Tarter v. Bendt ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TIM TARTER, et al.,
Plaintiffs/Appellees,
v.
DOUGLAS BENDT, et al.,
Defendants/Appellants.
No. 1 CA-CV 19-0703
FILED 1-28-2021
Appeal from the Superior Court in Maricopa County
No. CV2015-002596
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL
Richards & Moskowitz, PLC, Phoenix
By William A. Richards, Shayna Gabrielle Stuart
Counsel for Plaintiffs/Appellees
Jones Skelton & Hochuli, PLC, Phoenix
By Lori L. Voepel, Petra Lonska Emerson
Counsel for Defendants/Appellants
TARTER, et al. v. BENDT, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Sonia and Douglas Bendt ("Bendts") appeal the jury verdict
for defamation in favor of Tim and Christina Tarter ("Tarters"). For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Bendts are a married couple who purchased a
condominium in the Fairway Lodge community ("Fairway") in 2008. The
Tarters are also a married couple who have lived in Fairway since 2013.
¶3 Fairway is a luxury condominium complex governed by a
homeowner's association board ("Board"). Homeowners must pay $795
monthly dues to the homeowner's association ("HOA"). Mr. Tarter and the
Bendts ran in the 2013 HOA election. Mr. Tarter won a seat, and his fellow
board members elected him president for 2014. During Mr. Tarter's term
as HOA president, Mrs. Bendt launched a campaign, including a newsletter
emailed to fellow HOA residents, attacking Mr. Tarter's reputation and his
handling of the HOA presidency. The Tarters filed suit for defamation.
¶4 The Tarters' complaint identified many disparaging
statements made by Mrs. Bendt in her July newsletter. The Tarters alleged
that Mrs. Bendt's assertions were defamatory and caused her readers to
falsely believe that: (1) Mr. Tarter lacked ethics and/or behaved unethically
or illegally; (2) Mr. Tarter concealed material financial information from the
HOA members; (3) Mr. Tarter misled HOA members and acted unlawfully;
(4) Mr. Tarter conducted and facilitated "secret" Board meetings; and (5) Mr.
Tarter wrongfully over-spent HOA funds which would cause an increase
in monthly HOA fees. Based on our review, at trial the parties focused on:
(1) whether Mr. Tarter was asked to resign from the Board; (2) an $8,000
payment to an exterminator; (3) a tree removal; (4) the Board's executive
sessions; (5) $40,000 in alleged overspending; and (6) the monthly HOA
fees.
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¶5 The Tarters introduced evidence that Mrs. Bendt called Mr.
Tarter "idiot," "fool," "spineless," "disgusting," "chicken shit," "lowlife,"
"low-class sneak," "unethical," "lazy," "weak," and "a complete fake" in front
of fellow HOA members. Additionally, Mrs. Bendt wrote emails calling
Mrs. Tarter, whom she had never met, "a bitch" and a "drinking dog
walker." Mrs. Bendt also disparaged Mr. Tarter's legal education, insulted
his alma matter, referred to him as a habitual liar, and unethical. Mrs. Bendt
accused Mr. Tarter of violating his attorney ethical obligations, and wrote
that he could be disciplined by the Arizona State Bar and investigated by
the Attorney General ("AG").
¶6 After an eight-day trial, the jury awarded the Tarters $150,000
for reputational harm, $350,000 for emotional harm, and $1 million for
punitive damages. The superior court awarded a further $20,120.42 in
taxable costs.
¶7 The superior court denied the Bendts' motions for judgment
as a matter of law and a new trial. The Bendts timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. Sufficiency of the Evidence – Actual Malice.
¶8 The parties stipulated that Mr. Tarter, as the HOA president,
was a limited purpose public figure. Thus, the Tarters were required to
prove that Mrs. Bendt's defamatory statements were "made with 'actual
malice'—that is, with knowledge that it was false or with reckless disregard
of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964). The Bendts assert that insufficient evidence was presented
to prove "actual malice," Mrs. Bendt reasonably believed certain claims
about Mr. Tarter were true, and other claims were true or opinion.
¶9 Whether sufficient evidence supports a jury finding of "actual
malice" is a "mixed question of law and fact subject to independent
appellate review." Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 486 (1986)
(citing Bose Corp. v. Consumers Union, 466 U.S. 485, 511 (1984)). In
performing an "independent appellate review," we "must exercise
independent judgment and determine whether the record establishes actual
malice with convincing clarity." Id. (quoting Bose, 466 U.S. at 514). Our
supreme court directs us that the "failure to investigate is not reckless
disregard per se, but it provides some evidence of actual malice when the
facts confronting defendant are such that no reasonable person would fail
to investigate." Id. at 487 (first citing St. Amant v. Thompson, 390 U.S. 727,
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Decision of the Court
731-32 (1968); then citing Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1569
(D.C. Cir. 1984)). Finally, "[a]bsent an admission by the defendant that he
knew his material was false or that he doubted its truth, a public figure must
rely on circumstantial evidence to prove his case." Id. (citation omitted).
¶10 The Bendts argue that "independent review" means de novo
review and we should resolve factual disputes in their favor. But
independent review is not equivalent to de novo review of all facts and
issues. Bose, 466 U.S. at 514 n.31; see also Mandel v. Boston Phx., Inc., 456 F.3d
198, 208 (1st Cir. 2006) ("Independent review is not a limitless ransacking of
the record as a whole."); Smith v. Anonymous Joint Enter., 793 N.W.2d 533,
540 (Mich. 2010) ("Likewise, an appellate court should not conduct an
independent review of credibility determinations, disregard findings of
fact, or create new findings of fact."). Instead, "the reviewing court must
'examine for [itself] the statements in issue and the circumstances under
which they were made to see . . . whether they are of a character which the
principles of the First Amendment . . . protect,'" but "credibility
determinations are reviewed under the clearly-erroneous standard because
the trier of fact has had the 'opportunity to observe the demeanor of the
witnesses . . . .'" Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657,
688 (1989) (first quoting New York Times, 376 U.S. at 285; then quoting Bose,
466 U.S. at 499-500). Thus, our role is to "'examine for ourselves' the factual
record in full" and "accord credibility determinations the special deference
to which they are entitled . . . ." Newton v. Nat'l Broad. Co., Inc., 930 F.2d 662,
671 (9th Cir. 1990) (quoting New York Times, 376 U.S. at 285)
(reading "Bose and Harte-Hanks as creating a 'credibility exception' to
the New York Times rule of independent review").1
A. The Alleged Statements Were Provable as False.
¶11 On appeal, Mrs. Bendt asserts that her speech was opinion,
used hyperbolic language, and was protected political speech. The Tarters
assert part of this argument was waived. We assume without deciding that
the Bendts preserved the issue.
