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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE COREY K.

No. 1 CA-JV 16-0064

Appeal from the Superior Court in Yavapai County

No. P1300JV201400253

The Honorable Anna C. Young, Judge

VACATED AND REMANDED WITH INSTRUCTIONS

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Amy C. Drew

Counsel for Appellee State of Arizona

Roberts & Carver, PLLC, Prescott

By Jerry Carver

Counsel for Appellee K.S. Excavation, L.L.C., et al.

Law Office of Florence M. Bruemmer, P.C., Anthem

By Florence M. Bruemmer

Counsel for Appellant
IN RE COREY K.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Peter B. Swann joined.

N O R R I S, Judge:

¶1 Corey K. appeals from the superior court’s restitution order 

entered after he admitted to criminally damaging construction equipment 

owned by the victim, an excavation company (“the Company”). See Ariz. 

Rev. Stat. (“A.R.S.”) § 13-1602 (Supp. 2015).1 We reject Corey’s argument 

that the court abused its discretion in ordering him to pay restitution for the 

revenues the Company lost because of his criminal conduct. We agree with 

Corey, however, that the court should not have ordered restitution for all 

of the attorneys’ fees the Company incurred because Corey’s criminal 

conduct did not directly cause the Company to incur all of the fees. 

Accordingly, we vacate the restitution order and remand to the superior

court to re-determine the amount of attorneys’ fees the Company is entitled 

to as restitution and re-enter the restitution order as instructed below. 

¶2 On November 20, 2015, the superior court held a contested 

restitution hearing. The owners of the Company, S.S. and K.S., testified

about the losses the Company had incurred when Corey and two other 

juveniles criminally damaged its construction equipment, which included 

an excavator, two backhoes, a compactor, a loader, and a dump truck. 

Based on the evidence presented, the superior court found the Company

was entitled to $90,650.86 in restitution, which included a stipulated 

amount of $10,356.86, $66,500 in lost revenue, and $13,794 for attorneys’ 

fees. The superior court divided the restitution among the juveniles, 

ordering Corey to “pay partial restitution in the amount of $30,216.53.” The 

court also ordered Corey and his parents to be jointly and severally 

responsible for that amount.

¶3 Corey first argues the superior court abused its discretion by 

including in the restitution order the $66,500 in revenue the Company lost 

during the time it was unable to perform excavation work while its 

 

1Although the Arizona Legislature amended certain statutes

cited in this decision after the date of the offenses, the revisions are

immaterial to the resolution of this appeal. Thus, we cite to the current

version of these statutes.
IN RE COREY K.

Decision of the Court

3

equipment was being repaired. See In re William L., 211 Ariz. 236, 239, ¶ 10, 

119 P.3d 1039, 1042 (App. 2005) (appellate court reviews restitution order 

for abuse of discretion). We reject this argument; the State demonstrated 

by a preponderance of the evidence that the Company was entitled to 

restitution for these losses. See id. at 238, ¶ 6, 119 P.3d at 1041.

¶4 Under A.R.S. § 8-344(A) (2014), when “a juvenile is 

adjudicated delinquent, the court . . . shall order the juvenile to make full or 

partial restitution to the victim of the offense for which the juvenile was 

adjudicated delinquent.” Restitution is appropriate for a victim’s losses 

that, first, “are economic,” second, “would not have occurred but for the 

juvenile’s delinquent conduct,” and third, “are directly caused by the 

delinquent conduct (e.g. not consequential damages).” In re Andrew C., 215 

Ariz. 366, 368, ¶ 9, 160 P.3d, 687, 689 (citing State v. Wilkinson, 202 Ariz. 27, 

29, ¶ 7, 39 P.3d 1131, 1133 (2002)). The guiding principle is for restitution 

to make the victim whole to the extent the law permits. Id. at 368, ¶ 11, 160 

P.3d at 689.

¶5 At the restitution hearing, the State introduced into evidence 

a spreadsheet prepared by the Company listing the construction equipment 

Corey and the other two juveniles damaged. S.S. testified that when Corey 

and the other two juveniles “vandalized” the Company’s machines, the 

Company had been working for a local developer on a construction project 

and had been charging the developer the Company’s standard hourly rate 

for each machine. S.S. explained the Company had been operating each 

machine for the developer “[f]ive days a week ten hours each day.” S.S. 

further explained the Company had been unable to operate the machines 

on the developer’s project while the machines were being repaired. Thus, 

S.S. calculated the Company’s $66,500 in lost revenue by multiplying the 

Company’s hourly rate for a particular machine times ten hours per day for

each day the machine was out of service for repairs and then totaling those 

amounts.

