                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


              HUGO REYES, Plaintiff/Appellee/Cross-Appellant,

                                      v.

 FRANK’S SERVICE AND TRUCKING, LLC, an Arizona limited liability
            company, Defendant/Appellant/Cross-Appellee.

                            No. 1 CA-CV 13-0028
                             FILED 9-16-2014

             Appeal from the Superior Court in Yuma County
                        No. S1400CV200800665
              The Honorable Lawrence C. Kenworthy, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                 COUNSEL

Knapp & Roberts, PC, Scottsdale
By David L. Abney
Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Shultz & Rollins, LTD., Tucson
By Silas H. Shultz and Michael F. Rollins
Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Jardine Baker Hickman & Houston, PLLC, Phoenix
By Kendall D. Steele
Co-Counsel for Defendant/Appellant/Cross-Appellee

Melinda K. Cekander, PLLC, Flagstaff
By Melinda K. Cekander
Co-Counsel for Defendant/Appellant/Cross-Appellee
                          REYES v. FRANK’S
                          Opinion of the Court



                               OPINION

Judge Margaret H. Downie delivered the Opinion of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:

¶1            A jury trial resulted in a verdict against defendant Frank’s
Service and Trucking, L.L.C. (“FST”) based on a collision between FST
driver Antonio Silva and plaintiff Hugo Reyes. FST had made a pretrial
offer of judgment that exceeded the amount Reyes would recover based
on the jury’s verdict. The trial court denied FST’s post-trial request for
Arizona Rule of Civil Procedure 68(g) sanctions, though, because, after
adding taxable costs to the damages award, Reyes’s recovery exceeded the
offer of judgment amount. To resolve FST’s claims that the court erred by
denying Rule 68(g) sanctions and by awarding costs that were not
recoverable, we must determine whether various litigation expenses were
properly characterized as taxable costs.

            FACTS AND PROCEDURAL BACKGROUND

¶2            Silva and Reyes were driving tractor/trailer rigs when they
collided on an interstate highway in California. According to Silva, he
was moving forward on the shoulder and signaling his entry onto the
freeway from an “Emergency Parking Only” area when Reyes struck him
from behind. Reyes contended Silva pulled into the through lane of travel
quickly, leaving him no time to change lanes. Reyes was injured in the
accident and incurred medical expenses in excess of $150,000.

¶3            In November 2011, FST made an offer of judgment to Reyes
for $200,001.00. Reyes did not respond to the offer. The jury’s August
2012 verdict set Reyes’s damages at $370,000. Jurors, however, found that
Reyes was 49% at fault, thereby reducing his recovery to $188,700.

¶4             During post-trial proceedings, Reyes claimed taxable costs
exceeding $30,000, more than half of which he incurred before FST made
its offer of judgment. The trial court ruled that Reyes was entitled to
recover $32,052.12 in taxable costs and denied FST’s request for Rule 68
sanctions. The final judgment awarded Reyes $188,700 in damages and
$32,052.12 in taxable costs.



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                            Opinion of the Court

¶5            FST filed a timely notice of appeal, and Reyes filed a timely
cross-appeal. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

I. FST’s Appeal

       A. Taxable Costs

¶6           “A party to a civil action cannot recover its litigation
expenses as costs without statutory authorization.” Schritter v. State Farm
Mut. Auto. Ins. Co., 201 Ariz. 391, 392, ¶ 6, 36 P.3d 739, 740 (2001). Taxable
costs are identified in A.R.S. § 12-332(A); as relevant here, the statute
provides:

       A. Costs in the superior court include:

          1.   Fees of officers and witnesses.

          2. Cost of taking depositions.

               ....

          6. Other disbursements that are made or incurred pursuant to
             an order or agreement of the parties.

Whether a particular expenditure qualifies as a taxable cost is a question
of law that we review de novo. Foster v. Weir, 212 Ariz. 193, 195, ¶ 5, 129
P.3d 482, 484 (App. 2006).

               1. Deposition Expenses

                      a. In-State Depositions

¶7          FST contends the trial court improperly awarded Reyes
expenses his Tucson attorneys incurred attending in-state depositions.
We conclude otherwise.