1 In a second notice of supplemental authority filed after oral
argument, the Bendts argue the Arizona Constitution provides greater free
speech protections than the First Amendment. Because the Bendts did not
raise this argument in their opening brief, we do not consider it. See Ritchie
v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (failure to present significant
arguments in opening brief can result in waiver of issue on appeal).
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¶12 "A statement regarding matters of public concern must be
provable as false before a defamation action can lie." Turner v. Devlin, 174
Ariz. 201, 205 (1993) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 19-
20 & n.6 (1990)). We recently identified a three-factor test to determine
whether a statement reasonably implies an assertion of objective fact rather
than mere opinion or argument: "(1) whether the general tenor of the entire
work negates the impression that the defendant was asserting an objective
fact; (2) whether the defendant used figurative or hyperbolic language that
negates that impression; and (3) whether the statement in question is
susceptible of being proved true or false." Rogers v. Mroz, --- Ariz. ---, ---,
2020 WL 7223312, *9, ¶ 46 (App. Dec. 8, 2020) (citing Obsidian Fin. Grp., LLC
v. Cox, 740 F.3d 1284, 1293-94 (9th Cir. 2014)).
¶13 In assessing the publication, the court must consider the
totality of the circumstances and take the average reader or listener's
viewpoint. Phx. Newspapers, Inc. v. Church, 103 Ariz. 582, 587 (1968) (finding
editorial printed on the newspaper's front page was libelous per se).
¶14 Here, Mrs. Bendt made her statements in her newsletter titled
"Fairway Times at the Biltmore" and described as an "independent
newsletter." Although some newsletter statements identified in the
complaint are not provably false, see Pinal County v. Cooper, 238 Ariz. 346,
351, ¶ 18 (App. 2015) (statement that someone should be fired is "not
susceptible to proof of objective falsity"), several statements allege a
provable statement of fact rather than opinion. For example, the complaint
alleges that Mrs. Bendts wrote that (1) the HOA Board held a "secret
meeting," (2) the Board violated the HOA's covenants, conditions, and
restrictions ("CC&Rs"), (3) Mr. Tarter failed to provide timely notice of
HOA meetings, and (4) owners faced "a serious monthly HOA fee increase
due to [the Board's] overspending." Mrs. Bendt made similar statements in
her September 2014 newsletter, including that the Board (1) violated
CC&Rs, (2) failed to communicate with owners, (3) spent HOA funds
without proper authorization, (4) had overspent by $40,000, and (5) caused
an imminent HOA fee increase. Whether Mr. Tarter or the Board
committed these actions could be proved false.2
¶15 Although Mrs. Bendt's newsletter used hyperbolic language,
other statements asserted facts and were believable. Indeed, the jury heard
testimony that other HOA members interpreted Mrs. Bendt's accusations
2 See Hansen v. Stoll, 130 Ariz. 454, 458-59 (App. 1981) (stating that a
readily identifiable member of a defamed group may maintain a
defamation action).
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as fact. See Yetman v. English, 168 Ariz. 71, 80 (1991) (describing "important"
evidence at defamation trial was the testimony of reporter who interpreted
the remark as a defamatory accusation and expert witness opinions "that
the remark was susceptible to the interpretation"); cf. Rogers, --- Ariz. at ---,
2020 WL 7223312 at *8, ¶¶ 42-43 (holding that summary judgment should
be granted when the plaintiff presents no evidence that reasonable listeners
may interpret statements as implying an objective, verifiable defamatory
fact). Considering the totality of the circumstances, we find that a
reasonable person could interpret the newsletter's assertions as factual
rather than hyperbolic, and it was proper to let the jury decide the issue.
See Yetman, 168 Ariz. at 78-79 (holding that jury should determine whether
ambiguous statements are fact or opinion).
¶16 Finally, the accusations are ones that could bring Mr. Tarter
"into disrepute, contempt, or ridicule, or . . . impeach [his] honesty,
integrity, virtue, or reputation." Godbehere v. Phx. Newspapers, Inc., 162 Ariz.
335, 341 (1989). Thus, they are actionable as defamatory. See Dube v. Likins,
216 Ariz. 406, 419, ¶¶ 45-46 (App. 2007) (finding "statements that [plaintiff]
committed an 'indiscretion' or 'transgressions' in a way that was
'unauthorized' or 'contrary to [his] specific instructions'" were actionable as
defamatory).
¶17 We note that in their opening brief, the Bendts did not contest
that the false assertions about an imminent HOA fee increase were
defamatory and made with actual malice. This Court will generally
"uphold a general verdict if evidence on any one count, issue or theory
sustains the verdict." Murcott v. Best W. Int'l, Inc., 198 Ariz. 349, 361, ¶ 64
(App. 2000). But a defamatory assertion can be "true" when not every detail
is literally accurate; rather, the statement, as a whole, must be "substantially
true." Read v. Phx. Newspapers, Inc., 169 Ariz. 353, 355 (1991). Thus, we
"'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, 497 U.S. at 17 (quoting Bose, 466 U.S. at
499).
B. The Jury Could Reasonably Find the Statements False.
¶18 On appeal, the Bendts claim that some of Mrs. Bendt's
statements, such as the ones about the CC&Rs, the exterminator contract,
the resignation, and the $40,000 overspending, were true.
¶19 Substantial truth is an absolute defense in a defamation
action. Fendler v. Phx. Newspapers Inc., 130 Ariz. 475, 479 (App. 1981). "Slight
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Decision of the Court
inaccuracies will not prevent a statement from being true in substance, as
long as the 'gist' or 'sting' of the publication is justified." Sign Here Petitions
LLC v. Chavez, 243 Ariz. 99, 107-108, ¶ 30 (App. 2017) (quoting Read, 169
Ariz. at 355). However, we must "resolve every conflict in the evidence and
draw every reasonable inference in favor of the prevailing party." St.
Joseph's Hosp. & Med. Ctr. v. Reserve Life Ins. Co., 154 Ariz. 307, 312 (1987).
