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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

NARESH MAGO, et al.
, Plaintiff s /Appell ees/Cross

-

Appellants

.

v.

ARIZONA ESCROW & FINANCIAL CORPORATION
,

Defendant/Appell ant/Cross

- Appellee

.
No. 1 CA

- CV 22

- 0 270

Appeal from the Superior Court in Maricopa County

No. CV201 7

- 094803 The Honorable Stephen M. Hopkins
, Judge
, Retired

AFFIRMED IN PART; RE VERSED AND RE MANDED IN PART

COUNSEL
Jaburg & Wilk, P.C. , Phoenix By Roger L. Cohen, Kathi Mann Sandweiss Counsel for Defendant

/Appellant

/Cross

- Appellee

Bueler Jones, LLP, Chandler By Gordon S. Bueler C ounsel for Plaintiffs/Appellees/Cross

- Appellants FILED 3-30-2023MAGO, et al. v. ARIZONA ESCROW Decision of the Court

2 MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the c ourt, in which Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.

W I L L I A M S , Judge:

¶1 Arizona Escrow & Financial Corp. (“Arizona Escrow”) appeals the jury verdict for Naresh Mago . Mago cross

- appeals the superior
court ’ s remittitur of the jury ’s award. W e affirm in part
, and reverse and remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 As stated in Mago v. Ariz ona Escrow & Financial Corp

. , 1 CA

- CV 19

- 0753, 2021 WL 829259 (Ariz. App. March 4, 2021) (mem. decision)
, Mago contracted with Don and Judy Fulghum (“Sellers”) to pu rchase a Subway restaurant franchise

. Arizona Escrow acted as the escrow agent for the transaction

. The purchase agreement set forth escrow instructions and inc l ud ed Mago’s and the Sellers ’ contact informatio n.
¶3 Mago deposited a portion of the purchase price with Arizona Escrow. After opening the escrow account, an imposter hacked Mago’s email account. After the hack, t he imposter created an email address that matched the Sellers’ email address except for an inconspicuous “rn” where the Sellers’ correct email address had an “m.” The night before the release of the funds, the imposter and Mago emailed each other, discussing the purchase without including Arizona Escrow in the email chain.

¶4 The next morning, the imposter emailed wiring instructions to Arizona Escrow, copying Mago on the email. Neither Mago nor Arizona Escrow noticed the slightly different email address used by the imposter. In response, Mago emailed Arizona Escrow instructing them to release $79,000 from the escrow account

. Noting th at the name on the bank account provided in the email was different than the Sellers’ name or any other entity related to the transaction, Arizona Escrow responded to Mago and the imposter questi o n in g the wiring instructions. The imposter replied to Arizon a Escrow and Mago, “yes, that is the name on the account I want the money to be wired. Its [sic] our company account and you can send in the wire there.” Arizona Escrow then emailed Mago asking for clarification onMAGO, et al. v. ARIZONA ESCROW Decision of the Court

3 the amount to be wired. Again, Mago confi rmed the amount to be wired and that Arizona Escrow should release the funds. Without phoning the Sellers to verify the wiring information, Arizona E scrow released the funds and emailed confirmation of the wire transfer to Mago and the imposter later that day. Because the Sellers never received the funds, the sale did not go through. The funds were never recovered.

¶5 Mago sued Arizona Escrow alleging negligence, breach of fiduciary duty, and breach of contract. Arizona Escrow successfully moved for summary j udgment on the breach of contract claim, and the remaining two claims were tried by a jury.

¶6 At trial, Mago testified about the transaction and that he anticipated th e Subway restaurant making $100,000 in profits annually. But the superior court ruled that the claim for lost profits lacked sufficient evidence to go to the jury. The jury also heard , among other things, expert testimony regarding an escrow agent’s duty to detect fraud and verify the recipient of escrow funds.

¶7 The court instructed the jury on apportionment of fault and directed the jury to determine “ the relative de grees of fault” as percentages for Mago, Arizona Escrow, and the imposter

. The jury apportio ned one hundred percent of the fault to Arizona Escrow and awarded Mago $379,000 in damages.

