Opinion
No. 2 CA-CV 2014-0006
01-23-2015
COLT CONSTRUCTION, INC., AN ARIZONA CORPORATION, DBA BERT'S ELECTRIC AND PLUMBING, Plaintiff/Counterdefendant/Appellee/Cross-Appellant, v. VICTOR TRUJILLO, Defendant/Counterclaimant/Appellant/Cross-Appellee.
COUNSEL Elardo, Bragg, Appel & Rossi, P.C., Phoenix By John A. Elardo, Venessa J. Bragg, and Rochelle D. Prins Counsel for Plaintiff/Counterdefendant/Appellee/Cross-Appellant Goldstein, Horner & Horner, Attorneys, PLLC, Cortaro By H. Lee Horner, Jr. Counsel for Defendant/Counterclaimant/Appellant/Cross-Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
No. C20104342
The Honorable Leslie Miller, Judge
AFFIRMED
COUNSEL Elardo, Bragg, Appel & Rossi, P.C., Phoenix
By John A. Elardo, Venessa J. Bragg, and Rochelle D. Prins
Counsel for Plaintiff/Counterdefendant/Appellee/Cross-Appellant
Goldstein, Horner & Horner, Attorneys, PLLC, Cortaro
By H. Lee Horner, Jr.
Counsel for Defendant/Counterclaimant/Appellant/Cross-Appellee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this action for breach of contract and negligence, Victor Trujillo appeals from the trial court's judgment dismissing his counterclaim against Colt Construction, Inc. (Colt) after a series of rulings on various motions for summary judgment and motions in limine. He argues the court denied him, "as a matter of law, his [c]onstitutional right to a jury trial and to have a jury consider and weigh pertinent admissible evidence that the court excluded with pre-trial orders." He also argues the court erred by striking his claim for punitive damages. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts "in the light most favorable to the party opposing the summary judgment motion[s] below." Keonjian v. Olcott, 216 Ariz. 563, ¶ 2, 169 P.3d 927, 928 (App. 2007). In early 2010, Trujillo entered into a contract with Colt to remodel his new dental office and to install his dental equipment. Trujillo ultimately refused to pay for the work performed, claiming Colt had done the work improperly.
¶3 In June 2010, Colt initiated an action against Trujillo for breach of contract, and Trujillo filed a complaint with the Arizona Registrar of Contractors (ROC). On July 9, 2010, the Town of Marana shut off the electricity at Trujillo's office "because of hazard[ous] condition[s] at the premise[s]" and because permits had not been issued for the work at the site. On July 14, 2010, the ROC determined "that the job was subcontracted and managed by [Trujillo], who is not a licensed general contractor or the owner of the property where the work was being performed" and that "he accepted responsibility for permitting the project by signing a contract with a subcontractor that excluded permitting." The ROC closed the complaint, directing Trujillo to hire a "general contractor, obtain permits and inspections, have power and water service restored and allow the contractor to complete the project."
¶4 Trujillo filed his answer and counterclaim to Colt's complaint later that month. He asserted that "[a]n implicit part of the agreement of the parties was that all necessary permits required would be obtained by Colt." He also alleged Colt's work was "deficient in that [Colt failed to comply with] applicable building codes." Trujillo asserted his counterclaims, apparently for negligence and breach of contract, in a single count as follows:
As a proximate result of the foregoing, . . . Marana has refused to issue an unconditional certificate of occupancy and . . . Trujillo has lost and will continue to lose patient revenue and goodwill . . . .Trujillo requested attorney fees pursuant to A.R.S. § 12-341.01.
. . . As a proximate result of Colt's negligent acts and failure to perform in a workmanlike manner, . . . Trujillo is required to obtain the services of a competent licensed contractor to remove the defective work done by Colt and bring the situs property up to code so it can be used as a retail dental practice. . . .
. . . As a proximate result of Colt's negligent actions, Colt has breached the remodeling contract of the parties . . . .
¶5 After filing his counterclaim, Trujillo asked Christopher Kaufmann, a dental equipment salesperson, to review Colt's work. Kaufmann determined the air compressor and vacuum used in the dental office were incorrectly installed and, as a result, contaminated air had been blown throughout the rest of office. Trujillo additionally believed that when the town restored electricity to the office, "a power surge occurred and 'fried' the computers and the x[-]ray machines." Trujillo did not amend his counterclaim to expressly seek damages for these items.
