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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER T. DAY, an unmarried individual, Plaintiff/Appellant,

v.

JESSIE FRANCES ARMENDT, Defendant/Appellee.

No. 1 CA-CV 15-0264

Appeal from the Superior Court in Maricopa County

No. CV2013-092659

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

The Collins Law Firm, PLLC, Mesa

By Ernest Collins, Jr.

Counsel for Plaintiff/Appellant

Riviere Law Group, PLLC, Phoenix

By Roger W. Riviere

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.
DAY v. ARMENDT

Decision of the Court

2

W I N T H R O P, Presiding Judge:

¶1 Plaintiff, Christopher T. Day, appeals the trial court’s 

judgment in favor of Defendant, Jessie Frances Armendt, on Day’s 

negligence complaint seeking damages arising from a car accident. Day 

raises several issues, which we address in turn. For the following reasons, 

we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 On April 9, 2012, Day was involved in a multi-car accident on 

the I-10 freeway in Phoenix. Day sued Armendt, alleging she had 

negligently caused the accident and resulting damages. Day asserted

Armendt had triggered a five-car chain-reaction accident when Armendt’s

vehicle (the No. 1 car) skidded into the car directly in front of her (the No. 

2 car), which rear-ended a car driven by William Murray (the No. 3 car), 

which rear-ended the car driven by Day (the No. 4 car), which rear-ended 

a fifth car (the No. 5 car).

¶3 Within minutes after the accident, despite stopping briefly, 

the drivers of the Nos. 1 (Armendt), 2, and 5 cars all drove away without 

exchanging insurance or other information with any other driver. Neither 

the driver of the No. 2 car nor the driver of the No. 5 car could later be 

identified. Arizona Department of Public Safety (“DPS”) officers, however, 

located Armendt through her vehicle license number and, a few hours after 

the accident, interviewed her at her home. Armendt admitted her vehicle

had struck the No. 2 car and she had then driven away, but explained she 

had left the accident scene only after the driver of the No. 2 car had told her

he did not wish to exchange information, advised her he had not struck the 

No. 3 car as a result of being rear-ended by her, and then drove away.

¶4 Day filed a negligence complaint against Armendt on March 

15, 2013, and Armendt defended by denying she was negligent, or had 

caused or contributed to the portion of the accident involving Day. Instead, 

she asserted her collision with the No. 2 car was a separate accident that 

occurred when her vehicle bumped into the No. 2 car immediately after an 

accident involving either the Nos. 2 through 5 or 3 through 5 cars.

 

1 In general, we view the facts and inferences therefrom in the light 

most favorable to affirming the verdict. See Paul Schoonover, Inc. v. Ram 

Constr., Inc., 129 Ariz. 204, 205, 630 P.2d 27, 28 (1981).
DAY v. ARMENDT

Decision of the Court

3

¶5 A September 2013 compulsory arbitration hearing resulted in 

the arbitrator finding in favor of Armendt. Day appealed the arbitration 

decision and moved to set the matter for a trial de novo before a jury. As 

relevant to this appeal, at trial, Day testified and presented testimony from 

DPS Officer Steven Jarol (the officer who arrived on the scene shortly after 

the accident and later tracked down and interviewed Armendt), and 

Murray (the driver of the No. 3 car). Officer Jarol testified he had prepared 

a brief police report of the accident based on his personal observations of 

the damage to the cars driven by Day, Murray, and Armendt and 

statements he obtained from each of those drivers. He did not take any 

photographs of the vehicles or make any measurements.

¶6 Day’s witnesses acknowledged they had not seen Armendt 

cause the accident, and none of Day’s witnesses could state with certainty

that Armendt had done so. Indeed, although Officer Jarol testified he 

believed at the time he made his report that the accident was an “accordion 

domino type” of accident, with “one hitting two, hitting three, hitting four, 

hitting five,” he acknowledged his belief rested on what Day, Murray, and 

Armendt had told him and what he had observed, and that he had not been 

able to speak to the missing drivers. And, on cross-examination, Day 

himself conceded he had not seen “what was going on behind [him],” and 

agreed it was a “fair statement” for defense counsel to say that “all you 

know is you were hit from behind.”

¶7 The jury returned a unanimous verdict, finding in favor of 

Armendt. The trial court issued a signed judgment reflecting the jury’s 

verdict and awarded Armendt taxable costs in the amount of $1,530.20 plus 

$19,629.00 as sanctions pursuant to Rule 77 of the Arizona Rules of Civil

Procedure. The court also denied Day’s motion for new trial.

¶8 We have jurisdiction over Day’s appeal pursuant to Arizona 

Revised Statutes (“A.R.S.”) section 12-2101(A)(1) (2016).

2 See also A.R.S. 

§ 12-2102(B) (2016) (“If a motion for new trial was denied, the court may, 

on appeal from the final judgment, review the order denying the motion 

although no appeal is taken from the order.”).

