Villa v. Furar

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND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
AMALIA VILLA, individually; and SANTIAGO ALAMILLO,
individually, Plaintiffs/Appellants,
v.
DONALD KEITH FURAR and DEBRA FURAR, husband and wife,
Defendants/Appellees.
No. 1 CA-CV 13-0653
FILED 6-9-2015
Appeal from the Superior Court in Maricopa County
No. CV2010-022642
The Honorable John C. Rea, Judge
AFFIRMED
COUNSEL
Ganz & Hauf, Las Vegas, NV
By Adam Ganz, Marjorie L. Hauf
Counsel for Plaintiffs/Appellants
Edythe H. Kelly & Associates, Tempe
By Kathleen C. Kerchansky
Co-Counsel for Defendants/Appellees
DeCiancio Robbins PLC, Tempe
By Joel DeCiancio, Christopher Robbins
Co-Counsel for Defendants/Appellees
VILLA v. FURAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 Amalia Villa and Santiago Alamillo (collectively,
“Appellants”) filed suit against Donald Furar seeking damages stemming
from an automobile accident.1 Following a six-day trial, a jury awarded
Villa $5,000 in damages, and returned a defense verdict against Alamillo.
Furar then sought sanctions pursuant to Rule 68, Ariz. R. Civ. P., alleging
Appellants had failed to receive a more favorable judgment than Furar’s
initial offers of judgment, meaning Furar was entitled to his expert witness
fees and double his taxable costs. Applying Rule 68, the trial court imposed
a $29,608.24 sanction against Alamillo and a $20,802.17 sanction against
Villa. Appellants appeal from the jury’s verdict and the trial court’s order
imposing these sanctions. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On July 29, 2008, Furar rear-ended Villa’s minivan on the I-17
freeway in Phoenix, Arizona. Alamillo was a passenger in Villa’s vehicle.
Approximately two years later, in July 2010, Appellants filed a pro se tort
complaint, seeking damages for medical expenses, out-of-pocket expenses,
general damages, lost wages, and costs. Appellants retained counsel in
September 2010. At Appellants’ request, the trial court extended the period
of time for service and Furar subsequently answered the complaint in
January 2011. In his answer, Furar admitted negligence (duty and breach
of that duty), but denied causation and damages alleged by Appellants.
The court ultimately granted partial summary judgment in favor of
Appellants on the issue of negligence. Before trial, both sides exchanged
Rule 68 offers of judgment, which were not accepted.
1 Appellants’ minor son, Esai Alamillo-Villa, also sued Furar, but
ultimately accepted an offer of judgment from Furar for $4,000. Esai is not
a party to this appeal.
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¶3 After several continuances, a six-day trial was conducted in
April 2013. The jury ultimately returned a defense verdict against Alamillo,
and awarded Villa $5,000 in damages. Following trial, Furar filed motions
for Rule 68 sanctions against Appellants. Appellants opposed the motions,
arguing (1) Furar’s initial offers of judgment were not valid under Rule 68;
(2) it was impossible to know if Appellants obtained a more favorable
judgment than the offer; and (3) Furar’s expert witness fees were
unreasonable. Applying Rule 68, the trial court imposed sanctions against
Alamillo and Villa totaling $29,608.24 and $20,802.17, respectively.2
Appellants timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 12-2101(A)(1).3
ANALYSIS
¶4 Appellants assert four issues on appeal. First, Appellants
assert defense counsel engaged in multiple acts of misconduct that
materially affected their right to a fair trial. Second, Appellants argue a
juror’s conduct materially affected their right to a fair trial. Third,
Appellants allege the jury’s award of damages was insufficient and not
justified by the evidence. Fourth, Appellants argue the trial court’s award
of Rule 68 sanctions against them was erroneous. We address each of these
issues in turn.
I. The conduct of defense counsel did not affect Appellants’ right to a
fair trial.
¶5 Appellants allege nine separate instances of misconduct by
defense counsel that occurred during trial. Appellants contend that the
alleged instances of misconduct, cumulatively, deprived them of a fair trial.
We have reviewed the record, but observe that this task is best conducted
by the trial court when presented with a timely motion for mistrial or for
new trial. Having presided over the trial and having observed the
purported conduct and any effect on the jury, the trial judge is uniquely
positioned to determine whether and to what extent the jury and its verdict
were affected by the alleged misconduct, and what steps, if any, are
necessary to address the issue. An appellate court’s review of a cold
2 The court initially calculated $28,942.60 in Rule 68 sanctions against
Villa. The court then offset this total by subtracting Villa’s jury award and
costs, thereby arriving at a total of $20,802.17 in sanctions against Villa.
