Vesper v. Lindfors ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
VESPER PROPERTIES, L.L.C., an Arizona limited liability company,
Plaintiff/Counterdefendant/Appellee-Cross Appellant,
v.
LINDFORS LONGHORN RANCH, L.L.C., an Arizona limited liability
company, Defendant/Counterclaimant/Appellant-Cross Appellee.
No. 1 CA-CV 20-0315
FILED 4-22-2021
Appeal from the Superior Court in Yavapai County
No. P1300CV201700041
The Honorable Krista M. Carman, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
COUNSEL
Law Offices of Stewart F. Gross, Phoenix
By Stewart Gross
Counsel for Plaintiff/Appellee/Cross-Appellant
Tiffany & Bosco PA, Phoenix
By Kevin P. Nelson, Evan P. Schube, Amy D. Sells
Counsel for Defendant/Appellant/Cross-Appellee
VESPER v. LINDFORS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Brian Y. Furuya joined.
H O W E, Judge:
¶1 Lindfors Longhorn Ranch, L.L.C. appeals the trial court’s
order distributing proceeds from the sale of the Longhorn Ranch property,
as well as the trial court’s granting Vesper Properties, L.L.C., summary
judgment on its abuse of process claim. Vesper cross-appeals the trial
court’s finding that it filed a groundless lis pendens and the court’s
awarding Lindfors its reasonable attorneys’ fees. For the following reasons,
we affirm in part, reverse in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 In 2006, Sherri Lindfors1 and her adult children (collectively
“the Sherri Plaintiffs”) initiated an action (“the Family Litigation”) against
Diane Lindfors, Lindfors Longhorn Ranch, and another family member
(collectively “the Lindfors Defendants”) to establish, among other things,
title and management of two properties—the Longhorn Ranch property
and the Chino Valley property. After four years of litigation, the parties
reached a settlement, and the trial court entered its ruling in 2011 (“2011
Ruling”) outlining the parties settlement agreement. Pursuant to the 2011
Ruling, both properties were ordered sold and the monies from the sales
distributed as follows: (1) $8,106.40 to the Sherri Plaintiffs, (2) $132,077.17
to the Lindfors Defendants, and (3) any remaining balance divided equally
between them. The court ordered that both properties be placed for sale
with a realtor of the parties’ choosing within 30 days of the ruling and both
parties agreed that “there will be no right of appeal.”
¶3 The two properties were listed for sale, but no offers were
made. Two months later, a notice of trustee sale was recorded for the Chino
Valley property and the property was foreclosed on in April 2012. In
October 2014, Roy Mintzmyer offered to buy the Longhorn Ranch property
for $350,000, with a $50,000 down payment and the balance paid over a
1 Because both parties share the same last name, we refer to each of
them, respectfully, by their first names.
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30-year period. Diane declined the offer because it required her to finance
the purchase on a 30-year loan.
¶4 In October 2016, Vesper investigated ownership of the
Longhorn Ranch property and prepared a report that identified Lindfors
and Diane as the owners of the property and discussed the Family
Litigation. The report also noted a “[p]ending CP Tax Foreclosure in the
amount of $42,738.68.” The following month, Vesper offered to purchase
the Sherri Plaintiffs’ interest in the property for $6,000. Vesper also emailed
Diane offering to purchase her interest in the property for $10,000. Vesper
stated that it preferred to purchase Diane’s interest because she “currently
holds title to the property.” Vesper later purchased the Sherri Plaintiffs’
interest in the Longhorn Ranch property for $7,500, and the Sherri Plaintiffs
executed two quitclaim deeds transferring their interest in the property to
Vesper. Vesper then paid $40,314.19 in outstanding taxes to redeem the
property. Diane never sold her interest in the property to Vesper.
¶5 In January 2017, Vesper recorded a lis pendens and filed a
complaint asserting that it had acquired sole ownership of the Longhorn
Ranch property through the quitclaim deeds the Sherri Plaintiffs had
executed. Lindfors counterclaimed for partition of the property. In August
2018, Lindfors moved to file a second-amended counterclaim to include
claims of abuse of process, punitive damages, and the filing of a groundless
lis pendens.
¶6 In October 2018, Lindfors moved for summary judgment on
the partition claim and on Vesper’s sole ownership claim. The trial court
granted Lindfors summary judgment, finding that Vesper’s sole ownership
claim had no basis in law and was unsupported by evidence. Additionally,
the court granted Lindfors summary judgment on its partition claim and
appointed a special commissioner for the sale of the property. Finally, the
trial court also granted Lindfors’ motion to file a second-amended
counterclaim. The property was later sold to Mintzmyer, who had made the
original offer in October 2014.
