper conduct was insufficiently "severe and pervasive" to constitute sexual harassment or other unlawful conduct. He contends the trial court erred by denying his motion.
¶5 "Generally, the denial of a summary judgment motion is not reviewable on appeal from a final judgment entered after a trial on the merits." John C. Lincoln Hosp. & Health Corp. v. Maricopa Cty. ("Lincoln Hosp."), 208 Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). Porter argues an exception to this rule for a purely legal issue, see id., applies in this case because the facts Rounds alleged, as a matter of law, do not constitute sexual harassment. We disagree. The issues Porter raised in his motion for summary judgment were not purely legal issues as he asked the court to determine Rounds' allegations did not rise to the level of actionable conduct, and the court denied the motion based on the existence of material issues of fact. See id. at 539 n.5, ¶ 19, 96 P.3d at 537 n.5 (explaining a purely legal issue is one that does not require the determination of any predicate facts, namely, the facts are undisputed and immaterial). Accordingly, to preserve this issue for appeal, Porter was required to reassert his argument in a motion for judgment as a matter of law or other post-trial motion. See id. at 539, ¶ 19, 96 P.3d at 537; Ariz. R. Civ. P. 50. He did not do so. We therefore decline to review the trial court's denial of Porter's motion for summary judgment. See Lincoln Hosp., 208 Ariz. at 539, ¶ 19, 96 P.3d at 537.
II. Motions in Limine
¶6 Porter next challenges the trial court's denial of his three motions in limine. We review challenges to the trial court's admission or exclusion of evidence for an abuse of discretion unless the ruling is predicated on a question of law, in which case our review is de novo. See McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 258, ¶ 44, 293 P.3d 520, 534 (App. 2013).
A. Police Weapons Search
¶7 On June 8, 2012, an officer at Arizona Department of Public Safety responded to a call at the Arizona Attorney General's Office regarding inappropriate comments Porter allegedly made to a security officer about bringing weapons into the building. Porter moved in limine to exclude the DPS officer's incident report, arguing it was irrelevant and unfairly prejudicial. Rounds asserted the report was admissible to show Porter was dishonest at an earlier hearing in this case when he denied making the statements. The court reserved a ruling on the motion until trial, noting the report might be admissible to impeach Porter's credibility and it needed to hear the testimony at trial to determine whether, and to what extent, Rounds could examine Porter about the relevant statements.
¶8 At trial, Rounds did not offer the DPS incident report, and it was not admitted in evidence. Nevertheless, Porter maintains the court erred by allowing Rounds to question him about the incident. Because Porter does not cite any specific questions to which he objected at trial, we find the issue waived. See Ariz. R. Evid. 103(a)(1) (requiring that, to claim error in a ruling to admit or exclude evidence, the party must timely objects and states the specific ground, unless it was apparent from the context); Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286-87, ¶ 9, 9 P.3d 314, 317-18 (2000) (stating failure to object to proffered testimony before or while it is given constitutes a waiver). We also reject Porter's argument that the court showed unfair prejudice toward him by allowing this evidence while excluding his evidence regarding Rounds' credibility, as he does not identify a specific portion of the trial transcript where the court excluded such evidence over his objection. See Ariz. R. Evid. 103(a)(2) (requiring that, to claim error in a ruling to exclude evidence, the party must "inform the court of its substance by an offer of proof, unless the substance was apparent from the context").
Similarly, we find no abuse of discretion or unfair prejudice in the court's pretrial ruling regarding the "Greenpeace Memo." After the disclosure deadline, Porter produced a four-year-old memorandum that he claimed supported his defense that he fired Rounds for poor job performance. The trial court granted Rounds' motion in limine to exclude the document, stating Porter could introduce the evidence only if Rounds was able to depose Porter and another witness about the memorandum, at Porter's expense, before trial. Porter did not make himself or the witness available for deposition.
B. Prior Lawsuit
¶9 Porter moved in limine to exclude a complaint filed in a prior lawsuit, Maricopa County Superior Court Case No. CV2003-007614 ("2003 lawsuit"), that alleged he sexually harassed and battered several former employees. Porter argued that, because the allegations were unproven and the claims were settled, it would be unfairly prejudicial to admit the complaint in Rounds' case. In response, Rounds asserted she did not intend to introduce the complaint from the 2003 lawsuit in evidence at trial, but argued she should be allowed to ask Porter about the allegations because they were admissible character evidence. The court denied Porter's motion, ruling the claims in the 2003 lawsuit arose from substantially similar statements and conduct as Rounds alleged and were therefore admissible under Arizona Rule of Evidence ("Rule") 404(b) as evidence of other acts when offered to show motive, knowledge, and absence of mistake or accident. Porter contends the court erred by denying his motion and allowing Rounds to mention the 2003 lawsuit at trial.
