Opinion
1 CA-CV 12-0639
05-02-2013
STEELE ZINSER, Plaintiff/Appellant, v. MICHELLE GOTTSCHALK, Defendant/Appellee.
Mathers Law Offices LLC by Christopher M. Mathers Attorneys for Plaintiff/Appellant Owens & Perkins, P.C. by Max Nicholas Hanson Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-095635
The Honorable Karen A. Potts, Judge
AFFIRMED
Mathers Law Offices LLC
by Christopher M. Mathers
Attorneys for Plaintiff/Appellant
Scottsdale Owens & Perkins, P.C.
by Max Nicholas Hanson
Attorneys for Defendant/Appellee
Scottsdale PORTLEY, Judge ¶1 Steele Zinser appeals the trial court's award of attorneys' fees to Michelle Gottschalk. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Zinser and Gottschalk were living together and she accepted his marriage proposal. As the ardor of their romantic fire waned, he had her execute a promissory note to repay him $35,400 for sums loaned, which included her engagement ring. She was to pay him from monies she expected to receive from her personal injury settlement. Although she collected her settlement, she did not repay Zinser. They did not get married and Gottschalk was forced to move out. ¶3 Zinser then sued Gottschalk to enforce the promissory note. She answered and filed a counterclaim for sums she paid for a security deposit, rent, and the return of her furniture. The case went to mandatory arbitration and an arbitrator awarded Zinser $8250. Zinser appealed the award. After a bench trial, the court determined that (1) the promissory note was not a valid contract, and (2) there was no agreement obligating Zinser to reimburse Gottschalk. As a result, the court found in favor of Gottschalk on Zinser's claim and found in favor of Zinser on Gottschalk's counterclaim. The court also awarded Gottschalk $24,236.51 in attorneys' fees and denied Zinser's request for costs.
DISCUSSION
¶4 Zinser argues that the trial court improperly awarded Gottschalk attorneys' fees. We review an award of attorneys' fees for an abuse of discretion, Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App. 2004), and will not disturb the "court's discretionary award of fees if there is any reasonable basis for it." Hale v. Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, 117, ¶ 20, 961 P.2d 1059, 1065 (App. 1998). ¶5 Zinser first contends that the court erred because Gottschalk's application for attorneys' fees submitted 130 days after the court's decision was untimely pursuant to Arizona Rule of Civil Procedure ("Rule") 54(g). Rule 54(g)(2) states that "[t]he motion for attorneys' fees shall be filed within 20 days from the clerk's mailing of a decision on the merits of the cause, unless extended by the trial court." The Rule, however, "gives the trial court discretion to extend the time for requesting attorneys' fees, and the party seeking the fees need not request an extension prior to untimely filing its claim." Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 479, ¶ 60, 224 P.3d 960, 976 (App. 2010); see also White v. Kaufmann, 133 Ariz. 388, 390, 652 P.2d 127, 129 (1982) ("No specific time limit for bringing the issue of attorney's fees is set forth in the statute; therefore, the time within which notice must be given that fees are claimed . . . is largely within the discretion of the trial court."). Although Zinser challenged the timeliness of the fee application, the court considered the pleadings before rejecting his argument and considering the application for fees. We, as a result, find no abuse of the court's discretion. ¶6 Zinser next asserts that the court improperly awarded Gottschalk attorneys' fees because Gottschalk did not prevail on her counterclaim and therefore was not the prevailing party. We disagree. ¶7 Arizona Revised Statutes ("A.R.S.") section 12-341.01(A) permits an award of attorneys' fees "to the successful party in any contested action arising out of a contract." Schwartz v. Farmers Ins. Co. of Ariz. , 166 Ariz. 33, 38, 800 P.3d 20, 25 (App. 1990). The trial court has the sole discretion to determine the successful party, and its ruling "will not be disturbed on appeal if any reasonable basis exists for it," Berry v. 352 E. Virginia, L.L.C., 228 Ariz. 9, 13, ¶ 21, 261 P.3d 784, 788 (App. 2011) (internal quotation marks omitted), because of the trial court's "superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985). ¶8 To determine the successful party "in a case involving multiple claims and varied success, the trial court may apply a 'percentage of success' or a 'totality of the litigation' test." Berry, 228 Ariz. at 13-14, ¶ 22, 261 P.3d at 788-89. Therefore, a party that "does not recover the full measure of relief it requests" can still be the successful party and prevail for the purposes of "receiving a discretionary award of attorneys' fees." Id. at 13-14, ¶¶ 22, 24, 261 P.3d at 788-89 (internal quotation marks omitted). ¶9 Here, Zinser sought $35,400 in damages for breach of contract. Gottschalk, on the other hand, sought $28,582.36 as reimbursement for monies she had paid to Zinser. Although Zinser was awarded a sum after the compulsory arbitration, the trial court found that neither Zinser nor Gottschalk were entitled to an award on their respective claims. See Ocean W. Contractors, Inc. v. Halec Const. Co., Inc. , 123 Ariz. 470, 473, 600 P.2d 1102, 1105 (1979) ("The party who is awarded a money judgment in a lawsuit is not always the successful or prevailing party. The award of money, however, is an important item to consider when deciding who, in fact, did prevail."). The court, nevertheless, determined that Gottschalk was the prevailing party after considering the totality of the litigation and claims. The court did not abuse its discretion by finding that Gottschalk was the prevailing party — she successfully defeated Zinser's claim that she had breached the promissory note. See, e.g. , Nataros v. Fine Arts Gallery of Scottsdale, Inc. , 126 Ariz. 44, 49, 612 P.2d 500, 505 (App. 1980) (holding that the trial court did not abuse its discretion in awarding defendant attorneys' fees and costs despite neither party "prevail[ing] on their respective complaint"); see also McEvoy v. Aerotek, Inc. , 201 Ariz. 300, 303, ¶ 12, 34 P.3d 979, 982 (App. 2001) (explaining that there is a "well-established policy that . . . a party may be the prevailing party although he recovers no award of damages") (internal quotation marks omitted). ¶10 Although Zinser complains that his claim was more meritorious, we will not substitute our judgment for that of the trial court in matters of discretion especially since he did not challenge its substantive ruling. Sanborn v. Brooker & Wake Prop. Mgmt., Inc. , 178 Ariz. 425, 430, 874 P.2d 982, 987 (App. 1994) (quoting Associated Indemnity, 143 Ariz at 571, 694 P.2d at 1185). Consequently, the court did not abuse its discretion in awarding attorney's fees to Gottschalk.
ATTORNEYS' FEES
¶11 Gottschalk requests an award of her attorneys' fees and costs on appeal pursuant to Arizona Rule of Civil Procedure ("ARCAP") 21 and A.R.S. §§ 12-341, -341.01 and -342 (West 2013). Because Gottschalk is the prevailing party on appeal, we will award her a reasonable amount of her fees and costs upon her compliance with ARCAP 21.
CONCLUSION
¶12 For the foregoing reasons, we affirm the judgment.
____________________
MAURICE PORTLEY, Judge
CONCURRING: ____________________
MARGARET H. DOWNIE, Presiding Judge
____________________
PHILIP HALL, Judge