¶7 In February 2019, Lindfors filed its second-amended
counterclaim, alleging that Vesper recorded a groundless lis pendens and
had engaged in abuse of process. The parties then each moved for summary
judgment on those claims. The trial court granted Vesper summary
judgment, dismissing Lindfors’ abuse of process claim and its request for
punitive damages. The Court found that even though Vesper’s sole
ownership claim was meritless, Vesper provided evidence that at the time
of filing, it believed that it had a “proper basis for filing the quiet title action
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and lis pendens.” The court denied both parties’ summary judgment
motions on Lindfors’ groundless lis pendens claim and on the distribution
of proceeds related to the partition claim, finding that issues of fact
remained about whether Vesper’s lis pendens was groundless and on the
division of proceeds.
¶8 The court held a trial to determine how the proceeds from the
partition should be distributed and whether Vesper’s lis pendens was
groundless. Vesper’s owner testified that Diane never transferred her
interest in the property to Vesper. Diane testified that she did not know
how much of the $132,077.17 credit given in the 2011 Ruling was
attributable to the Chino Valley property and that she could not remember
how much was attributable to the Longhorn Ranch property. After trial, the
court found that it could not follow the distributions listed in the 2011
Ruling because the sale of the Chino Valley property made it impossible to
determine what credits were associated with the Longhorn Ranch property.
It also found that Diane breached the 2011 Ruling by declining Mintzmyer’s
October 2014 offer to buy the property. The court distributed the proceeds
by awarding Vesper $20,171.59 and $4,574.52 for one-half the taxes and
attorneys’ fees it spent to redeem the property and then ordered that any
remaining proceeds be divided equally.
¶9 The court further found that Vesper knew or had reason to
know that its sole ownership claim was groundless. It reasoned that
Vesper’s own report noted that Lindfors and Diane held an ownership
interest in the property and that Vesper’s counsel testified that she had
reviewed the 2011 Ruling.
¶10 The trial court therefore awarded Lindfors $5,000 in statutory
damages, $83,855.00 in attorneys’ fees, and $2,459.44 in costs pursuant to
A.R.S. § 33–420(A). Lindfors timely appealed and Vesper timely
cross-appealed.
DISCUSSION
1. Distribution of Proceeds
¶11 Lindfors argues that the trial court erred by not distributing
the proceeds from the sale of the property according to the 2011 Ruling. It
contends that claim preclusion applied and prevented Vesper from
relitigating the partition distribution. We review the claim preclusive effect
of a prior judgment de novo. Howell v. Hodap, 221 Ariz. 543, 546 ¶ 17 (App.
2009).
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¶12 Under claim preclusion, a final judgment on the merits in a
prior suit involving the same parties or their privies bars a second suit based
on the same cause of action. Stearns v. Ariz. Dep’t of Revenue, 231 Ariz. 172,
177 ¶ 25 (App. 2012). A judgment is final for purposes of claim preclusion
if the judgment is not “tentative, provisional, or contingent and represents
the completion of all steps in the adjudication of the claim by the court.”
Lawrence T. v. Dep’t of Child Safety, 246 Ariz. 260, 263 ¶ 11 (App. 2020)
(quoting Restatement (Second) of Judgments § 13 cmt. b.).
¶13 The Family Litigation involved a quiet title action that
resulted in the parties agreeing to the partition of the property and the
distribution of the sale proceeds. Vesper does not challenge these elements
of claim preclusion. While Vesper was not a party to the Family Litigation
that resulted in the 2011 Ruling, claim preclusion applies “to those who
acquire an interest in the subject matter affected by the earlier judgment
through or under one of the parties after judgment is entered.” Hall v. Lalli,
191 Ariz. 104, 106 (App. 1997). Because Vesper acquired the Sherri
Plaintiffs’ interest in the property, the parties are the same for purposes of
claim preclusion.
