Opinion
No. 1 CA-CV 14-0079
02-26-2015
R&J RECOVERY L.L.C., Plaintiff/Appellant, v. WELLS FARGO BANK N.A., Defendant/Appellee.
COUNSEL Curtis Ensign PLLC, Phoenix By Curtis D. Ensign Counsel for Plaintiff/Appellant Jaburg & Wilk PC, Phoenix By David L. Allen, Jeffrey A. Silence Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2012-010393
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL Curtis Ensign PLLC, Phoenix
By Curtis D. Ensign
Counsel for Plaintiff/Appellant
Jaburg & Wilk PC, Phoenix
By David L. Allen, Jeffrey A. Silence
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined. NORRIS, Judge:
¶1 This appeal arises out of summary judgment in favor of Plaintiff/Appellant R&J Recovery L.L.C. on its breach of contract claim against Defendant/Appellee Wells Fargo Bank N.A., for allowing an unauthorized third party to withdraw $16,500 from one of R&J's accounts with Wells Fargo. On appeal, R&J argues the superior court abused its discretion in denying R&J's request for an award of attorneys' fees under Arizona Revised Statutes ("A.R.S.") section 12-341.01 (Supp. 2014), and in denying its motion for new trial in which it re-urged its request for a fee award. We disagree with both arguments.
Although the Arizona Legislature amended this statute after the third party withdrew the $16,500 from R&J's account, the revision is immaterial to the resolution of this case. Thus, we cite to the current version of this statute.
¶2 In exercising its discretion to award attorneys' fees under A.R.S. § 12-341.01, a court should consider all relevant factors including the "Warner factors." See generally Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985). Although, as R&J points out on appeal, the superior court did not give any reason for denying its request for a fee award, we will uphold a decision on attorneys' fees if it has any reasonable basis. Uyleman v. D.S. Rentco, 194 Ariz. 300, 305, ¶ 27, 981 P.2d 1081, 1086 (App. 1999); accord Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9, 155 P.3d 1090, 1093 (App. 2007). Here, under the Warner factors and the circumstances of this case, the superior court could reasonably have denied R&J's request for a fee award.
Although a superior court is not required to state the reasons for denying fees under A.R.S. § 12-341.01, we underscore what our supreme court observed in Warner: "[I]t is the better practice to have a record which reflects the justification for the trial court's denial of fees." 143 Ariz. at 571, 694 P.2d at 1185; see also Hart v. Seven Resorts Inc., 190 Ariz. 272, 284, 947 P.2d 846, 858 (App. 1997).
¶3 First, Wells Fargo presented information to the superior court that reflected the litigation could have been avoided or settled. See Warner, 143 Ariz. at 570, 694 P.2d at 1184 (superior court should consider whether litigation could have been avoided or settled and whether successful party's efforts were superfluous in achieving the result). Before R&J sued Wells Fargo, R&J had already filed an arbitration proceeding against the third party to recover the $16,500. Given this, and the general prohibition against a double recovery, in August 2012—before it had formally appeared in the case—Wells Fargo proposed a resolution whereby it would pay R&J "the principal amount of $17,500" if it was "successful against [the third party] at arbitration and [was] unable to collect its judgment from [the third party]." R&J rejected the proposal. Months later, after R&J prevailed against the third party at the arbitration, Wells Fargo offered to pay R&J the $16,500 if R&J could not collect from the third party. Under these circumstances, the superior court could reasonably have concluded R&J's decision to pursue the litigation was unreasonable.
In Hennesy Equip. Sales Co. v. Valley Nat'l Bank, 25 Ariz. App. 285, 543 P.2d 123 (1975), the plaintiff employer sued an employee for forging checks drawn on its accounts with its bank. Id. at 285-86, 543 P.2d at 123-24. It also separately sued its bank for allowing the withdrawals. Id. We held the plaintiff could sue both the forger and the bank, but could not recover "two recoveries." "The depositor has suffered only one damage—the loss of his credit with the bank. When that damage has been satisfied, either by being made whole by the forger or by the bank, the depositor can collect no more." Id. at 288, 543 P.2d at 126.
This amount was based on the parties' then understanding of the amount withdrawn by the third party.
¶4 Second, after R&J rejected Wells Fargo's August 2012 settlement proposal, R&J incurred approximately $13,620 in fees. Given the $16,500 at stake, the superior court could have considered R&J's decision to incur those fees unreasonable under the circumstances.
¶5 Despite the foregoing, R&J nevertheless argues the court abused its discretion in denying its fee request because its claim unquestionably arose out of a contract and Wells Fargo's defense to that claim was weak or untenable. Although we agree with both points, a successful party is not automatically entitled to a fee award under A.R.S. § 12-341.01, Warner, 143 Ariz. at 569, 694 P.2d at 1183, and the merits of the defense presented by an unsuccessful party are, however, only one of the Warner factors; they are not, by themselves, dispositive of a fee application under A.R.S. § 12-341.01. Warner, 143 Ariz. at 570, 694 P.2d at 1184.
See Valley Nat'l Bank v. Witter, 58 Ariz. 491, 499, 121 P.2d 414, 418 (1942) ("[R]elation between a bank and a depositor is held to be that of a debtor to a creditor and arises out of a contract, express or implied . . . ."); Hennesy Equip. Sales Co., 25 Ariz. App. at 287, 543 P.2d at 125 (implied in debtor-creditor relationship is bank's "contractual undertaking" to only discharge its obligation upon authorized signature of depositor).
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¶6 Although we might have reached a different discretionary decision, we cannot say the superior court's denial of R&J's request for a fee award was without "any reasonable basis." Fulton Homes, 214 Ariz. at 569, ¶ 9, 155 P.3d at 1093. The parties fully briefed the availability of fees under the statute, and the same superior court judge handled this case from inception through entry of judgment. Given these circumstances, we believe that court was in a better position than this court to assess the propriety of a discretionary fee award.
¶7 Finally, for the foregoing reasons, the superior court did not abuse its discretion in denying R&J's new trial motion re-urging its request for fees. See Delbridge v. Salt River Project Agric. Improvement and Power Dist., 182 Ariz. 46, 53, 893 P.2d 46, 53 (App. 1994) (appellate court reviews superior court's ruling on new trial motion for abuse of discretion).
CONCLUSION
¶8 We affirm the judgment of the superior court. Pursuant to A.R.S. § 12-341.01, Wells Fargo has requested an award of attorneys' fees on appeal. After considering the Warner factors, in the exercise of our discretion, we deny Wells Fargo's request, but as the prevailing party, we award it costs on appeal contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.