Erdmann v. Burton ( 2016 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    KEVIN ERDMANN, an Arizona resident, Plaintiff/Appellee
    and
    KERRY LECHNER, a Wisconsin resident, Cross-Plaintiff/Appellee,
    v.
    KENT Aka BRIGHAM BURTON and CARLY BURTON, as Arizona
    residents and husband and wife; BURTON PARTNERS, LLC, an Arizona
    limited liability company; ZYRAX, LLC, an Arizona limited liability
    company, Defendants/Cross-Defendants/Appellants.
    No. CA-CV 14-0410
    FILED 5-26-2016
    Appeal from the Superior Court in Maricopa
    No. CV2011-096995
    The Honorable Randall H. Warner, Judge
    AFFIRMED
    COUNSEL
    Udall Shumway, PLC, Mesa
    By Joel E. Sannes
    Counsel for Plaintiff/Appellee Erdmann
    Cassett Ricker Law PLLC, Scottsdale
    By Keith C. Ricker
    Counsel for Cross-Plaintiff/Appellee Lechner
    Law Office of Julia Prinz, Pinetop
    By Julia Marie Prinz
    and
    By Seth Kretzer, Bronstone, PA
    Co-Counsel for Defendants/Cross-Defendants/Appellants
    MEMORANDUM DECISION
    Judge John C. Gemmill delivered the decision of the Court, in which
    Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
    G E M M I L L, Judge:
    ¶1           Kent (aka Brigham) Burton, Carly Burton, Burton Partners,
    LLC, and Zyrax (collectively “Burton”) appeal a jury verdict and judgment
    finding them liable to Kevin Erdmann and Kerry Lechner on claims arising
    from various transactions involving the purchase and sale of two
    businesses. We affirm.
    BACKGROUND
    ¶2            This dispute arises from two separate business transactions.
    The first transaction was Erdmann’s sale of Kebko (a sign manufacturing
    company) to Burton. The second was Burton’s sale of House Hunters (a
    monthly real estate publication) to Lechner, followed by the assignment by
    Burton to Erdmann of a promissory note evidencing a debt owed by
    Lechner to Burton.
    I.    Kebko
    ¶3             Kebko was a sole proprietorship created by Erdmann in 1993.
    Kebko manufactured signs primarily for general contractors, schools,
    courthouses, and various municipal buildings. In May 2010, Burton
    entered into an agreement to purchase Kebko from Erdmann. The price
    was $110,000, with a $55,000 down payment and $55,000 to be paid over
    time, as evidenced by a promissory note (“Kebko Note”) secured by a
    chattel security agreement and a UCC financing statement.
    ¶4           Almost immediately after purchasing Kebko, Burton
    contacted Erdmann to explain that he was having difficulty getting credit
    from banks and suppliers to obtain materials. Erdmann agreed to let
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    ERDMANN v. BURTON
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    Burton use several supplier accounts and a Wells Fargo line of credit that
    were in Erdmann’s name and for which Erdmann was personally
    responsible. The arrangement initially was unwritten, but in September
    2010, Erdmann and Burton entered into a detailed written extension
    agreement.1
    ¶5            The extension agreement subordinated Erdmann’s interest in
    the Kebko Note until January 2011 to allow Burton to factor2 some of
    Kebko’s accounts receivable for short-term operational funding. In
    exchange, Burton agreed to pay off all vendor accounts that were
    guaranteed in Erdmann’s name, as well as Erdmann’s Wells Fargo line of
    credit, within a specific amount of time.
    ¶6            By the time the extension agreement expired, Burton had not
    paid off the accounts and Erdmann had paid some of them himself. The
    amount of credit the vendors had extended to Burton, guaranteed by
    Erdmann, exceeded $40,000. Additionally, Burton cashed four checks
    totaling $3,271 that should have been forwarded to Erdmann under the
    extension agreement.