 

2 We cite the current version of all statutes unless changes material to 

our analysis have occurred since the events leading to the underlying 

lawsuit.
DAY v. ARMENDT

Decision of the Court

4

ANALYSIS

I. Trial Court’s Order Striking Day’s Expert Witness

¶9 Day first argues the trial court abused its discretion when, 

before trial, it granted Armendt’s motion to strike his proposed expert 

accident reconstruction witness under former Arizona Rule of Civil 

Procedure 77(g)(1).

3 We disagree.

¶10 We review a trial court’s ruling on discovery and disclosure 

matters and the admissibility of evidence for an abuse of discretion. Link v. 

Pima Cty., 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998). We will not 

disturb the court’s ruling absent a clear abuse of discretion and resulting 

prejudice. Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980). 

Similarly, we review a trial court’s denial of a motion for new trial for an 

abuse of discretion. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162, ¶ 8, 

357 P.3d 1216, 1218 (App. 2015). We defer to the court’s factual findings 

unless they are clearly erroneous, and we review de novo the interpretation 

and application of statutes and rules. See id. “A trial court abuses its 

discretion if it commits an error of law.” Id. (citation omitted).

¶11 Rule 77 governs the appeal of cases initially subject to 

compulsory arbitration. Former Rule 77(g)(1) required a party appealing 

from an arbitration award to file simultaneously with the notice of appeal

a list of witnesses and exhibits “intended to be used at trial that complies 

with the requirements of” Arizona Rule of Civil Procedure 26.1.

4 See 

generally Cosper v. Rea ex rel. Maricopa Cty., 228 Ariz. 555, 556, ¶¶ 5-7, 269 

P.3d 1179, 1180 (2012) (discussing disclosure obligations under former Rule 

77(g)(1)); see also current Rule 77(f)(2), (4). In turn and as relevant here, Rule 

26.1(a)(6) requires a party to disclose “the substance of the facts and 

 

3 Effective January 1, 2017, Rule 77 was amended. Former subsection 

(g), entitled “Discovery and Listing of Witnesses and Exhibits,” was 

amended, and the amended version, entitled “Discovery and Listing of 

Witnesses and Exhibits on Appeal,” may be found at subsection (f) of 

current Rule 77. The amendments to Rule 77, although noted, do not affect 

our resolution of this appeal, and we generally refer to the version of the 

rule in effect at the time of the trial court’s rulings throughout this decision.

4 The language of Rule 26.1 was also amended, effective January 1, 

2017. Again, the amended language does not affect our analysis.
DAY v. ARMENDT

Decision of the Court

5

opinions to which the expert is expected to testify, a summary of the 

grounds for each opinion,” and the expert witness’s qualifications.

¶12 Day appealed the arbitration award on October 25, 2013, and 

simultaneously filed a list of witnesses and exhibits. Although Day’s 

witness list identified the subject expert (Michael S. Broughton, Accident 

Reconstruction Associates) as a trial witness, Day did not make any of the 

substantive disclosures required by Rule 26.1(a)(6). Accordingly, the trial 

court correctly found that Day had failed to satisfy the disclosure

requirements of Rule 77.

¶13 Day next argues that even if he failed to comply with Rule 77, 

the trial court abused its discretion in not allowing him to supplement his 

trial witnesses with the expert for good cause under former Rule 77(g)(4). 

See also current Rule 77(f)(6). Former Rule 77(g)(4) (now current Rule 

77(f)(6)) authorized a trial court to allow a party who failed to comply with 

Rule 77 to file a supplemental list of witnesses and exhibits if that party 

demonstrated good cause. See also Cosper, 228 Ariz. at 557, ¶ 12, 269 P.3d at 

1181. As we understand his argument, Day argues he demonstrated good 

cause because Armendt failed to timely disclose relevant information to 

him before and after the arbitration hearing, and accordingly, without this 

information, his expert could not render an expert opinion about the cause 

of the accident before the expiration of Rule 77’s disclosure deadline 

requirements. In making this argument, Day principally focuses on a 

recorded statement Armendt gave to her insurance carrier. To address 

Day’s argument, we examine the relevant pretrial procedural history of this 

case.

¶14 On April 11, 2012—two days after the subject accident—Day 

provided a recorded statement to Farmers Insurance Company

(“Farmers”), Murray’s insurance carrier. On April 11 and June 15, 2012, 

Murray provided recorded statements to Farmers and to Progressive 

Insurance Company (“Progressive”), Armendt’s insurance carrier. 

Armendt also provided a recorded statement to Progressive.

5 In her 

statement, Armendt disclosed that, approximately one week before the 

accident involving Day, she and her car had been in another accident 

involving a friend’s vehicle (the “prior accident”); she had damaged the 

hood of her car in the prior accident; in the accident involving Day, she had 

“clipped” the car in front of her (the No. 2 car) when the driver of that car

slammed on his brakes; the driver of the car in front of her told her he had 

 

5 The record does not reflect when Armendt gave her recorded 

statement.
DAY v. ARMENDT

Decision of the Court

6

not hit anyone and he did not need her information, and he then drove off; 

and because “[t]here didn’t seem to be any new damage to [her] car,” she 

drove off as well. She also disclosed she had replaced the hood of her car 

with a hood from a local junkyard, and discarded the damaged hood at the 

junkyard.

