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Fisher v. Edgerton

Court of Appeals of Arizona, First Division

September 30, 2014

SUSAN M. FISHER, Appellant,

Appeal from the Superior Court in Maricopa County. No. CV2011-091831. The Honorable David O. Cunanan, Judge.

Page 168

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

Dickinson Wright/Mariscal Weeks, PLLC, Phoenix, By Timothy J. Thomason, 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.


Page 169

[236 Ariz. 73] 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.


[¶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 [236 Ariz. 74] the

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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).


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, ¶ 19, 290 P.3d at 1232-33. We also review constitutional issues de novo. In re Estate of Snure, 234 Ariz. 203, 205, ¶ 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(I).[1]

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[236 Ariz. 75] [¶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 ...

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