The jury's role was "to determine factually whether an allegedly defamatory
statement is true," Fendler, 130 Ariz. at 479, and we will not reweigh the
evidence on appeal, Whittemore v. Amator, 148 Ariz. 173, 175 (1986). Cf. also
Rogers, --- Ariz. at ---, 2020 WL 7223312 at *7, ¶¶ 36, 40 (holding that
summary judgment is appropriate when undisputed facts show alleged
defamatory statements are substantially true).
¶20 Mr. Tarter, the past HOA president ("Moe"), the HOA
Treasurer ("Steve"), and another Board member ("Deborah") each testified
that some or all of the statements were false. The jury also heard testimony
that in 2015 the Board hired an independent audit firm to audit the HOA's
records, and the audit found "zero deficiencies." To the extent there was a
conflict in the evidence between Mrs. Bendt's and other witnesses'
testimony, the jury resolved the conflict in favor of the Tarters and the jury's
determination was not clearly erroneous. See Harte-Hanks, 491 U.S. at 688.
The evidence, and the reasonable inferences therefrom, are sufficient to
allow a reasonable jury to find the statements were false. See Fendler, 130
Ariz. at 479.
¶21 The Bendts also claim on appeal that Mrs. Bendt's statements
about "secret meetings" were justified because the Board's "executive
sessions" violated Arizona's open meeting law, and her criticisms were
understood in the context of Fairway's tradition of openness. The Tarters
assert that these arguments are waived because the Bendts failed to raise
them before the superior court. Assuming the Bendts adequately preserved
the issue, sufficient evidence supports the jury's determination. While the
Bendts might disagree with the testimony of Mr. Tarter, Moe, Deborah, and
Steve, or point to conflicting evidence, the jury could have reasonably
found the statements about "secret meetings" and the "CC&R violations"
related to meetings were false. We do not reweigh the evidence on appeal.
Whittemore, 148 Ariz. at 175.
C. The Jury Could Reasonably Find that Mrs. Bendt Acted
with Reckless Disregard for the Truth.
¶22 Mrs. Bendt also asserts that she subjectively believed her
statements were true, as they were supported by personal knowledge,
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information from trusted sources, and her research. She argues she relied
on information from fellow HOA members, primarily Steve and Moe, and,
thus, reasonably believed that certain defamatory statements were true. See
New York Times, 376 U.S. at 287-88 (finding that defendants reasonably
believed publication was true when they relied on the good word of
reputable individuals). Mrs. Bendt claimed she relied on these individuals
when she published that the HOA was "$40,000 in the hole" and that the
Board violated the CC&Rs.
¶23 If her claims were true, the Bendts might be entitled to relief.
But the jury heard evidence that conflicted with her claims of reasonable
reliance. Steve denied telling Mrs. Bendt about the HOA financials or about
supposed secret meetings. He also presented an alternative
characterization of the $40,000 budget issue. Moe testified he did not think
Mr. Tarter violated the CC&Rs in the tree removal matter, he never said so
to Mrs. Bendt, and he did not recall passing information to her about the
exterminator contract. Mrs. Bendt also claimed she relied on information
from the HOA property manager about the exterminator contract and that
Mr. Tarter lied during an HOA meeting about the property manager. But
the property manager's testimony supported Mr. Tarter's version of events.
Finally, Mrs. Bendt claimed Steve told her that Mr. Tarter and three other
members of the Board had been asked to resign from the Board. But Steve
testified that he did not ask anyone to resign. Mrs. Bendt admitted in her
testimony that she had no confirmation whether her written statements
about the resignations were true. In this light, we see no reason to second
guess the factfinder's rejection of Mrs. Bendt's reasonable reliance claims.
See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1070-71 (5th Cir. 1987)
(noting courts have upheld actual malice findings when "the supposed
source of the story disclaimed giving the information").
¶24 Mrs. Bendt also asserts that she subjectively believed her
comments about the alleged $40,000 deficit. But Mrs. Bendt admitted that
she never reviewed the HOA's financial reports that were available to
members. See Dombey, 150 Ariz. at 487 (noting that the failure to investigate
"provides some evidence of actual malice"). And during the trial, Mrs.
Bendt admitted that her statements regarding the $40,000 deficit in her
September 2014 newsletter were incorrect. Although Mrs. Bendt testified
she sent a correction, she did not introduce a copy of the retraction nor
provide a date on which it issued. Moreover, all of this occurred several
months after Mrs. Bendt's original statements regarding the deficit in July.
See Schwartz v. Worrall Publ'ns, Inc., 610 A.2d 425, 431 (N.J. App. 1992)
(noting "the failure to promptly retract may be relevant in evaluating"
motive); cf. Zerangue, 814 F.2d at 1071 (noting that "a readiness to retract
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tends to negate 'actual malice'"). The delay reduces the correction's
relevance. See Glover v. Herald Co., 549 S.W.2d 858, 861 (Mo. 1977) ("[A]ctual
malice is to be measured at the time of publication[.]"). Further, the absence
of the correction from our record limits its mitigation value. See Boswell v.
Phx. Newspapers, Inc., 152 Ariz. 9, 19 (1986) (recognizing that a retraction
could be considered in mitigation of damages). Thus, correction
notwithstanding, the jury remained free to believe or disbelieve Mrs.
Bendt's assertions that she subjectively believed her statements about the
alleged $40,000 deficit. See Dombey, 150 Ariz. at 490 ("Credibility
determinations, the weighing of the evidence and the drawing of legitimate
inferences are jury functions." (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)); see also Boswell v. Superior Court, 125 Ariz. 307, 308
(1980) (holding the "sufficiency of a correction is a question of fact" for the
jury). Additionally, the jury could consider that Mrs. Bendt's correction
only covered one of the alleged defamatory statements. See Dombey, 150
Ariz. at 489 (failure to print retraction "may indicate the presence of actual
malice").
¶25 In short, the jury received sufficient evidence to find that Mrs.
Bendt defamed Mr. Tarter with actual malice. As the superior court noted
in its order denying the Bendt's post-judgment motions, "the trial evidence
which established these challenged areas was more than sufficient under
the law; in fact, it was both abundant and compelling." See also Soto v. Sacco,
242 Ariz. 474, 478, ¶ 8 (2017) (recognizing that a trial judge plays a role akin
to a "ninth juror" when ruling on a motion for new trial).
II. Evidentiary Issues.
¶26 At trial, the parties disputed the admissibility of some of Mrs.