¶8             “Section 12-332 does not specify which litigation expenses
are taxable as costs of taking depositions.” Schritter, 201 Ariz. at 392, ¶ 9,
36 P.3d at 740 (holding that fees a party pays his own expert witness for
deposition testimony are not recoverable as taxable costs). Our appellate
courts, though, have construed the statute as permitting the recovery of
“fees for the court reporter and transcripts, reasonable travel expenses for


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                            Opinion of the Court

attorneys and court reporters attending the deposition, and costs of copies
of deposition transcripts.” Id.; see also Johnston v. Univ. Hosp., 149 Ariz.
422, 425, 719 P.2d 308, 311 (App. 1986) (fees paid to adverse party’s expert
for time spent testifying at deposition are recoverable under
§ 12-332(A)(2)).

¶9             In DeMontiney v. Desert Manor Convalescent Center, this
Court considered a claim for travel expenses that Phoenix attorneys
incurred in attending depositions in Yuma. 144 Ariz. 21, 29, 695 P.2d 270,
278 (App. 1984), vacated in part on other grounds, 144 Ariz. 6, 695 P.2d 255
(1985). We upheld the trial court’s characterization of those expenses as
taxable costs under § 12-332(A). Id. Contrary to FST’s assertion,
DeMontiney remains valid authority on this point. Although the supreme
court vacated the court of appeals’ opinion regarding two specific issues,
neither involved taxable costs. DeMontiney, 144 Ariz. 6, 8, 695 P.2d 255,
257.

¶10           We also disagree with FST’s reliance on Bennett v. Baxter
Grp., Inc., 223 Ariz. 414, 224 P.3d 230 (App. 2010). The trial court in
Bennett awarded certain costs that this Court deemed improper under
A.R.S. § 12-332(A). Id. at 423, ¶ 37, 224 P.3d at 239. We stated, in pertinent
part:

       [F]ew of the taxable costs charged . . . meet the definition in §
       12-332(A).     There are some costs for the taking of
       depositions, but their totals fall far short of the awards.
       Travel costs related to the taking of depositions outside
       Arizona and photocopies of deposition records have been
       determined to be taxable costs. However, the record does
       not adequately reflect whether any of the photocopying
       charges were for this purpose, nor does it appear that any of
       the depositions were taken outside of Arizona. Most of the
       costs awarded are for ineligible expenses such as
       photocopies, facsimiles, shipping, and travel expenses.

Id.

¶11          Bennett does not mention DeMontiney, and to the extent the
above-quoted excerpt may be read as inferentially holding that in-state
deposition expenses are not taxable costs, we disagree. The legislature has
decreed that taxable costs include the “[c]ost of taking depositions.”
A.R.S. § 12-332(A)(2). Nothing in the statute suggests that in-state
deposition costs differ in legal stature from out-of-state deposition



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                            Opinion of the Court

expenses, and FST has identified no policy rationale supporting different
treatment. Indeed, such an artificial distinction would lead to absurd
results. Under FST’s interpretation of the statute, a Bullhead City, Arizona
lawyer could not recover expenses incurred in driving to a deposition in
Bisbee, Arizona (more than 800 miles round-trip) but could recover
expenses associated with a deposition held in Laughlin, Nevada (roughly
12 miles round-trip).

¶12           Section 12-332(A)(2) does not differentiate between in-state
and out-of-state deposition costs. Courts “are not at liberty to rewrite . . .
statute[s] under the guise of judicial interpretation.” New Sun Bus. Park,
LLC v. Yuma Cnty., 221 Ariz. 43, 47, 209 P.3d 179, 183 (App. 2009) (internal
quotation marks omitted). We hold that both in-state and out-of-state
deposition expenses may be recovered as taxable costs under
§ 12-332(A)(2) if they are reasonably and necessarily incurred. See Fowler
v. Great Am. Ins. Co., 124 Ariz. 111, 114, 602 P.2d 492, 495 (App. 1979) (trial
courts have broad discretion in setting the amount of a taxable cost award
and should consider the need for the expenditure and its reasonableness).

¶13           Nor did the trial court err by awarding Reyes costs
associated with the depositions of David Hanpeter and Eric Shumaker.
Hanpeter, a trauma doctor who treated Reyes after the collision, and
Shumaker, the investigating California Highway Patrol Officer, were
independent fact witnesses. They were neither experts retained by Reyes
nor witnesses with whom Reyes had any affiliation beyond involuntary,
emergency contact immediately after the collision. FST’s reliance on
Young’s Market Co. v. Laue, 60 Ariz. 512, 141 P.2d 522 (1943), is misplaced.
That case stands for the proposition that a party may recover costs
incurred in attending out-of-state depositions of an opposing party’s
witnesses. Id. at 517, 141 P.2d at 524. It offers no guidance about whether
expenses of deposing independent fact witnesses are taxable costs under
A.R.S. § 12-332(A)(2).

