SKIFF v. CARL

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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 KENNETH SKIFF, ) ) Appellant, ) ) v. ) ) SONJA CARL, ) ) Appellee. ) ) __________________________________) DIVISION ONE FILED: 10/8/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0805 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Coconino County Cause No. CV2000-0647 The Honorable Mark R. Moran, Judge AFFIRMED ________________________________________________________________ Kenneth Skiff, Attorney at Law Appellant in Propria Persona Phoenix Michael E. Hurley, Attorney at Law Phoenix Attorney for Appellee ________________________________________________________________ K E S S L E R, Judge ¶1 Appellant Kenneth Skiff ( Skiff ) appeals the trial court s entry of an order awarding Appellee Sonja Skiff Carl ( Carl ) $12,2691 and the denial of his motion for rehearing. Skiff contends that Carl was only entitled to $2,745. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Skiff In 2002, the trial court ruled in favor of Eleanor ( Eleanor )2 and Carl in an action to quiet property filed by Gilberta Richards ( Gilberta ). title to The court determined Gilberta had an undivided one-half interest in the property, Eleanor had an undivided one-third interest, and Carl had an undivided one-sixth interest. James Harries ( Harries ), the attorney who represented both Eleanor and Carl on the merits of the quiet title action, filed an application for an award of $41,040 in attorneys fees. In 2002, the court granted $37,134 in fees, and the judgment became a lien upon the property. When the property was sold eight years later in 2010, approximately $67,400 of the proceeds, representing the amount of the fee award plus interest, was withheld and placed in a trust account 1 For purposes of convenience, we round figures to the nearest full dollar amount. 2 Eleanor is deceased and her son, Skiff, is her successor in interest. 2 with Carl s attorney to be disbursed upon mutual agreement of the parties.3 ¶3 In November 2011, Carl filed a motion to clarify the judgment and creditors, proceeds establish each and the entitled accrued to parties a as one-half interest. Skiff equal share co-judgment of argued the an sale equal distribution of the proceeds would unjustly enrich Carl as she had paid only $1,500 of the $37,134 in attorneys fees due to Harries, and Skiff and his family4 had paid the remainder. He contended that Carl should be entitled to only $1,500 of the lien amount plus interest, or $2,745. The court found that no injustice would be done to Carl if it allowed the application of equitable subrogation, and the failure to do so would result in Carl receiving a windfall. In applying the doctrine, the court found that both parties should share equally in the attorneys 3 The record is unclear whether Gilberta paid any portion of the fee award or if a portion of the award was taken from her portion of the proceeds on the sale of the property. In 2004, Carl filed a notice of partial satisfaction of judgment, stating that Gilberta had paid $22,617 toward the fee award and the actual amount of attorneys fees due should have been $31,719. In addition, Skiff later claimed that when the judgment was entered, $20,000 of the $37,134 was still due. Neither Skiff nor Eleanor signed Carl s notice of partial satisfaction, and the parties and the superior court appear to have simply ignored both the notice and the admission. Accordingly, we do not address them in our analysis except regarding the issue of laches. 4 The record shows payments made to Harries by Eleanor, Skiff, and Skiff s brother, Doug. For purposes of simplicity, we will refer to these three individuals collectively as the Skiff family. 3 fees owed. As a result, the court found that Skiff had an equitable lien on the sale proceeds to the extent the Skiff family paid more than one-half of the legal fees owed, and ordered that Skiff be equitably subrogated to Carl s rights in the judgment proceeds except the $1,500 plus interest Carl paid in attorneys fees. Finally, the court concluded that if the parties could not reach an agreement as to the amounts to be divided, it would set the matter for further hearing. ¶4 In 2012, Carl filed a request for an evidentiary hearing because the parties could not agree on the amount of reimbursement owed to Skiff. hearing for June 25, 2013. The court scheduled an evidentiary Skiff responded in three ways. First, he filed an opposition to the motion for an evidentiary hearing. Second, he filed a motion in limine also opposing any evidentiary hearing, asserting the request was actually a ruse to discuss a new issue of whether he was entitled only to proceeds the Skiff family paid to Harries that he could actually prove. Skiff could not prove the exact amount the Skiff family paid Harries. However, Skiff argued Carl should be barred by laches from contesting the amount confirm amount remained the final silent distribution, and payment until the Eleanor s because with proceeds old bank statements were no longer available. 