Bendt's emails. Those emails did not discuss the Tarters, were sent either
before or after Mr. Tarter's term as president, and contained allegedly
prejudicial character evidence. The Bendts also assert the court erred by
admitting limited evidence of two prior lawsuits. "We will not disturb a
trial court's rulings on the exclusion or admission of evidence unless a clear
abuse of discretion appears and prejudice results." Gemstar Ltd. v. Ernst &
Young, 185 Ariz. 493, 506 (1996).
A. The Motions in Limine.
¶27 On appeal, the Bendts assert that the court erred by denying
their motions in limine. In 2018, the Bendts filed six motions in limine to
exclude numerous emails under various evidentiary theories, including
prejudice. The motions listed 207 different proposed exhibits, but provided
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no content or analysis. After a hearing, the court denied the motions, noting
the emails' admissibility was addressed in a prior 2016 ruling. The Bendts
moved for reconsideration, arguing that the 2016 ruling only addressed
exclusion based on timely disclosure.
¶28 At a second hearing, defense counsel estimated she was
seeking exclusion of a thousand pages of exhibits. The court denied the
motion for reconsideration, noting that it did not find the motions in limine
well-taken and that the court lacked information on the thousand pages of
proposed exhibits to grant the motions. As the superior court explained,
"that is not how a motion in limine works." Defense counsel asked if the
court's minute entry denying the motion would affirmatively allow the
defense to "raise [Rule] 403 objections at trial." The court declined to give
"an advisory ruling about something that may happen at trial." Later, the
court noted that the defense could make specific objections under Arizona
Rule of Evidence ("Rule") 403, and granted a defense request to limit the use
of an email with a racial slur.
1. Waiver.
¶29 "A properly filed motion in limine preserves appellant's
objections on appeal without need for further objection if it sets forth
specific grounds for the objections." Gibson v. Gunsch, 148 Ariz. 416, 417
(App. 1985). In determining whether a motion in limine has preserved an
issue on appeal, "[t]he essential question is whether or not the objectionable
matter is brought to the attention of the trial court in a manner sufficient to
advise the court that the error was not waived." State v. Briggs, 112 Ariz.
379, 382 (1975). We agree with the superior court that the Bendts' motions
in limine were "improper." The motions were overly broad, failed to make
an argument or cite authority as to specific emails, and, thus, failed to bring
issues to the court's attention in a manner allowing redress. See State v.
Lichon, 163 Ariz. 186, 189 (App. 1989) (holding that a perfunctory motion in
limine considered in summary fashion did not preserve the issue for
appeal). The motions in limine did not preserve blanket objections to all
emails sent to third parties.
¶30 In their briefs, the Bendts identify 23 admitted exhibits they
assert contain inadmissible evidence. The Bendts assert that "the trial court
legally erred by not balancing Rule 403 factors on the record for the
appellate court to assess." Yet for most of these exhibits the Bendts made
no objection to prompt the court to make such a ruling. Indeed, it was
defense counsel who moved for admission of Exhibit 254, which they now
describe as "particularly troubling." The Bendts' failure to file a proper
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motion in limine or object at trial deprived the court of a meaningful
opportunity to consider the evidentiary issues. See Starkins v. Bateman, 150
Ariz. 537, 544 (App. 1986) (finding failure to lodge contemporaneous or
continuing objection waived issue). Thus, in large part, the Bendts have
failed to preserve this issue for appeal.
2. Exhibit 246.
¶31 At trial, the Bendts objected to Exhibit 246 on the ground that
it was cumulative but do not reassert that argument on appeal. An
"objection on one ground does not preserve the issue on another ground."
State v. Lopez, 217 Ariz. 433, 434, ¶ 4 (App. 2008). Thus, the Bendts did not
preserve the objections to Exhibit 246.
3. Exhibit 13.
¶32 During the trial, the defendants objected to Exhibit 13. The
transcript did not record the bench conference where the court and counsel
discussed the objection. On appeal, the Bendts assert the exhibit was
inadmissible under Rules 401, 403, and 404.
¶33 Evidence is relevant if it has any tendency to make a fact of
consequence more or less probable than it would be without the evidence.
Ariz. R. Evid. 401. In general, all relevant evidence is admissible, Ariz. R.
Evid. 402, but may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, Ariz. R. Evid. 403.
Furthermore, evidence of a person's character is not admissible to prove
action in conformity therewith. Ariz. R. Evid. 404(a). Likewise, evidence
of other acts is not admissible to prove character in conformity with those
acts but may be admitted to prove motive, opportunity, or intent, among
other things. Ariz. R. Evid. 404(b)(1)-(2).
¶34 Exhibit 13 consists of emails written by Mrs. Bendt to third
parties disparaging other Board members, calling them "ridiculous,"
"resentful," "abrasive," "arrogant," "rude," "sleazy," "lower class," "bottom
feeders," and a false accusation that one member was having an affair. The
exhibit was relevant to rebut the defense's theory that Mrs. Bendt's
defamatory statements were directed at problems in the community rather
than at Mr. Tarter and other Board members personally. See Harte-Hanks,
491 U.S. at 667-68 ("Although courts must be careful not to place too much
reliance on such factors, a plaintiff is entitled to prove the defendant's state
of mind through circumstantial evidence, and it cannot be said that
evidence concerning motive or care never bears any relation to the actual
malice inquiry." (citations omitted)). The exhibit was additionally relevant
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to the Tarters' punitive damages claim. See infra ¶ 62; see also Forquer v. Pinal
County, 22 Ariz. App. 266, 270 (1974) (noting that "statements made by the
tortfeasor following the accident showing malice or hostility, may be
admissible on the issue of punitive damages").
¶35 Although the exhibit included evidence of other acts of
potential defamation, the exhibit was not used to show action in
conformity. There was no dispute that Mrs. Bendt wrote the defamatory
emails, the issue was whether she wrote them with actual malice. To that
end, the exhibit was admissible to show Mrs. Bendt's motive and intent. See
Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 499 (1987) (noting that when the
defendant "did not deny its acts nor allege that they were unintentional,"
testimony of past practices was still "relevant and admissible to prove
[defendant's] improper motives"). Additionally, in a defamation case, 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." Burns v. Davis, 196 Ariz. 155, 165, ¶ 39 (App.
