IN THE

SUPREME COURT OF THE STATE OF ARIZONA

AMERICAN POWER PRODUCTS, INC., A CALIFORNIA CORPORATION;

LFMG/APP, LLC, AN ARIZONA CORPORATION,

Plaintiffs/Counterdefendants/Appellants/Cross-Appellees,

v.

CSK AUTO, INC., AN ARIZONA CORPORATION,

Defendant/Counterclaimant/Appellee/Cross-Appellant.

No. CV-14-0261-PR

Filed February 5, 2016

Appeal from the Superior Court in Maricopa County 

The Honorable George H. Foster, Jr., Judge

No. CV2005-019594

AFFIRMED

Opinion of the Court of Appeals, Division One

235 Ariz. 509, 334 P.3d 199 (App. 2014)

REVERSED AND REMANDED

COUNSEL:

Herbert Dodell, Dodell Law Corporation, Woodland Hills, CA; and David 

B. Goldstein (argued), Hymson Goldstein & Pantiliat, PLLC, Scottsdale, 

Attorneys for American Power Products Inc. and LFMG/APP LLC

Leon B. Silver (argued), Andrew S. Jacob, Gordon & Rees LLP, Phoenix, 

Attorneys for CSK Auto Inc.

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES

TIMMER and BERCH (RETIRED) joined.

JUSTICE BRUTINEL, opinion of the Court:
AMERICAN POWER PRODUCTS v. CSK AUTO 

Opinion of the Court

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¶1 During jury deliberations after a lengthy trial, a juror asked 

the bailiff how long deliberations usually lasted. Without consulting 

anyone, the bailiff answered, “an hour or two should be plenty.” We hold 

that the trial court did not err by denying the plaintiff’s motion for a new 

trial based on the bailiff’s statement without first holding an evidentiary 

hearing. Although the statement was plainly improper, it was not 

objectively prejudicial and there was no significant fact question about 

what occurred.

I. BACKGROUND

¶2 In 2005 American Power Products, Inc. (“American”) sued 

CSK Auto, Inc. (“CSK”) for breach of contract, and CSK counterclaimed.

The eventual trial lasted twelve trial days and included twenty-four 

witnesses and 164 exhibits, one of which was more than 4000 pages long.

¶3 Closing arguments were heard on a Friday before a three-day 

weekend. Although American sought more than $5 million in damages, its 

counsel attempted to simplify the case and focus the jury’s attention on a 

small number of exhibits. For example, at one point he said, “I am not 

encouraging you to look at every single exhibit, but this is an important 

one.” Later, in rebuttal, he encouraged the jurors to “just look at Exhibit 

No. 412. Tab two. That’s all I want you to look at.”

¶4 Counsel for CSK argued that the jury should award more than

$1.6 million on its counterclaims. In the alternative, however, he suggested 

that the jury might simply reject all the claims and counterclaims and award 

American the $10,733 that CSK conceded it owed and that the parties had 

agreed would be the “starting point” for computing damages. After 

deliberating for one to two hours, the jurors returned a 6-2 verdict awarding

American $10,733.

¶5 Subsequently, American hired a private investigator who

obtained affidavits from two jurors about their deliberations. The affidavit 

from juror H.T. described a communication between the bailiff and the jury 

that qualified as possible “extraneous prejudicial information” under 

Arizona Rule of Evidence 606(b)(2). Juror H.T.’s affidavit stated that “[at] 

one point the bailiff . . . came into the room. Someone asked her how long 

deliberations typically lasted. She told us an hour or two should be plenty.”
AMERICAN POWER PRODUCTS v. CSK AUTO 

Opinion of the Court

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¶6 Relying on the affidavits, American moved for a new trial. 

American argued that, “at a minimum [the affidavits] create a ground for 

further inquiry whether deliberations were improperly curtailed both by 

improper jury conduct and the bailiff’s statement that one or two hours of 

deliberations were enough.” CSK argued that Evidence Rule 606 precluded 

admission of all statements in the affidavits except juror H.T.’s description 

of the communication between the bailiff and the jury.1 CSK did not 

dispute that the bailiff communication occurred as alleged. Rather, CSK 

argued that, although improper, the communication was insubstantial and 

did not raise an inference of actual prejudice.

¶7 At oral argument on the motion, the court indicated that it 

agreed with CSK that only the statement about the bailiff communication 

would be admissible under Evidence Rule 606 and that the bailiff 

communication was not prejudicial. The court characterized the 

communication as a “throwaway question” that was “not directed to this 

case, not to the substance of this case at all.” In addition, when counsel for 

American contended that the jury’s rapid verdict was “so aberrational that 

it’s kind of stunning,” the court responded that it “[didn’t] think it was 

stunning at all.” The court also implied that the quick verdict might have 

resulted from the attorneys’ failure to heed the court’s admonition to 

simplify the case, which, the court pointed out, featured a confusing 

combination of detailed contract provisions, numerous acronyms, and 

technical jargon. The trial court denied the motion for a new trial without 

holding an evidentiary hearing.

