Asphalt Paving & Supply Inc.v.A Miner Contracting Inc.

No. 1 CA-CV 18-0469 (Ariz. Ct. App. Jun. 11, 2019)

No. 1 CA-CV 18-0469


ASPHALT PAVING & SUPPLY INC, an Arizona corporation, Plaintiff/Appellee, v. A MINER CONTRACTING INC., an Arizona corporation; THE GUARANTEE COMPANY OF NORTH AMERICA USA, a Michigan corporation, Defendants/Appellants.

COUNSEL Roberts & Carver, PLLC, Prescott By Jerry Carver Counsel for Plaintiff/Appellee The Adams Law Firm, PLLC, Prescott By Jeffrey R. Adams Counsel for Defendants/Appellants

No. P1300CV201400295
The Honorable Patricia A. Trebesch, Judge


COUNSEL Roberts & Carver, PLLC, Prescott
By Jerry Carver
Counsel for Plaintiff/Appellee
The Adams Law Firm, PLLC, Prescott
By Jeffrey R. Adams
Counsel for Defendants/Appellants


Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Vice Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined. McMURDIE, Judge:

¶1 A. Miner Contracting, Inc. ("Miner Contracting") and The Guarantee Company of North America, USA ("Surety") (collectively "AMC") appeal from the superior court's final judgment striking AMC's answer; dismissing Miner Contacting's counterclaim with prejudice; and entering a default judgment in favor of Asphalt Paving & Supply, Inc. ("Asphalt"). AMC also challenges the court's award of damages against Miner Contracting and Surety, and the joint and several award of attorney's fees against Miner Contracting, Surety, and Alan Miner ("Miner")—the president of Miner Contracting—individually. For the following reasons, we affirm.

Alan Miner did not appeal and is, therefore, not a party in this appeal.


¶2 The underlying dispute concerned the labor and materials Asphalt—as a subcontractor—supplied Miner Contracting—the general contractor—on a construction project for the City of Prescott (the "City"). Miner Contracting obtained an Arizona Statutory Payment Bond from Surety for the benefit of Asphalt for the project. In March 2014, Asphalt sued to collect damages for completed work from AMC. Miner Contracting counterclaimed alleging breach of contract and breach of the covenant of good faith and fair dealing.

¶3 The disputed issue was whether Miner Contracting paid Asphalt in full for materials and labor Asphalt provided for the project. AMC claimed that Asphalt signed conditional lien waivers throughout the project and an "Unconditional Waiver and Release Upon Final Payment" ("Final Waiver") relieving AMC of any further liability after the project. Asphalt argued that the Final Waiver was not valid and that Miner Contracting sent the Final Waiver in May along with two checks and a note stating:

As the month end March Statement which includes your last month of earned contract proceeds, continue to be reviewed by Dibble Engineering; I have enclosed a partial payment for your Month End March Invoice. The remaining will be forthcoming upon completion of Dibble's completion of their final review.

Thank you,

Karen Mastrocola

The "note" became the focus of the remainder of the proceedings.

¶4 Asphalt moved for partial summary judgment and included the note as an exhibit in its statement of facts. Asphalt then deposed Miner, who testified that the note was fraudulent, a position AMC still maintains.

¶5 AMC responded to Asphalt's motion by claiming that the note Asphalt supplied the court was "a fabrication and was manufactured by somebody other than anyone affiliated with [Miner Contracting]." In support of that proposition, AMC filed affidavits (the "December 2016 Affidavits") from Miner and Karen Mastrocola, Miner Contracting's in-house accountant. In her affidavit, Mastrocola referred to the note as the "referenced memo," and swore that:

2.) I did not write, I did not endorse, I did not in any way produce or know about the above referenced memo.

* * *

4.) The referenced memo is an absolute fraud fabricated by Asphalt Paving and Supply, Inc. as it did not come from me, nor did it come from any other employee of A. Miner Contracting, Inc.

