Bridges v. Security Title
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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
DIVISION ONE
FILED: 05/26/2011
RUTH A. WILLINGHAM,
CLERK
BY: JT
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
FRED BRIDGES and TONYA BRIDGES,
Husband and wife,
Plaintiffs/Appellants,
v.
SECURITY TITLE AGENCY, INC.,
Defendant/Appellee.
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No.
1 CA-CV 10-0514
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2007-005926
The Honorable Linda H. Miles, Judge
AFFIRMED IN PART, REVERSED IN PART, REMANDED
Roger Strassburg, P.L.L.C.
By
Roger W. Strassburg, Jr.
Attorney for Appellants
Mariscal, Weeks, McIntyre & Friedlander, P.A.
By
Michael Scheurich
Anne L. Tiffen
Attorneys for Appellee
T I M M E R, Chief Judge
Scottsdale
Phoenix
¶1
Fred and Tonya Bridges appeal the trial court’s entry
of summary judgment denying them relief in their action against
Security Title Agency, Inc. and imposing sanctions for failing
to comply with discovery orders.
For the reasons that follow,
we affirm the entry of summary judgment in part, reverse in
part, and
remand
for
additional
proceedings.
We
affirm
the
contract
to
trial court’s imposition of discovery sanctions.
BACKGROUND 1
¶2
Fred
and
Tonya
Bridges
entered
in
a
purchase 40 acres of improved and unimproved land located near
Globe (the “Asbestin Property”) from John and Dawn Schnetzer on
November
28,
2001.
Title”),
through
its
agent for the sale.
for
the
Asbestin
Security
Title
employee,
Gail
Agency,
Wefer,
Inc.
served
(“Security
as
escrow
Wefer received a preliminary title report
Property
on
December
6,
which
showed
the
existence of both a purchase money lien held by J. W. Copeman
and a five-year exclusive option to purchase 30 acres of the
property for $400 in favor of GB Creek, LLC (the “GB Creek
Option”).
Wefer alerted one of the Schnetzers to the existence
of the GB Creek Option, inquired about their plans for release
prior to close of escrow, and was told the Schnetzers would “get
1
We view the evidence and all reasonable inferences in the light
most favorable to the Bridges as the parties against whom
summary judgment was entered.
State v. Mabery Ranch, Co., 216
Ariz. 233, 239, ¶ 23, 165 P.3d 211, 217 (App. 2007).
2
back with” her.
Wefer neither contacted the Bridges about the
GB Creek Option nor supplied them with the preliminary title
report.
¶3
In early January 2002, in accordance with the terms of
his agreement with the Schnetzers, Copeman refused to accept a
payoff
of
his
Property,
note
and
effectively
Undeterred,
the
release
scuttling
Bridges
and
the
lien
the
on
sale
Schnetzers
Asbestin
the
to
the
Bridges.
formulated
a
plan
to
“work around” this setback by agreeing to a swap of properties
(the “Swap Agreement”).
Under the terms of the Swap Agreement,
the Bridges would purchase 60 acres of unimproved property owned
by the Schnetzers (the “Jaquays Property”) for the agreed-upon
purchase
price
for
Jaquays
Property
the
for
Asbestin
the
eventually released his lien.
Property
Asbestin
and
later
Property
when
swap
the
Copeman
The Swap Agreement was set forth
in a written agreement but was never fully executed.
¶4
On January 15, to implement the objective of the Swap
Agreement, the parties entered in a contract for the sale of the
Jaquays
Property
and
provided
it
to
Wefer
in
the
account
originally opened for the sale of the Asbestin Property.
terms
of
deposit
the
and
new
contract
purchase
Asbestin Property.
price
required
as
the
the
sales
same
earnest
contract
for
The
money
the
According to Wefer, she believed the parties
elected to substitute a new purchase contract for the original
3
contract, making the existence of the GB Creek Option on the
Asbestin Property irrelevant.
¶5
As
the
escrow
progressed
for
sale
of
the
Jaquays
Property, the Schnetzers failed to make a required payment to
Copeman, placing them at risk of losing the Asbestin Property to
foreclosure.
The Schnetzers also struggled to make a monthly
payment to a lienholder on the Jaquays Property.
To ensure the
Schnetzers would retain both properties and carry out the terms
of the Swap Agreement, the Bridges advanced significant monies
to the Schnetzers from February 5 to May 9 by depositing funds
into
the
escrow
and
instructing
specified conditions.
