Covino v. Forrest ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GLENNA COVINO, Plaintiff/Appellant,
v.
TERRY FORREST and DEBORAH A. FORREST, husband and wife;
JEFFREY COVINO and JUDY COVINO, husband and wife,
Defendants/Appellees.
No. 1 CA-CV 13-0433
FILED 07-03-2014
Appeal from the Superior Court in Maricopa County
No. CV2010-070608
The Honorable Eileen S. Willett, Judge
AFFIRMED
COUNSEL
Morris Law Firm PLLC, Surprise
By Richard W. Morris
Counsel for Plaintiff/Appellant
Charles M. Giles Attorney at Law, Tucson
By Charles M. Giles
Counsel for Defendants/Appellees
COVINO v. FORREST et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Glenna Covino, in both her individual and trustee capacity
(collectively, Glenna), brought an action against her step-children, Jeffrey
Covino and Deborah Forrest, and their spouses (collectively, Defendants),
for, inter alia, conversion and unjust enrichment. The conversion claim
was tried to a jury, which found for Glenna and awarded $15,000 in
damages. The unjust enrichment claim was submitted to the trial court,
which found against Glenna. Following the jury’s verdict, she filed a
comprehensive motion attacking the damages award, which the trial court
denied in full.
¶2 Glenna appealed, asserting: 1) the trial court abused its
discretion in denying her motion for partial summary judgment on the
conversion claim; 2) the trial court erred in denying her numerous post-
verdict motions attacking the sufficiency of the conversion damages; and
3) the trial court erred by finding in favor of Defendants on her unjust
enrichment claim. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 Charles Covino, Jeffrey and Deborah’s father, decided to
move to Arizona, where Jeffrey and Deborah lived, in or around 2003,
following the death of his first wife. To this effect, he sold two real estate
properties located in New York and New Jersey, and used the proceeds to
purchase a house in Arizona (Arizona house); he also purchased 300
Krugerrands. 1
¶4 In May 2006, Charles married Glenna. Shortly thereafter, the
couple began establishing their estate plan. On January 18, 2007, they
1Krugerrands are South African one ounce gold bullion coins. USA Gold,
http://www.usagold.com/gold/coins/krugerrand.html (last visited May
21, 2014).
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executed the Covino Family Living Trust (Covino Trust). The Covino
Trust provided that in the event Charles predeceased Glenna, Glenna
would become the Trustee of her trust assets in a revocable living trust
known as “Trust A.” Also, Glenna was to then serve as Trustee of
Charles’s trust assets under the newly formed “Trust B,” created within
the Covino Trust. The Covino Trust further provided:
From this TRUST B the Trustee shall allow GLENNA L.
COVINO the use and enjoyment of [the Arizona house]
during her lifetime. Also, the Trustee shall allow GLENNA
L. COVINO to drawn [sic] on the income and/or principal
of the remaining corpus of TRUST B for her health,
maintenance and support needs as the Trustee deems
appropriate. If GLENNA L. COVINO determines that her
continued use and enjoyment of the home is unreasonable,
then she can direct the Trustee to sell the home and
thereafter the Trustee shall pay to GLENNA L. COVINO,
from the sale proceeds of the home, a monthly allowance of
three thousand dollars . . . until her death.
Upon the death of GLENNA L. COVINO, the Trustee shall
divide the remainder of Trust B assets equally among JOHN
A. COVINO, DEBOARH A. FORREST AND JEFFERY [sic]
C. COVINO.
¶5 That same day, the couple executed several other ancillary
documents to effectuate the purpose of the Covino Trust. The first
document was a “Community Property Agreement,” in which they
converted any property they had acquired as joint tenants into community
property. They also executed an “Assignment of Personal Property,”
which assigned to the Covino Trust “[a]ll of our present and future
interest in and to all of our personal property and household goods,
furnishings located in any home we might own or have an interest in now
or hereafter.” Charles also executed a will. The will provided that Glenna
was to receive “any interest [Charles] may have in all personal
automobiles, clothing, jewelry, china, silver, books, pictures and other
works of art, household furniture and furnishings and all other items of
domestic, household or personal use.” If Glenna did not survive Charles,
these items were directed to be placed in the Covino Trust. Charles’s will
also contained a residuary clause, whereby Charles devised the rest of his
separate and community property to the Covino Trust.
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¶6 Charles died on August 15, 2010, predeceasing Glenna. Five
days later, Jeffrey and Deborah went to the Arizona property and
removed numerous items, including four safes (which held the
Krugerrands and various other coins), guns, and other sentimental items
they contended Charles had gifted them during his lifetime. 2 After
Glenna told them the items belonged to the Covino Trust and requested,
to no avail, the items be returned, Glenna filed this action on November 5,
2010, against the Defendants, alleging claims of: 1) conversion, 2) trespass,
3) unjust enrichment, 4) infliction of emotional distress, and 5) breach of
duty to a vulnerable adult. The Defendants answered and filed counter
claims for breach of duty to a vulnerable adult and reformation of the
trust.
