McAlister v. Gieszel

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ROY MCALISTER and KATHLEEN MCALISTER, husband and wife, AMERICAN HYDROGEN ASSOCIATION, an Arizona corporation; TRANS ENERGY CORPORATION, an Arizona corporation; EMERGENT CORPORATION, an Arizona corporation; LARSEN RADAX CORPORATION, an Arizona corporation, ) ) ) ) ) ) ) ) ) ) ) Plaintiffs-Appellants, ) ) v. ) ) FRED GIESZL and CAROLYN F. ) GIESZL, husband and wife, ) ) Defendants-Appellees. ) ) DIVISION ONE FILED: 01/19/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 08-0306 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. CV 2006-090307 The Honorable Joseph C. Kreamer, Judge The Honorable Helene Abrams, Judge AFFIRMED Libby Hougland Banks Attorney for Plaintiffs-Appellants Phoenix Stein and Stein PC By Henry M. Stein Attorneys for Defendants-Appellees Mesa T H O M P S O N, Judge ¶1 Plaintiffs-Appellants American Hydrogen Roy Association, and Kathleen Trans Energy McAlister, Corporation, Emergent Corporation, and Laresen Radax appeal the trial court s judgment in favor of Defendants-Appellees Fred and Carolyn F. Gieszl. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In 2001, Fred Gieszl agreed with Roy McAlister to store a truck and three trailers on Gieszl s land in Gilbert, Arizona. The equipment remained on Gieszl s land for the next four years. In spring 2005, Gieszl learned that Arizona State University (ASU), which he had believed owned the equipment, did not own the truck or the trailers. Gieszl then relocated it to his storage yard a few miles away. He opened the trailers and discarded those papers inside that had been destroyed by Gieszl and exposure to the elements. ¶3 In October 2005, McAlister contacted requested he return the truck and trailers. Gieszl explained what had occurred and offered to return the truck, trailers, and the remaining trailer contents to McAlister. sent a letter to Gieszl on behalf of McAlister then American Hydrogen Association (AHA) demanding the return or restoration of various items allegedly contained in the trailers. 2 Gieszl responded that he would surrender the truck, trailers, and the remaining contents if AHA confirmed it was the rightful owner of the property. ¶4 On February 7, 2006, Plaintiffs filed a complaint in which they alleged the Gieszls had converted their property, including intellectual property contained in the trailers valued in excess of $84 million, and demanded return of the property. Plaintiffs sought an injunction to prohibit the Gieszls from using or disclosing the trade secrets and intellectual property purportedly contained in the documents in the trailers. In addition, Plaintiffs alleged that the Gieszls had broken into, or encouraged others to break into, the residence of the former president stolen of plaintiff intellectual McAlister and Larsen Larsen and Radax, other Radax. Melvin property They asked J. Larsen, belonging for a to and Roy declaratory judgment that the Gieszls had wrongfully taken Larsen Radax s property from Melvin Larsen s home and for an order directing the Gieszls to return the property. The Gieszls denied the allegations. ¶5 On April 12, 2006, the court entered an order allowing Plaintiffs to retrieve the truck, trailers, and the remaining trailer contents from the Gieszls land. The court ordered Plaintiffs secure to deposit the property 3 at a third-party storage facility until they demonstrated ownership of it to the Gieszls or the court. ¶6 During the litigation, Plaintiffs refused to respond to the Gieszls discovery alleged contents of the requests trailers that and they explain identify their the damage calculations, claiming the information sought was a trade secret or otherwise confidential, and requested the court enter a protective order that would allow only the Gieszls counsel to view Plaintiffs responses. compel Plaintiffs The Gieszls asked the court to responses. The court denied Plaintiffs motion for a protective order and granted the Gieszls motion to compel. Thereafter, the Gieszls moved for sanctions pursuant to Arizona Rule of Civil Procedure 37(b)(2)(C) on the grounds that Plaintiffs had not complied with the court s order directing them to respond to the Gieszls discovery requests. Over Plaintiffs objection, the court granted the motion and directed Plaintiffs to provide the Gieszls certain specific information no later than December 19, 2006. Plaintiffs failed to fully produce the discovery responses and the Gieszls filed a second motion for sanctions asking the court to dismiss Plaintiffs lawsuit or preclude them from offering evidence damages relating to the unanswered discovery. or seeking The court granted the second motion for sanctions and ruled that Plaintiffs could not seek damages for, or offer 4 evidence relating to, those discovery requests for which Plaintiffs had not provided full and complete answers.1 ¶7 In the meantime, the Gieszls