NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ELENA NOGUERO, Plaintiff/Appellant,

v.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, 

Defendant/Appellee.

No. 1 CA-CV 15-0364

Appeal from the Superior Court in Maricopa County

No. CV2011-080366

The Honorable David M. Talamante, Judge

AFFIRMED

COUNSEL

Mayes Telles PLLC, Phoenix

By J. Blake Mayes

Counsel for Plaintiff/Appellant Pro Bono

Tyson & Mendes LLP, Phoenix

By Lynn M. Allen, J.P. Harrington Bisceglia

Counsel for Defendant/Appellee
NOGUERO v. AMERICAN FAMILY

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.

H O W E, Judge:

¶1 Elena Noguero appeals several of the trial court’s evidentiary 

rulings during her jury trial against American Family Mutual Insurance 

Company (“American Family”). Noguero also appeals the trial court’s 

denial of her motion for judgment notwithstanding the verdict. For the 

following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 After a 2008 monsoon, Noguero made a claim with American 

Family, her homeowner’s insurance carrier, for water damage caused by 

water coming through the windows. An American Family adjuster 

inspected the home and found some water damage to areas of drywall but

concluded that neither the windows nor the roof had storm-related 

damage. Thus, the adjuster determined that because the damages to 

Noguero’s home were not related to the storm, her insurance policy did not 

cover them. However, Noguero continued to report and file claims for

water damage in her home over the next couple of years, but after each 

subsequent re-inspection American Family concluded that the damage was 

not storm-related and denied Noguero’s claims. In 2010, Noguero filed a 

separate claim for damages relating to a hail storm.

¶3 In 2011, Noguero sued American Family for breach of 

contract and breach of the covenant of good faith and fair dealing, alleging 

that American Family did not fully pay or properly adjust her claims 

relating to the 2008 and 2010 storms and caused delay in the repair of her 

home. Noguero also alleged that as a result of the consistent water damage, 

her home began to grow mold. Noguero sought actual and punitive 

damages, declarative relief, and attorneys’ fees. 

¶4 After two years’ of discovery and pre-trial motions, the trial 

court granted the parties’ joint scheduling order in August 2013. The order 

stipulated that the deadline for all non-expert disclosures would be 

September 10, 2013, and the deadline for all discovery would be November 
NOGUERO v. AMERICAN FAMILY

Decision of the Court

3

22, 2013. On November 21, 2013, Noguero disclosed her neighbor as a 

non-expert witness who would testify regarding her observations of 

Noguero’s home before and after the storms and the measures she helped 

Noguero take to attempt to save Noguero’s home-based pet accessory

business. American Family did not immediately object to the disclosure, but 

the following month moved for summary judgment regarding the breach 

claims and damages. The trial court ordered that neither party make further 

discovery motions until it could rule on American Family’s motion for 

summary judgment. In April 2014, the trial court granted that motion in 

part relating to damages.

¶5 Noguero then moved for relief from the trial court’s partial 

grant of summary judgment, arguing that the trial court made errors of law 

and fact in making its ruling. At a subsequent pre-trial conference one week 

before the October 2014 trial, the trial court stated that it was “inclined to 

grant the Plaintiff’s Motion,” but could not rule on it until American Family 

had an opportunity to respond. American Family accordingly responded to 

the motion. American Family also moved to strike Noguero’s November 21

disclosure as untimely and to preclude Noguero’s neighbor from testifying. 

The trial court granted American Family’s motion and precluded the 

neighbor from testifying.

¶6 During trial, Noguero testified that she ran a small pet 

accessory business out of her home, but despite her efforts, she lost roughly 

$1 million in inventory because of the water-damaged and moldy condition 

of her home. She also stated that because of the mold, she eventually felt 

forced to move out of her home for health reasons. Noguero testified that 

she rented an apartment and then a house, and moved to admit copies of 

her residential leases into evidence as additional expenses she incurred. 

American Family objected on hearsay grounds, which the trial court 

sustained. 

