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   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


 GENE R. MCDIVITT and PATRICIA A. MCDIVITT, husband and wife,
               Plaintiffs/Appellants/Cross-Appellees,

                                          v.

 GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation,
             Defendant/Appellee/Cross-Appellant.

                               No. 1 CA-CV 15-0732
                                 FILED 2-16-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV 2013-094119

                 The Honorable Katherine M. Cooper, Judge
                  The Honorable Karen A. Mullins, Judge

                                    AFFIRMED


                                    COUNSEL

Arnett & Arnett PC, Chandler
By Wayne C. Arnett, Mark W. Arnett
Counsel for Plaintiffs/Appellants/Cross-Appellees

Lewis Roca Rothgerber Christie LLP, Phoenix
By Joshua Grabel, Ian M. Fischer
Counsel for Defendant/Appellee/Cross-Appellant
                          MCDIVITT v. GEICO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1            Gene R. McDivitt and Patricia A. McDivitt (collectively,
“Plaintiffs”) appeal from a judgment entered in favor of Government
Employees Insurance Company (“GEICO”). On cross-appeal, GEICO
challenges the amount of attorneys’ fees awarded it by the superior court.
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Plaintiffs’ 2003 Chevrolet Silverado truck — insured by
GEICO — was totaled in an accident on January 2, 2013. On January 11,
2013, GEICO advised Plaintiffs it had valued their property damage claim
at $12,856.57, before applying their $500 deductible. After Plaintiffs
expressed dissatisfaction, GEICO revalued the truck at $13,214.26.1 After
deducting Plaintiffs’ deductible and the vehicle’s salvage value, GEICO
determined it owed Plaintiffs $11,714.26 and sent them a check for that
sum. GEICO also gave Plaintiffs a copy of a 29-page “market valuation
report” generated by CCC One (“CCC”) — a service GEICO used to
calculate the Silverado’s value.

¶3             Plaintiffs sued GEICO in June 2013, alleging claims for
breach of contract, breach of the duty of good faith and fair dealing, and
declaratory relief. The superior court dismissed the declaratory relief
count, and it is not at issue on appeal.

¶4             The parties agreed to a February 28, 2015 discovery cut-off,
and the superior court entered an order incorporating that deadline. The
parties subsequently stipulated to extend the discovery deadline to March
20, 2015 “for the sole purpose of accommodating the deposition of Patricia
Mc[D]ivitt.”

1      The second valuation “added a trailering package and improved
the condition of the following components from ‘average private’ to
‘dealer retail:’ tires, seats, carpets, dashboard and headliner.”



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                            MCDIVITT v. GEICO
                            Decision of the Court

¶5            Disputes arose regarding a notice of deposition Plaintiffs
issued in August 2014 pursuant to Arizona Rule of Civil Procedure
30(b)(6). The superior court became involved and directed GEICO to
identify its Rule 30(b)(6) representative by February 6, 2015, provide dates
for that individual’s deposition, and disclose “categories of matters to be
discussed.” The court ordered the deposition completed by March 30,
2015 but did not otherwise extend the discovery deadline.

¶6            GEICO identified Martin Crowell as its Rule 30(b)(6)
witness, offered dates for his deposition, objected to most of the topics
listed in the Rule 30(b)(6) notice, and proposed a protective order.
Without objection, the court signed the protective order and directed
“Plaintiff to work with Defendant regarding the details and areas on
which Plaintiff will concentrate.” Plaintiffs thereafter issued an amended
Rule 30(b)(6) notice that expanded two of the previously listed categories.

¶7             Crowell was deposed on March 12, 2015 but was unable to
answer questions about GEICO’s contracts with CCC or CCC formulas
and calculations. Crowell did, however, testify about his “familiarity with
the way CCC prepares and offers to GEICO total loss evaluations” and
was able to answer some questions about the CCC report regarding
Plaintiffs’ vehicle.

