Desert Palm Surgical Group, P.L.C. v. Petta , 236 Ariz. 568 ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DESERT PALM SURGICAL GROUP, P.L.C., an Arizona professional
limited liability company; and ALBERT E. CARLOTTI and MICHELLE L.
CABRET-CARLOTTI, husband and wife, Plaintiffs/Appellees,
v.
SHERRY PETTA, an individual, Defendant/Appellant.
No. 1 CA-CV 13-0376
FILED 1-15-2015
Appeal from the Superior Court in Maricopa County
No. CV2008-010464
The Honorable Mark H. Brain, Judge
AFFIRMED IN PART; REVERSED IN PART; VACATED AND
REMANDED
COUNSEL
Kelly McCoy, P.L.C., Phoenix
By Matthew J. Kelly, Kevin C. McCoy
Counsel for Plaintiffs/Appellees
Clark Hill P.L.C., Scottsdale
By Ryan J. Lorenz, Sean M. Caroll
Counsel for Defendant/Appellant
OPINION
Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.
DESERT PALM et al. v. PETTA
Opinion of the Court
W I N T H R O P, Associate Presiding Judge:
¶1 Sherry Petta appeals the superior court’s judgment in the
amount of $12,009,489.96 in favor of Desert Palm Surgical Group, P.L.C.
(“DPSG”), Dr. Albert E. Carlotti, and Dr. Michelle L. Cabret-Carlotti
(collectively, “Plaintiffs”) on claims for defamation and false light invasion
of privacy. In this opinion, we affirm the superior court’s denial of Petta’s
motions for judgment as a matter of law, but vacate the judgment and
remand for a new trial because the judgment cannot be supported by the
damages evidence presented and shocks the conscience of this court. We
also reverse the superior court’s summary judgment on Petta’s
counterclaim for medical battery, a claim that may be tried on remand.
FACTS AND PROCEDURAL HISTORY1
¶2 Drs. Carlotti and Cabret-Carlotti (collectively, “the Doctors”)
are husband and wife with dental and medical degrees who operate DPSG,
an Arizona professional limited liability company formed in 2002.
Plaintiffs’ practice offers a wide range of services, including maxillofacial
surgery, cosmetic surgery, dental procedures, and various skin procedures
and treatments.
¶3 In January 2007, Dr. Carlotti performed cosmetic surgery on
Petta’s nose and eyelids, and Dr. Cabret-Carlotti performed laser
resurfacing treatments on Petta’s face. Petta was dissatisfied with the
results, and aggressively voiced her dissatisfaction to the Doctors and their
staff on numerous occasions. In Petta’s view, the laser procedure had
burned and scarred her face. Without question, healing was delayed,
persistent post-operative infection occurred, and Petta’s nose developed
residual thickening due to scar tissue. Throughout 2007, the Doctors
attempted to improve Petta’s healing and appearance with various
treatments, but the doctor-patient relationship deteriorated.
¶4 Petta eventually consulted physicians not associated with
DPSG and underwent other treatment on her face; the parties disputed
whether the Doctors had authorized her to do so. By September 2007, Dr.
Carlotti refused to continue Petta’s care for a period of time, ostensibly due
to Petta’s “screaming and using profanity” and her reliance on
1 We view the facts and inferences in the light most favorable to
sustaining the verdict and judgment. Hyatt Regency Phoenix Hotel Co. v.
Winston & Strawn, 184 Ariz. 120, 123, 907 P.2d 506, 509 (App. 1995).
2
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Opinion of the Court
“unauthorized care.” On September 25, 2007, Dr. Carlotti presented Petta
with the following agreement, which both he and Petta signed:
Desert Palm Surgical Group agrees to perform 3 IPL [intense
pulse light] treatments of the forehead and periorbital areas,
provided that there is absolutely no intervention by any
unauthorized doctor, nurse or esthetician of any type during
the course of treatment. This includes medications, products
and treatments. In addition, treatment intervals will be
clearly defined to which the patient must comply completely.
Lastly, if there is any profanity, screaming or threats made
now or in the future, to either Drs. Carlotti or any staff
member, you will be dismissed as a patient from Desert Palm
Surgical Group.
In the fall of 2007, the IPL treatments proceeded as planned, and Petta’s face
improved.
¶5 On January 3, 2008, Dr. Carlotti performed at cost a second
surgery (a “revision nasal tip surgery”) to remove the scar tissue on Petta’s
nose. Petta remained dissatisfied, in part because, as she alleged, the doctor
had now shortened and curved her nose upward, without her permission
and against her express wishes. On February 1, 2008, Petta consulted a
different physician, Dr. Ronald J. Caniglia, who opined that Petta’s nose
had “been shortened quite a bit” and that it appeared there was “collapse
in the left middle vault with a stepoff deformity there.”
¶6 Petta eventually contacted the Arizona Medical Board
(“AMB”), the Arizona State Board of Dental Examiners (“the Dental
Board”), the Arizona Radiation Regulatory Agency (“ARRA”), and former
DPSG employees and patients, and discovered the Doctors were not
certified in plastic or cosmetic surgery, or maxillofacial surgery, by a
certifying professional board recognized by the American Board of Medical
Specialties (“ABMS”).2 In early March 2008, Petta submitted a formal
2 The AMB does not itself issue board certification, but allows its
licensees to report on its consumer website if they are certified as a specialist
by a member of the ABMS. The Doctors are not board certified by any of
the member boards of the ABMS, but are instead certified by the American
Board of Oral & Maxillofacial Surgery (“ABOMS”), a separate organization
not so recognized by the AMB or the ABMS.
3
DESERT PALM et al. v. PETTA
Opinion of the Court
complaint against the Doctors to the AMB, alleging they had operated on
her nose beyond the scope of her consent.3
¶7 At about the same time, Petta requested copies of her medical
records, and although she paid for a copy of those documents, a
disagreement arose over Plaintiffs’ delivery of those records. On March 24,
2008, Petta called DPSG to inquire about the status of her request, and she
was informed her records were ready to be picked up. When she arrived
at DPSG, however, she was informed the records were not available. A
heated verbal exchange followed, with Petta purportedly shouting
profanity-laced warnings to other patients present not to allow the Doctors
to practice on them, and Scottsdale police were called. Dr. Carlotti refused
to provide Petta with her records because she had filed a complaint with
the AMB. A police officer spoke telephonically with an AMB
representative, who informed the officer that DPSG could not withhold
Petta’s records on that basis. The officer relayed the information to Dr.
Carlotti, who agreed to provide the records to Petta by the end of the day.4
Later that day, with the assistance of law enforcement, Petta received her
medical records, which she later maintained had been altered.5 Also on
March 24, at Dr. Carlotti’s behest, the police issued Petta a trespass warning.
On March 26, 2008, Dr. Carlotti sought an injunction against harassment
against Petta, which was issued after an evidentiary hearing.
¶8 In the next few weeks, Petta began posting statements on
various consumer review websites, complaining of her experiences as the
Doctors’ patient, including alleging the Doctors were not “board certified.”
She also created her own website complaining she had been Plaintiffs’
“victim” and warning the public of the Doctors’ alleged incompetence and
3 That complaint was ultimately dismissed by the AMB.
4 At trial, Dr. Carlotti denied Petta’s complaint with the AMB was the
basis for his refusal to provide Petta with her records, but he acknowledged
a representative of the AMB advised him telephonically to “just give her
her records.”
5 Petta contacted a former DPSG employee, who replied with an e-
mail that appeared to confirm Petta’s suspicion that some chart
documentation the former employee had authored had been altered.