3 We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.
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transcript is a poor substitute for the “real time” experience of a trial judge
observing and dealing with these issues.
¶6 Appellants sporadically objected to some of the alleged
instances of misconduct, but failed to object to others, and did not move for
mistrial or a new trial. Absent fundamental error, which we apply
sparingly in civil cases, Appellants failure to object to alleged misconduct
constitutes waiver of those claims. Williams v. Thude, 188 Ariz. 257, 260, 934
P.2d 1349, 1352 (1997). As applied to civil cases, fundamental error is
defined as “error which goes to the foundation of the case, or which takes
from a party a right essential to his case.” Johnson v. Elliott, 112 Ariz. 57, 61,
537 P.2d 927, 931 (1975). For those situations where Appellants objected,
“[g]reat deference is paid to the trial judge’s decision as to the immediate
disposition of an objection.” Miller v. Palmer, 143 Ariz. 84, 87, 691 P.2d 1112,
1115 (App. 1984). Only if the misconduct constitutes fundamental error will
an appellate court consider relief when the appellant did not ask for relief
below. See id. Accordingly, absent an abuse of discretion, we will not
disturb the trial court’s decision. See id. at 87-88, 691 P.2d at 1115-16.
¶7 First, Appellants argue defense counsel improperly and
repeatedly elicited hearsay statements contained in a police officer’s traffic
accident report. Appellants’ counsel objected three separate times to
defense counsel’s questioning of Alamillo regarding statements contained
in the traffic accident report, and each objection was sustained. In one
instance, despite the trial court sustaining the objection, defense counsel
repeated the question, which Alamillo then answered, admitting he was
unaware the investigating officer had stated Furar was driving less than 20
miles per hour when the accident occurred. Appellants requested a
curative instruction. Later that day, the jury asked to see the accident
report, prompting the trial court to instruct the jury at that time to disregard
the testimony about any statements contain in the report, as it was not in
evidence. Before closing arguments, the court again instructed the jury that
the traffic accident report was not in evidence and to “disregard all
comments about what may or may not be stated in the report.” The two
separate curative instructions given by the court appropriately addressed
Appellants’ concern regarding the accident report.
¶8 Second, Appellants allege Furar violated a pre-trial ruling
confirming that neither party would raise an issue regarding Appellants’
purported lost wages and earning capacity, as those claims had been
abandoned prior to trial. During trial, defense counsel first asked Alamillo
about Villa’s employment at the time of the accident and Alamillo
answered counsel’s questions without objection. Immediately following
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this testimony, Appellants’ counsel requested a bench conference, during
which defense counsel was reminded of the agreement not to discuss
Appellants’ employment history. Later that same day, defense counsel
asked Villa directly about her employment history. Without objecting to
defense counsel’s questions, Appellants again requested a bench
conference. The trial court excused the jurors from the courtroom. Defense
counsel then indicated she questioned Villa regarding her employment
history intending to impeach Villa using contradictory statements from
Villa’s deposition. The court instructed defense counsel to be clearer
regarding which statements counsel intended to impeach when using
Villa’s deposition testimony.
¶9 After the jury returned to the courtroom, without objection,
defense counsel asked Villa a few additional questions about her
employment history. On appeal, Appellants contend those questions
“continued to be irrelevant and in violation of the spirit of the pre-trial
[o]rder.” Appellants also contend that despite defense counsel’s intent,
Villa was never impeached. Because Appellants failed to object, even
assuming error, these questions regarding Villa’s employment history did
not go to the foundation of the case, nor did they serve to deprive
Appellants of any rights. See Johnson, 112 Ariz. at 61, 537 P.2d at 931.
Accordingly, there is no fundamental error.
¶10 Third, Appellants contend defense counsel improperly
questioned Villa about a subsequent car accident. Villa testified she had
been in another car accident, but could not remember when it occurred.
Defense counsel then sought to impeach Villa on this point by using her
deposition testimony. Appellants’ counsel objected, arguing this line of
questioning was improper, but ultimately withdrew the objection after
defense counsel indicated she only sought to establish the date of the
accident. Villa’s deposition testimony was then read in open court, which
indicated Villa was struck by another vehicle sometime in 2010. The jury
later asked questions about the 2010 accident, prompting the trial court to
instruct the jury: “[T]he 2010 accident is not relevant in any way to what
damages or injuries were sustained in the accident that you have to decide.
