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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             PAMELA S. ROTALO,
                      Plaintiff/Counter-Defendant/Appellee,

                                         v.

                             ROBERT G. SAHD,
                     Defendant/Counter-Claimant/Appellant.

                              No. 1 CA-CV 16-0365
                               FILED 6-22-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-051907
                The Honorable Susan M. Brnovich, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Plaintiff/Counter-Defendant/Appellee

Zapata Law, PLLC, Chandler
By Julio M. Zapata
Counsel for Defendant/Counter-Claimant/Appellant
                             ROTALO v. SAHD
                            Decision of the Court


                       MEMORANDUM DECISION

Judge Jay M. Polk1 delivered the decision of the Court, in which Presiding
Judge Diane M. Johnsen and Judge Patricia K. Norris joined.


P O L K, Judge:

¶1             Defendant/Counter-Claimant Robert Sahd (“Sahd”) appeals
the trial court’s post-trial orders denying his: (1) motion for a new trial; (2)
motion for sanctions; (3) motion to alter or amend judgment (set-off); and
(4) application for attorney fees. Because the trial court did not err, we
affirm.

                              BACKGROUND

¶2            Plaintiff/Counter-Defendant Pamela Rotalo (“Rotalo”) and
Sahd began dating in 2008 and became engaged for the first time in 2010.
Sahd gave Rotalo an engagement ring and travel ring, appraised at $134,200
and $2,500 respectively. In July 2012, Rotalo broke off the engagement and
returned the rings to Sahd. The couple later reconciled, and Sahd gave
Rotalo the rings again upon their second engagement in February or March
2013. The relationship ended a couple of months later. Contending that the
rings were an unconditional gift, Rotalo retained them after the second
break-up.

¶3            During their relationship, several financial transactions
occurred between the couple. As relevant here, in 2012, Rotalo made two
loans to Sahd, the first for $166,835.20 and the second for $100,000. Both
loans were evidenced by signed promissory notes. Shortly after the parties’
first break-up in July 2012, Rotalo sent Sahd a letter demanding $456,532.47
purportedly owed under the two promissory notes, including accrued
interest and late fees. In September 2012, as payment toward his
outstanding debt, Sahd conveyed to Rotalo six acres of raw land in New
Mexico (the “Land”). He also made additional cash payments to her
totaling $8,000.




1     The Honorable Jay M. Polk, Judge of the Arizona Superior Court, has
been authorized to sit in this matter pursuant to Article VI, Section 3 of the
Arizona Constitution.


                                       2
                             ROTALO v. SAHD
                            Decision of the Court

¶4            In August 2013 (approximately four months after their second
break-up), Rotalo sued Sahd for breach of contract (alleging he had
defaulted on the notes), unjust enrichment, and conversion. Sahd answered
and counterclaimed for breach of contract (alleging Rotalo had failed to
return the rings), breach of the duty of good faith and fair dealing, unjust
enrichment, and conversion.

¶5             Following a three-day trial, the jury found: (1) in favor of
Rotalo on her promissory note claim in the amount of $332,869.31; (2) in
favor of Sahd on his conversion claim but awarded zero ($0) damages; and
(3) that the rings were a conditional gift that should be returned to Sahd,
and awarded Sahd $2,500 for the travel ring, which had been lost.2

¶6            Sahd filed several post-trial motions that are the subject of this
appeal. Arguing the jury erred in calculating the set-off amount on his
conversion claim award, Sahd first moved to alter or amend the jury verdict
in favor of Rotalo. See Ariz. R. Civ. P. 59(d) (2016).3 Next, asserting Rotalo
and her counsel committed fraud on the court, Sahd moved for a new trial
on Rotalo’s promissory note claim and for sanctions. See Ariz. R. Civ. P.
59(a). Lastly, Sahd moved for an award of attorney fees. The trial court
denied all those post-trial motions and awarded Rotalo, as the prevailing
party, $132,646.20 in attorney fees and costs.

¶7            Final judgment was entered in favor of Rotalo in the amount
of $463,015.51,4 and she was ordered to return the engagement ring to Sahd.
See Ariz. R. Civ. P. 54(c). Sahd timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona




2       At the conclusion of Rotalo’s case-in-chief, Sahd successfully moved
for a directed verdict on Rotalo’s conversion claim, thereby eliminating that
claim from the jury’s consideration. The record is not clear as to the
disposition of the remaining claims; however, neither party has raised those
claims as an issue on appeal.

