Opinion
No. 1 CA-CV 10-0738
10-06-2011
RASOOL KASHKOOL, Plaintiff/Appellant, v. ROSE ANDONYAN; GEORGE ANDONYAN Defendants/Appellees.
Rasool Kashkool In propria persona Phoenix Law Office of Kevin F. Finn By Kevin F. Finn Attorneys for Defendants/Appellees Phoenix
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Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure)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. CV2003-018882
The Honorable J. Richard Gama, Judge
AFFIRMED
Rasool Kashkool
In propria persona
Phoenix Law Office of Kevin F. Finn
By Kevin F. Finn
Attorneys for Defendants/Appellees
Phoenix HALL, Judge
¶1 Appellant Rasool Kashkool appeals the trial court's award of attorneys' fees and costs to Rose and George Andonyan (the Andonyans). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2003, Kashkool filed a complaint against the Andonyans alleging battery, assault, trespassing to chattel, and conversion. The case was heard by an arbitrator, who found in favor of the Andonyans and awarded them $1395.30 in taxable costs. Kashkool appealed the arbitrator's decision and the case proceeded to trial in May 2006. The trial court affirmed the arbitrator's decision and awarded the Andonyans $10,314.00 in attorneys' fees, $3300.00 in expert witness fees, and $1395.30 in taxable costs.
¶3 In July 2009, a satisfaction of judgment was filed with the court, stating "[f]or consideration of the settlement . . . the defendants, [h]ave agreed to dismiss their claims against plaintiff, in full satisfaction of the Judgment. Defendants, hereby acknowledge[] the satisfaction of the Judgment . . . [and] authorize[] the Clerk of the Court to enter a satisfaction of Judgment as to . . . Kashkool." The Andonyans' signatures were provided on the satisfaction of judgment. Thereafter, the Andonyans moved to strike the satisfaction of judgment, arguing that their signatures were falsified and the judgment was not satisfied.
¶4 The court set an evidentiary hearing to determine the veracity of the satisfaction of judgment. However, this hearing was continued, per Kashkool's request, because Kashkool "indicated his child was going to be admitted to the hospital." The court ordered Kashkool to fax the court "a document reflecting that [Kashkool's] child had been admitted to the hospital and who the doctor is." The court received a fax purportedly sent by Dr. Kara Lewis; however, Dr. Lewis's office stated that the fax was "not true and accurate - did not come from our office." The court found Kashkool in indirect civil contempt due to filing "a false document to secure a continuance of the Court" and ordered him to pay the Andonyans' attorney $400.00 for fees and costs associated with the continuance in the matter.
¶5 At the continued hearing on May 24, 2010, the court found that the satisfaction of judgment was forged and not valid and ordered the reinstatement of the original judgment. It further ordered the Andonyans to submit a request for attorneys' fees and costs. On July 13, 2010, the Andonyans moved for approximately $4700.00, less the $400.00 for which Kashkool was previously sanctioned, in attorneys' fees pursuant to Arizona Rules of Civil Procedure (Rule) 11(a) and 37(c) and (e) and $429.93 in the Andonyans' costs.
¶6 In response, Kashkool argued that the Andonyans' motion for fees was untimely because it was submitted more than ten days after the court's hearing. Kashkool additionally contended that the Andonyans improperly relied on Arizona Revised Statutes (A.R.S.) sections 12-349 (2003) and 25-324 (Supp. 2010) as bases for their fee award. Finally, Kashkool maintained that because the court did not find him guilty, it could not award fees against him.
¶7 The court stated that it received and considered the Andonyans' motion for fees and Kashkool's responsive pleadings and reply, and "having reviewed these factual circumstances and the parties' respective positions, does find that [the Andonyans] are entitled to an award of attorney fees and costs pursuant to [Rules] 11[a], 37[c][e]." The court awarded the Andonyans $4700.00 in fees and $429.93 in costs.
¶8 Kashkool timely appeals and argues: (1) the Andonyans' motion for attorneys' fees and costs was untimely; (2) the Andonyans improperly argued for fees pursuant to A.R.S. §§ 12-349 and 25-324; and (3) because the trial court did not find him guilty of forging the satisfaction of judgment, this court should grant him a new trial to award him punitive damages.
DISCUSSION
¶9 We review a trial court's imposition of Rule 11 and Rule 37(c) and (e) sanctions for an abuse of discretion. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 332 (App. 1993); Hays v. Gama, 205 Ariz. 99, 102, ¶ 17, 67 P.3d 695, 698 (2003); Orfaly v. Tucson Symphony Society, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App. 2004). A court abuses its discretion if it bases "its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id. at 319 n.4, 868 P.2d at 332 n.4. We view the evidence in the light most favorable to upholding a fee award. See Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20, 139 P.3d 612, 616 (2006); Heuisler v. Phoenix Newspapers, Inc. , 168 Ariz. 278, 284, 812 P.2d 1096, 1102 (App. 1991).
Rule 11(a) provides, in relevant part:
A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper . . . [A] signature of . . . [a] party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry is well grounded in fact and is warranted by existing law . . . and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . . If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion . . . shall impose upon the person who signed it . . . an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorneys' fee.
Rule 37(c)(1) states, in part:
A party . . . who makes a disclosure . . . that the party . . . knew or should have known was inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorney's fees of such investigation or discovery.
