By order dated May 26, the Arizona Supreme Court granted the Petition for Review filed by Gordon & Rees Phoenix attorneys Leon Silver and Andy Jacob in support of a defense verdict on an $11,000,000 vendor account and breach of contract claim against its client, a national auto parts retailer.
In 2005, a vendor sued the client for claims arising from the client's purchase of the vendor's products for resale in the client's stores. The vendor claimed that the client wrongfully took a variety of discounts and wrongfully returned product in violation of the terms of the manufacturer warranty provided by the vendor. Over the course of a three week trial, 24 witnesses testified and the Court admitted 164 exhibits. In closing, the vendor asked for just shy of $11 million in damages. After two hours of deliberations, the jury agreed with Silver’s argument that the client owed the vendor only $10,733.
The specific issue under review is whether the trial court abused its discretion in denying a motion for new trial without first holding an evidentiary hearing to determine whether an ex parte communication between the bailiff and the jury was improper and prejudicial. The trial judge ruled – without a holding a hearing – that the comment was not prejudicial. In a published, split decision, the Arizona Court of Appeals reversed, finding that the trial judge had to hold a hearing before making a decision regarding the prejudice of the statement. In their petition for review, Silver and Jacob argued that the dissent got it right and that the majority decision is problematic: “The majority opinion invites parties to pester jurors after their service concludes and, just as unfortunately, severely limit any disclosure about post-trial contact with jurors. This is a dangerous precedent that should not stand.”
The Arizona Supreme Court has ordered supplemental briefing on the issue and oral argument will likely be held in August or September 2015.