¶14           FST also disputes the methodology Reyes used for
calculating counsel’s mileage to and from depositions. We agree that
Reyes’s methodology (deducting the cost of gas from the amount derived
from the standard mileage rate, then adding the cost of gas back in) is
odd. But FST does not contend the expenses would have been less had
Reyes used its suggested approach, and Reyes’s calculations reflect that
the amounts would have been the same. Under these circumstances, we
find no error in awarding the requested mileage expenses.




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                            Opinion of the Court

                     b. Interpreter Expenses

¶15          FST contends the trial court improperly characterized the fee
for an interpreter who translated at two depositions as a “witness fee”
under A.R.S. § 12-332(A)(1). And to the extent the interpreter expense was
properly deemed a witness fee, FST asserts, A.R.S. § 12-303 limits the
amount of the award to $12.

¶16           We will affirm the trial court’s decision if it is correct for any
reason. Ariz. Bd. of Regents ex rel. Univ. of Ariz. v. State ex rel. Ariz. Pub.
Safety Ret. Fund Manager Admin., 160 Ariz. 150, 154, 771 P.2d 880, 884
(App. 1989). This Court has previously held that various ancillary
deposition expenses qualify as taxable costs under § 12-332(A)(2). See, e.g.,
Rabe v. Cut and Curl of Plaza 75, Inc., 148 Ariz. 552, 555, 715 P.2d 1240, 1243
(App. 1986) (taxable costs include expenses necessarily and reasonably
incurred to obtain adverse expert’s deposition testimony); Fowler, 124
Ariz. at 114, 602 P.2d at 495 (taxable costs include “reasonable and
necessary travel expenses incurred for the taking of depositions.”); Visco v.
First Nat’l Bank of Ariz., 3 Ariz. App. 504, 508, 415 P.2d 902, 906 (1966)
(Transcript expenses are costs “incidental to the taking of the
deposition.”). In a similar vein, we now hold that the cost of an
interpreter for a deponent is “an incidental expense in the taking of the
deposition itself.” See Visco, 3 Ariz. App. at 509, 415 P.2d at 907. Without
the assistance of an interpreter, an individual who lacks English
proficiency cannot meaningfully be deposed.

¶17          We disagree with the trial court’s ruling that the interpreter
functioned as a witness under A.R.S. § 12-332(A)(1). An interpreter offers
no independent testimony but instead serves as a verbatim conduit for
oral communications at a deposition. When a person requires the
assistance of an interpreter to testify at a deposition, the interpreter’s
reasonable fee is a cost of taking the deposition that may be recovered
under A.R.S. § 12-332(A)(2).

                     c. Video-Recorded Depositions

¶18           FST next challenges Reyes’s ability to recover costs incurred
in video-recording depositions, arguing “no Arizona statute, rule or
opinion holds that the cost of videotaping depositions (or obtaining copies
of the videotapes) is a taxable cost.”

¶19           Arizona Rule of Civil Procedure 30(b)(4) states that unless
the parties stipulate or the court orders otherwise, depositions “shall be
recorded by a certified court reporter and may also be recorded by audio


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                            Opinion of the Court

or audio-video means.” Depositions may be video-recorded as a matter of
right as long as the deposition notice complies with the requirements of
Rule 30(b)(1) (notice must include “the technique for recording the
deposition and the protocols to be used for such recording, the identity of
the person recording the deposition, and the placement of camera(s)”).1

¶20           Expenses associated with properly noticed video-recorded
depositions are undeniably “[c]ost[s] of taking depositions.” A.R.S.
§ 12-332(A)(2). As such, they qualify as taxable costs under the plain
language of the statute. See Herberman v. Bergstrom, 168 Ariz. 587, 589, 816
P.2d 244, 247 (App. 1991) (clear language of a statute is given its usual
meaning unless impossible or absurd consequences result), abrogated on
other grounds by Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270 (2012). That
determination, though, does not end the inquiry. As noted supra, ¶ 12,
trial courts must determine whether challenged expenditures,
notwithstanding their status as taxable costs, were necessarily incurred
and whether they are reasonable in amount. See Fowler, 124 Ariz. at 114,
602 P.2d at 495.