¶7 At the end of Noguero’s direct testimony, a juror asked her if 

her neighbors’ homes experienced similar leaking through the roofs or 

windows after the 2008 and 2010 storms, and if so, whether the neighbors’ 

homes were the same model as hers. American Family objected, arguing 

that although Noguero could testify about what her observations of her 

neighbors’ homes after the storms were, the specific damages, repairs, and 

other related information constituted inadmissible hearsay that Noguero 

lacked the requisite foundation to provide. The trial court sustained the

objection, however, finding the question irrelevant.
NOGUERO v. AMERICAN FAMILY

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4

¶8 In presenting its defense, American Family called an 

industrial hygienist to testify. The hygienist stated that he had gone to 

Noguero’s home in connection with the lawsuit to observe a “destructive 

test.” He related that while there, he noted stains around one window’s 

corners in the family room. When asked if he drew a conclusion regarding 

the causation of the water damage around a family room window Noguero 

objected for lack of foundation, arguing that the hygienist could not answer 

the question because he was not an engineer. Noguero also objected to the 

hygienist’s testimony regarding causation of water damage, arguing that 

American Family had disclosed another expert to provide that testimony. 

The trial court sustained the objection only for lack of foundation, ruling 

that the witness could testify regarding what leaks he observed but not 

opine on the cause of the leaks. The hygienist testified that the staining on 

Noguero’s wall was consistent with leaks coming from the windows’ 

corners. Noguero did not object to this testimony. The hygienist then 

continued to discuss potential defects in the windows, but the trial court 

interrupted him and reminded the jury that it had limited the hygienist’s 

testimony to his observations and not his opinions on causation.

¶9 Later, after excusing the jury for the day, the trial court 

explained its ruling to the parties. The trial court stated that although it 

believed that American Family had sufficiently disclosed the hygienist, he 

was not a causation expert and thus lacked foundation to make any 

conclusions to that effect. The trial court further stated that it reduced the 

hygienist’s testimony essentially to that of a lay witness to not violate the 

independent expert rule, as American Family had retained an expert 

witness to testify on causation matters. Noguero maintained that the 

hygienist’s testimony that he observed that the staining on her walls was 

consistent with leaks from the windows’ corners was a “roundabout” way 

of testifying regarding the causation of the leaks. 

¶10 American Family also called one of its property claim 

managers to testify. The manager testified that, as part of his job, he reviews 

the claims adjuster’s files to ensure that the claims are properly handled and 

approves denial letters sent to insureds. The manager testified that he 

became involved with Noguero’s case in April 2010. He stated that he sent 

contractors to inspect and re-inspect Noguero’s home after she continued 

to complain of water damage, but that each inspection concluded that the 

damage was not storm-related. Absent storm damage, the manager denied 

Noguero’s homeowner’s insurance claim.

¶11 American Family asked what his evaluation of the condition 

of Noguero’s home was after seeing the photographs from the multiple 
NOGUERO v. AMERICAN FAMILY

Decision of the Court

5

inspections; the manager responded that he believed the condition of the 

home was inconsistent with storm damage. After laying foundation about

the manager’s experience with handling storm damage claims, American 

Family asked if, upon looking at those photographs, he believed that the 

condition of Noguero’s home was “indicative of monsoon microburst-type 

events.” Noguero objected, arguing that because the manager was not an 

expert witness, he could not opine about the effects of certain weather 

conditions. The trial court sustained the objection, stating that the manager

could testify about his claim decision and upon what information he relied 

to make that decision, but not whether storm damage actually existed. 

Subsequently, American Family asked the manager what his own 

conclusion was relating to Noguero’s claim after receiving the re-inspection 

report and photographs. The manager responded that he decided, based on 

the information, that no storm damage to the roof existed and that he 

communicated his decision denying the claim to Noguero. 