¶15 On June 11, 2013, Armendt provided Day with her initial Rule 

26.1 Disclosure Statement. In the statement, Armendt denied being 

negligent in any manner, and denied she had caused, contributed to, or was 

involved in the accident involving Day. Armendt also stated she was “not 

aware of any recorded statements,” but “reserve[d] the right to supplement 

any additional recorded statements if discovered.”

¶16 On July 8, 2013—two days before Day and Murray were 

deposed—Armendt prepared her First Supplemental Rule 26.1 Disclosure 

Statement. That statement also failed to disclose the existence of the various 

recorded statements of Day, Murray, or Armendt.

¶17 On July 10, 2013, Armendt deposed Day and Murray. During 

the depositions, Day’s counsel was given the recorded statements of Day 

and Murray, and given the opportunity to ask questions of Day and 

Murray.

6 The deposition testimony of Day and Murray was not materially 

different from what they had said in their recorded statements.

7

 

6 The record does not reflect that Day ever attempted to depose 

Armendt, even though Armendt had denied causing Day’s accident.

7 Day argued in his subsequent (November 12, 2013) motion to strike 

Armendt’s answer and for Rule 37 sanctions that Armendt’s failure to 

disclose the recorded statements “allowed [Armendt] the ‘element of 

surprise’ and precluded [Day] and Mr. Murray, who was represented by 

counsel at the deposition[,] from being properly prepared to answer 

questions about the recorded statements.” Nevertheless, neither counsel 

for Day or Murray objected on this basis at the depositions or expressed on 

the record surprise at the recorded statements’ existence. Further, Day was 

not asked about his recorded statement at his deposition, and Murray 

stated he had prepared for his deposition in part by reviewing his recorded 

statement to Farmers, but he had not reviewed the recorded statement he 

gave to Progressive; however, he reviewed that statement at his deposition 

and agreed that it accurately described his recollection of the events related 

to the accident.
DAY v. ARMENDT

Decision of the Court

7

¶18 On July 12, 2013, Armendt prepared her Second 

Supplemental Rule 26.1 Disclosure Statement, and disclosed the recorded 

statements of Day and Murray, but not her own recorded statement. On

July 15, 2013, Day mailed his “Plaintiff’s First Set of Requests for Production 

of Documents” to Armendt, requesting among other things, 

“[t]ranscriptions of all oral, written, or recorded statements by any party or 

witness regarding any matter which is the subject of this case.”

¶19 On July 19, 2013, Armendt submitted her Third Supplemental 

Rule 26.1 Disclosure Statement. Armendt attached the recorded and 

transcribed statements of Day and Murray, but stated she was “not aware 

of any additional recorded statements.”

¶20 On August 30, 2013, Armendt submitted her “Arbitration 

Memorandum” to the arbitrator. In her memorandum, she again denied 

causing or contributing to Day’s accident. Although she acknowledged her 

car had “made contact with [an] unknown driver that left the scene of the 

accident,” she asserted there was no evidence that her accident, that is, her 

contact with the unknown driver, had “resulted in a chain of events that 

resulted in the impact that involved [Day’s] vehicle.” She also argued Day 

could not produce any evidence she had caused the accident involving Day:

Both [Day] and Mr. Murray have already been 

deposed and neither one of them is able to testify what events

or even order of events took place between the vehicle being 

driven by Ms. Armendt and the vehicle being driven by the 

unknown driver [of the No. 2 car]. Additionally, [Day] has 

not presented any witnesses or experts that can establish the 

sequence of impacts.

. . . .

It is undeniable that neither [Day] nor Mr. Murray will 

be able to testify about what happened behind them as they 

have already testified under oath that they did not see what 

occurred. Lastly, any police report regarding the sequence of 

events is merely hearsay as the officer did not observe what 

occurred and solely took the information from the parties that 

remained at the scene of the accident. As such, [Day] will be 

unable to meet his burden of proof in this matter.

¶21 The arbitrator held the arbitration hearing on September 3, 

2013. The record does not contain a transcript of the evidence presented at

the hearing, although it appears from the arbitrator’s “Notice of Decision” 
DAY v. ARMENDT

Decision of the Court

8

that only Day and Armendt testified at the hearing. According to what Day 

later told the trial court, at the arbitration hearing, Armendt testified she 

had been in the prior accident, and the damage to her car that Officer Jarol 

saw when he interviewed her had been caused in the prior accident, not in 

the accident with Day. Day also told the court Armendt had not disclosed 

these facts to him before the arbitration hearing, and that he had not 

received a copy of Armendt’s recorded statement until September 5, 2013, 

when he received Armendt’s Fourth Supplemental Rule 26.1 Disclosure 

Statement in the mail,

8 and Armendt responded to his July 2013 document 

requests.9

¶22 The arbitrator found in Armendt’s favor and mailed his 

“Notice of Decision” to the parties and the court administrator’s arbitration 

department on September 3, 2013.

