Opinion
No. 1 CA-CV 14-0768
11-24-2015
MICHELLE R. WHITE and MATTHEW L. WHITE, wife and husband, Plain tiffs/Appellees, v. NABIL B. KABRA, Defendant/Appellant.
COUNSEL Roush McCracken & Guerrero, LLP, Phoenix By Robert D. McCracken Counsel for Plaintiffs/Appellees Law Offices of David Dow, Phoenix By David W. Dow Counsel for Defendant/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2011-005024
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL Roush McCracken & Guerrero, LLP, Phoenix
By Robert D. McCracken
Counsel for Plaintiffs/Appellees
Law Offices of David Dow, Phoenix
By David W. Dow
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kent E. Cattani and Judge John C. Gemmill joined. JOHNSEN, Judge:
¶1 Nabil Kabra appeals the superior court's order awarding taxable costs to Michelle and Matthew White for the fees and expenses a court-appointed receiver incurred in levying execution and selling a home fraudulently conveyed to Kabra. For the following reasons, we affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Whites obtained a judgment in a personal-injury case against Kabra's brother in 2009 for more than $667,000. In a subsequent litigation, the superior court entered judgment in 2013 in favor of the Whites and against Kabra, finding Kabra's brother had fraudulently conveyed a home to him with the intent to defraud the Whites. In the judgment, the court granted the Whites' request for appointment of a receiver pursuant to Arizona Revised Statutes ("A.R.S.") section 44-1007(A)(4)(b) (2015) to levy execution against the property pursuant to § 44-1007(B) and awarded taxable costs. Kabra appealed the judgment, which we affirmed. White v. Kabra, 1 CA-CV 14-0030, 2015 WL 1044646 (Ariz. App. Mar. 10, 2015) (mem. decision).
Absent material revision after the relevant date, we cite the current version of the relevant statutes.
¶3 In February 2014, the superior court signed an order appointing a receiver to market and sell the home and to deliver "all net proceeds" from such sale to the Whites. The order further provided:
RECEIVER COMPENSATION: The Receiver shall be compensated for his services on a commission basis, according to prevailing rates and practices in the residential real estate industry, and as approved by the Court. The Receiver shall also be entitled to reimbursement for all
reasonable costs and expenses associated with the receivership. All such fees and costs to be considered taxable fees and costs against Defendant as the Receiver shall be acting as an officer of the Court. A.R.S. 12-332 A.1.Kabra did not file an objection to the order appointing the receiver; nor did he appeal the order.
¶4 The Whites spent a considerable amount of time and money fixing up the home, which had been left vacant, abandoned and neglected. After the receiver contracted to sell the home, the Whites moved for court approval of the sale. The Whites attached to the motion the purchase contract and counter offer, documentation showing the amount spent for repairs and fix-up of the home, the buyer's inspection notice, and the seller's response, which included a list of items that needed to be repaired pursuant to the purchase contract. Kabra did not object to the Whites' motion, and in July 2014, the superior court approved the sale, ordering that the receiver and buyer's agent be paid from the sales proceeds and that the receiver authorize payment from the sales proceeds for closing costs, property taxes and various other sundry items. The superior court further ordered that the Whites be paid "from the sale proceeds and directly from escrow as reimbursement for receivership expenses advanced on behalf of the receivership estate" because the Whites had spent money to repair the home. The order approving the sale was signed and entered pursuant to Arizona Rule of Civil Procedure 54(b); Kabra did not appeal.
¶5 In due course, the receiver filed a report documenting the sales price of the home as $301,559.80 and itemizing costs of $45,787.31 associated with the receivership. The costs included commissions, title, closing, recording, warranty and disclosure costs, unpaid HOA fees and property taxes, utility expenses, concessions to the buyer and reimbursements to the Whites per the court order and for additional repairs.
¶6 Citing the February 2014 order, the Whites then moved for entry of judgment against Kabra in the amount of $45,787.31 as supplemental taxable costs associated with the receivership. Over Kabra's objection, the superior court entered judgment against him for $45,787.31. Kabra timely appealed.
DISCUSSION
A. Appellate Jurisdiction.
¶7 The Whites move to dismiss Kabra's appeal as untimely because he failed to appeal either the February 2014 order appointing the receiver or the subsequent order approving the sale of the home—both of which addressed reimbursement of the receiver's costs and expenses—arguing those orders "stand as 'law of the case.'"