. . . Nothing that happened in that accident should matter to you in deciding
this case.” Although Appellants initially objected, they ultimately allowed
Villa’s deposition to be read in open court for the apparent limited purpose
of establishing the date of Villa’s subsequent accident. Appellants then
failed to object after other information in addition to the date of the accident
was given.
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¶11 Before trial, the court ruled that Furar would be able to
“describe the physical conditions of both [Appellants] on the day they
stepped into this vehicle” and the treatment of any injuries stemming from
this accident. The court also ruled that introducing evidence concerning
injuries from another accident could improperly suggest to the jury that
Appellants were “accident prone” or “sue happy.” The information
proffered during trial regarding Villa’s subsequent accident does not
conflict with the pre-trial ruling. Moreover, admission of this information,
while arguably extraneous, does not constitute fundamental error. The
additional information provided regarding the 2010 accident did not
describe any injuries suffered by Villa, nor did it indicate or suggest that
Villa had a claim or was pursuing a claim against the other driver. The trial
court properly instructed the jury that the 2010 accident was irrelevant to
their decision. In short, the additional information did not relate to the
foundation of Appellants’ case or deprive them of any rights.
¶12 Fourth, Appellants contend defense counsel engaged in
misconduct when she elicited testimony from Furar regarding the damage
to Appellants’ minivan. During direct examination, Furar stated, “[t]he
only thing I know of is the bumper come off [sic], and that was maybe
hidden damage from previous accidents or something.” Appellants’
counsel objected to this statement as speculation, which the trial court
sustained, although Appellants’ counsel did not move to strike the
statement. Defense counsel asked follow-up questions regarding the visual
damage to Appellants’ vehicle, to which Appellants’ counsel again
objected; however, the court overruled Appellants’ objection. We see no
error in the trial court’s rulings on the stated objections. In addition, the
jury was instructed that where objection to questions were sustained, the
jurors should disregard the questions and not speculate as to what the
answer would have been, and we presume the jury followed these
instructions. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).
Because the trial court did not abuse its discretion in handling this issue,
there was no error.
¶13 Fifth, Appellants argue Furar improperly bolstered the
credibility of Dr. Zoran Maric, an orthopedic surgeon retained by the
defense to examine Appellants, by eliciting testimony that Dr. Maric had
treated other physicians’ families, and that he was scheduled to operate on
a family member of an individual who worked with defense counsel.
Appellants’ objections to these questions were overruled. On appeal,
Appellants offer no context for these statements; however, these statements
stem from a line of questioning designed either to elicit the doctor’s
qualifications, knowledge, and expertise, or to rebut cross-examination
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Decision of the Court
suggesting Dr. Maric was regularly retained by defense counsel and was
therefore biased. The trial court did not err when it overruled Appellants’
objections. Examination concerning an expert’s background and
relationships, if any, with retaining counsel may be relevant to assist the
jury in evaluating that expert’s qualifications, and in determining
credibility and whether and to what extent that expert’s opinions should be
accepted or rejected, in whole or in part. The trial court has substantial
discretion in determining the admissibility of such evidence and, on this
record, the court did not err in overruling the objections.
¶14 Sixth, Appellants contend Dr. Maric made several statements
that violated a pre-trial order precluding Furar from presenting an opinion
via Dr. Maric’s testimony that Appellants’ treating surgeon was “in it for
the money.” Specifically, in answering a question about the medical
necessity of any surgery, Dr. Maric testified, “[t]he last thing I want to do is
put a scar on somebody’s back and get paid, which we get paid from the
patient, et cetera, but them not get better.” Appellants did not object to this
testimony nor ask that it be stricken; however, outside the presence of the
jury and at Appellants’ request, the court admonished Dr. Maric, directing
him not to speculate as to the mindset of Appellants’ treating surgeon.
¶15 During redirect examination, defense counsel questioned Dr.
Maric regarding whether Appellants’ treating surgeon was still owed
$300,000 for the prior surgery, to which the doctor responded, “my
understanding is [the treating surgeon] is recommending further surgery
or may be recommending further surgery. And certainly if you look at how
much is profited from this case. . . . I made a small percentage of that.”
