                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              DAVID YAMAMOTO, an individual, Appellant,

                                        v.

KERCSMAR & FELTUS, PLLC, as Special Administrator for the Estate of
                Miyuki Yamamoto, Appellee.

                             No. 1 CA-CV 14-0580
                               FILED 4-19-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-011079
                   The Honorable Dean M. Fink, Judge
              The Honorable Christopher Whitten, Judge

                                  AFFIRMED


                                   COUNSEL

Dominguez Law Firm, P.C., Phoenix
By Antonio Dominguez, Lisa M. Montes
Counsel for Cross-Defendant/Appellant

Kercsmar & Feltus, PLLC, Scottsdale
By Todd Feltus, Molly Eskay
Counsel for Cross-Plaintiff/Appellee
                      YAMAMOTO v. KERCSMAR
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge:

¶1              Appellant David Yamamoto (David) appeals from the trial
court’s final judgment in favor of his mother Miyuki Yamamoto1 (Miyuki)
in the amount of $155,690.20 from the Charles Schwab & Co. (Schwab)
monies held by the clerk of the court, $7,642.50 in IOLTA trust funds from
Dominguez Law Firm, P.C., $92,887.55 in attorneys’ fees incurred prior to
the judgment, $9,046.54 in post-judgment attorneys’ fees, and costs.
Finding no error, we affirm.

                FACTUAL AND PROCEDURAL HISTORY

¶2             This is a contentious case involving members of the
Yamamoto family and their disputes related to the care of their mother,
Miyuki, and the control and ownership of certain funds. Miyuki had two
children: David and Jeannie. In 2010, David attempted to have himself
named as ninety-one year old Miyuki’s conservator and guardian.2 David
voluntarily dismissed his petition before an answer was filed. In the same
action, Miyuki subsequently filed a petition to reopen the case and a
“Petition for Return of Assets, Misrepresentation to the Tribunal, Elder
Abuse, A.R.S. § 46-456 Exploitation of a Vulnerable Adult, Theft” against
David. She alleged David stole from her and had deposited the money into
a Schwab account solely in his name. The trial court granted Miyuki’s
motion to reopen and found that the funds belonged to her rather than
David. David appealed and the probate action resulted in a 2012 Court of
Appeals memorandum decision holding the probate court did not have
jurisdiction to reopen the case and, therefore, to grant Miyuki’s motion, as
the case had already been dismissed. See In re Guardianship of Yamamoto, 1
CA-CV 11-0132, Slip op. (Ariz. App. May 8, 2012).



1Miyuki died in November 2014, and her estate was substituted in however
for ease of reference we refer to both as “Miyuki.”

2   PB2010-000297

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                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

¶3            Briefly, this case began with Schwab’s interpleader over
ownership of the Schwab funds of $155,690.20. The money at issue
originated with the 2006 sale of six acres on Camelback Road which
resulted in net proceeds of $818,955.61. Of that $818,955.61, David claimed
half was his because Miyuki had gifted it to him just before the Camelback
sale.3 According to David, Miyuki used $377,663.52 of her funds to
purchase the Rovey home and deposited the balance of $31,814.29 along
with his $409,477.80 in the “first” Wells Fargo joint account under both their
names. Between 2006 and 2010, in a series of transactions, the ever-
diminishing money was moved between accounts and/or institutions at
least three times. In the final two transactions, from the “second” Wells
Fargo account to the “third” Wells Fargo account, then to Schwab, David’s
name appears as the sole owner on the accounts. David asserts that he was
merely moving his half of the Camelback property proceeds.

¶4             Miyuki cross-claimed against David for declaratory judgment
over the funds in the Schwab account, a Wells Fargo account, and money
transferred into attorney Antonio Dominguez’s trust account. Miyuki
alleged that David had been stealing her life savings while failing to care
for her health and well-being. David answered Miyuki’s cross claim and
sought his own declaratory judgment over the disputed funds. Miyuki
filed a motion for release of confidential Adult Protective Services (APS)
records from 2008-2013 regarding the situation between her and David.
The first report to APS came from the bank who had concerns over the
handling of Miyuki’s money. Over David’s objection, the trial court
granted her motion and the 17 pages of APS documents and a transcript of
David’s APS interview were filed under seal and were available to the trial
court in the record.

