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Orosco v. Maricopa County Special Health Care District

Court of Appeals of Arizona, First Division

February 2, 2017

BRANDON OROSCO and JENNIFER OROSCO, husband and wife, individually, and as parents and next friends of KAYLEN OROSCO, MARISSA OROSCO, and SILAS OROSCO, Plaintiffs/Appellees,
v.
MARICOPA COUNTY SPECIAL HEALTH CARE DISTRICT, a body politic for and dba MARICOPA INTEGRATED HEALTH SYSTEM, Defendant/Appellant.

         Appeal from the Superior Court in Maricopa County No. CV2012-004724 The Honorable John Christian Rea, Judge

         AFFIRMED IN PART; VACATED AND REMANDED IN PART

          Harris Powers & Cunningham PLLC, Phoenix By Frank I. Powers Counsel for Plaintiffs/Appellees

          Slattery Petersen PLLC, Phoenix By Elizabeth A. Petersen Counsel for Defendant/Appellee

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.

          OPINION

          JOHNSEN, Judge

         ¶1 Brandon Orosco and his family sued the Maricopa County Special Health Care District, alleging medical malpractice. They made two offers of judgment pursuant to Arizona Rule of Civil Procedure 68. The jury's verdict in their favor exceeded both offers of judgment. We hold the superior court did not err in imposing sanctions calculated from the date of the first offer of judgment. We also affirm the court's order taxing the costs of service of process.[1]

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 The Oroscos served an offer of judgment of $3, 950, 000 on December 13, 2013. On September 27, 2014, they served another offer of judgment for $3, 949, 999. The District did not accept or object to either offer. After the jury rendered a verdict of $4.25 million and found the District 99% at fault, the Oroscos requested sanctions under Rule 68(g) calculated from the date of the first offer.[2] The superior court rejected the District's argument that sanctions were available under Rule 68 only from the date of the second offer, and awarded sanctions of prejudgment interest from the date of the first offer of judgment and $147, 441.33 in expert witness fees and double taxable costs incurred after the date of the first offer.

         ¶3 We have jurisdiction over the District's timely appeal pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-2101(A)(1), (5)(a) (2017) and -2102(B) (2017).[3]

         DISCUSSION

         A. Sanctions Under Rule 68(g).

         ¶4 We review de novo legal issues arising under Rule 68. See Levy v. Alfaro, 215 Ariz. 443, 444, ¶ 6 (App. 2007). We begin with the plain language of the rule. See Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005).

         ¶5 Rule 68(g) provides that if an offeree rejects an offer of judgment and "does not obtain a more favorable judgment, " the offeree must pay sanctions of reasonable expert witness fees and double taxable costs incurred after making the offer, and prejudgment interest on unliquidated claims accruing from the date of the offer. Rule 68(h)(2) provides that "[a] rejected offer does not preclude a later ...


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