Because Trujillo never filed an amended counterclaim, see Ariz. R. Civ. P. 15(a), our understanding of his claims for relief is derived from his various motions, pretrial statements, and sworn declarations.
¶6 The trial court initially set a jury trial for February 28, 2012, but the trial was rescheduled to October 1, 2013, based on various motions by the parties. In March and September 2013, Colt filed and the court ruled on various motions for summary judgment and motions in limine. At the conclusion of a hearing on the motions in limine, the court "question[ed] both counsel regarding whether there [were] remaining issues relative to trial." The parties "agree[d] that as a result of the [c]ourt's rulings . . . Trujillo's counter-claim [was] no longer viable and [he] request[ed] a dispositive ruling." The court's minute entry for the hearing reflects that the court dismissed Trujillo's counterclaim, but denied Colt's request to vacate the trial date.
¶7 Colt filed an application for attorney fees incurred in responding to the counterclaim pursuant to § 12-341.01 and for sanctions pursuant to Rule 68(g), Ariz. R. Civ. P. The parties also filed a stipulation to dismiss Colt's complaint for breach of contract with prejudice. Accordingly, on November 12, 2013, the trial court entered a final judgment in favor of Colt on Trujillo's counterclaim, awarding Colt costs and sanctions pursuant to Rule 68, but denying its request for attorney fees. Trujillo and Colt timely filed their notices of appeal and cross-appeal.
Jurisdiction
¶8 Colt argues this court lacks jurisdiction over Trujillo's appeal because he "voluntarily requested a dismissal of the Counterclaim so that he could appeal unfavorable and discretionary trial court rulings." Trujillo maintains "the court, sua sponte, dismissed the case, agreeing with both sides that the counter claim was no longer viable due to the now-challenged pre-trial rulings." Notwithstanding any arguments by the parties, this court has an independent duty to "review its jurisdiction and, if jurisdiction is lacking, to dismiss the appeal." Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991).
¶9 Pursuant to Rule 1, Ariz. R. Civ. App. P., "[a]n appeal may be taken by any party aggrieved by the judgment." But when "a lower court ruling addresses multiple claims for relief, an appellant is only entitled to appeal from 'that part of the judgment by which [it] is aggrieved.'" Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, ¶ 6, 330 P.3d 379, 382 (App. 2014), quoting Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 8, 160 P.3d 223, 226 (App. 2007). And, if parties "abandon their [remaining] claims for the right to immediately appeal [an] adverse ruling against them," they may not revisit the voluntarily dismissed claims on appeal. Harris, 215 Ariz. 344, ¶¶ 12-14, 160 P.3d at 227-28.
In 2014, our supreme court amended the Arizona Rules of Civil Appellate Procedure, and the amended rules became effective on January 1, 2015. Ariz. Sup. Ct. Order R-14-0017 (Sept. 2, 2014). Unless otherwise indicated, we refer to the language of the former rules in effect at the time the parties filed their notices of appeal and cross-appeal and their briefs.
¶10 In its final judgment in this case, the trial court ruled in favor of Colt on its "motions in limine" and noted that Trujillo had "attested . . . there w[ere] no further issues with respect to the counterclaim to be brought before a jury" and that Trujillo had requested a "dispositive ruling" on his counterclaim. On the surface, it thus appears Trujillo did not ask the court to dismiss his counterclaim, and dismissal after his request for a dispositive ruling would be tantamount to an involuntary dismissal. But as we noted above, Trujillo's counterclaim apparently asserts claims for both negligence and breach of contract. And based on our review of the record, as we explain below, we conclude Trujillo essentially abandoned his breach-of-contract claim.