10 The arbitrator later entered the 

arbitration award in Armendt’s favor, dated October 6, 2013.11

¶23 On September 16, 2013, Day issued interrogatories and 

document requests to Armendt, asking for information and documents that 

would confirm her assertion she had been involved in the prior accident.

¶24 On October 25, 2013, before Armendt’s responses to the 

discovery requests were due, Day appealed the arbitration decision, moved 

to set the matter for trial, and filed his list of witnesses (which included his 

expert witness, Broughton) and exhibits. Day also supplemented his Rule 

26.1 disclosure statement with his Second Supplemental Rule 26.1 

Disclosure Statement, wherein he disclosed that Broughton would “give 

testimony about how the accident occurred, the forces involved, etc.”

 

8 Armendt’s Fourth Supplemental Rule 26.1 Disclosure Statement was 

mailed September 3, 2013.

9 The record does not contain a copy of Armendt’s responses to Day’s 

July 2013 document requests; according to Day, Armendt claimed she 

mailed her responses on August 25, 2013.

10 The arbitration department received the decision on September 6, 

and it was filed with the superior court on September 9, 2013.

11 The arbitration award is not contained in the record on appeal, but 

Day included it as an appendix to his reply brief and Armendt did not move 

to strike it.
DAY v. ARMENDT

Decision of the Court

9

¶25 On October 31, 2013—the day Armendt’s responses to Day’s 

discovery were due—instead of timely providing responses to Day’s 

discovery requests, Armendt’s counsel wrote a letter to Day’s counsel 

asking for a more detailed description of Broughton’s opinion in 

accordance with Rules 26.1 and 77. Armendt finally responded to Day’s 

September 2013 discovery requests on November 18, 2013,12 but was unable 

to produce any information or documents that would substantiate her 

assertion she had been in the prior accident.

¶26 On November 19, 2013, Armendt moved to strike Broughton 

as an expert witness, based on Day’s noncompliance with Rules 26.1 and 

77. Two days later, counsel for Armendt deposed Officer Jarol. In his 

deposition, Officer Jarol acknowledged he had not personally observed the 

April 9, 2012 accident, and that everything he generated in his report had 

come from “somebody else.” He further conceded he had no evidence to 

support his belief that the accident involving Day occurred as the result of 

a “domino effect” beginning with the No. 1 car hitting the No. 2 car.

¶27 On December 9, 2013, Day sent to Armendt his Third 

Supplemental Rule 26.1 Disclosure Statement, wherein he disclosed that his 

expert witness, Broughton, would testify that he agreed “with Officer 

Jarol’s accident report that [Armendt] struck the vehicle in front of her 

(Vehicle 2) and pushed that vehicle into Mr. Murray’s vehicle, which Mr. 

Broughton believes was still moving at an unknown rate of speed. Vehicle

2 pushed Mr. Murray’s vehicle into [Day’s] vehicle.” Day also 

acknowledged that “Mr. Broughton is unable to estimate the speeds or 

forces involved in this collision.”

¶28 On January 10, 2014, two weeks before oral argument on 

Armendt’s motion to strike, Day filed his expert’s report with the court. 

After explaining that he had reviewed Officer Jarol’s report, all of the 

depositions, recorded statements, and photographs of the cars driven by 

Day, Murray, and Armendt, the expert (Broughton) explained he agreed 

with Officer Jarol: “The investigating officer, based on his training and 

experience as well as his investigation of the collision, concluded that the 

chain reaction began when Ms. Armendt struck the rear of the vehicle 

ahead of her, pushing it into Mr. Murray’s vehicle. [I] would concur that, 

based on reviewing all of the available data, that this is, in fact, a chain 

reaction rear end collision.” Notably, Broughton did not present any 

specific analysis or calculations relevant to the case. Instead, he 

 

12 The record does not contain a copy of Armendt’s discovery 

responses, but she did not dispute the timing of her responses.
DAY v. ARMENDT

Decision of the Court

10

summarized statements contained in the materials he had reviewed, noted 

that Armendt’s recorded statement had been taken after she had replaced 

the hood of her car, and stated that because the photographs of Armendt’s 

car produced in the case had been taken after she had replaced the hood, 

Day had “been denied the ability to inspect or photograph [Armendt’s]

vehicle, or to see any photographs showing [Armendt’s] vehicle, in the 

condition observed by [Officer Jarol].”

¶29 At the conclusion of the January 24, 2014 oral argument on the 

motion to strike (and competing motions for sanctions), the trial court 

granted Armendt’s motion to strike Day’s expert witness, Broughton.13

¶30 Based on the foregoing procedural history, we agree with Day 

that Armendt failed to timely disclose her recorded statement before the 

arbitration hearing. We also agree with Day that, if Armendt had done so, 

he would have known before the arbitration hearing that she was asserting 

she had been in the prior accident and had replaced the hood of her car. 