¶12 American Family also asked whether he believed that the 

claims adjuster reasonably investigated the cause of loss. Noguero objected 

for lack of foundation and the trial court sustained the objection. American 

Family then asked the manager if he believed that the claim had been 

handled reasonably. Noguero again objected, but the trial court permitted 

the manager to answer. The manager stated that he believed the 

investigation, coverage decisions, and evaluation of the claim were 

appropriate and fair.

¶13 Additionally, American Family retained and presented 

testimony from a construction expert. The expert opined that, upon 

reviewing photographs of the home and various depositions from 

contractors who inspected the home, the roof could not be a source of water 

intrusion. He testified that his assistant took the photographs he relied on 

and that he never actually went to inspect the house. He stated, however, 

that relying upon notes from others’ inspections is a common practice in his 

industry. He had given his assistant certain instructions to assess the 

interior and exterior of the house, look at its conditions, and document his 

findings with photographs. The expert also collaborated with his assistant 

in preparing the report. American Family moved to admit the expert’s 

report and the attached photographs. Noguero objected to the admission of 

the photographs for lack of foundation. Without ruling on the objection, the 

trial court allowed Noguero to voir dire the expert. Noguero, however, did 

not ask any foundation questions about the photographs during that time.

Noguero then renewed her objection to the admission of the photographs, 

but the trial court overruled it explaining that it was admitting the 
NOGUERO v. AMERICAN FAMILY

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6

photographs only because the construction expert relied on them in 

rendering his opinion.

¶14 The jury ultimately found in American Family’s favor on all 

counts. The week following the trial court’s entry of judgment, Noguero 

filed a “Motion for Judgment Notwithstanding the Verdict,”

1 arguing that 

the verdict was contrary to the weight of the evidence presented at trial.

Although the motion mentioned Arizona Rule of Civil Procedure 59

regarding new trials, it cited as the appropriate standard of review one for 

motions for judgment as a matter of law. Noguero requested that the trial 

court “set aside the verdict,” “direct a verdict for Plaintiff’s breach of 

contract and breach of the covenant of good faith and fair dealing,” and 

“grant a new trial for damages only.” American Family opposed the 

motion, citing Arizona Rule of Civil Procedure 50 regarding motions for 

judgment as a matter of law and arguing that because Noguero failed to 

move for a judgment as a matter of law before the trial court submitted the 

case to the jury, she could not make such a motion after the verdict. 

Noguero did not reply. The trial court denied the motion. Noguero timely 

appealed.

DISCUSSION

1. Evidentiary Ruling Before Trial

¶15 Noguero argues that the trial court made several erroneous 

evidentiary rulings throughout the litigation. The trial court has 

considerable discretion in ruling on the admission of evidence, Brown v. 

U.S. Fidelity and Guar. Co., 194 Ariz. 85, 90 ¶ 25, 977 P.2d 807, 812 (App. 

1998), and absent an abuse of that discretion and resulting prejudice, we 

will not disturb the trial court’s ruling, Jaynes v. McConnell, 238 Ariz. 211, 

216 ¶ 15, 358 P.3d 632, 637 (App. 2015). An abuse of discretion is “an 

exercise of discretion which is manifestly unreasonable, exercised on 

untenable grounds or for untenable reasons.” State v. Woody, 173 Ariz. 561, 

563, 845 P.2d 487, 489 (App. 1992). The trial court did not abuse its discretion 

in any of its evidentiary rulings. 

¶16 Noguero first argues that the trial court abused its discretion

by granting American Family’s motion to preclude her neighbor from 

testifying about the condition of Noguero’s home before and after the storm 

and about the efforts Noguero took to try to save her business. Noguero 

 

1 Pursuant to the language of Arizona Rule of Civil Procedure 50, we 

refer to this motion as a “judgment as a matter of law.” 
NOGUERO v. AMERICAN FAMILY

Decision of the Court

7

argues that although she disclosed her neighbor two months after the 

November 21, 2013, non-expert disclosure deadline, the trial court might

have permitted the neighbor to testify if American Family had not “lied in 

wait” to object until roughly one week before the October 2014 trial. The 

trial court did not abuse its discretion. 