¶7 Following discovery, Glenna moved for partial summary
judgment on her conversion and unjust enrichment claims, arguing the
removed items became part of the Covino Trust upon Charles’s signing of
his “Assignment of Personal Property,” or alternatively upon Charles’s
death by way of his the residuary clause of his will. In response,
Defendants asserted summary judgment was inappropriate as questions
of material fact existed concerning whether they had been gifted the items
by Charles, which would have removed the items from the purview of
either document Glenna relied upon. The Defendants also cross-moved
for summary judgment, arguing Glenna had not provided competent
evidence the safes and guns had not been gifted to them. The trial court
denied both motions without comment.
¶8 A three day jury trial commenced in late February 2013.
Glenna testified twenty-four different items were taken from her residence
2 At trial, Glenna admitted into evidence a list of items she believed the
Defendants removed. The full list includes: 210 Krugerrand gold coins,
other miscellaneous gold coins, 100 ounce silver ingot, a bronze cannon,
109 grams of 18 carat gold, Carl Zeiss Binoculars, an Orbis Batton Kill [sic]
fly rod, 2 Waltham pocket watches, miscellaneous Civil War relics and
replicas, a car phone, 350 Morgan Brilliant Uncirculated Silver Dollars, 110
“silver dimes,” 125 “silver quarters,” an ASM 44 cal. black powder
firearm, a Ruger 223 firearm, a Weatherby 30/06 firearm, a Winchester 12
gauge shotgun, 2 field binoculars, a 4.21 bore cannon, an 80 cal. Cannon, 5
swords and their rack, 5 battle axes, “1557 Kennedy Half Dollars 1964,”
and 350 Liberty Half Dollars. The Defendants admitted removing all of
the items on the list, except for the 100 ounce silver ingot, the 350 Morgan
Silver Dollars, and the Kennedy and Liberty Half Dollars.
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and that it was her understanding they belonged to the Covino Trust. She
admitted several items had been returned to her, 3 but estimated the value
of the outstanding items taken approached $432,000, with the 210
Krugerrands, alone, estimated to be worth approximately $349,000. She
retrieved her estimated values from the internet.
¶9 Each defendant also testified. The gist of their collective
testimony was that the guns, safes and the safes’ contents, including the
210 Krugerrands they contended were purchased as an investment for
them, were purchased by Charles before he married Glenna and gifted by
Charles to Jeffrey and Deborah many years before his death. At the close
of testimony, Glenna moved for a directed verdict on her conversion
claim, which was denied.
¶10 Subsequently, only Glenna’s conversion claim was
submitted to the jury, as the parties agreed to submit the unjust
enrichment and reformation of trust claims to the court; the balance of the
claims were dismissed with prejudice at some point during the
proceedings. The jury received two general verdict forms: one to be used
in the event the jurors found in favor of Glenna, the other if the jurors
found in favor of Defendants. The form to be used if they found in favor
of Glenna allowed the jury to determine which of the four defendants, if
not all, were liable and allowed the jury a line upon which to insert an
amount reflecting “the full damages.” 4 Ultimately, the jury found Jeffrey
3 Prior to trial, upon Glenna’s motion, the trial court ordered the disputed
items be stored at T & T Estate Service for safekeeping during the
proceedings. It was T & T Estate Service that returned the items to
Glenna, rather than the Defendants.
4 The general verdict form at issue here reads:
(Use if you find for the Plaintiff on Conversion Claim)
We, the Jury, duly empanelled and sworn in the above-
entitled action, upon our oaths, do find in favor of Plaintiff
on her claim of conversion and find the full damages to be
$__________.
We find one or more of the Defendants caused and liable for
these damages (check only one box for each Defendant)
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and Deborah liable for conversion and awarded Glenna $15,000 in
damages.
¶11 Thereafter, the parties submitted briefs to the trial court on
Glenna’s unjust enrichment claim. After taking into account the trial
testimony, the admitted exhibits, and the jury’s verdict, the trial court
found Glenna had an appropriate remedy at law (her conversion claim)
for the relief she sought in her unjust enrichment claim, and determined
Glenna failed to meet her burden of proof. Also, it dismissed Defendants’
reformation of trust claim with prejudice because neither side pursued the
claim in the presented briefs.
¶12 Glenna then filed a “Motion for Judgment as a Matter of
Law, or Alternatively for a New Trial, or Alternatively for Additur, or
Alternatively for Correction of the Verdict’s Damages Amount; Motion for
Stay Pending Final Decision on All Post Trial Motions and Appeals.” The
crux of Glenna’s motion was her belief that the jury’s verdict in her favor
meant it found Jeffrey and Deborah had converted all of the items Glenna
asserted had been converted, and that since the parties had allegedly
stipulated to those items’ values, and the damages award ($15,000.00) was
inconsistent with the allegedly stipulated values and the evidence
admitted at trial, the verdict was in error. In an unsigned minute entry,
the trial court denied the motion, finding that damages were disputed,
that the jury resolved the dispute, and the award was justified by the
evidence presented at trial. Thereafter, Glenna filed a notice of appeal.
We suspended the appeal to allow Glenna to obtain a signed order from
the trial court, which she did. We have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) section 12-2101(A)(1), (5)(a).
Terry Forrest _______ Liable ______ Not Liable
Deborah A. Forrest _______ Liable ______ Not Liable
Jeffrey Covino _______ Liable ______ Not Liable
Judy Covino _______ Liable ______ Not Liable
The jury placed $15,000 in the damages blank, and found Jeffrey and
Deborah liable, while finding Judy and Terry not liable.