¶8 Arizona E scrow moved for a new trial contending the jury failed to follow the court’s instructions by apportion ing no fault to the imposter

. The superior court denied the motion

. A rizona Escrow also asked the court to reduce Mago’s jury award . The court obliged
, reduc ing the award from $379,000 to $79,000 stating that “the only evidence that [the jury] could use [for damages] was the $79,000.” The court awarded Mago prejudgment interest on the $79,000 award, along with Mago’s attorney’s fees and costs under A.R.S. § 12

- 341.01.

¶9 Arizona Escrow timely appeal ed. Mago cross

- appealed the court’s remittitur. We have jurisdic tion under Article 6, Section 9
, of the Arizona Constitution and A.R.S. §§ 12

- 120.21(A)(1)
, - 2101(A)

DISCUSSION

¶10 Arizona Escrow appeals the jury ’s verdict, contending : (1) apportioning one hundred percent of fault to Arizona Escrow violate d A.R.S. § 12

- 2506, and that Mago was not eligible for (2) prejudgment interestMAGO, et al. v. ARIZONA ESCROW Decision of the Court

4 or (3) attorney’s fees

. Mago counters that the court had insufficient evidence to reduce the jury’s award from $379,000 to $79,000.

I. Allocation of Fault

¶11 Arizona’s Uniform Contribution Among Tortfeasors Act requires juries to “ consider the fault of all persons who contributed to [an] alleged injury

. . . regardless of whether the person was, or could have been
, named as a party to the suit .” A.R.S. § 12

- 2506(B)

. Arizona Escrow argues the jury was “ required to assess some fault against [the imposter], whose fault is undisputed.”

¶12 When interpreting statutes, our goal is to determine and effectuate the legislature’s intent, Rasor v. Nw. Hosp., LLC , 243 Ariz. 160, 164, ¶ 20 (2017), and a statute’s plain language is the most reliable indicator of legislative intent, State ex rel. Ariz. Dep ’ t of Revenue v. Capitol Castings, Inc.
, 207 Ariz. 445, 447, ¶ 9 (2004).

¶13 The interpretation urged by Arizona Escrow fails under the statute’s plain language. Section 12

- 2506(B) requires only that a jury consider fault; it does not obligate a jury to a ssign a percentage of fault to every person it considers.

¶14 To be sure, A.R.S. § 12

- 2506(B) only required the jury “to consider the fault of all persons who contributed to the alleged injury,” not to apportion fault to any one source. “[T]he jury is the sol e arbiter of fact and law as to the defenses of contributory and comparative negligence.” Gunnell v. Ariz. Pub. Serv. Co. , 202 Ariz. 388, 394, ¶ 23 (2002). T he superior court instructed the jury to consider the fault of Mago, Arizona Escrow, and the impost er . A nd the verdict form clearly allowed for an allocation of fault to any or all three

. ¶15 Arizona Escrow looks past the statute’s plain language and relies on Ogden v. J.M. Steel Erecting, Inc. , 201 Ariz. 32, 36, ¶¶ 16

– 17 (App. 2001). But unlike the parties i n Ogden
, the parties never stipulated liability here. Because Arizona Escrow has shown no error , the superior court did not abuse its discretion in denying Arizona Escrow’s motion for a new trial.

II. Pre

j udgment Interest

¶16 Arizona Escrow also challenges the superior court’s award of prejudgment interest to Mago from the date the escrow account closed. W hether a party is entitled to prejudgment interest is a question of law weMAGO, et al. v. ARIZONA ESCROW Decision of the Court

5 review de novo. John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty

. , 208 Ariz. 532, 544, ¶ 39 (App. 2004).

¶17 Courts award prejudgment interest on liquidated claims as a matter of right

. Alta Vista Plaza, Ltd. v. Insulation Specialists Co., Inc.
, 186 Ariz. 81, 82 (App. 1995)

. “ A claim is liquidated if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion. ” Marcus v. Fox , 150 Ariz. 342, 345 (App. 1985), vacated in part
, 150 Ariz. 333 (1986). Courts award prejudgment interest to “recompens[ate] the victim and deter[] defendants from dilatory litigation tactics

. ” Dawso n v. Withycombe
, 21 6 Ariz. 84, 11 3 , ¶ 99 (App. 2007).