And, we agree with Day the record reflects that not until the arbitration 

hearing did he learn Armendt was asserting the damage to her car that 

Officer Jarol saw when he interviewed her had been caused in the prior 

accident, not in the accident with Day. But, we disagree that these late 

disclosures and Armendt’s additional failure to timely respond to Day’s 

discovery requests after he appealed, see supra ¶ 24, deprived Day of

information his expert needed to reach an expert opinion about the cause 

of the accident before the Rule 77 deadline expired, and thus, we disagree 

that Day had shown good cause under (former) Rule 77(g)(4). See current 

Rule 77(f)(6).

¶31 As of the date of the arbitrator’s decision and certainly no later 

than September 5, 2013, when Day received Armendt’s recorded statement, 

see supra ¶ 21, Day knew Armendt was asserting she had been in the prior 

accident, had replaced the hood of her car, and that the damages to her car 

as seen by Officer Jarol had been caused in the prior accident. Day also 

knew from Armendt’s recorded statement, that “evidence of what [her] car 

looked like immediately after the accident [was unavailable] because [the 

car had] already been repaired.” Further, even if we assume Day did not 

know as of September 5, 2013, that Armendt could not produce any 

information or documents supporting her assertion that she had been in the 

prior accident, see supra ¶ 24, this material would not have assisted Day’s 

 

13 The trial court also granted Day’s motion to strike Armendt’s offer 

of judgment as a sanction against Armendt. See Ariz. R. Civ. P. 68.
DAY v. ARMENDT

Decision of the Court

11

expert in determining who had caused the accident involving Day.

14

Indeed, when Day’s expert finally issued his report, he did not even refer 

to Armendt’s post-appeal discovery responses. Finally, in his report, Day’s 

expert simply agreed with Officer Jarol, and reached no independent 

conclusions regarding the cause of the accident based on any information 

Armendt had failed to disclose before September 5, 2013. As noted, Day 

did not appeal the award until October 25, 2013. Given this and the 

information available to Day as of September 5, 2013, we cannot say the trial 

court abused its discretion in finding Day had not demonstrated good cause 

under Rule 77.

¶32 In denying Day’s motion for new trial, the trial court 

addressed the argument Day has essentially raised on appeal—that it

deprived him of a fair trial when it struck his expert. The trial court found 

Day had not been deprived of a fair trial, and we agree with its analysis:

Day fails to demonstrate that he was deprived of a fair 

trial after the Court precluded his accident reconstructionist. 

Day focuses on the reason for his delay in disclosing opinions. 

Before arbitration, Armendt did not disclose that she had 

been in a prior accident. She disclosed this information for 

the first time at arbitration. After arbitration, she failed to 

timely respond to Day’s discovery regarding the prior 

accident. On September 16, Plaintiff disclosed an accident

reconstructionist, Broughton, but with only a general 

description of Broughton’s anticipated testimony: “He will 

give testimony about how the accident occurred, the forces 

involved, etc.”[15] Day also sent Armendt discovery regarding 

the earlier accident. He argues that, because Armendt 

 

14 As counsel for Armendt explained to the trial court during oral 

argument on the motion to strike, “an accident [r]econstructionist[‘s]

purpose and use is to help define what happened in this accident. Whether 

or not he had any information from a prior accident is so irrelevant, it makes 

no sense. He doesn’t need that information with respect to the other 

accident.”

15 As previously noted, see supra ¶ 24, Day submitted this information 

in his Second Supplemental Rule 26.1 Disclosure Statement—dated October 

25, 2013—the same day he appealed from the arbitration decision, moved 

to set the matter for a trial de novo before a jury, and filed his list of witnesses 

and exhibits.
DAY v. ARMENDT

Decision of the Court

12

delayed in responding, he could not timely disclose 

Broughton’s opinions.

The reason for Day’s delay is not the issue. The issue 

for the Court now is whether the expert’s absence deprived 

Day of a fair trial. Day fails to show that it did. . . .

. . . [G]iven what the record does show regarding 

Broughton’s opinions, the Court cannot find that Broughton’s

absence deprived Day of a fair trial. According to Day’s 

Response to the Motion to Strike, Broughton would have 

testified “that he agrees with Officer Jarol’s accident report 

that [Armendt] struck the vehicle in front of her (Vehicle 2) 

and pushed that vehicle into Mr. Murray’s vehicle, which Mr. 

Broughton believes was still moving at an unknown rate of 

speed. Vehicle 2 pushed Mr. Murray’s vehicle into [Day’s]

vehicle.” . . . Officer Jarol testified at trial. He gave his 

conclusion regarding the accident based on his investigation. 

Since Broughton would have agreed with Jarol, and Jarol 

testified, the jury heard the essence of Broughton’s opinion. 

Jarol covered it. If there was more to Broughton’s anticipated 

testimony, it is not before the Court.

¶33 The record supports the trial court’s analysis. Although we 

do not condone Armendt’s disclosure and discovery failures, the trial court 

did not abuse its discretion in concluding Day had failed to comply with 

Rule 77’s disclosure requirements.

II. Attorneys’ Fees

¶34 Day argues the attorneys’ fees awarded to Armendt—who 

was represented by her insurer’s in-house counsel—as a sanction under 

former Rule 77(f) were without foundation or legal basis and were not 

reasonable and should not have been awarded. We disagree.