¶8 A divided court of appeals reversed and remanded. Am. 

Power Prods., Inc. v. CSK Auto, Inc., 235 Ariz. 509, 517 ¶ 25, 334 P.3d 199, 207

(App. 2014). The majority found that the trial court could not determine 

from the record how the jury might have interpreted the bailiff’s comment.

This uncertainty meant that prejudice should be presumed, and therefore 

the trial court erred by denying the new trial motion without holding an 

evidentiary hearing. The dissent concluded that the trial court acted within 

 

1Arizona Rule of Evidence 606(b)(1) states, “During an inquiry into the 

validity of a verdict in a civil case, a juror may not testify about any 

statement made or incident that occurred during the jury’s deliberations; 

the effect of anything on that juror’s or another juror’s vote; or any juror’s 

mental processes concerning the verdict or indictment.”
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its discretion in determining, on the basis of H.T.’s uncontested affidavit 

alone, that the communication was not prejudicial.

¶9 We granted review because this case raises an issue of 

statewide importance. We have jurisdiction under article 6, section 5(3) of 

Arizona’s Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

¶10 We review the trial court’s denials of a motion for a new trial 

and a requested evidentiary hearing for abuse of discretion. See State v. 

Miller, 178 Ariz. 555, 556, 875 P.2d 788, 789 (1994); Adroit Supply Co. v. Elec.

Mut. Liab. Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975).

¶11 Bailiffs are prohibited from communicating ex parte with the 

jury, other than about mere administrative details. Ariz. R. Civ. P. 39(e),

(g); see Perez ex rel. Perez v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 359, 

929 P.2d 1303, 1307 (1997) (noting that improper ex parte communications 

may come from a bailiff or a judge and “there is far more potential for 

improper advice from a bailiff than from a judge on substantive legal and 

important procedural matters”). If an ex parte communication prejudices 

jury deliberations, the verdict must be vacated and a new trial ordered. 

Perez, 187 Ariz. at 362, 929 P.2d at 1310. But we do not presume prejudice 

from the mere occurrence of an ex parte communication. Id. at 361, 929 P.2d 

at 1309. Instead, courts examine ex parte communications on a “case-bycase basis, applying a two-prong inquiry: (1) Was there an improper 

communication? and (2) Was the communication prejudicial or merely 

harmless?” Id. at 358, 929 P.2d at 1306. Because we agree with the parties

and the court of appeals that the bailiff’s statement was improper, we focus 

on whether it was prejudicial.

A. Lack of Factual Dispute

¶12 If there is no significant factual question, the trial court may 

grant or deny a motion for a new trial without holding an evidentiary 

hearing. See State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996) 

(concluding that the trial court did not abuse its discretion in denying 

defendant a new trial without first holding an evidentiary hearing when a 

juror’s post-verdict affidavit stated that jurors had considered notes from 

an alternate juror but did not indicate that the notes contained extraneous 
AMERICAN POWER PRODUCTS v. CSK AUTO 

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information that was damaging or prejudicial). If there is a significant 

question as to what occurred or whether the affiant is credible and whether 

the alleged facts, if true, would establish a basis for granting the motion, the 

court must hold an evidentiary hearing before ruling on a motion for new 

trial. See, e.g., Perez, 187 Ariz. at 357 n.3, 929 P.2d at 1305 n.3 (finding that 

the trial court erred in limiting evidentiary hearing to one of three alleged 

improper communications when details of the communications were not 

fully known); Miller, 178 Ariz. at 557, 875 P.2d at 790 (finding that the trial 

court erred in denying motion for a new trial without first holding an 

evidentiary hearing when the only information about the improper 

communication came second-hand from the prosecutor).

¶13 Here the trial court was not required to hold an evidentiary 

hearing before ruling on the motion for new trial because there was no 

dispute as to what occurred. Both parties agreed that the bailiff said that 

“one or two hours should be plenty.” In finding that the trial court erred, 

the court of appeals reasoned that the jury could have understood the 

bailiff’s statement as either (1) an innocuous estimate of the typical duration 

of jury deliberations or (2) an “indirect comment on the relative complexity 

of the evidence and the applicable law.” CSK, 235 Ariz. at 514 ¶ 15, 334 P.3d 

at 204. Because it concluded that the trial court did not have the facts 

necessary to determine which of the two interpretations the jury adopted,

it found an evidentiary hearing necessary to address questions “regarding 

the context of the communication itself,” including the specific content of 

the communication, “whether the jurors asked follow-up questions in 

response to the bailiff’s response, or the amount of time that elapsed 

between the communication and the jury’s verdict.” Id. at 515 ¶ 16, 334 P.3d 

at 205.