    ¶7           In April 2011, Burton and Erdmann entered into a settlement
    agreement and mutual release. Under the settlement agreement, Erdmann
    agreed to release Burton from any and all claims related to the vendor
    accounts and credit lines in exchange for Burton assigning to Erdmann 30
    payments, together worth approximately $20,000, owed to Burton by
    Lechner on a note for the purchase of a business called House Hunters
    (“House Hunters Note”). Burton also agreed to pay off the factoring
    company to put Erdmann back in first position on the Kebko Note. Burton
    assigned the House Hunters Note to Erdmann, and Lechner began making
    payments to Erdmann.
    ¶8          After the date of the settlement agreement, Burton made only
    one more payment on the original Kebko Note. At trial, Burton asserted
    1 At some point after Burton purchased Kebko from Erdmann but before
    the extension and settlement agreements, Burton conveyed Kebko to
    Burton Partners, LLC. Both the extension agreement and the settlement
    agreement were signed by Kent Burton individually and as a member of
    Burton Partners, LLC.
    2 Factoring is a process by which a company sells an account receivable at
    a discounted price.
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    ERDMANN v. BURTON
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    that the payment had been a mistake because he believed the Kebko Note
    had been forgiven through the settlement agreement. The settlement
    agreement, however, contained several references to the continuing
    existence of the Kebko Note. Furthermore, after Burton made the
    purportedly mistaken payment, he offered to buy the Kebko Note from
    Erdmann for almost half its value, and then apologized for getting behind
    on payments. When asked at trial why he would offer to buy a note he no
    longer believed existed, Burton responded “[b]ecause I’m a nice guy.”
    ¶9            Burton also told Lechner, “I’m okay putting the [House
    Hunters] note payments on hold for as long as it takes to get you profitable
    again.” At that point, Lechner ceased payments to Erdmann on the note.
    See infra ¶ 13.
    ¶10            Eventually Burton advertised to sell Kebko for $285,000. He
    stated in the ad that the company had an annual cash flow of $120,000. An
    interested party, DPG Investments (“DPG”), initially offered $235,000.
    Burton testified that at that point, one year after he purchased it from
    Erdmann, he believed Kebko was worth $235,000 and that he had built
    Kebko up to be worth more than when he had purchased it. Burton
    ultimately sold Kebko to DPG in July 2011 for $150,000 — two and a half
    times what DPG privately believed the cash flow was.
    ¶11            Just before selling Kebko, Burton unilaterally filed a UCC
    termination with the Arizona Secretary of State removing Erdmann’s lien
    on Kebko, assertedly because he thought the Kebko Note was cancelled in
    the settlement agreement. But this was despite the facts that he had made
    a payment on the Kebko Note after the settlement agreement, apologized
    for his late payment, and offered to buy back the note. See supra ¶ 8. The
    UCC security agreement was ultimately restored, thereby protecting
    Erdmann’s claim to a portion of the $150,000 DPG paid to Burton for Kebko.
    II.   House Hunters
    ¶12          Burton first acquired House Hunters in 2009 for $28,000.
    Burton decided to sell House Hunters approximately one year later, and in
    October 2010, Lechner contacted Burton to express an interest in buying
    House Hunters.3 Burton provided Lechner with some financial statements
    and personal assurances, but he would not provide Lechner with verifying
    3 After his purchase of House Hunters and before selling it to Lechner,
    Burton conveyed House Hunters to Zyrax, LLC.
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    ERDMANN v. BURTON
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    information, such as the company’s top-ten paying client list or a list of the
    companies that printed and distributed the magazine. Nevertheless, in
    December 2010, Lechner agreed to purchase House Hunters for a $20,000
    down payment and a $78,000 promissory note (the House Hunters Note) to
    be paid over ten years.
    ¶13            Lechner operated House Hunters from January until June,
    2011, losing money each month. Shortly thereafter, Lechner contacted
    Burton and detailed the trouble he was having bringing in revenue. At that
    point, Lechner questioned the reliability of the financial statements, client
    lists, and representations Burton had made about the company. After some
    discussion, Burton told Lechner that he (Lechner) could put payments to
    Erdmann on the House Hunters Note on hold until House Hunters became
    profitable again. See supra ¶ 9.