On appeal, both parties rely on transcripts submitted by Colt in an appendix to its answering brief. But the record on appeal does not include the transcripts. Rule 11(a)(4), Ariz. R. Civ. App. P., states that an appendix to an appellate brief may include items found in the record on appeal. See Ariz. R. Civ. App. P. 11(b) (parties' duty to request transcripts for official record). We will not consider transcripts provided for the first time with the parties' briefs. See In re 6757 S. Burcham Ave., 204 Ariz. 401, ¶ 11, 64 P.3d 843, 846-47 (App. 2003). And, in the absence of transcripts, "'we presume that the record before the trial court supported its decision[s].'" Id., quoting Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996).
Our review in this appeal is hindered by the lack of clarity in Trujillo's counterclaim. In a single count, it appears he asserted claims for both negligence and breach of contract. Thus, it is difficult to determine which, if any, claims remained after the trial court's rulings on the pretrial motions. Nevertheless, because it appears the parties and the trial court treated the counterclaim as asserting both claims, we endeavor to resolve these issues on the record before us.
¶11 Colt filed six motions for summary judgment on various grounds. It argued Trujillo's counterclaim was precluded by res judicata based on the ROC's decision in its favor and, in any event, Colt was entitled to judgment as a matter of law on Trujillo's breach-of-contract claim. Colt also maintained Trujillo lacked standing to bring a claim for damages to any electronic equipment because his insurer had already reimbursed him for those losses. It claimed Trujillo planned to seek additional damages not alleged in his counterclaim for other office buildings, unpaid wages to employees, unpaid bills, foreclosed real estate, lost vehicles, and $312 million in lost income. But, Colt argued, those damages were not reasonably foreseeable, too speculative, or calculated incorrectly. Finally, with regard to Trujillo's new claim for damages arising from air contamination, Colt argued Trujillo had failed to file an expert witness certification pursuant to A.R.S. § 12-2602 and Kaufmann was "not qualified to provide expert, opinion testimony in this case."
¶12 The trial court denied Colt's motions for summary judgment seeking dismissal on the basis of res judicata and dismissal of Trujillo's breach-of-contract claim. And although the court precluded Kaufmann from testifying about the standard of care, contamination, or "any resulting health hazard" in this case, it stated he could testify about the function of the equipment and its proper installation. Similarly, although the court granted Colt's motion for summary judgment "as to damages resulting from the power surge, purchase of new equipment (excluding any 'contaminated' equipment), loss of profits due to the disruption of power, and equipment set-up costs pertaining to the move," it did not dismiss Trujillo's claim for other damages related to his breach-of-contract claim as alleged in the counterclaim. See, e.g., Short v. Riley, 150 Ariz. 583, 585, 724 P.2d 1252, 1254 (App. 1986) (lost profits recoverable as consequential damages when "reasonably contemplated by the parties at the time of contract" and when "a reasonably certain factual basis for computation" of loss established by evidence). Therefore, Trujillo's breach-of-contract claim survived Colt's summary judgment motions.
¶13 That claim also survived the trial court's rulings on Colt's motions in limine. Colt had asked the court to preclude any mention of air contamination or the alleged power surge; damages to recently purchased office equipment; unrelated losses, such as Trujillo's real estate losses, employees' unpaid wages, unpaid bills, and repossessed vehicles; and, lastly, Trujillo's lost profits. The court precluded Trujillo from pursuing his contamination or power-surge theories, as well as any "damages related to homes, cars, and other properties owned by . . . Trujillo." But, the court declined to rule on Colt's motion regarding lost profits, allowing "Trujillo to provide the disclosure setting forth the basis for his profit and loss projections."
¶14 As a result, Trujillo could have pursued his breach-of-contract claim—and the associated consequential damages—even though the trial court's interlocutory rulings effectively precluded his claims for certain other damages. Therefore, Trujillo essentially abandoned his breach-of-contract claim when he informed the court there were no further issues to litigate. Consequently, we lack jurisdiction over Trujillo's appeal concerning his breach-of-contract claim. See Harris, 215 Ariz. 344, ¶¶ 12-14, 160 P.3d at 227-28. We therefore address the merits of his appeal only as it relates to his negligence claim.
Jury Trial
¶15 Trujillo argues the trial court denied him the right to a jury trial. "We review constitutional claims de novo." Emmett McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, ¶ 16, 132 P.3d 290, 294 (App. 2006). But we will affirm the court's ruling if it is legally correct for any reason. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, ¶ 14, 32 P.3d 31, 36 (App. 2001).