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DISCUSSION
¶13 Glenna essentially raises four issues on appeal. First, she
argues the trial court abused its discretion by denying her partial motion
for summary judgment on her conversion claim. Second, she argues the
trial court erred by denying her motion for judgment as a matter of law.
Third, she contends the trial court erred by denying her other post-verdict
motions regarding the amount of damages awarded on her conversion
claim. Finally, she asserts the trial court erred by finding in favor of the
Defendants on her unjust enrichment claim.
I. Denial of Summary Judgment
¶14 “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. 2008); see Sorenson v. Farmers Ins. Co.
of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997) (“A denial of a
motion for summary judgment is an intermediate order deciding simply
that the case should go to trial.”). In a case that has gone to trial, a party
that wishes to preserve the summary judgment issue, “with a possible
exception for a purely legal issue,” must reassert the issue in an Arizona
Rule of Civil Procedure 50 motion for judgment as a matter of law (JMOL)
or other post-trial motion. John C. Lincoln, 208 Ariz. at 539, ¶ 19, 96 P.3d at
537. Failure to do so results in a waiver of the party’s right to appeal the
denial. Id. In this instance, the trial court denied Glenna’s partial
summary judgment motion without further comment. Nonetheless,
Glenna did make an unsuccessful Rule 50(a) motion at the conclusion of
the trial’s evidentiary phase and has preserved the issue for appeal.
¶15 While Glenna asserts the standard of review of the denial of
a motion for summary judgment to be abuse of discretion, Sonoran Desert
Investigators, Inc. v. Miller, 213 Ariz. 274, ¶ 5, 276, ¶ 5, 141 P.3d 754, 756
(App. 2006), and alternative case authority holds that same denial
requires us to review the matter de novo, Bernal v. Loeks, 196 Ariz. 363, 364,
¶ 6, 997 P.2d 1192, 1993 (App. 2000) (grant or denial of summary
judgment reviewed de novo), we need not address the distinction as we
find the trial court did not err under either standard. Pursuant to the
specific language Arizona Rule of Civil Procedure 56, summary judgment
is warranted if no genuine issues of material fact exist and the moving
party demonstrates it is entitled to judgment as a matter of law. Ariz. R.
Civ. P. 56(a); Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14, 180
P.3d 977, 980 (App. 2008). The trial court should grant summary
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judgment 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.” Orme Sch. v. Reeves, 166 Ariz. 301,
309, 802 P.2d 1000, 1008 (1990).
¶16 Although Glenna moved for summary judgment on both the
conversion and unjust enrichment claims, on appeal she only contends the
trial court erred by denying her summary judgment motion on her
conversion claim. The tort of conversion is defined as “an act of wrongful
dominion or control over personal property in denial of or inconsistent
with the rights of another.” Case Corp v. Gehrke, 208 Ariz. 140, 143, ¶ 11, 91
P.3d 362, 365 (App. 2004) (quoting Sears Consumer Fin. Corp. v. Thunderbird
Prods., 166 Ariz. 333, 335, 802 P.2d 1032, 1034 (App. 1990)); Autoville, Inc. v.
Friedman, 20 Ariz. App. 89, 91, 501 P.2d 400, 402 (1973) (noting the
gravamen of conversion is the wrongful interference with another’s
ownership or right of possession). To bring a conversion claim, a plaintiff
must have had “the right to immediate possession” of the personal
property “at the time of the alleged conversion.” Universal Mktg. & Entm’t
Inc. v. Bank One of Ariz., N.A., 203 Ariz. 266, 268, ¶ 6, 53 P.3d 191, 193 (App.
2002).
¶17 A review of the parties’ motions reveals the existence of
genuine issues of material fact, and that the trial court did not err by
denying Glenna’s motion for partial summary judgment. Glenna alleged
the Covino Trust owned the items in dispute at the time Jeffrey and
Deborah removed them from the property as a result of Charles’s
assignment of personal property to the trust in 2007. Alternatively,
Glenna argued the disputed personal property “poured over” into the
Covino Trust at Charles’s death by virtue of the specific provisions of his
will.
¶18 In response, the Defendants provided signed declarations
from Jeffrey, Deborah, and Deborah’s husband, Terry, alleging that the
guns, safes, and the safe’s contents, including the coins, were given to
them well before the Covino Trust was created, and prior even to
Charles’s marriage to Glenna, and were, therefore, not a part of Charles’s
estate. The Defendants also argued the language of the Covino Trust
documents and Charles’s will bolstered their position, as none of those
documents specifically listed, within their inventories, the guns, safes or
coins; that is to say, Charles did not purport to include those items within
the res of the trust as their disposition had already been addressed
through gifting them to his children. Moreover, the Defendants attached
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an estate valuation form completed by both Glenna and Charles in
December 2008, nearly two years following the formation of the Covino
Trust, which listed the value of all household items at $100,000; a sum
clearly inconsistent with the value Glenna attached to what she asserted to
be the converted property.
¶19 Viewing the evidence and drawing all reasonable inferences
in the light most favorable to Defendants as the non-moving party, a
genuine issue of material fact sufficient to defeat a motion for summary
judgment existed as to whether Charles had made a valid inter vivos gift of
the items to Jeffrey and Deborah. This, in turn, created a question of fact
as to who the owner(s) of the items at issue was/were at the time
Defendants removed them. Ownership, of course, is central to the issue of
conversion. See Case Corp., 208 Ariz. at 143, ¶ 11, 91 P.3d at 365. When
questions of material fact exist, summary judgment is inappropriate.