Miner's affidavit stated in part:


8.a.) "As the month end March Statement which includes your last month of earned contract proceeds, continue to be reviewed by Dibble Engineering; I have enclosed a partial payment for your Month End March Invoice. The remaining will be forthcoming upon completion of Dibble's completion of their final review". PRODUCED BY [ASPHALT] AND SUBMITTED AS EXHIBIT "B" BY JERRY CARVER'S STATEMENT OF FACTS IS AN ABSOULUTE [sic] FABRICADED [sic] FRAUDULANT [sic] PARAGRAPH WHICH WAS NEVER WRITTEN BY ANY OF A. MINER'S OFFICE OR FIELD EMPLOYEES.

(Emphasis in original.)

¶6 In February 2016, Miner complained to the State Bar of Arizona that Jerry Carver, Asphalt's attorney, had fabricated the note. In response to Miner's allegation with the State Bar, Carver reviewed a flash drive the City had produced containing emails between the City and Miner Contracting. Carver discovered that the flash drive contained approximately 700 emails from Miner Contracting, which AMC had failed to disclose. One of the emails was from Miner to Mastrocola (the "May 2, 2013 email") and read:

Dear Karen:

Please enclose the following note with all the partial payments going out to our Sub-Contractors and Vendors today.

As the month end March Statement which includes your last month of earned contract proceeds continue to be reviewed by Dibble Engineering; I have enclosed a partial payment for your Month End March Invoice
. The remaining proceeds will be forthcoming upon completion of Dibble's completion of their final review.

Respectfully submitted,
Alan Miner, President for the Corporation

The language of the May 2, 2013 email mirrors the note in all material aspects except that the note replaced Miner's email signature with a closing salutation from Mastrocola. Based on the discovery of the email, Asphalt moved to supplement its statement of facts on March 6, 2017.

¶7 On March 7, 2017, Jeffery Adams, AMC's attorney, contacted the City inquiring whether the City had produced the May 2, 2013 email on the flash drive. On March 8, Adams' paralegal contacted Asphalt's attorney asking for the file extension for the May 2, 2013 email. Before receiving either response, on March 8, 2017, Miner prepared two new affidavits for himself and Mastrocola (the "March 2017 Affidavits"). Miner's affidavit was notarized by Mastrocola and stated:

2.) I did not produce the [May 2, 2013 email] in any way.

3.) I have never seen the [May 2, 2013 email].

4.) I have never issued a directive, memorandum, message, or any other form of communication that resembles the content of [the May 2, 2013 email].

5.) I could not find anything that resembles [the May 2, 2013 email] in the referenced Flash Drive provided by the City of Prescott Legal Department; after I performed an exhaustive computer search of the City's Flash Drive and my entire Hard Drive using several of the unique words, dates and sentences shown in [the May 2, 2013 email].

Mastrocola's swore that:
2.) I did not receive [the May 2, 2013 email].

3.) I have never seen the [May 2, 2013 email].

4.) Since May 12th 2010; Alan Miner has never issued to me; a directive, memorandum, message, or any other form of communication that resembles the content of [the May 2, 2013 email].

5.) Since May 12th 2010; I have never issued any memorandum, message or any other form of communication that resembles the content of [the May 2, 2013 email].

6.) I believe [the May 2, 2013 email] is an absolute fraud fabricated by someone else as it did not come from me, nor did it come from any other employee of A. Miner Contracting, Inc.

On March 9, 2017, Miner reported to the State Bar that Carver had fabricated the May 2, 2013 email. Miner's second communication with the State Bar included the March 2017 Affidavits. On March 28, 2017, the City confirmed to AMC's attorney that the email was one it had provided on the flash drive. Nevertheless, AMC objected to Asphalt's motion to supplement, arguing that Asphalt's failure to timely discover the May 2, 2013 email was inexcusable.

¶9 After taking the matter under advisement, the court granted Asphalt's motion to supplement its statement of facts, then found that Miner personally, and on behalf of Miner Contracting, "knowingly signed false sworn affidavits with this Court on December 9, 2016." It further found the December 2016 Affidavits "contain false testimony, and constitute an attempt to perpetrate a fraud on the Court" and that "the [May 2, 2013 email] and false sworn affidavits implicate" several Arizona Rules of Civil Procedure, including Rules 11, 37, and 56(h). The court determined that "this misconduct, and effort to perpetrate a fraud upon the Court" "require[d] further inquiry and the opportunity to be heard before the Court determine[d] the culprit and the appropriate sanctions to be imposed."

