Hugo REYES, Plaintiff/Appellee/Cross-Appellant, v. FRANK‘S SERVICE AND TRUCKING, LLC, an Arizona limited liability company, Defendant/Appellant/Cross-Appellee.
No. 1 CA-CV 13-0028
Court of Appeals of Arizona, Division 1
Sept. 16, 2014
334 P.3d 1264
Appellees are not a prevailing party, and therefore are not entitled to an award of fees pursuant to either
CONCLUSION
¶39 For the reasons discussed above, we conclude the County exercised its discretion under
Shultz & Rollins, Ltd. By Silas H. Shultz and Michael F. Rollins, Tucson, Co-Counsel for Plaintiff/Appellee/Cross-Appellant.
Jardine Baker Hickman & Houston, PLLC By Kendall D. Steele, Phoenix, Co-Counsel for Defendant/Appellant/Cross-Appellee.
Melinda K. Cekander, PLLC By Melinda K. Cekander, Flagstaff, Co-Counsel for Defendant/Appellant/Cross-Appellee.
Judge MARGARET H. DOWNIE delivered the Opinion of the Court, in which Presiding Judge KENT E. CATTANI and Judge MICHAEL J. BROWN joined.
OPINION
DOWNIE, Judge.
¶1 A jury trial resulted in a verdict against defendant Frank‘s Service and
FACTS AND PROCEDURAL BACKGROUND
¶2 Silva and Reyes were driving tractor/trailer rigs when they collided on an interstate highway in California. According to Silva, he was moving forward on the shoulder and signaling his entry onto the freeway from an “Emergency Parking Only” area when Reyes struck him from behind. Reyes contended Silva pulled into the through lane of travel quickly, leaving him no time to change lanes. Reyes was injured in the accident and incurred medical expenses in excess of $150,000.
¶3 In November 2011, FST made an offer of judgment to Reyes for $200,001.00. Reyes did not respond to the offer. The jury‘s August 2012 verdict set Reyes‘s damages at $370,000. Jurors, however, found that Reyes was 49% at fault, thereby reducing his recovery to $188,700.
¶4 During post-trial proceedings, Reyes claimed taxable costs exceeding $30,000, more than half of which he incurred before FST made its offer of judgment. The trial court ruled that Reyes was entitled to recover $32,052.12 in taxable costs and denied FST‘s request for Rule 68 sanctions. The final judgment awarded Reyes $188,700 in damages and $32,052.12 in taxable costs.
¶5 FST filed a timely notice of appeal, and Reyes filed a timely cross-appeal. We have jurisdiction pursuant to
DISCUSSION
I. FST‘s Appeal
A. Taxable Costs
¶6 “A party to a civil action cannot recover its litigation expenses as costs without statutory authorization.” Schritter v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391, 392, ¶ 6, 36 P.3d 739, 740 (2001). Taxable costs are identified in
A. Costs in the superior court include:
- Fees of officers and witnesses.
- Cost of taking depositions.
- ...
- Other disbursements that are made or incurred pursuant to an order or agreement of the parties.
Whether a particular expenditure qualifies as a taxable cost is a question of law that we review de novo. Foster v. Weir, 212 Ariz. 193, 195, ¶ 5, 129 P.3d 482, 484 (App.2006).
1. Deposition Expenses
a. In-State Depositions
¶7 FST contends the trial court improperly awarded Reyes expenses his Tucson attorneys incurred attending in-state depositions. We conclude otherwise.
¶8 “Section 12-332 does not specify which litigation expenses are taxable as costs of taking depositions.” Schritter, 201 Ariz. at 392, ¶ 9, 36 P.3d at 740 (holding that fees a party pays his own expert witness for deposition testimony are not recoverable as taxable costs). Our appellate courts, though, have construed the statute as permitting the recovery of “fees for the court reporter and transcripts, reasonable travel expenses for attorneys and court reporters attending the deposition, and costs of copies of deposition
¶9 In DeMontiney v. Desert Manor Convalescent Center, this Court considered a claim for travel expenses that Phoenix attorneys incurred in attending depositions in Yuma. 144 Ariz. 21, 29, 695 P.2d 270, 278 (App.1984), vacated in part on other grounds, 144 Ariz. 6, 695 P.2d 255 (1985). We upheld the trial court‘s characterization of those expenses as taxable costs under
¶10 We also disagree with FST‘s reliance on Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 224 P.3d 230 (App.2010). The trial court in Bennett awarded certain costs that this Court deemed improper under
[F]ew of the taxable costs charged ... meet the definition in
§ 12-332(A) . There are some costs for the taking of depositions, but their totals fall far short of the awards. Travel costs related to the taking of depositions outside Arizona and photocopies of deposition records have been determined to be taxable costs. However, the record does not adequately reflect whether any of the photocopying charges were for this purpose, nor does it appear that any of the depositions were taken outside of Arizona. Most of the costs awarded are for ineligible expenses such as photocopies, facsimiles, shipping, and travel expenses.