    III.   Trial
    ¶14           Erdmann filed a complaint against Burton and Lechner for
    breach of contract and conversion. Several days later, Erdmann filed an
    amended complaint adding Burton Partners, LLC, and Zyrax, LLC, as
    parties and asserting additional claims for fraudulent inducement and
    intentional interference with contract. Burton filed a counterclaim against
    Erdmann, and Lechner filed a cross-claim against Burton for breach of
    contract, fraudulent inducement, negligent misrepresentation, non-
    disclosure, consumer fraud, breach of the covenant of good faith and fair
    dealing, and unjust enrichment.
    ¶15          After four days of trial, the jury returned a verdict finding
    against Burton on all counts, including: (1) for Erdmann on his claims
    against Burton; (2) for Erdmann on his claims against Burton Partners, LLC;
    (3) for Erdmann on his claims against Zyrax; (4) for Erdmann on his claim
    against Burton and Burton Partners for punitive damages; (5) for Lechner
    on his claims against Zyrax; (6) for Lechner on his claims against Burton;
    and (7) for Lechner on his claims against Burton and Zyrax for punitive
    damages. The jury found against Erdmann on his claims against Lechner,
    and against Burton on his claims against Lechner and Erdmann.
    Additionally, the jury returned three interrogatories that found for Lechner
    against Burton and/or Zyrax for fraud, and for Erdmann against Burton
    and/or Burton Partners for fraud and conversion.
    ¶16           The trial court entered judgment in favor of Erdmann against
    Burton in the amounts of $39,917.48 for compensatory damages, $93,235.60
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    ERDMANN v. BURTON
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    for punitive damages, and $51,556.28 for attorney fees and costs. The trial
    court entered judgment in favor of Lechner against Burton and Zyrax in the
    amounts of $25,793.10 for compensatory damages against Zyrax, $30,346.19
    for compensatory damages against Burton, $15,000 for punitive damages
    against Burton and Zyrax, and $24,605 for attorney fees. Burton filed a
    motion for new trial that was denied. Burton timely appeals. This court
    has jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-
    120.21(A)(1) and -2101(A)(1).
    ANALYSIS
    ¶17           Burton presents five issues on appeal, which we address in
    the following sequence. First, whether the settlement agreement contained
    a clause that precluded either party from rescinding the agreement due to
    misrepresentation. Next, whether the trial court should have forced
    Erdmann to elect a remedy. Third, whether the trial court’s failure to rule
    on piercing the veil regarding Burton’s relationship to Burton Partners
    exacerbated juror confusion and led to duplicative damages. Fourth,
    whether Erdmann and Lechner’s tort claims were barred by the economic
    loss doctrine (ELD). And, finally, whether Erdmann and Lechner were
    entitled to punitive damages.
    I.       Burton Waived His Contention That the Settlement Agreement
    Precludes Rescission
    ¶18          Burton argues that paragraph 6 of the settlement agreement
    precludes any rescission of the agreement due to misrepresentation or
    fraud.4 This provision was raised in Burton’s initial answer and his
    unsuccessful motion to dismiss. At trial, the settlement agreement itself
    4    Paragraph 6 of the settlement agreement provides:
    No Reliance on a Party. In entering into this Agreement, each
    party assumes the risk of any misrepresentation, concealment
    or mistake. If any party should subsequently discover that
    any fact relied upon by the party in entering into this
    Agreement was untrue or that any fact was concealed from
    that party or that the party’s understanding of the facts or of
    the law was incorrect, such party shall not be entitled to any
    relief in connection therewith including, without limitation
    upon the generality of the foregoing, any alleged right or
    claim to set aside or rescind this Agreement. This Agreement
    is intended to be and is final and binding upon the parties.
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    ERDMANN v. BURTON
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    was entered into evidence for the jury to consider. But Burton did not ask
    the court to rule at trial as a matter of law that paragraph 6 precludes any
    rescission of the agreement, and he did not argue the provision to the jury.
    Burton has therefore waived this argument. See Airfreight Exp. Ltd. v.
    Evergreen Ctr., Inc., 
    215 Ariz. 103
    , 109, ¶ 17 (App. 2007) (on a similar set of
    facts, holding “a party must timely present his legal theories to the trial
    court so as to give the trial court an opportunity to rule properly”) (quoting
    Payne v. Payne, 
    12 Ariz. App. 434
    , 435 (1970)). Accordingly, we decline to
    reverse the jury’s verdict on the ground that the settlement agreement bars
    rescission due to fraud.