¶5            David moved for summary judgment on the declaratory
judgment. Miyuki sought leave to amend her complaint to add a claim for
Exploitation of a Vulnerable Adult in violation of Arizona Revised Statutes


3 The conveyance and reconveyance of the Camelback property occurred
multiple times between 2003 and 2006. David testified he didn’t know why
the transfers were being made other than for tax purposes and pursuant to
advice from Roger Brown. The factual details of those transfer not being
significant to this decision, given the finding by the trial court that David
was her de facto conservator at the time of the Camelback sale, we need not
detail them here.




                                      3
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

(A.R.S.) § 46-456 (2009) 4, the Adult Protective Services Act, which the trial
court granted. Miyuki next moved for summary judgment regarding the
Schwab funds and the trust account funds on the basis of judicial estoppel
and judicial admission, citing David’s 2010 pleading in the probate case
which attributed all of the $335,000 in the “second” Wells Fargo account to
Miyuki as one of her assets. He disputed both the facts and law as laid out
by Miyuki. David moved for summary judgment as to his mother’s claim
for Exploitation of a Vulnerable Adult. He also filed a motion to strike some
of Miyuki’s factual assertions made in support of her motion for summary
judgment.

¶6             Litigation on all of the motions continued. With trial
approaching, the parties filed a Joint Pretrial Statement. On October 18,
2013, the trial court ruled on the motion to strike, granting it in part. The
trial court denied Miyuki’s motion for summary judgment on the basis that
the procedural postures of the parties in the probate action, which was
dismissed before being litigated, could not support either a claim of judicial
estoppel or of judicial admission. In the same ruling, the trial court denied
David’s motion for summary judgment on statute of limitations grounds
for the vulnerable adult statute. The trial court found that Miyuki’s good
faith filing in August 2010, seeking return of her assets, was “plainly
timely” and found her new claim was saved by the savings statute, A.R.S.
§ 12-504 (2003). The trial court denied David’s motion for reconsideration.
The parties filed an amended pretrial statement.

¶7            The trial on these matters was held over two days. Roger
Brown and David testified on David’s behalf. Mr. Brown was for many
years both David and Miyuki’s financial advisor and accountant. Jeannie’s
husband, Cameron Losey, and Mr. Waller, the President of Miyuki’s
church, also testified. The court read APS investigator Mr. Dettelback’s
deposition. Numerous exhibits were admitted, including bank statements
and pictures reflecting the state of the Rovey home.

¶8          The trial court ruled on January 27, 2014, in favor of Miyuki.
Miyuki was found to be a vulnerable adult since, at least, 2005. Trial court
found David was acting as her de facto conservator since, at least, 2005,

4The 2009 version of A.R.S. § 46-456, which uses the phrase “solely for the
benefit of the vulnerable adult, “ is applicable here. That statute has an
effective date of January 1, 2009. David attempted to have himself named
guardian in 2009 and Miyuki’s APSA theft claim was first asserted in 2010.
David continued to move and use Miyuki’s ever-diminishing assets from
2009 through late 2010. David signed a tax return in 2010.

                                      4
                      YAMAMOTO v. KERCSMAR
                        Decision of the Court

until Miyuki was removed from his care in 2009 by his sister Jeannie. The
trial court found that David, for example, had signed a tax return for
Miyuki as late as 2010 without legal authority to do so. Neither David nor
his accountant-witness were found to be credible. The trial court found no
credible evidence that Miyuki gifted David with an interest in the
Camelback property. All of the funds from the Camelback sale were
determined to be Miyuki’s and, therefore, the funds held by Schwab and
Dominguez were Miyuki’s. David was found to have violated A.R.S. § 46-
456 for exploitation of a vulnerable adult while in a position of trust.
Jeannie, David’s sister, was named conservator. The court found that
Miyuki did not meet her burden of proof under A.R.S. § 46-456(C) of
damages beyond the Schwab account and trust account. Miyuki was
awarded over $92,000 in attorneys’ fees.

¶9           A final judgment was entered and David appealed. David
moved for new trial, which the trial court denied. The trial court awarded
Miyuki an additional $9,046.54 in attorneys’ fees for having to respond to
David’s unsuccessful motion for new trial.             David moved for
reconsideration from the fees order, which was denied. David again
appealed.5 Miyuki passed away in November 2014.