4 he Carl had offered in 2004, became account to Carl available for records and Finally, Skiff filed a hearing brief, attaching various documents including an affidavit in which he claimed that the actual attorneys fees exceeded $43,000, and the Skiff family paid $23,749 plus a lump sum settlement for the rest. He believed that the rest of the payments were $2,000 to $4,000 less than the full amount owed. ¶5 The limine. court However, granted the oral court argument later sua on the sponte motion cancelled in the evidentiary hearing and heard only oral argument. ¶6 At oral argument, entitled to $23,749 Carl paid toward argued the that: (1) Skiff attorneys fees was plus an additional $19,394 in interest, totaling $43,143; (2) Carl was entitled to $1,3505 additional $1,102 remaining $22,376 parties. paid in toward interest, should the attorneys totaling be divided fees $2,452; equally and plus (3) between an the both Skiff argued that Carl was entitled only to the amount she paid toward attorneys fees plus interest, and Skiff should receive the remainder of the proceeds. At the end of the argument, Skiff stated he had no other additional evidence to submit to attached to advisement, the his court beyond pleading. indicating that the The affidavits court since 5 took new and the numbers exhibits he matter under were being Carl paid no more than $1,500. Skiff s hearing brief provides that Skiff accepts [Carl s] position that she paid $1,500 in attorney fees for the purpose of resolving this matter. 5 presented as to the attorneys fees, it would reflect on those numbers to determine if it had to hear evidence to modify its earlier ruling. ¶7 The trial court ruled that each party was entitled to one-half of the amount in escrow prior payments of fees. before adjustments for the It then held that each party was liable for one-half of the fee award of $37,134, amounting to $18,567 each. Next, because the Skiff family had paid $23,749 in fees, or $5,182 in excess of what they owed, the court found that amount plus interest should be deducted from Carl s share of the proceeds and $24,155. From that the court deducted $11,886 (representing the difference used between to reimburse what Carl Skiff. did and This should left have Carl with paid the $18,567 due less the $1,500 paid and the $5,182 in principal already reimbursed to Skiff). This left Carl with a total of $12,269. The remaining $55,731 of the proceeds went to Skiff. ¶8 Skiff filed a motion for rehearing pursuant to Arizona Rules of Civil Procedure ( Rules ) 59(a) and 60(c)(6), arguing he was deprived of a fair hearing and the decision was not justified by the record or evidence. The trial court denied the motion without comment. ¶9 to Skiff timely appealed. Arizona Revised Statutes We have jurisdiction pursuant ( A.R.S. ) (Supp. 2012). 6 section 12-2101(A)(1) ISSUES AND STANDARD OF REVIEW ¶10 Skiff raises four overlapping arguments on appeal. simplify his arguments, we rephrase his issues as follows: To (1) the court should have conducted an evidentiary hearing on the amounts paid to Harries; (2) the court abused its discretion in not ruling on the motion in limine to bar Carl from contesting how much the Skiff family had paid to Harries; (3) the court failed to consider the evidence presented by Skiff on how much his family paid Harries, and the division of the proceeds was not supported by the evidence; and (4) the court erred in denying his motion for rehearing. ¶11 When we review [the] facts on appeal, we do so in the light most favorable to sustaining the judgment of the court below. If there is any reasonable evidence to support that judgment, it will be sustained. State ex rel. Herman v. Lopez, 8 Ariz. App. 61, 62, 442 P.2d 884, 885 (1968). We will not disturb a trial court s ruling on the admission or exclusion of evidence unless a clear abuse prejudice resulted therefrom. of discretion is present and Kimu P. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 39, 42, ¶ 11, 178 P.3d 511, 514 (App. 2008). We also on apply the abuse of discretion standard to rulings motions in limine, Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App. 2008), motions for new trial, Delbridge v. Salt River 7 Project Agric. Improvement & Power Dist., 182 Ariz. 46, 53, 893 P.2d 46, 53 (App. 1994), and motions for relief from judgment, Staffco, Inc. v. Maricopa Trading Co., 122 Ariz. 353, 356, 595 P.2d 31, 34 (1979). abuse of discretion occurs when the trial court An exercises discretion in a manner that is either manifestly unreasonable or based on untenable grounds or reasons. Kimu P., 218 Ariz. at 42, ¶ 11, 178 P.3d at 514 (citation omitted). the trial record. court s decision for any reason We will affirm supported by the Navajo Nation v. Ariz. Dep t of Econ. Sec., 230 Ariz. 339, 344, ¶ 14, 284 P.3d 29, 34 (App. 2012). DISCUSSION A. The trial court did not abuse its discretion by failing to hold an evidentiary hearing. ¶12 Skiff argues the trial conduct an evidentiary hearing. two reasons. court erred by refusing to We reject Skiff s argument for First, Skiff opposed the holding of an evidentiary