¶16 The Arizona Constitution states "[t]he right of trial by jury shall remain inviolate." Ariz. Const. art. II, § 23. However, that right is neither absolute nor immune to waiver. Evans v. Lundgren, 11 Ariz. App. 441, 444, 465 P.2d 380, 382 (1970). "Under Arizona law, the state has the power to set reasonable prerequisites to exercise the right to a jury trial, provided the right is not eliminated." Fisher v. Edgerton, 236 Ariz. 71, ¶ 34, 336 P.3d 167, 177 (App. 2014). "Obtaining a jury trial in civil litigation is not automatic." Harrington v. Pulte Home Corp., 211 Ariz. 241, ¶ 31, 119 P.3d 1044, 1053 (App. 2005). When this case was before the trial court, Rule 38(b), Ariz. R. Civ. P., stated that a party may demand a trial by jury "in writing at any time after the commencement of the action, but not later than the date of setting the case for trial or ten days after a motion to set the case for trial is served, whichever first occurs." If a party fails to properly serve and file a demand, the right to a trial by jury is waived. Ariz. R. Civ. P. 38(d).
Effective April 15, 2014, our supreme court amended Rule 38(b) to state that the demand must be "in writing at any time after the commencement of the action, but not later than the date on which the court sets a trial date or ten days after the date a Joint Report and Proposed Scheduling Order under Rule 16(b) or Rule 16.3 are filed, whichever first occurs." Ariz. Sup. Ct. Order R-13-0017 (Aug. 28, 2013); see also Ariz. Sup. Ct. Order R-13-0017 (Nov. 27, 2013).
¶17 In its motion to set and certificate of readiness, Colt indicated it was not seeking a jury trial. Trujillo did not challenge that motion and never filed his own demand for a trial by jury. However, the trial court sua sponte set the matter for a jury trial in its initial civil trial notice. And, at the September 9, 2013 status conference, which occurred after the court had ruled on the various motions for summary judgment, the court set a new trial date and ordered counsel to be present thirty minutes before trial "to review proposed jury instructions and voir dire."
¶18 Trujillo nevertheless argues the trial court violated his right to a jury trial by erroneously granting Colt's motions. In particular, Trujillo challenges the court's rulings precluding his tort claim arising from air contamination or the power surge. This court addressed and rejected essentially the same argument in Morrell v. St. Luke's Medical Center, 27 Ariz. App. 486, 490, 556 P.2d 334, 338 (1976). There, we stated:
It is obvious that the entry of summary judgment will preclude a later trial by jury. This is the design of Rule 56—to resolve whether material issues of fact exist, and if none do, then to enter judgment for the moving party if he is entitled to it as a matter of law. It is not the intention of the rules to grant a trial on the merits when
there is no genuine fact issue or where a claim may be frivolous.Id. (internal citations omitted). We therefore reject Trujillo's argument that the court violated his right to a jury trial.
Precluding Expert Opinion
Air Contamination and Health Hazards
¶19 Trujillo further argues the trial court erred when it precluded Kaufmann from testifying about air contamination and health hazards caused by the improperly installed air compressor and vacuum. "We review the trial court's decision to admit or exclude expert testimony for an abuse of discretion." Sandretto v. Payson Healthcare Mgmt, Inc., 234 Ariz. 351, ¶ 11, 322 P.3d 168, 173 (App. 2014).
¶20 Rule 702, Ariz. R. Evid., governs the admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.In applying Rule 702, "[t]he Arizona Supreme Court has made clear that 'trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury's determination of facts at issue.'" Ariz. State Hosp./Ariz. Cmty. Prot. & Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 29, 296 P.3d 1003, 1009 (App. 2013), quoting Ariz. R. Evid. 702 cmt. to 2012 amend. It is the proponent's burden to show "the expert's qualifications are relevant to particular issues in the case." Sandretto, 234 Ariz. 351, ¶ 15, 322 P.3d at 174.