moved for partial summary judgment on Plaintiffs claim for declaratory judgment regarding the alleged burglary of Melvin Larsen s home. They offered Fred Gieszl s affidavit that he was not involved in any burglary of the Larsen home and did not benefit from any such burglary. They also argued that Plaintiffs claim was not amenable to declaratory relief because it did not seek a declaration as to the rights, status, or legal relationship between the parties, as required Revised by Statutes Supp. 2008). alternative, court ruled. Arizona s (A.R.S.) Declaratory sections Judgment 12-1831 to Act, -1846 Arizona (2003 & Plaintiffs opposed the motion and sought, in the additional time to conduct discovery before the The court granted the motion, finding no genuine issue of disputed fact that Fred Gieszl was not linked to the burglary of Melvin Larsen s home. ¶8 The Gieszls also moved for summary judgment on Plaintiffs claim for conversion and return of property, and on their claim for damages. Plaintiffs moved, pursuant to Arizona Rule of Civil Procedure 56(f), for additional time to obtain the evidence necessary to justify a good faith opposition to the 1 The specific requests at issue interrogatories numbered one through five. 5 were the Gieszls Gieszls motion. The court allowed Plaintiffs sixty days to complete the discovery necessary to respond to the motions and ordered Plaintiffs to file their responses by December 8, 2006.2 ¶9 On November motion to withdraw. noted that the 14, 2006, Plaintiffs counsel filed a The Gieszls did not oppose the motion, but corporate plaintiffs were required to be represented by counsel. On December 18, 2006, the court allowed Plaintiffs withdraw January 31, counsel 2007 to to retain new and granted counsel.3 Plaintiffs until Thereafter, once Plaintiffs had retained new counsel, the court granted them two additional thirty-day extensions to respond to the motions for summary judgment. The Gieszls argued Plaintiffs should not be allowed to respond to the motions for summary judgment unless they first demonstrated good cause for their failure to respond by the court-ordered deadline of December 8, 2006 and moved to strike Plaintiffs responses as untimely. The court granted the motion to strike and granted the Gieszls motions for partial summary judgment. 2 The court denied Plaintiffs alternative request that it continue the summary judgment proceedings until the parties completed discovery. 3 On the December 8, 2006 deadline to respond to the Gieszls motions for summary judgment, the McAlisters attempted to file a response on behalf of all Plaintiffs. The trial court granted the Gieszls motion to strike that response. 6 ¶10 Thereafter, Plaintiffs new counsel moved to withdraw. The court granted the motion, but set a deadline for Plaintiffs to retain counsel. new counsel. Plaintiffs did not timely retain The Gieszls then moved for entry of judgment on the claims for which the court had granted summary judgment and moved to dismiss the remaining claims, which belonged to the unrepresented motion and corporate entered Plaintiffs. judgment $50,000 in attorneys fees. ¶11 for The the court Gieszls, granted awarding the them Plaintiffs timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). ISSUES ¶12 Plaintiffs raise several issues on appeal: 1. Whether the trial court abused its discretion when it sanctioned Plaintiffs for their discovery violations. 2. Whether the trial court erred in striking Plaintiffs responses to the summary judgment motions and granting the motions. 3. Whether the attorneys trial fees to court the A.R.S. § 12-341.01 (2003). DISCUSSION A. Sanctions 7 erred Gieszls in awarding pursuant to ¶13 Pursuant to Rule 37, when a party fails to comply with an order to permit or provide discovery, the court may, among other sanctions, order that the party may not support designated claims or introduce designated matters into evidence. Civ. P. 37(b)(2)(B). Ariz. R. We will affirm such a decision unless the record reflects a clear abuse of discretion. See Rivers v. Solley, 217 Ariz. 528, 530, ¶ 11, 177 P.3d 270, 272 (App. 2008). ¶14 In this case, as relevant, the Gieszls discovery requests asked Plaintiffs to: 1. Provide an item-by-item listing of the property Plaintiffs claim was converted; 2. Provide an item-by-item listing of the property Plaintiffs claim ought to be returned to Plaintiffs; 3. Indicate, as to each item of property either converted or to be returned, whether the Plaintiff was the owner of such property or, if not, the identity of the owner; 4. Provide detailed circumstances information under which the as to Plaintiff acquired an interest in each item of property; 5. Provide detailed information as to the Plaintiffs assertion of value as to each item 8 of property, along with the basis of such assertion; 6. Explain in allegation detail that the the basis for property Plaintiffs at issue was