¶21           It is clearly appropriate for a litigant to obtain either a
transcript of a deposition or a video recording of that same deposition.
But when a party has chosen to incur expenses for both stenographic and
video recording of a deposition, the trial court must determine the
reasonableness and necessity of those expenses on a case-by-case basis.

¶22           In the context of a deposition transcript, it is well-established
that the dispositive inquiry is not whether the transcript was actually
used. See In re Nelson, 207 Ariz. 318, 325, 86 P.3d 374, 381 (2004) (“In
Arizona the cost of taking a deposition is a taxable cost if it was taken in
good faith, even though the deposition is not used.”); White v. Frye, 27
Ariz. 447, 451, 234 P. 34, 35 (1925) (interpreting predecessor statute and
holding that failure to use a deposition does not “affect the right to costs,
unless it appears it was not taken in good faith”); State ex rel. Corbin v.
Ariz. Corp. Comm’n, 143 Ariz. 219, 229, 693 P.2d 362, 372 (App. 1984)
(“[T]he fact that the depositions were ultimately not used is not
dispositive.”). By logical extension, a party that seeks to recover the cost


1     Rule 30(b)(4) sets forth the initial payment responsibility for court
reporters, transcripts, and audio-video recordings but offers no guidance
regarding the ultimate treatment of those expenses as taxable costs.




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                           REYES v. FRANK’S
                           Opinion of the Court

of video-recording a deposition need not establish that the recording was
actually used in later proceedings. But when a party opts for both a
transcript and a video and later seeks to make an opponent financially
liable for that election via a request for taxable costs, the necessity and
reasonableness of both modes of preservation is a question for the trial
court to resolve. In that context, actual use may be a relevant
consideration. Other pertinent factors include whether the opposing
party objected to both methods of memorializing the deposition, whether
the objecting party also purchased both a transcript and video recording,
the need for both for appellate purposes, and any witness-specific issues
that made dual modes of preservation prudent.

¶23           We hold that a party is presumptively entitled to recover
taxable costs associated with either a deposition transcript/court reporter
or a deposition video/videographer.         Based on an individualized
determination of reasonableness and necessity, however, a trial court has
the discretion to award costs for both.

¶24          The trial court here awarded Reyes costs for written
transcripts and video recordings of several depositions. We cannot
determine the reasonableness of and necessity for both modes of
preservation based on the record before us. We therefore vacate the
amounts awarded to Reyes for video-recording depositions that were also
transcribed by a court reporter and remand that issue to the trial court for
reconsideration based on the standards enunciated herein.

                    d. No-Show Expenses

¶25           California Highway Patrol Officer Shumaker did not appear
for his deposition in June 2012, though FST concedes Reyes subpoenaed
him. Reyes’s counsel incurred $609.75 in expenses associated with
traveling to the scheduled deposition in California and $510 in
cancellation charges by the court reporting firm. Additionally, on the date
of Dr. Hanpeter’s scheduled deposition, he telephoned to advise he was
running late. The parties agreed to reschedule the deposition for the
following day. The court reporter charged a $161.00 no-show fee.

¶26           The trial court did not err by awarding Reyes the costs
associated with these no-show depositions. As noted supra, ¶ 13,
Shumaker and Hanpeter were independent fact witnesses. FST does not
contend they were not properly subpoenaed or that Reyes was in any way
responsible for their failures to appear. Under these circumstances, the
trial court properly characterized the no-show expenses as costs of taking



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                           REYES v. FRANK’S
                           Opinion of the Court

depositions that were recoverable under § 12-332(A)(2). Cf. Papas v.
Hanlon, 849 F.2d 702, 704 (1st Cir. 1988) (no-show deposition costs are
“incidental expenses” that qualify as taxable costs under 28 U.S.C.
§ 1920(2)); Dishman v. Cleary, 279 F.R.D. 460, 469 (N.D. Ill. 2012) (same).

             2. Mediation Fee

¶27          FST contends the trial court improperly awarded Reyes his
share of private mediation expenses. The court relied on § 12-332(A)(6),
which authorizes a cost award for “[o]ther disbursements that are made or
incurred pursuant to an order or agreement of the parties.”

