Reyes v. Frank's Serv. & Trucking, LLC

235 Ariz. 605

334 P.3d 1264

695 Ariz. Adv. Rep. 17

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.

Knapp & Roberts, PC By David L. Abney, Scottsdale, Co–Counsel for Plaintiff/Appellee/Cross–Appellant.

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 Trucking, L.L.C. (“FST”) based on a collision between FST driver Antonio Silva and plaintiff Hugo Reyes. FST had made a pretrial offer of judgment that exceeded the amount Reyes would recover based on the jury's verdict. The trial court denied FST's post-trial request for Arizona Rule of Civil Procedure 68(g) sanctions, though, because, after adding taxable costs to the damages award, Reyes's recovery exceeded the offer of judgment amount. To resolve FST's claims that the court erred by denying Rule 68(g) sanctions and by awarding costs that were not recoverable, we must determine whether various litigation expenses were properly characterized as taxable costs.

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 Arizona Revised Statutes (“A.R.S.”) section 12–2101(A)(1).

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.R.S. § 12–332(A) ; as relevant here, the statute provides:

A. Costs in the superior court include:

1. Fees of officers and witnesses.

2. Cost of taking depositions.

...

6. 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 transcripts.” Id.; see also Johnston v. Univ. Hosp., 149 Ariz. 422, 425, 719 P.2d 308, 311 (App.1986) (fees paid to adverse party's expert for time spent testifying at deposition are recoverable under § 12–332(A)(2) ).

¶ 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 § 12–332(A). Id. Contrary to FST's assertion, DeMontiney remains valid authority on this point. Although the supreme court vacated the court of appeals' opinion regarding two specific issues, neither involved taxable costs. DeMontiney, 144 Ariz. 6, 8, 695 P.2d 255, 257.

¶ 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 A.R.S. § 12–332(A). Id. at 423, ¶ 37, 224 P.3d at 239. We stated, in pertinent part:

[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.

Id.

¶ 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.” A.R.S. § 12–332(A)(2). Nothing in the statute suggests that in-state deposition costs differ in legal stature from out-of-state deposition expenses, and FST has identified no policy rationale supporting different treatment. Indeed, such an artificial distinction would lead to absurd results. Under FST's interpretation of the statute, a Bullhead City, Arizona lawyer could not recover expenses incurred in driving to a deposition in Bisbee, Arizona (more than 800 miles round-trip) but could recover expenses associated with a deposition held in Laughlin, Nevada (roughly 12 miles round-trip).

¶ 12 Section 12–332(A)(2) does not differentiate between in-state and out-of-state deposition costs. Courts “are not at liberty to rewrite ... statute[s] under the guise of judicial interpretation.” New Sun Bus. Park, LLC v. Yuma Cnty., 221 Ariz. 43, 47, 209 P.3d 179, 183 (App.2009) (internal quotation marks omitted). We hold that both in-state and out-of-state deposition expenses may be recovered as taxable costs under § 12–332(A)(2) if they are reasonably and necessarily incurred. See Fowler v. Great Am. Ins. Co., 124 Ariz. 111, 114, 602 P.2d 492, 495 (App.1979) (trial courts have broad discretion in setting the amount of a taxable cost award and should consider the need for the expenditure and its reasonableness).

¶ 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 proposition that a party may recover costs incurred in attending out-of-state depositions of an opposing party's witnesses. Id. at 517, 141 P.2d at 524. It offers no guidance about whether expenses of deposing independent fact witnesses are taxable costs under A.R.S. § 12–332(A)(2).

¶ 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 A.R.S. § 12–332(A)(1). And to the extent the interpreter expense was properly deemed a witness fee, FST asserts, A.R.S. § 12–303 limits the amount of the award to $12.

¶ 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 § 12–332(A)(2). See, e.g., Rabe v. Cut and Curl of Plaza 75, Inc., 148 Ariz. 552, 555, 715 P.2d 1240, 1243 (App.1986) (taxable costs...