    II.    Burton Waived His Argument That the Trial Court Should Have
    Forced Erdmann to Elect a Remedy
    ¶19            Burton argues that the trial court improperly allowed
    Erdmann to proceed under two inconsistent theories, and as a result the
    jury was confused and returned inconsistent verdicts with damages for
    both breach of contract and rescission of the settlement agreement. Election
    of remedies is characterized as an affirmative defense that is waived unless
    timely asserted. See Estate of Wesolowski v. Indus. Comm’n, 
    192 Ariz. 326
    , 329,
    ¶ 10 (App. 1998). Burton failed to raise this defense until this appeal.
    Burton did not object to the final instructions given to the jury, the
    additional instructions given after the jury asked about damages, or the
    verdicts as being duplicative or incongruent after they were read. These
    repeated failures to object waived this argument on appeal.5 See Montano
    v. Scottsdale Baptist Hosp., Inc., 
    119 Ariz. 448
    , 453 (1978) (a party may not
    claim a jury instruction was in error on appeal if he or she did not object
    before the jury receives the instructions and retires to consider its verdict);
    Trustmark Ins. Co. v. Bank One, Arizona, NA, 
    202 Ariz. 535
    , 543, ¶ 38-39 (App.
    2002) (a party must object when the verdict is rendered if it believes the jury
    was confused or the verdict was contrary to law, otherwise the party waives
    objection to error; furthermore, if a party believes the verdict is inconsistent,
    defective, or nonresponsive, it must move under Ariz. R. Civ. P. 49(c) for
    resubmission of the case to the jury); see also Ariz. R. Civ. P. 51(a) (“No party
    may assign as error the giving or the failure to give an instruction unless
    that party objects thereto before the jury retires to consider its verdict,
    stating distinctly the matter objected to and the grounds of the objection”).
    5 In the final judgment, the trial court avoided duplicative damages by not
    awarding Erdmann damages against Burton for breaching the settlement
    agreement.
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    III.   The Trial Court Did Not Err in Declining to Grant a New Trial
    Based on Failing to Address the Veil-Piercing Issue
    ¶20            We apply an abuse of discretion standard when reviewing a
    trial court’s denial of a motion for new trial. Styles v. Ceranski, 
    185 Ariz. 488
    ,
    450 (App. 1996).
    ¶21           Burton argues that the trial court should have ruled on
    whether to pierce the corporate veil. He asserts that the court's failure to
    do so led to improper duplicate awards for Erdmann against both Burton
    and Burton Partners and to Lechner receiving more money than he
    requested. The record does not support these assertions.
    ¶22           The record shows that both Burton and Burton Partners were
    instrumental in creating the debt on which Erdmann sued. Burton was the
    original purchaser of Kebko and the original party to use Erdmann’s lines
    of credit. The extension agreement and settlement agreement were signed
    by “Kent Burton, Member and Individually” for Burton Partners. Thus, it
    was not improper for the jury to conclude that both Burton and Burton
    Partners could be held responsible for the damages incurred.
    ¶23           As for Lechner’s damages, Burton argues that the trial court’s
    instructions to the jury did not address the veil-piercing issue and therefore
    led to the jury erroneously awarding Lechner double the amount he
    requested. But Burton misstates the total amount requested by Lechner and
    does not account for each month of lost profits. The jury awarded Lechner
    $25,793.10 against Zyrax for the down payment and the monthly payments
    to Erdmann on the House Hunters Note. The jury also awarded Lechner
    $30,346.19 against Burton for the profits Lechner lost due to Burton’s fraud.
    ¶24          The trial court did not abuse its discretion in denying Burton’s
    motion for new trial regarding these issues.
    IV.    Burton Waived His Argument that the Economic Loss Doctrine
    Precluded Tort Claims Against Him
    ¶25            The ELD is a common law rule that limits contracting parties
    to their contractual remedies when damages are purely economic and there
    is no physical injury to persons or property. Flagstaff Affordable Hous. Ltd.