¶21 In Trujillo's initial statement of witnesses and issues for trial, he noted that he planned on Kaufmann testifying "as to the contamination of the office due to the improper installation . . . of the vacuum and compressed air systems . . . such that it exhausted airborne blood pathogens back into the dental office." During his deposition, Kaufmann stated he had worked for eighteen years as a service technician for dental equipment companies and then became an "Equipment Sales Specialist" in 2004. His training consisted of "product specific courses" conducted by the manufacturers of equipment he sold. Kaufmann stated he was "med-gas certified" by a single manufacturer, although he did not have a state license that would permit him to "work on med-gas lines." The only certification he held from a state or government agency was a certification from the State of Arizona to work with x-ray machines.
To support his argument on appeal and below, Trujillo has cited portions of Kaufmann's deposition that the parties did not file with the trial court. "An appellate court's review is limited to the record before the trial court." GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990). Therefore, we do not address Trujillo's unsupported assertions.
¶22 On the subject of air contamination, Kaufmann described how Trujillo's air compressor and vacuum had been improperly installed and that, when he opened a drain valve on the air compressor, "it was full of blood." However, when asked if the x-ray equipment had been contaminated by the air, Kaufmann stated:
Now, on the x-ray aspect, yes. They were contaminated. Could they have been wiped down? Yes.He also stated his opinion was not based on "studies or swabs or samples." Thus, Trujillo failed to show that Kaufmann was qualified to give an opinion on air contamination. See Sandretto, 234 Ariz. 351, ¶ 15, 322 P.3d at 174. Kaufmann's expertise concerned the function and proper installation of dental equipment, and the trial court permitted him to testify on that subject. But we cannot say the court abused its discretion when it implicitly determined Kaufmann's opinion on air contamination was no more reliable than a juror's. See id. ¶ 11.
. . . I'm not a pathologist so I want to get that clear, but did everything go airborne, you bet. Were there contaminants on everything in there, I'm sure there was, because the venting blew into, just blew into the room.
Trujillo cites Warner v. Southwest Desert Images, LLC, 218 Ariz. 121, 180 P.3d 986 (App. 2008), and argues that "it is unlikely in any air contamination case, where the contamination is not continuing, that air testing will be possible." Warner is distinguishable here. In that case, it was undisputed that contamination had occurred, and "negligence had already been established, thus, no expert testimony was required to prove it." Id. ¶¶ 8, 16.
Trujillo also argues the trial court erred when it prohibited Kaufman from "characteriz[ing] the content of the substance" that drained out of the air compressor. Because Kaufmann's opinion on contamination was properly excluded and Trujillo's claim relating to air contamination is no longer viable, this issue is moot.
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Building Inspectors as Standard of Care Experts
¶23 Trujillo argues the trial court erred in ruling "the building department inspectors were not to testify on the standard of care of plumbers." During the first hearing on Colt's motions for summary judgment, Trujillo "request[ed] leave to depose the Marana Building Inspectors" as to "the reason that the power to the building was turned off." Colt did not object, "as long as the building inspectors [were] limited to the power issue and not questioned regarding the standard of care." The trial court agreed and ruled they were "precluded from testifying as standard of care experts and [could] only testify as to their actions and reports that were produced at the time of the events in question."
¶24 The court's minute entry for this hearing does not reflect that Trujillo even requested that the inspectors testify as plumbing standard of care experts. Additionally, nothing in the record indicates Trujillo ever disclosed them as such. This court will not consider issues raised for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000). And, because Trujillo has not provided transcripts from the hearing, we presume the trial court's reasoning is supported by the record. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 4, 119 P.3d 467, 470 (App. 2005) (in the absence of transcripts, record "insufficient for us to meaningfully review the trial court's rulings or to overcome the presumption that those rulings are supported by the record"). Moreover, the deadline to complete discovery had passed before this hearing, see Ariz. R. Civ. P. 16(b) (discovery and disclosure deadlines), and if Trujillo needed to conduct more discovery to fully respond to Colt's motions for summary judgment, it was his responsibility to file a request to do so before the hearing, see Ariz. R. Civ. P. 56(f); Edwards v. Bd. of Supervisors of Yavapai Cnty., 224 Ariz. 221, ¶ 19, 229 P.3d 233, 235-36 (App. 2010). The issue is therefore waived, and we need not address it further. See Edwards, 224 Ariz. 221, ¶ 19, 229 P.3d at 235-36.