Porter refers to additional arguments contained in the underlying motion and reply. General reference to documents filed in the trial court is not sufficient to advance an argument on appeal and we will not search those documents to find ancillary arguments Porter has not briefed. See Childress Buick Co. v. O'Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (stating issues not clearly presented in appellate briefs are deemed waived); MT Builders L.L.C. v. Fisher Roofing Inc., 219 Ariz. 297, 304 n.7, ¶ 19, 197 P.3d 758, 765 n.7 (App. 2008) (finding argument raised below but presented on appeal in a one-sentence footnote without any analysis is deemed waived).
¶10 The superior court correctly ruled the evidence was admissible pursuant to Rule 404(b). Rule 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to show a party acted in conformity therewith on a particular occasion, but may be admissible to prove (among other things) knowledge or absence of mistake or accident. Evidence of other crimes, wrongs, or acts is admissible if:
(1) the evidence is related to a material fact,Lee v. Hodge, 180 Ariz. 97, 100, 882 P.2d 408, 411 (1994).
(2) the evidence tends to make the existence of a material fact more or less probable than without the evidence,
(3) the material fact that is more or less probable is something other than a party's character and the person's propensity to act in accordance with that character, and
(4) the probative value of the evidence substantially outweighs the danger of unfair prejudice.
¶11 The plaintiffs in the 2003 lawsuit, former employees of Porter's dental office, alleged Porter repeatedly made unwanted and offensive sexual comments to them that created a hostile work environment. One plaintiff alleged Porter committed a battery against her when he pinched her bottom. Because these allegations were similar to Rounds' claims that Porter made offensive remarks based on her sex and slapped her on the bottom, they were relevant to show Porter knew the impact his sexual comments and behavior might have on his employees and to rebut any inference that Rounds had simply misconstrued Porter's innocent conduct. See Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 481, ¶ 14, 212 P.3d 810, 819 (App. 2009) (ruling the trial court did not abuse its discretion by admitting, pursuant to Rule 404(b) exception, a letter demonstrating the defendant airline knew before the events at issue that "bail recovery agents" were not permitted to fly with weapons, where the airline argued plaintiffs' identification of themselves as "bail enforcement agents," rather than "bounty hunters," caused it to allow them to fly with weapons).
We reject Porter's argument that the admission of the 2003 lawsuit violated Rule 404(c) when the trial court did not allow Porter to rebut the 2003 allegations. The court specifically ruled that the evidence was not admissible under Rule 404(c) to show Porter had an aberrant sexual propensity to commit the alleged offenses and could only be used to show knowledge, or absence of mistake or accident. Accordingly, the court was not obliged to allow Porter an opportunity to rebut the 2003 allegations. Further, Porter and his counsel (who made a limited appearance to assist Porter in the cross-examination by Rounds and conduct the subsequent direct examination of Porter) had the opportunity to address these allegations on the direct examination that followed, but chose not to. Finally, Porter did briefly address the allegations in his closing argument.
¶12 We also find no abuse of discretion in the court's determination that the probative value of the 2003 lawsuit was not substantially outweighed by the danger of unfair prejudice. "The greater the probative value . . . and the more significant in the case the issue to which it is addressed, the less probable that factors of prejudice or confusion can substantially outweigh the value of the evidence." Shotwell v. Donahoe, 207 Ariz. 287, 296, ¶ 34, 85 P.3d 1045, 1054 (2004) (alteration in original) (citation omitted). The prejudice under Rule 403 means an undue tendency, which suggests a decision on an improper basis such as emotion, sympathy, or horror. Id. Porter claimed the comments and actions that formed the basis of Rounds' complaint were part of the "horseplay" allowed in the informal work environment he cultivated. The allegations in the 2003 lawsuit were probative of whether Porter had notice that employees perceived his statements and actions as harassment, rather than "horseplay," and such allegations did not have an undue tendency to incite the jury to act on an improper basis.