¶8            In April 2015, GEICO filed a motion for summary judgment.
A week later, Plaintiffs filed a motion to compel discovery, requested
sanctions, and asked the court to extend discovery, arguing GEICO had
failed to produce an appropriate Rule 30(b)(6) witness. On May 22, 2015
— the deadline for responding to GEICO’s motion for summary judgment
— Plaintiffs filed a request for relief under Rule 56(f), stating, in pertinent
part:

       The Plaintiffs still do not know anything about the training
       of GEICO adjusters regarding the Arizona Department of
       Insurance regulations regarding total loss claims. We have
       learned nothing about GEICO’s contract or contracts with
       CCC. We have learned nothing about the formulas, math,
       selection process, weighted averages, and baseline
       adjustments that were used to value the Plaintiffs’ vehicle in
       the CCC report used by GEICO to value the Plaintiffs’
       vehicle. And we have not been given information about the
       inspection guidelines that were used to value the Plaintiffs’
       vehicle.




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                            MCDIVITT v. GEICO
                            Decision of the Court

Plaintiffs asked the court to hold GEICO’s summary judgment motion in
abeyance pending the outcome of their motion to compel. In the event the
court denied their Rule 56(f) request, Plaintiffs requested four weeks after
that denial to respond to the motion for summary judgment.

¶9            The superior court denied Plaintiffs’ motion to compel and
granted GEICO’s motion for summary judgment. GEICO thereafter
requested $124,446 in attorneys’ fees pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-341.01. Plaintiffs filed a motion for new trial as to the
summary judgment ruling and a motion to reconsider the denial of their
motion to compel. The trial court denied both motions. GEICO then
supplemented its fee application, increasing its request to $138,691.

¶10          The trial court awarded GEICO $16,500 in attorneys’ fees
and entered final judgment. Plaintiffs timely appealed, and GEICO timely
cross-appealed.       We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

I.     Plaintiffs’ Motion to Compel, Request for Sanctions, and Request
       to Extend Discovery

¶11           Plaintiffs contend GEICO led them to believe it would
produce a witness who could testify about all of the subjects identified in
their Rule 30(b)(6) deposition notice, but instead produced only a “warm
body” after the close of discovery. The superior court concluded
otherwise, and the record supports its determination.

¶12            “A trial court has broad discretion in ruling on disclosure
and discovery matters . . . .” Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14
(App. 2013).       An “‘[a]buse of discretion’ is discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009). Trial judges
are better equipped than appellate courts to determine whether a
discovery violation has occurred “in the context of a given case,“ as well
as the practical effect of any such violation. Cf. Solimeno v. Yonan, 224
Ariz. 74, 77, ¶ 9 (App. 2010) (discussing disclosure obligations).

¶13          Plaintiffs’ Rule 30(b)(6) notice asked GEICO to produce a
representative to testify about 25 topics, including: (1) the “precise
formulas and math” CCC used to calculate the value of Plaintiffs’ vehicle;
(2) how CCC calculated “the weighted average” discussed in its report; (3)
the “formula used in calculating the $789 baseline adjustment for each of


                                      4
                           MCDIVITT v. GEICO
                           Decision of the Court

the dealer vehicles listed in the CCC reports;” and (4) “The formula and
criteria used in selecting the vehicles in the CCC database that would be
used in the reports.” Additional topics identified in the notice were
contracts between CCC and GEICO and “Condition Inspection
Guidelines” CCC cited in its report.

¶14            To the extent Plaintiffs contend GEICO was required to
produce a CCC representative in response to their Rule 30(b)(6) notice, we
disagree.2 Upon receipt of a Rule 30(b)(6) notice, an entity must designate
one or more representatives, “or other persons who consent to testify on
its behalf.” Ariz. R. Civ. P. 30(b)(6). Individuals so designated “shall
testify as to matters known or reasonably available to the organization.”
Id. Plaintiffs cite no authority, and we are aware of none, that requires a
party in receipt of a Rule 30(b)(6) notice to search for and produce a
representative from an independent, non-party entity to address
enumerated topics.

¶15            The court did not abuse its discretion by concluding that
inaction by Plaintiffs, not misconduct by GEICO, led to the dearth of
information about CCC and its report. Although Plaintiffs asserted that
the “CCC report is what drives this whole case -- and why [Plaintiffs are]
going to get punitive damages,” Plaintiffs never asked GEICO to produce
its contracts with CCC and never pursued discovery from CCC.