hearing below, and although the court originally granted Carl s motion, it later decided that it would not take evidence at the June 25 hearing. Skiff cannot ask the court to deny an evidentiary hearing, ultimately prevail on that, and then on appeal successfully argue the court erred in not holding such a hearing. State v. Lucero, 223 Ariz. 129, 136, ¶ 20, 220 P.3d 249, 256 (App. 2009) (stating party invites error when it fails to request evidentiary hearing and then appeals on inability to 8 present evidence at an evidentiary hearing). Second, during the June it 25 hearing, Skiff evidentiary hearing present. Skiff hearing. told the court if later held an he did not have any further evidence to therefore waived any further evidentiary See State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992). ¶13 Skiff also argues the trial court refused to consider the exhibits attached to his hearing brief. We disagree. At the non-evidentiary hearing on Carl s motion to clarify, the court explained that it wanted to find out what the issues are. During their arguments, Carl raised the issue of Skiff s lack of records, and Skiff raised the issue of laches. end of the hearing, advisement. In the its trial minute court entry took from the that At the matter under hearing, it recognized that new figures regarding attorneys fees were being presented, and noted that it would reflect on those numbers to determine if it needed to take new evidence. court appear to take into account Not only did the anything raised at the hearing, but we presume the trial court considered all factors presented. See Aguirre v. Robert Forrest, P.A., 186 Ariz. 393, 397, 923 P.2d 859, 863 (App. 1996); Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18, 97 P.3d 876, 880 (App. 2004) (stating that even if the court does not explicitly 9 provide a reason for its judgment, we presume it considered all of the relevant evidence before issuing a decision). B. The trial court did not err by failing to rule on Skiff s motion in limine. ¶14 rule Skiff argues that the trial court erred by failing to on his motion in limine prior to the June hearing. Specifically, Skiff argues that the trial court s refusal to even consider the issues raised in his motion was an abuse of discretion. ¶15 We disagree. Skiff filed a motion in limine arguing that Carl s motion for an evidentiary hearing was a ruse to discuss a new issue of whether Skiff was entitled only to proceeds paid to Harries that he could actually prove. Since the trial court cancelled motion the evidentiary hearing, the in limine was moot. ¶16 Nor can we agree that the trial court ignored Skiff s laches argument. Skiff argued at the hearing that Carl was precluded by laches from contesting how much the Skiff family had paid in attorneys fees. The court indicated it would take everything under advisement. Although the court never expressly addressed the laches argument, we assume it evaluated all relevant factors and made any necessary findings to support its ruling. Aguirre, 186 Ariz. at 397, 923 P.2d at 863. Given the holding in the trial court, the laches argument is deemed denied 10 as a matter of law. See Dowling v. Stapley, 221 Ariz. 251, 264, ¶ 39, 211 P.3d 1235, 1248 (App. 2009) (stating but declining to apply rule that motions pending when the court enters a final order or judgment are deemed denied as a matter of law). ¶17 Nor do we conclude that laches barred Carl s argument on the amount of fees paid to Harries. Laches is the equitable counterpart of a statute of limitations. A claim is considered unenforceable in an action in equity where, under the totality of circumstances, the claim, by reason of delay in prosecution, would produce an unjust result. 409, 410 n.2, ¶ 2, 973 P.2d Harris v. Purcell, 193 Ariz. 1166, 1167 n.2 (1998). To constitute laches there must be a lack of diligence on the part of the plaintiff and resulting injury to the defendant. Equity does not encourage laches, and the doctrine may not be invoked to defeat justice but only to prevent injustice. Razo, 163 Ariz. 505, 507, 788 P.2d 1256, 1258 Beltran v. (App. (internal citation omitted). In order to bar a claim on the basis of laches, a court must find more than mere delay in the assertion of the claim. The delay must be unreasonable under the circumstances, including the party s knowledge of his or her right, and it must be shown that any change in the circumstances caused by the delay has resulted in prejudice to the other party sufficient to justify denial of relief. 