¶14 Relying on Haywood Securities, Inc. v. Ehrlich, Vesper argues
that the 2011 Ruling is not a final judgment because the ruling was
unsigned. 214 Ariz. 114 (2007). But the supreme court found there only that
an electronic signature satisfies the requirement that a judgment must be
signed before it is considered final for purposes of appeal. Id. at 118 ¶ 21. It
did not hold that a judgment is not final for purposes of claim or issue
preclusion unless the judgment is signed. A final judgment does not have
to be appealable to be given preclusive effect. Elia v. Pifer, 194 Ariz. 74, 80 ¶
32 (App. 1998). By the same token, a judgment that is final for purposes of
claim preclusion may not be final for appeal. See Restatement (Second) of
Judgments § 13 cmt. b.; see also In re Moreno, 414 B.R. 485, 490 (W.D. Wis.
2009) (finding that an unsigned minute entry was a final judgment for
purposes of issue preclusion even if the judgment was not appealable
because the judgment was unsigned).
¶15 The fact that the trial court’s 2011 Ruling was unsigned does
not make it any less final for purposes of determining whether any of the
parties were free to later relitigate the claims decided therein. On the
contrary, the circumstances surrounding the court’s 2011 Ruling show that
the order was not “tentative, provisional, or contingent and represents the
completion of all steps in the adjudication of the claim by the court.” See
Lawrence T., 246 Ariz. at 263 ¶ 11. The parties agreed to be bound by the
settlement agreement and stipulated that “there will be no right of appeal.”
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Therefore, the 2011 Ruling was a final judgment on the merits and claim
preclusion applies.
¶16 Citing to Arizona’s partition statute, Vesper argues that
Arizona law requires “the court to weigh all evidence with regard to
interests in property, and not rely solely upon one of the parties’ theories.”
The partition of property, however, must comply with Arizona’s statutory
scheme only in the absence of an agreement between the parties. Cohen v.
Frey, 215 Ariz. 62, 65 ¶ 6 (App. 2007). “If the parties agree to voluntary
partition, however, they may include whatever terms they desire.” Id. In
the 2011 Ruling, the Lindfors Defendants and the Sherri Plaintiffs
voluntarily agreed to the partition and agreed on how the proceeds of the
sale would be distributed. As the successor in interest—with full
knowledge of the 2011 Ruling—Vesper cannot now invoke the partition
statutes to negate the 2011 Ruling. See id. at ¶ 7.
¶17 Vesper argues next that Lindfors violated the 2011 Ruling by
failing to list the properties for sale within 30 days of the court’s ruling.
Diane testified that the two properties were listed for sale within the time
limits prescribed by the 2011 Ruling, she sent signed listing agreements to
the parties’ realtor shortly after the Ruling was entered, and the trial court
did not find that Lindfors had violated the 2011 Ruling in this regard.
Therefore, Lindfors did not violate the 2011 Ruling.
¶18 Vesper also argues that Lindfors violated the 2011 Ruling by
declining Mintzmyer’s October 2014 offer to purchase the property.
Lindfors counters that the Ruling did not require it to finance the sale of the
property over a 30-year period. To interpret a ruling, we apply the general
rules of construction and must determine whether the ruling is ambiguous.
Id. at 66 ¶ 11.
¶19 Lindfors was not required to accept Mintzmyer’s 2014 offer
because his offer was unreasonable and inconsistent with the trial court’s
2011 Ruling. The 2011 Ruling did not require Lindfors to accept any offer
made on the property, nor did it require her to finance the sale of the
property. Moreover, Mintzmyer’s request for Lindfors to finance the sale
over a 30-year period is inconsistent with the 2011 Ruling because the
proceeds of the sale had to be divided and a mortgage cannot be divided.
¶20 Additionally, when considering the surrounding
circumstances, the 2011 Ruling cannot be interpreted to require Lindfors to
finance the sale of the property. After several years of litigation involving
claims of slander, breach of contract, and breach of fiduciary duty, the
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parties agreed to sever business ties by selling the properties. Requiring the
parties to finance the sale of the properties would require them to remain
in business together for 30 years until the final mortgage payment is made.
Vesper’s own report indicates that after speaking with Diane and Sherri,
“they do not wish to talk to each other.” Vesper’s argument fails and
Lindfors did not violate the 2011 Ruling.
¶21 Vesper argues that a change in circumstances required a
redetermination of the distribution of the proceeds. Vesper does not
support this argument with any legal citations and does not argue that any
specific exception to claim preclusion applies here. And we note that the
Sherri Plaintiffs never moved to set aside the 2011 Ruling under Arizona
Rule of Civil Procedure 60 and never sought to modify the Ruling based on
changed circumstances. Vesper likewise never sought relief under Rule 60.