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Opinion of the Court
unethical, unprofessional behavior.6 In late April and early May 2008,
Plaintiffs sent two letters through counsel to Petta demanding she “remove
all defamatory and baseless statements from any and all websites” and
advising her that if she did not, Plaintiffs would sue her.
¶9 On May 7, 2008, Plaintiffs filed a complaint against Petta,
alleging she had posted false and defamatory statements about Plaintiffs in
her internet postings, omitted facts, and disparaged Plaintiffs while
painting them in a false light. Through their complaint, Plaintiffs asserted
claims for (1) defamation/libel per se, (2) tortious interference with medical
practice, (3) injurious falsehood/business disparagement, and (4) false light
invasion of privacy. That same day, Plaintiffs also requested an application
for a temporary restraining order (“TRO”) and preliminary injunction to
compel Petta to remove any postings from websites in which Petta had
complained about the Doctors’ surgical work and other matters and to
enjoin her from continuing to post allegedly false statements on those
websites. On May 22, 2008, Petta through counsel stipulated to the relief
sought in the TRO, and the superior court entered the TRO. Petta removed
her comments approximately one month after they had been posted.7
¶10 Petta filed an answer and asserted a counterclaim for medical
battery, claiming she had not consented to the scope of the January 2008
alteration to her nose.8 On January 8, 2010, Plaintiffs filed an amended
6 After the hearing on the injunction against harassment, Petta
modified her online comments to clarify she was “not disputing” Dr.
Carlotti was certified by the ABOMS, but continued to maintain that
“neither doctor is state Board Certified” based on information she received
directly from the AMB staff and its website. She also provided a link
directing viewers to the AMB website.
7 On November 17, 2008, however, a different judge of the superior
court, addressing a flurry of motions filed by the parties, issued a follow-
up minute entry denying Plaintiffs’ application for a TRO. Apparently
relying on this ruling, Petta resumed posting complaints about Plaintiffs to
“doctor rating” websites in December 2008, and Plaintiffs filed a motion for
contempt and sanctions for violation of the TRO. On February 11, 2009, the
court reaffirmed the TRO, and Petta again removed the comments.
8 In the meantime, the parties’ respective antagonism escalated. Petta
continued to file numerous complaints about the Doctors with the AMB,
contending in part they had falsified records, Dr. Carlotti was “messed up
5
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Opinion of the Court
complaint, adding several of their former employees and the mother of a
former employee as defendants.9 The additional defendants were all
eventually dismissed with prejudice, ostensibly as the result of negotiated
settlements containing confidentiality clauses.
¶11 Before trial, Petta moved for summary judgment on each of
Plaintiffs’ claims. Plaintiffs moved for summary judgment on Petta’s
counterclaim, arguing Petta had consented to the January 2008 procedure
on her nose (the revision nasal tip surgery) and, in any event, Petta could
not prove which of the Doctors had performed the surgery. The superior
court granted Petta’s motions for summary judgment as to Plaintiffs’ claims
for injurious falsehood/business disparagement and wrongful interference
with business relations, and Plaintiffs’ motion for summary judgment as to
Petta’s counterclaim for medical battery.
¶12 Plaintiffs’ remaining claims for defamation and false light
invasion of privacy were tried. After a ten-day trial, the jury returned a
verdict in favor of Plaintiffs and against Petta in the amount of eleven
million dollars in actual or compensatory damages and one million dollars
in punitive damages on Plaintiffs’ claims for defamation and false light
invasion of privacy.10 The superior court entered a final judgment on the
verdict.
on narcotics,” and the Doctors were using a laser not in compliance with
ARRA regulations. (Plaintiffs were in fact assessed civil fines for non-
compliance with the ARRA.) Also, Petta complained about Dr. Cabret-
Carlottii to the Dental Board. Meanwhile, in August 2008, after Petta
presented evidence to the AMB regarding Plaintiffs’ alleged lack of proper
licensing and lack of proof of maintenance of the laser equipment, Dr.
Cabret-Carlotti sent Petta a series of personally insulting text messages,
accusing Petta of being psychotic and blaming Petta for her post-operative
complications.
9 During discovery, Petta became aware of numerous individuals,
including Plaintiffs’ former patients, employees, and business associates,
who indicated a willingness to testify as to their poor results and/or
Plaintiffs’ lack of competence, unprofessional conduct, and bad reputation
in the Scottsdale community. Some or all of these individuals, assisted by
Petta, also filed complaints about Plaintiffs with the AMB.
10 The jury was not asked to break out the amounts awarded for
compensatory damages.
6
DESERT PALM et al. v. PETTA
Opinion of the Court
¶13 Petta moved for a new trial, for judgment as a matter of law,
for remittitur, and for relief from judgment. The superior court denied
Petta’s motions and denied Plaintiffs’ request to impose a permanent
injunction against Petta, but amended its judgment to correct an accrual of
interest calculation. In the amended final judgment, the court found in
favor of Plaintiffs in the amount of $12,009,489.96 (an amount that included
costs), plus interest. Petta filed a timely notice of appeal.
ANALYSIS
I. Jurisdiction
¶14 As an initial matter, Plaintiffs argue this court lacks
jurisdiction because Petta failed to designate the amended final judgment
in her notice of appeal. We disagree.
¶15 “The timely filing of a valid notice of appeal is a prerequisite
to the exercise of appellate jurisdiction.” Santee v. Mesa Airlines, Inc., 229
Ariz. 88, 89, ¶ 3, 270 P.3d 915, 916 (App. 2012) (citations omitted). As a
general rule, our review is limited to matters designated in the notice of
appeal or cross-appeal. See Flory v. Silvercrest Indus., Inc., 129 Ariz. 574, 581-
82, 633 P.2d 383, 390-91 (1981); ARCAP 8(c) (“The notice of appeal . . .
shall designate the judgment or part thereof appealed from . . . .”). We
have an independent duty to determine whether we have jurisdiction over
an appeal and must dismiss an appeal over which we lack jurisdiction.
Baker v. Bradley, 231 Ariz. 475, 478-79, ¶ 8, 296 P.3d 1011, 1014-15 (App.
2013).
¶16 Nevertheless, “where the record discloses an appellant’s
intent to appeal from a judgment, such as sending copies of a defective
notice of appeal to all defendants, or where a notice of appeal
substantially complies with the Rules of Civil Appellate Procedure, the
notice of appeal should be construed as sufficient so long as the defect has
neither misled nor prejudiced an opposing party.” Hill v. City of Phoenix,
193 Ariz. 570, 572-73, ¶ 10, 975 P.2d 700, 702-03 (1999) (citing Hanen v. Willis,
102 Ariz. 6, 9-10, 423 P.2d 95, 98-99 (1967) (“[W]e believe that distinction
is not material, and that the better rule is that if a valid judgment has been
entered in the case, a notice of appeal timely filed in relation to such
judgment will not be found insufficient merely because the date given as
that of the order or judgment appealed from is the date of an earlier
rendering of the same judgment by minute entry order . . . .“)).
¶17 In this case, the superior court entered a signed final
judgment resolving all claims and counterclaims on February 8, 2012.
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Opinion of the Court
Plaintiffs filed their motion to alter or amend the judgment, and Petta filed
a timely motion for new trial, for judgment as a matter of law, and for
remittitur. On May 1, 2013, the superior court’s amended final judgment
was filed, and the court’s signed minute entry denying Petta’s post-trial
motions was filed the next day – on May 2, 2013. On May 16, 2013, Petta
filed a timely notice of appeal “from the Judgment entered in this matter
on February 8, 2012, and the order denying post-trial motions entered on
or about May 1 or 2, 2013, and all parts of each.”