    P’ship v. Design Alliance, Inc., 
    223 Ariz. 320
    , 323, ¶ 12 (2010). Application of
    the ELD is a legal question that we review de novo. 
    Id., 223 Ariz.
    at 322, ¶
    9.
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    ¶26            Erdmann and Lechner assert that Burton waived his
    argument that the ELD bars relief on all tort claims. We agree. The general
    rule for waiver is that, absent exceptional circumstances, this court will not
    consider an argument raised for the first time on appeal. See Englert v.
    Carondelet Health Network, 
    199 Ariz. 21
    , 26, ¶ 13 (App. 2000); see also Trantor
    v. Fredrikson, 
    179 Ariz. 299
    , 300 (1994). The parties dispute whether the ELD
    is an affirmative defense, but that makes no difference. Burton did not raise
    the ELD at any point during the trial. We therefore conclude that Burton
    waived his argument that the ELD precluded the tort claims.
    V.     The Award of Punitive Damages Was Not Error
    ¶27           We view the evidence in the light most favorable to
    upholding the jury verdict awarding punitive damages and we will affirm
    if any substantial evidence exists permitting reasonable jurors to reach such
    a result. See Arellano v. Primerica Life Ins. Co., Co., 
    235 Ariz. 371
    , 378-79, ¶
    35 (App. 2014)
    ¶28           Burton argues that Erdmann and Lechner were not entitled to
    punitive damages for two reasons. First, Burton claims that punitive
    damages were not appropriate for either party because the evidence
    presented did not support a finding of “something more” than just the
    underlying tort. Second, Burton claims that Lechner failed to plead
    punitive damages and was therefore precluded from recovering them.
    Alternatively, Burton argues that the $96,000 punitive damages award to
    Erdmann was disproportionate to the conversion claim.
    A.     Burton Waived His Argument Regarding Punitive Damages
    Sought by Lechner
    ¶29            Burton argues that Lechner was not entitled to punitive
    damages because he did not ask for them in his complaint or in the joint
    pretrial statement. But the jury instructions stated that “Lechner has
    requested an award of punitive damages” against Burton, and Burton did
    not object to the jury instructions on punitive damages. “When issues not
    raised by the pleadings are tried by express or implied consent of the
    parties, they shall be treated in all respects as if they had been raised in the
    pleadings.” Ariz. R. Civ. P. 15(b). Because Burton did not object to the
    instructions, the punitive damages are treated as if they had been raised in
    the pleadings. See 
    Montano, 119 Ariz. at 453
    ; see also Ariz. R. Civ. P. 51(a).
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    ERDMANN v. BURTON
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    Therefore, the court did not err in allowing the jury to consider awarding
    punitive damages in favor of Lechner.
    B.     The Evidence Permitted the Jury to Award Punitive Damages
    to Erdmann and Lechner
    ¶30           A plaintiff may recover punitive damages by proving through
    clear and convincing evidence that the defendant “engaged in aggravated
    and outrageous conduct with an evil mind.” Hyatt Regency Phoenix Hotel
    Co. v. Winston & Strawn, 
    184 Ariz. 120
    , 132 (App. 1995) (internal quotations
    omitted). An evil mind may be inferred through evidence that the
    defendant “continued his actions despite the inevitable or highly probable
    harm that would follow.” Gurule v. Illinois Mut. Life and Cas. Co., 
    152 Ariz. 600
    , 602 (1987). Evidence of subjective intent to injure is not required, only
    a “conscious disregard of a substantial risk of significant harm to others.”
    Warner v. Sw. Desert Images, LLC, 
    218 Ariz. 121
    , 130 ¶ 24 (App. 2008).
    ¶31           The record shows multiple instances in which Burton acted in
    a way that created a substantial risk of harm to Erdmann and Lechner.
    Supporting the award to Lechner, Burton’s misstatements regarding the
    financial status of House Hunters created a substantial risk that Lechner
    would be financially harmed by purchasing it. The jury heard evidence that
    Burton provided multiple false documents and statements to entice
    Lechner to buy a failing company.