¶13 Therefore, the court did not abuse its discretion by denying Porter's motion to exclude all reference to the 2003 lawsuit.
We discuss the court's admission of the 2003 complaint at trial under heading III, Motion for New Trial, in section C1.
C. Conduct that Occurred Before February 27, 2010
¶14 Porter moved in limine to exclude all alleged incidents of sexual harassment that occurred before Rounds filed for bankruptcy protection on February 27, 2010. The court denied the motion, ruling Porter's entire course of conduct was relevant to Rounds' claims. Porter contends the court abused its discretion because any claims arising out of Porter's acts before February 27, 2010 belonged to the bankruptcy trustee, not Rounds. The bankruptcy court's record shows Rounds and the trustee agreed to evenly divide any damages recovered in this action. So any claim arising from those acts belonged to Rounds as well as the trustee. We thus find no abuse of discretion in the trial court's determination that the entire course of Porter's conduct was relevant to Rounds' claims. See State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988) (noting the standard for relevance under Rule 401 is not particularly high, where evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence).
Again, we do not consider arguments that were presented in the underlying documents, and Porter references but fails to advance on appeal. Childress Buick, 198 Ariz. at 459, ¶ 29, 11 P.3d at 418; MT Builders, 219 Ariz. at 304 n.7, ¶ 19, 197 P.3d at 765 n.7.
We take judicial notice of the bankruptcy filings. See Stallings v. Spring Meadows Apartment Complex Ltd. P'ship, 185 Ariz. 156, 160, 913 P.2d 496, 500 (1996) (taking judicial notice of bankruptcy court's order).
III. Motion for New Trial
¶15 Porter argues the court erred by denying his motion for new trial. Although Porter did not appeal the court's order denying his motion for new trial, we have jurisdiction to review that order under A.R.S. § 12- 2102(B) and will affirm absent an abuse of discretion. See Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009).
Porter advances several arguments on appeal that he waived by failing to include them in his motion for new trial (i.e., that the court improperly considered the parties' settlement negotiations and limited the grounds for Porter's trial objections, and that Rounds' counsel tampered with a witness). Accordingly, we do not consider those arguments. See State v. Davis, 117 Ariz. 5, 8, 570 P.2d 776, 779 (App. 1977) (stating failure to raise error in the motion for new trial results in waiver).
A. There Were No Irregularities in the Proceedings that Warranted a New Trial
¶16 Porter argues the court abused its discretion by denying his motion for new trial because irregularities occurred during the proceedings. A new trial may be granted for "[i]rregularity in the proceedings of the court . . . whereby the moving party was deprived of a fair trial" and for error in the admission of evidence. Ariz. R. Civ. P. 59(a)(1), (6). A new trial should be granted when "there has been some error in the conduct of the original trial which, in all probability, has affected the verdict." S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 512, 63 P.2d 193, 195 (1936).
1. Limitation of Defense Witness Testimony
¶17 Porter contends the court unfairly prejudiced his defense by limiting the testimony of several of his witnesses.
Porter also complains the court improperly excluded sworn statements from his witnesses. Because the record indicates he did not offer the statements in evidence, we do not consider this argument.
¶18 At trial, Porter told the court he intended to call JoAnn Robertson—who was not employed by Porter during or leading up to the time of Rounds' termination—to testify about Rounds' employment performance, general character, and propensity to lie. After ruling testimony about Rounds' character and alleged propensity to lie was inadmissible, the court asked Porter to explain why Robertson's testimony about her supervision of Rounds during an earlier time period was relevant to the events at issue in this case. Porter claimed Robertson would support his defense that Rounds' poor job performance was one of several reasons for termination. The court noted that Porter had repeatedly asserted he terminated Rounds because she lied on her performance review, and Rounds confirmed Porter had not disclosed other purported reasons for the termination or identified Robertson as a witness with information relevant to other reasons for the termination. The court did not abuse its discretion by refusing to allow Robertson to testify about Rounds' job performance during a period other than when the events at issue in this case occurred. See Ariz. R. Evid. 401 (stating evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action."); McMurtry, 231 Ariz. at 258, ¶ 44, 293 P.3d at 534 (stating challenges to the admission or exclusion of evidence are reviewed for an abuse of discretion).
While the court disagreed with Porter's claim that he had testified there were other reasons for the termination, the court, contrary to Porter's assertion, did not call him a liar.