¶18 Plaintiffs note that Petta’s notice of appeal failed to designate
the amended final judgment as the judgment from which she was
appealing. Citing Ball v. Chandler Improvement District No. 48, 150 Ariz. 559,
724 P.2d 1228 (App. 1986), for the proposition that failure to identify the
amended judgment results in a waiver, Plaintiffs argue we should dismiss
for lack of jurisdiction. See generally Swichtenberg v. Brimer, 171 Ariz. 77, 82,
828 P.2d 1218, 1223 (App. 1991) (“Subject matter jurisdiction cannot be
waived, and can be raised at any stage of the proceedings.” (citation
omitted)).
¶19 Plaintiffs’ reliance on Ball is unavailing. In Ball, this court
simply held that, because the City of Chandler had failed to appeal the
underlying merits of a judgment and had only appealed from the award of
attorneys’ fees, the City could not launch a collateral attack on the judgment
in the appeal. 150 Ariz. at 562-63, 828 P.2d at 1231-32. Here, the final
judgment, the amended final judgment, and the superior court’s order
denying the post-trial motions (with the exception of Plaintiffs’ motion to
amend the award of interest) were all part of the same determination on the
same claims. Further, Plaintiffs cannot argue they have been misled or
prejudiced by Petta’s notice of appeal. Accordingly, we have jurisdiction
to decide the merits of Petta’s appeal pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1) and (5)(a) (West 2015).11
II. The Superior Court’s Denial of Summary Judgment
¶20 Petta argues the superior court erred in denying her motions
for summary judgment as to Plaintiffs’ claims for defamation and false light
invasion of privacy because insufficient evidence of causation and damages
existed to create a genuine issue of material fact. She premises her claim on
the fact the superior court granted her motion for summary judgment on
Plaintiffs’ injurious falsehood/business disparagement claim for lack of
11 We cite the current version of all statutes unless changes material to
our decision have occurred since the relevant dates.
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Opinion of the Court
provable damages, concluding that in the absence of such evidence, the jury
“would be left to speculate regarding damages.” The court also granted
summary judgment on Plaintiffs’ tortious interference with medical
practice claim on the basis that Plaintiffs failed to “identify specific damages
resulting from that interference.” Petta argues the court’s reasoning in
dismissing those two claims must be applied to the defamation and false
light invasion of privacy claims; otherwise, she submits, the court’s
conclusions are “contradictory.” Plaintiffs argue Petta did not raise the
sufficiency of causation or damages in her summary judgment motion and
we should not review the superior court’s denial of summary judgment on
appeal.
¶21 “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 Cnty., 208
Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004) (citing Navajo Freight Lines,
Inc. v. Liberty Mut. Ins. Co., 12 Ariz. App. 424, 428, 471 P.2d 309, 313 (1970)).
That is because allowing appellate review of the superior court’s denial of
a summary judgment motion after a trial on the merits “could lead to the
absurd result that one who has sustained his position after a full trial and
a more complete presentation of the evidence might nevertheless be
reversed on appeal because he had failed to prove his case more fully
at the time of the hearing of the motion for summary judgment.” Navajo
Freight Lines, 12 Ariz. App. a t 428, 471 P.2d at 313 (citations omitted).
¶22 An appellate court may, however, review a trial court’s denial
of summary judgment in a case that has gone to trial if the denial is based
on a purely legal issue or if the proponent reasserts the issue in a Rule 50,
Ariz. R. Civ. P., motion for judgment as a matter of law or other post-trial
motion. John C. Lincoln Hosp., 208 Ariz. at 539, ¶ 19, 96 P.3d at 537; Hauskins
v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226, 1233 (App. 1992). “A purely
legal issue or question is one that does not require the determination of
any predicate facts, namely, ‘the facts are not merely undisputed but
immaterial.’” John C. Lincoln Hosp., 208 Ariz. at 539 n.5, ¶ 19, 96 P.3d at537 n.5 (quoting Seidel v. Times Ins. Co., 970 P.2d 255, 257 (Or. Ct. App.
1998)). We review de novo whether a pure question of law precluded the
denial of summary judgment. See Hourani v. Benson Hosp., 211 Ariz. 427,
430, ¶ 4, 122 P.3d 6, 9 (App. 2005).
¶23 In this case, the issue raised by Petta is not a purely legal issue.
Rather, it requires this court to review and assess predicate facts. See Barrett
v. Harris, 207 Ariz. 374, 378, ¶ 12, 86 P.3d 954, 958 (App. 2004) (“Causation
is generally a question of fact for the jury unless reasonable persons could
9
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Opinion of the Court
not conclude that a plaintiff had proved this element.” (citation omitted)).
Moreover, Petta’s motions for summary judgment regarding defamation
and false light invasion of privacy were based primarily on her defense of
truth; she did not argue lack of causation or damages. Further, although
Petta also moved during trial for judgment as a matter of law pursuant
to Rule 50, she again did not raise the issue of causation or damages;
instead, she once more focused her argument on her contention that her
statements were true or simply a matter of opinion. 12 It was not the
superior court’s obligation to search the record for facts that might
support Petta’s motion for summary judgment. See, e.g., Mast v. Standard
Oil Co. of Cal., 140 Ariz. 1, 2, 680 P.2d 137, 138 (1984). Additionally, no
inherent contradiction exists in the superior court’s rulings. Petta did not put
the issue of causation and damages before the court in her motions for
summary judgment, and even if she had done so, the court could have
concluded Plaintiffs’ defamation and false light invasion of privacy claims
could be supported by their evidence of general damages.13 We see no reason
to further examine the superior court’s rulings denying Petta’s motions for
summary judgment on the defamation and false light invasion of privacy
claims.
III. The Claims for Defamation and False Light Invasion of Privacy
¶24 Petta contends Plaintiffs’ claims for defamation and false light
invasion of privacy were not supported by the evidence at trial because her
12 Petta did, however, raise the issues of insufficient causation and
damages in her post-judgment motions for new trial, judgment as a matter
of law, and remittitur.
13 Actual or compensatory damages may consist of general and/or
special damages. “General damages are such as the law implies and
presumes to have occurred from the wrong complained of, while special
damages are those which are the natural but not the necessary consequence
of the act complained of and usually stem from the particular circumstances
of the case.” S. Ariz. Sch. For Boys, Inc. v. Chery, 119 Ariz. 277, 280, 580
P.2d 738, 741 (App. 1978) (citations omitted). In tort cases, such as those
involving defamation and false light invasion of privacy, general
damages cover a plaintiff’s loss of reputation, shame, mortification,
injury to the feelings, and the like, whereas special damages are limited to
the plaintiff’s actual pecuniary loss, which must be specially pleaded and
proved. F.A.A. v. Cooper, 132 S. Ct. 1441, 1451 (2012) (citation omitted).
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statements about Plaintiffs either were truthful or constituted matters of
opinion, and insufficient evidence of causation and damages existed. She
maintains the superior court therefore erred in denying her motions for
judgment as a matter of law.14
¶25 We review de novo the denial of a motion for judgment as a
matter of law. Goodman v. Physical Res. Eng’g, Inc., 229 Ariz. 25, 27-28, ¶ 6,
270 P.3d 852, 854-55 (App. 2011); A Tumbling-T Ranches v. Flood Control
Dist. of Maricopa Cnty., 222 Ariz. 515, 524, ¶ 14, 217 P.3d 1220, 1229 (App.
