Free Order on Motion for New Trial - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 The Mills Corporation, et al., 12 Defendant. 13 14 15 Plaintiff filed a Motion for New Trial seeking a new trial on damages and the 16 constructive eviction claim. Defendants have responded in opposition and Plaintiff filed a 17 reply. 18 Plaintiff argues that the jury's failure to award economic damages is inconsistent with 19 the evidence because Plaintiff's expert testified that he sustained economic damages of 20 $96,000.00. Plaintiff also challenges the Court's refusal to allow that same expert to testify 21 about Plaintiff's lost profits. Plaintiff's claim of economic damages of $96,000.00 was based 22 upon a calculation of the difference in rent between what Plaintiff paid on his permanent 23 lease and what he had previously paid under a temporary lease. These damages would be 24 awardable only if the jury had accepted Plaintiff's contention that he was forced to sign a 25 permanent lease. The facts concerning Plaintiff's execution of a permanent lease were in 26 dispute and there was significant evidence presented to the jury that Plaintiff was the one 27 who was insistent upon obtaining a permanent lease. Unless the jury concluded that Plaintiff 28
Case 2:02-cv-02639-SRB Document 167 Filed 12/12/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Nicholas Alozie, Plaintiff, vs.

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No. CV02-2639-PHX-SRB ORDER

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was forced to sign a permanent lease, and thereby incur substantial additional lease costs than what he otherwise would have had under a continuing temporary lease, damages under this theory of rent differential would not be awarded. Under the evidence presented the jurors were free to reject these claimed damages if they found that Plaintiff willingly entered into a permanent lease. The Court disallowed Plaintiff's expert from testifying about claimed loss profits for the reasons expressed by the Court at trial. There was a lack of disclosure and discovery on this claim and the Court continues of the view that it was properly excluded. Plaintiff also claims that the award of nominal damages is inadequate and inconsistent with the evidence. It is not. As previously indicated, the only economic damages offered were based on a theory of the case that the jury was free to reject. Similarly, the juror could reject and refuse to award damages for alleged mental distress and humiliation. Finally, Plaintiff argues that the jury's verdict on the issue of constructive eviction was not supported by the evidence. It was. Plaintiff offered to the jury his reasons for leaving Arizona Mills Mall. He contended that the last straw was an accusation of an alleged failure by him to pay rent timely. Defendants offered their explanation for why the notice was sent concerning April rent and the fact that no action was taken once Plaintiff provided verification to Arizona Mills that the rent had been timely paid. The jury was free to reject the assertion that the sending of a letter to Plaintiff suggesting that his rent was not paid was a substantial and intentional interference with his permanent use and occupancy at the premises. The jury was also free to reject the assertions by Plaintiff's employee that certain interactions with security amounted to a constructive eviction, particularly, based on the timing of these alleged interactions. IT IS ORDERED denying Plaintiff's Motion for New Trial. (doc. 142). DATED this 12th day of December, 2005.

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