Fisher v. Edgerton

• Decision Date: 30 September 2014
• Docket Number: No. 1 CA–CV 13–0428.,1 CA–CV 13–0428.
• Citation: 236 Ariz. 71,336 P.3d 167,696 Ariz. Adv. Rep. 22
• Parties: Susan M. FISHER, Appellant, v. Amy L. EDGERTON, Appellee.
• Court: Arizona Court of Appeals

236 Ariz. 71

336 P.3d 167

696 Ariz. Adv. Rep. 22

Susan M. FISHER, Appellant

v.Amy L. EDGERTON, Appellee.

No. 1 CA–CV 13–0428.

Court of Appeals of Arizona, Division 1.

Sept. 30, 2014.

DeCiancio Robbins, PLC, by Christopher Robbins and Joel DeCiancio, Tempe, Counsel for Appellant.

Dickinson Wright/Mariscal Weeks, PLLC by Timothy J. Thomason, Phoenix, Counsel for Appellee.

Judge DONN KESSLER delivered the decision of the Court, in which Presiding Judge KENTON D. JONES and Judge MARGARET H. DOWNIE joined.

OPINION

KESSLER, Judge.

¶ 1 Appellant Susan M. Fisher appeals the superior court's award of attorneys' fees, expert witness fees, and taxable costs pursuant to Arizona Rule of Civil Procedure (“Rule”) 77(f) against Fisher in favor of her co-defendant, Appellee Amy L. Edgerton. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 After a three-car, rear-end accident, the plaintiff alleged that Fisher and Edgerton, who were driving separate vehicles behind her, were at fault. After compulsory arbitration proceedings, the arbitrator determined Fisher was 100% at fault and awarded plaintiff $29,653.70 and taxable costs in the amount of $499 against Fisher.

¶ 3 Fisher filed a notice of appeal seeking trial de novo in the superior court naming both the plaintiff and Edgerton. See Ariz. R. Civ. P. 77(a), (c). After a four-day trial, a jury determined Fisher was entirely at fault for the accident, but awarded the plaintiff only $20,000 in damages against Fisher.

¶ 4 Pursuant to Rules 77(f) and 54(g), Edgerton applied for attorneys' fees and costs against Fisher. Fisher opposed the motion, arguing that Edgerton's remedy was against the plaintiff because “Edgerton was brought into this case by the Plaintiff .... [and] alleged to be comparatively at fault by the Plaintiff.” Relying upon Valler v. Lee, 190 Ariz. 391, 949 P.2d 51 (App.1997), and Orlando v. Superior Court, 194 Ariz. 96, 977 P.2d 818 (App.1998), Fisher maintained she “did not have the option of not appealing against Defendant Edgerton [because] Plaintiff named Edgerton as a Defendant alleging a claim that required compulsory joinder.” Fisher also asserted if Rule 77 requires her to pay Edgerton's fees and costs even though the result of trial was 23% or more favorable to Fisher than arbitration, it would chill the right to trial de novo and therefore be unconstitutional in violation of Article 2, Section 23, of the Arizona Constitution.

¶ 5 The superior court awarded Edgerton nearly $16,000 against Fisher, including approximately $12,160 in attorneys' fees, $1942 in expert witness fees, and $1223 in taxable costs. Fisher timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12–2101(A)(1) (Supp. 2013).

DISCUSSION

I. Issues and Standard of Review

¶ 6 Fisher first contends the award violates the language and spirit of Rule 77. More specifically, she argues she is not subject to an award of fees and costs because she did more than 23% better on appeal based on the lower amount of damages awarded the plaintiff. Alternatively, she argues she had to appeal from the entire arbitration award, and if anyone is liable for fees and costs, it should be the plaintiff who filed an unwarranted claim against Edgerton and did not seek to dismiss her claims against Edgerton at trial. Second, Fisher argues awarding fees here violates several constitutional rights. The award allegedly violates due process because she did not have fair notice about the amount of fees she might face by appealing the arbitration award. Additionally, the award allegedly violates equal protection because there is no rational basis to award attorneys' fees against someone who only causes minor damage and is subject to Rule 77 arbitration compared to someone who causes more damage and is not subject to Rule 77 arbitration and such an award. She also argues the award chills her fundamental right to appeal and have a jury trial.