¶14 But even if we assume that such questions would have been

proper under Evidence Rule 606, we conclude that the mere existence of 

potential “context” questions does not compel the trial court to hold an 

evidentiary hearing. As the dissent recognized, “neither party disputed 

whetherthe bailiff made the statement at issue, and the parties did not point 

to any factual dispute relating to the bailiff’s statement that would need to

be resolved through an evidentiary hearing.” Id. at 517 ¶ 28, 334 P.3d at 207 

(Cattani, J., dissenting). Accordingly, the trial court reasonably could have 

concluded that the affidavit accurately set forth the bailiff’s answer, all 

jurors heard that answer, and if there had been more to the ex parte 

communication either the affiant or American would have raised it.
AMERICAN POWER PRODUCTS v. CSK AUTO 

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B. Absence of Prejudice

¶15 Although we have previously addressed ex parte 

communications with jurors, our articulation of the standard for 

determining prejudice in such situations “has not . . . been entirely 

uniform.” Perez, 187 Ariz. at 360, 929 P.2d at 1308. We have found that an 

improper communication did not necessitate a new trial absent an 

“affirmatively probable” showing of prejudice. S. Pac. R.R. Co. v. Mitchell,

80 Ariz. 50, 65, 292 P.2d 827, 837 (1956). Similarly, we have noted that “a 

communication between judge and jury outside the presence of defendant 

and counsel [may be] harmless error.” State v. Rich, 184 Ariz. 179, 180, 907 

P.2d 1382, 1383 (1995) (quoting State v. Mata, 125 Ariz. 233, 241, 609 P.2d 48, 

56 (1980)). But we have also rejected a harmless error analysis when we 

found that the judge’s legally erroneous jury instruction—that only jurors 

who had voted in favor of liability should participate in the calculation of 

damages—deprived the defendants of the fundamental right to trial by the 

full jury. Perkins v. Komarnyckyj, 172 Ariz. 115, 120, 834 P.2d 1260, 1265

(1992) (“Given the nature of the substantive error made in the ex parte

communication in the present case, however, Defendants were deprived of 

a fundamental right, and a harmless error analysis is therefore 

inappropriate.”). We reasoned in Perkins that “we cannot require a litigant 

to show the extent of prejudice resulting from an error when, as a practical 

matter, the nature of the error renders it impossible to prove the extent of 

any prejudice.” Id. at 119, 834 P.2d at 1264. In other words, because we 

could not know or assume what result the full jury might have reached had 

a correct instruction been given, the “nature of the error” required us to 

“presume[]” prejudice. Id. Finally, while maintaining Perkins’s “nature of 

the error” language in Perez, 187 Ariz. at 362, 929 P.2d at 1310, we clarified 

and narrowed this standard, declining “to adopt a strict rule of presumed 

prejudice” and affirming that improper ex parte communications are 

subject to harmless error analysis. Perez, 187 Ariz. at 358, 929 P.2d at 1306.2

 

2Our cases reflect that, although the standard of proof differs, see Rich, 184 

Ariz. at 181, 907 P.2d at 1384 (requiring in a criminal case that the state 

prove an ex parte communication harmless beyond a reasonable doubt), the

same analysis applies to both civil and criminal cases. Id. (citing Perkins, 

172 Ariz. at 118, 834 P.2d at 1263); Perez, 187 Ariz. at 360, 929 P.2d at 1308 

(citing Rich, 184 Ariz. at 180, 907 P.2d at 1383).
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¶16 That the nature of an error may render it impossible to prove 

the extent of any prejudice does not warrant a presumption of prejudice 

and ordering a new trial in all cases. Rather, it recognizes the practical 

reality that, in certain circumstances, it is “impossible to prove the extent of 

prejudice,” and that a judge should not require a party to bear that 

impossible burden in order to secure a new trial. See Perkins, 172 Ariz. at 

119, 834 P.2d at 1264; Perez, 187 Ariz. at 360, 929 P.2d at 1308. Because 

Evidence Rule 606 bars jurors from testifying about whether any given 

occurrence affected their decisions or those of fellow jurors, the nature of 

an ex parte communication with the jury may “render[] it impossible to 

prove the extent of prejudice.” Perkins, 172 Ariz. at 119, 834 P.2d at 1264; 

Perez, 187 Ariz. at 360, 929 P.2d at 1308; see Ariz. R. Evid. 606(b)(1). A trial 

court can never determine with certainty what might or might not have 

swayed a juror’s decision because direct testimony on that matter is 

prohibited. Ariz. R. Evid. 606(b)(1).