¶16           As early as August 14, 2014, GEICO placed Plaintiffs on
notice that a CCC representative would likely be required to explain the
Rule 30(b)(6) item labeled “the formulas in the CCC reports.” And during
a January 28, 2015 hearing, GEICO’s counsel reiterated that “a number of
the categories” identified in the Rule 30(b)(6) notice “are not things that
our client . . . can answer.” Five weeks before Crowell’s deposition,
GEICO wrote to Plaintiffs, stating, in pertinent part:

       Topics 6 through 24 [of the Rule 30(b)(6) notice] ask about
       formulas, math and calculations that are created by and used
       in CCC reports. The formulas, math and calculations
       referenced in these topics were generated and performed by
       CCC Value Scope Claim Services, which is a highly
       proprietary product of non-party CCC Information Services,

2     The Arizona Rules of Civil Procedure were revised effective
January 1, 2017 to reflect comprehensive stylistic and substantive changes.
We cite the version of the rules in effect at the time of the relevant events.




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                          MCDIVITT v. GEICO
                          Decision of the Court

      Inc. (“CCC”). GEICO cannot speak to the actual calculations
      and/or formulas that CCC uses, as those are CCC’s
      proprietary software. GEICO can speak generally as to its
      use of CCC and its software and its understanding of how
      CCC’s software works, as well as GEICO’s understanding of
      how CCC develops its database. GEICO can also discuss its
      knowledge that CCC is generally accepted within the
      insurance industry by insurers and regulators in
      determining the actual cash value of specific vehicles, but
      specific questions regarding CCC’s formulas, math and
      calculations should be directed to CCC. GEICO cannot
      produce a witness to testify about the specific algorithms
      and codes involved in how CCC’s products perform their
      functions.

GEICO also objected to other topics identified in Plaintiffs’ Rule 30(b)(6)
notice.

¶17           In addition, GEICO responded to interrogatories Plaintiffs
propounded on the last day allowed for written discovery. In response to
several interrogatories seeking information about CCC, GEICO stated:

      Non-party CCC Information Services, Inc. (“CCC”) provides
      GEICO and other auto insurers with products that are
      generally accepted within the insurance industry by insurers
      and regulators in determining the actual cash value of
      specific vehicles. The formulas, math and calculations
      referenced in this interrogatory were generated and
      provided to GEICO by a highly proprietary product of CCC.
      GEICO does not know the actual calculations, algorithms
      and/or formulas that CCC uses in determining value, as
      those are CCC’s proprietary software. GEICO understands
      that CCC collects millions of pieces of information regarding
      comparable vehicles, options and related information on
      vehicle sales pricing nationwide, including substantial
      information in each geographic region of the country
      (including Maricopa County) and adjusts that information
      based upon the actual or expected sales price (rather than
      simply a sticker price) of those vehicles and the condition
      and options of the subject vehicle. GEICO also understands
      that CCC’s collection of this data uses generally reliable
      methods for evaluating vehicle condition on an aggregate
      basis. CCC’s products have been approved for use by


                                    6
                          MCDIVITT v. GEICO
                          Decision of the Court

      multiple governmental agencies throughout the U.S.,
      including various state insurance commissioners/
      departments.

¶18           Against this backdrop, Plaintiffs point to an email GEICO
sent in August 2014, stating that it was “working on identifying the
appropriate witness.” But as the superior court noted, this “very generic
email” also advised: “With regard to the formulas in the CCC reports, this
will likely require testimony from a CCC person but I will find what
GEICO can testify to and what they cannot.” Rejecting the assertion that
Plaintiffs had been “sandbagged,” the superior court stated:

      I do think, in all fairness, that the letter that you got before
      you all went back east [for Crowell’s deposition] from
      [GEICO’s counsel] made it very clear that their witness was
      not going to talk about [the CCC methodology] -- in fact, he
      says right here . . . that topics 6 through 24 of your 30(b)(6)
      notice about formulas, math and calculations are -- that’s all
      CCC stuff. I mean, they did tell you up front that you were
      not going to get that from this particular witness.

The record supports the court’s characterization.

¶19           Plaintiffs’ reliance on language in the protective order is
misplaced. That order applies to “the production by the Parties or certain
non-parties of certain documents and information that contain trade
secrets or other commercially sensitive or proprietary information.” But
the order does not mention CCC and cannot reasonably be read as a
representation that GEICO would produce “certain non-parties” for
discovery purposes.