Damages
¶25 Trujillo argues the trial court erred because it denied him an "opportunity . . . to provide testimony to the jury about proximately caused damages, such as lost profits, damaged equipment, lost real estate and vehicles." He also argues the court erred when it excluded "evidence of insured equipment" and "disregarded" the collateral source rule.
¶26 In his opening brief, Trujillo explains that those damages related to his "second office, . . . home and other real estate, . . . motor vehicles, and . . . certain construction defects on his other office" were all caused by "[Colt's] contract breach in totally botching the remodel project." The lost profits Trujillo seeks are similarly intertwined with his contract claim. See Short, 150 Ariz. at 585, 724 P.2d at 1254. But, as explained above, we lack jurisdiction to consider Trujillo's breach-of-contract claim. Therefore, we decline to address these portions of the court's ruling. See Harris, 215 Ariz. 344, ¶¶ 12-14, 160 P.3d at 227-28.
¶27 The remaining damages, including Trujillo's equipment damages covered by his insurer, were all related to his theories on contamination and the power surge. In addressing these damages in his opening brief, Trujillo explains the trial court's other pretrial orders either "excluded or granted summary judgment on the most important causation issues in the case, thus there remained minimal facts that could be presented to the jury [and] the counter claim was no longer viable." Because we have affirmed those same orders—namely, the exclusion of his expert witnesses—it necessarily follows that the claims for the remaining damages are also "no longer viable." Accordingly, we reject Trujillo's arguments regarding the court's rulings as to these damages.
Punitive Damages
¶28 Trujillo argues the trial court erred when it excluded his request for punitive damages. We decline to reach the merits of this argument because Trujillo failed to properly raise it below.
¶29 Rule 8(a), Ariz. R. Civ. P., requires parties to include in their pleadings a statement of the relief they seek. A request for punitive damages can raise "substantial new factual issues" in a case, Owen v. Superior Court, 133 Ariz. 75, 80, 649 P.2d 278, 283 (1982), and therefore, at a minimum, a party must include in the pleadings, "'a general prayer for punitive damages . . . to put the defendant on notice that damages may be awarded,'" Ezell v. Quon, 224 Ariz. 532, ¶ 23, 233 P.3d 645, 651 (App. 2010), quoting Kline v. Kline, 221 Ariz. 564, ¶ 29, 212 P.3d 902, 910 (App. 2009).
¶30 Trujillo did not allege punitive damages in his counterclaim. Although Trujillo asserts in his opening brief that he "placed in the record his intent to present the issue of punitive damages to the jury," the document he cites is his answer to Colt's sixth motion for summary judgment. An answer to a motion for summary judgment is not a pleading. See Ariz. R. Civ. P. 8(a) (pleadings include "original claim, counterclaim, crossclaim, or third-party claim"). Because Trujillo's request for punitive damages was not properly raised below, we cannot say the trial court erred in granting summary judgment on this issue. See City of Tempe, 201 Ariz. 106, ¶ 14, 32 P.3d at 36.
Attorney Fees
¶31 In its cross-appeal, Colt argues the trial court erred by denying its request for attorney fees pursuant to A.R.S. §§ 12-341.01 and 12-349. "We review the grant or denial of attorney fees for an abuse of discretion." Motzer v. Escalante, 228 Ariz. 295, ¶ 4, 265 P.3d 1094, 1095 (App. 2011). In doing so, we view the evidence in the light most favorable to upholding the court's decision and affirm, unless its findings are "clearly erroneous." Phx. Newspapers, Inc. v. Dep't of Corrs, 188 Ariz. 237, 243, 934 P.2d 801, 807 (App. 1997).