¶22 Nevertheless, a prior judgment may be modified or set aside
if “[t]here has been such a substantial change in the circumstances that
giving continued effect to the judgment is unjust.” Restatement (Second) of
Judgments § 73(2). Relief based on a change in circumstances, however, will
be denied if, after the discovery of the change, the party “was unreasonably
dilatory in seeking relief.” Restatement (Second) of Judgments § 74(1).
Factors relevant to this determination include undue delay, possible
prejudice, and “protection of interests of innocent third persons.”
Restatement (Second) of Judgments § 74 cmt. c.
¶23 Assuming without deciding that a substantial change in
circumstances warranted relief from the 2011 Ruling, Vesper was
unreasonably dilatory in seeking relief because it attempted to vacate or
modify the 2011 Ruling after a five-year delay. See Ortega v. First
RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 455 (Tex. 1990) (finding that
Restatement (Second) of Judgments § 74 precluded relief after a four-year
delay). When the delay is long, as is the case here, prejudice may be
presumed. Gersten v. United States, 364 F.2d 850, 852 (Ct. Cl. 1966). Even if
we do not presume prejudice, under Vesper’s interpretation of the 2011
Ruling, Lindfors would be prejudiced by vacating or modifying the Ruling
because, as Diane testified at trial, she could no longer remember the credits
that were attributable to which property. See Robinson v. E.P. Dutton & Co.,
45 F.R.D. 360 (S.D.N.Y. 1968) (finding vacation of a stipulation after a
10-month delay would prejudice the defendant based on the loss or
deterioration of evidence). The 2011 Ruling even notes that “substantially
no records were apparently maintained” and that “the amount of
individual financial contributions . . . were largely unknown.” As a result,
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Lindfors would be prejudiced because Diane no longer remembers the
contributions that she made to the properties.
¶24 Finally, the “protection of interests of innocent third persons”
factor does not weigh in Vesper’s favor. That factor generally protects a
bona fide purchaser for value. Restatement (Second) of Judgments § 74 cmt.
c. Here, Vesper acquired the Sherri Plaintiffs’ interest in the property with
full knowledge of the 2011 Ruling, the foreclosure of the Chino Valley
property, and the tax lien that Mintzmyer took out against the Longhorn
Ranch property. Vesper even acknowledged in a November 2016 email to
Sherri that Vesper was “taking a large risk” and that Vesper “was fully
aware of all of the litigation and claims between the parties” surrounding
the Longhorn Ranch property. As a result, Vesper is precluded from
seeking relief from the 2011 Ruling based on a significant change in
circumstances. See Restatement (Second) of Judgments § 74.
¶25 While the trial court here found that complying with the 2011
Ruling was impossible because the ruling did not state which credits were
related to which of the two properties, the credits were not attached to any
specific property. Therefore, the credits would have been paid from the
proceeds of whichever property sold first. So, even though the Chino Valley
property was foreclosed on, compliance with the 2011 Ruling was still
possible. Therefore, the trial court erred by not following the distribution of
proceeds in the 2011 Ruling.
¶26 Nevertheless, Vesper is still entitled to credit for one-half the
amount that it paid to redeem the tax lien and Lindfors conceded to this fact
at trial. Lindfors also conceded that Vesper would receive the $8,106.40
credit from the 2011 Ruling since Vesper is the successor in interest to the
Sherri Plaintiffs. As such, the proceeds from the sale of the Longhorn Ranch
property should be distributed as follows: (1) $132,077.17 to Lindfors,
(2) $8,106.40 to Vesper (as the successor in interest to the Sherri Plaintiffs),
and (3) the remaining proceeds divided equally. Additionally, given the
circumstances, Vesper is also entitled to $20,171.59 for one-half of the
property taxes it paid to redeem the property before the remaining
proceeds are divided equally. Lindfors conceded to this distribution at trial.
2. Abuse of Process and Punitive Damages
¶27 Lindfors argues that the trial court erred by granting Vesper
summary judgment on its abuse of process and punitive damages claims. It
contends that acquiring an interest in property is not a legitimate use of the
judicial process. We review the trial court’s grant of summary judgment de
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novo. Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545 ¶ 7 (2019). The elements
of abuse of process are “(1) a willful act in the use of [a] judicial process;
(2) for an ulterior purpose not proper in the regular conduct of the
proceedings.” Goldman v. Sahl, 248 Ariz. 512, 522 ¶ 27 (App. 2020) (quoting
Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982)). “The requisite improper
purpose may be found when, for example, one uses the litigation process
as a “form of coercion to obtain a collateral advantage, not properly
involved in the proceeding itself, such as the surrender of property or the
payment of money, by the use of the process as a threat or a club. There is,
in other words, a form of extortion[.]” Fappani v. Bratton, 243 Ariz. 306, 311
¶ 17 (App. 2017).