                                 ISSUES

¶10          David raises these issues on appeal:

             1. Whether the trial court erred in finding that Miyuki’s
                APSA claims were within the statute of limitations,
                finding that the savings statute applied, and finding the
                claims related back to her probate claim;

             2. Whether the trial court erred in finding in favor of Miyuki
                on the facts, and

             3. Whether the trial court erred in granting pre-judgment
                and post-judgment attorneys’ fees.




5 Two final judgments pursuant to Arizona Rules of Civil Procedure, Rule
54(b) were entered, and two timely notices of appeal were entered. We treat
these as constituting one case.

                                    5
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

                               DISCUSSION

    A. The Timeliness of Miyuki’s APSA Claim

¶11             In 1988, the Arizona legislature determined that elder abuse
in Arizona was a serious issue justifying legislative intervention and they
enacted the Adult Protective Services Act (APSA), which criminalized
abuse of an incapacitated or vulnerable adult, designating elder abuse a
class 5 felony, and created a statutory civil cause of action. Denton v.
Superior Court, 190 Ariz. 152, 156, 945 P.2d 1283, 1287 (1997) (“The
legislature's intent and the policy behind the elder abuse statute are clear.
Arizona has a substantial population of elderly people, and the legislature
was concerned about elder abuse.”); A.R.S. § 46-456. It is a civil claim under
that statute which is before us.

¶12           We defer to the trial court's factual findings unless clearly
erroneous. See Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz.
631, 634, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). A factual finding is clearly
erroneous only where no substantial evidence supports it. See Visco v.
Universal Refuse Removal Co., 11 Ariz. App. 73, 75, 462 P.2d 90, 92 (1969). We
review the interpretation and application of statutes de novo. Schwarz v.
City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997) (citation
omitted).

¶13           On appeal, David argues that Miyuki’s 2012 APSA claim was
time-barred under A.R.S. § 46-456(F), because it came more than two years
after her actual discovery of her cause of action. He argues that his mother
knew as early as November 2009 that he was removing funds from her
accounts, and as of January 2010 that he had removed all of the funds from
her accounts.6

¶14            In response, Miyuki asserts three arguments. First, she
argues, that her August 20, 2010, filing in the probate court sought the same
relief against David as in her latter cross-claim and that the pleading came
well before the late 2011 deadline asserted by David. That petition was
entitled “Petition for Return of Assets, Misrepresentation to the Tribunal,
Elder Abuse, A.R.S. § 46-456 Exploitation of a Vulnerable Adult, Theft.”
Second, she argues, that she then timely filed her cross-claim in this action


6To this end, he also argues that some of the alleged exploitation of Miyuki
as a vulnerable adult occurred in 2005 and should be time-barred as either
Miyuki or Jeannie could have filed a timely APSA claim against him then,
but they failed to do so. We need not address this issue.

                                      6
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

by filing it less than the six months from the June 13, 2012, Court of Appeals
mandate on the probate court action as provided for in A.R.S. § 12-504(B).
Third, she argues that her amendment to her cross-claim, to add the specific
claim of a violation of APSA, was done with permission of the trial court
and related back to the original probate claim. The trial court found her
filing “plainly timely” and we agree.

¶15            In general, a cause of action accrues and the statute of
limitations begins to run when one party is able to sue another. Sato v. Van
Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979); Norton v. Steinfeld, 36
Ariz. 536, 544, 288 P. 5 (1930). Accrual is based on the plaintiff's knowledge
of the facts underlying the cause of action. Doe v. Roe, 191 Ariz. 313, 322, ¶
29, 955 P.2d 951, 960 (1998). Rule 15(c), Arizona Rules of Civil Procedure,
provides that:

       Whenever the claim or defense asserted in the amended
       pleading arose out of the conduct, transaction, or occurrence
       set forth or attempted to be set forth in the original pleading,
       the amendment relates back to the date of the original
       pleading.

¶16           The trial court found that Miyuki’s APSA claim was asserted
in her 2010 probate filing. It found that her 2012 cross-complaint was filed
within the six month deadline of the 2012 Court of Appeals mandate. The
court held the amendment by Miyuki to add a claim under the APSA to her
cross-complaint related back under Rule 15(c) as being part of the same
conduct, transaction and/or occurrence of David’s misappropriation of
Miyuki’s money.

