                                  IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


  BRANDON OROSCO and JENNIFER OROSCO, husband and wife,
  individually, and as parents and next friends of KAYLEN OROSCO,
              MARISSA OROSCO, and SILAS OROSCO,
                           Plaintiffs/Appellees,

                                    v.

  MARICOPA COUNTY SPECIAL HEALTH CARE DISTRICT, a body
  politic for and dba MARICOPA INTEGRATED HEALTH SYSTEM,
                         Defendant/Appellant.

                         No. 1 CA-CV 15-0580
                           FILED 2-2-2017


          Appeal from the Superior Court in Maricopa County
                         No. CV2012-004724
              The Honorable John Christian Rea, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                              COUNSEL

Harris Powers & Cunningham PLLC, Phoenix
By Frank I. Powers
Counsel for Plaintiffs/Appellees

Slattery Petersen PLLC, Phoenix
By Elizabeth A. Petersen
Counsel for Defendant/Appellee
                           OROSCO v. MCSHCD
                            Opinion of the Court


                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1              Brandon Orosco and his family sued the Maricopa County
Special Health Care District, alleging medical malpractice. They made two
offers of judgment pursuant to Arizona Rule of Civil Procedure 68. The
jury's verdict in their favor exceeded both offers of judgment. We hold the
superior court did not err in imposing sanctions calculated from the date of
the first offer of judgment. We also affirm the court's order taxing the costs
of service of process.1

             FACTS AND PROCEDURAL BACKGROUND

¶2             The Oroscos served an offer of judgment of $3,950,000 on
December 13, 2013. On September 27, 2014, they served another offer of
judgment for $3,949,999. The District did not accept or object to either offer.
After the jury rendered a verdict of $4.25 million and found the District 99%
at fault, the Oroscos requested sanctions under Rule 68(g) calculated from
the date of the first offer.2 The superior court rejected the District's
argument that sanctions were available under Rule 68 only from the date of
the second offer, and awarded sanctions of prejudgment interest from the
date of the first offer of judgment and $147,441.33 in expert witness fees and
double taxable costs incurred after the date of the first offer.




1      On appeal, the District also argues the superior court erred by
denying its motions for judgment as a matter of law and for new trial or
remittitur. In a separate memorandum decision, we affirm the denial of the
motions for judgment as a matter of law and for new trial or remittitur, but
vacate and remand certain of the court's other rulings on taxation of costs
and imposition of sanctions pursuant to Rule 68(g). See ARCAP 28(c).

2     Rule 68 was restyled after entry of judgment in this case, but the
change is not relevant to the issue we address in this opinion.



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                           OROSCO v. MCSHCD
                            Opinion of the Court

¶3             We have jurisdiction over the District's timely appeal
pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-2101(A)(1),
(5)(a) (2017) and -2102(B) (2017).3

                               DISCUSSION

A.     Sanctions Under Rule 68(g).

¶4            We review de novo legal issues arising under Rule 68. See Levy
v. Alfaro, 215 Ariz. 443, 444, ¶ 6 (App. 2007). We begin with the plain
language of the rule. See Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005).

¶5           Rule 68(g) provides that if an offeree rejects an offer of
judgment and "does not obtain a more favorable judgment," the offeree
must pay sanctions of reasonable expert witness fees and double taxable
costs incurred after making the offer, and prejudgment interest on
unliquidated claims accruing from the date of the offer. Rule 68(h)(2)
provides that "[a] rejected offer does not preclude a later offer." The effect
of a subsequent offer on a previous offer, however, is an open question in
Arizona.

¶6              The District argues this court should follow Albios v. Horizon
Communities, Inc., 132 P.3d 1022, 1033 (Nev. 2006), which held that a
successive offer of judgment extinguishes the effect of an offeree's failure to
accept a prior offer. The weight of the authorities construing similar state-
court rules, however, is to the contrary, when, as here, the judgment finally
obtained is less favorable to the offeree than both offers. See Martinez v.
Brownco Constr. Co., 301 P.3d 1167, 1173-74 (Cal. 2013); Evans v. Sawtooth
Partners, 723 P.2d 925, 931-32 (Idaho App. 1986); Palmer v. Kovacs, 897 A.2d
429, 433-34 (N.J. Super. App. Div. 2006); Hicks v. Lloyd’s Gen. Ins. Agency,
763 P.2d 85, 86-87 (Okla. 1988); Zahn v. Musick, 605 N.W.2d 823, 826, 828,
834-35 (S.D. 2000); cf. Kaufman v. Smith, 693 So. 2d 133, 133-34 (Fla. Dist.
App. 1997) (when defendant made two offers of judgment and verdict was
less than first but more than the second, defendant was entitled to sanctions
from date of first offer).4 As the California supreme court held in Martinez,