¶28 The trial court erred by granting Vesper summary judgment
on Lindfors’ abuse of process claim. After Diane rejected Vesper’s offer to
purchase Lindfors’ interest in the Longhorn Ranch property, Vesper
emailed Lindfors’ counsel stating that “we have three full time and two
additional part time attorneys” and numerous “paralegals on staff,” that
“we know what we are doing and we are not afraid of any potential
litigation,” and that its $10,000 offer to purchase Lindfors’ interest “still
stands.” When Diane rejected the offer, Vesper filed its lis pendens and
complaint the following month, asserting that it had acquired sole
ownership of the Longhorn Ranch property based on the Sherri Plaintiffs’
quitclaim deeds. Viewing these facts in the light most favorable to Lindfors,
a genuine issue of material fact exists whether Vesper used the judicial
process as a club to get Lindfors to sell its interest in the property for
$10,000.
¶29 Additionally, from the time that Vesper purchased the Sherri
Plaintiffs’ interest in the property to the time that it filed the lis pendens and
complaint, Vesper had no evidence that Lindfors no longer held an interest
in the property. The litigation guarantee that Vesper acquired only entitled
Vesper to rely on it for purposes of determining the necessary parties to the
action. See Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 97 ¶ 17
(App. 2011). Moreover, the litigation guarantee expressly stated that “it
shall not be used for any other purpose.” Likewise, the Yavapai County
record that Vesper relied on in its summary judgment motion has no
bearing on Lindfors’ abuse of process claim because that record is from
September 2018, more than a year and a half after Vesper filed its lis
pendens and complaint.
¶30 While Vesper’s counsel claimed at argument on the summary
judgment motion that she believed Lindfors abandoned the property,
Vesper did not allege in its complaint that Lindfors had abandoned the
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property. Rather, it claimed that it had acquired sole ownership in the
property through the quitclaim deeds executed by the Sherri Plaintiffs.
Vesper’s owner even admitted at his deposition that, as of December 2016,
Vesper did not acquire an interest greater than the Sherri Plaintiffs’ interest.
A genuine issue of material fact exists whether Vesper abused the judicial
process by filing its lis pendens and complaint to get Lindfors to sell its
interest in the property for a nominal amount.2 See Fappani, 243 Ariz. at 311
¶ 17 (noting that an improper purpose can be found when the judicial
process is used as a form of coercion to obtain property).
¶31 Vesper argues that acquiring title to property is a legitimate
litigation goal. While obtaining title to property can be a legitimate
litigation goal, that goal becomes illegitimate when, as here, the person
seeking an interest in property knows that he has no legal right to that
interest and files an action claiming ownership of that interest. Vesper’s
complaint alleged that it had acquired sole ownership of the property based
on the quitclaim deeds executed by the Sherri Plaintiffs. But the record
shows that Vesper held only a partial interest in the property and knew that
Lindfors likewise held a partial interest in the property when the complaint
was filed. At oral argument before this Court, Vesper’s counsel even
admitted that any confusion to Lindfors’ title did not arise until discovery
or summary judgment. A genuine issue of material fact exists whether
Vesper engaged in abuse of process and therefore the trial court erred by
granting Vesper’s motion for summary judgment.
¶32 But the trial court properly granted Vesper summary
judgment on Lindfors’ punitive damages claim. “To recover punitive
damages, a plaintiff must prove something more than the underlying tort.”
Shepherd v. Costco Wholesale Corp., 246 Ariz. 470, 479 ¶ 36 (App. 2019). While
Lindfors presented evidence showing that a genuine issue of material fact
existed that Vesper engaged in abuse of process, it failed to present
additional evidence warranting punitive damages. Because more evidence
is required than the commission of the underlying tort, the trial court
2 While Diane’s son-in-law’s trial testimony—the substance of which
was attached as an affidavit to Lindfors’ summary judgment
reply—supports Lindfors’ abuse of process and punitive damages claims,
we do not consider it because we are limited to the evidence presented in
summary judgment motion, see Caruthers v. Underhill, 230 Ariz. 513, 521
¶ 26 (App. 2012), and introducing new evidence in its summary judgment
reply was improper, see Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 214
¶ 20 n.3 (App. 2012).