¶6 K.S. testified the Company had used the equipment at least 50 

hours per week on the project. He also testified the Company would often

use the equipment to “do work on Saturdays” on other jobs as well. K.S. 

further explained that after the Company removed its equipment from the 

jobsite for repairs, the project’s developer “had to hire . . . some other 

equipment and some other people . . . to do the work” to meet project 

deadlines. K.S. explained the Company lost “revenue on other jobs” when 

he “had to turn [them] away because [he] did not have the equipment to go 

do those jobs.” K.S. and S.S. also explained that during the time the 

Company’s equipment was out of service, it continued to incur operating 
IN RE COREY K.

Decision of the Court

4

expenses for employee payroll,2 tractor loans, workers’ compensation 

insurance, and equipment and liability insurance. Although the State did 

not introduce into evidence any contracts between the Company and the 

developer, or billing and payment records between the developer and the 

Company, the foregoing testimony of S.S. and K.S. constituted credible, 

adequate evidence of the revenues the Company lost that it would not have 

lost but for Corey’s criminal conduct, and which were directly caused by 

his conduct.

¶7 Corey nonetheless argues the superior court abused its 

discretion in ordering restitution for the Company’s lost revenues because 

the State failed to provide any “expense sheets to demonstrate net losses

(they would need to pay employees, taxes, etc. while the equipment was in 

use).” Corey did not raise this argument in the superior court, however. 

Accordingly, he has waived it and cannot raise it on appeal. See Cty. of La 

Paz v. Yakima Compost Co., Inc., 224 Ariz. 590, 606, ¶ 49, 233 P.3d 1169, 1185 

(App. 2010) (arguments not raised in trial court are waived on appeal); see 

also In re Kory L., 194 Ariz. 215, 220, ¶ 16, 979 P.2d 543, 548 (App. 1999) (“The 

right to contest restitution can be waived.”). Even assuming Corey did not 

waive this argument, under the circumstances of this case, we would reject 

it. Although the State did not present any written evidence of the 

Company’s expenses, K.S. and S.S. testified about the Company’s operating 

expenses. See supra ¶ 6. And, K.S. also testified the Company had to take 

out a $100,000 loan to maintain “working capital” so it could stay in 

business given the revenue losses it had experienced because of Corey’s 

criminal conduct.

¶8 Corey next argues the superior court should not have ordered 

restitution for the $13,794 in attorneys’ fees the Company incurred, because 

he did not directly cause the Company to incur these fees and thus they 

constituted consequential damages. After reviewing the record, we agree 

with Corey that at least some of the fees incurred by the Company were not 

directly caused by his criminal conduct and constituted consequential 

damages, and should not have been included in the superior court’s 

restitution order.

¶9 As discussed, see supra ¶ 4, a restitution award may not 

include “consequential damages.” State v. Slover, 220 Ariz. 239, 242, ¶ 5, 204 

P.3d 1088, 1091 (App. 2009) (quoting A.R.S. § 13-105(16) (Supp. 2015)). 

 

2K.S. explained he “searched for things for [his] employees to 

do so they didn’t go off to somebody else” because he could not “afford to 

lose [his] employees.” 
IN RE COREY K.

Decision of the Court

5

Consequential damages are those that do not flow directly from the 

criminal conduct. State v. Sexton, 176 Ariz. 171, 172, 859 P.2d 794, 795 (App. 

1993). Thus, if a victim’s “loss results from the concurrence of some causal 

event other than the defendant’s criminal conduct, the loss is indirect and 

consequential and cannot qualify for restitution under Arizona’s statutes.” 

State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002).

¶10 Here, K.S. testified he hired an attorney, J.C., so he could 

“understand all of the legal aspects” of the situation the Company found 

itself in. J.C. testified at the restitution hearing and submitted a billing 

statement, which the superior court admitted into evidence, that consisted 

of 59 entries of time billed on the case; each entry briefly described the work 

performed. After reviewing these entries, and based on the testimony, it 

appears J.C.’s legal services fell into three general categories. 