Orme Sch., 166 Ariz. at 306, 802 P.2d at 1005. Accordingly, the trial court
did not abuse its discretion in denying Glenna’s motion for partial
summary judgment on her conversion claim.
II. Motion for Judgment as a Matter of Law
¶20 Following the jury’s verdict, Glenna filed a motion for
JMOL, pursuant to Arizona Rule of Civil Procedure 50(b). The trial court
denied that motion, and Glenna now argues it erred in doing so.
¶21 We review the denial of a motion for a JMOL de novo.
Goodman v. Physical Res. Eng’g, Inc., 229 Ariz. 25, 27, ¶ 6, 270 P.3d 852, 854
(App. 2011). We will uphold the court’s denial unless “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.”
Id. at 28, ¶ 6, 270 P.3d at 855 (quoting A Tumbling-T Ranches v. Flood Control
Dist. of Maricopa Cnty., 222 Ariz. 515, 524, ¶ 14, 217 P.3d 1220, 1229 (App.
2009)). In our review, we view the evidence in the light most favorable to
upholding the jury’s verdict, and will affirm “if any substantial evidence
exists permitting reasonable persons to reach such a result.” A Tumbling-T
Ranches, 222 Ariz. at 524, ¶ 14, 217 P.3d at 1229.
¶22 Glenna moved for JMOL only upon the issue of the damages
award, arguing the jury’s verdict in her favor on the conversion claim
demonstrated, as addressed above, that the jury rejected Defendants’ gift
theory as to all of the items, and, therefore, the jury was required to return
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a damages award consistent with the allegedly stipulated values of all of
the items. We disagree.
A. Evidence of Gift
¶23 First, we note Defendants’ gift defense does not fail as a
matter of law as there was sufficient evidence provided at trial to allow a
reasonable jury to find gifts had been made to Defendants. A valid inter
vivos gift requires donative intent, delivery, and vesting of irrevocable title
in donee. Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 823 (1970). The
purported donee must prove the gift with clear and convincing evidence.
O’Hair v. O’Hair, 109 Ariz. 236, 240, 508 P.2d 66, 70 (1973). However, a
lesser burden of proof is required for a gift between a parent and child.
Armer, 105 Ariz. at 289, 463 P.2d at 823; Stewart v. Damron, 63 Ariz. 158,
167, 160 P.2d 321, 325 (1945). The jury was properly instructed on each of
these points.
¶24 Here, Jeffrey, Deborah, and Terry all testified that Charles
specifically told them the safes and the contents of the safes, which
included the Krugerrands and various guns, were his children’s. Deborah
and Terry testified that Charles re-affirmed the items belonged to his
children on several occasions in Glenna’s presence. Although Glenna
testified Charles never told her he had given the gold coins to anybody,
such a conflict in evidence is to be resolved by the jury. Lashonda M. v.
Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82, ¶ 16, 107 P.3d 923, 928 (App.
2005).
¶25 Contrary to Glenna’s contention, evidence was also
presented to support the inference that the safes and their contents were
delivered to the Defendants. What constitutes a sufficient delivery for
purposes of a valid gift “will depend very largely upon the nature of the
subject-matter of the gift, and the situation and circumstances of the
parties.” Ariz. Title Guarantee & Trust Co. v. Wagner, 75 Ariz. 82, 88, 251
P.2d 897, 901 (1952). Delivery may be made through actual delivery of
the subject matter of the gift, or through constructive delivery. Id. at 89,
251 P.2d at 902. “The traditional understanding is that a delivery is
constructive if the donor gives the donee the means of obtaining
possession or control of the subject of the gift, for example by giving the
donee the key to the place where the property is located.” Restatement
(Third) of Property (Wills & Don. Trans.) § 6.2 cmt. g (2003).
¶26 Deborah testified Charles had given Jeffrey and her the safe
combinations and told her they were the only persons with that
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knowledge. In conformity with this statement, she also testified Charles
had not given the combinations to Glenna. Glenna testified that she did
not know the combinations off-hand, and in an earlier interrogatory stated
she had known them at one point, but could no longer remember them.
With this testimony, the jury could have reasonably determined the safes,
and the items contained within, were delivered to the Defendants through
Charles’s delivery of the combinations. As to the third element required
for a valid gift, no evidence was provided that would contradict the
assertion Charles had vested irrevocable title of the items in his children
or that he acted inconsistent with having provided the items as a gift to his
children. With that, we turn to Glenna’s argument that the jury finding in
her favor necessarily meant it found the Defendants converted every item
taken from the property.
B. “All or Nothing” Defense
¶27 Glenna argues the jury’s general verdict in her favor
precluded the possibility the jury could have found some of the items
were gifted to Defendants while others were not. Given this, she argues
she was entitled to a damages award equal to the sum of the values
(which she contends were stipulated) of all of the items. Essentially, she
argues that because the jury found the Defendants liable for conversion
generally, the jury must have necessarily found the Defendants converted
each and every item they took from the Arizona house.