¶18 Arizona Escrow contends that Mago’s claim was never liquidated because Mago sought consequential damages
, like lost profits, which are valued based on opinion

. See Custom Roofing Co., Inc . v. Alling
, 146 Ariz. 388, 391 (App. 1985). Even if the claims for consequential damages
were not eligible for prejudgment interest, however, that still leaves liq uid ated damages of $79,000 , which neither party disputed

. See Alta Vista
, 186 Ariz. at 84 (noting that different damages within a claim could become liquidated at different times depending on when the p laintiff provided sufficient information to calculate the loss).

¶19 As to w hen the interest beg a n to accru e, t he superior court relied on Gemstar Ltd. v. Ernst & Young , 185 Ariz. 493, 508

– 09 (1996 )
, in which our s upreme c ourt stated
, “ [a] s a general rule, the trial judge should calculate prejudgment interest from the date the claim becomes due ” except for cases, “involving unconditional money debts” where “ prejudgment interest accrues from the date the plaintiff makes a demand .” We cannot say t he superior court err ed in awarding p rejudgment interest from the date the escrow account closed

.
III. Award of Attorney’s Fees

A. Eligibility for Attorney’s Fees und er A.R.S. § 12

- 341.01

¶20 Arizona Escrow next challenges Mago’s award of attorney’s fees, claiming that the provisions of A.R.S. § 12

- 341.01 are no longer applicable to this case because Arizona Escrow prevailed on Mago’s breach of contract claim at summary ju dgment

. Mago v. Ariz ona Escrow & Financial Corp

. , 1 CA

- CV 19

- 0753, 2021 WL 829 259 , at *2, ¶¶ 10, 11

. We review eligibility for a statutory award of attorney’s fees de novo

. Chaurasia v. Gen

. Motors Corp. , 212 Ariz. 18, 26 , ¶ 24 (App. 2006).MAGO, et al. v. ARIZONA ESCROW Decision of the Court

6 ¶21 Section 12

- 341.01 provides for an award of reasonable attorney’s fees “ [i]n any contested action arising out of a contract

. ” (Emphasis added). It does not require a breach of contract action; even a tort claim may do. Barmat v. John & Jane Does Partners A

- D , 155 Ariz. 519, 522 (1987). A tort arises out of contract when “the duty breached is not imposed by law, but is a duty created by a contractual relationship, and would not exist ‘but for’ the contract. ” Id. at 523. The relevant test then is whether the tortfeasor “would have a duty of care . . . even in the absence of a contract.” Ramsey Air Meds, L

. L.C. v. Air Cutter Aviation, Inc.
, 198 Ariz. 10, 15, ¶ 27 (App. 2000)

. ¶22 Unlike “attorneys, accountants, and other professionals [who] owe special duties to their clients . . . even if the client . . . expressly declined the professional’s services
, ” Barm a t , 155 Ariz. at 523, escrow agents generally owe no dut y to those with whom there is no
contract. Compare Luce v. State Title Agency, Inc , 190 Ariz. 500, 502 (App. 1997)
, with Ramsey , 198 Ariz. at 16, ¶ 28 (“The pilot of an aircraft owes a legal duty of care to many people . . . this duty is based not on contract, but on tort law .” )
, and Dooley v. O’Brien , 226 Ariz. 149, 154, ¶¶ 18

– 19 (App. 2010) (conc luding that fiduciary obligations by corporate directors can apply without “regard to the terms in the underlying contracts”)

. ¶23 Arizona Escrow would not have owed a duty to act towards Mago with “scrupulous honesty, skill, and diligence,” Berry v. McLeod
, 124 Ariz. 346, 351 (1979), absent Mago’s contract

. For that reason, Arizona Escrow’s duty to Mago arose out of contract making Mago eligible for an award of attorney’s fees under A.R.S. § 12