¶17           David argues that the trial court erred in applying the savings
statute to Miyuki’s APSA7 claim. A.R.S. § 12-504(A).8 Specifically, he argues

7 We note, as did Miyuki, that David’s claims regarding the statute of
limitations appear to apply only to the APSA claim, not to the declaratory
action.
8Section 12-504(A), “Saving of action timely commenced,” provides in
pertinent part:

       If an action timely commenced is terminated by abatement,
       voluntary dismissal by order of the court or dismissal for lack
       of prosecution, the court in its discretion may provide a
       period for commencement of a new action for the same cause,



                                      7
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

that the former probate action was a “nullity” insufficient to count as a
timely first filing by Miyuki. See Yamamoto, 1 CA-CV 11-0132, Slip op. at 1,
¶ 7. This argument comes from the use of the word “nullity” in the former
Court of Appeals determination. This court said “the [probate] court did
not have jurisdiction to decide any motions after the case was dismissed
and those actions are a nullity.” Id. We, like the trial court, are not
persuaded that such language rendered Miyuki’s motion non-existent for
statute of limitations purposes. David reads that decision too broadly.

¶18           This court will reverse a trial court's order denying relief
under A.R.S. § 12-504(A) only for an abuse of discretion. Jepson v. New, 164
Ariz. 265, 274, 792 P.2d 728, 737 (1990). The trial court has discretion to
grant up to six months leeway under the savings statute. Copeland v. Ariz.
Vet. Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 91, 859 P.2d 196, 201
(1993). The court before ruling should ascertain whether the plaintiff acted
reasonably and in good faith, whether the case was prosecuted diligently,
whether a procedural defect exists to prevent the filing of a second action,
and whether either party will be substantially prejudiced. See id.; citing
Gorman v. City of Phoenix, 152 Ariz. 179, 183, 731 P.2d 74, 78 (1987). This is
not a matter of a plaintiff asserting a claim under the savings statute after
he failed to act diligently and vigorously in making the second claim. See
Copeland, 176 Ariz. at 92, 859 P.2d at 201; Schwartz v. Ariz. Primary Care
Physicians, 192 Ariz. 290, 296, ¶ 20, 964 P.2d 491, 497 (App. 1998). Rather,
we agree with the trial court that Miyuki acted diligently and in good faith
and was under the impression, as was the probate court, that the
proceeding in probate court was an appropriate avenue for recourse.

¶19           We agree with the trial court’s determination that the August
20, 2010 claim asserted a timely claim under APSA, that Miyuki filed her
cross-complaint against David in this action within the six month deadline
of the Court of Appeals mandate, and that the addition of the APSA claim
related back to the original claim. The trial court is affirmed.

   B. The Sufficiency of the Evidence Against David

¶20         The court held that David violated A.R.S. § 46-456 “because
he was a person in a position of trust and confidence to his mother, a


       although the time otherwise limited for commencement has
       expired. Such period shall not exceed six months from the
       date of termination.




                                      8
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

vulnerable adult, and he failed to use the vulnerable adult’s assets solely
for her benefit. Indeed, he used his mother’s assets for his benefit.” The
trial court found Miyuki was a vulnerable adult as far back to, at least, 2005,
that David was her de facto conservator, that she had no donative intent
regarding the Camelback property, that the transfer, if any, occurred while
David was acting as the de facto conservator, and that all the proceeds in
the “first” Wells Fargo account belonged to Miyuki. The Schwab funds
and the trust account funds were determined to be Miyuki’s property. In
reaching its ruling, the trial court found both David and Roger Brown
lacked credibility. David asserts that there was no factual basis to support
the trial court’s award against him. To this end, he states that no witness
provided evidence that he exploited Miyuki as defined by the statute. We
disagree.

