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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     LINDA K. HART, Plaintiff/Appellant,

                                         v.

                 DANIEL BIEDERBECK, Defendant/Appellee.

                              No. 1 CA-CV 18-0702
                                FILED 10-29-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2017-054019
                  The Honorable Bruce R. Cohen, Judge

                                   AFFIRMED


                                    COUNSEL

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Alex H. Bergener PC, Phoenix
By Alex H. Bergener
Counsel for Defendant/Appellee
                          HART v. BIEDERBECK
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1            Linda K. Hart challenges the trial court’s ruling declining to
award punitive damages claimed against Daniel Biederbeck. A plaintiff
seeking to recover punitive damages must present “clear and convincing
evidence of the defendant’s evil mind.” Linthicum v. Nationwide Life Ins. Co.,
150 Ariz. 326, 332 (1986). The trial court did not abuse its discretion by
concluding Hart failed to meet her burden. We affirm.

                             BACKGROUND

¶2             Hart sued Biederbeck alleging assault, battery, intentional
infliction of emotional distress, and negligence stemming from a physical
altercation occurring approximately two years before. She alleged that
Biederbeck “charged at her in a menacing manner,” “picked [her] up . . .
and threw her against a security gate leading into the [parties’ former]
residence.” She alleged she suffered “severe physical injury” and “severe
emotional distress” and sought both compensatory and punitive damages.

¶3           Both parties testified at a bench trial at the conclusion of
which the trial court found in favor of Hart on each of her claims.
However, the court expressed that it had “credibility concerns as to both
parties” and that “[d]iscerning the truth [was] a fairly monumental task
under these circumstances.” The court entered judgment against
Biederbeck for $15,000 but declined to award punitive damages. Hart
timely appealed the judgment.




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                           HART v. BIEDERBECK
                            Decision of the Court



                               DISCUSSION

I.     The Trial Court Did Not Abuse Its Discretion in Declining to
       Award Punitive Damages

¶4             Hart challenges the trial court’s decision not to award
punitive damages. We review that ruling for an abuse of discretion.1
Miscione v. Bishop, 130 Ariz. 371, 375 (App. 1981); see also Ahmed v. Collins,
23 Ariz. App. 54, 58 (1975) (“Punitive damages are not to compensate for a
loss, but rather to punish for misconduct, and it must, therefore be a matter
of discretion for the trier of fact.”).

¶5              Courts should award punitive damages only in “the most
egregious of cases, where there is reprehensible conduct combined with an
evil mind over and above that required for commission of a tort.”
Linthicum, 150 Ariz. at 332. A plaintiff establishes an “evil mind” by
showing the defendant acted with the intent to injure, was motivated by
spite or ill will, or acted to serve his own interests, consciously disregarding
a substantial risk of significant harm to others. Ranburger v. Southern Pac.
Transp. Co., 157 Ariz. 551, 553 (1988); see also Medasys Acquisition Corp. v.
SDMS, P.C., 203 Ariz. 420, 424, ¶ 15 (2002) (punitive damages are generally
available where the defendant “pursued a course of conduct knowing that
it created a substantial risk of significant harm to others and its conduct was
guided by evil motives”).

¶6            Hart contends the requisite intent to injure is demonstrated
by the court finding Biederbeck’s conduct constituted assault, battery, and
intentional infliction of emotional distress. Prevailing on an assault or
battery claim does not necessarily lead to punitive damages; the plaintiff
also must show the defendant acted “wantonly, maliciously, or under
circumstances of aggravation.” Reah v. Jupin, 68 Ariz. 335, 337 (1949),


1 Hart contends the standard of review is “unclear,” arguing this court
applied a de novo standard of review in Felipe v. Theme Tech. Corp., 235 Ariz.
520, 528, ¶ 31 (App. 2014). Felipe is distinguishable because it was an appeal
from a grant of summary judgment on a punitive damages claim. Id.
Biederbeck, for his part, argues the denial of a punitive damages claim is
not appealable, citing Rubi v. Transamerica Title Ins. Co., 131 Ariz. 403, 405
(App. 1981). Biederbeck misconstrues the holding of that case. In fact, Rubi
addressed the appellants’ contention that the trial court erred in failing to
assess punitive damages against one of the appellees. Id. at 404.