Rule 37(e) provides, in relevant part:
[i]f a party fails to admit the genuineness of any document or the truth of any matter . . . and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
¶10 Kashkool first argues that the Andonyans' motion for attorneys' fees was untimely because they filed it more than ten days after the court's order. We first note that the trial court did not require the Andonyans to file their motion for attorneys' fees within ten days of its order. Kashkool fails to cite any legal authority supporting his argument that the Andonyans had only ten days to submit their claim for attorneys' fees. Rule 54(g)(2), which pertains to attorneys' fees, generally states that a claim for attorneys' fees must be made within twenty days from the clerk's mailing of a decision on the merits of the cause, but it does not apply to "claims for fees and expenses as sanctions pursuant to statute or rule." Ariz. R. Civ. P. 54(g)(4). Thus, "trial court's discretion as to when motions for sanctions may be heard is not governed by Rule 54(g)" time limits. Britt v. Steffen, 220 Ariz. 265, 271, ¶ 24, 205 P.3d 357, 363 (App. 2008). Further, "jurisdiction to impose Rule 11 sanctions does not end at some arbitrary period of time following a decision on the merits or even the entry of judgment." Britt, 220 Ariz. at 271, ¶ 24, 205 P.3d at 363. The Andonyans filed their motion thirty-nine days after the court's decision was filed. Because the Andonyans made their claim for fees as sanctions pursuant to Rules 11(a), 37(c) and (e), their motion was not governed under the strict twenty day time limit, and the trial court had the discretion to determine whether a motion for attorneys' fees as sanctions was timely. The trial court did not abuse its discretion in granting sanctions that were requested thirty-nine days after it issued its judgment on the matter.
¶11 Next, Kashkool argues that the Andonyans improperly argued for fees pursuant to A.R.S. §§ 12-349 and 25-324. The record on appeal does not support Kashkool's claim. The Andonyans argued for fees pursuant to Rules 11(a), and 37(c) and (e), and the court granted fees pursuant to those rules. We therefore decline to address this argument further as it lacks merit.
¶12 Finally, Kashkool requests this court grant him a new trial to award him punitive damages because he "suffered psychological damage and significant result [sic] of this false and deliberate accusation by" the Andonyans of forgery and the trial court found him not guilty of forgery. Kashkool presents the argument for a new trial for the first time on appeal. Arguments raised for the first time on appeal are untimely and therefore generally waived. Odom v. Farmers Ins. Co. of Ariz. , 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125 (App. 2007). In our discretion, however, we address this argument, but we reject it on the merits. Id.
Kashkool's claim that the court found him "not guilty" is apparently based on the court's finding that the satisfaction of judgment was forged, but it did not specifically find it was forged by Kashkool. In any event, Kashkool did not appeal the court's order finding the satisfaction of judgment was forged; rather, he appealed the resulting sanctions the court imposed on him.
¶13 Although the trial court's minute entry and the transcript of the hearing did not specifically indicate whether the court found Kashkool guilty or not guilty of forgery, the court found that the satisfaction of judgment was forged and not valid and subsequently imposed sanctions against Kashkool pursuant to Rules 11(a), and 37(c) and (e). The court also separately imposed sanctions against Kashkool for filing a forged medical document with the court and stated that Kashkool "lessened the dignity and the authority of this Court." By imposing sanctions pursuant to Rule 37(e) and (c) and Rule 11(a), the court clearly found that Kashkool did not conduct himself properly and that his actions warranted sanctions. There is no basis to remand this case to the trial court for a new trial.
The record on appeal only contains the transcript for first day of the two-day hearing on the issue of whether the satisfaction of judgment was forged.
Rule 37(e) provides that "a party fails to admit the genuineness of any document or the truth of any matter."
Rule 37(c) states that "[a] party . . . who makes a disclosure . . . that the party . . . should have know was inaccurate or incomplete . . . shall be ordered by the court to reimburse the opposing party for the cost, including attorney's fees."
Rule 11(a) provides that "[i]f a pleading, motion or other paper is signed [for any improper purpose], the court, upon motion . . . shall impose upon the person who signed it . . . an appropriate sanction."
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¶14 The Andonyans request attorneys' fees on appeal pursuant to A.R.S. § 12-349 and Arizona Rules of Civil Appellate Procedure (ARCAP) 21 and 25. ARCAP 21 does not provide a substantive basis for an award of attorneys' fees on appeal. Smyser v. City of Peoria, 215 Ariz. 428, 442, ¶ 50, 160 P.3d 1186, 1200 (App. 2007). ARCAP 25 authorizes an award of fees as a sanction if an appeal "is frivolous or taken solely for the purpose of delay." Because Kashkool's appeal failed to present issues supported "by any reasonable legal theory" or a "colorable legal argument . . . about which reasonable attorneys could differ," Matter of Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993), we hold that Kashkool's appeal was frivolous under ARCAP 25 and we award the Andonyans $500.00. Because we have decided to award fees under ARCAP 25, we need not determine whether Kashkool should also be assessed fees under A.R.S. § 12-349. We also award the Andonyans their costs on appeal contingent upon their compliance with ARCAP 21.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
PHILIP HALL, Judge CONCURRING: MICHAEL J. BROWN, Presiding Judge PATRICIA K. NORRIS, Judge