¶21           Section 46–456, “Duty to a vulnerable adult; financial
exploitation; civil penalties” provides in relevant part: 9

       A. A person who is in a position of trust and confidence to a
       vulnerable adult shall use the vulnerable adult's assets solely
       for the benefit of the vulnerable adult and not for the benefit
       of the person who is in the position of trust and confidence to
       the vulnerable adult or the person's relatives unless either of
       the following applies:


9 Section 46–451(A)(2009), provides the following definitions under
the APSA:

       2. “De facto conservator” means any person who takes
       possession of the estate of an incapacitated or vulnerable
       adult, without right or lawful authority. A de facto
       conservator is subject to all of the responsibilities that attach
       to a legally appointed conservator or trustee.
       …
       4. “Exploitation” means the illegal or improper use of an
       incapacitated or vulnerable adult or his resources for
       another's profit or advantage.
       …
       9. “Vulnerable adult” means an individual who is eighteen
       years of age or older and who is unable to protect himself
       from abuse, neglect or exploitation by others because of a
       physical or mental impairment.



                                      9
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

       1. The superior court gives prior approval of the transaction.
       2. The transaction is specifically authorized in a valid durable
       power of attorney that is executed by the vulnerable adult as
       the principal or in a valid trust instrument that is executed by
       the vulnerable adult as a settlor.

¶22            On appeal from a declaratory judgment, we view the
evidence in the light most favorable to sustaining the judgment. See
Associated Aviation Underwriters v. Wood, 209 Ariz. 137, 143, ¶ 5, 98 P.3d 572,
578 (App. 2004). Conflicts of the evidence are within the sole province of
the trier of facts for determination. The trial court sitting without a jury is
judge of the credibility of witnesses, the weight of evidence, and also the
reasonable inference to be drawn from the evidence. Sandretto v. Payson
Healthcare Mmgt, Inc., 234 Ariz. 351, 359, ¶ 24, 322 P.3d 168, 176 (2014).

       1. Miyuki Was a Vulnerable Adult

¶23           David was Miyuki’s son and had been living with her nearly
continuously since some time in the 1980’s. He stated she had been unable
to drive since “the early ‘90’s.” He was her primary caretaker, handling
both daily care for her and her financial matters. He stated that she had
trouble understanding “complex” financial matters. For example, in the
context of discussing a car repair, he told the investigator “[I] explained it
to mom, you know, who may not understand all of the aspects … Now,
today if you ask her about it, I don’t know, probably wouldn’t remember, I
guess.…I don’t think she wants to be too concerned with those matters.”

¶24            In his 2010 verified petition for guardianship/
conservatorship David asserted Miyuki was incapacitated with mental
disability due to age which “caused her to lack sufficient understanding or
capacity to make or communicate responsible decisions concerning her
person.” He admitted that she had been in essentially the same state since
approximately 2005.

¶25            There was testimony that when Miyuki was taken in by
Jeannie and her husband in December 2009, she weighed 62 pounds.
Miyuki had untreated vision and dental problems which David knew
about. David admitted that the new home Miyuki had purchased for over
$377,000 in 2006 was “uninhabitable” three years later. He admitted that in
2008 five dumpsters of his trash was removed from the Rovey yard.
Exhibits 81 and 82, pictures of the state of the Rovey house from 2008 and
2009, accurately showed the state of the house. One picture shows a dead
rat in the bathroom. This is evidence upon which a reasonable trier of fact


                                      10
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

could determine Miyuki was a vulnerable adult who was unable to protect
herself from abuse, neglect, or exploitation.

      2. David Was the De Facto Conservator

¶26             In 2009, David admitted to the APS investigator that he knew
he’d been acting as the de facto conservator “all this time.” He arranged
for the bills to be paid and met nearly weekly with bank personnel over the
finances. He admitted signing at least two years tax returns without
Miyuki’s authority, including in 2010 when she no longer lived with him.
He admitted that Miyuki had never met with Roger Brown, their mutual
accountant, without David himself being present since 2000 or alone with
bank personnel from approximately 2006 through 2009.

      3. Miyuki Was Being Exploited for David’s Benefit

¶27           David admitted that he rarely worked and made little
financial contribution. He admitted that there was a $25,000 installment
loan and a $95,000 home equity line of credit on the Rovey house, under
both their names, although Miyuki had sole title. He admitted that he
transferred Miyuki’s December 3, 2009, social security check into the bank
account under his name. In December 2009, during his interview with APS,
David was confronted with a copy of a draft trust that had recently been
prepared disinheriting Jeannie and leaving everything to David. That
result was in conflict with what Miyuki told the investigator she wanted to
happen. David admitted that his mother had not yet met with the lawyer
drafting the trust without him.