¶32 "In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees." § 12-341.01(A). Seven factors help guide a trial court's decision whether to grant fees pursuant to § 12-341.01:
(1) [T]he merits of the claim or defense the unsuccessful party presented; (2) whether the parties could have avoided or settled the litigation and whether "the successful party's efforts were completely superfluous in achieving the result"; (3) whether assessing fees against the unsuccessful party will cause an extreme hardship; (4) whether the successful party prevailed on all relief sought; (5) the novelty of the legal questions presented; (6) whether the claims or defenses had been previously adjudicated in Arizona; and (7) whether an award of fees would discourage other parties with tenable claims or defenses from litigating or defending legitimate contract issues for fear of incurring liability for substantial amounts of attorney fees.Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, ¶ 19, 99 P.3d 1030, 1035-36 (App. 2004), quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985). "[A]lthough reasonable minds might balance the . . . factors differently," we must affirm the court's conclusion if a reasonable basis supports it. Id. ¶ 21.
¶33 Colt's argument on appeal highlights the fact that Trujillo had claimed "over $300 million in speculative and unsupportable damages" and its efforts to settle were "unreciprocated." Notably, Colt alleges it had suggested below that "both parties walk away from the litigation, with each party bearing its own fees and costs," but "[i]n one settlement negotiation where attorney's fees were addressed, Trujillo even argued that he would simply file bankruptcy if fees were awarded." Nevertheless, Colt also acknowledges that Trujillo significantly lowered his estimate of damages during the litigation. And, Colt has failed to cite portions of the record showing Trujillo negotiated in bad faith. See Ariz. R. Civ. App. P. 13(a)(6) (argument shall contain "citations to the authorities, statutes and parts of the record relied on"); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (failure to comply with Rule 13 "can constitute abandonment and waiver of that claim").
¶34 Moreover, we cannot say Trujillo's initial position in the lawsuit was unreasonable. Colt ultimately agreed to dismiss its own breach-of-contract claim, and there is nothing in the record to suggest Trujillo's counterclaim wholly lacked merit or was frivolous. See Orfaly, 209 Ariz. 260, ¶ 19, 99 P.3d at 1035-36. Thus, the trial court did not abuse its discretion in denying Colt's request for fees pursuant to § 12-341.01. See id. ¶ 18.
¶35 Colt also argues it was entitled to fees pursuant to § 12-349, which provides the trial court "shall assess reasonable attorney fees" if a party:
1. Brings or defends a claim without substantial justification.
2. Brings or defends a claim solely or primarily for delay or harassment.
3. Unreasonably expands or delays the proceeding.
4. Engages in abuse of discovery.
¶36 Colt first argues Trujillo unreasonably expanded the proceeding because he "was completely unreasonable" during settlement negotiations. But as noted above, Colt has not demonstrated how the record supports this assertion. See Ariz. R. Civ. App. P. 13(a)(6).
¶37 Next, Colt argues Trujillo "engaged in abusive discovery tactics such as witness tampering and spoliation." In support of this argument, Colt cites its motion for fees filed below and alleges "Trujillo caused a public outcry when he reported to state and county agencies that his office was 'quarantined.'" Colt also points to its motion to dismiss filed in February 2013, alleging Trujillo "contacted an independent witness in this case and intim[id]ated, as well as bribed that witness with a tax donation credit, in an effort to have the witness destroy critical evidence" and "intimidate[d] . . . a Tucson court reporter."
¶38 The trial court denied the motion to dismiss and instead admonished Trujillo "to not contact any witnesses or attempt to affect any evidence in this case." The court did not rule on Colt's motions concerning spoliation and sanctions, instead declaring the issue moot when it dismissed Trujillo's counterclaim. Moreover, Colt has not provided transcripts for any of the hearings on these matters. See Ariz. R. Civ. App. P. 11(b); In re 6757 S. Burcham Ave., 204 Ariz. 401, ¶ 11, 64 P.3d 843, 846-47 (App. 2003). And it has failed to cite to any portions of the record to support its argument beyond its own motions below. See Ariz. R. Civ. App. P. 13(a); Ritchie, 221 Ariz. 288, ¶ 62, 211 P.3d at 1289. Therefore, we cannot say the trial court abused its discretion by denying the request for fees under § 12-349. See Phx. Newspapers, 188 Ariz. at 243, 934 P.2d at 807.
Disposition
¶39 For the foregoing reasons, we affirm. Colt requests attorney fees on appeal pursuant to § 12-341.01. In our discretion, we deny the request. However, Colt is entitled to its costs upon compliance with Rule 21, Ariz. R. Civ. App. P.