¶ 7 We review issues of statutory or rule construction de novo. State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 109, ¶ 19, 290 P.3d 1226, 1232 (App.2012) ; State v. Sanders, 205 Ariz. 208, 217, ¶ 38, 68 P.3d 434, 443 (App.2003). If the language of the statute or rule is clear, we apply that language as the best indicator of the drafters' intent. Mathis, 231 Ariz. at 109, ¶ 19, 290 P.3d at 1232 ; Sanders, 205 Ariz. at 217, ¶ 38, 68 P.3d at 443. If the language is ambiguous, we turn to other factors to discern the drafters' intent. Mathis, 231 Ariz. at 109–10, 119, 290 P.3d at 1232–33. We also review constitutional issues de novo. In re Estate of Snure, 234 Ariz. 203, 204, ¶ 5, 320 P.3d 316, 317 (App.2014). We presume Arizona statutes and rules are constitutional unless the plaintiff can rebut that presumption beyond a reasonable doubt. Niehaus v. Huppenthal, 233 Ariz. 195, 197, ¶ 5, 310 P.3d 983, 985 (App.2013). When a statute is challenged on its face on equal protection grounds, the plaintiff must show that it would be invalid under all circumstances. Hernandez v. Lynch, 216 Ariz. 469, 472, ¶ 8, 167 P.3d 1264, 1267 (App.2007).

II. Rule 77(f) and A.R.S. § 12–133

¶ 8 Rule 77 is derived from A.R.S. § 12–133 (Supp.2013) and governs the right of appeal from compulsory arbitration proceedings. As relevant here, Rule 77(f) provides, “If the judgment on the trial de novo is not more favorable by at least twenty-three percent (23%) than the monetary relief, or more favorable than the other relief, granted by the arbitration award ... the court shall order ... that the appellant pay” the appellee's taxable costs and reasonable attorneys' fees and expert witness fees. See also A.R.S. § 12–133(1).¹

¶ 9 Fisher argues the award to Edgerton is contrary to the express language, purposes, and spirit of the Rule. Fisher first contends she could only appeal from the entire award and since she did at least 23% better on damages, she should not be subject to a fee award under Rule 77.² We disagree.

¶ 10 Although Fisher is correct she could only appeal from the entire award, including the arbitrator's finding Edgerton was not liable, this does not preclude an award of attorneys' fees and costs against Fisher, who actively and unsuccessfully litigated in the superior court that Edgerton was liable. When there are allegations that multiple defendants may be comparatively at fault and the arbitrator finds one defendant entirely at fault, any appeal from that award by the unsuccessful defendant is from the entire award unless the parties stipulate the successful co-defendant can be dismissed from the action on appeal. The purpose of this approach is to have the entire case, including the comparative fault contentions, tried together in the superior court. Valler, 190 Ariz. at 395, 949 P.2d at 55 (“[W]hen a trier [of fact] is likely to assess fault against at least one if not both of the defendants and find in favor of plaintiff ... a single trial of all issues is ... envisioned by Arizona's comparative fault statute, [A.R.S.] § 12–2506(C) [ (2003) ], which provides in part: ‘The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact. ’ ”).³

¶ 11 We disagree with Fisher that Rule 77 exempts an appealing defendant from having to pay a successful co-defendant's reasonable attorneys' fees when the appealing defendant unsuccessfully attempts to shift fault to the co-defendant. We reject Fisher's argument that because Rule 77(f) only refers to an appellant (Fisher) obtaining a 23% more favorable judgment at the trial de novo, the express language of Rule 77(f) bars an award of fees to a co-defendant (Edgerton). Fisher ignores that Rule 77(f) also provides that fees shall be awarded if the judgment after the trial de novo is not “more favorable than the other relief, granted by the arbitration award.” Because only monetary claims are subject to compulsory arbitration, Ariz. R. Civ. P. 72(b), we interpret the term “other relief” in Rule 77(f) to include comparative fault determinations between or among multiple defendants when the appealing defendant unsuccessfully seeks to shift a percentage of fault in the award to a co-defendant. In cases such as this, where Fisher actively sought to reduce her allocation of fault by shifting fault to Edgerton, the two co-defendants are adverse parties regarding comparative fault and, if the appealing defendant cannot shift at least 23% more of the liability to her co-defendant, Rule 77(f) expressly requires an award of reasonable attorneys' fees and costs.⁴ See Yoon v. Keeling, 91 Wash.App 302, 956 P.2d 1116, 1117 (1998) (holding that defendant appealing arbitration was required to pay co-defendant's attorneys' fees because defendant unsuccessfully sought to shift fault to co-defendant at trial de novo after which defendant was found to have a higher percentage of fault even though defendant's total liability was less than the arbitration award due to a settlement with plaintiff).

¶ 12 Fisher does not dispute Edgerton's assertion that Fisher actively sought to shift fault to Edgerton both in the arbitration and at the trial de novo. This is confirmed by the parties' pre-trial statement. As a result, from Edgerton's perspective, Fisher was an adverse party as to liability and Edgerton was successful at the trial de novo because the jury found Fisher completely at fault. Thus, Fisher's failed effort to shift some percentage of the liability to Edgerton entitled Edgerton to a Rule 77(f) award of fees and costs. Fisher's argument may have more force when an appealing defendant does not seek to shift liability to a co-defendant, but that is not the issue before us.⁵ The sole issue before us is whether Rule 77(f) applies between multiple defendants when the appealing defendant unsuccessfully tries to shift comparative fault to the appellee defendant at the trial de novo.

¶ 13 Fisher's argument that no...