2009). Such a motion should be granted “if the facts produced in support
of the claim or defense have so little probative value, given the quantum of
evidence required, that reasonable people could not agree with the
conclusion advanced by the proponent of the claim or defense.” A
Tumbling-T Ranches, 222 Ariz. at 524, ¶ 14, 217 P.3d at 1229 (quoting Orme
Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990)). “In making
this determination, we view ‘the evidence in a light most favorable to
upholding the jury verdict,’ and will affirm ‘if any substantial evidence
exists permitting reasonable persons to reach such a result.’” Id. (quoting
Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449, 451
(1998)).
¶26 “Defamation is a common law action based upon a tortious
invasion of one’s interest in his or her reputation.” Boswell v. Phoenix
Newspapers, Inc., 152 Ariz. 1, 5, 730 P.2d 178, 182 (App. 1985) (citations
omitted). Arizona follows the Restatement ( S e c o n d ) o f T o r t s ( 1 9 7 7 )
( “ R e s t a t e m e n t ” ) on claims relating to defamation of a private person.
Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315, 560 P.2d 1216, 1222
(1977). “ One who publishes a false and defamatory communication
concerning a private person, or concerning a public official or public figure
14 Plaintiffs argue that, because Petta failed to move for judgment as a
matter of law pursuant to Rule 50 on the grounds that Plaintiffs did not
present any evidence of causation and damages prior to the case being
submitted to the jury, Petta has waived any entitlement to judgment as a
matter of law on those bases. See Cnty. of La Paz v. Yakima Compost Co.,
224 Ariz. 590, 607, ¶ 51, 233 P.3d 1169, 1186 (App. 2010). Nevertheless, “the
rule that issues not objected to at trial are waived is procedural, not
jurisdictional, and we may suspend it at our discretion.” Standard
Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 39, 945 P.2d 317, 350 (App.
1996) (citations omitted); see also Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d
1204, 1206 (App. 1984) (recognizing that “[the rule] an appealing party may
not urge as grounds for reversal a theory which he failed to present below
. . . is procedural and not jurisdictional”) (citations omitted).
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DESERT PALM et al. v. PETTA
Opinion of the Court
in relation to a purely private matter . . . , is subject to liability, if, but only
if, he (a) knows that the statement is false and that it defames the other, (b)
acts in reckless disregard of these matters, or (c) acts negligently in failing
to ascertain them.” Restatement § 580B. Negligence is conduct that creates
an unreasonable risk of harm and the failure to use that amount of care a
reasonably prudent person would use under similar circumstances. Peagler,
114 Ariz. at 315, 560 P.2d at 1222.
¶27 Substantial truth of an allegedly defamatory statement may
provide an absolute defense to an action for defamation. See Fendler v.
Phoenix Newspapers, Inc., 130 Ariz. 475, 479-80, 636 P.2d 1257, 1261-62 (App.
1981). If the underlying facts are undisputed, the court may determine the
question of substantial truth as a matter of law. Id. at 480, 636 P.2d at 1262.
A slight inaccuracy of expression is immaterial if the alleged defamatory
statement is true in substance. Heuisler v. Phoenix Newspapers, Inc., 168 Ariz.
278, 285 n.4, 812 P.2d 1096, 1103 n.4 (App. 1991). Also, a technically false
statement may nonetheless be considered substantially true if, viewed
“through the eyes of the average reader,” the statement differs from the
truth “only in insignificant details.” Currier v. W. Newspapers, Inc., 175
Ariz. 290, 293, 855 P.2d 1351, 1354 (1993) (quoting Zerangue v. TSP
Newspapers, Inc., 814 F.2d 1066, 1073 (5th Cir. 1987)).
¶28 In Yetman v. English, 168 Ariz. 71, 811 P.2d 323 (1991), our
supreme court set forth the test to determine when statements are
actionable as defamation. That test may be summarized as follows:
Statements that can be interpreted as nothing more than
rhetorical political invective, opinion, or hyperbole are
protected speech, but false assertions that state or imply a
factual accusation may be actionable. The trial court first
decides whether, under all the circumstances, a statement is
even capable of a defamatory meaning. If so found, the jury
then determines whether the defamatory meaning was
actually conveyed. In most instances, it is for the jury to
determine whether an ordinary reader or listener would
believe the statement to be a factual assertion, mere opinion
or hyperbole. The meaning of words and statements should
not be construed in isolation; rather, consideration should be
given to the context and all surrounding circumstances,
including the impression created by the words used and the
expression’s general tenor. If the jury finds that a defamatory
statement of objective fact (beyond mere hyperbole) exists, it
should then consider actual damage to [the plaintiff’s]
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Opinion of the Court
reputation in the real world by measuring the defamatory
aspect of [the statement] by its natural and probable effect on
the mind of the average recipient.
Burns v. Davis, 196 Ariz. 155, 165, ¶ 39, 993 P.2d 1119, 1129 (App. 1999)
(internal citations and quotations omitted) (citing Yetman, 168 Ariz. at 76-
79, 811 P.2d at 328-31).15
¶29 False light invasion of privacy is recognized in Arizona as a
tort separate from defamation. See Godbehere v. Phoenix Newspapers, Inc., 162
Ariz. 335, 340, 783 P.2d 781, 786 (1989). The distinction between defamation
and false light invasion of privacy is, however, subtle. Id. To establish a
claim for false light invasion of privacy, a plaintiff must show (1) the
defendant, with knowledge of falsity or reckless disregard for the truth,
gave publicity to information placing the plaintiff in a false light, and (2)
the false light in which the plaintiff was placed would be highly offensive
to a reasonable person in the plaintiff’s position. Id. at 338, 340, 783 P.2d at
784, 786 (quoting Restatement § 652E). Although a cause of action for false
light invasion of privacy may arise when someone publishes something
untrue about a person, in some instances, even a true statement may form
the basis for false light liability if it creates a false implication about the
person. See id. at 341, 783 P.2d at 787 (“[T]he false innuendo created by the
highly offensive presentation of a true fact constitutes the injury.” (citing
Restatement § 652E)).
¶30 In this case, the superior court did not err in denying Petta’s
motions for judgment as a matter of law. Legitimate questions of fact
existed as to both the defamation and false light invasion of privacy claims.
The parties hotly contested whether Petta’s statements were true, and
15 The United States Supreme Court has determined that “in cases
raising First Amendment issues . . . an appellate court has an obligation to
‘make an independent examination of the whole record’ in order to make
sure that ‘the judgment does not constitute a forbidden intrusion on the
field of free expression.’” Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990)
(quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284–286
(1964))). “The question whether the evidence in the record in a defamation
case is sufficient to support a finding of actual malice is a question of law.”
Id. (quoting Harte–Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685
(1989)).
13
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Opinion of the Court
although the jury could have found that some of Petta’s statements about
Plaintiffs were either true or substantially true, or constituted matters of
opinion or hyperbole, it also could have found (and obviously did find) that
at least some of Petta’s statements conveyed a defamatory meaning and/or
painted Plaintiffs in a false light.16 See Burns, 196 Ariz. at 165, ¶ 39, 993 P.2d
at 1129; Godbehere, 162 Ariz. at 338, 783 P.2d at 784. The jury was in the best
position to resolve these material questions of fact. Further, once the jury
found Petta’s statements were defamatory or constituted a false light tort,
it was within the jury’s province to consider any actual damage to
Plaintiffs’ reputations and/or any emotional damage or damage to
sensibility. See Burns, 196 Ariz. at 165, ¶ 39, 993 P.2d at 1129; Godbehere, 162
Ariz. at 340, 783 P.2d at 786.