¶20           Gulf Homes, Inc. v. Beron, 141 Ariz. 624 (1984), and Groat v.
Equity Am. Ins. Co., 180 Ariz. 342 (App. 1994), upon which Plaintiffs rely,
are readily distinguishable. In Gulf Homes, the defendant corporation’s
president repeatedly responded, “I don’t know” at a Rule 30(b)(6)
deposition when asked basic, relevant questions about his company’s
product. 141 Ariz. at 626. In Groat, the defendant company’s insurer
produced an unknowledgeable administrative employee as the Rule
30(b)(6) representative. In upholding an award of sanctions in that case,
we held that “[p]roviding an uninformed warm body for a Rule 30
deposition approximates providing no one at all.” 180 Ariz. at 346, 348.

¶21        GEICO, in contrast, produced a witness who was able to
answer some questions Plaintiffs posed. More fundamentally, the record


                                     7
                           MCDIVITT v. GEICO
                           Decision of the Court

amply supports the court’s finding that Plaintiffs knew in advance “no
30(b)(6) witness could testify regarding CCC’s method of computation,
calculations, software, etc., that those were areas that Plaintiffs would
need to obtain information about directly from CCC.” The record
similarly supports the court’s determination that Plaintiffs “failed to make
any effort to get the information from the obvious source — CCC” — and
failed “to establish the potential relevance of the contract between GEICO
and CCC.”

¶22          On this record, the court did not abuse its discretion by
denying Plaintiffs’ motion to compel, request for sanctions, and request to
extend discovery.

¶23           We also reject Plaintiffs’ contention that the court erred by
denying their motion to reconsider the denial of their motion to compel
based on newly discovered evidence. The “newly discovered evidence”
consisted of communications between Plaintiffs’ attorney and GEICO’s
counsel. Plaintiffs’ counsel stated that he recalled those communications
only after reviewing time records GEICO submitted in support of its fee
request.

¶24           To obtain relief based on newly discovered evidence, the
moving party must demonstrate that the evidence: (1) is material, (2)
existed at the time of trial, (3) could not have been discovered before trial
by the exercise of due diligence, and (4) would probably change the result.
Waltner v. JPMorgan Chase Bank, N.A., 231 Ariz. 484, 490, ¶ 24 (App. 2013).
Evidence a party possessed before judgment is not newly discovered.
Roberts v. Morgensen Motors, 135 Ariz. 162, 165 (App. 1982). Plaintiffs’
counsel admittedly possessed the “newly discovered evidence” before the
court ruled. Under these circumstances, the court did not abuse its
discretion by denying the motion for reconsideration.

II.   GEICO’s Motion for Summary Judgment and Plaintiffs’ Rule
      56(f) Request

¶25           We review the denial of a Rule 56(f) request for an abuse of
discretion. Grand v. Nacchio, 214 Ariz. 9, 29, ¶ 73 (App. 2006). We review
a grant of summary judgment de novo, viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the party
against whom judgment was entered. Felipe v. Theme Tech Corp., 235 Ariz.
520, 528, ¶ 31 (App. 2014).

¶26          At the time Plaintiffs filed their Rule 56(f) request, the rule
provided, in pertinent part:


                                     8
                            MCDIVITT v. GEICO
                            Decision of the Court

       (1) If a party opposing summary judgment files a request
           for relief and expedited hearing under this Rule, along
           with a supporting affidavit showing that, for specified
           reasons, it cannot present evidence essential to justify its
           opposition, the court may, after holding a hearing:

           (A) defer considering the motion for summary judgment
               and allow time to obtain affidavits or to take
               discovery before a response to the motion is required;

           (B) deny the requested relief and require a response to
               the motion for summary judgment by a date certain;
               or

           (C) issue any other appropriate order.

       (2) Unless otherwise ordered by the court, the filing of a
           request for relief and affidavit under this section does
           not by itself extend the date by which the party
           opposing summary judgment must file a memorandum
           and separate statement of facts as prescribed in section
           (c) of this Rule.

       (3) No request for relief will be considered and no hearing
           will be scheduled unless the request for relief is
           accompanied by a separate statement of counsel seeking
           the relief certifying that, after personal consultation and
           good-faith efforts to do so, the parties have been unable
           to satisfactorily resolve the matter.