¶11 Bennett does not mention DeMontiney, and to the extent the above-quoted excerpt may be read as inferentially holding that in-state deposition expenses are not taxable costs, we disagree. The legislature has decreed that taxable costs include the “[c]ost of taking depositions.”
¶12
¶13 Nor did the trial court err by awarding Reyes costs associated with the depositions of David Hanpeter and Eric Shumaker. Hanpeter, a trauma doctor who treated Reyes after the collision, and Shumaker, the investigating California Highway Patrol Officer, were independent fact witnesses. They were neither experts retained by Reyes nor witnesses with whom Reyes had any affiliation beyond involuntary, emergency contact immediately after the collision. FST‘s reliance on Young‘s Market Co. v. Laue, 60 Ariz. 512, 141 P.2d 522 (1943), is misplaced. That case stands for the proposi-tion
¶14 FST also disputes the methodology Reyes used for calculating counsel‘s mileage to and from depositions. We agree that Reyes‘s methodology (deducting the cost of gas from the amount derived from the standard mileage rate, then adding the cost of gas back in) is odd. But FST does not contend the expenses would have been less had Reyes used its suggested approach, and Reyes‘s calculations reflect that the amounts would have been the same. Under these circumstances, we find no error in awarding the requested mileage expenses.
b. Interpreter Expenses
¶15 FST contends the trial court improperly characterized the fee for an interpreter who translated at two depositions as a “witness fee” under
¶16 We will affirm the trial court‘s decision if it is correct for any reason. Ariz. Bd. of Regents ex rel. Univ. of Ariz. v. State ex rel. Ariz. Pub. Safety Ret. Fund Manager Admin., 160 Ariz. 150, 154, 771 P.2d 880, 884 (App.1989). This Court has previously held that various ancillary deposition expenses qualify as taxable costs under
¶17 We disagree with the trial court‘s ruling that the interpreter functioned as a witness under
c. Video-Recorded Depositions
¶18 FST next challenges Reyes‘s ability to recover costs incurred in video-recording depositions, arguing “no Arizona statute, rule or opinion holds that the cost of videotaping depositions (or obtaining copies of the videotapes) is a taxable cost.”
¶19
¶20 Expenses associated with properly noticed video-recorded depositions are
¶21 It is clearly appropriate for a litigant to obtain either a transcript of a deposition or a video recording of that same deposition. But when a party has chosen to incur expenses for both stenographic and video recording of a deposition, the trial court must determine the reasonableness and necessity of those expenses on a case-by-case basis.
¶22 In the context of a deposition transcript, it is well-established that the dispositive inquiry is not whether the transcript was actually used. See In re Nelson, 207 Ariz. 318, 325, 86 P.3d 374, 381 (2004) (“In Arizona the cost of taking a deposition is a taxable cost if it was taken in good faith, even though the deposition is not used.“); White v. Frye, 27 Ariz. 447, 451, 234 P. 34, 35 (1925) (interpreting predecessor statute and holding that failure to use a deposition does not “affect the right to costs, unless it appears it was not taken in good faith“); State ex rel. Corbin v. Ariz. Corp. Comm‘n, 143 Ariz. 219, 229, 693 P.2d 362, 372 (App.1984) (“[T]he fact that the depositions were ultimately not used is not dispositive.“). By logical extension, a party that seeks to recover the cost of video-recording a deposition need not establish that the recording was actually used in later proceedings. But when a party opts for both a transcript and a video and later seeks to make an opponent financially liable for that election via a request for taxable costs, the necessity and reasonableness of both modes of preservation is a question for the trial court to resolve. In that context, actual use may be a relevant consideration. Other pertinent factors include whether the opposing party objected to both methods of memorializing the deposition, whether the objecting party also purchased both a transcript and video recording, the need for both for appellate purposes, and any witness-specific issues that made dual modes of preservation prudent.