1999); see also Restatement (Second) of Torts § 563 cmt. d (1977) ("The
context of a defamatory imputation includes all parts of the communication
that are ordinarily heard or read with it."). Finally, we do not find the
exhibit's relevance outweighed by any undue prejudice, especially when
the jury received other evidence of these statements. See Pub. Serv. Co. of
Okla. v. Bleak, 134 Ariz. 311, 322 (1982) (finding no prejudicial error where
the statement "was merely cumulative to other evidence properly
admitted").
¶36 Thus, the Bendts have not demonstrated that the superior
court abused its discretion in admitting the disputed exhibits.
B. Evidence of Other Lawsuits.
¶37 At trial, the jury heard testimony about two other lawsuits;
one between the Bendts and the Fairway developer, and one by the Bendts
against the 2016 HOA Board. The Bendts claim the trial court erred in either
admitting the evidence of the prior lawsuits or, alternatively, not allowing
the Bendts to introduce evidence of the second lawsuit's resolution. The
Bendts' opening brief provides no discussion of the first lawsuit. Thus, we
do not consider it. Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 26 n.5 (App. 2006)
(noting failure to develop an argument in opening brief will result in
waiver). The Bendts argue the second lawsuit's result was admissible to
show the bias of witnesses Deborah and the successor HOA President
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("Dan"). We review the trial court's determination of relevance for an abuse
of discretion. State v. Kiper, 181 Ariz. 62, 65 (App. 1994).
¶38 During the cross-examination of Dan, the superior court
sustained the plaintiff's objection to the admission of the minute entry from
the 2016 lawsuit but permitted defense counsel to use Dan's deposition in
the 2016 lawsuit for impeachment purposes. See Ariz. R. Evid.
801(d)(1)(B)(i). The Bendts did not attempt to introduce the lawsuit during
Deborah's testimony. On appeal, the Bendts assert that it was error not to
allow evidence of the case resolution "despite having allowed Bendts'
counsel to question [Dan] about his deposition in that matter." The Bendts
cite no legal authority to support this argument. The superior court found
the 2016 lawsuit's resolution irrelevant to the issue of defamation in 2014.
We agree.
III. Evidence of Insurance.
A. Testimony.
¶39 The Bendts assert the superior court committed reversible
error by admitting evidence of the Bendts' insurance policy. Evidence that
a person is insured against liability is not admissible to prove whether the
person acted negligently or wrongfully, but it may be admitted for other
purposes. See Ariz. R. Evid. 411. We review the superior court's admission
of evidence regarding insurance for an abuse of discretion. Webb v. Webb,
151 Ariz. 461, 465 (App. 1986). We will not disturb the admission of
evidence "unless a clear abuse of discretion appears and prejudice results."
Gemstar, 185 Ariz. at 506.
¶40 The Bendts filed a motion in limine to exclude any reference
to their liability insurance. The Tarters opposed, arguing that Mrs. Bendt
considered the insurance coverage a shield allowing her to defame fellow
HOA members and that the evidence could be admissible to show motive
or intent. The court reserved ruling on the motion, noting there are
"purposes for which it can properly be introduced."
¶41 During opening statements, defense counsel told the jury that
a key issue would be whether Mr. Tarter reasonably suffered fear, anxiety,
or other emotional responses to Mrs. Bendt's alleged defamatory
statements. During Mr. Tarter's cross-examination, defense counsel elicited
from him that despite Mrs. Bendt's statements that he could be disciplined
by the Arizona State Bar and investigated by the AG, he is unaware if she
ever actually reported him.
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TARTER, et al. v. BENDT, et al.
Decision of the Court
¶42 Dan testified that during his term as president, Mrs. Bendt
made false reports about him multiple times to the California State Bar and
instigated an unjustified AG investigation. On cross-examination, defense
counsel asked Dan whether he had sued Mrs. Bendt for defamation. Dan
said he had not. At a bench conference during the redirect examination of
Dan, plaintiff's counsel informed the court he intended to ask Dan why he
had not sued Mrs. Bendt for defamation and expected the answer would be
that Mrs. Bendt had a defamation insurance policy. Defense counsel
objected on relevance and Rule 411 grounds. The superior court noted that
defense counsel had "asked a very dangerous question" and found defense
counsel had opened the door. The court and defense counsel then crafted
a limiting instruction to be given to the jury after the anticipated answer.
¶43 When plaintiff's counsel asked Dan why he did not file a
defamation suit against Mrs. Bendt, Dan testified that one reason "was that
it was known in the community that Mrs. Bendt had a $2 million
defamation insurance policy. And you'd have to have a lot of resources to
stay in court for three, four years to fight and prove your point that you
were defamed against an insurance company." Defense counsel did not
object to Dan's reference to the policy's amount. The court then gave the
jury a limiting instruction.
¶44 When a defendant voluntarily makes evidence of the
defendant's insurance relevant, evidence of such insurance is admissible.
N. Ariz. Supply Co. v. Stinson, 73 Ariz. 109, 112-13 (1951); see Anderson
Aviation Sales Co. v. Perez, 19 Ariz. App. 422, 428 (1973) (finding answer on
cross-examination that included insurance when discussing circumstances
in which the witness would rent aircraft did not constitute grounds for
mistrial). Here, the defense's question opened the door and made the
existence of insurance relevant. See Pool v. Superior Court, 139 Ariz. 98, 103
(1984) ("[W]here one party injects improper or irrelevant evidence or
argument, the 'door is open,' and the other party may have a right to
retaliate by responding with comments or evidence on the same subject.");
cf. Ventura v. Kyle, 825 F.3d 876, 884-85 (8th Cir. 2016) (finding counsel's
unsupported insurance reference was a "deliberate strategic choice to try to
influence and enhance damages" and was improper (citation and internal
quotation marks omitted)).3 Accordingly, the trial court did not abuse its
discretion.
3 In their motion for new trial and on appeal, the Bendts assert the
insurance evidence was unduly prejudicial. At trial, however, the Bendts
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TARTER, et al. v. BENDT, et al.
Decision of the Court
B. Jury Instruction.
¶45 On appeal, the Bendts also assert that the court failed to
instruct the jury that insurance is not relevant to the calculation of damages.