¶27            The “major objective” of Rule 56(f) is “to insure that a diligent
party is given a reasonable opportunity to prepare his case.” Simon v.
Safeway, Inc., 217 Ariz. 330, 333, ¶ 6 (App. 2007) (emphasis added). As
discussed supra, the superior court reasonably concluded that Plaintiffs
had not been diligent in pursuing CCC-related information, which
Plaintiffs conceded was the only additional discovery they were seeking.
In denying Plaintiffs’ Rule 56(f) request, the court further noted Plaintiffs’
failure to comply with the requirements of the rule or explain “waiting the
entire 40-days-plus” to file a Rule 56(f) request.3


3
      Plaintiffs did not file the required affidavit or certification of
counsel with their Rule 56(f) request. They contend their counsel was



                                       9
                           MCDIVITT v. GEICO
                           Decision of the Court

¶28            The superior court acted within its discretion in denying
Plaintiffs’ Rule 56(f) request.

¶29          We next consider whether the court erred by granting
GEICO’s motion for summary judgment. “The court shall grant summary
judgment if the moving party shows that there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter
of law.” Ariz. R. Civ. P. 56(a).

¶30           It is undisputed that Plaintiffs failed to timely respond to
GEICO’s motion. Their Rule 56(f) request did not automatically extend
the response deadline. See Ariz. R. Civ. P. 56(f)(2) (Unless otherwise
ordered, “the filing of a request for relief and affidavit under this section
does not by itself extend the date by which the party opposing summary
judgment must file a memorandum and separate statement of facts as
prescribed in section (c) of this Rule.”). Nor was the court required to
afford Plaintiffs additional time to respond after denying their non-
compliant Rule 56(f) request. See Ariz. R. Civ. P. 56(f)(1) (if court denies
properly supported request, it may set date certain for response to pending
motion for summary judgment).

¶31            Although the failure to respond to a summary judgment
motion “cannot, by itself, entitle the movant to summary judgment,”
Choisser v. State ex rel. Herman, 12 Ariz. App. 259, 261 (1970), a party that
fails to respond “does so at his peril” because the court may presume that
any uncontroverted evidence favorable to the movant, and from which
only one inference can be drawn, is true. Tilley, 220 Ariz. at 237, ¶ 11; see
also GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5 (App. 1990) (if
party opposing summary judgment fails to present affidavits or evidence
controverting moving party’s filings, facts alleged by movant may be


unfamiliar with the existing version of Rule 56(f).                The rule’s
requirements, though, were nothing new. Although the rule was
amended in 2013 — two years before Plaintiffs filed their request — the
amendments largely codified existing law regarding the requisite
affidavit. See, e.g., Lewis v. Oliver, 178 Ariz. 330, 338 (App. 1993) (movant
under Rule 56(f) must, by affidavit, inform “the court of: (1) the particular
evidence beyond the party’s control; (2) the location of the evidence; (3)
what the party believes the evidence will reveal; (4) the methods to be
used to obtain it; and (5) an estimate of the amount of time the additional
discovery will require.”).




                                     10
                           MCDIVITT v. GEICO
                           Decision of the Court

considered true.). The superior court did not grant GEICO’s motion solely
because Plaintiffs failed to respond to it. The court instead found, based
on the record before it, that there were no genuine issues of material fact
and that GEICO had demonstrated it was entitled to judgment as a matter
of law. The court further noted that Plaintiffs’ one-page Rule 56(f) request
failed to “explain how the information is essential to oppose GEICO’s
Motion for Summary Judgment.”

¶32            On appeal, Plaintiffs suggest evidence and inferences that
might have defeated summary judgment, had they been properly
presented.4 But reviewing the grant of summary judgment based on the
evidence before the superior court when it ruled, Phx. Baptist Hosp. & Med.
Ctr., Inc. v. Aiken, 179 Ariz. 289, 292 (App. 1994), the court did not err by
granting GEICO’s motion. And contrary to Plaintiffs’ assertion at oral
argument before this Court, their motion for new trial did not bring to the
court’s attention certain admissions in GEICO’s answer that Plaintiffs now
assert should have prevented summary judgment. “In ruling upon
motions for summary judgment, the trial court is required to consider
only those portions of the record which are brought to its attention by the
parties.” Gilbert v. Bd. of Med. Exam’rs, 155 Ariz. 169, 176 (App. 1987),
superseded by statute on other grounds stated in Goodman v. Samaritan Health
Sys., 195 Ariz. 502, 508 n.7, ¶ 25 (App. 1999); see also Mast v. Standard Oil
Co. of Cal., 140 Ariz. 1, 2 (1984) (Courts are not “required to perform
counsel’s work by searching the record to attempt to discover facts which
establish or defeat the [summary judgment] motion.”).