Wefer
to
release
them
on
For example, the parties provided Wefer
with a supplemental escrow instruction on February 5 to release
$20,000
to
payment,”
escrow.
the
which
Schnetzers
the
“to
Schnetzers
be
applied
would
to
repay
their
at
the
February
close
of
On March 7, the parties instructed Wefer to immediately
use a $200,000 wire deposit from the Bridges to pay two service
accounts – one maintained by Security Title and one maintained
by Pioneer Title.
¶6
The
Bridges
monetary advances.
eventually
sought
security
for
their
Thus, the parties instructed Wefer on March
8 to transfer ownership of a parcel of the Jaquays Property
known as “J56” “free and clear of any and all liens” to the
Bridges
if
the
escrow
cancelled.
4
On
May
9,
the
parties
additionally
instructions
instructed
as
they
necessary
to
would
satisfy
modify
an
any
closing
anticipated
Arizona
Department of Real Estate decision due in late May concerning
the
Jaquays
[J56]
Property
transfer
will
but,
if
occur
no
modification
automatically.”
occurred,
The
parties
“the
also
instructed that escrow would close by June 30.
¶7
Escrow did not close by June 30 as the Bridges were
unable to get funding in place, but neither party cancelled the
escrow.
The Bridges continued efforts to obtain financing after
June 30, but their efforts ultimately proved futile.
GB Creek
exercised its option on the Asbestin Property, which was deeded
to GB Creek on August 2.
Sometime later, the Schnetzers lost
ownership of the Jaquays Property through foreclosure or sale.
The Schnetzers never repaid the amounts advanced by the Bridges,
and J56 was never deeded to the Bridges.
¶8
The
Bridges
sued
Security
Title
alleging
causes of action, including breach of fiduciary duty.
multiple
After the
parties engaged in discovery, Security Title filed a motion for
summary judgment, which the trial court granted.
imposed
discovery
sanctions
against
the
The court also
Bridges
Arizona Rule of Civil Procedure (“Rule”) 37(b)(2).
pursuant
to
After the
entry of final judgment, this timely appeal followed.
¶9
We review the entry of summary judgment de novo.
Hunt
v. Richardson, 216 Ariz. 114, 118, ¶ 8, 163 P.3d 1064, 1068
5
(App. 2007).
The court properly entered summary judgment for
Security Title if no genuine issues of material fact existed,
and it was entitled to judgment as a matter of law.
Ariz. R.
Civ. P. 56(c); Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d
1000, 1008 (1990).
Due to the trial court’s broad discretion
when imposing discovery sanctions, we review the imposition of
those sanctions for an abuse of discretion.
J-R Constr. Co. v.
Paddock Pool Constr. Co., 128 Ariz. 343, 344, 625 P.2d 932, 933
(App. 1981); Sears Roebuck & Co. v. Walker, 127 Ariz. 432, 437,
621 P.2d 938, 943 (App. 1980).
ANALYSIS
I.
Summary judgment
¶10
As
an
escrow
agent,
Security
Title
owed
fiduciary
duties to the Bridges and the Schnetzers to disclose facts and
circumstances that a reasonable escrow agent would perceive as
evidence
of
fraud
being
committed
on
either
party
strictly comply with the terms of the escrow agreement.
and
to
Burkons
v. Ticor Title Ins. Co. of Cal., 168 Ariz. 345, 353, 813 P.2d
710, 718 (1991); Maganas v. Northroup, 135 Ariz. 573, 576, 663
P.2d 565, 568 (1983).
by
entering
Title,
summary
through
Wefer,
The Bridges argue the trial court erred
judgment
on
breached
their
each
of
claims
that
Security
these
duties
because
material issues of disputed fact exist whether Wefer (1) failed
to disclose evidence of fraud by not informing the Bridges of
6
the GB Creek Option, and (2) failed to strictly comply with the
terms of the escrow agreement by not transferring ownership of
J56 to the Bridges when escrow failed to close on June 30, 2002.
We address each argument in turn.
A.
¶11
Failure to disclose GB Creek Option
The Bridges argue Wefer failed to disclose evidence of
fraud by withholding the preliminary title report and by failing
to otherwise inform the Bridges of the GB Creek Option.
They
contend the preliminary title report suggested the possibility
of fraud because it showed the Schnetzers were trying to sell
the Asbestin Property twice.