Appellants objected to this statement, which the trial court sustained.
Appellants did not ask that this testimony be stricken. Furar’s doctor then
testified regarding Villa’s unsuccessful surgery:
I saw her before the surgery, did not
recommend surgery. She predictably failed. I
mean, this isn’t rocket science. It’s not as
complicated as they would lead you to believe.
She had complaints. She didn’t have objective
findings. Here we are today in this courtroom
for litigation. I think we know what’s going on
here.
Appellants objected to this statement, but the trial court overruled the
objection. Dr. Maric’s apparent partisanship could arguably undermine his
credibility with the jury as it related to the central issues in the case: the
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Decision of the Court
nature and extent of any injuries caused by the subject accident, the
necessity of medical and surgical treatment for those injuries, and the
nature and extent of any permanent impairment as a result of such injuries.
Evaluation of those issues rested squarely with the jury, and they were free
to weigh the credibility of Dr. Maric against that of Appellants’ treating
surgeon when deliberating this case. See R&M Oxford Constr., Inc. v. Smith,
172 Ariz. 241, 247, 836 P.2d 454, 460 (App. 1992) (stating witness credibility
is a matter for the jury to decide).
¶16 Appellants further allege defense counsel made improper
statements regarding Dr. Maric’s testimony during closing arguments,
effectively arguing that Appellants’ treating physician’s recommendation
for further surgery was designed to insure that physician’s own “job
security.” Appellants did not object to these statements and there was no
fundamental error. Attorneys are permitted to argue permissible
inferences on previously admitted evidence during closing arguments.
Ritchie v. Krasner, 221 Ariz. 288, 303, ¶ 54, 211 P.3d 1272, 1287 (App. 2009).
¶17 Seventh, Appellants assert defense counsel committed
misconduct when counsel signaled an intent to elicit testimony from Dr.
Maric regarding Villa’s alleged failure to take her prescription pain
medication. Before defense counsel asked a single question regarding
Villa’s prescription, Appellants’ counsel requested a bench conference,
where the trial court ruled that Furar could not question the doctor about
Villa’s prescription. Based on the record before this court, there was no
error, as defense counsel was prohibited from questioning Dr. Maric
regarding Villa’s prescription.4
¶18 Appellants next contend defense counsel committed
misconduct when she referenced Villa’s prescription during closing
arguments. In that regard, defense counsel referenced Exhibits 35 and 42,
one of which reflected Villa’s prescribed medications for May and June
2012, and the other represented a negative urinalysis test for Villa during
that time period. Both of these exhibits were admitted at trial and
4 Appellants contend they considered “calling a medical doctor to
rebut the foundationless insinuations of Defense counsel, but considering
the inappropriate action by Defense counsel was made on the last day of
trial just minutes before closing argument, [Appellants] did not call a
rebuttal witness as it would have likely delayed the resolution of the trial.”
Appellants’ factual assertion that this occurred minutes before closing
argument is incorrect, as defense counsel attempted to elicit that testimony
the afternoon before closing arguments.
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Appellants did not object to these statements during Furar’s closing.
Attorneys may draw reasonable inferences about admitted evidence during
closing arguments. Ritchie at 303, ¶ 54, 211 P.3d at 1287. Putting aside the
questionable relevance of such argument, we see no error, let alone
fundamental error, in defense counsel utilizing these exhibits to illuminate
a reasonable inference regarding Villa’s use, or lack thereof, of her
prescription medications.
¶19 Eighth, Appellants contend defense counsel improperly
offered her own testimony during trial by making three assertions of fact
while questioning witnesses. While questioning Alamillo, defense counsel
specifically addressed the jury, stating, “Members of the jury, this is Exhibit
5, Page 19. This is the front of my client’s - - I don’t know the difference
between a rim and a hubcap, so that’s not - - this is what I am referring to.”
Next, defense counsel questioned Alamillo, “When my client came over to
you, you were out of your vehicle, correct?” Alamillo responded that Furar
never approached him. Defense counsel then stated, “Sir, I want to remind
you, you are under oath. . . . My client approached you. You got out of the
passenger side of your car, correct?” Finally, while questioning Furar,
defense counsel stated, “So where I work in Tempe, I get on Broadway, and
then shortly down the road, the 10 goes to the left and the 17 goes to the
right?” Appellants did not object to any of these questions.