¶19 We also reject Porter's argument that the court improperly prohibited his witness, Katie George, from testifying about the "open free speech nature" of Porter's office and witness Emily Davis from testifying that Porter striking Rounds on the bottom "could be considered part of a tradition of minor horseplay allowed in the office." To the contrary, George did testify communication in the office was open and she could say what she wanted without fear of termination. Porter did not call Davis as a witness or make an offer of proof about her expected testimony. We find no abuse of discretion in the court's denial of Porter's motion for new trial on these grounds. See Ariz. R. Evid. 103(a)(2) (requiring that, to claim error in a ruling to exclude evidence, the party must "inform the court of its substance by an offer of proof, unless the substance was apparent from the context").
2. Dorava Audio Recording
¶20 Porter argues the court erred by admitting a prior audio recording of his witness, Veronica Dorava, because Rounds did not timely disclose the recording. After Porter fired her, Rounds filed a charge of discrimination against him with the Civil Rights Division of the Arizona Attorney General's Office. As part of its investigation, the Division conducted an interview, under oath, with Dorava in which she corroborated several of Rounds' claims regarding Porter's behavior. When Rounds offered a recording of the interview to impeach Dorava at trial, Porter objected on the grounds that Rounds had not timely disclosed the recording. The court allowed it as a prior sworn statement.
¶21 The State of Arizona disclosed the recording as part of its civil rights action against Porter, which was consolidated with Rounds' case, and Rounds timely notified Porter that she intended to use any exhibits produced by the State. We find no abuse of discretion in the court's denial of Porter's motion for new trial on this ground.
Porter did not object to the relevant disclosure statements included in an appendix to Rounds' appellate brief.
B. There Was No Misconduct that Required a New Trial
¶22 Porter argues the court abused its discretion by denying his motion for new trial because Rounds' counsel engaged in misconduct during the proceedings. When considering a motion for new trial on the grounds of misconduct, the trial court exercises its discretion to decide whether misconduct occurred and materially affected the rights of the aggrieved party and should grant a new trial only if it is probable that the misconduct actually influenced the verdict. Leavy v. Parsell, 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997) (citations omitted).
Porter also argues that statements Rounds and her counsel made to the media after the verdict constituted misconduct that required the trial court to grant him a new trial. Because the statements occurred after the trial, they could not have influenced the verdict and, therefore, were not grounds for a new trial. See Leavy, 188 Ariz. at 72, 932 P.2d at 1343.
1. Questioning Regarding Attorney-Client Privileged Communications
¶23 Porter contends Rounds improperly questioned him about privileged attorney-client communications.
¶24 Porter claimed he fired Rounds because he could not trust her after she lied on her performance review. At trial, Rounds asked Porter whether he told his attorney that he believed another employee had stolen from Robertson. The court sustained Porter's objection to that question based on the grounds that the information was protected by the attorney-client privilege. Rounds argued the statement was relevant to Porter's claim that he would not keep an employee he did not trust and that Porter had waived any privilege by disclosing the communication. The court determined the evidence was relevant, but directed Rounds not to inquire about what Porter told his attorney. Rounds rephrased the question to ask whether Porter believed the employee had stolen the property. We find no misconduct and, therefore, no error in the trial court's denial of Porter's motion for new trial on this basis. See Leavy, 188 Ariz. at 72, 932 P.2d at 1343.
2. Conversation Overheard by a Juror
¶25 Porter asserts the court failed to ensure that all of the jurors remained unbiased, resulting in unfair prejudice to him.
¶26 At the beginning of trial, the court admonished the parties and counsel not to hold conversations in the lobby outside the courtroom because of the risk that a juror might overhear the discussion. The court directed such conversations should only take place on another floor of the building. During a trial break, Porter approached one of his female witnesses in the lobby and asked her to accompany him into the men's restroom. Porter later explained he needed to speak privately with the witness and made a joke by suggesting they talk in the restroom.
¶27 A juror alerted the court that he had overheard Porter's request. The court questioned the juror, who indicated that, although he was shocked by the request given the subject matter of the litigation, he could make a decision based on the evidence presented in court. The court denied Porter's motion to excuse the juror and allowed Rounds to question Porter about the encounter.