¶23 We hold that a party is presumptively entitled to recover taxable costs associated with either a deposition transcript/court reporter or a deposition video/videographer. Based on an individualized determination of reasonableness and necessity, however, a trial court has the discretion to award costs for both.
¶24 The trial court here awarded Reyes costs for written transcripts and video recordings of several depositions. We cannot determine the reasonableness of and necessity for both modes of preservation based on the record before us. We therefore vacate the amounts awarded to Reyes for video-recording depositions that were also transcribed by a court reporter and remand that issue to the trial court for reconsideration based on the standards enunciated herein.
d. No-Show Expenses
¶25 California Highway Patrol Officer Shumaker did not appear for his deposition in June 2012, though FST concedes Reyes subpoenaed him. Reyes‘s counsel incurred $609.75 in expenses associated with traveling to the scheduled deposition in California and $510 in cancellation charges by the court reporting firm. Additionally, on the date of Dr. Hanpeter‘s scheduled deposition, he telephoned to advise he was running late. The parties agreed to reschedule the deposition for the following day. The court reporter charged a $161.00 no-show fee.
¶26 The trial court did not err by awarding Reyes the costs associated with these no-show
2. Mediation Fee
¶27 FST contends the trial court improperly awarded Reyes his share of private mediation expenses. The court relied on
¶28 In their joint pretrial conference memorandum, the parties agreed to “attend private mediation by August 7, 2009.” They did not specify how the mediation costs would be treated at the conclusion of the litigation, but FST‘s reply brief acknowledges that the parties agreed to share the expense initially.
¶29 We agree with the trial court that the relevant inquiry under the statute is whether the parties agreed to incur the costs, not whether they reached a specific agreement about how the costs would ultimately be classified. The record here supports the finding that “the Parties reached an agreement as to ‘incurring’ the [mediation] costs in question.” Under these circumstances, the costs were properly awarded under
B. Offer of Judgment
¶30 We review FST‘s assertion it was entitled to Rule 68(g) sanctions de novo. Bradshaw v. Jasso-Barajas, 231 Ariz. 197, 199, ¶ 5, 291 P.3d 991, 993 (App.2013).
If the offeree rejects an offer and does not later obtain a more favorable judgment other than pursuant to this Rule, the offeree must pay, as a sanction, reasonable expert witness fees and double the taxable costs, as defined in
A.R.S. § 12-332 , incurred by the offeror after making the offer and prejudgment interest on unliquidated claims to accrue from the date of the offer. If the judgment includes an award of taxable costs or attorneys’ fees, only those taxable costs and attorneys’ fees determined by the court as having been reasonably incurred as of the date the offer was made shall be considered in determining if the judgment is more favorable than the offer.
¶31 Even if the trial court rules on remand that Reyes is not entitled to recover any expenses associated with video-recording depositions, the net damages award, coupled with taxable costs Reyes had incurred as of the date of the offer of judgment, will still exceed FST‘s offer of judgment. We therefore affirm the denial of FST‘s request for Rule 68(g) sanctions.
II. Reyes‘s Cross-Appeal
¶32 Reyes cross-appeals from the trial court‘s refusal to give a requested jury instruction regarding negligence per se. We review the denial of a jury instruction for an abuse of discretion. Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 409, ¶ 21, 207 P.3d 654, 662 (App.2008).
¶33 Reyes asked the trial court to instruct jurors regarding negligence per se based on
¶34 Negligence per se applies when a person violates a specific legal requirement. Hutto v. Francisco, 210 Ariz. 88, 91, ¶ 12, 107 P.3d 934, 937 (App.2005). The statute “must proscribe certain or specific acts.... Therefore, if a statute defines only a general standard of care ... negligence per se is inappropriate.” Id. at 114 (internal quotation marks omitted).
¶35
CONCLUSION
¶36 We vacate the trial court‘s award of costs for video-recording depositions that were also transcribed by a court reporter, subject to reconsideration on remand. We affirm the remaining cost awards. We also affirm the denial of FST‘s request for sanctions under Rule 68(g) and deny relief under the cross-appeal. We award Reyes his taxable costs on appeal upon compliance with ARCAP 21.
MARGARET H. DOWNIE
JUDGE