- 341.01 . The superior court did not err i n award ing Mago attorney’ s fees

. 1

B. Reasonableness of Attorney’s Fee Award

¶24 Even if proper , Arizona Escrow contends the fee award was unreasonable because it included fees spent defending the breach of contract claim

. We review the amou nt of a fee award for an abuse of

1 We note that t he superior court based its conclusion on our supreme court’s opinion in Burkons v. Ticor Title Ins urance Co. of California , 168 Ariz. 345 (1991) for the proposition that A.R.S. § 12

- 341.01 “expressly allows recovery against an escrow company based upon breach of fiduciary duty. ” But this principle comes from this court’s opini on in Burkons v. Ticor Title Ins urance Co. of California
, 165 Ariz. 299 , 312 (App. 1989) , which was vacated on review

.MAGO, et al. v. ARIZONA ESCROW Decision of the Court

7 discretion. Lee v. ING Investment Management, LLC
, 240 Ariz. 158, 161 ¶ 11 (App. 2016)

. ¶25 The superior court reasoned that the breach of contract claim was factually connected with the other claims , and that it would be dif ficult to determine which fees are associated with which claims. Courts can award attorney fees spent pursuing unsuccessful claims when intertwined with successful claims as the superior court did here. See Schweiger v. China Doll Restaurant

, Inc. , 138 Ari z. 183, 189 (App. 1983) ( “ [W] here a party has accomplished the result sought in the litigation, fees should be awarded for time spent even on unsuccessful legal theories. ”)

. Arizona Escrow contends that the fee award should be reduced by one third because one of Mago’s three claims was dismissed. But Arizona Escrow provides no persuasive authority for its position.

¶26 However, we agree with Arizona Escrow that the superior court’s total award does not reflect the fee calculation provided by Mago ’s counsel. Counsel’s affidavit requests $66,750
, but the court entered an award for $67, 750

. Because no factual basis exists in the record for th e increase, we remand to the superior court to enter an award of $ 66,750.

IV. Remittitur

¶27 Mago cross

- appeals the superior court’s remittitur of the jury verdict from $379,000 to $79,000

. We give the “greatest possible discretion [ to ] the trial court with respect to the alteration of the verdict” and will only reverse if the c ourt abuses that discretion. Mammo v. State , 138 Ariz. 528, 533

– 34 (App . 1983).

¶28 Our s upreme c ourt has urged superior courts to “sparingly exercise discretion in modifying a jury’s verdict,” while also recognizing that courts play “a role akin to a thirteenth juror.” Soto v. Sacco
, 242 Ariz. 474, 478, ¶ 8 (2017). A court may exercise its discretion in cases where the verdict “reflects an exaggerated measurement of damages.” I d. at ¶ 9 (citations omitted).

¶29 Mago contends the jury’s verdict could legitimately include the “lost time value” of the $79,000 , lost opportunities, and the “tens of thousands of dollars [spent] trying to get [his] money back. ” But Mago never presented any evidence at trial of lost oppo rtunities or efforts to get his money back . Mago did testify about his projected profits from the Subway restaurant , but th at claim was not submitted to the jury as a matter of law

.MAGO, et al. v. ARIZONA ESCROW Decision of the Court

8 ¶30 Mago persists that the jurors used their “ common sense ” and “experience” to find an amount which would “reasonably and f airly compensate” him. But t he jury must have some evidence on which it bases its verdict

. Mago point s to none , and we can not find any that justifies the jury’s decision to award $300,000 ab ove the $79,000 lost in the escrow transaction. On this record, t he superior court ’s remittitur was not error

.
V. Attorney’s Fees on Appeal

¶31 Mago request s reasonable attorney’s fees and cost s on appeal under A.R.S. § 12

- 341.01. Because he is the prevailing party, in our discretion, we grant th e request upon compliance with Arizona Rule of Appellate Procedure 21.

CONCLUSION

¶32 We affirm the superior court’s rulings with the sole exception of the amount of attorney’s fees awarded to M ago. On that matter, we remand to allow the court to issue an order consistent with this decision.