valued in excess of $84 million. The Gieszls also sought copies of all documents Plaintiffs relied on in providing answers to these interrogatories. ¶15 Plaintiffs initially refused to provide any answers to these discovery requests, claiming that all of the requested information was confidential and proprietary. court denied granted the Plaintiffs Gieszls motion motion to for a compel After the trial protective Plaintiffs order and responses, Plaintiffs produced partial responses to these requests. The court then sanctioned Plaintiffs and ruled they could not seek damages for, requests for answers by or offer which December evidence they 19, had relating not 2006. to, provided Plaintiffs those full discovery and argue complete the trial court s preclusion of their claims and evidence as a sanction under Arizona Rule of Civil Procedure 37(c) was an abuse of discretion and tantamount to a dismissal of their claims.4 4 Plaintiffs also assert the court abused its discretion by refusing to grant their request for a protective order to govern their discovery responses. We find no abuse of discretion in the court s ruling as Plaintiffs did not provide sufficient evidence to support their contentions that the information sought constituted a trade secret or was otherwise confidential 9 ¶16 Arizona plaintiff to Rule disclose of in Civil Procedure writing the 26.1 factual requires basis for a its claim, a computation of the damages it seeks, and evidence and documents relevant to its claim. (7)-(9).5 Ariz. R. Civ. P. 26.1(a)(1), The purpose of Rule 26.1 disclosure is to give each party adequate notice of what arguments will be made and what evidence will be presented at trial. Clark Equip. Co. v. Ariz. Prop. & Cas. Ins. Guar. Fund, 189 Ariz. 433, 440, 943 P.2d 793, 800 (App. 1997). Rule 37(c)(1) provides that if a party fails to timely disclose information, it shall not be used unless the failure to disclose was harmless or unless the court finds that there is good cause for granting relief from the exclusion. See also Allstate Ins. Co. v. O Toole, 182 Ariz. 284, 896 P.2d 254 (1995)(stating information or witnesses disclosed in an untimely manner shall be excluded from evidence unless there is good cause for granting relief from the exclusion). As Arizona courts endeavor to maximize the likelihood of a decision on the merits, sanctions for discovery abuses may not be used as a such that public disclosure would damage them. See Ariz. R. Civ. P. 26(c)(2). Further, even if the court did err in ruling on that request, Plaintiffs were required to either challenge the ruling via a special action or to produce the discovery responses and could not unilaterally decide to withhold any information they believed should be subject to a protective order. 5 In addition, the Rules allow a party to obtain discovery upon written interrogatories or requests for documents. Ariz. R. Civ. P. 26(a); Ariz. R. Civ. P. 33.1(a). 10 weapon to dismiss cases on a technicality; sanctions must be appropriate and preceded by due process. Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 13, 62 P.3d 976, 980 (App. 2003) (applying Rule 37(c) to determine whether sanctions are appropriate for late disclosure). ¶17 In this case, Plaintiffs repeatedly refused to fully respond to the Gieszls discovery requests despite the trial court s order directing them to do so. By refusing to provide even basic information regarding the property they alleged the Gieszls had converted, Plaintiffs preparing a defense to the claims. disclosure is to give adequate prevented the Gieszls from As the purpose of Rule 26.1 notice of the arguments and evidence that will be presented at trial, Clark Equip. Co., 189 Ariz. at 440, 943 P.2d at 800, it was clearly untenable to allow Plaintiffs to withhold the identity of the items they contended the Gieszls converted and were required to return. As Plaintiffs did not show good cause for their failure to disclose this information or as to why they should be relieved from the application of Rule 37, Allstate, 182 Ariz. at 287, 896 P.2d at 257, the trial court did not abuse its discretion. ¶18 the Plaintiffs argue, citing trial disclosed court s by preclusion December 19, of 2006, Zimmerman v. Shakman, that evidence effectively claims and was an abuse of discretion. 11 Plaintiffs had dismissed not their In Zimmerman, the trial court granted a motion in limine to preclude the plaintiff from introducing any evidence at trial because he had not satisfied his Rule 26.1 disclosure obligations; the court then determined the plaintiff could not prove his claims without any evidence and dismissed the complaint. P.3d at 979-80. 