Motzer v. Escalante

265 P.3d 1094, 228 Ariz. 295, 622 Ariz. Adv. Rep. 42, 2011 Ariz. App. LEXIS 196
CourtCourt of Appeals of Arizona
DecidedNovember 22, 2011
Docket2 CA-CV 2011-0078
StatusPublished
Cited by19 cases

This text of 265 P.3d 1094 (Motzer v. Escalante) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Motzer v. Escalante, 265 P.3d 1094, 228 Ariz. 295, 622 Ariz. Adv. Rep. 42, 2011 Ariz. App. LEXIS 196 (Ark. Ct. App. 2011).

Opinion

OPINION

HOWARD, Chief Judge.

¶ 1 Appellant Robin Motzer appeals from the trial court’s determination of costs and attorney fees after a jury trial in an action between Motzer and appellees Louis and Lori Escalante. Motzer contends the eoui’t abused its discretion by denying her request for attorney fees, as well as certain requested costs. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

¶2 The underlying facts are undisputed. Motzer sued the Escalantes for breach of contract and unjust enrichment arising out of a home remodeling project, and the Esca-lantes filed several counterclaims. The trial court subsequently dismissed Motzer’s breach of contract claim and three of the Escalantes’ claims because Motzer was not a licensed contractor as required by statute. After a trial, the jury awarded Motzer $10,980.80 on her unjust enrichment claim but awarded the Escalantes $5,075 for their counterclaim of negligent misrepresentation.

¶3 After a hearing on attorney fees and costs, the trial court issued a judgment in which it found Motzer to be the successful party for purposes of costs. The court awarded Motzer some, but not all, of her requested costs and did not award either party attorney fees. This appeal followed.

Attorney Fees

¶ 4 Motzer argues the trial court abused its discretion by denying her request for attorney fees. We review the grant or denial of attorney fees for an abuse of discretion. Ahwatukee Custom Estates Mgmt. Ass’n, Inc. v. Turner, 196 Ariz. 631, ¶ 5, 2 P.3d 1276, 1279 (App.2000).

¶ 5 Section 12-341.01, A.R.S., states that “the court may award the successful party reasonable attorney fees” in an “action arising out of a contract.” 1 First, the trial court must determine which party was successful and then whether attorney fees should be awarded. See Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App.1994). However, there is no presumption that a successful party should be awarded attorney fees under § 12-341.01. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 569, 694 P.2d 1181, 1183 (1985). Instead, the court has broad discretion to consider a variety of factors set forth in Associated Indemnity, including the merits of the defense by the unsuccessful party, whether the parties could have settled, whether the successful party prevailed as to all relief and whether awarding attorney fees would “discourage other parties with tenable claims.” 143 Ariz. at 570, 694 P.2d at 1184. We will uphold the court’s ruling if there is “any reasonable basis for the decision.” State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, ¶ 27, 963 P.2d 334, 340 (App. 1998).

¶ 6 Here, the trial court stated that it had considered “the totality of the case,” including a reasonable settlement offer by the Es-calantes, the fact that neither party proposed mediation or a settlement conference and that both parties had prevailed in part. Furthermore, the parties argued before the court whether the denial of the award of attorney fees would discourage future plaintiffs in bringing the lawsuit. All of these are factors the court correctly may consider in exercising its discretion whether or not to award fees to the successful party under Associated Indemnity, 143 Ariz. at 570, 694 P.2d at 1184. Because the court had a reasonable basis for its decision not to grant attorney fees, it did not abuse its discretion. See State Farm Mut. Auto. Ins. Co., 192 Ariz. 255, ¶ 27, 963 P.2d at 340.

¶7 Motzer, however, contends the trial court erred because it applied different stan *297 dards in determining the successful party for purposes of costs and attorney fees. But the court could find Motzer was the successful party and still deny fees under the Associated Indemnity factors. Those factors apply in determining whether a court will exercise its discretion to grant a successful party attorney fees rather than in determining which party is successful. Associated Indem., 143 Ariz. at 570, 694 P.2d at 1184. Thus, the court did not use different standards to determine the successful party for costs and attorney fees but rather exercised its discretion to deny Motzer’s request for attorney fees.

¶ 8 Motzer further relies on an unpublished memorandum decision of this court both to request this court publish any decision requiring a trial court to “explicitly lay out its basis” for a decision on attorney fees and to support a further argument. “Memorandum decisions shall not be regarded as precedent nor cited in any court” in the absence of specific circumstances including that this court may consider whether to publish a decision as an opinion. Ariz. R. Civ. App. P. 28(e). Because the trial court here orally relied on the Associated Indemnity factors, we need not consider imposing any further requirement that a court explain its reasoning. And we will not consider Motzer’s other argument, as it is grounded solely in a memorandum decision. See Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 27, 122 P.3d 6, 14 (App.2005).

Costs

¶ 9 Motzer also argues the trial court erred by only awarding a portion of her costs, contending her expenses for “deposition-related costs” and jury notebooks were taxable costs. We review de novo whether certain expenses are taxable costs. Foster ex rel. Foster v. Weir, 212 Ariz. 193, ¶ 5, 129 P.3d 482, 484 (App.2006).

¶ 10 Generally, “the parties to a civil proceeding are responsible for their own litigation expenses” unless a statute provides otherwise. Id. ¶ 4. Under AR.S. §§ 12-341 and 12-332(A), a successful party may recover certain taxable costs including the “[e]ost of taking depositions” and “[ojther disbursements that are made or incurred pursuant to an order.”

Deposition costs

¶ 11 Motzer requested $404.10 for transcription and $40 for photocopies of transcripts from the Escalantes’ depositions of Motzer and of her expert witness. Costs of taking a deposition may include expenses such as those incurred photocopying the transcript. State ex rel. Corbin v. Ariz. Corp. Comm’n, 143 Ariz. 219, 230, 693 P.2d 362, 373 (App.1984). Because the costs of taking a deposition include such necessary, associated costs, the trial court erred in failing to award Motzer $444.10 for the transcription and photocopies of the deposition. See Foster, 212 Ariz. 193, ¶ 5, 129 P.3d at 484.

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Bluebook (online)
265 P.3d 1094, 228 Ariz. 295, 622 Ariz. Adv. Rep. 42, 2011 Ariz. App. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/motzer-v-escalante-arizctapp-2011.