¶28 First, the record does not support Glenna’s contention the
exact values of the items had been stipulated to by the parties. The
general rule is parties are bound by their stipulations unless relieved from
them by the court. Harsh Bldg. Co. v. Bialac, 22 Ariz. App. 591, 593, 529
P.2d 1185, 1187 (1975). “A stipulation is an agreement, admission or
concession made in a judicial proceeding by the parties thereto or their
attorneys, in respect to some matter incident thereto, for the purpose,
ordinarily, of avoiding delay, trouble and expense.” Id. (quoting Bekins
Van & Storage Co. v. Indus. Comm’n of Ariz., 4 Ariz. App. 569, 570, 422 P.2d
400, 401 (1967)) (internal quotation marks omitted).
¶29 The joint pre-trial statement, within a section entitled
“Stipulations of material fact and law,” contained a table listing “[t]he
descriptions and estimated values of the personal property items that are
an issue in this litigation.” As Defendants note, the values contained
within the pre-trial statement were merely estimates. Although the jury
was instructed to consider any stipulated facts as proven, the record on
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appeal is devoid of any indication the jury was actually provided the
allegedly stipulated values from the pre-trial statement. 5
¶30 Regardless, the Defendants did not dispute Glenna’s stated
values, or the previously referenced exhibit, which placed the collective
value of the contested items in excess of $430,000. From this, based upon
her argument that the jury’s general verdict necessarily meant the jury
rejected the Defendants’ gift theory as to each item, Glenna argues she is
entitled to a damages award consistent with the aggregate value of the
items taken.
¶31 In support of her argument, Glenna cites Kaman Aerospace v.
Ariz. Bd. of Regents, 217 Ariz. 148, 156, ¶ 32, 171 P.3d 599, 607 (App. 2007),
which states “[a] general verdict implies a finding by the jury on every
essential fact in favor of the prevailing party.” Id. (quoting Lohmeier v.
Hammer, 214 Ariz. 57, ¶ 14, 148 P.3d 101, 106 (App. 2006)). Without
further developing this argument, Glenna contends this proposition
means the jury found that Jeffrey and Deborah converted every single item
they removed from the property. We disagree.
¶32 Generally, in the absence of special interrogatories, we will
uphold a jury’s verdict if supported by any theory presented at trial. See
State ex rel. Corbin v. United Energy Corp. of Am., 151 Ariz. 45, 52, 725 P.2d
752, 759 (App. 1986); Reese v. Cradit, 12 Ariz. App. 233, 238, 469 P.2d 467,
472 (1970). General verdicts have been reversed when the jury was
presented with multiple theories — some invalid and some valid — upon
which it could base its award and the reviewing court was unable to
discern whether the jury’s general verdict was rendered upon a properly
or improperly submitted theory. See Bruce Church, Inc. v. United Farm
Workers of Am., AFL-CIO, 169 Ariz. 22, 34, 816 P.2d 919, 931 (App. 1991); S.
Cas. Co. v. Hughes, 33 Ariz. 206, 218-19, 263 P. 584, 588-589 (1928).
5 Rather, the record illustrates that no stipulation was made. Glenna
testified at trial as to her belief of the items’ values. She also submitted
into evidence, without objection, another table listing the contested items
that contained values differing from the values stated in the pre-trial
statement. Also, her counsel, during closing arguments, told the jury,
“You’ll have to decide . . . what is the value of the things that [the
Defendants] took, that they converted . . . . You will have to make the
determination yourself as to what the value is. And in that regard, you
can take into account [Glenna’s] opinion.” Moreover, the trial court stated
that the “damages were in fact disputed.”
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Likewise, general verdicts have been disturbed when they were
potentially based upon impermissible, speculative evidence. See Lewin v.
Miller Wagner & Co., 151 Ariz. 29, 34-35, 725 P.2d 736, 741-42 (App. 1986).
Neither of these situations exist in the case at bar.
¶33 Here, although twenty four items were removed from the
Arizona house, Glenna submitted only the all-encompassing, general
verdict form addressing conversion to the jury. See infra ¶ 9 n.3. During
trial, Defendants presented a single theory in their defense of the
conversion claim: some of the items they had taken were already theirs by
virtue of having been gifted to them by their father. Both the conversion
theory and gift defense were valid grounds upon which the jury could
find liability, in toto or in part. At the close of trial, the jury was properly
instructed as to its role as the fact-finder, the tort of conversion, and the
applicable law regarding inter vivos gifts. Further, no objections were
interposed by either party regarding the verdict form or the jury
instructions.
¶34 Glenna argues the Defendants presented their gift defense as
an “all or nothing” proposition, and at times the Defendants asserted as
much. However, a majority of the Defendants’ testimony related only to
the guns, safes, and coins being the subject of the gifting, with no explicit
mention of the other items taken. As is a part of the standard instructions,
the jury was instructed it could “accept everything a witness says, or part
of it, or none of it.” It was well within the purview of the jury to
determine Charles gifted the guns, safes, and coins to his children, but
find the remainder of the items — such as swords, battle axes, binoculars
and cannons — were not, and award damages accordingly. The
ownership of all of the items was contested throughout the trial, and it fell
to the jury to resolve the conflict, which it did. To find otherwise would
be to detract from the jury’s function. See Standard Chartered PLC v. Price
Waterhouse, 190 Ariz. 6, 39, 945 P.2d 317, 350 (App. 1996) (recognizing a
reviewing court’s obligation to search for a reasonable way to view the
jury’s verdict “as expressing a coherent view of the case”).