204 Ariz. at 234-35, ¶¶ 6-8, 62 On appeal, we held that the trial court erred by relying on the motion in limine ruling to grant the motion to dismiss because the trial date had been vacated and prejudice of the late disclosure significantly reduced. the Id. at 236, ¶¶ 16-18, 62 P.3d at 981.6 ¶19 In this case, the trial court s exclusion of non- disclosed evidence was not tantamount to dismissal and the court did not dismiss Plaintiffs claims for lack of evidence. Plaintiffs claims survived insofar as the supporting evidence was timely disclosed. For example, the corporate plaintiffs claimed in response to the Gieszls discovery requests that they owned certain conversion property claims and insofar were as permitted they involved to assert that their property. Accordingly, Zimmerman does not compel a reversal of the trial court s decision. 6 In addition, we held that the trial court erred by dismissing the case without first making an express finding that the plaintiff himself shared the blame for the non-disclosure. Zimmerman, 402 Ariz. at 236, ¶ 19, 62 P.3d at 981. 12 ¶20 We find no abuse of discretion in the trial court s imposition of discovery sanctions. B. ¶21 Motions for Partial Summary Judgment Plaintiffs their responses to argue the the trial Gieszls court motions erred for in striking partial summary judgment and in granting the motions. ¶22 The Gieszls filed their motions on August 4, 2006. The court allowed Plaintiffs an additional sixty days, through December 8, 2006, to obtain the evidence necessary to justify a good faith opposition to the Gieszls motions and file their responses. Plaintiffs did not respond by the deadline. Thereafter, Plaintiffs informed the court they had retained new counsel, and the court granted them an additional thirty days, until March 21, 2007, to respond to Defendant[s ] Motion[s] for Summary Judgment and provide, if necessary, a Motion to Extend Time to Respond to Defendants Motions for Summary Judgment . . . . At a status conference on March 20, 2007, the court noted that it had granted Plaintiffs an additional 30 days to respond to the pending motions for summary judgment, because Plaintiffs new counsel needed to obtain the file from previous counsel. The court stated that it intended to allow 30 days for Plaintiffs to respond to the pending motions. Noting that Plaintiffs counsel had not received the file until March 9, 13 2007, the court then allowed Plaintiffs until April 9, 2007 to file responses to the pending motions for summary judgment. ¶23 The Gieszls moved for clarification, arguing that Plaintiffs should not be allowed to respond to the motions for summary judgment unless they first demonstrated good cause for their failure December 8, to 2006. respond by the Plaintiffs court-ordered filed their deadline responses motions for summary judgment on March 21, 2007. to of the The Gieszls moved to strike the responses as untimely because Plaintiffs had not sought deadline.7 an extension of the court s December 8, 2006 The court granted the motion to strike and granted the Gieszls motions for partial summary judgment. ¶24 We agree with Plaintiffs that the trial court erred in striking the responses, as the court s rulings at the February and March status conferences unconditionally granted Plaintiffs additional time to file their responses.8 To then strike the responses because Plaintiffs had not demonstrated good cause for 7 Plaintiffs did file a motion to extend the December 8, 2006 deadline, which they later withdrew as unnecessary in light of the court s rulings at the status conferences in February and March 2007. 8 Although the court stated in its February 23, 2007 order that Plaintiffs should provide, if necessary, a motion to extend the time to respond to the motions for summary judgment, it did not require Plaintiffs to file a motion to extend and later stated that it intended to allow Plaintiffs thirty days to respond to the motions. 14 an extension was unfair and prejudicial. Nevertheless, because we will affirm the entry of summary judgment if it is correct for any reason, Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 Plaintiffs (App. 1995), responses, the we consider Gieszls whether, were in entitled light to of summary judgment.9 1. The ¶25 Conversion Gieszls moved for summary judgment on the McAlisters claim for conversion, arguing they had not set forth a claim for relief because they had not disclosed any ownership interest in the property allegedly converted by the Gieszls. ¶26 Conversion is an act of wrongful control or dominion over personal property in denial of or inconsistent with the rights of another. Huskie v. Ames Bros. Motor & Supply Co., Inc., 139 Ariz. 396, 402, 678 P.2d 977, 983 (App. 1984). The act of conversion rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results. 9 Jabczenski v. S. Pac. We find no indication in the record that the trial court considered whether the Gieszls motions demonstrated that no genuine issue of material fact existed. Arizona Rule of Civil Procedure 56(e) permits the grant of a motion for summary judgment in the absence of a response from a non-moving party only when the moving party has presented evidence entitling it to judgment as a matter of law. Schwab v. Ames Constr., 207 Ariz. 56, 60, ¶ 16, 83 P.3d 56, 60 (App. 2004). 