Although Wefer admitted the GB
Creek Option was material to the sale of the Asbestin Property,
Security
Title
contends
the
existence
of
the
option
did
not
constitute evidence of fraud because the option became moot when
the parties substituted a new contract for sale of the Jaquays
Property.
Security Title also argues that because the parties
did not inform Wefer of their intention to eventually swap the
Jaquays
Property
for
the
Asbestin
Property,
and
she
did
not
serve as the escrow agent for the Swap Agreement, she was not
obligated to inform the Bridges of the GB Creek Option.
¶12
Viewing the facts in the light most favorable to the
Bridges, we have no difficulty concluding that the existence of
the GB Creek Option constituted evidence the Schnetzers were
attempting to defraud the Bridges by inducing them to purchase
7
the Jaquays Property with the promise of an eventual swap of the
Asbestin Property while knowing the Schnetzers could not convey
unencumbered title to the Asbestin Property in light of the GB
Creek Option.
See Wells Fargo Bank v. Ariz. Laborers, Teamsters
& Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474,
483, ¶ 19, 38 P.3d 12, 21 (2002) (holding “a party may be liable
for acts taken to conceal, mislead or otherwise deceive, even in
the absence of a fiduciary, statutory, or other legal duty to
disclose”); Lombardo v. Albu, 199 Ariz. 97, 99, ¶ 8, 14 P.3d
288,
290
(2000)
(recognizing
seller
of
property
has
duty
to
disclose facts material to transaction to buyer); Mammas v. Oro
Valley Townhouses, Inc., 131 Ariz. 121, 123, 638 P.2d 1367, 1369
(App. 1981) (concluding seller of property could be liable for
fraud by failing to correct misrepresentation about size of home
after learning of falsity of original representation).
A jury
could conclude the existence of the option was material to the
Swap Agreement because no reasonable buyers would have entered
in the agreement and advanced monies in reliance on it knowing
the Schnetzers would not likely be in a position to transfer
ownership of the Asbestin Property or, assuming transfer, GB
Creek could exercise its option for a mere $400.
of
summary
evidence
judgment,
exists
that
however,
Wefer
knew
8
turns
of
on
the
The propriety
whether
Swap
sufficient
Agreement
and
therefore knew that the GB Creek Option was evidence of fraud
that should have been disclosed to the Bridges.
¶13
Our review of the record reveals sufficient evidence
to support a finding that Wefer knew of the Swap Agreement.
Significantly, John Schnetzer testified he discussed the Swap
Agreement with Wefer on at least three occasions, although he
was unable to provide details of the conversations.
He also
stated he was a “hundred percent sure it was discussed because
it would have to be because there’s no way we could hide this
back
and
forth
when
we
are
“everything
was
discussed.”
watched
the
partially
as
all
doing
Finally,
signed
Swap
paperwork,”
Schnetzer
Agreement
and
that
testified
was
faxed
he
to
Wefer.
¶14
Although Wefer maintained she was unaware of the Swap
Agreement, a jury could conclude otherwise.
Wefer testified she
knew the Bridges and the Schnetzers planned to do something with
the properties.
The purchase price and earnest money for the
Jaquays Property were identical to the amounts for the Asbestin
Property, which is consistent with the notion of an intended
swap of properties. Furthermore, Wefer made payments from the
escrow
account
advanced
by
the
Bridges
to
a
Security
Title
servicing account in the amount of $19,966 and to a Pioneer
Title servicing account in the amount of $188,205.95.
Security
Title does not dispute the Schnetzers used the Security Title
9
account to refinance part of their obligation to Copeman on the
Asbestin
Property;
refinance
Wefer
transaction.
served
as
According
the
escrow
agent
for
to
expert
witness
the
Terri
Hanson, the payment of monies from the escrow to service debt on
the Asbestin Property should have alerted Wefer that the Bridges
still intended to purchase the Asbestin Property.
In Hanson’s
words, “what rational buyer would pay such a large sum of money
for the sole purpose of benefitting a property he no longer
wanted to buy?”
Bridges no
Property,
Hanson opined that if Wefer really thought the
longer
she
payments.
had
should
an
interest
in
acquiring
have
inquired
about
the
the
reason
Asbestin
for
the
Wefer’s failure to do so would support a finding she
refrained from making the inquiry because she knew of the Swap
Agreement.
