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S Development Company v. Pima Capital Management Co.8/30/2001
ented at trial.
VII. Sufficiency of the Evidence to Support the Award of Consequential Damages
The appellants' final argument is that the evidence did not support the jury's consequential damages verdict, and on that basis, the appellants are entitled to a new trial. "In reviewing a jury verdict, we view the evidence in the light most favorable to sustaining the verdict. We will affirm the verdict if there is substantial evidence to support it." Warrington, 197 Ariz. at 69, 4, 3 P.3d at 989 (citation omitted).
The trial court's charge to the jury on the issue of damages was as follows:
If you find that any of the defendants are liable to plaintiffs for negligent misrepresentation by omission or fraud, you must then decide the full amount of money that will reasonably and fairly compensate plaintiffs for damages proved by the evidence to compensate the plaintiffs for the pecuniary loss to them of which the misrepresentation is a legal cause, including the difference between the value of what was received in the transaction and the purchase price or other value given for it, and pecuniary loss suffered otherwise as a consequence of the plaintiff's reliance upon the misrepresentations.
Because the trial court instructed the jury on both benefit-of-the-bargain damages and consequential damages, and the verdict forms do not distinguish between the two types of damages, we cannot conclude what, if any, portion of the jury's award should be considered consequential damages.
From an evidentiary standpoint, the appellees produced sufficient evidence to establish at least benefit-of-the-bargain damages. The appellees presented testimony that, had they known of the defective plumbing, they would have purchased the buildings for $5 to $6 million less than the $15 million paid. In addition, the appellees presented expert testimony on the replacement value of the defective plumbing, including "lost opportunity" damages for use of the money that the appellees overpaid, which the expert opined to be, at a minimum, nearly $3 million. The jury awarded approximately $700,000 more than the appellees' expert's opinion that, at a minimum, the appellees lost $3 million as a result of the nondisclosure of the defective plumbing. Even if we assume that the jury awarded nearly $700,000 as "consequential damages," we find that the evidence supports this award. The expert testified that, in his opinion, he would expect "the discount [on the purchase price of the properties] to be greater than simply the cost of repairs [to the plumbing], because clearly there is cost associated with that, which would be reflected in the property value." In any event, it was within the jury's province to determine the compensation that appellees were due when taking into account the fair market value of the buildings at the time of the sale, including defects, and the price the appellees paid for the buildings. We conclude that the evidence supports the jury's verdict.
CONCLUSION
For the foregoing reasons, we affirm the jury's verdict and the judgment entered thereon.
WILLIAM F. GARBARINO, Presiding Judge
CONCURRING:
JON W. THOMPSON, Judge
EHRLICH, Judge, Dissenting.
I dissent from the analysis employed by the majority. This case presents a paradigm for the application of contract prin-ciples to a straightforward commercial real-estate contract between equally informed and sophisticated parties represented by legal counsel.
When the appellees bought the two apartment complexes from the appellants, both purchase contracts contained a substantially similar p
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