IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

HUGO REYES
, Plaintiff/Appell ee/Cross

- Appellant
,

v.

FRANK ’ S SERVICE AND TRUCKING, LLC, an Arizona limited liability

company, Defendant/Appell ant/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/Appell ee/Cross

- Appellant

Shultz & Rol lins, LT D ., Tucson By Silas H. Shultz and Michael F. Rollins Co

- Counsel for Plaintiff/Appell ee/Cross

- Appellant

Jardine Baker Hickman & Houston, PLLC
, Phoenix By Kendall D. Steele Co

- C ounsel for Defendant/Appell ant/Cross

- Appellee

Melinda K. Cekander, PLLC , Flagstaff By Melinda K. Cekander Co

- Counsel for Defendant/Appellant/Cross

- AppelleeREYES v. FRANK ’ S Opinion of the Court

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

D O W N I E , Judg e :

¶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 Antoni o Silva and plaintiff Hugo Reyes. FST had made a pretrial offer of judgment that exceeded t he amount Reyes would recover based

on t he 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 exceed ed t he offer of judgme nt amount

. To resolve FST’s c laims that the court erred by denying R ule 68(g) sanctions and by awarding costs that were not recoverable
, w e must determine whether various litigation expenses were properly characterized as taxable costs.

FACTS AND PROCE DURAL BACKGROUND

¶2 Silva and Reyes were driving t ractor/trailer rig s when they collided on an in terstate highway in California. According to Silva
, he was moving forward on the shoulder and signaling his entry onto the freeway from an “Emergency Parking Onl y” area when Reyes struck him from behind

. R eyes 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 exce ss of $150, 000.

¶3 In November 201 1, FST made an o ffer 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 $3 0,000, more than half of which he incurred before FST made its offer of judgment. T he 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 R e yes $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

c ross

- appeal

. We have jurisdiction pursuant to Arizona Revised Sta tutes (“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. 3 91, 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 disburseme nts 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. 200 6)

.

1. Deposition Expenses

a. In

- S tate 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 li tigation expenses are taxable as costs of taking depositions.” Schritter, 201 Ariz

. at 392, ¶ 9, 36 P.3d at 740 ( holding that fees a party p ays his own expert witness for deposition testimony are not recoverable as taxable costs ). Our appellate courts, t hou gh, have construed the statute as permitting the recovery of “fees for the court reporter and transcripts, reasonable travel expenses forREYES v. FRANK ’ S Opinion of the Court

4 attorneys and court reporters attending the deposition, and costs of copies of deposition transcripts.” Id. ; see a lso 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 De Montiney v. Desert Manor Conval escent Center, this Court considered a claim for travel expens es 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 uph eld the trial court’s c haracterization of th os e expenses as taxable costs under § 12

- 332(A)

. Id. Contrary to FS T’s assertion, DeMontiney remains valid authority on this point . Although t he supreme court vacated the court of appeals’ opinion regarding tw o specific issues, neither involved t axable 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 i mproper under A.R.S. § 12

- 332(A). Id. at 423
, ¶ 37, 224 P.3d at 23 9

. We stated, i n pertinent part : [F]ew of the taxable costs charged . . . meet the definition in § 12

- 332(A). There are some costs for the taking of depositi ons, 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 deposition s 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 men tion DeMontiney , and to the extent the above

- quote d excerpt may be read as inferentially holding that in

- state deposition expenses are n ot taxable costs, we disagree. The legislature has decreed that t axable 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 depositionREYES v. FRANK ’ S Opinion of the Court

5 expenses , and FST has identifie d no policy rationale supporting different
treatment. Inde ed, 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 cost s. Courts “are not at liberty to rewrite

. . . s tatute [ 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 recove red 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 co sts associated with the depositions of David Hanpeter and Eric S humaker

