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Pima County v. Hogan11/30/1999
AFFIRMED
Pima County (the County) appeals the trial court's order denying its request for sanctions against appellee Jerome Hogan under Rule 68, Ariz. R. Civ. P., 16 A.R.S., after a bench trial in this eminent domain action. The County contends that the trial court erred when it found that Rule 68 did not apply to eminent domain proceedings, relying instead on A.R.S. § 12-1128. We affirm.
Facts and Procedural Backround
The County brought this eminent domain action against Hogan pursuant to A.R.S. § 12-1116 for road construction. Before trial, the County filed an offer of judgment pursuant to Rule 68 in the amount of $30,000, plus taxable costs. Hogan moved to strike the offer on the ground that Rule 68 does not apply to eminent domain proceedings. The parties stipulated that the court would not rule on that motion until after the trial.
Following a bench trial, the court awarded Hogan $27,890 for the parcel condemned, plus taxable costs. The County then moved, pursuant to Rule 68, for sanctions in the form of compensation for its expert witness and double its taxable costs because the award was more favorable to it than its pretrial offer. Applying § 12-1128, rather than Rule 68, the trial court denied the County's motion. This appeal followed.
Discussion
Rule 68(a) provides that a party may offer to allow judgment to be entered for or against that party in a certain amount. If the opposing party rejects the offer and the judgment ultimately obtained "is equal to, or more favorable to the offeror than, the offer, the offeree must pay, as a sanction, those reasonable expert witness fees and double the taxable costs of the offeror, . . . incurred after the making of the offer." Ariz. R. Civ. P. 68(d). The County argues that Rule 68, which applies to civil actions generally, applies to eminent domain proceedings as well because the purpose of the rule, which is to encourage settlement, is equally applicable to eminent domain actions. The County argues this is so despite the apparent conflict between the rule and § 12-1128, a statute that specifically applies to eminent domain actions. We review this issue of law de novo. Wersch v. Radnor/Land-grant--A Phoenix Partnership, 192 Ariz. 99, 961 P.2d 1047 (App. 1997).
Section 12-1128 provides as follows:
Costs and jury fees
A. Costs may be allowed or not, and if allowed may be apportioned between the parties on the same or adverse sides, in the discretion of the court.
B. The jury fee may be assessed or not against the plaintiff, in the discretion of the court. If jury fees are so assessed, they shall be calculated in the same manner and amounts as in other civil actions and the plaintiff shall pay such fee to the clerk of the court for transmittal to the county treasurer who shall dispose such monies in the same manner as the Disposition of other jury fees.
C. In an action for condemnation of property by or on behalf of an educational, reformatory or penal institution of the state, if the board or officers having charge of the institution, prior to commencement of the action or proceeding, tender to the owner of the property such sum of money as the board or officers deem the reasonable value of the property, and the owner refuses to accept it and transfer the property, then all costs and expenses of the action or proceeding shall be taxed against the owner unless the sum of money assessed in the judgment as the value of the property and compensation to be paid therefor is greater than the amount so tendered.
The statute mandates cost shifting between the parties only in those circumstances
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