3      We cite to the procedural rules in effect at the time of trial in 2016.

4      The $463,015.51 consists of the following: (a) $332,869.31 on Rotalo’s
claim for breach of contract; (b) less the $2,500 awarded to Sahd for the
value of the travel ring; (c) plus $127,392.30 for Rotalo’s attorney fees; and
(d) plus $5,253.90 for Rotalo’s taxable costs.



                                       3
                             ROTALO v. SAHD
                            Decision of the Court

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 12-2101(A)(1)
(2017).5

                                DISCUSSION

¶8            Our review of each of the rulings Sahd challenges is limited
to whether the trial court abused its discretion. See First Fin. Bank, N.A. v.
Claassen, 238 Ariz. 160, 162, ¶ 8 (App. 2015) (denial of motion for new trial);
Hunnicutt Const., Inc. v. Steward Title and Tr. of Tucson Tr. No. 3496, 187 Ariz.
301, 307 (App. 1996) (decision to award or deny sanctions); Mullin v. Brown,
210 Ariz. 545, 547, ¶ 2 (App. 2005) (denial of a Rule 59 motion to alter or
amend verdict); Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 205, ¶ 5
(App. 2014) (award of attorney fees). A court abuses its discretion when it
commits an error of law or fails to consider evidence in reaching a
discretionary conclusion or if “the record fails to provide substantial
evidence to support the trial court’s finding.” Flying Diamond Airpark, LLC
v. Meinberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007).

    I.   Motion for New Trial / Motion for Sanctions

¶9           Sahd’s arguments that the trial court erred in denying his
motions for a new trial and for sanctions arise from the same set of facts.
Accordingly, we address them together.

¶10           As relevant here, the trial court may grant a new trial if “the
verdict, decision, findings of fact, or judgment is not justified by the
evidence or is contrary to law.” See Ariz. R. Civ. P. 59(a)(8). Additionally,
the court may impose “serious sanctions” if a party or attorney knowingly
fails to make a timely disclosure of “damaging or unfavorable information”
required under Rule 26.1, such as the identity of persons who “may have
knowledge or information relevant to the events, transactions, or
occurrences that gave rise to the action,” and “a list of the documents . . .
known by a party to exist . . . which that party believes may be relevant to
the subject matter of the action.” See Ariz. R. Civ. P. 26.1(a)(4), (a)(9), and
37(d).6


5      Absent material revision, we cite the current version of statutes
unless otherwise indicated.

6      As pertinent here, Rule 26.1(a)(4) was amended in 2017 to require
disclosure of persons who “may have knowledge or information relevant to
the subject matter of the action.” (Emphasis added.) The version in effect in



                                       4
                              ROTALO v. SAHD
                             Decision of the Court

¶11            Sahd asserts that Rotalo and her counsel presented previously
undisclosed and “fabricated” evidence to the jury. Specifically, Sahd
contends that Rotalo falsely “testified that [Sahd] sold an acre lot” to a third
party, Kamal Irani and/or Mrs. Irani (aka “Aronni” or “Ironni,” collectively
“Irani”) for $31,000. He argues the testimony was false because the sale
never took place and, in any event, neither Irani nor the alleged sale
transaction was included in Rotalo’s disclosure statements or listed as a
contested issue in the joint pretrial statement. At the root of this argument
is the parties’ dispute as to how they agreed to value the Land and, thus,
whether Sahd’s conveyance of the Land completely satisfied his debt to
Rotalo. Rotalo’s position at trial was that the parties had agreed on a value
of $30,000 per acre ($180,000 total), which would have merely reduced
Sahd’s debt, but not eliminate it. In contrast, Sahd asserted the parties
agreed to a value of $75,000 per acre ($450,000 total), thereby extinguishing
his debt in its entirety. Sahd posits that, based on its verdict, the jury must
have relied on Rotalo’s account of the purported Irani transaction.

¶12           Sahd cites many cases and procedural rules for the premise
that Rotalo’s alleged failure to disclose the Irani transaction warrants a new
trial and sanctions. Because Sahd incorrectly describes Rotalo’s testimony
and the record, however, such authority is not relevant to our decision.