¶28 We reject Porter's argument that the court's refusal to excuse the juror unfairly prejudiced him and find no abuse of discretion. The affected juror affirmed he could decide the case on its merits despite the incident, and the court's decision to permit Rounds' counsel to question Porter about it ensured all of the jurors had the same information and allowed Porter and his witness to explain the circumstances of the conversation. See Ingrum v. Tucson Yellow Cab Co., 131 Ariz. 523, 527, 642 P.2d 868, 872 (App. 1981) (stating that defendant's failure to show prejudice resulting from plaintiff's conversation with two prospective jurors justified the court's refusal to excuse the jurors).
Porter also claims misconduct occurred when Rounds' counsel purportedly had ex parte communications with the trial court regarding Porter's failure to participate in settlement discussions. Porter waived this argument by not including it in his motion for new trial or any other post-trial motion. See Davis, 117 Ariz. at 8, 570 P.2d at 779 (stating failure to raise error in the motion for new trial results in waiver); Millers Nat'l Ins. Co. v. Taylor Freeman Ins. Agency, 161 Ariz. 490, 495, 779 P.2d 365, 370 (App. 1989) (refusing to consider arguments not raised in the trial court). Moreover, he has offered no evidence that any improper communications occurred or influenced the verdict, as the record shows the court was aware of the parties' settlement history from earlier pleadings and Rounds' counsel again detailed it for the court on the first day of trial. See Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 215, 693 P.2d 348, 358 (App. 1984) (stating misconduct grounds for new trial only where it appears probable the misconduct actually influenced the verdict).
C. The Verdict Is Not the Result of Passion or Prejudice and the Damages Are Not Excessive
¶29 Porter maintains the court abused its discretion by denying his motion for new trial because the jury's punitive damages award is excessive, not justified by the evidence or supported by law, and resulted from passion or prejudice caused by the admission of unduly prejudicial evidence and improper questions and argument.
¶30 In ruling on a motion for a new trial, the trial judge sits as the "ninth juror" and must consider whether the verdict is so "manifestly unfair, unreasonable and outrageous as to shock the conscience." Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23, 961 P.2d 449, 453 (1998) (citation omitted). The amount of a damages award is "a question peculiarly within the province of the jury, and such award will not be overturned or tampered with unless the verdict was the result of passion or prejudice." In re Estate of Hanscome, 227 Ariz. 158, 162, ¶ 12, 254 P.3d 397, 401 (App. 2011) (citation omitted). We do not reweigh the facts in considering whether there was sufficient proof to support the jury's verdict. Hutcherson, 192 Ariz. at 56, ¶ 27, 961 P.2d at 454. "[V]erdict size alone does not signal passion or prejudice." Id., 192 Ariz. at 57, ¶ 36, 961 P.2d at 455. Further, even if the size of the verdict is exaggerated "in an area in which reasonable persons may differ, the trial court should not lightly conclude it is tainted." Estate of Hanscome, 227 Ariz. at 162, ¶ 13, 254 P.3d at 401.
1. Admission of the 2003 Complaint
¶31 Consistent with the court's ruling on the motion in limine, Rounds attempted to question Porter about the 2003 lawsuit at trial, but he refused to answer or gave evasive answers. For example, he testified he did not remember the allegations in the 2003 lawsuit, denied recalling if they were of a sexual nature, and claimed reviewing the complaint from that action would not refresh his recollection as to the allegations it contained. The trial court admitted the 2003 complaint in evidence as a last resort to work around Porter's obstructive behavior.
¶32 Porter argues the court erred by admitting the 2003 complaint and abused its discretion by denying his motion for new trial because the highly prejudicial complaint caused the jury to return a verdict on an improper basis. We do not consider this argument, however, because Porter's counsel waived it by failing to object to the admission of the document at trial. See Millers Nat'l, 161 Ariz. at 495, 779 P.2d at 370 (refusing to consider arguments not raised in the trial court).
Porter's attempt to object personally was legally ineffective because he was represented by counsel at that time. See Lincoln v. Lincoln, 155 Ariz. 272, 274, 746 P.2d 13, 15 (App. 1987) (noting Arizona law prohibits a party who is represented by counsel from personally conducting any aspect of the litigation).
Further, we find no merit in Porter's argument that the admission of the 2003 complaint required the court to also admit the "Greenpeace Memo" and its failure to do so constituted an "irregularity" in the proceedings that warranted a new trial. As discussed, the court did not abuse its discretion by ruling before trial that the memorandum was only admissible if Porter complied with certain pretrial conditions and Porter did not show that he complied.
