Perez v. Perez ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PAUL PEREZ, Plaintiff/Appellee,
v.
HELENA PEREZ, Defendant/Appellant.
No. 1 CA-CV 21-0341
FILED 2-3-2022
Appeal from the Superior Court in Maricopa County
No. CV2016-054905
The Honorable Jacki Ireland, Judge Pro Tempore
AFFIRMED
COUNSEL
Gerald D. Sherrill Attorney at Law, Scottsdale
By Gerald D. Sherrill
Counsel for Plaintiff/Appellee
Helena Perez, Flagstaff
Defendant/Appellant
PEREZ v. PEREZ
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Helena Perez (“Helena”)1 appeals the trial court’s award of
$48,555.00 in attorneys’ fees and $2,208.11 in costs to Paul Perez (“Paul”) as
a sanction against her for recording a groundless lis pendens in violation of
A.R.S. § 33–420. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 This is the second appeal resulting from a familial dispute
over real property. In November 2016, Paul filed a complaint against
Helena, his sister, to quiet title to real property in Phoenix, Arizona. He also
alleged Helena recorded a groundless lis pendens and sought statutory
damages under A.R.S. § 33–420. After Helena’s extensive motion practice,
the trial court granted partial summary judgment for Paul on the quiet title
claim but left for the jury whether Helena had recorded a groundless lis
pendens.
¶3 After a two-day trial, a jury found that Helena had recorded
a groundless lis pendens and awarded Paul $5,000 in damages under A.R.S.
§ 33–420(A). Paul then requested $59,117.59 in attorneys’ fees and $2,633.72
in costs under A.R.S. § 33–420(A), which requires the court to award
attorneys’ fees and costs to the “owner or beneficial title holder” that
incurred fees and costs in removing a groundless lis pendens.
¶4 Before the trial court signed the final judgment, however,
Helena filed for bankruptcy. Once the bankruptcy stay had lifted, Helena
filed extensive motions relitigating matters determined by the summary
judgment and trial. The trial court denied Helena’s motions and signed a
final judgment awarding Paul $59,117.59 in attorneys’ fees and $2,633.72 in
costs. Helena appealed that decision.
1 Because the two parties share a last name, this court, with respect,
will refer to the parties individually by their first names.
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PEREZ v. PEREZ
Decision of the Court
¶5 In that first appeal, this court affirmed the jury trial and
partial summary judgment but found that the trial court erred in awarding
Paul all his fees and costs. See Perez v. Perez, No. 1 CA-CV 19-0593, 2020 WL
3443451, at *3 (Ariz. Ct. App. May 23, 2020) (“Perez 1”). This court found
that Paul had “only requested attorneys’ fees pursuant to A.R.S. § 33–420,”
the groundless lis pendens claim, and that he “did not comply with the
requirements under A.R.S. § 12–1103(B)” for attorneys’ fees under his quiet
title action. Id. This court therefore remanded to the trial court to
redetermine Paul’s attorneys’ fees award, requiring Paul to apportion his
fees for the groundless lis pendens claim only. Id.
¶6 On remand, Paul filed his first amended application for
attorneys’ fees and costs. Along with an affidavit by his attorney, the
application contained an itemized list of activities that his attorney had
performed and the time each activity had taken. The list also contained the
hourly rate and the total amount charged for each activity. To conform with
this court’s mandate in Perez 1, Paul’s attorney circled the amounts
pertaining to the lis pendens proceeding. For entries that included portions
unrelated to the lis pendens, such as summary judgment oral argument and
preparation, Paul apportioned one-third the total amount—if he
apportioned any amount. In total, Paul requested $50,795.61 in attorneys’
fees and $2,208.11 in costs related to the groundless lis pendens.
¶7 Helena opposed the “unlawful examples of ex parte entries”
to the court, misappropriations of non-litigation fees, duplicate fees,
“padded” charges, and other irrelevant fees, including reviewing the
superior court’s audio/visual equipment and researching and reviewing
bond requirements. Helena also asserted that Paul had committed fraud on
the court after finding that the fee application included billing entries
involving Victoria Clarke, who had notarized a quitclaim deed “central to
this litigation” and requested an evidentiary hearing. The subject entries
stated: “Draft correspondence to Victoria Clark re: notarization” and
“Telephone conference from John Clarke re: Victoria Clark.” From those
entries, Helena inferred that Paul and his attorney had been in contact with
the notary despite telling the court otherwise during the two-day trial
subject to the first appeal. She had made similar claims throughout the
litigation.
¶8 In his reply, Paul argued why the charged fees were not
“padded” and how they related to the lis pendens proceeding. He also stated
that the trial court had heard and rejected Helena’s fraud claim as meritless.
He conceded, however, that a few entries were not properly apportioned,
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Decision of the Court
struck those entries, and modified his request to $48,587.50 in attorneys’
fees and $2,208.11 in costs.
¶9 After a hearing, the trial court awarded Paul $48,555.00 in
attorneys’ fees and $2,208.11 in costs. The trial court found that Helena’s
objections were unfounded and that the fees were reasonable under the
circumstances and “appropriately limited” to the lis pendens matter. Helena
timely appeals.
DISCUSSION
¶10 Helena appeals the trial court’s judgment awarding
$48,555.00 in attorneys’ fees and $2,208.11 in costs and asserts that the trial
court erred in not holding another evidentiary hearing to determine
whether Paul and his attorney had committed fraud on the court. We
review the superior court’s award of attorneys’ fees and costs for an abuse
of discretion and affirm if the court’s award has any reasonable basis, Maleki
v. Desert Palms Pro. Properties, L.L.C., 222 Ariz. 327, 333–34 (App. 2009). We
similarly review a denial of an evidentiary hearing for an abuse of
discretion. See Hutki v. Hutki, 244 Ariz. 39, 42 ¶ 15 (App. 2018).
