PANELLA v. ABALOS

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CATHERINE PANELLA, ) ) Plaintiff/Appellant, ) ) v. ) ) MAKENZIE LEA ABALOS, ) ) Defendant/Appellee. ) ) __________________________________) DIVISION ONE FILED: 3/14/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0339 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-009050 The Honorable John Christian Rea, Judge VACATED AND REMANDED Tidmore Law Offices, L.L.P. by Mick Levin Attorneys for Plaintiff/Appellant Phoenix Turley, Childers, Humble & Torrens, P.C. by Christopher J. Bork Attorneys for Defendant/Appellee Phoenix P O R T L E Y, Judge ¶1 Catherine Panella ( Panella ) challenges the award of sanctions to Makenzie Lea Abalos ( Abalos ) pursuant to Arizona Rule of Civil Procedure ( Rule ) 68(g). For the following reasons, we vacate the award and remand the case. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Panella sued automobile accident. Abalos for injuries related to an Abalos made a Rule 68 offer of judgment but Panella did not accept the offer. The case was tried, and the jury returned a defense verdict. ¶3 Abalos then filed her statement of costs, seeking reimbursement for filing or appearance fees, deposition fees, and expert witness fees. Abalos did not identify that she was seeking Rule 68(g) sanctions, but a footnote in the statement of costs identified the date of her offer of judgment. ¶4 Panella objected to the statement of costs and argued that expert witness fees cannot be awarded under Arizona Revised Statutes ( A.R.S. ) section 12-332 (West 2013). Abalos replied by arguing that Rule 68(g) entitled [her] to double her taxable costs and reasonable expert witness fees. Panella replied and argued that Abalos Without objection, should have provided documentary evidence supporting the claim that she was entitled to $5,121.88 in expert witness fees. ¶5 The trial court granted Abalos s requests for costs and Rule 68(g) sanctions and entered judgment against Panella for $6,169.48. This appeal followed. 2 DISCUSSION ¶6 Panella asserts that the court erred by awarding Abalos s expert witness fees as a Rule 68(g) sanction. 1 She contends Abalos did not submit any documentary evidence that she incurred judgment. the expert witness fees after making the offer of Although Abalos s statement of costs only listed that her expert witness fees totaled $5,121.88, she contends that her attorney s verification of the statement of costs was sufficient evidence that she incurred the expert witness fees. ¶7 We review an award of sanctions for an abuse of discretion because trial courts generally have wide discretion in assessing costs and sanctions. Berry v. 352 E. Virginia, L.L.C., 228 Ariz. 9, 15, ¶ 31, 261 P.3d 784, 790 (App. 2011). court abuses its discretion when its actions are A clearly untenable, legally incorrect, or amount to a denial of justice. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6, 210 P.3d 1283, 1285 (App. 2009). 1 Rule 68(g) provides: If the offeree rejects an offer and does not later obtain a more favorable judgment other than pursuant to this Rule, the offeree must pay, as a sanction, reasonable expert witness fees and double the taxable costs, as defined in A.R.S. § 12-332, incurred by the offeror after making the offer. Ariz. R. Civ. P. 68(g). 3 ¶8 Before expert fees can be awarded as sanctions pursuant to Rule 68(g), the court must determine whether the expert witness fees were reasonably evidence for presentation at trial. calculated to produce Flood Control Dist. v. Paloma Inv. Ltd. P ship, 230 Ariz. 29, __, ¶ 58, 279 P.3d 1191, 1207 (App. 2012). that there was For example, in Lohmeier v. Hammer, we found ample evidence to support the trial court s partial award of the requested expert fees as sanctions. 214 Ariz. 57, 62-63, ¶¶ 17, 19-20, 148 P.3d 101, 106-07 (App. 2006). Not only did contested, we but find that that the the expert s record reflects testimony that was [the hotly expert] provided billing statements that adequately detailed the general type of work expenses. he performed, his hourly rate, and related Id. at ¶ 20; see also Flood Control Dist., 230 Ariz. at __, ¶ 62, 279 P.3d at 1208 (finding that the trial court did not abuse its discretion by denying the expert fees as sanctions because there expended, was which no evidence related that identified to the presentation did not provide of the hours evidence at information to trial). ¶9 Here, Abalos any support her request for an award of expert fees. present itemized billing statements that She did not explained how many hours the expert worked after the offer was made, what he did or what fees were incurred in preparing for the trial presentation. 4 See, e.g., Levy v. Alfaro, 215 Ariz. 443, 444, ¶ 4, 160 P.3d 1201, 1202 calculations (App. of 2007) its (explaining expert witness that fees the defendant s identified which portion of the expert witness fees was for time spent by the experts testifying in court and which portion was spent reviewing depositions, conferencing with attorneys, preparing to testify, and other pre-trial activities ). Abalos merely listed the total amount she sought in her statement of costs. ¶10 She argues, however, that the verified statement of costs was sufficient for the court to award the expert s fees as a sanction. We disagree. Counsel s verification signature on the statement of costs merely attested that Abalos sought an award of expert fees. The verification did not provide any detail that would allow the court to independently evaluate what expert fees Abalos incurred after whether those fees were reasonable. the offer of judgment and Consequently, because the court was unable to assess what expert fees were incurred after the offer of judgment and whether those were reasonable, the court abused its discretion in awarding those fees as sanctions. ¶11 Citing Peters v. M & O Construction, Inc., 119 Ariz. 34, 36, 579 P.2d 72, 74 (App. 1978), Abalos, however, argues that the trial court did not abuse its discretion because the sanctions were supported by some reasonable evidence. Although she is entitled to Rule 68(g) sanctions because she fared better 5 than her offer reasonableness of of judgment, expert the witness court fees amount of sanctions to be awarded. has to before evaluate the determining the Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 90, ¶ 8, 270 P.3d 915, 917 (App. 2012). Because Abalos did not present any billing statements or other documentary evidence, the court did not evaluate the reasonableness of the expert fee request pursuant to Lohmeier and Flood Control District. ¶12 Abalos also claims that we should not consider the argument that she failed to provide itemized billing statements because Panella only raised it in her Reply to Defendant Abalos Response to Plaintiffs Objection to Defendant Abalos Statement of Costs, which was, in essence, a sur-reply. pleading, however, was not stricken sua sponte court, and Abalos did not move to strike it. by the The trial Consequently, because the trial court had the pleading before ruling, Abalos has waived the issue. Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17, 160 P.3d 223, 228 (App. 2007); Resolution Trust Corp. v. City of Scottsdale, 177 Ariz. 234, 237, 866 P.2d 902, 905 (App. 1993). ¶13 Finally, citing to Aguirre v. Robert Forrest, P.A., Abalos asserts that we must assume the trial court evaluated all relevant factors and made any necessary findings to support its ruling. 186 Ariz. 393, 397, 923 P.2d 859, 863 (App. 1996). 6 Aguirre, however, did not involve the evaluation of a request for sanctions but whether the court erred in allowing plaintiff to use one doctor as the sole expert witness. the Id. Because the case did not address the issue presented here, we cannot assume sanctions the request court evaluated without any the reasonableness documents. of Consequently, the we vacate the inclusion of the expert fees award in the sanction order and remand the case to the trial court. See Hedru v. Metro-North Commuter R.R., 433 F. Supp. 2d 358, 359-60 (S.D.N.Y. 2006) (giving defendant additional time to file appropriate records for the Rule 68 analysis). CONCLUSION ¶14 For the foregoing reasons, we vacate the award of expert s fees as sanctions and remand the case back to the trial court for further proceedings consistent with this decision. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 7

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