    ¶32            In regard to the punitive damage award to Erdmann, Burton
    repeatedly failed to pay off the credit lines and vendor accounts for which
    Erdmann was liable. See supra ¶¶ 4–6. Burton cashed multiple checks that
    belonged to Erdmann without repaying him. Burton’s knowledge of the
    potential infirmity of the House Hunters Note, coupled with his willingness
    to offer it to Erdmann in exchange for Erdmann’s release of more
    substantial claims, demonstrated Burton’s disregard for the risk of harm to
    Erdmann. Also, after Lechner began having financial difficulty, Burton told
    him he could cease payments to Erdmann. Furthermore, the record shows
    that Burton attempted to sell Kebko for nearly twice what he had bought it
    for and represented it as a profitable business with considerable gross
    income and cash flow, while at the same time failing to make payments on
    Erdmann’s credit lines and accounts. Finally, before selling Kebko to a new
    buyer, Burton unilaterally removed the UCC lien so that Erdmann would
    have no claim to payment from the new buyer. See supra ¶ 11.
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    ¶33            Fraud alone does not support punitive damages. Echols v.
    Beauty Built Homes, Inc., 
    132 Ariz. 498
    , 501 (1982). But based on the record
    in this case, the jury could have found by clear and convincing evidence
    that Burton’s conduct was aggravated and outrageous, evincing an evil
    mind. Therefore, we decline to set aside the punitive damages awards.
    C.     The Amount of Punitive Damages Awarded Was Not
    Excessive
    ¶34           Because of constitutional concerns, the amount of punitive
    damages awarded is subjected to more rigorous appellate review. Kline v.
    Kline, 
    221 Ariz. 564
    , 572 ¶ 29 (App. 2009). We will uphold the awarding of
    punitive damages if “any reasonable view of the evidence would satisfy the
    clear and convincing standard.” Hyatt 
    Regency, 184 Ariz. at 132
    . And we
    will affirm the amount of punitive damages awarded “unless it is so
    unreasonable in light of the circumstances as to show passion or prejudice.”
    Rustin v. Cook, 
    143 Ariz. 486
    , 491 (App. 1984).
    ¶35            Burton argues that Erdmann’s punitive damage award of
    $93,235.50 is excessive because it was based solely on the conversion claim.
    However, the jury also found Burton had defrauded Erdmann, and
    returned a general verdict for $39,917.48 in compensatory damages based
    on all of Erdmann's claims, including negligent misrepresentation, fraud,
    interference with contract, conversion, and breach of contract. Burton did
    not object to the use of a general verdict, and the jury therefore did not
    separate the amount of damages attributable to the various claims. Because
    Burton did not object to the general verdict form for compensatory damages
    and because the special interrogatories reveal the jury found for Erdmann
    on fraud and conversion, we may presume for these purposes that the tort
    damages were determined by the jury to be $39,917.48. See Dunlap v. Jimmy
    GMC of Tucson, Inc., 
    136 Ariz. 338
    , 341 (App. 1983) (a general verdict will be
    upheld if evidence on one count, issue or theory is sufficient to sustain the
    verdict.”); see also Mullin v. Brown, 
    210 Ariz. 545
    , 551-52 ¶¶ 25-26 (App.
    2005). An award of $93,235.50 in punitive damage, establishing a ratio of
    2.3:1, is not excessive. See 
    Arellano, 235 Ariz. at 380
    , ¶ 45 (permitting
    punitive damage ratio of 4:1).
    VI.    Fee Requests
    ¶36         Erdmann and Lechner both request attorney fees and costs on
    appeal. Erdmann cites Arizona Revised Statutes section 12-341.01 and
    paragraph 12 of the settlement agreement with Burton. Lechner requests
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    fees and costs “on the same basis” “as he did at the trial court level.” In
    accordance with Arizona Rule of Civil Appellate Procedure (ARCAP)
    21(a)(2), this court will exercise its discretion to award an amount of
    reasonable attorney fees and also taxable costs to Erdmann and Lechner
    upon their compliance with ARCAP 21.
    CONCLUSION
    ¶37           Based on the foregoing, we conclude that the evidence
    supports the general verdict and the damages awarded. We further
    conclude that the trial court did not abuse its discretion in denying a new
    trial. We therefore affirm the judgment of the trial court.
    :ama
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