¶35 In arguing the Defendants are unable to claim the jury could
have found they converted some, but not all, of the items, Glenna relies
upon Kansas City Power & Light Co. v. Bigg & Assocs., Inc., 197 S.W.3d 147(Mo. App. 2006). Her reliance, however, is misplaced and somewhat in
derogation of her own argument.
¶36 In Kansas City Power, Kansas City Power & Light (KCPL)
sued numerous defendants, including Rockwell, after a natural gas
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explosion destroyed a boiler at its power plant. Id. at 150. Specifically as
to Rockwell, KCPL alleged defects in design and manufacturing of the
programmable logic controller utilized in conjunction with the burner
management system that failed to adequately prevent the explosion;
KCPL also alleged design defects in the Troubleshooting Guide that
Rockwell published for use with the programmable logic controller. Id.In response, Rockwell denied liability and asserted thirty affirmative
defenses, including that KCPL’s damages were restricted by a “limitation
of liability” provision contained within the documents given to KCPL
when it purchased the programmable logic controller. Id.¶37 The case was submitted to the jury with multiple verdict
directing instructions concerning the Troubleshooting Guide and the
programmable logic controller. Id. at 151. Along with the instructions, a
general verdict form was provided to the jury, which directed it to
apportion the percentage of fault between KCPL and Rockwell, and
provide a total amount of damages. Id. at 152. Rockwell offered two
alternative verdict forms which the trial court rejected. Id. Rockwell did
not otherwise object to the general verdict form, or ask for an alternative
verdict form requesting the jury be specific as to which claim or claims it
assessed fault against Rockwell. Id. The jury rendered a verdict in favor
of KCPL, apportioning it 70% fault, and to Rockwell 30%, and awarded
damages of $452,000,000. Id. Rockwell objected to the entry of judgment
prior to resolution of its affirmative defense that KCPL’s damages were
contractually limited, as it had to be determined as a matter of law by the
trial court; this affirmative defense only applying to KCPL’s design and
manufacturing defect claims regarding the programmable logic controller,
and not to the claims based upon the Troubleshooting Guide. Id. at 152,
154. The trial court, thereafter, accepted Rockwell’s affirmative defense
and limited KCPL’s damages award to $190,867. Id. at 152.
¶38 On appeal, KCPL argued the trial court, in reaching its
decision to apply the affirmative defense, must have determined the jury’s
award was premised upon the programmable logic controller claims and
excluded the Troubleshooting Guide claims altogether, and that this
presumption was unfounded by the general verdict. Id. at 154. The
Missouri Court of Appeals agreed, concluding:
Application of the contractual provision to limit Rockwell’s
liability was Rockwell’s affirmative defense. Rockwell bore
the burden of prosecuting the defense. Specifically,
Rockwell bore the burden of ensuring that the basis of the
jury’s verdict was known so that the contractual provision
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could be applied to the appropriate claims. Yet, Rockwell
failed to object to the general verdict form either before it
was submitted to the jury or after it was returned by the
jury. “[A]n objection to a verdict form must be raised either
at the instruction conference or when the verdict is returned
by the jury before it is accepted by the court.” Rockwell
neither objected to the general verdict form nor did it offer
its own form to allow application of its affirmative defense.
Furthermore, it did not request clarification of the verdict for
purposes of applying its affirmative defense before the trial
court received the verdict and the jury was discharged.
Rockwell’s failure to take any action to determine the basis
of its liability under the general verdict resulted in
abandonment of its affirmative defense.
Id. at 157 (internal citation omitted).
¶39 Unlike Kansas City Power, here there was only one theory of
liability submitted to the jury; i.e. conversion, so there does not exist the
issue that the affirmative defense of gifting applied to one theory upon
which the jury could have decided but not another theory simultaneously
before the jury. Also unlike Kansas City Power, the Defendents’ affirmative
defense of ownership through gifting was dispositive as to whether they
had engaged in conversion, rather than merely being secondarily
applicable as a limitation upon their damages once liability was
established.
¶40 Moreover, in this case, the Defendants’ affirmative defense
had already been decided and applied within the verdict. In Kansas City
Power, Rockwell’s affirmative defense was to be ruled upon and applied
by the trial court following the jury’s verdict. Rockwell’s affirmative
defense, however, necessarily depended upon the jury basing its decision
upon a specific theory, and if Rockwell wished to preserve its defense, it
was incumbent upon Rockwell to ensure the trial court knew the specific
theory upon which the jury rendered its verdict so as to be able to
determine if the affirmative defense could be applied. Here, both the
conversion claim and the affirmative defense were presented to, and
resolved by, the jury. The Defendants did not have a post-verdict duty to
ensure the jury clarified its verdict.
¶41 As sufficient evidence was provided to the jury in support of
Defendants’ gift defense and the personal property values, a fortiori, the
record must also be found to contain substantial support for the jury’s
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ultimate damages award in favor of Glenna. Thus, the trial court did not
err by denying Glenna’s motion for judgment as a matter of law. Dawson
v. Withycombe, 216 Ariz. 84, 98-99, ¶¶ 35-36, 163 P.3d 1034, 1048-49 (App.
2007).