"We review a court's jury instructions for an abuse of discretion. But we
review whether a jury instruction correctly states the law de novo. In
deciding this question, we review jury instructions in their totality." A
Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515,
533, ¶ 50 (App. 2009) (internal citations omitted). A court must provide a
limiting instruction when evidence is admissible for one purpose and not
another. Ariz. R. Evid. 105; see also Readenour v. Marion Power Shovel, Inc.,
149 Ariz. 442, 451-52 (1986) (remanding for a new trial because the failure
to grant a request for a limiting instruction permitted the jury to use the
subsequent remedial evidence as proof that the product was defective and
unreasonably dangerous). A jury instruction warrants reversal if it was
"both harmful to the complaining party and directly contrary to the rule of
law." Powers v. Taser Int'l, Inc., 217 Ariz. 398, 400, ¶ 12 (App. 2007)
(corrected).
¶46 At trial, the Bendts requested that the court give the standard
jury instruction for insurance coverage. See Rev. Ariz. Jury Instr. ("RAJI")
(Civil) Stand. 9 (6th ed. 2015) ("In reaching your verdict, you should not
consider [or discuss] whether a party was or was not covered by
insurance."). The court declined, finding that the evidence was admitted at
trial for a limited purpose. The Bendts then requested that the court give
an instruction that the evidence could not be used for damages. See RAJI
(Civil) Stand. 9 ("Insurance or the lack of insurance has no bearing on . . .
damages . . . ."). The Tarters opposed, arguing that the evidence went to the
reasonableness of Mr. Tarter's fear of future harm and humiliation. Noting
the parties' disagreement, the court redrafted the instructions.
¶47 After the defense rested, the court called a bench conference,
provided its jury instruction to counsel, and noted that Mrs. Bendt had
only raised a Rule 411 objection and did not argue undue prejudice. Thus,
we do not consider whether the probative value of the insurance was
substantially outweighed by a danger of unfair prejudice. See State v.
Montano, 204 Ariz. 413, 425, ¶ 58 (2003) (holding failure to object to evidence
on Rule 403 grounds waived the objection); Conant v. Whitney, 190 Ariz. 290,
293 (App. 1997) (holding that issue raised for the first time in a new trial
motion was waived on appeal); see also Muehlebach v. Mercer Mortuary &
Chapel, Inc., 93 Ariz. 60, 65 (1963) (holding that the mere mention of a
defendants' liability insurance is not per se prejudicial).
15
TARTER, et al. v. BENDT, et al.
Decision of the Court
testified that she had lost her insurance policy because of the lawsuit. The
court cautioned counsel that they could address it in closing arguments if
they disagreed with the instruction. The court's jury instruction stated:
Insurance. As you were instructed during the trial, evidence
that a person was or was not insured against liability is not
admissible to prove whether the person acted wrongfully.
But it may be considered for other relevant purposes such as
when witness Dan [] testified regarding why he did not sue
Mrs. Bendt. The attorneys may explain in their closing
arguments whether they believe any evidence of insurance is
relevant for purposes other than proving that Mrs. Bendt
acted wrongfully.
Neither party addressed insurance during their closing arguments.
¶48 The Arizona Rules of Evidence bar consideration of insurance
coverage to the issue of liability but do not expressly prohibit consideration
of insurance on the issue of damages. See Ariz. R. Evid. 411. While such
consideration is barred in the standard jury instruction promulgated by the
Arizona State Bar, see RAJI (Civil) Stand. 9,4 the RAJIs have not been
approved by the Arizona Supreme Court, State v. Logan, 200 Ariz. 564, 566,
¶ 12 (2001); see Life Inv'rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182
Ariz. 529, 532 (App. 1995) ("A jury instruction need not be a model
instruction, as long as it does not mislead the jury when the instructions are
read together and in light of each other.").
¶49 Thus, the court's instruction accurately conveyed the
substance of Rule 411, the applicable legal standard. See Filasky v. Preferred
Risk Mut. Ins. Co., 152 Ariz. 591, 599 (1987) ("All we require of the trial judge
is that he convey in his instructions to the jury the substance of the
applicable legal standard."). Moreover, the court's instruction did not
specifically endorse consideration of insurance for damages or any purpose
beyond explaining Dan's decision not to sue. And neither counsel argued
that insurance was relevant to the issue of damages. See State v. Johnson, 205
Ariz. 413, 417, ¶ 11 (App. 2003) ("[I]n evaluating the jury instructions, we
4 The standard jury instruction was promulgated in 2005 and does not
rely on Arizona authorities for the reference to damages. See RAJI (Civil)
Stand. 9 (4th ed. 2005) (citing Shari Seidman Diamond & Neil Vidmar, Jury
Room Ruminations on Forbidden Topics, 87 Va. L. Rev. 1857, 1910 (2001);
Judicial Council of California Civil Jury Instructions (2003-04), CACI No.
105).
16
TARTER, et al. v. BENDT, et al.
Decision of the Court
consider the instructions in context and in conjunction with the closing
arguments of counsel."); cf. Ventura, 825 F.3d at 885-86 (ordering new trial
when counsel made improper statements about defendant's insurance
during the closing argument). The Bendts provide no other authority that
the instruction misstated the law. See S. Pac. Co. v. Barnes, 3 Ariz. App. 483,
488 (1966) ("It is well-established in our law that the fact that evidence is not
admissible for one purpose does not exclude the evidence if it is admissible
for another legitimate purpose.").
¶50 The defense made the Bendt's insurance relevant and did not
assert unfair prejudice at trial. Moreover, the court's instruction accurately
stated the law, and neither party argued to the jury that insurance was
relevant for an improper purpose. Accordingly, we cannot say the court
abused its discretion by declining to give the RAJI standard instruction.
IV. Juror Bias.
¶51 Next, the Bendts assert that the court erred when it refused to
strike Juror 1 for cause. On the fifth day of trial, Juror 1 informed the court
that her daughter had attended the same law school as Mr. Tarter. Juror 1
revealed that she was "shocked" by Mrs. Bendt's disparaging statements
about the school. The court questioned Juror 1, who said that the law school
criticism seemed "an insignificant comment in the grand scope of things,"
and asserted that she could remain fair and impartial. The court denied the
Bendt's motion to disqualify. On the last day of trial, Juror 1 was randomly
selected as the alternate.
¶52 A trial court must disqualify jurors who are "biased or
prejudiced in favor of or against either of the parties." A.R.S. § 21-211(4);
see also Ariz. R. Civ. P. 47(d)(1)(D). But "[t]he fact that a juror possesses
certain opinions or preconceived ideas does not necessarily render that
juror incompetent to decide fairly and impartially." State v. Clabourne, 142
Ariz. 335, 344 (1984). The superior court is in the best position to determine
a juror's impartiality based upon the juror's demeanor and credibility, and
we will only reverse a determination that a juror is fair and impartial for an
abuse of discretion. Id. at 344.