The doctrine of law of the case is "merely a practice that protects the ability of the court to build to its final judgment by cumulative rulings, with reconsideration or review postponed until after the judgment is entered. This doctrine does not prevent a judge from reconsidering his or her previous nonfinal orders." State v. King, 180 Ariz. 268, 279 (1994) (quoting 1B James W. Moore, Moore's Federal Practice ¶ 0.04[4.-1] (2d ed. 1992); Plumb v. State, 809 P.2d 734, 739 (Utah 1990)).
¶8 The right to appeal in Arizona is "purely statutory." State v. Bayardi, 230 Ariz. 195, 197, ¶ 6 (App. 2012). The primary statute governing appeals in civil actions is A.R.S. § 12-2101 (2015), which permits appeals from final judgments and any special order made after final judgment. A.R.S. § 12-2101(A)(1)-(2). To be appealable, a post-judgment order must raise issues "different from those that would arise from an appeal from the underlying judgment," and "must either affect the judgment or relate to it by enforcing it or staying its execution." Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (App. 1995) (quotation omitted).
¶9 The issues raised by Kabra's appeal from the post-judgment order awarding $45,787.31 in supplemental taxable costs differ from the issues that arose from Kabra's appeal from the original final judgment finding fraudulent conveyance, granting appointment of a receiver to levy execution against the home and awarding taxable costs to the Whites. Moreover, the post-judgment order relates to the final judgment because it supplements the taxable costs awarded in the final judgment. For these reasons, the appeal from the post-judgment order satisfies the Arvizu factors. The fact that Kabra did not appeal from the order appointing the receiver or the order approving the sale of the home does not change this analysis; neither of those orders included a taxable costs award. Accordingly, we deny the Whites' motion to dismiss because we have jurisdiction pursuant to § 12-2101(A)(2).
B. Taxable Costs.
¶10 Kabra argues A.R.S. § 12-332 (2015) does not allow the superior court to award the receiver's fees and expenses as taxable costs. He argues the fees and expenses the receiver incurred as an officer of the court "are not legally reimbursable" and that "[a]ny and all costs associated with the sale of the home MUST be part of the net sales price." The Whites counter that because the February 2014 order provided that the receiver was an officer of the court and that all of his costs and expenses would be taxable fees and costs against Kabra, the superior court properly entered the post-judgment order for supplemental taxable costs against Kabra pursuant to A.R.S. § 12-332(A)(1) and (A)(6).
Recoverable costs include the "[f]ees of officers and witnesses" and "[o]ther disbursements that are made or incurred pursuant to an order." A.R.S. § 12-332(A)(2), (A)(6). --------
¶11 Whether a particular expense may qualify as a taxable cost is an issue of law that we review de novo. Reyes v. Frank's Service and Trucking LLC, 235 Ariz. 605, 608, ¶ 6 (App. 2014). We review an award of costs for abuse of discretion. See Graville v. Dodge, 195 Ariz. 119, 130, ¶ 53 (App. 1999). "[T]he trial court is given wide latitude in assessing the amount" of costs. Fowler v. Great Am. Ins. Co., 124 Ariz. 111, 114 (App. 1979).
¶12 The superior court's February 2014 order authorized the receiver to incur certain costs and expenses, including repair costs, and expressly provided that the receiver's reasonable costs and expenses would be treated as taxable costs pursuant to A.R.S. § 12-332(A). The February 2014 order was appealable as an order appointing a receiver. A.R.S. § 12-2101(A)(5)(b). As noted, Kabra neither objected to the order in the superior court nor appealed from the order. By failing to object to the Whites' motion for entry of the February 2014 order, Kabra waived his right to challenge the assessment of the receiver's costs and expenses as taxable costs in this appeal. Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14 (App. 2007) ("As a general rule, a party cannot argue on appeal legal issues not raised below."). Although Kabra objected to the Whites' application for supplemental taxable costs, his objection came too late: The superior court had ruled six months earlier that the receiver's expenses would be taxable costs, and the receiver and the Whites were entitled to act in reliance on that order.
¶13 Kabra further argues it was not reasonable to hold him liable for the taxes, homeowner's fees, utilities, real estate commissions and expenses of fixing up the home for sale. In applying for the cost award, the Whites argued the receiver was compelled to pay taxes, utilities and assessments because Kabra had failed to pay them, and to incur other expenses required because Kabra had allowed the home to fall into disrepair. The $45,787.31 assessed as taxable costs was supported by documentation provided by the receiver. The superior court found the receiver's costs and expenses reasonable under the circumstances. We see nothing in the record that causes us to conclude the court abused its discretion in making that finding.
CONCLUSION
¶14 For the foregoing reasons, we affirm the award of taxable costs. In our discretion, we deny the Whites' request for attorney's fees. We award the Whites their taxable costs of appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.