III. Motions for New Trial, Additur, and Arithmetic Correction of the
Verdict
¶42 Along with her motion for JMOL, Glenna alternatively
moved for: A) a new trial solely on damages under Arizona Rule of Civil
Procedure 59(a)(8), B) additur, and C) arithmetic correction under Arizona
Rule of Civil Procedure 60(b). The trial court denied each motion, and
Glenna alleges it erred in doing so. We disagree.
A. Denial of New Trial
¶43 Rule 59(a)(8) allows a trial court to vacate a “verdict,
decision or judgment,” when it “is not justified by the evidence or is
contrary to law.” Glenna’s argument for a new trial tracks her JMOL: the
general verdict established Defendants’ full liability for all of the items
taken, and a new trial on the issue of damages is warranted as the jury’s
damages award was against the weight of the evidence provided at trial.
¶44 We review the denial of a motion for new trial for an abuse
of discretion. Sandretto v. Payson Healthcare Mgmt., Inc., 682 Ariz. Adv.
Rep. 10, ¶ 8, 322 P.3d 168, 172 (App. 2014). When considering a motion
for new trial, the trial court must ask “whether the jury verdict is so
‘manifestly unfair, unreasonable and outrageous as to shock the
conscience.’” Hutcherson v. City of Phx., 192 Ariz. 51, 55, ¶ 23, 961 P.2d 449,
453 (1998) (quoting Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363,
370, 372 P.2d 703, 707 (1962)). When ruling on such a motion, the trial
court must pass upon the weight of the evidence and determine if
“substantial justice has not been done between the parties.” Walsh v. Adv.
Cardiac Specs. Chartered, 229 Ariz. 193, 197, ¶ 15, 273 P.3d 645, 649 (2012)
(citation omitted). If no evidence exists in the record to justify the verdict,
it must be set aside. Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164,
1166 (App. 1996).
¶45 In denying Glenna’s Rule 59(a) motion, the trial court found
simply, “that the verdict [was] justified by the evidence and [was] not
contrary to law.” At trial, Glenna produced evidence of the items taken
and their values, and Defendants admitted taking the items but produced
evidence supporting their theory some of the items had been gifted. As
previously stated, the jury may well have found certain items taken
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belonged to the Covino Trust, and other items taken were owned by the
Defendants as the result of gifting. As substantial evidence existed to
support the verdict, the trial court did not abuse its discretion when it
denied Glenna’s motion for new trial. Hutcherson, 192 Ariz. at 53, ¶¶ 12-
13, 961 P.2d at 451.
B. Denial of Additur
¶46 Glenna also contends the trial court should have granted her
motion for additur. “An ‘additur’ is an order by the trial court increasing
a damage award as a condition to denying a motion for new trial” on the
grounds of inadequate damages. Warne Inv., Ltd. v. Higgins, 219 Ariz. 186,
189 n.1, ¶ 5, 195 P.3d 645, 648 n.1 (App. 2008) (citing Black’s Law
Dictionary 41 (8th ed. 2004)); see Ariz. R. Civ. P. 59(i). “The question of
additur is left to the greatest possible discretion of the trial court, and its
decision will not be disturbed on appeal except for a case of clear abuse.”
Bustamante v. City of Tucson, 145 Ariz. 365, 366, 701 P.2d 861, 862 (App.
1985).
¶47 As with her previous motions, Glenna contends additur is
appropriate because the jury established the Defendants’ full liability, the
damages amount was undisputed, and the verdict rendered a damages
amount inconsistent with the undisputed amount. However, the trial
court specifically noted “[d]amages were in fact disputed, and the jury
resolved the dispute.” It then determined damages were not insufficient
or inadequate as to warrant additur. Given the evidence contained in the
record and reflected above, the trial court did not abuse its discretion
when it denied Glenna’s additur motion.
C. Rule 60(b)
¶48 Glenna, citing Arizona Rule of Civil Procedure 60(b)(2), also
moved for the trial court to arithmetically correct the verdict. Rule
60(b)(2) states: “Where there is a mistake, miscalculation or misrecital of a
sum of money [in a judgment] . . . and there is among the records of the
action a verdict or instrument of writing whereby such judgment may be
safely corrected, the court shall on application and after notice, correct the
judgment accordingly.”
¶49 Glenna contends the pre-trial statement containing
“stipulated values” constitutes such an “instrument of writing” so as to
safely correct the judgment amount of $15,000. As with her other post-
verdict motions, Glenna’s argument is flawed as it rests upon the incorrect
assumption the jury found Defendants converted each item complained of
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in this case; it also rests upon the unsupported conclusion the values were,
in fact, stipulated. See infra ¶¶ 28-29 & n.5.
¶50 Moreover, the cases Glenna relies upon for a court’s ability
to correct an award of damages, Banner Realty, Inc. v. Turek, 113 Ariz. 62,
546 P.2d 798 (1976) and Ward v. Johnson, 72 Ariz. 213, 232 P.2d 960 (1951),
are inapplicable to the facts of this case. For instance, the recovery of
damages in Banner Realty was specifically set by contract. 72 Ariz. at 64,
546 P.2d at 800. Likewise, Ward noted a court may compute the proper
amount of damages if the damages are fixed or undisputed, and found, in
that case, that a claim for $10,000 for a willful tort, alone, was insufficient
to justify the court’s correction of a jury award for less than the claimed
amount. Here, the record demonstrates, as the trial court found, that
damages were disputed. Therefore, the trial court did not commit error
when it declined Glenna’s invitation to arithmetically correct the jury’s
verdict.