15 Mem l Hosp., 119 Ariz. 15, 20, 579 P.2d 53, 58 (App. 1978) (citation omitted). ¶27 In support of their motion, the Gieszls cited Plaintiffs responses to their discovery requests regarding the basis for the conversion claim, in which Plaintiffs asserted that Emergent Corporation, Trans Energy Corporation and Larsen Radax Corporation converted. owned the property the Gieszls allegedly The Gieszls argued that because the McAlisters did not claim any interest in the property at issue, they could not state a claim for conversion of that property. In response, the McAlisters did not offer any evidence, or even assert, that they owned any of the disputed property.10 question of fact existed, and the Accordingly, no material Gieszls were entitled to summary judgment on the McAlisters claim for conversion. 2. ¶28 Return of Property The Gieszls moved for summary judgment on Plaintiffs claim for return of property11 on the grounds that Plaintiffs had 10 The McAlisters cited the court s April 12, 2006 order regarding the disposition of the truck, trailer, and the contents of the trailer, and suggested that the order established evidence of ownership. The order did not contain any finding that the McAlisters had an ownership interest in the disputed property. 11 Although the parties do not discuss it in detail, Plaintiffs claim appears to be one for the common law remedy of replevin, which applies only where there has been a tortious taking of property. First Nat l Bank of Ariz. v. Super. Ct. of Maricopa County, 112 Ariz. 292, 295, 541 P.2d 392, 395 (1975). 16 retrieved all property held by the Gieszls. The Gieszls offered evidence that, in accord with the court s April 12, 2006 order allowing Plaintiffs to retrieve their claimed property from the Gieszls and hold it in a secure third-party storage facility, Plaintiffs removed all of the property held by the Gieszls. Fred Gieszl avowed that prior to the litigation he had disposed of certain items of property that were damaged by exposure to the elements, Plaintiffs had retrieved the remainder of the property in April 2006, and he did not thereafter retain any property in which Plaintiffs claimed an interest.12 did not controvert this evidence. Plaintiffs Instead, they argued that the motion should be denied because further discovery might reveal that the Gieszls had retained some of the property they claimed to have discarded. However, as Plaintiffs did not comply with Arizona Rule of Civil Procedure 56(f), the trial court would have abused its discretion if it allowed them additional time to obtain evidence necessary to justify a good faith opposition to the Gieszls motion. 873 P.2d evidence 668, has 676 not See Lewis v. Oliver, 178 Ariz. 330, 338, (App. been 1993)(moving gathered, its party must location, state what it what will We note that the record does not contain any allegations that the Gieszls wrongfully obtained possession of the disputed property. 12 Plaintiffs, apparently inadvertently, did not retrieve one item, a snow blower. The Gieszls do not claim an interest in this equipment and had requested Plaintiffs remove it. 17 demonstrate, the methods that are needed to obtain the evidence, and the County, time 192 required); Ariz. 499, Magellan 502, ¶ S. 10, Mtn. 968 Ltd. P.2d v. 103, Maricopa 106 (App. 1998)(vague summary is insufficient under Rule 56(f)). ¶29 Plaintiffs failed to raise a material question of fact regarding their claim for return of property and the trial court properly granted summary judgment for the Gieszls on this claim. 3. ¶30 Damages The Gieszls moved for summary judgment on Plaintiffs claim for damages arising out of the conversion cause of action. They argued Plaintiffs were seeking damages not cognizable under Arizona law by requesting damages for speculative lost profits. ¶31 The Gieszls first asserted that under Arizona law, the measure of damages for a conversion claim is limited to the market value of the converted property less any salvage value. From our review of Arizona law, we determine that the proper measure of damages for property wrongfully taken and held is the value of the property plus damages for wrongful detention. Phelps v. Melton, 14 Ariz. App. 296, 297, 482 P.2d 905, 906 (1971). from Thus, Plaintiffs were not precluded as a matter of law recovering damages for profits lost while the Gieszls wrongfully held the property. ¶32 The Gieszls also argued, however, that Plaintiffs damage claim failed as a matter of law because they were seeking 18 speculative lost profit damages not allowed under Arizona law. Arizona allows a party to recover damages for lost profits where evidence is available to furnish a reasonably certain factual basis for computation of probable losses . . . even where a new business