¶10 Before the culprit hearing, AMC disclosed a list of exhibits that included Exhibit 10, the affidavit of Miner dated March 8, 2017, and Exhibit 11, the affidavit of Mastrocola dated March 8, 2017. The court held the culprit hearing on August 22, 2018, at which Miner and Mastrocola testified.

Miner's Testimony

¶11 Miner testified that he prepared the December 2016 affidavits for himself and Mastrocola. Miner claimed he had forgotten about the May 2, 2013 email when he prepared the affidavits and the statements in the affidavits were true and accurate based upon his recollection at the time. After the court ordered the culprit hearing, and the City confirmed that it had received the email from Miner, Miner claimed he searched for the email by looking in the "global search box" and the City's flash drive. He then hired Kevin Ashurst, a computer specialist, to "come over and see if he could somehow find it in [the] system," which he was able to do "[w]ith some effort."

¶12 Miner maintained that along with the May 2, 2013 email, Ashurst also recovered an email from Elliot Gappinger of Dibble Engineering (the "Gappinger email"). The Gappinger email, which was also endorsed to Mastrocola, was in response to the May 2, 2013 email. Miner testified when he saw the Gappinger email, he then recalled sending the May 2, 2013 email and the circumstances surrounding the email in detail. According to Miner, he sent Mastrocola the email, intending for her to include the note with the May payments. However, five minutes after sending the email, he received a reply from Gappinger stating that the Dibble review of the March progress payment was completed on April 18, 2013. Believing that the note was no longer necessary, Miner then "picked up the intercom in [his] office and told Karen Mastrocola to disregard the E-mail that [he] had just sent."

¶13 Miner testified he still considered the statements in his December 2016 Affidavit to be accurate and explained that once Ashurst found the May 2, 2013 email he "finally figured out where [the note] came from." He believed that either Asphalt or Carver found the May 2, 2013 email when the City disclosed the flash drive, and the discovery "triggered their idea to produce [the] fraudulent memo." Miner admitted that the statements in his March 2017 Affidavit were false, which was the reason he never submitted it to the court. He testified he had no idea how his March 2017 Affidavit could have ended up in court and declared, "[i]t never left my office." But he later admitted that, although he could not specifically recall, he "suppose[d]" that he gave his March 2017 Affidavit to his lawyer. He also acknowledged that he provided it to the State Bar.

¶14 Although Miner attempted to downplay the importance of the March 2017 Affidavits by repeatedly stating that he had not submitted them to the court, the court questioned Miner about signing a false affidavit with Mastrocola's assistance. The court asked Miner whether he believed that his inability to recall writing the email justified preparing and executing affidavits without first undertaking "a diligent investigation into the facts that [were] critical to this case," to which he replied, "Not knowing where and how [the May 2, 2013 email] came about or where to look during the time I'm only holding a fraudulent document, yes."

Mastrocola's Testimony

¶15 Mastrocola testified that Miner prepared the December 2016 Affidavits and, despite the subsequent discovery of the email, she still believed the note to be fabricated and stood by the statements in her December 2016 Affidavit. She maintained that she did not "prepare the language" in the note and that she was unaware of the note. She testified she never sent out a note containing that language, and did not believe that the note came from Miner Contracting. She thought this to be true because Miner sent her the email to send the note, then five minutes later Gappinger sent an email stating that it was not necessary, so Miner came into her office and told her not to send it out.

¶16 Although Mastrocola was the recipient of the May 2, 2013 email, and was copied on the Gappinger email, she stated that she had not seen either email at the time she signed her December 2016 Affidavit. She claimed that the first time she saw the May 2, 2013 email was when Miner showed it to her after Asphalt provided it to the court. She also did not see the Gappinger email until after she signed her March 2017 Affidavit. But she did recall that Miner came to her office and told her to disregard the email. The court confirmed with Mastrocola that she was testifying that she was the recipient of the May 2, 2013 email, but did not see it, and has a memory of not seeing it.

¶17 She testified that after learning the court had set a culprit hearing, she and Miner attempted, unsuccessfully, to locate the May 2, 2013 email but found it later with Ashurst's help. She also admitted that her March 2017 Affidavit contained false statements, although she said did not know it at the time she signed it.