¶13            At trial, Rotalo testified she and Sahd agreed to value the
Land at $30,000 per acre. Asked how that agreement came about, she
responded: “Well we had a discussion where [Sahd] had sold one or two
parcels within the last year to [Irani] for 31,000 [per acre]; so we would
value [the Land] at 30,000 [per acre].” (Emphasis added.) Sahd objected to
the testimony for lack of disclosure, and the trial court sustained the
objection and ordered the testimony stricken. Rotalo’s counsel then
rephrased the question, asking Rotalo, “How in your mind did you decide
that $30,000 per acre was a fair price for the [Land] that [Sahd] was going
to deed to you?” Rotalo answered, “Because he [Sahd] told me he had sold
two other parcels for $31,000.00 [per acre]. And he [Sahd] said that he
would value [the Land] at 30,000 [per acre]; and I said that’s fine.”
(Emphasis added.) Sahd again moved to strike for lack of disclosure and
for a mistrial. After dismissing the jury, the court engaged in the following
dialogue with counsel:




2016 required disclosure of persons who “may have knowledge or
information relevant to the events, transactions, or occurrences that gave rise to
the action.” (Emphasis added.)


                                        5
                      ROTALO v. SAHD
                     Decision of the Court

THE COURT: Mr. McCarthy, [Rotalo’s counsel] this sounds
like a new legal theory.

MR. McCARTHY: It isn’t a new legal theory at all, your
Honor. It’s just - - I mean to - - Mr. Zapata [Sahd’s counsel]
suggested before we started that he - - that Mr. Sahd was
going to testify what he had gotten appraisals for, as a way to
determine what he thought was a fair value for the land.
[Rotalo] has done exactly the same thing.

And, in addition, she is not - - there can’t be a lack of
disclosure because she is talking about land that Mr. Sahd
sold to a specific party. He can’t have not known about it, he
did it.

                      *       *       *

THE COURT (to Sahd’s counsel): Has [Rotalo] ever told you
in a deposition, or in any of these declarations how she came
up with that figure?

MR. ZAPATA: No. Oh, the figure for - -

THE COURT: The 180,000.00?

MR. ZAPATA: Oh, yeah. It’s in her declaration, the figure of
a - - of 108 - - I’m sorry. It’s not in her declaration, it may be
her disclosure. The 180,000 was just an agreed upon price
between Mr. Sahd and Ms. Rotalo. That’s all that she
disclosed.

Mr. Sahd in response said, no, there were two appraisals that
we talked about; one at [$450,000] and one at [$570,000].

                          *       *       *

MR. McCARTHY: He didn’t take her deposition.

THE COURT: You never took her deposition?

                          *       *       *

MR. ZAPATA: No. Well she’s got to volun - - that’s just a
disingenuous position, your Honor.



                                  6
                              ROTALO v. SAHD
                             Decision of the Court

       Rule 26.1 has a voluntary affirmative obligations [sic] on both
       parties to disclose voluntarily the information.

       If they choose to hide evidence, then they’re going to be
       barred from using it.

       THE COURT: Well, but she’s sticking with her $30,000.00.

                                 *       *      *

       MR. ZAPATA: Oh, no. She’s now saying that I guess that
       [Sahd] sold some property, which [Sahd] is unaware of
       selling.

       I just asked him whether there was any property that he sold.
       He said, no, I haven’t sold any of those acres.

       And she’s contending without foundation that someone - -
       and she identified the name, I don’t know who it was - -
       purchased a lot for $30,000.00.

       THE COURT: That’s not what she said. Or she said that that is
       what he told her.

       And she’s relying on your client’s statement to her, which is an
       admission by party opponent.

                                 *       *      *

       THE COURT: Okay. So the motion for mistrial is denied.

       I’ll allow her answer to stand.

(Emphasis added.) Thus, Rotalo did not, as Sahd suggests, testify that Sahd,
in fact, sold an acre lot to Irani for $31,000; instead, she testified that she and
Sahd agreed to value the Land at $30,000 per acre because Sahd had told her
that he had sold other New Mexico property to Irani for $31,000 per acre.7


7      Upon examination by Rotalo’s counsel, Sahd admitted that he knew
Irani but said that he did not recall signing an agreement with Irani to
transfer one acre of vacant land in New Mexico for $31,000. In rebuttal,
Rotalo testified she had personal knowledge of the transaction between
Sahd and Irani because she helped transfer funds from Irani’s IRA account