IV. Petta’s Statements to Government Agencies and Officials
¶31 Petta argues her statements to government administrative
agencies, such as the AMB, and her statements to government officials, such
as the Arizona Ombudsman - Citizens’ Aide, were privileged and therefore
could not be actionable. We find no error.
¶32 At common law, an absolute privilege existed for those
reporting professional misconduct to administrative agencies. See
Advanced Cardiac Specialists, Chartered v. Tri-City Cardiology Consultants, P.C.,
222 Ariz. 383, 386, ¶ 7, 214 P.3d 1024, 1027 (App. 2009); Drummond v. Stahl,
127 Ariz. 122, 125-26, 618 P.2d 616, 619-20 (App. 1980). By statute, “[a]ny
person or entity that reports or provides information to the [AMB] in good
faith is not subject to an action for civil damages.” A.R.S. § 32-1451(A).
Under § 32-1451(A), regarding complaints to the AMB, “the common-law
absolute privilege has been fully abrogated in favor of a qualified privilege
for those acting ‘in good faith.’” Advanced Cardiac Specialists, 222 Ariz. at
387, ¶ 11, 214 P.3d at 1028. “A conditional privilege is abused and forfeited
when a defendant acts with malice in fact.” Hirsch v. Cooper, 153 Ariz. 454,
458, 737 P.2d 1092, 1096 (App. 1986) (citation omitted), disapproved on other
grounds by Godbehere, 162 Ariz. at 339 n.1, 783 P.2d at 785 n.1. “An abuse
16 The superior court recognized this fact before trial when, in denying
Petta’s motion for summary judgment as to Plaintiffs’ defamation claim, the
court noted that “many of [the Doctors’] claimed defamatory statements
appear questionable (and probably not actionable). The record supports,
however, at least the notion that Petta published a statement that Dr.
Carlotti was ‘messed up on narcotics treating patients.’” (Emphasis in
original.) Moreover, even if truthful, some of Petta’s statements might have
painted Plaintiffs in a false light.
14
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Opinion of the Court
through ‘actual malice’ occurs when the defendant makes a statement
knowing its falsity or actually entertaining doubts about its truth.”
Advanced Cardiac Specialists, 222 Ariz. at 388, ¶ 14, 214 P.3d at 1029. To take
a matter outside the scope of this qualified privilege, a plaintiff must prove
by clear and convincing evidence the speaker abused the privilege.
Id. at 387, ¶ 13, 214 P.3d at 1028.
¶33 No question exists that Petta’s statements to the AMB and
other agencies were made within the ambit of a qualified privilege. See
A.R.S. § 32-1451; Advanced Cardiac Specialists, 222 Ariz. at 387, ¶¶ 11-12, 214
P.3d at 1028. Further, Petta claimed, and the jury was instructed without
objection on, both qualified privilege with regard to her reports to the AMB
and Dental Board and absolute privilege with regard to her statements to
government officials.17 Nevertheless, the question whether Petta abused
her qualified privilege for filing complaints with the AMB involved a
factual determination about her motivations, especially in light of her
persistent serial complaints against Plaintiffs. Petta contended she did not
act out of spite or to ruin Plaintiffs’ reputations or to injure their business.
Plaintiffs, however, offered evidence Petta abused her qualified privilege,
and the jury could have concluded Plaintiffs met their burden of
proving Petta’s statements to the AMB and other agencies were made
with malice – that is, were knowingly false or made while entertaining
doubts of their truth. Advanced Cardiac Specialists, 222 Ariz. at 388, ¶ 14,
214 P.3d at 1029. We presume the jury followed the superior court’s
instructions. See Wendland v. AdobeAir, Inc., 223 Ariz. 199, 207, ¶ 28, 221
P.3d 390, 398 (App. 2009).
¶34 Furthermore, because the jury was not provided special
interrogatories or special verdict forms for each damage component, we
cannot determine whether the jury held Petta liable for defamation and/or
false light invasion of privacy in connection with her statements to the
AMB, other agencies, and/or government officials. See Murcott v. Best W.
Int’l, Inc., 198 Ariz. 349, 361, ¶¶ 64, 66, 9 P.3d 1088, 1100 (App. 2000)
17 With regard to other government officials, the court instructed the
jury without objection that, although Petta could not be held liable for
complaining to government officials, the jury could “consider the
underlying substance of the statements made as evidence of [Petta’s]
motive and intent regarding actionable acts under these instructions,
including whether [Petta] acted with an evil mind, intended to cause injury,
or was motivated by spite or ill will, as set forth in the instruction on
punitive damages.”
15
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Opinion of the Court
(recognizing this court will “uphold a general verdict if evidence on any
one count, issue, or theory sustains the verdict” (citations omitted)).
V. Denial of Petta’s Motion for New Trial or Remittitur
¶35 Compensatory or actual damages in tort cases provide
compensation for a plaintiff’s injury caused by a defendant’s wrongful
conduct. See State v. Griswold, 8 Ariz. App. 361, 364, 446 P.2d 467, 470 (1968);
U.S. Fid. & Guar. Co. v. Davis, 3 Ariz. App. 259, 262-63, 413 P.2d 590, 593-94
(1966).
¶36 Petta argues the superior court erred in denying her motion
for new trial or remittitur because the actual damages awarded were
excessive. In considering Petta’s motion, the superior court agreed with
Petta that the verdict “was on the high side, bigger than I expected,” and
noted “[t]he real question in my mind is to go back again and look and see
whether we ought to do something because the numbers are that high.”
After finding Petta had raised a “colorable issue” whether the actual
damages awarded were excessive and unsupported by the evidence, the
court nonetheless denied Petta’s motion. We agree with Petta that, on this
record, the damages awarded were wholly excessive and unsupported by
the evidence.
¶37 We review for an abuse of discretion the superior court’s
denial of a motion for new trial or remittitur. Monaco v. HealthPartners of
S. Ariz., 196 Ariz. 299, 304, ¶ 13, 995 P.2d 735, 740 (App. 1999); Mammo v.
State, 138 Ariz. 528, 532, 675 P.2d 1347, 1351 (App. 1983).
¶38 “A remittitur is a device for reducing an excessive verdict to
the realm of reason.” Muccilli v. Huff’s Boys’ Store, Inc., 12 Ariz. App. 584,
590, 473 P.2d 786, 792 (1970). Remittitur should be ordered only for the
most cogent reasons, such as a lack of evidence supporting the damages
awarded. Yakima Compost Co., 224 Ariz. at 607, ¶ 52, 233 P.3d at 1186(citations omitted). Nevertheless, if a verdict is so unfair, unreasonable, and
outrageous as to shock the conscience of the court, or is plainly the product
of passion, prejudice, mistake, or disregard of the evidence, a court may
grant a remittitur or a new trial. See Haralson v. Fisher Surveying, Inc., 201
Ariz. 1, 6, ¶ 21, 31 P.3d 114, 119 (2001); Acheson v. Shafter, 107 Ariz. 576,
579, 490 P.2d 832, 835 (1971); Meyer v. Ricklick, 99 Ariz. 355, 357, 409 P.2d
280, 281 (1965); Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372
P.2d 703, 707 (1962); Sheppard v. Crow-Barker-Paul No. 1 Ltd. P’ship, 192
Ariz. 539, 549, ¶ 53, 968 P.2d 612, 622 (App. 1998). If it is clear the jury’s
verdict is a result of passion or prejudice, a court cannot merely offer a
16
DESERT PALM et al. v. PETTA
Opinion of the Court
remittitur on account of excessive damages, or grant a new trial limited to
the question of damages, but must grant a new trial on all issues. See Mayo
v. Ephrom, 84 Ariz. 169, 173-74, 325 P.2d 814, 817 (1958) (citations omitted).