¶18 After Miner and Mastrocola testified, AMC sought to call Ashurst, to testify about how he retrieved the emails, and Kathy Carlson, a forensic document examiner. The court stated that expert testimony was not necessary, but invited AMC to make an offer of proof. AMC summarized Carlson's anticipated testimony:

[T]he equipment [Miner] maintains in his office includes laser printers. The document that is in question, . . . [s]he's examined that document and compared it with the lien waiver that was . . . generated by a laser printer. The document that is being relied upon by [Asphalt] she would testify that that is generated by a[n] ink jet printer.

The court declined to hear from the additional witnesses, explaining it had "sufficient information that was elicited through testimony" upon which to rule.

¶19 After ordering briefing regarding appropriate sanctions from both sides, the court issued its findings and conclusions. It concluded that—after considering various potential sanctions—lesser sanctions would be insufficient and inappropriate "[c]onsidering the intentional, willful and continued nature of Miner's knowingly false testimony." The court ordered AMC's answer stricken, Miner Contracting's counterclaim dismissed with prejudice, and Asphalt's complaint to proceed by default. The court also awarded attorney's fees jointly and severally against AMC and Miner individually.

¶20 After the court issued its findings and conclusions, Miner contacted the State Bar, complaining that the superior court and Carver retaliated against him for communicating with the Bar. Bar counsel alerted him to Supreme Court Rule 48(l), and AMC filed a motion for reconsideration. In the motion, AMC objected for the first time to Asphalt's use, and the court's consideration of the March 2017 Affidavits. The court denied the motion, then held a default hearing to determine Asphalt's damages. The vice president of Asphalt, Christopher Graff, and Miner testified at the hearing. Asphalt offered evidence of its damages including communications between Asphalt and Miner—dated after Miner Contracting sent the May checks—indicating additional funds were forthcoming, change orders, and emails showing a course of conduct between Asphalt and Miner Contracting. The court entered final judgment awarding Asphalt its claimed damages and its requested attorney's fees with interest. AMC timely appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).


¶21 On appeal, AMC argues that the superior court erred by: (1) improperly allowing Asphalt to use the affidavits provided to the State Bar in violation of Arizona Supreme Court Rule 48(l); (2) imposing severe sanctions when lesser sanctions were appropriate under the circumstances; (3) prohibiting AMC from presenting all of its mitigating evidence in the culprit hearing; (4) improperly awarding Asphalt all of its claimed damages; and (5) awarding Asphalt an unreasonable amount in attorney's fees.

A. The Court Did Not Err by Considering the March 2017 Affidavits and Excluding AMC's Witnesses.

¶22 AMC challenges two aspects of the culprit hearing. It first contends the court improperly considered and used documents submitted to the State Bar as a basis to impose sanctions. And second, AMC argues the court denied it fundamental due process when it excluded two witnesses from testifying.

1. The Superior Court Did Not Err by Admitting and Considering the March 2018 Affidavits.

¶23 AMC contends the court erred by imposing sanctions based in part on the March 2017 Affidavits, which Miner gave to the State Bar. It argues that pursuing sanctions constitutes a "civil action" under Arizona Supreme Court Rule 48(l), and the court was prohibited "from considering much less basing its decisions on [Miner's] bar complaints."

¶24 Under Rule 48(l), a "communication to the . . . state bar . . . relating to lawyer misconduct . . . shall be absolutely privileged conduct, and no civil action predicated thereon may be instituted against any complainant or witness." See also Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1053 (D. Ariz. 2012), aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013) (communication with the State Bar is not actionable conduct on which to base a RICO complaint); Drummond v. Stahl, 127 Ariz. 122, 125 (App. 1980) (before the promulgation of Supreme Court Rule 48(l)) (allegations in a motion to compel an attorney to withdraw on the grounds that the attorney had a conflict of interest could not be used by the attorney to bring an action for tortious interference with a contractual relationship).