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properly granted Vesper summary judgment on Lindfors’ punitive
damages claim.
3. Lis Pendens
¶33 Vesper cross-appeals the trial court’s finding that its lis
pendens was groundless, arguing that its lis pendens involved a quiet title
action that affected real property. It contends that the trial court improperly
considered the merits of its sole ownership claim.
¶34 A person claiming to have an interest in property who records
a document asserting that claim, knowing or having reason to know that
the document is groundless or contains a material misstatement or false
claim is liable to the owner of the property for $5,000 and reasonable
attorney fees and costs of the action. A.R.S. § 33–420(A). In determining
whether a lis pendens was wrongfully recorded, the court is limited to
considering “whether the action is one affecting title to real property.” Santa
Fe Ridge Homeowners’ Ass’n v. Bartschi, 219 Ariz. 391, 395 ¶ 11 (App. 2008).
“A lis pendens is groundless or has no basis only when the claim that the
action affects “title to real property has no arguable basis or is not
supported by any credible evidence.” Id. “While this determination may
require the trial court to look beyond the pleadings, it should not involve a
decision on the merits of the underlying action.” Evergreen West, Inc. v. Boyd,
167 Ariz. 614, 619 (App. 1991).
¶35 Vesper knew or had reason to know that its lis pendens was
groundless. Vesper claimed that it was the sole owner of the property. But
before Vesper filed the lis pendens and complaint it knew that Lindfors and
Diane were the record owners of the property and held an interest in the
property. Vesper’s report listed Lindfors and Diane as the record owners
and noted that the property was the subject of a pending case between the
Lindfors Defendants and the Sherri Plaintiffs. When Vesper offered to buy
Diane’s interest in the property, Vesper stated that it preferred to buy her
interest because she “currently holds title to the property.” And the Yavapai
County record still showed Lindfors as the owner of the property on
January 17, 2017, six days before the lis pendens and complaint were filed.
As a result, Vesper’s lis pendens and complaint had no arguable basis and
was not supported by credible evidence. Therefore, the trial court properly
found that Vesper knew or had reason to know that its lis pendens was
groundless.
4. Attorneys’ Fees
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¶36 Vesper argues that the trial court erred by awarding Lindfors
its attorneys’ fees incurred before February 8, 2019, because it did not claim
that Vesper’s lis pendens was groundless until that date. Vesper does not
support its argument with any legal citations and the plain language of
A.R.S. § 33–420(A) refutes its argument. That statute expressly states that
the owner is entitled to “reasonable attorney fees and costs of the action.”
A.R.S. § 33–420(A). The statute does not limit an award of attorneys’ fees
from the time the owner claims the lis pendens was groundless. Rather, it
awards fees for the entire action. As such, the trial court did not err by
awarding fees incurred before February 8, 2019.
¶37 Vesper argues last that even though the trial court reduced
Lindfors’ attorneys’ fee award by about 40%, the fees are still excessive and
unreasonable. It contends that Lindfors should not have been awarded fees
incurred for selling the Longhorn Ranch property, drafting several motions,
unexplained research tasks, and the parties’ settlement conference.
¶38 Not only did the trial court consider these arguments when
reducing the fee award from $141,775.50 to $83,855.00, the fee reduction is
strikingly similar to the total fees that Vesper claimed were excessive and
should not have been awarded. The total amount of fees that Vesper argued
should not have been awarded was $57,296.50. After considering Vesper’s
arguments, the court reduced the fee award by $57,919.50. Therefore, each
of the fees that Vesper complains of are accounted for in the trial court’s fee
reduction and Vesper does not argue that any other specific fees are
unreasonable. The trial court did not abuse its discretion by not further
reducing the fee award.
CONCLUSION
¶39 For the foregoing reasons, we affirm in part, reverse in part,
and remand for further proceedings. Lindfors requests its reasonable
attorneys’ fees incurred on appeal pursuant to A.R.S. § 33–420(A). We do
not consider Lindfors’ request for fees incurred from its appeal because the
request was raised for the first time in its reply brief and cross-appeal
answering brief. See ARCAP 21(a)(1). But we award Lindfors its attorneys’
fees and costs incurred on cross-appeal upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA 12