¶17 As relevant here, Arizona Rule of Civil Procedure 26.1(a) 

requires that a party seeking to use information at trial seek leave of court 

to extend the time for disclosure as provided in Rule 37(c)(2) if that party 

disclosed the information after the deadline set in a scheduling order or, in 

the absence of such a deadline, 60 days before trial. Rule 37(c)(2) precludes 

the use of untimely disclosed information unless the trial court finds that 

the party’s failure to timely disclose the information was harmless or for 

good cause, and that the disclosing party disclosed the information as soon 

as practicable after its discovery. In determining whether good cause exists 

for untimely disclosures, the trial court may consider a number of factors 

including (1) the willfulness or inadvertence of the party’s conduct, 

(2) prejudice to either side that may result from excluding or allowing the 

evidence, (3) opposing counsel’s action or inaction in attempting to resolve 

the dispute, and (4) the overall diligence with which the case has been 

litigated. Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258 

(1995). 

¶18 Here, the trial court did not abuse its wide discretion over 

discovery matters in precluding Noguero’s neighbor from testifying 

because Noguero did not timely disclose her. The trial court issued a 

scheduling order that set a September 10, 2013, non-expert disclosure

deadline. Noguero did not disclose her neighbor as a witness until two 

months later. Despite the untimely disclosure, Noguero did not seek leave 

of court to extend the time for disclosure as required to use her neighbor’s 

testimony during trial. Further, Noguero failed to establish that good cause 

existed for the untimely disclosure. See Zimmerman v. Shakman, 204 Ariz. 

231, 236 ¶ 16, 62 P.3d 976, 981 (App. 2003) (stating that the trial court 

possesses considerable latitude in determining whether a party has shown 

good cause for a late disclosure and concluding that when no good cause 

exists, “barring the introduction of evidence not previously disclosed may 

be a reasonable sanction”). Finally, the trial court’s exclusion of the 

neighbor’s testimony did not prejudice Noguero because Noguero herself 

testified on the matters relating to the condition of her home and the efforts 

she took in trying to keep her business. Thus, the trial court did not abuse 

its discretion in precluding Noguero’s neighbor from testifying.
NOGUERO v. AMERICAN FAMILY

Decision of the Court

8

2. Evidentiary Rulings During Trial

¶19 Noguero also argues that the trial court made numerous 

erroneous evidentiary rulings during trial. First, Noguero argues that the 

trial court abused its discretion by admitting photographs of her home 

during the construction expert’s testimony because the expert neither took 

the photos nor visited Noguero’s home. To be admissible, photographs 

must be a reasonable and faithful representation of the object depicted and 

must assist the jury in understanding the testimony. Lohmeier v. Hammer, 

214 Ariz. 57, 61 ¶ 8, 148 P.3d 101, 105 (App. 2006). But the person who took 

the photographs need not be the one to verify the photographs at trial, nor 

does the verifying witness need to have been present when the photographs 

were taken as long as the witness can attest that the photographs accurately 

portray the scene depicted. Id. Additionally, Arizona Rule of Evidence 703

permits expert witnesses to base their opinions on facts or data the expert 

was made aware of, and further allows the disclosure of those facts or data 

to the jury if the probative value in helping the jury evaluate the expert’s 

opinion substantially outweighs its prejudicial effect. This rule permits the 

admissibility of otherwise non-admissible evidence for the “limited 

purpose of disclosing the basis for the opinion.” Ariz. R. Evid. 703 cmt.