AMC was neither a complainant nor a witness in the State Bar matter, and Miner is not a party to this appeal. But because we find that any privilege Supreme Court Rule 48(l) might have afforded was waived, we assume without deciding that AMC has standing to raise the issue. --------

¶25 AMC did not raise this issue until it moved for reconsideration in January 2018. "Generally, arguments raised for the first time in a motion for reconsideration are not preserved for appeal." Levine v. Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., 244 Ariz. 234, 239, ¶ 16 (App. 2018); Bobrow v. Bobrow, 241 Ariz. 592, 598, ¶ 29 (App. 2017). For the reasons discussed below, we see no reason to depart from the general rule in this case.

¶26 AMC disclosed the March 2017 Affidavits as exhibits in connection with the culprit hearing. AMC argues that the disclosure was inadvertent, but AMC also failed to object to Asphalt's questioning of its witnesses concerning the affidavits, or when Asphalt moved to admit the exhibits. Moreover, AMC also elicited testimony from Miner concerning his March 2017 Affidavit. See Throop v. F. E. Young & Co., 94 Ariz. 146, 157 (1963) (a party may waive a privileged communication when it fails to object); see also City of Phoenix v. Fields, 219 Ariz. 568, 575, ¶ 30 (2009) (a party may waive a statutory immunity by its conduct).

¶27 Accordingly, the court did not err by considering the documents provided to the State Bar when determining whether to impose sanctions.

2. The Court Did Not Deny AMC Fundamental Due Process.

¶28 AMC argues that the superior court violated its due-process right to be heard and present mitigating evidence before imposing sanctions. Before imposing a dismissal or default as a sanction, "fundamental fairness" requires "the party be given notice and an opportunity to appear before the trial court to explain the violation or present any evidence in mitigation." Estate of Lewis v. Lewis, 229 Ariz. 316, 325, ¶ 21 (App. 2012) (quotation omitted). AMC argues that the superior court denied it due process by not permitting it to present all of its evidence at the culprit hearing.

¶29 Although the court heard and did not limit the testimony of Miner and Mastrocola, AMC challenges the court's exclusion of its other two witnesses. "We will affirm the trial court's rulings on the exclusion or admission of evidence absent an abuse of discretion or legal error and prejudice." Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998).

¶30 After the court heard testimony from Miner and Mastrocola, AMC sought to call Kevin Ashurst and Kathy Carlson to testify. The court stated:

I understand what your client undertook in an effort to find the smoking gun E-mails in this case. I accept that. I think what he did was appropriate under the circumstances. I'm not sure I need expert testimony indicating what he undertook in an effort to find it. I accept that. That's certainly not an issue before me nor is it an issue that weighs in the underlying case.

After hearing AMC's offer of proof, the court concluded it did not need to hear from the additional two witnesses.

¶31 AMC intended to examine Ashurst about the effort AMC undertook to locate the May 2, 2018 email after the court ordered the culprit hearing. Miner and Mastrocola, however, already had testified to AMC's search for the email, and the court stated it accepted that testimony.

¶32 Moreover, AMC suffered no prejudice from the exclusion of Ashurst's testimony. Ashurst's affidavit, which was attached to the motion for a new trial, contradicted Miner's and Mastrocola's testimony. It stated:

1.) On Saturday, May 27th, 2017, Alan Miner called Kevin Ashurst of Blackbox Computers for advice on how to find a (4) year old email document in his computer.

2.) Kevin Ashurst asked Alan Miner what he has already tried. Alan Miner said since he already has the document from the City Files, he tried to type in various key sentences, dates, and names into the Start Menu Search at the bottom left of his computer screen, but to no avail.

3.) Alan Miner also said he tried to type in various key sentences, dates, and names into the "Outlook - Sent Files" in the current folder and in all the "Archive" folders, but to no avail.

4.) Considering the above information, Kevin Ashurst then advised Alan Miner to go to the current "Outlook" folder and type in the inquiries in the search box above the Subject Line and to be sure to select "all Outlook Items" in the box to the right of the search box.

5.) Alan Miner did not call back for any further assistance.

By this account, Miner called Ashurst one month after the City confirmed the validity of the email—but one day after the court found that Miner had acted to perpetrate a fraud on the court. Further, contrary to what Miner and Mastrocola testified, Ashurst did not go to Miner's office to search for the email. Thus, contrary to AMC's repeated assertions, Ashurst did not "locate" the May 2, 2013 email; nor did he "also discover" the Gappinger email. Instead, Ashurst told Miner to search in his current Outlook folder, and Miner never called back.