See Burkons, 168 Ariz. at 354, 813 P.2d at 719
(concluding that when confronted with a “highly unusual” real
estate transaction, “[t]he factfinder could conclude that the
escrow agent, with all its experience, must have been aware of
these circumstances”).
¶15
In
conclusion,
the
Bridges
presented
sufficient
evidence concerning Wefer’s knowledge of the Swap Agreement to
withstand Security Title’s motion for summary judgment on the
claim it breached its fiduciary duty by failing to inform the
Bridges
of
the
GB
Creek
Option.
reverse
the
portion of the summary judgment addressing this contention.
In
10
We
therefore
light
of
our
remaining
decision,
arguments
we
need
concerning
not
address
the
Swap
the
parties’
Agreement,
the
pertinence of the GB Creek Option, or the admissibility of parts
of Hanson’s affidavit.
B.
¶16
J56 property
The Bridges next contend Wefer breached her duty to
strictly comply with escrow instructions by failing to transfer
J56 when escrow failed to close on June 30, 2002.
Security
Title counters that Wefer was unable to transfer J56 to the
Bridges
because
conditions
for
transfer
stated
supplemental escrow instructions never occurred.
in
the
We agree with
Security Title.
¶17
The supplemental escrow instructions supplied by the
parties
to
Wefer
provided
in
pertinent
part
that,
“if
this
escrow cancels, Seller will furnish Buyer an executed [d]eed for
J56
free
and
instructions
clear
are
of
needed
any
and
before
all
that
liens,”
time
in
unless
light
further
of
an
anticipated decision by the Arizona Department of Real Estate.
Thus, in order for Wefer to transfer the property, the escrow
had
to
be
cancelled
and
any
encumbrances
on
J56
had
to
be
released.
¶18
The record does not reflect that escrow was cancelled,
and, therefore, as a matter of law, Wefer strictly complied with
her instructions by not transferring J56 to the Bridges.
11
The
parties set forth the following mechanism for cancelling escrow
in their purchase contract/escrow instructions:
Any party who wishes to cancel this Contract
because . . . escrow fails to close by the
agreed date, and who is not himself in
breach of this Contract except for any
breach occasioned by a breach by the other
party,
may
cancel
this
Contract
by
delivering
to
escrow
company
a
notice
containing the address of the party in
breach and stating that this Contract shall
be cancelled unless the breach is cured
within the 13 days following the delivery of
the notice to the escrow company.
Within
three days after receipt of such notice, the
escrow company shall send it by United
States Mail to the party in breach at the
address contained in the notice and no
further notice shall be required.
If the
breach is not cured within the 13 days
following the delivery of the notice to the
escrow company, this Contract shall be
cancelled. 2
Because the parties included this thirteen-day notice provision
in their agreement, the escrow did not automatically cancel on
June 30, 2002, when escrow failed to close.
Horizon Corp. v.
Westcor, Inc., 142 Ariz. 129, 135-36, 688 P.2d 1021, 1027-28
2
The purchase contract for the Jaquays Property submitted with
Security Title’s moving papers is set forth on the identical
pre-printed form as the original contract for the Asbestin
Property. The thirteen-day notice provision is contained on the
reverse-side of the form.
Although the reverse-side of the
Jaquays Property contract is not set forth in the moving papers,
the Bridges do not dispute that the Jaquays Property contract
contained the reverse-side provisions. Regardless, our decision
would remain the same as the Bridges did not provide any
authority supporting a conclusion that the escrow cancelled
automatically if the closing date passed without an extension by
the parties.
12
(App.
1984)
(“It
is
clear
that
the
thirteen-day
letter
requirement is not merely for the benefit of the escrow but is
the
only
way
contract.”).
in
which
the
parties
here
could
cancel
the
According to Wefer, no party acted to cancel the
escrow after June 30; the Bridges offered no contrary evidence.
Consequently, as Wefer was instructed to transfer J56 only upon
cancellation
of
the
escrow,
and
escrow
never
cancelled,
she
complied with the parties’ instructions by not transferring the
property.
Additionally,
because
the
record
reflects
the
existence of a lien on J56 as of June 30, 2002, Wefer could not
have transferred the property until it was released pursuant to
the parties’ instructions.
summary
judgment
on
the
The trial court correctly entered
Bridges’
claim
that
Security
Title
breached the escrow instructions by failing to transfer J56 to
them.
II.