3     Absent material revision after the relevant date, we cite a statute's
current version.

4     See also Dickenson v. Regent of Albuquerque, Ltd., 815 P.2d 658, 659
(N.M. App. 1991) (citing advisory committee note to Federal Rule of Civil
Procedure 68, which allows a defendant to make offers of judgment: "In the



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                            OROSCO v. MCSHCD
                             Opinion of the Court

a contrary outcome might deter a plaintiff from making an early offer of
judgment or from later adjusting an earlier demand: "Where, as here, a
plaintiff serves two . . . offers to compromise, and the defendant fails to
obtain a judgment more favorable than either offer, recoverability of
[sanctions] incurred from the date of the first offer is consistent with [the
provision's] language and best promotes the . . . purpose to encourage the
settlement of lawsuits before trial." 301 P.3d at 1175.

¶7             As with the provisions at issue in the cases just cited, the
purpose of Arizona's Rule 68 is to "promote settlement and to avoid
protracted litigation." Arellano v. Primerica Life Ins. Co., 235 Ariz. 371, 381, ¶
48 (App. 2014). Permitting an offeror to make additional offers of judgment
encourages the parties to continue to evaluate their cases as the litigation
proceeds and thereby generally fosters settlement. The District argues,
however, that allowing sanctions from the date of the first offer under these
circumstances effectively discourages an offeror from making a reasonable
second offer as trial approaches. But in the same situation, an offeree has
the power to make a reasonable offer of judgment of its own. We agree
with the majority of other jurisdictions that have considered the issue that
a subsequent offer of judgment does not extinguish the effect of an offeree's
failure to accept a prior offer when the judgment is less favorable to the
offeree than both offers.

¶8             Accordingly, because the District did not accept the Oroscos'
first offer of judgment, upon entry of a judgment less favorable to the
District than that offer, the Oroscos were entitled to sanctions fixed to
accrue from the date of that offer. Ariz. R. Civ. P. 68(g). The Oroscos'
second offer of judgment, just one dollar less than the first, did not
extinguish the effects of the District's failure to accept the first.

B.     Costs of Service of Process.

¶9            The District also challenges the superior court's order taxing
the costs the Oroscos incurred in serving the District with a notice of claim
and the summons and complaint. See A.R.S. §§ 12-332(A)(1) (2017), -821.01
(2017).

¶10         Under the cost statute, A.R.S. § 12-332(A)(1), "[f]ees of officers
and witnesses" are taxable costs. The District argues there is no authority


case of successive offers not accepted, the offeror is saved the costs incurred
after the making of the offer [that] was equal to or greater than the judgment
ultimately obtained.").


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                           OROSCO v. MCSHCD
                            Opinion of the Court

for treating costs of service as a taxable cost, but A.R.S. § 12-3301(A) (2017)
expressly states that "[a] private process server is an officer of the court."
The parties debate the relevance of Farm & Auto Supply v. Phoenix Fuel Co.,
103 Ariz. 344, 345-46 (1968), in which the supreme court applied a since-
repealed statute that expressly allowed a prevailing party to recover "costs
of service made by a private process server." Given that the current statute,
§ 12-332(A)(1), allows taxing of the costs of "officers," and a private process
server plainly is defined as an "officer of the court," we see no reason why
the costs of a process server are not taxable under § 12-332(A)(1).

¶11           The District, however, also argues that taxing the costs of
service of process flies in the face of Arizona Rule of Civil Procedure 4.1(c),
under which the court must impose costs of service on a defendant that fails
to comply with a proper request for waiver of service of process.

¶12            We see no inconsistency. Rule 4.1(c) allows a plaintiff to seek
to avoid the cost of service of process by requesting the defendant to waive
service of a summons. If the defendant refuses a request that conforms with
the rule, the rule allows the plaintiff to seek reimbursement of the expense
subsequently incurred in effecting service. Ariz. R. Civ. P. 4.1(c)(2). Under
the rule, the plaintiff need not prevail in the litigation to win reimbursement
of the costs of service; the costs of service are shifted simply because the
defendant has refused a proper request. Nothing in the rule prevents a
plaintiff that has incurred the expense of effecting service from seeking to
tax those costs under § 12-332(A)(1).




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                         OROSCO v. MCSHCD
                          Opinion of the Court

¶13          The superior court thus properly included the expense of the
private process server as a taxable cost.

                            CONCLUSION

¶14         For the foregoing reasons and those set forth in our separate
memorandum decision, the judgment is affirmed in part and vacated and
remanded in part.




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




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




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