¶53 The Bendts argue that the failure to disqualify Juror 1 violated
their due process rights because her verdict was likely based "on
information gleaned from other sources." However, Juror 1's selection as
the alternate means that she did not render a verdict in the case. The Bendts
also assert that Juror 1 had a personal interest in the outcome of the case.
But Juror 1 stated that her daughter chose to attend the school without Juror
17
TARTER, et al. v. BENDT, et al.
Decision of the Court
1's input and a limited connection to the school through her daughter does
not rise to the level of personal interest that requires disqualification. See
State v. Acuna Valenzuela, 245 Ariz. 197, 210, ¶ 32 (2018) ("[A] juror who
knows some of the people involved in a case is not automatically barred
from serving on a jury."); cf. State v. Eddington, 228 Ariz. 361, 363, ¶ 11 (2011)
(discussing non-pecuniary interests requiring juror disqualification).
Finally, the Bendts argue that Juror 1 "participated in discussions with
fellow jurors during the two-week trial [and her] inability to be impartial
likely influenced her fellow jurors." But the superior court questioned Juror
1 and found that she was forthcoming about her connection to the school,
appeared open-minded to the case, and her answers were credible. See State
v. Reasoner, 154 Ariz. 377, 384 (App. 1987) (holding that a juror who assures
the court that he or she can be fair and impartial need not be excused).
Accordingly, we find no error.
V. Compensatory Damages.
¶54 The Bendts argue that the compensatory damages are not
supported by evidence, are excessive, and that a new trial, or remittitur,
should be ordered.
¶55 "It is 'well settled in Arizona that the amount of an award for
damages is a question peculiarly within the province of the jury, and such
award will not be overturned or tampered with unless the verdict was the
result of passion and prejudice.'" In re Estate of Hanscome, 227 Ariz. 158, 162,
¶ 12 (App. 2011) (quoting Larriva v. Widmer, 101 Ariz. 1, 7 (1966)); see also
Creamer v. Troiano, 108 Ariz. 573, 576 (1972) (holding that unless a verdict is
the result of passion or prejudice, we must affirm if the "case has been
submitted on correct rulings and instructions, and the verdict is within the
range of credible evidence"). We "will not disturb the damages awarded
when there is evidence in the record to support the award," and "the
amount awarded does not shock the conscience." Higgins v. Assmann Elecs.,
Inc., 217 Ariz. 289, 295-96, ¶ 23 (App. 2007) (citation omitted). If the alleged
defamatory statement involves a matter of public concern, compensation
can only be awarded for actual injury. Gertz v. Robert Welch, Inc., 418 U.S.
323, 350-51 (1974); Boswell, 152 Ariz. at 19. The Supreme Court in Gertz did
not specifically define "actual injury" but noted "that actual injury is not
limited to out-of-pocket loss. Indeed, the more customary types of actual
harm inflicted by defamatory falsehood include impairment of reputation
and standing in the community, personal humiliation, and mental anguish
and suffering." 418 U.S. at 350.
18
TARTER, et al. v. BENDT, et al.
Decision of the Court
¶56 The jury awarded the Tarters $150,000 for reputational harm
and $350,000 for emotional harm. These awards are supported by sufficient
evidence. See Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 580,
¶ 30 (App. 2015) (noting that "once the jury found [defendant's] statements
were defamatory . . . it was within the jury's province to consider any actual
damage to Plaintiffs' reputations and/or any emotional damage or damage
to sensibility").
¶57 The Tarter's testified to the emotional harm caused by Mrs.
Bendt, including the damage to their marriage and the fear and anxiety
incurred by repeated allegations of dishonesty, law-breaking, and ethical
violations. Testimony from other community members was consistent with
the Tarters' claims of emotional suffering. The jury also heard substantial
testimony about how Mrs. Bendt's newsletters had harmed Mr. Tarter's
reputation in the community, including testimony about angry residents at
HOA meetings and that members believed Mrs. Bendt's accusations about
Mr. Tarter.
¶58 The Bendts rely on Petta, a defamation case where we
concluded the jury's $11 million compensatory damages award was
unsupported by evidence, "shock[ed] the conscience," and required a new
trial. 236 Ariz. at 584, ¶ 45. There we found that "[t]he evidence on damages
was noticeably thin, entirely subjective, and based solely on Plaintiffs' non-
specific, vague, and conclusory testimony." Id. at 583, ¶ 41. Here, the
compensatory damage award was supported by evidence from multiple
witnesses. See supra ¶ 57. Further, the verdict rendered in Petta "was
approximately equivalent to the largest civil jury verdict in Arizona in 2013,
[was] the thirtieth largest civil verdict in Arizona in the past ten years . . .
[and] nearly four times the verdict entered in the next largest defamation
case." Id. at 584, ¶ 44 (citing Kelly W. MacHenry, Arizona's Civil Verdicts
2013, Ariz. Att'ny, 40, 50 (June 2014)). The same comparison cannot be
made here. The Tarters's verdict did not rank among Arizona's top ten civil
verdicts, see Carlie Tovrea & Alysha Green, Arizona Civil Verdicts: 2019,
Ariz. Att'ny, 14-25 (June 2020), nor did they receive the largest
compensatory damages award for defamation in 2019, cf. Hinds v. Bales,
CV2018-001901, 2019 WL 6533031 (Maricopa Cnty. Sup. Ct. Oct 14, 2019)
(judgment of $722,082 for compensatory damages and $277,918 punitive
damages in a case arising under defamation and tortious interference with
contract). Thus, Petta is distinguishable.
¶59 Given the foregoing, the jury's compensatory damages award
was supported by evidence of actual injury, and we cannot say it shocks the
conscience.
19
TARTER, et al. v. BENDT, et al.
Decision of the Court
VI. Punitive Damages.
¶60 A jury may award punitive damages to punish a defendant
for willful or malicious conduct and deter others from similar behavior.
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 n.9 (1986) (citation
omitted); see Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 486, 489, ¶¶ 38, 50
(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).
A. Evidence Supported the Punitive Damages Award.
¶61 To obtain punitive damages, "there must be evidence of an
'evil mind' and aggravated and outrageous conduct" that is "over and above
that required for commission of a tort." Linthicum v. Nationwide Life Ins. Co.,
150 Ariz. 326, 331-32 (1986). The Bendts assert that the record
"demonstrates a lack of malice" and that Mrs. Bendt's "conduct did not rise
to the 'most egregious' level of cases in which juries may award punitive
damages."