¶11 First, it appears J.C. worked with the Company and its owners 

to help the Company recover restitution by, for example, helping them

demonstrate and document the losses the Company had experienced. The 

fees for these services qualify as a loss recoverable as restitution and are 

distinguishable from the fees we held were improperly included in

restitution in Slover. 220 Ariz. at 243, ¶ 8, 204 P.3d at 1092. In Slover, we 

held that an attorney’s fees were “consequential rather than direct damages 

arising from” the defendant’s crime, and thus not recoverable as restitution 

when the attorney “had worked to assure that evidence was properly 

preserved” for the prosecutor’s use in prosecuting the underlying crime. Id.

at 243, ¶¶ 7-8, 204 P.3d at 1092. Unlike the situation in Slover, here J.C. did 

not assist in preserving evidence for use in prosecuting the underlying 

criminal damage charge, but instead provided legal services to the 

Company to help it prove its losses for purposes of restitution. Cf. State v. 

Leteve, 237 Ariz. 516, 530-31, ¶ 59, 354 P.3d 393, 407-08 (2015) (assuming that 

attorneys’ fees incurred by crime victims in enforcing their victims’ rights 

is compensable in restitution, trial court did not abuse its discretion in 

including such fees in restitution order). 

¶12 Second, it appears J.C. evaluated a possible tort claim against 

Corey, the other two juveniles, and their parents. These services are too 

attenuated from Corey’s criminal conduct to be properly included as 

restitution because the services were provided in anticipation of the 

Company possibly bringing a separate legal action against the juveniles and 

their parents. Although the Company would not have incurred these fees 

but for Corey’s criminal offense, “but for” causation cannot support 

restitution, otherwise it would extend to consequential damages. Wilkinson, 

202 Ariz. at 29, ¶ 7, 39 P.3d at 1133. And, these fees “would not have 
IN RE COREY K.

Decision of the Court

6

occurred without the concurrence of a second causal event”—the 

Company’s decision to consider a civil action against the juveniles and their 

parents. Id. at 29, ¶ 10, 39 P.3d at 1133. The superior court should not have 

included the fees for these services in its restitution order.

¶13 Third, it appears J.C. provided legal services to assist the 

county attorney in pursuing restitution. Insofar as J.C. was providing legal 

services to the county attorney, “it is clear the attorney’s representation of 

the victim . . . consisted of tasks that were actually the state’s responsibility,” 

and “those attorney fees were not incurred as a direct result of the offenses” 

Corey committed. Slover, 220 Ariz. at 243, ¶ 9, 204 P.3d at 1092; see also State 

v. Streck, 221 Ariz. 306, 308, ¶ 10, 211 P.3d 1290, 1292 (App. 2009) (restitution 

inappropriate for expenses incurred by victim of stolen tractor in 

investigating and locating the tractor because such tasks were State’s 

responsibility, and private costs associated with those tasks were 

consequential damages). When an attorney acts “in the role of an adjunct 

prosecutor,” assisting the State with the prosecution, the fees for such work 

do “not flow directly from the defendant’s criminal conduct but rather 

[arise] from either the state’s inability to prosecute the case independently 

and competently or the [victim’s] mistrust that it would do so.” Slover, 220 

Ariz. at 243, ¶ 8, 204 P.3d at 1092. The superior court should not have 

included the fees for these services in its restitution order.
IN RE COREY K.

Decision of the Court

7

¶14 For the foregoing reasons, we affirm the superior court’s 

decision to include the Company’s lost revenues in its restitution order. 

Nevertheless, because the superior court included all of the Company’s 

attorneys’ fees in the restitution order even though not all of the fees were 

directly caused by Corey’s criminal conduct, we vacate the superior court’s 

restitution order and remand to the superior court to re-determine the fees 

for legal services directly caused by Corey’s criminal conduct. After redetermining the legal fees which may be included in the restitution order, 

the superior court shall re-enter the restitution order.

3

 

3In supplemental briefing authorized by this court to address 

whether the superior “court may subject Corey’s parents to joint and 

several liability for the restitution above the liability limit established 

pursuant to A.R.S. §§ 8-344(C) (2014), 12-661(B) (2016),” Corey argued, and 

the State agreed, that the superior court exceeded its statutory authority 

when it ordered Corey’s parents to be jointly and severally responsible for 

restitution in an amount exceeding $10,000. Because we have vacated the 

restitution order, we do not need to address the Company’s argument that 

the superior court’s order is final and conclusive regarding Corey’s parents’

joint and several liability. On remand, the superior court shall enter an 

order holding Corey’s parents jointly and severally liable for the restitution 

it orders for Corey’s criminal offense not to exceed $10,000. See A.R.S. §§ 8-

344(C) and 12-661(B).