. Hanpeter, a traum a doctor who trea ted Reyes after the collision , and Shumaker, the investigating California Highway Patrol O fficer , were independent fact witnesses . They were neither e xpert s retained by Reyes

n or witnesses with whom Reyes had an y 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 disp utes the methodology Reyes used for calculating co unsel’s mileage to and from deposition s. We agree that Reyes ’s methodology ( deducting the cost of gas from the amount derived from the standard mileage rate, then add ing the cost of gas back in ) is odd. But FST does not contend the expenses would have be en less had Reyes used its suggested approach , and Reyes’ s calculation s reflect that
t he amount s 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 Expense s
¶15 FST contend s the trial court improperly c haracterized the fee for an interpreter who translated at two depositions as a “ witness fee ” under A.R.S. § 12

- 332(A)(1)

. And t o the extent the interpreter expense was properly deemed a witness fee, FST asserts , A.R.S. § 12

- 30 3 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 88 0, 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 c osts 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, 50 8 , 415 P.2d 902, 906 (1966) ( T ranscript expenses are costs “ incidental to the taking of the deposition.” )

. In a similar vein, we now hold that t h e cost of an interpreter for a deponent i s “an incid ental 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 proficien cy cannot meaningfully be deposed.

¶17 We disagree with the trial co urt’s ruling tha t 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 incu rred 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 th e p arties stipulate or the court orders otherwise, depositions “shall be recorded by a certified court reporter and may also be recorded by audioREYES 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 notic e 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 Ex penses 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. Bergst rom , 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)

. T hat determin ation , though, does not end the inquiry. As noted supra , ¶ 12
, trial courts must determine whether challenged expenditures, notwithstanding their statu s as taxable costs , were necessarily incurred and whether they are reasonable in amount

. See Fowler , 12 4 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 t hat same deposition

. But when a party has chosen to incur exp enses for both stenographic and video recordin g of a deposition , the trial court must determine the reasonableness and necessity of those expenses on a case

- by

- case basis

. ¶22 I n 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

- record ing 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 que stion 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 purch ased both a transcript and video recording
, the need for both for appellate purposes, and any witness

- specific issues that mad e dual modes of preservation prudent.

¶23 We hold that a party is presumptively entitled to recover taxable costs associated with ei ther 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 Rey es costs for writt en transcripts and video recordings of several depositions. W e 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

- record ing 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

- S how Expenses

¶25 California Highway Patrol Officer Shumaker did not appear for his deposition in June 2012, though FST concedes Reyes su bpoenaed him. Reyes’s counsel incurred $609.75 in expenses associated with traveling to th e scheduled deposition in California and $ 510 in cancellation charges by the court reporting firm

. Add itionally, on the date of Dr. Hanpeter ’s scheduled deposition, he telephoned to advise he was running late. T he 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. A s noted supra , ¶ 13
, Shumaker and Hanpeter were independent fact witness es

. FST does not contend t he y were not properly subpoenaed or that Reyes was in any way responsible for t h eir failure s to appear. Under these circumstances, the trial court properly characterize d the no

- show expenses as costs of takingREYES 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 dep osition 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 FS T contends the trial court improperly awarded Reyes his share of private mediation expenses . The court relied on § 12

- 332(A)(6 ), which a uthorizes 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 pr etrial conference memorandum, t h e parties agreed to “attend private m ediation by August 7, 2009 .” T hey 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 initial ly

. ¶29 We agree wi th 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. T he record here supports t he finding t hat “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 o f Judgment

¶30 We review FST ’s assert ion it was entitled to Rule 68(g)
sanct ions 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 unliqu idated claims to accrue from the date of the offer. If the judgment includ es an award of taxable costs or attorneys’ fees, only those taxable costs and attorneys’ fees determined by the court as having been

reason ably 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 e xpenses associated with video

- record ing depositions, the net damages award, coup led 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 t he trial court’s refusal to give a requested jury instruction regarding negligence per se

. We review the denial of a jury inst ruction for a n a buse 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 state s: “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 th e i nstruction, 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 pro scribe certain or spec ific 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 vehic ular
movements if they cannot “be made with reasonable safety.” Unlike § 21461(a)
, about which the trial court instructed, this statut e 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 cove red by other instructions, the trial court isREYES v. FRANK ’ S Opinion of the Court

11 CONCLUSION

¶36 W e vacate the trial court’s award of costs for video

record ing deposition s that were also transcribed by a court repo rter, subject to reconsideration on remand. We affirm the r emaining 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)

.