III.   Motion for New Trial and Motion for Reconsideration

¶33           Plaintiffs moved for a new trial pursuant to Rule 59 and filed
a motion for relief under Rule 60(c), asserting mistake, inadvertence or
excusable neglect. The superior court denied both motions. We review its
rulings for abuse of discretion. See Tilley, 220 Ariz. at 238, ¶ 16 (Rule 59);
Tovrea v. Nolan, 178 Ariz. 485, 490–91 (App. 1993) (Rule 60(c)).


4       Plaintiffs incorrectly suggest there was evidence before the superior
court that refuted GEICO’s properly documented motion for summary
judgment and statement of facts. At most, there were allegations and
arguments of counsel, neither of which is competent evidence to defeat
summary judgment. See, e.g., Cmty. Am. Mortg. Corp., 165 Ariz. at 5
(unsworn and unproven assertions are not facts a trial court can consider
in ruling on a motion for summary judgment).




                                     11
                           MCDIVITT v. GEICO
                           Decision of the Court

¶34          As we have discussed supra, the court neither abused its
discretion by entering summary judgment without a response nor
misinterpreted Rule 56(f), as Plaintiffs contend. And Plaintiffs have
waived any appellate argument predicated on Rule 60(c) because they
have developed no argument regarding that rule. “Merely mentioning an
argument in an appellate opening brief is insufficient.” MacMillan v.
Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011). Issues not clearly raised
and argued on appeal are waived. Jones v. Burk, 164 Ariz. 595, 597 (App.
1990).

IV.    Fee Award

¶35          The court awarded GEICO attorneys’ fees pursuant to A.R.S.
§ 12-341.01(A), which authorizes a fee award to the successful party in
“any contested action arising out of a contract.” Although GEICO
requested $138,691 in fees, the court awarded only $16,500. Plaintiffs
contend the court erred by awarding any fees. In its cross-appeal, GEICO
argues the court erred by substantially reducing its fees.

¶36           In considering the amount of a fee award under A.R.S.
§ 12–341.01, we review for an abuse of discretion. Fisher v. Nat’l Gen. Ins.
Co., 192 Ariz. 366, 370, ¶ 13 (App. 1998). We consider whether “a judicial
mind, in view of the law and circumstances, could have made the ruling
without exceeding the bounds of reason.” Associated Indem. Corp. v.
Warner, 143 Ariz. 567, 571 (1985). We will uphold the superior court’s
decision if any reasonable basis supports it, Fulton Homes Corp. v. BBP
Concrete, 214 Ariz. 566, 569, ¶ 9 (App. 2007), viewing the record in the light
most favorable to sustaining the award. Rowland v. Great States Ins. Co.,
199 Ariz. 577, 587, ¶ 31 (App. 2001).

¶37           The superior court identified the relevant factors and
specifically applied each to the facts of this case. “[T]he question is not
whether the judges of this court would have made an original like ruling
. . . . We cannot substitute our discretion for that of the trial judge.”
Warner, 143 Ariz. at 571. The court concluded that although the hourly
rates were reasonable and GEICO’s motion practice “efficient,” the
requested fees would cause Plaintiffs hardship and would discourage
others “similarly situated from litigating similar issues, especially if the
damages sought are relatively low.” Although the court also mentioned
“excessive” redactions in GEICO’s fee itemizations, we do not read the fee
award as being predicated on that assessment, and, in any event, find no
abuse of discretion in awarding a substantially reduced sum based on the
relevant factual considerations.



                                     12
                          MCDIVITT v. GEICO
                          Decision of the Court

                              CONCLUSION

¶38           For the foregoing reasons, we affirm the judgment of the
superior court. Both parties request an award of attorneys’ fees incurred
on appeal pursuant to A.R.S. § 12-341.01. Plaintiffs did not prevail on
their appeal, and GEICO did not prevail on its cross-appeal. In our
discretion, we deny both parties’ fee requests. We also decline to award
costs to either party. See Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 162,
¶ 22 (2016) (declining to award fees or costs where both appeal and cross-
appeal were unsuccessful).




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




                                       13