                                         7
                             ROTALO v. SAHD
                            Decision of the Court

¶14            In addition, contrary to Sahd’s assertion on appeal, the record
shows that Rotalo did, indeed, disclose the basis for her belief that the
parties had agreed the Land should be valued at $30,000 per acre. The joint
pretrial statement filed two weeks before trial listed both: (1) as a contested
issue of fact and law, “[the parties] disagree as to the value of the [Land] at
the time the property was conveyed to [Rotalo] by [Sahd];” and (2) as a
material issue of fact or law by Rotalo, Sahd conveyed the Land for “an
agreed-value of $30,000 per acre, thus making it the equivalent of [Sahd]
paying a total of $180,000.” Moreover, Rotalo’s assertion that the value was
based on a prior conveyance echoed her declaration filed in summary
judgment briefing long before trial. In her sworn statement filed on
December 31, 2014, Rotalo denied that she and Sahd had agreed that Sahd’s
conveyance of the Land to Rotalo was in full satisfaction of all his debts to
her, stating: “The only discussion regarding the value of the [Land] Mr.
Sahd and I had was that the [Land] would be valued at $30,000 an acre . . .
because that was the price at which Mr. Sahd was offering the land for sale
to third parties. I am aware that Mr. Sahd sold one acre of [a similar
property] to a third party for $31,000.” Although she did not mention Irani
by name, Rotalo’s declaration more than one year before trial was
consistent with her trial testimony. Thus, Sahd was on notice of Rotalo’s
evidence regarding the basis for the parties’ agreement of the Land’s value
and had a reasonable opportunity to prepare. See Bryan v. Riddel, 178 Ariz.
472, 476 n.5 (1994) (recognizing that the disclosure rules do not require
detailed “scripting” of expected testimony; “The object of disclosure, as
with all discovery, is to permit the opponent a reasonable opportunity to
prepare for trial or settlement – nothing more, nothing less.”). Finally,
although Sahd knew that Rotalo’s position was that the Land was worth
$30,000 per acre, as his counsel acknowledged to the court, he did not
depose her to ask her for facts supporting that value.

¶15           In denying Sahd’s motion for a new trial, the trial court found
that:

        As determined at trial, the truth of whether the [Irani]
        transaction occurred was not the issue. The conversation with
        [Sahd] is what [Rotalo] used as a basis for her belief that the



to Sahd. Rotalo explained that, as she understood it, Sahd and Irani signed
an agreement whereby Sahd would receive $31,000 for one acre, but the
transfer had not happened. Consistent with her prior testimony, Rotalo
further stated that, based on Sahd’s agreement with Irani, she and Sahd
agreed to value the Land at $30,000 per acre.


                                      8
                            ROTALO v. SAHD
                           Decision of the Court

       [Land] was valued at $30,000 per acre. [Rotalo] had no duty
       to disclose every conversation she had with [Sahd].

                               *      *      *

       If [Sahd] had wanted more detail about [Rotalo’s] basis for the
       valuation, he could have deposed [her]. [Sahd’s] choice to
       proceed without deposing [Rotalo] does not create [an]
       additional obligation on [Rotalo] to disclose details otherwise
       obtained in a deposition and that [Sahd] knew himself.
       Additionally, the testimony about [Rotalo’s] conversation
       with [Sahd] was not the only evidence supporting the verdict.
       It is very likely that the jury would have returned the same
       verdict absent that evidence.

These findings are supported by the evidence and the record. Accordingly,
we conclude that the trial court did not abuse its discretion in denying
Sahd’s motions for a new trial and for sanctions.

 II.   Motion to Alter or Amend Judgment (Set-off)

¶16           Sahd argues the trial court erred in denying his motion to alter
or amend the judgment (set-off) because the jury awarded insufficient
damages on his conversion claim. He contends the jury’s award of $0 in
damages is inconsistent with a favorable verdict and, as a result, the
judgment against him should be reduced by the amount of his conversion
claim ($76,000).

¶17           In reviewing the trial court’s determination of a proposed
adjustment of a verdict, we follow the doctrine “that if the verdict is
supported by adequate evidence, it will not be disturbed, and the greatest
possible discretion is in the hands of the trial judge.” Tryon v. Naegle, 20
Ariz. App. 138, 140-41 (1973) (citing Creamer v. Troiano, 108 Ariz. 573, 575-
77 (1972) (recognizing that trial judge’s ruling on additur, remittitur, and
new trial on a claim of an inadequate or excessive verdict generally will be
affirmed because, like the jury, the trial judge has had the opportunity to
observe the witnesses’ demeanor on the stand, and the trial judge’s ruling
will nearly always be more sound than the appellate court’s).

¶18          As to Sahd’s conversion claim and set-off, the jury was given
the following instruction:

       Mr. Sahd also claims that Ms. Rotalo refused to return other
       items of personal property (in addition to the engagement


                                      9
                             ROTALO v. SAHD
                            Decision of the Court

       ring and the travel ring), which are (1) two framed R.C.
       Gorman prints; (2) $5000 loaned to Ms. Rotalo for her son; (3)
       $6000 in damages to the Mercedes; (4) $65000 of jewelry taken
       by Ms. Rotalo from Mr. Sahd’s Arizona residence.