¶62 The voluminous evidence is summarized by Dan's testimony:
"[Mrs. Bendt's] commentary and her constant tirade through many emails
to the broader community was we were bottom feeders, that we were poor,
that we shouldn't live there, that we didn't have a right to be there, because
we weren't as wealthy as her or didn't have as many assets as her or didn't
dress as nice as her . . . ." The jury also heard evidence that Mrs. Bendt
hoped some residents would "sell so we can get people that really belong
at [Fairway]." And the record supports that Mrs. Bendt considered the
Tarters part of the "low class" "bottom feeders" and "low price buyers," she
believed Mr. Tarter would be distraught at her accusations, her objective
was to "place a leash" on the Board, and she was happy to be "so annoying!"
¶63 Thus, the Tarters proved the requisite "something more" to
support the award of punitive damages. See Rawlings v. Apodaca, 151 Ariz.
149, 161 (1986); see also Scottsdale Publ'g, Inc. v. Superior Court, 159 Ariz. 72,
82 n.7 (App. 1988) (discussing correlation between "actual malice" required
to prove defamation and "evil mind" necessary to obtain punitive damages
in a tort action).
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TARTER, et al. v. BENDT, et al.
Decision of the Court
B. The Punitive Damages Award was not Unconstitutional.
¶64 The Bendts argue that the punitive damage award was
unconstitutional. The Tarters assert that we must defer to the discretion of
the jury.
¶65 Punitive damage awards have substantive limits. Sec. Title
Agency, Inc. v. Pope, 219 Ariz. 480, 501, ¶ 93 (App. 2008). "A grossly
excessive punitive damage award violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution . . . ." Hudgins,
221 Ariz. at 489, ¶ 50; see Hyatt Regency Phx. Hotel Co. v. Winston & Strawn,
184 Ariz. 120, 134 (App. 1995) ("Arizona's courts do not hesitate to overturn
excessive or inadequate punitive damage awards."). We review punitive
damage awards de novo, considering the following guideposts "(1) the
degree of reprehensibility of the defendant's misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties authorized or imposed
in comparable cases." Pope, 219 Ariz. at 501, ¶ 94 (quoting State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)).5
1. Reprehensibility.
¶66 The Supreme Court has identified several factors for courts to
consider when determining the reprehensibility of the defendant's conduct.
See State Farm, 538 U.S. at 419 (listing factors). Based on our previous
descriptions of the relevant testimony, we find that the jury could have
found at least one factor in that "the harm was the result of intentional
malice." Id.; see Pope, 219 Ariz. at 502, ¶ 98 ("Because First American acted
with an evil mind, it necessarily acted with intentional malice for purposes
of the State Farm reprehensibility guidepost."). We conclude that Mrs.
Bendt's conduct, in this case, was sufficiently reprehensible to justify an
award of punitive damages.
5 Defamation is a common-law tort, "and we agree with the Tenth
Circuit that 'a violation of common law tort duties [may] not lend [itself] to
a comparison with statutory penalties.'" Pope, 219 Ariz. at 501, ¶ 94 n.19
(quoting Cont'l Trend Res., Inc. v. Oxy USA Inc., 101 F.3d 634, 641 (10th Cir.
1996)). We have previously declined to analyze the third guidepost when
it neither weighs for nor against the punitive damages award. Id. We do
so again here as "neither party points us to a civil penalty that is sufficiently
analogous to allow for comparison." Id.21
TARTER, et al. v. BENDT, et al.
Decision of the Court
2. Ratio of Punitive to Compensatory Damages.
¶67 Regarding the second guidepost, the Supreme Court in State
Farm declined to "impose a bright-line ratio which a punitive damages
award cannot exceed," but observed that "an award of more than four times
the amount of compensatory damages might be close to the line of
constitutional impropriety." 538 U.S. at 425. The Supreme Court also stated
that "[w]hen compensatory damages are substantial, . . . a lesser ratio,
perhaps only equal to compensatory damages, can reach the outermost
limit of the due process guarantee." Id. at 425.
¶68 We find the $500,000 award for compensatory damages, in
this case, is substantial. See, e.g., Hudgins, 221 Ariz. at 491, ¶ 58 (finding
award of $500,000 for emotional distress substantial); Nardelli v. Metro. Grp.
Prop. & Cas. Ins. Co., 230 Ariz. 592, 611, ¶ 96 (App. 2012) (finding "$155,000
compensatory damage award was substantial"). On appeal, the Bendts
assert that the ratio must be reduced to 1:1 as suggested in State Farm and
applied in several recent Arizona cases. See Hudgins, 221 Ariz. at 492, ¶¶ 64-
65 (reducing 8:1 ratio of punitive damages to 1:1); Pope, 219 Ariz. at 503-04,
¶¶ 104, 108 (reducing 5.7:1 ratio of punitive damages to 1:1); Nardelli, 230
Ariz. at 612, ¶ 100 (reducing 4:1 ratio of punitive damages to 1:1). But those
cases involved punitive damage awards that met or exceeded State Farm's
vague line of "constitutional impropriety." 538 U.S. at 425; cf. Nardelli, 230
Ariz. at 611, ¶ 96 (trial court reduced 355:1 ratio of jury imposed punitive
damages to 4:1). Here, the jury only awarded punitive damages at a 2:1
ratio. See Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 82 (1st Cir.
2001) (holding that "the 2:1 ratio of compensatory to punitive damages
awarded by the jury here presents no cause for concern"); cf. Williams v. First
Advantage LNS Screening Sols. Inc, 947 F.3d 735, 760-61 (11th Cir. 2020)
(collecting circuit court cases and finding a "majority of the affirmed cases
involved ratios of 2:1 or less"). Furthermore, this was not a case of economic
damages, which are "less worthy of large punitive damages awards," Pope,
219 Ariz. at 502-03, ¶ 96 (quoting Inter Med. Supplies, Ltd. v. EBI Med. Sys.,
Inc., 181 F.3d 446, 467 (3d Cir. 1999)), but included damages for the
emotional and reputational harm the Tarters suffered.
¶69 Considering the foregoing, we conclude the jury's punitive
damages award passes constitutional muster.
22
TARTER, et al. v. BENDT, et al.
Decision of the Court
CONCLUSION
¶70 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
23