¶20 Appellants allege these specific statements constitute
misconduct; however, when read in context, there is no error. For example,
immediately preceding the proffered statement regarding Exhibit 5, the
trial court asked whether showing that exhibit to the jury would be helpful,
as the attorneys were arguing whether the photo reflected a “hubcap” or a
“rim” of a tire. Defense counsel responded affirmatively and was allowed
to publish the photo. Although the statement by counsel while publishing
the exhibit was extraneous and unnecessary, we cannot see how such
statement amounted to fundamental error. With regard to the second
statement of counsel, when read in context, it is apparent that counsel was
simply cross-examining Alamillo and trying to secure agreement with her
client’s testimony about post-accident movements. Finally, defense
counsel’s statements regarding her place of employment appears to have
been offered to provide additional context and perhaps even a mental
visual aid for the jury members regarding the location of the accident.
When taken in context, none of these statements rise to the level of
fundamental error.
¶21 Ninth, Appellants contend defense counsel made several
statements about Appellants and their counsel residing in Las Vegas.
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Appellants allege defense counsel improperly created a “Las Vegas [versus]
Phoenix” dichotomy throughout her closing argument to bolster Dr.
Maric’s credibility, emphasizing the doctor’s ties to “our community.”
Appellants failed to object to any of these statements. More importantly,
counsel’s argument in this regard did not deprive Appellants of any rights
or go to the foundation of Appellants’ case. Moreover, both Appellants’
and Furar’s counsel were free to illuminate the qualifications of their
respective retained doctors, and to argue why one opinion should be
accepted over the other. The credibility of these doctors was appropriately
left to the jury to decide. See R&M Oxford Constr. at 247, 836 P.2d at 460.
II. The conduct of one of the jurors did not affect Appellants’ right to a
fair trial.
¶22 Appellants’ allege that Juror Number 10 “consistently
disregard[ed] the court’s admonitions by speaking with her significant
other who was attending the trial and sitting in the courtroom throughout
the trial.” At the conclusion of the first day of trial, the parties noted a
gentleman, who was present during the proceedings, provided
transportation to one of the jurors. The following day, the individual was
identified as the companion of Juror #10, and the court then specifically
placed him under the “cone of silence in the [standard juror] admonition
[prohibiting jurors from discussing the case with family and friends, and to
avoid speaking to witnesses or counsel].” After continued reported
incidents involving Juror #10’s companion, without objection, the trial
court interviewed each juror with counsel in chambers.5 No transcript has
been provided concerning this proceeding. Ultimately, with no objection
5 Juror #10’s companion attempted to speak with both Appellants’
counsel and defense counsel outside of the courtroom during trial. Furar’s
counsel told the companion they could not speak, and Appellants’ attorney
ignored the companion altogether. The following day, the companion
apparently spoke to Appellants’ doctor, although the nature of this
conversation is not reflected in the record, and Appellants’ counsel
expressly stated, “I don’t know how my [doctor] would know [who the
companion was].” The court again directed the companion to keep his
distance from potential witnesses, just as the jury was instructed. The next
day, Appellants’ counsel again addressed the court regarding the
companion, stating, “he cannot avoid talking,” and alleged that the
companion had been discussing the actions of both counsel with other
attorneys from other courtrooms. Following this series of events, the court
conducted individual meetings with each juror in chambers.
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by either party, the trial court designated Juror #10 as an alternate, and she
was released prior to deliberations.
¶23 Arizona recognizes two types of juror misconduct: (1) cases
involving jurors placing extraneous information before the jury; and (2)
other forms of jury misconduct. Dunn v. Maras, 182 Ariz. 412, 420, 897 P.2d
714, 722 (App. 1995). Here, neither form of jury misconduct existed. First,
Appellants admit “[t]here is no way to know exactly what [the companion]
did while the trial was ongoing, or the extent to which [the companion]
communicated with Juror #10 about [the companion’s] experiences.” Next,
Appellants concede there is no transcript of the in-chambers conversation
with any of the jurors but assert, without more, that the trial court’s ultimate
decision to dismiss Juror #10 was “telling.” The record before us, however,
merely indicates that the trial court stated that if both parties desired to
dismiss her as an alternate, the trial court would “go along with that.” This
statement is hardly indicative of the trial court’s belief that Juror #10, or any
of the jurors, engaged in misconduct.