¶20 The trial court did not abuse its discretion by admitting the 

photographs here because the construction expert provided sufficient 

foundation and he relied on them in forming his opinion. Although the 

expert did not take the photographs and was not present when the 

photographs were taken, the expert nonetheless provided enough 

information from which the jury could reasonably conclude that the 

photographs were authentic. He testified that he sent his assistant to 

Noguero’s house to conduct the inspection with instructions to assess the 

interior and exterior of the house and document his findings with 

photographs. The construction expert also testified that he worked with the 

same assistant in reviewing the photographs and preparing the subsequent 

report based on those photographs. From this testimony, and the lack of 

any challenge to their authenticity, a jury could reasonably conclude that 

the photographs were authentic. See Ariz. R. Evid. 901(a) (providing that 

the required authenticating of evidence is satisfied if the proponent 

produces sufficient evidence to support a finding that the item is what the 

proponent claims it is); see also State v. King, 226 Ariz. 253, 257 ¶ 9, 245 P.3d 

938, 942 (App. 2011). Thus, sufficient foundation supported the admission 

of the photographs. 

¶21 The photographs are also admissible under Rule 703 because 

the construction expert testified that he relied on the photographs in 
NOGUERO v. AMERICAN FAMILY

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reaching his opinion. In fact, the photographs, although admitted as their 

own exhibit, were originally part of the construction expert’s written report. 

The trial court informed the jury that it admitted the photographs solely 

because the construction expert relied on them in rendering his opinion. 

This clarification sufficiently instructed the jury of the limited purpose of 

the photographs’ disclosure pursuant to Rule 703. See State v. Baltzell, 175 

Ariz. 437, 441, 857 P.2d 1291, 1295 (App. 1992) (affirming the trial court’s 

admission of photographs “as demonstrating and explaining the basis of 

the investigator’s opinion”). Accordingly, the trial court did not abuse its 

discretion. 

¶22 Second, Noguero argues that the trial court erred by allowing 

the hygienist and the manager to testify about ultimate causation issues 

even though they were not expert witnesses, and that their testimony was 

therefore duplicative in violation of Arizona Rule of Civil Procedure 

26(4)(D). Lay witnesses may give an opinion, even to the ultimate issue, 

when the opinion is rationally based on the witness’ perception and is 

helpful to clearly understanding the witness’ testimony or to determine a 

fact in issue. Ariz. R. Evid. 701. Here, the hygienist testified that, rationally 

based on his perception, he believed that the staining on Noguero’s wall 

was consistent with leaks from the corners of her windows. He did not 

testify that the water damage to Noguero’s house was caused only by 

window leaks. He also did not testify about how much water could have 

come in through those leaks or to what extent, if any, the water that stained 

the walls damaged the house. See Rimondi v. Briggs, 124 Ariz. 561, 564, 606 

P.2d 412, 415 (1980) (concluding that the witness did not provide expert 

testimony because he related his observations but did not testify on what 

actually caused the accident). To the extent that the hygienist attempted to 

or began to give an opinion, the trial court interrupted the testimony and 

precluded the hygienist from making them. Thus, the hygienist’s testimony 

did not constitute expert testimony for which special foundation was 

required. 

¶23 Similarly, the trial court did not err in allowing the manager’s 

testimony. As a claims manager he is responsible for making claims 

decisions accepting or denying an insured’s claim. To the extent that the 

manager offered an opinion about whether the photographs he relied on 

represented damage consistent with what “microburst-type events” may 

cause, the trial court sustained Noguero’s objection and held that the 

opinion stretched beyond the scope of his testimony. The manager testified 

that in making the decision to deny Noguero’s claim after the 2010 storm, 

he relied on an inspection report and photographs. He stated that, based on 

that information, he reached his own conclusion that Noguero’s home did 
NOGUERO v. AMERICAN FAMILY

Decision of the Court

10

not suffer storm damage and accordingly was not covered by the 

homeowner’s insurance policy. Noguero did not object to this subsequent 

question or response at trial. See Ariz. R. Evid. 103(a)(1) (providing that an 

objecting party must timely make the objection and state the specific 

grounds for it to preserve the claim for appeal). Because neither the 

hygienist’s nor the manager’s testimonies were expert testimonies on the 

ultimate causation issue, they did not violate Rule 26(4)(D) against 

duplicative expert testimony. Thus, the trial court did not abuse its 

discretion.