¶33 As for Carlson's proffered testimony, it did not establish that the note was fabricated, and would not have aided the court in determining whether Miner and Mastrocola acted in bad faith by falsifying the affidavits. AMC was afforded due process. Miner and Mastrocola were provided with notice and an opportunity to explain their actions. The court found that they continued to provide false testimony at the culprit hearing, and ample evidence supports the court's findings.

B. The Superior Court Did Not Abuse Its Discretion by Entering a Default Judgment Against AMC on Asphalt's Claims and Striking AMC's Answer and Miner Contracting's Counterclaim.

¶34 AMC challenges the court's order striking AMC's answer and Miner Contracting's counterclaim and entering a default judgment. It argues lesser sanctions could have served the court's purpose, and that "drastic sanctions" may only be imposed upon a showing of "willfulness or bad faith by the party being sanctioned." AMC claims that Miner presented plausible explanations for the statements in the affidavits that created a genuine question of fact on the substantive allegations and mitigated against the contention that Miner was "anything less than candid." AMC, therefore, asserts that lesser sanctions could have satisfied the court's concern, and argues that credibility ultimately should have been a question of fact to be determined by the jury.

¶35 We review the imposition of sanctions for an abuse of discretion and are bound by the superior court's findings of fact unless they are erroneous or unsupported by credible evidence. Lund v. Donahoe, 227 Ariz. 572, 578-79, ¶ 19 (App. 2011). The sanctions the court imposed were warranted under Arizona Rules of Civil Procedure 11, 37, and 56 and, independent of those rules, by the court's inherent power to sanction bad faith conduct during litigation. See Hmielewski v. Maricopa County, 192 Ariz. 1, 4, ¶ 14 (App. 1997).

¶36 The court may impose an appropriate sanction when "a pleading, motion, or other document is signed in violation of [Rule 11]." Ariz. R. Civ. P. 11(c)(1). Rule 37(c) grants the court broad discretion to impose appropriate sanctions against a party that fails to disclose materials as required by Rule 26.1. Possible sanctions under Rule 37 include striking pleadings, dismissing the action, and rendering a default judgment. Ariz. R. Civ. P. 37(b)(2)(A)(iii), (v), (vi). "If a Rule 56 affidavit is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, incurred as a result, or may impose other appropriate sanctions." Ariz. R. Civ. P. 56(h).

¶37 The court found that Miner knowingly prepared the false December 2016 Affidavits. He signed his affidavit, individually and on behalf of AMC, and filed the false affidavits in bad faith with his Statement of Facts in response to Asphalt's motion for partial summary judgment. AMC failed to timely disclose Miner's May 2 email, and Miner made knowingly false statements under oath in deposition testimony, during the culprit hearing, and in multiple affidavits. Miner accepted no responsibility for making such statements, and Miner's conduct on behalf of himself and AMC was intentional, willful, and made in bad faith.

¶38 The court concluded that—after considering various potential sanctions—lesser sanctions would be insufficient and inappropriate considering the "intentional, willful and continued nature of Miner's knowingly false testimony." We find no error in the superior court's findings.

C. Reasonable Evidence Supports the Court's Calculation and Award of Damages Against AMC.

¶39 AMC argues that the court erred by awarding Asphalt all its claimed damages because it included retention amounts, for which AMC argued Asphalt signed the conditional lien waivers—and thus accepted the amount of payment, amounts attributable to unsigned change orders that AMC claimed were not binding absent Asphalt's signature, and interest based on the improper calculation.

¶40 Whether AMC owed the amount Asphalt claimed was the subject of the underlying complaint. The superior court held a hearing to determine damages on May 1, 2018. It heard evidence from Christopher Graff and Miner concerning Miner Contracting and Asphalt's payment procedure under the contract and the parties' course of conduct. The court admitted evidence about the extra work, communications between the parties, and records relating to the disputed amounts. The fact that AMC presented evidence it believed supported its position does not render the court's contrary conclusion an abuse of discretion. See Solar-W., Inc. v. Falk, 141 Ariz. 414, 419 (App. 1984).