¶35 “An appellate court is somewhat unsuited for the fact-finding 

inquiry which is frequently necessary to properly determine reasonable 

fees for legal services rendered.” Granville v. Howard, 236 Ariz. 29, 32, ¶ 13, 

335 P.3d 551, 554 (App. 2014) (quoting Schweiger v. China Doll Rest., Inc., 138 

Ariz. 183, 189, 673 P.2d 927, 933 (App. 1983)). Accordingly, “[a]n award of 

attorney fees is left to the sound discretion of the trial court and will not be 

reversed on appeal absent an abuse of discretion.” Orfaly v. Tucson 

Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App. 2004) 
DAY v. ARMENDT

Decision of the Court

13

(citations omitted). “We will not disturb the trial court’s discretionary 

award of fees if there is any reasonable basis for it.” Id. (citations omitted).

¶36 The imposition of sanctions in a civil action is separate and 

exclusive from the statutory recovery of costs under A.R.S. § 12-341 as a 

successful party to a civil action. See generally Davis v. Disc. Tire Co., 182 

Ariz. 571, 574-75, 898 P.2d 520, 523-24 (App. 1995). Former Rule 77(f), Ariz. 

R. Civ. P., provided in part as follows:

If the judgment on the trial de novo is not more favorable by at 

least twenty-three percent (23%) than the monetary relief, or 

more favorable than the other relief, granted by the 

arbitration award or other final disposition, the court shall 

order the deposit to be used to pay, or that the appellant pay 

if the deposit is insufficient, the following costs and fees 

unless the court finds on motion that the imposition of the 

costs and fees would create such a substantial economic 

hardship as not to be in the interests of justice:

. . . .

(2) to the appellee, those costs taxable in civil actions 

together with reasonable attorneys’ fees as determined by the 

trial judge for services necessitated by the appeal . . . .

[16]

¶37 The language of former Rule 77(f) was mandatory—it stated

the court “shall” order payment17—unless “a substantial economic 

hardship” existed. “The purpose of [former] Rule 77(f) is similar to that of 

Rule 68(g)—to encourage settlement and avoid needless litigation.” 

 

16 Compare former Ariz. R. Civ. P. 77(f) (above), with current Ariz. R. 

Civ. P. 77(h) (“If the judgment on the trial de novo is not at least 23 percent 

more favorable than the monetary relief or other type of relief granted by 

the arbitration award, the court must order that the deposit on appeal be 

used to pay the following costs and fees: . . . (2) to the appellee, those costs 

taxable in civil actions together with reasonable attorney’s fees as 

determined by the trial judge for services necessitated by the appeal . . . . If 

the deposit is insufficient to pay those costs and fees, the court must order 

that the appellant pay them, unless the court, on motion, finds that 

imposing costs and fees would create a substantial economic hardship that 

is not in the interests of justice.”).

17 Similarly, current Rule 77(h) states the court “must” order payment.
DAY v. ARMENDT

Decision of the Court

14

Bradshaw v. Jasso-Barajas, 231 Ariz. 197, 199, ¶ 7, 291 P.3d 991, 993 (App. 

2013) (citation omitted). “Both rules provide a common-sense approach to 

analyzing the offer of judgment, arbitration award, final judgment and any 

sanctions.” Id. at 200, ¶ 9, 291 P.3d at 994. A non-exclusive list of factors 

trial courts should consider when making such awards under Rule 77

includes: (1) whether the appeal from arbitration was filed in good faith or 

was pursued to delay the proceedings, unduly burden the opposing party, 

or coerce capitulation based upon superior financial resources; (2) how 

close the appealing party came to meeting the twenty-three percent 

standard; (3) the amount in controversy; (4) whether post-arbitration 

litigation could have been avoided or settled; (5) whether failure to improve 

on the arbitration award by the required percentage may be attributable to 

evidence introduced at the trial de novo of post-arbitration damages; (6) the 

amount of fees the requesting party is obligated to pay his or her lawyer; 

and (7) whether the requested fees were necessarily incurred or whether it 

appears that some fees were generated because of the prospect of a feeshifting award under Rule 77. Granville, 236 Ariz. at 32, ¶ 11, 335 P.3d at 

554. No single factor governing a request for attorneys’ fees at a trial de novo

following compulsory arbitration is dispositive, and the weight to be given 

each factor will vary from case to case. Id. at ¶ 12.

¶38 In addressing Armendt’s motion for sanctions and costs, the 

trial court made clear it had considered the non-exclusive list of factors 

provided in Granville, explaining in part as follows:

The Court finds that Armendt is entitled to recover fees 

and costs as sanctions pursuant to Rule 77. [Day] appealed 

the arbitrator’s defense verdict. The jury found in favor of 

Armendt also. [Day] did not do 23% better at trial, as required 

by Rule 77 to avoid the imposition of sanctions.

[Day] does not present facts to support a claim of 

financial hardship.

[Day] objects to [d]efense counsel’s hourly rate but 

provides no evidence to support the assertion that the rate is 

unreasonable.