¶24 Moreover, the cases cited by Appellants as precedent
regarding injecting extraneous material in jury trials involve instances
where it is demonstrated, by either juror affidavit or direct juror testimony,
that evidence not contained in the record was considered during jury
deliberations. See State v. Poland, 132 Ariz. 269, 282-86, 645 P.2d 784, 797-
801 (1982) (holding the court could not conclude beyond a reasonable doubt
that defendant’s prior convictions were not mentioned when four jurors
testified that those convictions had been discussed during juror
deliberations); see also Kirby v. Rosell, 133 Ariz. 42, 46, 648 P.2d 1048, 1052
(App. 1982) (holding the trial court did not abuse its discretion in granting
a motion for new trial where on the basis of a juror’s affidavit, the jury
considered notes from a business law textbook which were not part of the
evidence). Here, there is no affidavit or other evidence that otherwise
indicates any extraneous information was utilized in the jury’s decision.
There is also no evidence that Juror #10 or her companion ever provided
other members of the jury with any such evidence before Juror #10’s
dismissal. Appellants are not entitled to a new trial on the basis of their
unsupported supposition concerning Juror #10 or her companion.
III. The jury award was supported by the evidence.
¶25 Appellants challenge the jury’s award of damages, alleging
the award was insufficient and not supported by the evidence. Appellants
fail to set forth any argument regarding this issue in their opening brief;
thus, Appellants have waived this issue on appeal. See State v. Guytan, 192
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Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App. 1998) (issues not raised in the
opening brief are waived).6
IV. The trial court properly assessed Rule 68 sanctions against
Appellants.
¶26 Appellants assert the trial court erred when it imposed Rule
68 sanctions. On January 18, 2011, Furar offered to have judgment entered
7
for $10,600 in Villa’s favor, and the following day, Furar offered to have
judgment entered for $16,200 in Alamillo’s favor. Appellants rejected these
offers on January 27, 2011, instead offering to accept judgments for $100,000
in favor of each Appellant. The parties did not reach an agreement and the
jury ultimately awarded Villa $5,000 and Alamillo nothing. Furar then
sought sanctions pursuant to Rule 68, and the trial court imposed a
$29,608.24 sanction against Alamillo and a $20,802.17 sanction against Villa.
We review an award of Rule 68 sanctions for an abuse of discretion. Flood
Control Dist. v. Paloma Inv. Ltd. P’ship, 230 Ariz. 29, 45, ¶ 57, 279 P.3d 1191,
1207 (App. 2012).
6 Even were we to assume Appellants had not waived this issue, we
would find no error in the jury’s award to Villa. Substantial evidence
supported the verdicts, and we will not reweigh evidence on appeal. See
State v. Jones, 188 Ariz. 388, 394, 937 P.2d 310, 316 (1997).
7 On appeal, Furar argues Appellants were required to notify Furar in
writing within ten days after service of the offer regarding any objections
to the validity of the offer; otherwise, any later objection to the validity of
the offers was waived. See Ariz. R. Civ. P. 68(d); see also Boyle v. Ford Motor
Co., 235 Ariz. 529, 531, ¶ 11, 334 P.2d 219, 221 (App. 2014). Appellants
explicitly declined Furar’s offers of judgment without asserting any
objection to the validity of the offers under Rule 68. After Furar sought Rule
68 sanctions, Appellants then alleged Furar failed to comply with Rule 68,
as the offers were less than Appellants’ medical bills and were premature.
The trial court did not address the issue of waiver, but ultimately
determined Rule 68 sanctions were appropriate. Appellants’ failure to
timely object to the validity of the offers may have arguably constituted
waiver, see Ariz. R. Civ. P. 68(d); however, we nonetheless address
Appellants’ arguments on the merits.
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¶27 Rule 68(g) provides:
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. The determination whether a
sanction should be imposed after an arbitration
hearing shall be made by reference to the
judgment ultimately entered, whether on the
award itself pursuant to Rule 76(c) or after an
appeal of the award pursuant to Rule 77.
¶28 Appellants contend the language of the defense offers of
judgment violated Rule 68 in that they required Appellants to “secure
releases or satisfactions for any and all valid liens arising from the subject
accident, and the amounts offered were so much less than [Appellants’]
medical bills, the conditional offers could not realistically have been
accepted.” It is certainly true that the offers of judgment were for sums
substantially less than Appellants’ claimed special damages; however, the
defense in this case apparently took the position from the beginning that
Appellants’ damages, if any, were not casually related to this automobile
accident. The offers of judgment were consistent with that position.