¶39 In 1972, the Arizona Supreme Court examined representative
Arizona case law concerning appellate review of the size of jury verdicts
and the granting or refusing of a trial court’s adjustment of a verdict. In
Creamer v. Troiano, 108 Ariz. 573, 575, 503 P.2d 794, 796 (1972), Chief Justice
Hays explained the test for reviewing a trial court’s ruling on additur,
remittitur, and new trial because of an inadequate or excessive verdict as
follows:
From what we have written, it is obvious that the test
for reviewing the granting or refusing of a trial judge’s
adjustment of a verdict is complex and can only be solved by
an ad hoc approach. Almost always when there is a conflict
in the evidence, the trial judge should not interfere with what
is peculiarly the jury’s function, and if he does not, we will
nearly always uphold him. If there is no conflict in the
evidence on items that obviously were omitted from the
verdict, the trial judge must adjust, and we will uphold him if
he does. Behind all of these tests still stands the original
doctrine - that if the verdict is supported by adequate
evidence, it will not be disturbed, and the greatest possible
discretion is in the hands of the trial judge. In this court, the
ultimate test will always be justice, and any case before us which
shows an unjust result because of the granting or denial of either
additur or remittitur, will be reversed. Each case will be
considered upon its own facts.
Id. at 576-77, 503 P.2d at 797-98 (emphasis added).
¶40 We are fully aware that, previously in that opinion, the Chief
Justice pointed out that in each of the cases examined, the appellate court
had affirmed the trial court, and noted, “That in itself should carry a strong
inference that one of the key factors in our decisions is to give the trial judge
the benefit of the doubt. Like the jury, he has had the opportunity to
observe the witnesses’ demeanor on the stand, and his ruling on additur,
remittitur, and new trial, because of an inadequate or excessive verdict, will
generally be affirmed, because it will nearly always be more soundly based
than ours can be.” Id. at 575, 503 P.2d at 796. Nevertheless, as the Chief
Justice further explained:
17
DESERT PALM et al. v. PETTA
Opinion of the Court
The difficulty is that each case is slightly different, and
we have to adjust to them as they come before us. Hence, in
the later cases, the reasons for our opinions have not always
been stated in the same words. It is also true that emotions
such as passion and prejudice are rarely seen from the
reporter’s transcript, and must be sought - in this court - in
the size of the verdict compared to damages actually proved,
and tempered by how much of the damages are effectively
contradicted, the prestige of the doctors who testify,
undercover investigators, etc.
Id. at 575-76, 503 P.2d at 796-97. Accordingly, each case involving a request
for remittitur must stand or fall on its own peculiar facts, and the ultimate
test will always be justice. Any case which shows an unjust result because
of the grant or denial of remittitur must be reversed. See Sequoia Mfg. Co. v.
Halec Constr. Co., 117 Ariz. 11, 25, 570 P.2d 782, 796 (App. 1977) (citing
Creamer, 108 Ariz. at 576-77, 503 P.2d at 797-98).
¶41 We have thoroughly reviewed the entire record in the instant
case. The jury was instructed it could award actual damages stemming
from four different aspects of Plaintiffs’ alleged injury: (1) impairment
of Plaintiffs’ reputation and standing in the community; (2) personal
humiliation, mental anguish, and emotional distress; (3) financial damages
to Plaintiffs’ business, trade, profession, or occupation; and (4) financial
losses actually caused by any false and defamatory statement. The
evidence on damages was noticeably thin, entirely subjective, and based
solely on Plaintiffs’ non-specific, vague, and conclusory testimony.
Accordingly, the record plainly does not objectively support the
compensatory damages awarded. Plaintiffs offered no evidence of any net
loss to their income related to Petta’s statements. They called no
independent witnesses to support their contention that their respective
professional reputations had been damaged; no physician testified that he
or she declined to refer surgical candidates to Plaintiffs or that members of
the public otherwise declined to seek Plaintiffs’ services as a result of seeing
Petta’s web posts or learning of any professional board complaints.18
18 We also note Petta’s website statements were only available for
viewing for a very short time, and as Petta notes in her opening brief,
Plaintiffs provided no evidence of the number of visitors or “hits” to the
websites on which she posted her criticisms of Plaintiffs.
18
DESERT PALM et al. v. PETTA
Opinion of the Court
¶42 Before trial, the superior court noted its concern with
Plaintiffs’ lack of proof of causation and specific damages when the court
entered summary judgment against them on their injurious
falsehood/business disparagement and wrongful interference with
business relations claims,19 and Plaintiffs’ testimony at trial failed to further
illuminate their assertion that Petta’s statements caused them special
damages. Plaintiffs’ testimony about special damages was unsupported by
any documentary evidence, including any business operations analysis, tax
returns or similar exhibits, or expert testimony, and Plaintiffs’ own
conclusory statements provided little quantifiable evidence of their claimed
damages, leaving the jury to speculate regarding special damages. 20 See
Gilmore v. Cohen, 95 Ariz. 34, 36-37, 386 P.2d 81, 82-83 (1963) (recognizing in
a breach of contract case that “the plaintiff in every case should supply
some reasonable basis for computing the amount of damage and must do
so with such precision as, from the nature of his claim and the available
evidence, is possible” (citations omitted)).
¶43 Furthermore, the evidence presented does not support such
an excessive award of general damages. We are aware that Plaintiffs
19 In part, the court found Plaintiffs’ causation and damages evidence
suffered from vagueness and “a jury would be left to speculate regarding
damages.”
20 Dr. Carlotti testified, without documentary support, that the Doctors
spent “a fortune, like $100,000” in defending against Petta’s claims they had
altered her medical records, and incurred “a fortune” in legal fees
defending against the professional board complaints. Dr. Cabret-Carlotti
also testified that they lost their home to foreclosure; however, there were
no exhibits admitted to support such an assertion, let alone any business
analysis demonstrating any legitimate causal connection between Petta’s
web posts and the financial health of the Doctors’ practice or personal
finances. Dr. Cabret-Carlotti did testify in summary fashion that, in the
twelve months after Petta initiated her website, the Doctors’ “production”
dropped 36 percent, and “collections” for Dr. Carlotti dropped 70.6 percent,
from approximately $1.52 million in 2007 to approximately $444,000 by
2010, before he was “vindicated by the medical board.” However, as
counsel for Plaintiffs conceded at oral argument, Plaintiffs at trial provided
no evidence of any changes in their net income or how any such changes
were caused by Petta during the relevant time periods, which coincided
with a severe economic recession.
19
DESERT PALM et al. v. PETTA
Opinion of the Court
testified as to their own emotional distress, and Dr. Carlotti testified he had
lost weight and even contemplated suicide. However, the evidence also
indicates that, although some of Petta’s comments were actionable, much
of what Plaintiffs complained of was either true or substantially true, or
could be characterized as mere opinion (even if laced with spite), and did
not necessarily cast Plaintiffs in a false light.21
¶44 Moreover, the verdict rendered in this case was
approximately equivalent to the largest civil jury verdict in Arizona in 2013,
and is the thirtieth largest civil verdict in Arizona in the past ten years. See
Kelly Wilkins MacHenry, Arizona’s Civil Verdicts 2013, Ariz. Att’ny, June
2014, at 40, 50. The next largest reported civil jury verdict for a defamation
case in the last decade was $3,071,668, which ranks ninety-eighth in the top
one hundred Arizona verdicts. Id. at 54. Thus, the verdict in this case is
nearly four times the verdict entered in the next largest defamation case,
and it simply cannot be reconciled with other Arizona civil jury verdicts,
especially given the record before us.
