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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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.
ROTALO v. SAHD

Decision of the Court

3

¶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.
ROTALO v. SAHD

Decision of the Court

4

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 
ROTALO v. SAHD

Decision of the Court

5

¶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.)
ROTALO v. SAHD

Decision of the Court

6

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.
ROTALO v. SAHD

Decision of the Court

7

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 
ROTALO v. SAHD

Decision of the Court

8

¶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.
ROTALO v. SAHD

Decision of the Court

9

[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 
ROTALO v. SAHD

Decision of the Court

10

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).
ROTALO v. SAHD

Decision of the Court

11

¶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 
ROTALO v. SAHD

Decision of the Court

12

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.