¶11 When apportioning fees under A.R.S. § 33-420, the fees
requested cannot involve work done for the separate quiet title and
preliminary injunction claims and proceedings. See Schweiger v. China Doll
Rest., Inc., 138 Ariz. 183, 187 (App. 1983); Evergreen W., Inc. v. Boyd, 167 Ariz.
614, 621 (App. 1991) (holding that determination whether a lis pendens is
groundless “should not involve a decision on the merits of the underlying
actions”). In assessing the reasonableness of the apportioned fees, courts
consider (1) the qualities of the lawyer; (2) the character of the work to be
done; (3) the work the lawyer performed; and (4) the result. Schweiger, 138
Ariz. at 187. Once a party establishes its entitlement to fees and meets the
minimum requirements in its application and affidavit, the burden shifts to
the party opposing the fee award to show the impropriety or
unreasonableness of the requested fees. Nolan v. Starlight Pines Homeowners
Ass’n, 216 Ariz. 482, 490–91 ¶ 38 (App. 2007). To successfully challenge an
award of attorneys’ fees, the opposing party must do so with specificity.
Cook v. Grebe, 245 Ariz. 367, 370 ¶ 11 (App. 2018).
¶12 The trial court did not abuse its discretion in awarding
$48,555.00 in attorneys’ fees and $2,208.11 in costs for the lis pendens
proceedings. The $325.00 hourly rate was reasonable considering the
character of the work in the real estate field and the attorneys’ related skill
and three-decades’ experience. The application contained itemized
line-entries detailing the work done. The apportioned line-entries mainly
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Decision of the Court
involved work after the court’s summary judgment decision and in
preparation for trial. Although Helena objected to some of the procedural
and research-based fees, they were reasonable considering the nature of the
claims and were required for effective trial preparation and administration.
See Schweiger, 138 Ariz. at 188.
¶13 Many line items that did not relate only to the lis pendens
matter were reduced according to the amount spent on the lis pendens issue.
If the line entry could not be easily broken down by issue, such as
“Continue drafting Complaint, Application for Preliminary Injunction,
Motion for Accelerated Ruling[,]” Paul apportioned one third the amount
of the total fee for that entry because the lis pendens issue comprised one of
three causes of actions in the complaint. After considering Helena’s
objections and hearing argument, the court determined Paul’s requested
fees reasonable and properly apportioned at the one third rate. Absent the
hearing transcripts to prove otherwise, this court must presume that the
hearing supported the trial court’s finding that the one-third
apportionment was proper in the circumstances. See Baker v. Baker, 183 Ariz.
70, 73 (App. 1995).
¶14 For those line items that Paul did not apportion by either one
third or by another specific amount, such as “Review Helena’s Response to
Request to Extend deadline for filing Reply Brief[,]” they were required to
maintain the lis pendens cause of action. While an award of fees under A.R.S.
§ 33–420(B) should not include fees for “a decision on the merits of the
underlying action,” Evergreen, 167 Ariz. at 621, the court does not abuse its
discretion by including those fees that were necessarily intertwined with
the continuing lis pendens action, see City of Cottonwood v. James L. Fann
Contracting, Inc., 179 Ariz. 185, 194 (App. 1994) (the trial court has discretion
to award fees for a claim that is intertwined with one for which fees are not
awardable.). Paul’s actions in reviewing the procedural motions and filings
before summary judgment were necessarily intertwined with his lis pendens
cause of action and the trial court did not abuse its discretion in awarding
the whole fee amount for those entries. See id. On this record and briefing,
the trial court did not abuse its discretion in awarding $48,555.00 in
attorneys’ fees and $2,208.11 in costs for the lis pendens proceedings.
¶15 Helena nonetheless argues that Paul needed to apportion
only one-fifth of fees that contained work done to the lis pendens and other
issues because the court of appeals reviewed five issues. But Paul raised
only three causes of action in his complaint and the trial court was within
its discretion to accept the one-third reductions. Because Helena has failed
to make further specific challenges in her opening brief, Cook, 245 Ariz. at
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370 ¶ 11, she has abandoned the arguments on appeal, see Robert
Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180 ¶ 17 (App. 2004)
(this court considers an issue not raised in an appellant’s opening brief as
abandoned or conceded), and has thus failed to rebut the presumption that
the court properly reviewed for apportionment, see Hart v. Hart, 220 Ariz.
183, 188 ¶ 18 (App. 2009) (appellate courts presume the trial court knows
the law and applies it correctly); see also Brewer v. Peterson, 9 Ariz.App. 455,
458 (1969) (“The controlling law, as we see it, is that an appellate court must
assume that the [trial] court did no wrong, in the absence of a showing to
the contrary.”).
¶16 Helena next argues that the trial court erred in not holding an
evidentiary hearing to determine whether Paul and his attorney committed
fraud on the court by having contact with Clark. She asserts that the causes
of action are based on fraud and therefore invalid. But Helena appealed
only the award of fees under A.R.S. § 33–420 and cannot now raise
unrelated issues.
CONCLUSION
¶17 Paul requests his attorneys’ fees on appeal under A.R.S.
§ 33–420. Paul is statutorily entitled to his reasonable attorneys’ fees on
appeal under A.R.S. § 33–420, Janis v. Spelts, 153 Ariz. 593, 598 (App. 1987),
which we award upon compliance with Rule 21, Rules of Civil Appellate
Procedure. For the reasons stated, we affirm the trial court’s award of
attorneys’ fees and costs.
AMY M. WOOD • Clerk of the Court
FILED: AA
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