The Court finds that the billing ledger attached to the 

Revised Carrow Verification is sufficiently detailed to show 

the services rendered and that the charges were reasonable.

While not argued by Day, the Court has evaluated 

whether 90.7 hours is reasonable to prepare a case that went 
DAY v. ARMENDT

Decision of the Court

15

to arbitration for a two-day trial. After arbitration, Armendt 

deposed Officer Jarol. The deposition was reasonable in light 

of [Day’s] disclosure of Jarol as a witness regarding the 

accident. [Armendt] also provided some discovery responses 

and filed a motion for summary judgment. Both sides filed 

motions to strike and motions in limine. None of this work 

was unreasonable, although, in the Court’s view, both sides 

applied a large effort to a case that should have settled. Even 

so, Day pressed the case to trial by filing an appeal, and 

Armendt did not act unreasonably in preparing for trial.

Armendt’s costs are reduced [to] $1,535.20. The 

arbitration hearing transcript is not a recoverable expense 

under A.R.S. § 12-332.

¶39 We find no abuse of the trial court’s discretion. Although Day 

argues Armendt was represented by her insurer’s in-house counsel as part 

of their contractual relationship under Armendt’s insurance policy, that 

was but one factor for the trial court to consider, and Day has cited no

authority precluding the trial court from awarding attorneys’ fees on this 

basis. The trial court considered Day’s failure to improve on the arbitration 

award, the potential financial hardship claimed by Day, the reasonableness 

of the charges, including counsel’s hourly rate and the time expended, and 

the sufficiency of the detail in the billing ledger. The court also considered 

Day’s response opposing the request, as evidenced by the court’s decision 

to reduce Armendt’s awardable costs by the amount of the arbitration 

hearing transcript, as well as the sides’ failure to settle.

18 On this record, the 

 

18 Moreover, Day’s reliance on Lacer v. Navajo County, 141 Ariz. 392, 687 

P.2d 400 (App. 1984), as a basis for requiring Armendt’s counsel to file an 

amended “Motion for Sanctions and Costs” is misplaced. Lacer, which 

involved attorneys’ fees sought by a governmental organization (Navajo 

County) after successfully defending a lawsuit arising out of contract, dealt 

with a fee award under A.R.S. § 12-341.01, which specifically states in part 

that the amount awarded “not exceed the amount paid or agreed to be 

paid.” Id. at 396, 687 P.2d at 404 (quoting A.R.S. § 12-341.01(B)). The 

attorneys’ fees statute in this case is A.R.S. § 12-133(I)(2) (2016), which does 

not contain the same restriction. See State ex rel. Corbin v. Tocco, 173 Ariz. 

587, 593-94, 845 P.2d 513, 519-20 (App. 1992) (distinguishing Lacer and 

concluding the trial court did not err in applying a prevailing market rate 

rather than a cost-based rate for an attorneys’ fees request). Further, 

Armendt’s counsel provided the trial court with a supporting verification 
DAY v. ARMENDT

Decision of the Court

16

trial court acted well within its discretion in awarding sanctions pursuant 

to former Rule 77(f).

III. Motion In Limine – Nonparty at Fault

¶40 Day argues that, although the trial court granted his motion 

in limine precluding Armendt’s nonparty at fault designation, counsel for 

Armendt violated the court’s order by arguing in closing that a nonparty, 

the “unknown driver” of the No. 2 car—and not Armendt—was at fault for 

causing the accident.

¶41 Courts generally give counsel wide latitude in closing 

argument, allowing counsel to comment on the evidence and argue all

reasonable inferences from it. Ritchie v. Krasner, 221 Ariz. 288, 303-04, ¶ 54, 

211 P.3d 1272, 1287-88 (App. 2009) (citations omitted). “We will grant a new 

trial because of attorney misconduct in only the most serious cases in order 

to prevent a miscarriage of justice.” Id. at 303, ¶ 52, 211 P.3d at 1287 (citation 

omitted). “The trial judge is in the best position to ‘decide whether []

misconduct materially affected the rights of the aggrieved party.’” Id.

(citations omitted). “We will not overturn a trial court’s decision absent an 

abuse of discretion.” Id. at ¶ 51 (citation omitted).

¶42 Under the comparative fault system, a defendant in a 

negligence action is liable only for his or her own fault, and the finder of 

fact is required to determine the relative percentages of fault among all 

those who contributed to the injury. Bowen Prods., Inc. v. French, 231 Ariz. 

424, 427 n.3, ¶ 10, 296 P.3d 87, 90 n.3 (App. 2013) (citing Scottsdale Ins. Co. v.

Cendejas, 220 Ariz. 281, 285, ¶ 18, 205 P.3d 1128, 1132 (App. 2009); A.R.S. 

§ 12–2506(B)). The purpose of the rule requiring defendants to give notice 

of any nonparty at fault19 is “to identify for the plaintiff any unknown 

persons or entities who may have caused [an alleged] injury in time to allow 

the plaintiff to bring them into the action before the statute of limitations 

expires.” Scottsdale Ins. Co., 220 Ariz. at 286, ¶ 18, 205 P.3d at 1133 (quoting 

LyphoMed, Inc. v. Superior Court, 172 Ariz. 423, 428, 837 P.2d 1158, 1163 (App. 