Whether Appellants would “realistically” accept the offers is not a relevant
consideration in imposing Rule 68 sanctions.
¶29 Appellants also assert the offers violated Rule 68 by requiring
releases or other approvals by lienholders. A defendant with knowledge of
existing medical or hospital liens who does not secure proof of those
lienholders’ acquiescence with any settlement (by agreeing to negotiate the
lien, by signing a release, etc.) and proceeds to settle the case with the
claimant is at risk for having to later satisfy that lien and, in effect, “pay
twice.” See Midtown Medical Group, Inc. v. Farmers Ins. Group, 235 Ariz. 593,
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595, ¶ 9, 334 P.3d 1252, 1254 (App. 2014); see also A.R.S. § 33-934(A); cf. Abbott
v. Banner Health Network, 236 Ariz. 436, 341 P.3d 478 (App. 2014). A failure
to include such protective language in a settlement agreement or include
such a condition in a proposed offer of judgment could give rise to a legal
malpractice claim.
¶30 While Appellants contend they could not realistically accept
these offers (suggesting perhaps that such offers were illusory), the record
is silent on any proof that Appellants sought to obtain waivers or reduction
of any medical and hospital liens and that such efforts were rejected.
Absent such evidence, we will not speculate about the legitimacy of these
offers, which, on their face, comply with Rule 68.
¶31 Appellants further argue that is impossible to know if they
received a more favorable judgment than the offer, asserting that they could
have filed for bankruptcy after the judgment in this case was entered, which
likely would reduce or eliminate the medical liens. Appellants conclude
“[h]aving the right to file bankruptcy, to reduce or eliminate medical liens,
is a more favorable position than being contractually obligated to satisfy
those liens in full.” This argument is without merit. The consequences of
bankruptcy are far-reaching and potentially financially devastating. To
suggest Appellants would be in a “more favorable position” filing for
bankruptcy than attempting to negotiate the liens and accept Furar’s offers
is not supported either by law or by common sense.
¶32 Appellants also contend the sanction awards were not
supported by adequate documentation and contained excessive expert fees.
After the trial court had determined Rule 68 sanctions against Appellants
were appropriate, it ordered Furar to produce documentary support for his
expert fees. Contrary to Appellants’ assertion that Furar failed to provide
documentary evidence for his taxable costs, the trial court only ordered
Furar to “submit a supplemental statement of costs with documentary
evidence supporting the claim for expert witness fees.” Furar then did so
for Dr. Maric. Accordingly, Furar complied with the court’s order and
provided the requested documents to substantiate his claim for expert fees.
¶33 Contrary to Appellants’ argument, the trial court’s imposition
of sanctions was reasonable and did not contain excessive expert fees. The
trial court did not abuse its discretion when it awarded costs associated
with defense counsel’s travel outside of Arizona to conduct depositions, but
denied Appellants’ similar request of costs for their counsel to travel to
Arizona to conduct depositions. The litigation was initiated in Arizona, and
Appellants’ counsel, although apparently based in Las Vegas, is admitted
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VILLA v. FURAR
Decision of the Court
to practice in Arizona. The trial court was in the best position to evaluate
whether, under the circumstances, the travel costs for Appellants’ counsel
should qualify as taxable costs. On this record, we cannot say that the trial
court abused its discretion in the manner in which it allowed or disallowed
travel costs.
¶34 Appellants finally contend they should not be responsible for
paying expert fees from rescheduled trial settings because Appellants were
not solely responsible for the rescheduling of those dates. Under Arizona
law, “[a] sanction of ‘reasonable expert witness fees’ under Rule 68(d) is not
limited to those fees incurred for trial testimony, but includes all
‘reasonable expert witness fees’ incurred after the offer of judgment was
made.” Levy v. Alfaro, 215 Ariz. 443, 445, ¶ 14, 160 P.3d 1201, 1203 (App.
2007). We find no abuse of the trial court’s discretion when it included
those rescheduled pre-trial costs in calculating the sanctions award.
CONCLUSION
¶35 For the foregoing reasons, we affirm the jury’s verdicts and
trial court’s order imposing Rule 68 sanctions against Appellants. Furar
requests attorneys’ fees on appeal pursuant to ARCAP 25. In our discretion,
we deny Furar’s request. Subject to compliance with ARCAP 21, we award
Furar his taxable costs on appeal.
:ama
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