¶33 Moreover, from our review of the record, we discern neither a denial of a fair trial nor a verdict influenced by passion or prejudice. See Hutcherson, 192 Ariz. at 55, ¶ 23, 961 P.2d at 453 (citation omitted) (explaining that, in considering whether a jury verdict resulted from passion or prejudice, the trial judge must ask whether the verdict is so "manifestly unfair, unreasonable and outrageous as to shock the conscience"). The 2003 complaint was admitted in evidence without objection as a result of Porter's deliberate attempt to frustrate the trial process by refusing to acknowledge the prior allegations, and it was not presented in an inflammatory or otherwise improper manner. Also Porter addressed the 2003 complaint in his closing argument, asserting it was "a contingency driven thing just like this one" and reminded the jurors that the complaint consisted only of accusations, which could not be considered evidence.
Porter does not cite, and we have not found, any request he made that the court issue a limiting instruction concerning the 2003 complaint. We reject Porter's argument that his motion in limine constituted such a request.
¶34 Further, we disagree with Porter that the jury's question to the court during deliberations regarding whether it could recommend perjury charges against Dorava indicates the verdict was based on passion and prejudice. The jury's question, while revealing the jury rejected Dorava's trial testimony, does not suggest the jury premised its verdict on its view of Dorava, rather than its assessment of the merits of the case. See Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 140, 907 P.2d 506, 526 (App. 1995) (stating the appellate court must assume on review that the jury followed the instructions of the trial court).
2. Improper Questions and Closing Argument
¶35 Porter argues opposing counsel's questions and closing argument were designed to arouse the jury's passion. However, because Porter did not object at trial to any of the questions or arguments that he now alleges were improper, we will not consider this argument. See State v. Moody, 208 Ariz. 424, 460, ¶ 153, 94 P.3d 1119, 1155 (2004) (stating failure to object to a comment in closing argument waives that argument on appeal); Millers Nat'l, 161 Ariz. at 495, 779 P.2d at 370 (refusing to consider arguments not raised in the trial court).
Porter did attempt to personally object to one question, but the court did not allow it because he was represented by counsel at that time. See Lincoln, 155 Ariz. at 274, 746 P.2d at 15 (noting Arizona law prohibits a party who is represented by counsel from personally conducting any aspect of the litigation).
Porter also argues the assertion during Rounds' closing argument that he called Rounds "hostile" every day was improper because no witness substantiated the claim. Porter waived this argument by failing to object at trial, and complained in his motion for new trial only that Rounds' closing argument appealed to the jury's passion. See Davis, 117 Ariz. at 8, 570 P.2d at 779 (stating failure to raise error in the motion for new trial results in waiver); Moody, 208 Ariz. at 460, 94 P.3d at 1155 (stating failure to object to a comment in closing argument waives that argument on appeal). Further, we detect no impropriety as Rounds' testimony supported the argument. See Ritchie v. Krasner, 221 Ariz. 288, 303, ¶ 54, 211 P.3d 1272, 1287 (App. 2009) (stating counsel has wide latitude in closing arguments to comment on the evidence and argue all reasonable inferences from it).
3. The Punitive Damage Award Is Not Excessive
¶36 Porter argues the trial court erred by refusing to reduce the jury's $414,000 punitive damage award.
We decline to consider Porter's bare assertions that the court improperly instructed the jury on the issue of punitive damages and allowed it to consider punitive damages without first requiring proof of a prima facie issue. See MT Builders, 219 Ariz. at 304 n.7, ¶ 19, 197 P.3d at 765 n.7 (finding argument raised below but presented on appeal in a one-sentence footnote without any analysis is deemed waived).
¶37 When reviewing the amount of a punitive damage award, we determine de novo whether the award comports with due process, considering the disparity between the compensatory and punitive damage awards and the degree of reprehensibility of the defendant's conduct. Arellano v. Primerica Life Ins. Co., 235 Ariz. 371, 378, ¶ 35, 332 P.3d 597, 604 (App. 2014); Nardelli v. Metro. Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 609, ¶¶ 83-84, 277 P.3d 789, 806 (App. 2012).