                                *      *       *

       A set-off is a debtor’s right to reduce the amount of a debt by
       any sum the creditor owes the debtor.

                                *      *       *

       If you find that Ms. Rotalo is owed money (on her claims) and you
       also find that Mr. Sahd is owed money, if the amount of money
       owed Ms. Rotalo is more than the amount owed to Mr. Sahd,
       you can setoff the amount owed and your verdict will be for Ms.
       Rotalo for the difference.

(Emphasis added.)

¶19            In rendering its verdicts, the jury completed the verdict forms
by hand-writing in the amount of the damages, $332,869.31 in favor of
Rotalo and $0 in favor of Sahd. As instructed, if the jury found that Sahd
was owed money and wished to award it, it could set-off that amount
against Rotalo’s verdict for the difference. After hearing testimony from
Rotalo and Sahd, the jury chose not to award Sahd money damages; hence,
no set-off was necessary. See Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198
Ariz. 283, 287, ¶ 12 (2000) (“The credibility of a witness’ testimony and the
weight it should be given are issues particularly within the province of the
jury.”) (internal quotation marks omitted); see also Elliott v. Landon, 89 Ariz.
355, 357 (1961) (presuming jurors follow the instructions given). Given this
record, adequate evidence supports the verdict. We find no abuse of
discretion.

III.   Denial of Attorney Fees

¶20          Sahd argues he was the prevailing party on his counterclaims,
which were independent of Rotalo’s claims. Thus, he contends, the trial
court erred by declining to award him attorney fees.

¶21           “The decision as to who is the successful party for purposes
of awarding attorneys’ fees is within the sole discretion of the trial court,
and will not be disturbed on appeal if any reasonable basis exists for it.”
Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430 (App. 1994).


                                       10
                             ROTALO v. SAHD
                            Decision of the Court

¶22           Relying on Ocean W. Contractors, Inc. v. Halec Constr. Co., 123
Ariz. 470 (1979) and various cases from other jurisdictions, Sahd asserts the
court erred in applying the “net winner” rule. See Ayala v. Olaiz, 161 Ariz.
129, 131 (App. 1989) (“In cases involving various competing claims,
counterclaims and setoffs all tried together, the successful party is the net
winner.”). However, no Arizona authority holds that any particular
method must be applied in determining the prevailing party. Although an
award of money is “an important item to consider,” the fact that a party
does not recover the full measure of relief it requests does not mean that it
may not be considered the successful party. See Ocean W., 123 Ariz. at 473.
Moreover, a court “must assess the overall outcome of the case” to
determine if a party has prevailed in a lawsuit. Murphy Farrell Dev., LLLP
v. Sourant, 229 Ariz. 124, 134, ¶ 35 (App. 2012). Thus, depending on the
circumstances of each case, the court may apply a net winner
determination, as used in Ayala, or the court may assess the parties’
respective percentage of success, or consider the totality of the litigation.
See Schwartz v. Farmers Ins. Co., 166 Ariz. 33, 38 (App. 1990) (recognizing the
trial court possesses discretion to determine the successful party in
multiple-party litigation and in cases involving multiple parties or multiple
claims).

¶23            Here, in awarding Rotalo her attorney fees and costs, the trial
court determined Rotalo was the prevailing party because she was the net
winner. Although Rotalo lost on her conversion claim, she won on her
promissory note claims, and even though Sahd won on his claim for the
rings, the jury did not award him damages on his conversion claim. The
trial court also considered the relevant factors in awarding fees in litigation
arising out of contract under A.R.S. § 12-341.01(A). See Associated Indem.
Corp. v. Warner, 143 Ariz. 567, 570 (1985).

¶24          Given Rotalo’s success in prevailing on her promissory note
claims and because a reasonable basis exists for the court’s determination
that Rotalo was the successful party, we find no abuse of discretion.

IV.    Attorney Fees on Appeal

¶25          Both parties request attorney fees and costs on appeal under
ARCAP 21 and A.R.S. § 12-341, -341.01, and -342. Because Sahd is not the
successful party on appeal, we decline to award him fees or costs. In the
exercise of our discretion, and based upon our determinations above,
because Rotalo is the successful party on appeal, we award her a reasonable
amount of attorney fees and costs incurred on appeal upon compliance with
ARCAP 21. See § 12-341.01(A) (providing a court with discretion to award


                                      11
                           ROTALO v. SAHD
                          Decision of the Court

reasonable attorney fees to a prevailing party “[i]n any contested action
arising out of a contract.”).

                             CONCLUSION

¶26         Because the trial court did not err, we affirm its orders
denying Sahd’s post-trial motions.




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




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