¶19
Discovery sanctions
The
Bridges
provided
their
initial
disclosure
statement pursuant to Rule 26.1 to Security Title on August 24,
2007, listing the Schnetzers as witnesses but providing their
attorney’s address as the sole contact information.
Although
the Bridges filed a supplemental disclosure statement on May 9,
2008 that again included the Schnetzers as witnesses, additional
contact information was not provided.
On August 11, three weeks
after the deadline to disclose non-expert witnesses, Security
13
Title
sent
interrogatories
Schnetzers’
addresses.
to
On
the
Bridges
January
12,
requesting
2009,
the
the
Bridges
answered the interrogatories and filed a second supplement to
their disclosure statement but failed to provide the requested
addresses.
On motion by Security Title, the trial court on
March 11 ordered the Bridges, among other things, to disclose
the
Schnetzers’
extended
the
addresses
discovery
within
deadline
ten
days.
to
June
The
30.
court
also
Before
the
deadline, the Bridges’ counsel arranged for John Schnetzer’s
(“John”) deposition, which took place on June 24.
¶20
Although
the
Bridges
complied
with
aspects
of
the
court’s March 11 order, they failed to disclose the Schnetzers’
addresses despite several follow-up requests by Security Title,
prompting Security Title to file a renewed motion to exclude
witnesses or for alternate relief.
At a hearing on December 14,
the Bridges stated they did not comply with the court order
regarding Dawn Schnetzer (“Dawn”) because they did not know her
address,
although
counsel
for
the
Bridges
stated
he
also
represented her and was in contact with her via telephone and
email.
The trial court ruled that the Bridges had ignored
disclosure
and
discovery
rules
by
failing
to
disclose
the
Schnetzers’ addresses and had disregarded the court’s March 11
order without good cause.
As a result, the court sanctioned the
Bridges pursuant to Rule 37(b)(2) by (1) prohibiting the Bridges
14
from using Dawn as a witness, 3 (2) precluding the Bridges from
conducting further discovery, and (3) awarding Security Title
$3,960 in attorneys’ fees and costs incurred to file a renewed
motion to preclude Dawn as a witness.
The court also ordered
the Bridges to disclose Dawn’s address.
The Bridges complied
with that order, and Security Title deposed Dawn on January 28,
2010.
¶21
The
Bridges
argue
the
discretion in several respects.
the
court
court
finding
they
failed
Schnetzers’
addresses
because
they
provided
attorney’s
address
and
information.
in
nothing
the
abused
its
The Bridges initially contend
by
statement,
erred
trial
the
disclose
the
the
Schnetzers’
Rule
26.1
disclosure
Bridges
ever
initial
showed
to
had
better
We reject this contention because the Bridges’
counsel admitted he represented Dawn and was in contact with
her. 4
He also contacted John and arranged for his deposition
after the March 11 order.
Even assuming the Bridges did not
have addresses for the Schnetzers at the time of the initial
3
The court declined to exclude John as a
Security Title had deposed him after March 11.
4
witness
because
Indeed, the Bridges paradoxically complain their counsel was
“caught between a rock and a hard place” because Dawn had
instructed him not to disclose her address.
Putting aside
consideration of the duties counsel owed to all clients, his
remedy was to either refrain from listing Dawn as a witness or
obtain relief from application of Rule 26.1 and Rule 33 from the
court – not simply ignore the rules and the court’s March 11
order.
15
disclosure statement, the court could have correctly found that
the
Bridges
later
obtained
the
information
yet
failed
to
disclose it pursuant to court rules and court order.
¶22
“too
Next, the Bridges argue the sanctions imposed were
harsh,
disproportionate,
and
unfairly
prejudice[ial]”
because (1) the Bridges substantially complied with the March 11
order by producing reams of documents, (2) Security Title did
not suffer prejudice from the delay in learning the Schnetzer’s
contact information, and (3) the Bridges were prejudiced by the
exclusion of Dawn as their witness and by having their discovery
rights truncated.
¶23
We disagree.
Rule 37(b)(2)(B) provides that if a party “fails to
obey an order to provide or permit discovery,” the court may
enter any appropriate order, including prohibiting introduction
of designated evidence.
The court in this case acted within the
discretion afforded by the rule.
Although the Bridges partially
complied with the court’s March 11 order, they did not disclose
the Schnetzers’ addresses within ten days as required.
The fact
that John disclosed his address at his deposition three months
later and the Bridges ultimately disclosed Dawn’s address seven
months after that date did not excuse disobedience of the March
11 order.