IV. Unjust Enrichment
¶51 Glenna finally contends the trial court erred when it found
against her on her unjust enrichment claim. Unjust enrichment is an
equitable remedy, and we review its availability de novo. Loiselle v. Cosas
Mgmt. Group, LLC, 224 Ariz. 207, 210, ¶ 8, 228 P.3d 943, 946 (App. 2010);
Murdock-Bryant Const., Inc. v. Pearson, 14 Ariz. 48, 53, 703 P.2d 1197, 1202
(1985) (citation omitted).
¶52 A claim for unjust enrichment arises “when one party has
and retains money or benefits that in justice and equity belong to
another.” Loiselle, 224 Ariz. at 210, ¶ 9, 228 P.3d at 946. To prevail on an
unjust enrichment claim, a plaintiff must prove: “(1) an enrichment, (2) an
impoverishment, (3) a connection between the enrichment and
impoverishment, (4) the absence of justification for the enrichment and
impoverishment, and (5) the absence of a remedy provided by law.”
Wang Elec., Inc. v. Smoke Tree Resort, LLC, 230 Ariz. 314, 318, ¶ 10, 283 P.3d
45, 49 (App. 2012). As noted, to succeed on an unjust enrichment claim, “a
party must show ‘the absence of any remedy at law.” Loiselle, 224 Ariz. at
211, ¶ 14, 228 P.3d 943, 947 (quoting Mousa v. Saba, 222 Ariz. 581, 588, ¶
29, 218 P.3d 1038, 1045 (App. 2009)). The trial court found against Glenna
because it determined, as a matter of law, “an adequate remedy exist[ed]
at law” — her successful conversion claim — for the relief Glenna sought
under her unjust enrichment claim. We agree with the trial court that
Glenna’s conversion claim constituted an adequate remedy at law.
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¶53 In Arizona, the measure of damages for conversion includes
the value of the property taken, as well as “other damage suffered because
of the wrongful detention or deprivation of the property, such as damages
for loss of use.” Collins v. First Fin. Servs., Inc., 168 Ariz. 484, 486, 815 P.2d
411, 413 (App. 1991); see Restatement (Second) of Torts § 222A (1965)
cmt. c (“In conversion the measure of damages is the full value of the
chattel, at the time and place of the tort. When the defendant satisfies the
judgment in the action or conversion, title to the chattel passes to him, so
that he is in effect required to buy it at a forced judicial sale.”). Therefore,
Glenna was able to pursue damages to satisfy the full value of the items
taken from her, making her whole, and requiring the Defendants to pay
the full value of only the items the jury found the Defendants to have
wrongfully taken.
¶54 However, having already been made whole through the
jury’s verdict, Glenna continued to seek a constructive trust over the items
taken. A constructive trust is an equitable remedy imposed to compel one
who unfairly holds a property interest to convey it to the person to whom
it justly belongs. Harmon v. Harmon, 126 Ariz. 242, 244, 613 P.2d 1298, 1300
(App. 1980). Essentially, through her conversion and unjust enrichment
claims, Glenna sought a double recovery, whereby she would receive
payment for the full value of what she believed to be the converted items,
along with the return of those converted items. Such a result does not
obtain in equity as plaintiff is not entitled to the value of the items
converted along with the return of those same items. Cf. Hall v. Schulte,
172 Ariz. 279, 284, 836 P.2d 989, 994 (App. 1992) (“A plaintiff is entitled to
be made whole in damages, and that is all.”); Zeckendorf v. Steinfeld, 15
Ariz. 335, 340, 138 P. 1044, 1046 (1914) (“As we understand it, the general
rule, both at law and in equity, is that the owner is entitled to the return of
his property or its value at the time of its wrongful conversion.”) (emphasis
added).
¶55 Glenna argues, relying upon Hill v. Hill, 345 P.2d 1015, 1025
(Kan. 1959), which was cited within Loiselle, that “[t]he existence of a
remedy at law does not deprive equity of jurisdiction unless such remedy
is clear, adequate and complete.” Hill, 345 P.2d at 1025; Loiselle, 224 Ariz.
at 211, ¶ 14, 228 P.3d at 947. Glenna does not, however, demonstrate the
manner by which her conversion remedy was insufficiently “clear,
adequate and complete.” Rather, she merely relies upon her belief of
being entitled to the full value of all of the items she claimed were
converted, and as she was awarded a lesser amount, the remedy was
incomplete or inadequate. Obvious to the point of a truism is the trial
court’s assessment of this argument: “That [Glenna] was unsuccessful in
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receiving the full amount of the damages she sought [on her conversion
claim] does not mean that she did not have an adequate remedy at law.”
¶56 As an adequate remedy at law existed, we find no error in
the trial court’s finding against Glenna on her unjust enrichment claim.
CONCLUSION
¶57 We affirm the trial court’s denial of Glenna’s motions for
partial summary judgment, judgment as a matter of law, new trial,
additur, and arithmetic correction of the verdict; we also affirm the trial
court’s ruling on Glenna’s unjust enrichment/constructive trust claim.
:gsh
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