¶45 Consequently, we are of the opinion that, by denying Petta’s
motion for new trial or remittitur, the superior court allowed Plaintiffs to
obtain an award of damages not supported by adequate evidence, and
allowed a verdict to stand that not only shocks the conscience of this court,
but was so extreme “as to manifestly indicate passion, prejudice, mistake or
a complete disregard of the evidence.” Tryon v. Naegle, 20 Ariz. App. 138,
141, 510 P.2d 768, 771 (1973) (citations omitted). Because the ultimate test
of a jury verdict is justice, and the judgment here cannot meet that test, we
must vacate the judgment. See Sequoia Mfg., 117 Ariz. at 25, 570 P.2d at 796
(citing Creamer, 108 Ariz. at 576-77, 503 P.2d at 797-98). Further, in this case
the issue of liability was vigorously contested by the parties, and the issues
of liability and damages are so inextricably intertwined that it is impossible
to determine the degree to which the quality of the evidence submitted on
one may have influenced the jury’s verdict on the other; accordingly, a new
trial on both liability and damages is mandated. See Tovrea Equip. Co. v.
21 Furthermore, from our review of the entire record, it is obvious
neither side was a model of propriety. The parties at times engaged in
petty, unprofessional, and vengeful behavior. Petta’s behavior and
language toward Plaintiffs, their staff, and other patients were wholly
inappropriate, and it is clear she ultimately attempted to engage Plaintiffs
in what amounted to a war of attrition, but substantial evidence indicates
the Doctors engaged in retaliatory behavior designed to further provoke
Petta, perhaps contributing to her outbursts and contested statements, and
thereby arguably provoked some of her improper behavior.
20
DESERT PALM et al. v. PETTA
Opinion of the Court
Gobby, 72 Ariz. 38, 42, 230 P.2d 512, 515 (1951); Styles v. Ceranski, 185 Ariz.
448, 451, 916 P.2d 1164, 1167 (App. 1996) (“Partial new trials are not
recommended because they create much opportunity for confusion and
injustice.” (citations omitted)); see also Englert v. Carondelet Health Network,
199 Ariz. 21, 27, ¶ 15, 13 P.3d 763, 769 (App. 2000) (“Any doubt should be
resolved in favor of a trial on all the issues.” (citations omitted)).
VI. Punitive Damages
¶46 Petta argues the superior court erred by submitting Plaintiffs’
claim for punitive damages to the jury and by refusing to grant judgment
as a matter of law on punitive damages. Because we have determined that
Petta is entitled to a new trial on both liability and damages, we vacate the
punitive damages award in this matter; however, as the legal sufficiency of
Plaintiffs’ punitive damages claim may arise on remand, we briefly address
Petta’s arguments on appeal.
¶47 Assuming an adequate evidentiary predicate, a jury may
award punitive damages to punish a defendant for willful or malicious
conduct and to deter others from similar behavior. Memphis Cmty. Sch. Dist.
v. Stachura, 477 U.S. 299, 306 n.9 (1986) (citation omitted); accord State Farm
Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (“It should be
presumed that a plaintiff has been made whole for his injuries by
compensatory damages, so punitive damages should only be awarded if
the defendant’s culpability, after having paid compensatory damages, is so
reprehensible as to warrant the imposition of further sanctions to achieve
punishment or deterrence.” (citation omitted)); Hudgins v. Sw. Airlines, Co.,
221 Ariz. 472, 486, 489, ¶¶ 38, 50, 212 P.3d 810, 824, 827 (App. 2009)
(recognizing that punitive damages should be awarded only in the most
egregious cases and are not intended to compensate plaintiffs but to punish
the wrongdoer and deter both the wrongdoer and others from future
harmful conduct).
¶48 To obtain an award of punitive damages, a plaintiff must
prove by clear and convincing evidence that the defendant engaged in
“reprehensible conduct combined with an evil mind over and above that
required for commission of a tort.” Linthicum v. Nationwide Life Ins. Co.,
150 Ariz. 326, 332, 723 P.2d 675, 681 (1986). “The key is the wrongdoer’s
intent to injure the plaintiff or his deliberate interference with the rights of
others, consciously disregarding the unjustifiably substantial risk of
significant harm to them.” Id. at 331, 723 P.2d at 680 (citing Rawlings v.
Apodaca, 151 Ariz. 149, 160, 726 P.2d 565, 576 (1986)); see also Volz v. Coleman
Co., 155 Ariz. 567, 570, 748 P.2d 1191, 1194 (1987) (recognizing that
21
DESERT PALM et al. v. PETTA
Opinion of the Court
recklessness or even gross negligence is insufficient to support punitive
damages).
¶49 We are mindful that “[a] grossly excessive punitive damage
award violates the Due Process Clause of the Fourteenth Amendment to the
United States Constitution because the defendant did not have ‘fair notice’ of
[her] exposure to the extent of punishment that could be imposed.” Hudgins,
221 Ariz. at 489, ¶ 50, 212 P.3d at 827 (citing BMW of N. Am., Inc. v. Gore, 517
U.S. 559, 574-75 (1996); State Farm, 538 U.S. at 417). In determining whether
a punitive damages award is so excessive as to be unconstitutional, a
reviewing court examines de novo three guideposts: (1) the degree of
reprehensibility of the defendant’s misconduct, (2) the ratio between
compensatory and punitive damages, and (3) how the award compares
with other penalties. Id. at 490, ¶ 51, 212 P.3d at 828 (citing Gore, 517 U.S. at
575; State Farm, 538 U.S. at 418).
¶50 Petta argues Plaintiffs failed to demonstrate by clear and
convincing evidence that her actions were reprehensible and guided by evil
motives. See Linthicum, 150 Ariz. at 332, 723 P.2d at 681; Rawlings, 151 Ariz.
at 162, 726 P.2d at 578; see also Medasys Acquisition Corp. v. SDMS, P.C., 203
Ariz. 420, 424, ¶ 18, 55 P.3d 763, 767 (2002) (“The critical inquiry should be
whether such an award is appropriate to penalize a party for ‘outwardly
aggravated, outrageous, malicious, or fraudulent conduct’ that is coupled
with an ‘evil mind.’” (quoting Linthicum, 150 Ariz. at 331, 723 P.2d at 680)).
Petta maintains her conduct did not rise to the level of “conduct involving
some element of outrage similar to that usually found in crime,” Rawlings,
151 Ariz. at 162, 726 P.2d at 578 (quoting Restatement § 908 cmt. b), and
without clear and convincing evidence of an “evil mind” that caused
Plaintiffs injury, the punitive damage award should be vacated. See
Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 184, ¶ 19, 24 P.3d
1274, 1279 (App. 2001) (recognizing “the conduct giving rise to punitive
damages must be a proximate cause of the harm inflicted”); see also Shaner
v. Tucson Airport Auth., Inc., 117 Ariz. 444, 448, 573 P.2d 518, 522 (App.
1977) (stating that the evidence must establish a “reasonable probability”
that a defendant’s conduct caused the plaintiff’s alleged harm).
