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Vega v. Sullivan3/13/2001
costs from the judgment for purposes of comparing it to the arbitration award. We reject that contention.
As plaintiffs correctly point out, Uniform Rule 7(f) mandates an award, inter alia, of taxable costs to the nonappealing party if the judgment is not at least ten percent more favorable than the arbitration award to the party who appealed from that award, regardless of who qualifies as the "successful party" for purposes of a cost award under A.R.S. § 12-341. That procedural scenario does not permit, let alone require, the trial court to disregard taxable costs when comparing the "judgment on the trial de novo" with the "arbitration award" for purposes of Uniform Rule 7(f). Thus, we agree with plaintiffs' assertion that "Rule 7(f) does not affect the award of costs under A.R.S. § 12-341; it merely provides an additional method by which costs are allocated in the particular circumstance of a judgment obtained after an appeal from arbitration."
Defendant's argument is somewhat persuasive because when a defendant appeals from an arbitration award, inclusion of taxable costs for purposes of the Uniform Rule 7(f) comparison and computation can only favor the plaintiff, not the defendant. As defendant points out, a plaintiff's taxable costs may increase, but will never decrease, between arbitration and trial. Consequently, as to the taxable cost portion of a judgment, an appealing defendant never will be able to obtain a result that is at least ten percent (or, for that matter, any percentage) more favorable than the taxable costs awarded by the arbitrator and included in the award.
Conversely, however, a plaintiff who appeals from an arbitration award also will be liable for costs and fees under Uniform Rule 7(f) unless he or she obtains a judgment (which may include costs) that is at least ten percent more favorable than the arbitration award (including costs). Thus, the bar on trial de novo is similarly raised for whichever party, plaintiff or defendant, appeals from the arbitration award. And, perhaps most importantly, including taxable costs in the Uniform Rule 7(f) comparison and computation is not only faithful to the literal wording of that rule and the legal meaning of its key terms, but also is "in harmony with the purpose of the rule: to discourage appeals of reasonable arbitration awards." Tallsalt, 192 Ariz. 129, , 962 P.2d 203, .
Accordingly, we affirm the trial court's judgment which awarded attorney's fees and expert witness fees to plaintiffs. We deny plaintiffs' request, made pursuant to Uniform Rule 7(f)(ii) and Rule 21, Ariz. R. Civ. App. P., for an award of attorney's fees on appeal. See Jarostchuk v. Aricol Communications, Inc., 189 Ariz. 346, 350, 942 P.2d 1178, 1182 (App. 1997) (neither Uniform Rule 7(f) nor § 12-133(I) applies in court of appeals to claims for attorney's fees incurred on appeal from superior court).
JOHN PELANDER, Judge
CONCURRING:
J. WILLIAM BRAMMER, Presiding Judge
M. JAN FLOREZ, Judge
Page 1 2 3 4 Arizona Personal Injury Attorneys
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