Court orders are not advisory and must not be taken
lightly; the court acted well within its discretion by imposing
16
sanctions for the Bridges’ failure to abide by the March 11
order.
¶24
The sanctions imposed were also appropriate to the
circumstances
Bridges.
and
did
not
disproportionately
prejudice
the
See Roberts v. City of Phoenix, 225 Ariz. 112, 119-20,
¶ 27, 235 P.3d 265, 273 (App. 2010) (citation omitted) (holding
sanctions
“must
be
appropriate
to
the
circumstances”).
The
court appropriately precluded Dawn as a witness for the Bridges
because the Bridges did not disclose her address until after
ordered a second time to do so and well after expiration of the
discovery deadline. 5
See B & R Materials, Inc. v. U.S. Fid. &
Guar. Co., 132 Ariz. 122, 123-24, 644 P.2d 276, 277-78 (App.
1982) (deciding it appropriate for the trial court to exclude
evidence a party failed to provide to the opposing party during
discovery).
Nothing suggested Dawn was an important witness.
The Bridges did not offer details to the trial court regarding
the significance of Dawn’s testimony to their case or how her
version of events differed from John’s version.
Indeed, the
Bridges admitted Dawn was not part of the “three conversations
with
Gail
Wefer
about
the
swap
agreement.
.
.
.
[John
Schnetzer is] just an honest witness, and he is the sole witness
5
The court recognized that although the Bridges also failed to
timely disclose John’s address, Security Title was able to
depose him before expiration of the discovery deadline so
preclusion was not warranted.
17
that anybody’s been able to find who’s knowledgeable about that
topic.”
the
Although the Bridges recite on appeal that Dawn can say
contract
for
the
Jaquays
Property
was
a
“clerical”
replacement for the Asbestin Property contract, other witnesses,
including John, provide this testimony.
¶25
We
prejudiced
also
reject
the
Bridges
further
discovery
and
Bridges
had
ample
the
by
by
time
notion
that
precluding
imposing
to
engage
the
them
from
monetary
in
court
unduly
conducting
sanctions.
discovery
expiration of the original discovery deadline.
before
The
the
And Security
Title was only granted four additional months of discovery due
to the Bridges’ failure to comply with the rules and the March
11 order.
The monetary sanctions were limited to the amount of
attorneys’ fees expended by Security Title to compel the Bridges
to comply with the rules and court order.
We do not discern
error.
¶26
Finally, the Bridges argue the trial court erred by
imposing monetary sanctions because Security Title’s attorneys’
fee affidavit contained impermissible “block billing” and listed
tasks that would have been completed regardless of the discovery
dispute.
of
legal
attorney
A fee affidavit should include the following: the type
work
done,
performing
the
the
date
work
the
work
was
(if
multiple
performed,
attorneys
the
were
involved), and the amount of time spent performing the work.
18
Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188, 673
P.2d 927, 932 (App. 1983).
determination
that
the
“In order for the court to make a
hours
claimed
are
justified,
the
fee
application must be in sufficient detail to enable the court to
assess the reasonableness of time incurred.”
Id.
Security
Title’s affidavit for attorneys’ fees included all the required
information.
After examining the contents of this affidavit, we
decide the entries were specific enough to allow the court to
assess the reasonableness of the time spent and whether the
tasks were necessary to the discovery dispute as required by
China Doll.
ATTORNEYS’ FEES ON APPEAL
¶27
Security
pursuant
to
Title
Arizona
request
Revised
attorneys’
Statute
§
fees
12-341.01
on
appeal
(2003).
We
decline this request because no party has yet prevailed in this
action in light of our decision to partially reverse the entry
of summary judgment.
At the conclusion of proceedings before
the trial court, however, that court may exercise its discretion
to
award
attorneys’
fees
to
the
prevailing
party
for
fees
part
and
incurred in this appeal.
CONCLUSION
¶28
For
the
foregoing
reasons,
we
affirm
in
reverse in part the trial court’s grant of summary judgment in
favor of Security Title.
We affirm the award of sanctions.
19
We
decline to award attorneys’ fees on appeal without prejudice to
the trial court to later award fees to the prevailing party.
/s/
Ann A. Scott Timmer, Chief Judge
CONCURRING:
/s/
Patrick Irvine, Presiding Judge
/s/
John C. Gemmill, Judge
20
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