¶41 AMC maintains that because the court rendered no rulings and made no findings of fact or conclusions of law, it cannot determine the analysis behind the Court's calculation of the Plaintiff's damages. However, no findings of fact or conclusions of law were requested. See John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, 540, ¶ 23 (App. 2004) ("[A] litigant [is required] to object to inadequate findings at the trial court level so that the court will have an opportunity to correct them, and failure to do so constitutes a waiver."). We presume the court considered all the evidence when it calculated the damages to be awarded, and reasonable evidence supports the court's judgment.

D. The Court Did Not Abuse Its Discretion by Awarding Asphalt Its Sought-After Amount of Attorney's Fees in Full.

¶42 Finally, AMC argues that the superior court abused its discretion by awarding Asphalt an unreasonable amount in attorney's fees. "[A]n award of attorneys' fees is left to the sound discretion of the trial court and we will not overturn such an award unless the trial court abused its discretion." A. Miner Contracting, Inc. v. Toho-Tolani County Improvement Dist., 233 Ariz. 249, 261, ¶ 40 (App. 2013).

¶43 The superior court granted judgment in favor of Asphalt—jointly and severally against Miner Contracting, Surety, and Minor, individually—for attorney's fees of $173,916.50. AMC contends that "[a]wards of attorneys' fees in disputes that arise out of contract are governed by the contract itself as well as A.R.S. § 12-341.01." It argues that an award under A.R.S. § 12-341.01 is discretionary and the court must consider the factors set forth by Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570 (1985). Although the original action arose out of a contract, here, the court awarded attorney's fees under A.R.S. § 12-349, which is not discretionary, and AMC did not challenge the basis of court's award. Thus, neither A.R.S § 12-341.01 or the Warner factors control.

¶44 Under § 12-349, the court must assess reasonable attorney's fees and expenses against a party that brings or defends a claim that is groundless and not made in good faith, unreasonably expands or delays the proceeding, or engages in abuse of discovery. A.R.S. § 12-349(A)(1), (3), (4), (F). "Once a party establishes its entitlement to attorneys' fees, it is the burden of the party opposing the fees to show that an unreasonable amount of fees was requested." A. Miner Contracting, Inc., 233 Ariz. at 261, ¶ 40.

¶45 AMC complains that the fees Asphalt sought were not reasonable. AMC argues "it is rather astonishing that [Asphalt's] counsel racked up nearly $200,000.00 in fees in a case [that] . . . . involved rather simple competing breach of contract claims"; and that the "block billing employed [by Asphalt was] impermissible."

¶46 AMC fails to identify with any particularity, however, what evidence supports a reduction in fees. It argues Asphalt's fees spreadsheet shows multiple tasks performed several times, and block billing does not allow evaluation of the propriety and reasonableness of the time spent for each task. See Solimeno v. Yonan, 224 Ariz. 74, 82, ¶ 38 (App. 2010) ("We decline to substitute our judgment for that of the trial court by engaging in an item-by-item analysis of each objection."). Asphalt submitted its fee application with an affidavit that complied with requirements outlined in Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983). The exhibits to the application showed a breakdown of fees and costs with contemporaneous records kept by attorneys and paralegals. The superior court reviewed Asphalt's application, AMC's objections, and awarded Asphalt's request in full. We note that although AMC characterizes the case as "rather simple," when objecting to the attorney's fees in superior court, AMC stated:

As an initial comment, it should be noted that preparing this Response and Objection was a monumental undertaking . . . . [B]ecause this case has been litigated extensively over the span of nearly two years, evaluating the propriety and reasonableness of [Asphalt's] fee request required [AMC] to revisit virtually every event that occurred in the case over that time period and to review each and every motion, disclosure statement, discovery request and response, minute entry and ruling.

(Emphasis added.) We see no error requiring us to alter the superior court's fee award.


¶47 We affirm the superior court's judgment in favor of Asphalt. As the prevailing party, Asphalt is entitled to its costs on appeal pursuant to A.R.S. § 12-341 and reasonable attorney's fees—jointly and severally against Miner Contracting and Surety—under A.R.S. § 12-341.01(A) and A.R.S. § 34-222(B), contingent upon compliance with Arizona Rule of Civil Appellate Procedure 21.