¶24 Noguero next argues that the trial court erroneously 

overruled her objection for lack of foundation, permitting the manager to 

testify that he believed American Family reasonably handled her claim. But 

the trial court did not abuse its discretion in permitting the testimony. The 

manager’s position as a claims manager requires him to oversee the claims 

adjusters working under him and to review their files to make sure the 

claims are properly addressed. He also takes that into consideration when 

approving denial letters sent to insureds. Thus, the trial court did not abuse 

its discretion by allowing the manager to testify whether, based on his 

review of Noguero’s claim, the claim was reasonably or properly handled. 

¶25 Additionally, Noguero argues that the trial court abused its 

discretion by finding the juror question regarding reports of storm damage 

to her neighbors’ homes irrelevant and not allowing her to answer. 

Evidence is relevant if (1) it has a tendency to make a fact more or less 

probable than it would be without the evidence and (2) the fact is of 

consequence in determining the action. Ariz. R. Evid. 401. The trial court 

properly ruled that reports of storm damage to other homes was irrelevant 

to whether her home suffered damage and what that damage was. Here, 

the issues at trial related to damages that Noguero’s home suffered and if 

American Family, as the homeowner’s insurance provider, breached its 

contract by failing to cover those damages pursuant to Noguero’s insurance 

policy. That Noguero’s neighbors reported roof or window leaks into their 

own homes after either storm would not have a tendency to make more or 

less probable that Noguero’s house suffered damage or that American 

Family failed to properly adjust Noguero’s homeowner’s insurance claim. 

Such information would only help show that a storm passed through the 

neighborhood—an issue neither party disputes. Similarly, if Noguero’s 

neighbors reported roof or window leaks is not of consequence in 

determining those matters, and Noguero did not make an offer of proof 

claiming otherwise. Even if the testimony would have been relevant, it 

nevertheless would have been inadmissible because Noguero lacked 

foundation to testify about the extent and cause of damage to her neighbor’s 
NOGUERO v. AMERICAN FAMILY

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homes. See John Munic Ents., Inc. v. Laos, 235 Ariz. 12, 17 ¶ 13, 326 P.3d 279, 

284 (App. 2014). Thus, the trial court did not abuse its discretion.

¶26 Last, Noguero argues that the trial court erred by sustaining 

American Family’s hearsay objection to the admission of Noguero’s 

residential lease agreements entered into after she moved out of her home.

Hearsay is inadmissible at trial unless it meets an enumerated exception. 

Ariz. R. Evid. 803–804. Evidence constitutes inadmissible hearsay if it is an

assertion that the declarant does not make while testifying at the current 

trial and is offered to prove the truth of the matter asserted. Ariz. R. Evid. 

801(a), (c). Here, Noguero attempted to admit the residential lease 

agreements to prove the amount she paid in rent at the apartment complex 

and house she rented after moving out of her home. She specifically stated 

that she wanted to introduce the leases to show her incurred additional 

living expenses that she believed American Family should have, but did 

not, cover. Noguero did not, however, lay any more foundation for the 

leases’ admissibility and did not argue that they otherwise fell under one of 

the hearsay exceptions. Thus, the trial court did not abuse its discretion by 

sustaining American Family’s objection and refusing to admit them.

3. Motion for Judgment as a Matter of Law

¶27 Noguero argues finally that the trial court erred by not 

treating her motion for judgment as a matter of law as a motion for a new 

trial and by denying it. Unlike the evidentiary matters above, we review the 

trial court’s denial of a motion for judgment as a matter of law de novo. 

Goodman v. Physical Resource Eng’g., Inc., 229 Ariz. 25, 27 ¶ 6, 270 P.3d 852, 

854 (App. 2011). We will uphold a trial court’s ruling unless the facts 

produced to support the claim or defense have so little probative value, 

given the quantum of evidence required, that reasonable people could not 

agree with the conclusion advanced by the proponent. Id. at 28 ¶ 6, 270 P.3d 

at 855. But because Noguero failed to make a pre-judgment motion for 

judgment as a matter of law and failed to otherwise preserve her arguments 

on the sufficiency of the evidence in an alternative motion for a new trial, 

the trial court did not err in denying Noguero’s motion. 