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                           HART v. BIEDERBECK
                            Decision of the Court

overruled on other grounds by Tipton v. Burson, 73 Ariz. 144, 150 (1951); see also
Johnson v. Pankratz, 196 Ariz. 621, 624, ¶ 13 (App. 2000) (“[A] battery
entitling a plaintiff to compensatory damages may also entitle her to
punitive damages. . . . [I]f malice is express or may be implied from the
nature of the acts and the circumstances, punitive damages are possible.”)
(emphases added) (citation omitted); Barker v. James, 15 Ariz. App. 83, 87
(1971) (“[I]n an action for assault and battery malice is an appropriate basis
for punitive damages and that malice may be inferred or implied from the
nature of the acts complained of and the surrounding circumstances.”)
(emphasis added); Safeway Stores, Inc. v. Harrison, 14 Ariz. App. 439, 442
(1971) (“[W]e find nothing more than a simple battery which lacks the
necessary malice or aggravation to support the award of punitive
damages.”). We have reached the same conclusion regarding other
intentional torts, such as fraud. See Dawson v. Withycombe, 216 Ariz. 84, 112,
¶ 96 (App. 2007) (“[P]unitive damages are not recoverable in every fraud
case, even though fraud is an intentional tort”) (citation omitted); Hunter
Contracting Co. v. Sanner Contracting Co., 16 Ariz. App. 239, 246 (1972) (“Just
a simple showing of actionable fraud . . . is not sufficient to submit to the
jury the issue of punitive damages.”) (citation omitted). “For the fact finder
to award punitive damages, a plaintiff must prove something more than
the mere commission of a tort.” Quintero v. Rogers, 221 Ariz. 536, 541 (2009).
Just as the amount of a punitive damage award is within the purview of the
factfinder, declining to make a punitive damages award in a given case is
soundly in the discretion of the factfinder. Magma Copper Co. v. Shuster, 118
Ariz. 151, 153 (1977).

II.    Different Burdens of Proof Support a Denial of Punitive Damages

¶7            Each of Hart’s tort claims can be established by a
preponderance of the evidence. See, e.g., Aileen H. Char Life Interest v.
Maricopa County, 208 Ariz. 286, 291, ¶ 11 (2004) (stating “the usual rule [is]
that a plaintiff must establish each element of a civil action by a
preponderance of the evidence”). But a plaintiff seeking to recover a
punitive damages award must present “clear and convincing evidence of
the defendant’s evil mind.” Linthicum, 150 Ariz. at 332. Clear and
convincing evidence “reflects a heightened standard of proof that indicates
that the thing to be proved is highly probable or reasonably certain.” Kent
K. v. Bobby M., 210 Ariz. 279, 284–85 ¶ 25 (2005) (citation omitted).

¶8            Even if we were to accept Hart’s argument that “the evil mind
is an inherent, proven part of th[e] three intentional torts,” the court did not
find her evidence to be clear and convincing regarding an “evil mind” or
any other issue. It instead found neither party to be particularly credible,


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                          HART v. BIEDERBECK
                           Decision of the Court

stating that it could not “determine with precision what happened” based
on the evidence presented and that “[d]iscerning the truth is a fairly
monumental task.” On this basis alone the court was justified in declining
to award punitive damages.

¶9             “[I]t is the trial court and not the appellate court which draws
a distinction between evidence which is clear and convincing and evidence
which merely preponderates.” Webber v. Smith, 129 Ariz. 495, 498 (App.
1981). Moreover, we defer to the trial court’s credibility determinations in
a bench trial. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009)
(citation omitted). The court did not abuse its discretion in declining to
award punitive damages.

¶10            Moreover, regardless of whether Hart met her burden, a
punitive damage award is permissive and not mandatory. Even had Hart
established by clear and convincing evidence her claim of intentional
infliction of emotional distress, that would only make her eligible for a
punitive damage award and not entitled to one. Given the superior court’s
explanation regarding the relative uncertainty about what transpired, the
decision not to award punitive damages was well within the court’s
discretion.

III.   We Decline to Award Attorney Fees

¶11           Biederbeck requests his attorney fees incurred on appeal
pursuant to ARCAP 25, under which we may sanction an appellant who
brings a frivolous appeal. Johnson v. Brimlow, 164 Ariz. 218, 221–22 (App.
1990). An appeal is frivolous if it is brought for an improper purpose or
indisputably has no merit. Arizona Tax Research Ass’n v. Dep’t of Revenue, 163
Ariz. 255, 258 (1989). Sanctions are unwarranted if the issues raised are
supportable under any legal theory or reasonable attorneys could differ.
Matter of Levine, 174 Ariz. 146, 153 (1993). We consider ARCAP 25 sanctions
with great caution. Price v. Price, 134 Ariz. 112, 114 (App. 1982). In our
discretion, we decline to award fees under ARCAP 25.




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                        HART v. BIEDERBECK
                         Decision of the Court

                             CONCLUSION

¶12           We affirm the judgment. Biederbeck may recover his taxable
costs incurred in this appeal upon compliance with ARCAP 21.




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




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