is involved. Rancho Pescado, Inc. v. Northwestern Mut. Life Ins. Co., 140 Ariz. 174, 184, 680 P.2d 1235, 1245 (App. 1984) (citation omitted)(affirming trial court s finding that the plaintiff had failed to show that he would have been successful at a new business for which he sought lost profit damages). Although the owner of a new business cannot rely on an established profit history to support his damage claim, he may nevertheless recover lost profit damages if he devises some method of computing his net loss in order to establish damages with reasonable certainty. Id. This is no easy task, however, as such a party must show with reasonable certainty that the new business would have been feasible, would have yielded a profit, and prove how much profit the business would have realized. Id. at 184-85, 680 P.2d at 1245-46. While absolute certainty is not required, the court or jury must be guided by some rational standard in making an award. Id. at 184, 680 P.2d at 1245. ¶33 The Gieszls argued the lost profits sought by Plaintiffs were too speculative and failed as a matter of law. Plaintiffs responded they were entitled to an award of damages 19 based upon the lost profits that might have been generated by, or in connection with, the disputed property. Plaintiffs relied on engineer the affidavit Garrett, to of estimate their the damages value of expert, the new Lane technologies S. and potential profits that may have resulted from the equipment and information stored in the trailers. The Gieszls attacked the computation of Plaintiffs damages found in Garrett s affidavit as unsupported speculation or estimate. ¶34 Mr. Garrett stated in his affidavit that in 2003 he evaluated certain proprietary technologies, set forth in an attachment to his affidavit that purports to have been authored by Roy McAlister13, for the purpose of creating business plans concerning the development of an industrial park to launch new ventures from a facility in Mesa, Arizona. He opined that the net present value of these proprietary technologies was well over 80 million dollars and that this was considerably lower value than the technologies." expected profit from the production of the He further wrote that the damages resulting from these technologies falling into the control of competitors would exceed their $80 million net present value and estimated their 13 The Gieszls correctly characterized that document as: a laundry list of technologies, inventions, concepts, programs, goals, aspirations, designs, philosophies and assorted things, all of which are dependent upon countless variables. 20 replacement value to be more than $4.8 million plus additional millions" for necessary facilities and equipment. ¶35 Mr. Garrett did not provide the basis for his opinions or the assumptions underlying his analysis. He did not detail to what use the disputed property would have been put, that such use would have resulted in a feasible business that yielded a profit, or state how those profits could be calculated. this information, Plaintiffs could not create a Without material question of fact regarding whether they could prove their claim for lost profit damages with reasonable certainty. See Rancho Pescado, 140 Ariz. at 184-85, 680 P.2d at 1245-46. ¶36 Accordingly, the trial court properly granted the Gieszls motion for summary judgment regarding damages. C. ¶37 Attorneys Fees After the court dismissed Plaintiffs final claims, the Gieszls requested an award of fees pursuant to A.R.S. §§ 12341.01(A),(C), -349 (2003), and Arizona Rule of Civil Procedure 11. The court awarded them $50,000 for their reasonable attorneys fees, but did not specify the basis for its award. Plaintiffs argue the trial court erred in awarding the Gieszls their attorneys fees pursuant to A.R.S. § 12-341.01(A) because its claims did not arise out of contract. As Plaintiffs did not challenge the Gieszls request for an award of attorneys fees 21 on these grounds in the trial court14, we will not consider their argument for the first time on appeal. Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (ABecause a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal.@). ¶38 The Gieszls request an award of reasonable attorneys' fees and costs on appeal. 12-341.01. We award fees pursuant to A.R.S. § See Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 133, 639 P.2d 321, 323 (1982). CONCLUSION ¶39 For the foregoing reasons, court judgment. we affirm the superior /s/ _______________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ___________________________________ PATRICK IRVINE, Judge 14 Although the McAlisters each opposed the Gieszls application for an award of attorneys fees, neither of them argued that such an award would be improper under A.R.S. § 12341.01 or any other legal basis; instead, they merely reargued the merits of the suit. 22 23

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.