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

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

2

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. 
REYES v. FRANK’S

Opinion of the Court

3

¶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 
REYES v. FRANK’S

Opinion of the Court

4

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 
REYES v. FRANK’S

Opinion of the Court

5

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. 
REYES v. FRANK’S

Opinion of the Court

6

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 
REYES v. FRANK’S

Opinion of the Court

7

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. 
REYES v. FRANK’S

Opinion of the Court

8

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 
REYES v. FRANK’S

Opinion of the Court

9

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. 
REYES v. FRANK’S

Opinion of the Court

10

¶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 
REYES v. FRANK’S

Opinion of the Court

11

CONCLUSION

¶36 We vacate the trial court’s award of costs for videorecording 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. 

 

not required to give it.” State v. Gomez, 211 Ariz. 111, 114, ¶ 14, 118 P.3d 

626, 629 (App. 2005) (internal quotation marks omitted).