A third consideration is the difference between the jury's punitive damages award and the authorized civil penalties in comparable cases. Nardelli, 230 Ariz. at 609, ¶¶ 83-84, 277 P.3d at 806; Arellano, 235 Ariz. at 378, ¶ 35, 332 P.3d at 604. As relevant to this case, Arizona's Civil Rights Act authorizes a court to enjoin a defendant from engaging in an unlawful employment practice and, if appropriate, order the defendant to rehire affected employees and impose back pay liability. A.R.S. § 41-1481(G). The court may also award attorneys' fees in such an action. A.R.S. § 41-1481(J).
¶38 Porter argues the approximate 5:1 ratio of punitive damages ($414,000) to compensatory damages ($86,000) is too high, asserting that the award must be reversed because the ratio is greater than the 4:1 ratio discussed in Arellano. While the court in Arellano noted a lower ratio of punitive to compensatory damages is "more likely to comport with due process," id. at 379, ¶ 38, 332 P.3d at 605, Arizona courts have not limited punitive damages to a certain multiplier of the compensatory award:
There is no bright-line ratio between compensatory and punitive damages. An appropriate award of damages is a fact-sensitive inquiry.Id. In Arellano, the court concluded that, under the circumstances, the ratio of 13:1 (punitive damages of $1,117,572 and compensatory damages of $82,000) was too high and directed the trial court to reduce the punitive damages award to an amount that provided a 4:1 ratio. Id. at 380-81, 380 n.6, ¶¶ 38, 45, 332 P.3d at 606-07, 606 n.6. The court did not hold, as Porter suggests, that a punitive damage award may not be greater than four times the amount of compensatory damages.
¶39 Further, the facts in this case indicate Porter's conduct had at least a moderate degree of reprehensibility, which is "[p]erhaps the most important indicium of the reasonableness of a punitive damages award." See id. at 379, ¶ 36, 332 P.3d at 605 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)). "In analyzing reprehensibility, we consider whether (1) 'the harm caused was physical as opposed to economic'; (2) 'the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others'; (3) 'the target of the conduct had financial vulnerability'; (4) 'the conduct involved repeated actions or was an isolated incident'; and (5) 'the harm was the result of intentional malice, trickery, or deceit, or mere accident.'" Arellano, 235 Ariz. at 379, ¶ 36, 332 P.3d at 605 (citation omitted). "No single element is dispositive." Id.
¶40 Porter physically assaulted Rounds by striking her and his persistent workplace harassment caused her to suffer anxiety so significant that it required medication. Because Porter was her employer, Rounds was financially vulnerable and endured his offensive behavior for almost one year because she feared he would terminate her employment if she complained about his conduct. Finally, Porter made clear to Rounds that he was aware of the effect of his improper actions by telling her that former employees had sued him for sexual harassment.
¶41 The record demonstrates the reprehensibility of Porter's misconduct was moderate to high and the ratio of the punitive damages to the compensatory damages was not overly large. Based on our exercise of judgment assessing the relevant guideposts, we determine the amount of the punitive damages award was not unconstitutionally improper.
D. The Evidence Justifies the Verdict and It Is Not Contrary to Law
¶42 Finally, Porter states the verdict was not justified by the evidence but fails to set forth any argument regarding this issue. Thus, he has waived the issue on appeal. See Childress Buick, 198 Ariz. at 459, ¶ 29, 11 P.3d at 418 (stating issues not clearly presented in appellate briefs are deemed waived); MT Builders, 219 Ariz. at 304 n.7, ¶ 19, 197 P.3d at 765 n.7 (finding argument raised below but presented on appeal in a one-sentence footnote without any analysis is deemed waived).
However, even if Porter had not waived this issue, we would find no error in the jury's award to Rounds as substantial evidence supported the verdicts, and we will not reweigh evidence on appeal. See Hutcherson, 192 Ariz. at 56, ¶ 27, 961 P.2d at 454 (stating courts are not free to reweigh the evidence and set aside a jury verdict merely because judges feel other results are more reasonable or could have been reached). --------
¶43 We also do not consider Porter's argument that the court did not properly instruct the jury when it did not (1) identify what actions would satisfy the "severe and pervasive" standard in a sexual harassment claim or (2) instruct the jury that the standard of conduct required to establish intentional infliction of emotional distress is higher than for a sexual harassment claim. Porter waived this argument by failing to object to the jury instructions at trial. See Ariz. R. Civ. P. 51(a) ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.").
CONCLUSION
¶44 For the foregoing reasons, we affirm. Upon compliance with Rule 21, ARCAP, Rounds is awarded her taxable costs on appeal.