¶28            In their joint pretrial conference memorandum, the parties
agreed to “attend private mediation by August 7, 2009.” They did not
specify how the mediation costs would be treated at the conclusion of the
litigation, but FST’s reply brief acknowledges that the parties agreed to
share the expense initially.

¶29           We agree with the trial court that the relevant inquiry under
the statute is whether the parties agreed to incur the costs, not whether
they reached a specific agreement about how the costs would ultimately
be classified. The record here supports the finding that “the Parties
reached an agreement as to ‘incurring’ the [mediation] costs in question.”
Under these circumstances, the costs were properly awarded under
§ 12-332(A)(6).

      B. Offer of Judgment

¶30           We review FST’s assertion it was entitled to Rule 68(g)
sanctions de novo. Bradshaw v. Jasso-Barajas, 231 Ariz. 197, 199, ¶ 5, 291
P.3d 991, 993 (App. 2013). Rule 68(g) states, in relevant part:

      If the offeree rejects an offer and does not later obtain a more
      favorable judgment other than pursuant to this Rule, the
      offeree must pay, as a sanction, reasonable expert witness
      fees and double the taxable costs, as defined in A.R.S.
      § 12-332, incurred by the offeror after making the offer and
      prejudgment interest on unliquidated claims to accrue from
      the date of the offer. If the judgment includes an award of
      taxable costs or attorneys’ fees, only those taxable costs and
      attorneys’ fees determined by the court as having been
      reasonably incurred as of the date the offer was made shall
      be considered in determining if the judgment is more
      favorable than the offer.


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                            REYES v. FRANK’S
                            Opinion of the Court

¶31           Even if the trial court rules on remand that Reyes is not
entitled to recover any expenses associated with video-recording
depositions, the net damages award, coupled with taxable costs Reyes had
incurred as of the date of the offer of judgment, will still exceed FST’s offer
of judgment. We therefore affirm the denial of FST’s request for Rule
68(g) sanctions.

II. Reyes’s Cross-Appeal

¶32            Reyes cross-appeals from the trial court’s refusal to give a
requested jury instruction regarding negligence per se. We review the
denial of a jury instruction for an abuse of discretion. Strawberry Water Co.
v. Paulsen, 220 Ariz. 401, 409, ¶ 21, 207 P.3d 654, 662 (App. 2008).

¶33           Reyes asked the trial court to instruct jurors regarding
negligence per se based on California Vehicle Code § 22106, which states:
“No person shall start a vehicle stopped, standing, or parked on a
highway, nor shall any person back a vehicle on a highway until such
movement can be made with reasonable safety.” (Emphasis added). The trial
court declined to give the instruction, though it gave a different
negligence per se instruction based on California Vehicle Code § 21461(a),
which states, in essence, that it is unlawful for a driver to fail to obey a
regulatory sign or signal.

¶34          Negligence per se applies when a person violates a specific
legal requirement. Hutto v. Francisco, 210 Ariz. 88, 91, ¶ 12, 107 P.3d 934,
937 (App. 2005). The statute “must proscribe certain or specific acts . . . .
Therefore, if a statute defines only a general standard of care . . .
negligence per se is inappropriate.” Id. at ¶ 14 (internal quotation marks
omitted).

¶35            California Vehicle Code § 22106 prohibits specified vehicular
movements if they cannot “be made with reasonable safety.” Unlike
§ 21461(a), about which the trial court instructed, this statute establishes a
“general standard of care” by tying the specified driving behaviors to
“reasonable safety.” See Hutto, 210 Ariz. at 91, ¶ 12, 107 P.3d at 937. As
such, the trial court did not err by refusing the requested instruction.2


2       Additionally, the jury was instructed that negligence is “the failure
to use reasonable care” or “to act as a reasonably careful person would act
under the circumstances.” “[W]hen the substance of a proposed [jury]
instruction is adequately covered by other instructions, the trial court is



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                           Opinion of the Court

                             CONCLUSION

¶36           We vacate the trial court’s award of costs for video-
recording depositions that were also transcribed by a court reporter,
subject to reconsideration on remand. We affirm the remaining cost
awards. We also affirm the denial of FST’s request for sanctions under
Rule 68(g) and deny relief under the cross-appeal. We award Reyes his
taxable costs on appeal upon compliance with ARCAP 21.




                                :MJT




not required to give it.” State v. Gomez, 211 Ariz. 111, 114, ¶ 14, 118 P.3d
626, 629 (App. 2005) (internal quotation marks omitted).




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