¶28          Further, David did not make the claim that he owned half of
the money in the accounts as his half share of the Camelback sale price until
recently. In his verified 2009 petition for guardianship/conservatorship,
David stated that Miyuki’s assets included $335,000 in the “second” Wells
Fargo account from the sale of the Camelback property. Evidence in the
record shows that in David’s 2009 interview with APS, the following
exchange occurred:

      Dettelback: One of your contentions is that this money
      [originally $335,000], even though it’s got your name on the
      account, that this money is actually your mother’s money.

      David: It’s Mom’s money, right.

David admitted that the $335,000 in the “second” Wells Fargo account was
depleted by him by approximately $155,000 in under five years, without an


                                     11
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

explanation as to where the money was spent. He stated they were “frugal”
with money. He admitted that he transferred the remainder of the money
in the “second” Wells Fargo account, in both their names, to an account
solely in his name after Miyuki moved in with Jeannie. David admits that
under his theory of the case, Miyuki would have had no assets left after her
purchase the Rovey house and the $42,000 annuity purchased at the bank’s
suggestion, while he would have a remainder of $409,477.80. All of the
above is evidence upon which a reasonable trier of fact could determine
Miyuki was being exploited by David for his own benefit. For the above
stated reasons, we affirm the trial court.

              The Attorneys’ Fees Awarded Against David Below

¶29          David challenges the trial court’s award, under A.R.S. § 46-
456(B) (2013), of $92,887.55 for attorneys’ fees incurred prior to the
judgment and of $9,046.54 in post-judgment attorneys’ fees. That statute
provides:

       A person who violates subsection A of this section . . . shall be
       subject to actual damages and reasonable costs and attorney
       fees in a civil action brought by or on behalf of a vulnerable
       adult and the court may award additional damages in an
       amount up to two times the amount of the actual damages.
       [Emphasis added.]

A.R.S. § 46-456(B).

¶30            We review the award of attorneys’ fees for an abuse of
discretion. Geller v. Lesk, 230 Ariz. 624, 627, ¶ 8, 285 P.3d 972, 975 (App.
2012), as amended (Sept. 26, 2012). The basis for David’s objection to the
pre-judgment fees centers on the fact that the trial court erred in its decision
that his mother was vulnerable and that he exploited her. Having affirmed
the trial court on those issues, we find A.R.S. § 46-456(B) applies and the
trial court was required to assess pre-judgment fees against David. We,
therefore, affirm as to the pre-judgment fees. 10



10We find Miyuki’s claim for attorneys’ fees was sufficiently timely and
specific to suit Rule 54(g). See Pendergast v. City of Tempe, 143 Ariz. 14, 22-
23, 691 P.2d 34, 42-43 (App. 1984) (finding fee award based on A.R.S. § 12-
341.01, where it was first requested after the grant of summary judgment,
was sufficiently timely and that opposing party had sufficient notice that
fees were being sought).

                                      12
                       YAMAMOTO v. KERCSMAR
                         Decision of the Court

¶31           David objects to the post-judgment fees, asserting: (1) that the
statute provides only for pre-judgment fees, and (2) that the trial court lost
jurisdiction over the matter after it issued its May 13, 2014, final judgment.
We are not persuaded by David’s arguments. We find the plain meaning
of the statute’s fee language includes both pre- and post-judgment
attorneys’ fees under A.R.S. § 46-456(B). Janson v. Christensen, 167 Ariz. 470,
471, 808 P.2d 1222, 1223 (1991). We note that below this litigious action
continued in full fashion after the judgment, including David’s motion for
new trial and his motion for reconsideration. We have decided for judicial
economy to treat David’s challenges in this court as one appeal. The fee
award is the subject matter of the second judgment and the consequent
notice of appeal. The fees in the second judgment were a consequence of
David’s filings, having rejected them, the judge properly awarded fees to
Miyuki.

                         Attorneys’ Fees on Appeal

¶32          On appeal, both parties seek attorneys’ fees and costs. Miyuki
seeks fees pursuant to A.R.S. §§ 12-341.01 (2003), 46-456(B). As the
prevailing party on appeal, Miyuki is entitled to attorneys’ fees in an
amount to be determined, and costs pursuant to ARCAP 21.

                               CONCLUSION

¶33           For the above stated reasons, the trial court is affirmed.




                                   :ama




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