Borowsky v. Brooks
1 CA-CV 23-0699
| Ariz. Ct. App. | Dec 19, 2024Background
- Todd Borowsky borrowed $200,000 in total from Mark Brooks through four loans, secured by cars and a liquor license, and each loan had a high interest rate contract.
- Disputes arose about repayment, and Brooks took possession of, then sold, the collateral; Borowsky later sued Brooks and two others (Johnson and Pate) for various contract and tort claims.
- During a 13-day trial, Borowsky repeatedly violated court orders excluding specific prejudicial evidence and references.
- Borowsky's misconduct included making improper references, refusing to obey court instructions, disrupting proceedings, and acting out in court despite multiple admonitions.
- The jury originally awarded Borowsky over $18 million in damages, but the court granted defendants' motion for a new trial and imposed over $230,000 in attorneys’ fees on Borowsky as sanctions for trial misconduct.
- Borowsky appealed the new trial order and sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for new trial due to trial misconduct | Misconduct by a party/witness doesn’t meet stricter standard; Leavy applies only to counsel | Repeated, knowing violations justify new trial | Trial court applied correct standard; Leavy doctrine applies to party misconduct |
| Whether Borowsky's conduct warranted new trial | Only minor, isolated misconduct, not significant or prejudicial | Pattern of persistent, deliberate misconduct | Record supports finding misconduct was significant and prejudicial, justifying new trial |
| Prejudice to all defendants and scope of new trial | Misconduct only prejudiced Brooks, not Johnson or Pate | Issues and parties were inextricably intertwined | New trial on all claims was proper due to intertwined parties/issues |
| Sanctions of attorneys’ fees for misconduct | Imposing sanctions improper if new trial not warranted | Fees proper as sanction for necessitating retrial | Trial court did not err in awarding defendants attorneys’ fees as sanction |
Key Cases Cited
- Leavy v. Parsell, 188 Ariz. 69 (Ariz. 1997) (setting standard for granting new trial based on trial misconduct)
- Styles v. Ceranski, 185 Ariz. 448 (Ariz. Ct. App. 1996) (discretion of trial court in granting a new trial)
- Fischer v. Superior Court, 242 Ariz. 44 (Ariz. 2017) (appellate review standard for new trial orders)
- Ring v. Taylor, 141 Ariz. 56 (Ariz. Ct. App. 1984) (requirement for actual influence of verdict by misconduct)
- Liberatore v. Thompson, 157 Ariz. 612 (Ariz. Ct. App. 1988) (nature of trial court’s discretion in granting new trial)
- Varco, Inc. v. UNS Elec., Inc., 242 Ariz. 166 (Ariz. Ct. App. 2017) (cumulative misconduct may justify new trial)
- Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434 (Ariz. 1982) (trial court's factual determination on prejudice from misconduct)