¶51 As we have noted, the evidence in this case was hotly
contested, and Plaintiffs presented substantial evidence from which the
jury could have found Petta engaged in reprehensible conduct intended to
injure Plaintiffs’ business and professional reputations and was motivated
by an “evil mind.” Evidence was presented that Petta’s conduct involved
repeated actions (by posting her comments to several websites and making
or assisting in the filing of numerous board complaints) and the jury could
22
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Opinion of the Court
have found any resulting harm was the result of intentional malice. See
Hudgins, 221 Ariz. at 490, ¶ 52, 212 P.3d at 828 (citing State Farm, 538 U.S. at
419). Although substantial evidence was also presented that militated
against finding Petta acted in a highly reprehensible manner, we find no
error in the superior court’s decision to allow the jury to consider Plaintiffs’
claim for punitive damages.
VII. Petta’s Counterclaim for Medical Battery
¶52 Petta also argues the superior court erred in granting
summary judgment on her counterclaim for medical battery. Petta
acknowledges she consented to surgery on her nose in January 2008, but
maintains she did not consent to the particular procedure (allegedly
shortening and turning up her nose) performed by the Doctors at that time.
¶53 Plaintiffs maintain Petta lacks standing because, once she
filed for bankruptcy, her claim for medical battery became property of her
bankruptcy estate, subject to the sole direction and control of the
Chapter 7 trustee. See In re Bailey, 306 B.R. 391, 392 (Bankr. D.D.C. 2004)
(“In a chapter 7 bankruptcy case, any unliquidated lawsuits initiated by a
debtor prepetition (or that could have been initiated by the debtor
prepetition) become part of the bankruptcy estate subject to the sole
direction and control of the trustee, unless exempted or abandoned or
otherwise revested in the debtor.”); accord DCFS USA, LLC v. Dist. of
Columbia, 820 F. Supp. 2d 1, 3-4 (D.D.C. 2011) (“As soon as a debtor files a
bankruptcy case all legal or equitable interests, including causes of action
on behalf of the debtor, are transferred from the debtor to the bankruptcy
estate. In a Chapter 7 case, after a trustee is appointed, only the trustee can
bring actions on behalf of the estate. Thus a debtor has no standing to
prosecute estate actions once a trustee has been appointed.” (internal
quotations and citations omitted)).
¶54 Plaintiffs are correct that a Chapter 7 debtor’s claim in a
lawsuit is property of the bankruptcy estate. See 11 U.S.C. § 541. Petta
contends, however, that she “litigated the issue of ownership of her
appeal rights against the bankruptcy trustee and prevailed.” In support of
her contention, she has provided this court with a minute entry order
from the bankruptcy court indicating that, on November 28, 2012, the
court denied the trustee’s motion to sell Petta’s “interest in state court
litigation case CV2008-010464.” Although at oral argument Plaintiffs
disputed Petta’s contention, we conclude on this record Petta has the right
to assert her challenge to the superior court’s grant of summary judgment
regarding her claim for medical battery.
23
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Opinion of the Court
¶55 Plaintiffs next argue they were entitled to summary judgment
on Petta’s claim for medical battery because Petta consented to a “revision
nasal tip surgery” and acknowledged before the surgery that her results
were not guaranteed, and is now simply complaining about the results
rather than the scope of the surgery. We disagree with Plaintiffs’
conclusion.
¶56 We review de novo the superior court’s grant of summary
judgment and its application of the law. Andrews v. Blake, 205 Ariz. 236, 240,
¶ 12, 69 P.3d 7, 11 (2003); State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120,
122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999). In our review, we construe the facts
and reasonable inferences in the light most favorable to the party opposing
summary judgment. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement
Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13, 38 P.3d 12,
20 (2002); Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 10, 36 P.3d
1200, 1203 (App. 2001). Summary judgment is proper if no genuine issues
of material fact exist and the moving party is entitled to judgment as a
matter of law. Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008; Ariz. R. Civ. P.
56(c)(1).
¶57 “A medical malpractice action brought against a licensed
health care provider shall not be based upon assault and battery.” A.R.S.
§ 12-562(B). Nevertheless, “claims involving lack of consent, i.e., the
doctor’s failure to operate within the limits of the patient’s consent, may
be brought as battery actions.” Duncan v. Scottsdale Med. Imaging, Ltd., 205
Ariz. 306, 310, ¶ 13, 70 P.3d 435, 439 (2003). For consent to be effective, it
must be “to the particular conduct, or substantially the same conduct.” Id.
at 311, ¶ 16, 70 P.3d at 440 (citing Restatement § 892A(2)(b)). As our
supreme court further observed in Duncan:
The terms and reasonable implications of the consent given
determine the scope of the particular conduct covered.
Restatement § 892A cmt. d. The “scope” of consent is an issue
for the trier of fact to determine. Id.; see also Cathemer v.
Hunter, 27 Ariz. App. [780,] 785, 558 P.2d [975,] 980 [(1976)]
(holding a jury question existed as to whether a patient
consented to an operation and whether the operation received
was “substantially similar” to the operation to which the
patient consented so as to be within the scope of the consent).
“[A]nything greater or different than the procedure
consented to becomes a battery.” Hales [v. Pittman], 118 Ariz.
[305,] 310, 576 P.2d [493,] 498 [(1978)].
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DESERT PALM et al. v. PETTA
Opinion of the Court
Duncan, 205 Ariz. at 311, ¶ 16, 70 P.3d at 440.
¶58 “[W]hen a patient gives limited or conditional consent, a
health care provider has committed a battery if the evidence shows the
provider acted with willful disregard of the consent given.” Id. at ¶ 18; see
also Meretsky v. Ellenby, 370 So. 2d 1222, 1224 (Fla. Dist. Ct. App. 1979)
(holding that, when a physician allegedly ignored the instructions of a
patient and operated on the tip of the patient’s nose, causing a “turned up”
nose, the patient’s general consent to rhinoplasty was not conclusive proof
the patient had consented to the additional work, and an action for battery
could be brought).
¶59 Plaintiffs argue and the superior court found that Petta’s
battery claim should fail because she consented to the surgery. However,
Petta’s general authorization of a surgery on her nose does not defeat her
battery claim because her consent was allegedly limited. According to Petta,
she explicitly conditioned her consent to removal of the scar tissue on the
dorsal aspect of her nose, and expressly rejected the suggestion of any
further surgical shortening or alteration of her nose. Thus, there was
admissible evidence that any surgery beyond removal of the dorsal scar
tissue was not consensual. See Duncan, 205 Ariz. at 310-11, ¶ 15, 70 P.3d at
439-40. Further, given the photographic evidence and Dr. Caniglia’s report,
a reasonable jury could find Petta’s nose had been shortened and “turned
up” by the surgery, and the limited information provided on the signed
consent and release forms leaves open to interpretation whether the surgery
exceeded the scope of Petta’s authorized consent. The parties characterize
differently the surgery to which Petta consented, and the relevant inquiry is
not whether Petta consented to surgery; rather, whether she consented to
the particular procedure Plaintiffs performed. See id. at ¶ 18. On this record,
the superior court erred in granting Plaintiffs’ motion for summary
judgment as to Petta’s counterclaim for medical battery. Accordingly, we
remand that claim for trial as well.22
22 Plaintiffs do not argue, and we do not address, Plaintiffs’ argument
made in support of their motion for summary judgment that Petta’s
counterclaim fails because Petta cannot identify which of the Doctors
performed the surgery.
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DESERT PALM et al. v. PETTA
Opinion of the Court
CONCLUSION
¶60 We affirm the superior court’s denial of Petta’s motions for
judgment as a matter of law. We vacate the judgment in favor of Plaintiffs
and remand for a new trial, however, because the jury verdict cannot be
supported by the damages evidence presented and shocks the conscience
of this court. We also reverse the superior court’s summary judgment on
Petta’s counterclaim for medical battery.
:ama
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