¶28 After a party in a jury trial has been fully heard on an issue 

and “there is no legally sufficient evidentiary basis for a reasonable jury to 

find for that party on that issue,” Arizona Rule of Civil Procedure 50(a) 

permits the opposing party to move for, and the trial court to grant, a 

motion for judgment as a matter of law. The moving party may make such 

a motion at any time before submission of the case to the jury and must 

specify the judgment sought and the law and facts on which the moving 
NOGUERO v. AMERICAN FAMILY

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party is entitled to judgment. Ariz. R. Civ. P. 50(a)(2). If the trial court denies 

the moving party’s motion for judgment and submits the action to the jury, 

Rule 50(b) allows the moving party to renew its motion within 15 days of 

the judgment. The moving party may join a motion for new trial pursuant 

to Arizona Rule of Civil Procedure 59 with the renewal of the motion for 

judgment, or a new trial may be requested in the alternative. Ariz. R. Civ. 

P. 50(b). 

¶29 Here, Noguero did not move for a judgment as a matter of 

law before the case was submitted to the jury. Because she did not do so, 

she has waived any argument that she was entitled to judgment as a matter 

of law on the issues of breach of contract and covenant of good faith and 

fair dealing. See Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 27, 

945 P.2d 317, 338 (App. 1996) (“Our case law treats a motion for directed 

verdict at the close of all the evidence as a pre-requisite to a later motion for 

[judgment as a matter of law].”); see also Dawson v. Withycombe, 216 Ariz. 84, 

99 ¶ 38 n.10, 163 P.3d 1034, 1049 n.10 (App. 2007) (stating that the appellants 

could not raise a sufficiency of the evidence argument for the first time in a 

post-judgment motion for judgment as a matter of law because they did not 

file a pre-judgment motion for judgment). Failing to move for a judgment 

as a matter of law before submitting the case to the jury, Noguero was 

limited to making her arguments on the sufficiency of the evidence in a 

motion for new trial, which she did not do. See Dawson, 216 Ariz. at 99 ¶ 38 

n.10, 163 P.3d at 1049 n.10 (“Thus . . . the appellants were limited to making 

a motion for new trial under Rule 59(a).”). 

¶30 Noguero counters that although she titled her motion as one 

for “Judgment Notwithstanding the Verdict,” the motion substantively 

showed that it was one for a new trial under Rule 59(a) and the trial court 

should have therefore treated it as such. Although Noguero did cite to Rule 

59(a) in her motion and not Rule 50, the remainder of her motion 

substantively shows that she intended it as a motion for judgment as a 

matter of law. In the opening of her motion, Noguero states that she seeks 

a judgment notwithstanding the verdict and cites to standards of law for a 

motion for judgment notwithstanding the verdict. Additionally, Noguero’s 

prayer for relief specifically requested that the trial court “set aside the jury 

verdict” and that the court “grant this motion and direct a verdict for the 

Plaintiff’s breach of contract and breach of the covenant of good faith and 

fair dealing.” Noguero also specifically asked that the trial court “grant a 

new trial for damages only.” Additionally, although American Family 

argued in its response to Noguero’s motion that the motion was 

procedurally deficient, Noguero did not reply or otherwise raise the 
NOGUERO v. AMERICAN FAMILY

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argument that she intended her motion to be one for a new trial. Thus, the 

trial court did not err.

4. Attorneys’ Fees

¶31 Noguero requests attorneys’ fees and costs pursuant to A.R.S. 

§§ 12–341 and 341.01. American Family requests attorneys’ fees pursuant to 

A.R.S. § 12–341.01. We deny both requests for fees, but award American 

Family its costs pursuant to A.R.S. § 12–342. 

CONCLUSION

¶32 For the foregoing reasons, we affirm.