11 1990) Cyprus Bagdad Copper Corp. v. Ariz. Dep t of Revenue, 196 Ariz. 5, 8, ¶ 9, 992 P.2d 5, 8 (App. 1999) (internal quotation marks and citation omitted). ¶18 Skiff s argument on laches fails. The trial court awarded attorneys fees in the underlying proceeding in 2002, and the judgment became a lien on the property. This issue remained open and pending until the property was sold in 2010 and the proceeds were placed in a trust account to be disbursed upon mutual agreement of the parties. Skiff knew the amount of fees paid might be an issue as early as 2004 when he wrote to Carl stating it was no one s business how much Eleanor paid Harries, and that if anyone wanted to find out they could pay the costs to retrieve the bank records. Skiff also knew the amount of fees was at issue because in 2004 Carl had filed a partial satisfaction of judgment, reflecting that Gilberta had paid $22,617 of the fee award. issue was still unresolved See supra n.3. Because the in 2004, Carl s delay in seeking proof of the full amount paid until the proceeds became ready for disbursement was not unreasonable. Since Skiff knew there was an issue as early as 2004 as to how much Harries had been paid, it was his duty to preserve the records to protect his interests. the benefit It would be inequitable to allow Skiff to receive of collecting an unsubstantiated amount for an alleged lump sum payment after failing to protect his claim by 12 preserving Eleanor s bank records. See Del E. Webb Hotel Co. v. Bentley, 8 Ariz. App. 408, 411, 446 P.2d 687, 690 (1968) ( [T]he burden of proof in any subrogation claim is upon the would-be subrogee. ); Hosp., 657 subject to see So. the also 2d A. Copeland 1292, 1297 general (La. rules Enters. 1995) that v. Slidell Mem l ( [Subrogation] govern the proof is of obligations. ). C. The trial court s findings were supported by evidence in the record. ¶19 Skiff next argues that the trial court s findings were not supported by the evidence or the record. Skiff does not appeal determine the methodology the allocation of the proceeds. court used to the Rather, Skiff argues that the trial court abused its discretion in finding the parties stipulated to any amounts paid Harries and appears to argue that more was paid to Harries than awarded by the underlying judgment. We disagree. ¶20 First, while there is no formal stipulation by the parties to the amount of fees paid to Harries, we will affirm the court because the record supports its ultimate determination of how much the Skiff family paid to Harries. Navajo Nation, 230 Ariz. at 344, ¶ 14, 284 P.3d at 34 (stating that we will affirm the trial court for any reason supported by the record). Contrary to Skiff s attempt to prove Harries was paid more than 13 provided for in the judgment, Skiff conceded as late as December 2011 in his response to Carl s motion to clarify the judgment, that the total amount of fees due to Harries was $37,134. is consistent with the request for fees and the That underlying judgment.6 ¶21 Second, the court did not err in concluding the only amount that the Skiff family paid to Harries was $23,749. Skiff admitted that at one point the Skiff family had paid Harries $23,749, but that was prior to Eleanor s lump sum settlement payment which included additional judgment and fee award was signed. costs and fees after the While Skiff tried to show that the Skiff family paid more than $23,785 to Harries, he relied on fragments of bills Harries sent to Eleanor, Skiff, and Carl at or around the time of the judgment and costs and fees after the judgment. Those bills show the Skiff family only paying $8,716, Carl paying $1,100, and $13,472 as being paid without attribution to any of the parties. Even Skiff s attempt to summarize the fees paid to Harries showed only the Skiff family paying approximately $22,499. 6 In his hearing brief, Skiff contended that the total owed to Harries was over $43,000, based apparently on time slips. However, that summary of time slips has no foundational basis. Moreover, Skiff ignores that the billing slips do not take into account that Harries reduced some of his fees, nor did Skiff present any evidence that Carl had agreed to pay any additional fees. 14 ¶22 using Given this evidence, the trial court did not err in the only verified the payments Skiff that family the paying parties agreed $23,749 and could Carl be paying $1,500. D. The trial court did not abuse its discretion by denying Skiff s motion for rehearing. ¶23 motion Skiff for argues the rehearing. We trial court disagree. erred Each by of denying the his arguments supporting Skiff s motion for new trial and motion for relief from judgment were based on grounds discussed above.7 reasons already set forth, no error has been For the shown. Accordingly, the trial court did not abuse its discretion in denying Skiff s motion for new trial and motion for relief from judgment. 7 Skiff argues that the trial should have granted him a new trial because: (1) the irregularities in the trial court s procedures, including its failure to hold an evidentiary hearing or rule on his motion in limine prior to the June hearing, deprived him of a fair trial; (2) the court erred in rejecting his evidence pertaining to the lump sum payment his family made; and (3) the decision was not justified by the evidence, based upon unsupported findings of fact, and contrary to applicable law. 15 CONCLUSION ¶24 For the foregoing reasons, we affirm the trial court s judgment and the denial of Skiff s motion for rehearing. /s/ DONN KESSLER, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ PATRICIA K. NORRIS, Judge 16

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