¶17 Even so, our rules charge the trial judge with deciding, based 

on the available evidence, whether the error likely “affect[ed] the 

substantial rights of the parties” such that refusing to order a new trial 

would be “inconsistent with substantial justice.” Ariz. R. Civ. P. 61; see also

Ariz. Const. art. 6, § 27 (“No cause shall be reversed for technical error in . . . 

proceedings when upon the whole case it shall appear that substantial 

justice has been done.”). In cases like Perkins, where the improper 

communication creates a structural defect in the trial that deprives a litigant 

of an essential right, the trial judge must conclusively presume prejudice.

Perkins, 172 Ariz. at 119–20, 834 P.2d at 1264–65. Such error cannot be 

harmless. See id. In all other cases, because the court cannot inquire into 

the effect of the communication on individual jurors, the court must 

determine whether the communication would likely prejudice a 

hypothetical average juror. See United States v. Boylan, 898 F.2d 230, 262 (1st 

Cir. 1990); United States v. Calbas, 821 F.2d 887, 896 n.9 (2d Cir. 1987) (noting 

that “post-verdict determination of extra-record prejudice must be an 

objective one, measured by reference to its probable effect on ‘a 

hypothetical average juror’”); accord Kilgore v. Fuji Heavy Indus. Ltd., 240 

P.3d 648, 655 (N.M. 2010) (citing 3 Jack B. Weinstein & Margaret A. Berger, 

Weinstein’s Federal Evidence § 606.05 [2][b] (2d ed. 2010)). In other words, 

the moving party is not required to prove actual prejudice, but is required 

to demonstrate the objective likelihood of prejudice. See Mitchell, 80 Ariz. 

at 65, 292 P.2d at 837; Kilgore, 240 P.3d at 656 (“[T]he burden remains on the 

moving party throughout the proceedings to prove the ultimate fact in 
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issue, i.e., that there is a reasonable probability that the extraneous material 

affected the verdict or a typical juror.”).

¶18 Having determined that the trial court in this case was not 

required to hold an evidentiary hearing, we consider whether the court 

abused its discretion in denying American’s motion for new trial. In 

deciding if a communication would have prejudiced a hypothetical average 

juror, we consider factors such as whether the communication related to the 

evidence presented, the applicable law, or the ultimate issue in the case, or 

whether it clearly interfered with the jury’s decision-making process. See

Perez, 187 Ariz. at 358–61, 929 P.2d at 1306–09; infra ¶ 20.

¶19 Here the trial court reasonably determined that the bailiff’s 

statement had no bearing on the issues. The statement did not relate to any 

specific or disputed fact or the strength of the evidence presented by either 

side; nor did it involve any legal issue in the case. While the trial was 

lengthy and complex, in closing arguments, both parties attempted to 

simplify the case and focus the jury’s attention on a few key pieces of 

evidence. Both parties discouraged the jurors from leafing through 

hundreds of trial exhibits. Thus, unlike the cases in which we have found 

prejudice, the bailiff’s comment did not favor one party over the other or 

clearly interfere with the jury’s deliberations or decision-making process. 

See infra ¶ 20. The court characterized the communication as a response to 

a “throwaway question” that was not directed “to the substance of this case 

at all” and noted that the rapid verdict was “[not] stunning at all.” We defer 

to the findings of the trial court that considered the juror’s affidavit after

having observed the entire trial.

¶20 American cites several cases in which we determined that a 

trial court abused its discretion in not finding prejudice and ordering a new 

trial. All these cases, however, involved ex parte communications more 

serious and substantive—that is, more objectively prejudicial—than that at 

issue here. See, e.g., Perez, 187 Ariz. at 357, 929 P.2d at 1305 (finding 

prejudice in a medical malpractice action where the bailiff, without 

informing the judge or the parties of the jurors’ questions, (1) erroneously 

told the jurors they would not be permitted to receive copies of the trial 

transcript or re-hear portions of the testimony, (2) erroneously informed the 

jurors of the procedure in the event of a deadlock, and (3) discouraged 

jurors from asking the judge a question about the effect of a defense verdict 

on a specific doctor’s liability); Miller, 178 Ariz. at 557, 875 P.2d at 790
AMERICAN POWER PRODUCTS v. CSK AUTO 

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(finding prejudice in a criminal trial where an alternate juror, after being 

dismissed at the close of evidence, placed a note on a remaining juror’s car 

stating either “My vote is guilty” or “He’s guilty”); Perkins, 172 Ariz. at 116–

17, 834 P.2d at 1261–62 (finding prejudice in a medical malpractice action 

where the trial judge erroneously instructed that jurors who had voted 

against liability should not participate in the calculation of damages). In 

each of these cases, the communication at issue was likely to prejudice 

jurors.

III. CONCLUSION

¶21 We reverse the court of appeals’ opinion and affirm the trial 

court’s denial of American’s motion for new trial. We remand the case to 

the court of appeals for consideration of issues raised but not decided on 

appeal, including the parties’ claims for attorneys’ fees, court costs, and 

other expenses.