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Vega v. Sullivan3/13/2001
AFFIRMED
Defendant/appellant Lynda Sullivan appeals from a judgment awarding attorney's fees and expert witness fees to plaintiffs/appellees Barbara and Vicente Vega pursuant to former Rule 7(f), Uniform Rules of Procedure for Arbitration (Uniform Rules), 17B A.R.S. That rule governs the awarding of costs and fees on appeal to superior court from an arbitration award. In determining whether the rule mandated such an award after a trial de novo in superior court, the trial court included taxable costs in both the arbitration award and the judgment when comparing the two. We hold that the trial court properly interpreted and applied Uniform Rule 7(f) and, therefore, affirm the judgment.
BACKGROUND
This personal injury action arose from a motor vehicle accident. Because the amount in controversy did not exceed $30,000, plaintiffs' action was referred for compulsory arbitration pursuant to A.R.S. § 12-133 and the applicable rules. See Unif. R. P. Arbitration 1 through 7; Pima County Sup. Ct. Local Rule 3.9, 17B A.R.S. After a hearing, the arbitrator filed a "notice of decision" pursuant to Uniform Rule 5(a), awarding damages in the amount of $10,600 to plaintiffs. In compliance with that same rule, the arbitrator subsequently entered and filed an award in favor of plaintiffs in the total amount of $10,982.74, which included their taxable costs of $382.74.
Defendant timely appealed from the arbitration award pursuant to § 12-133(H) and Uniform Rule 7. After a trial de novo in superior court, the jury returned a verdict in favor of plaintiffs in the amount of $9,500. Thereafter, plaintiffs filed their affidavit of taxable costs in the total amount of $420.74, consisting of the $382.74 pre-arbitration costs which the arbitration award had included, plus an additional $38 of taxable costs incurred after arbitration and before trial. The trial court entered judgment in the total amount of $9,920.74, which included the jury's $9,500 damage award plus the $420.74 in taxable costs.
Plaintiffs subsequently moved for an award of attorney's fees and expert witness fees pursuant to Uniform Rule 7(f). Over defendant's opposition, the trial court granted plaintiffs' motion and ultimately entered a separate judgment against defendant, awarding attorney's fees and expert witness fees to plaintiffs in the total amount of $19,978.01. This appeal from that judgment followed.
DISCUSSION
Defendant challenges only the propriety, not the amount, of the award to plaintiffs of attorney's fees and expert witness fees. She contends the trial court misapplied Uniform Rule 7(f), which provides in pertinent part:
If the judgment on the trial de novo is not more favorable by at least 10% than the monetary relief, or more favorable than the other relief, granted by the arbitration award, the court shall order the deposit [provided for in Uniform Rule 7(b)] to be used to pay, or that the appellant pay if the deposit is insufficient, the following costs and fees unless the Court finds on motion that the imposition of the costs and fees would create such a substantial economic hardship as not to be in the interests of justice:
(ii) To the appellee, those costs taxable in civil actions together with reasonable attorneys' fees as determined by the trial judge for services necessitated by the appeal; and
(iii) Reasonable expert witness fees incurred by the appellee in connection with the appeal.
In granting plaintiffs' motion for an award of fees, the trial court concluded that Uniform Rule 7(f) required a comparison of the "arbitration award" and the "judgment," which the court viewed
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