1992)).

¶43 In this case, on May 17, 2013—several months before the 

September 2013 arbitration hearing—Armendt filed a Notice of Non-Party 

 

and reasonable basis for its hourly rates and overall request for attorneys’ 

fees.

19 See Ariz. R. Civ. P. 26(b)(5).
DAY v. ARMENDT

Decision of the Court

17

at Fault, designating Murray, the driver of the No. 3 car, as a nonparty at 

fault. Armendt later prepared an Initial Rule 26.1 Disclosure Statement—

dated June 11, 2013—in which she denied “that she was negligent in any 

manner or that she caused, contributed or was involved in the accident 

involving [Day’s] vehicle,” and asserted that Day’s damages were the result 

of the negligence of Murray or some other party. After deposing both Day 

and Murray on July 10, 2013, Armendt withdrew her Notice of Non-Party

at Fault regarding Murray, and instead—on August 6, 2013—named as a 

nonparty at fault “[t]he anonymous driver of the vehicle that struck the rear 

of Mr. Murray’s vehicle.”

¶44 Later, on July 22, 2014—several months before the trial in 

superior court—Day moved in limine to preclude Armendt from asserting 

an affirmative defense that the “anonymous driver” of the No. 2 car was a 

nonparty at fault. See generally A.R.S. § 12-2506 (2016). At the November 

13 final trial management conference, Day argued that Armendt had 

admitted she did not know how the accident involving Day’s vehicle 

occurred and could not identify the driver of the No. 2 car, “[s]o, there are 

absolutely no facts to support the non-party at fault.” After taking the 

matter under advisement, the trial court granted Day’s motion in limine, 

reasoning as follows: “The Notice of NPAF fails to state facts supporting 

the unidentified driver’s alleged fault. Defendant’s anticipated testimony 

that she saw smoke from the unknown driver’s car before she hit that car is 

not a factual basis on which a jury could reasonably find the unknown 

driver to be at fault.”

¶45 On the first day of trial, Murray testified he had been rearended by the No. 2 car, and the driver of that car had driven away. Murray 

did not, however, otherwise know how the accident happened. At the 

beginning of the second day of trial, during a discussion regarding final 

jury instructions, defense counsel requested a comparative fault line on the 

verdict form for the driver of the No. 2 car. Day objected, arguing the court 

had already “ruled that they could not name [the No. 2 car’s driver] as a 

non-party at fault.” The court then responded: “Okay. Yeah, right. I -- let 

me just say that we’ll do the final, final on the jury instructions after all the 

evidence is in. So let me hear the rest of the evidence, and I know I made 

that ruling based on what I understood the record was going to be. But 

why don’t we wait to finalize that till after we’re done? Right now I don’t 

see it. Okay.”

¶46 Armendt later testified that, on April 9, 2012, she was driving 

on the I-10 freeway when she saw smoke, heard screeching, and became 

aware of a collision in front of her. She “slammed on the brakes,” but before 
DAY v. ARMENDT

Decision of the Court

18

she could fully stop, she “clipped” the bumper of the car in front of her (the

No. 2 car). She did not hit any other vehicle, and the driver of the No. 2 car 

assured her he had not hit the car in front of him (the No. 3 car) as a result 

of Armendt clipping his (No. 2) car. Armendt believed the prior collision 

and her collision were “just two separate accidents.” During crossexamination, Day’s counsel questioned Armendt about first naming 

Murray as a nonparty at fault, and later naming the driver of the No. 2 car 

as being at fault. At the conclusion of Armendt’s testimony, the trial court 

ruled Armendt had not put forth facts sufficient for a comparative fault 

instruction or “a line on the verdict form,” but further ruled “[t]hat doesn’t 

mean you can’t argue that” in closing argument: “You can still make the 

argument if you want to.” During closing argument, defense counsel did 

not specifically mention the term “nonparty at fault,” but did argue “we 

believed this unknown driver had something to do with [Day’s accident] 

and everything points to that.” Defense counsel also focused on who bore 

the burden of proof, and closed his argument by stating: ”Have they 

proven their case or did they say, ‘The Defendant did not prove car number 

two caused the accident.’ Remember whose burden of proof it is and what 

the evidence shows. The evidence shows that this was car number two.”

¶47 Even assuming Day has not waived this issue by failing to 

timely object or clearly raise it in his motion for new trial, see Ritchie, 221 

Ariz. at 303, ¶ 51, 211 P.3d at 1287; State v. Davis, 117 Ariz. 5, 8, 570 P.2d 776, 

779 (App. 1977), we find no error. The evidence presented at trial supported 

a reasonable inference that Armendt had not caused the accident involving 

Day, and the jury agreed, returning a unanimous finding in her favor (and 

thus concluding that, as to Day, she was not a tortfeasor). In the context of 

this case, the trial court’s decision to not give a comparative fault instruction 

or include “a line on the verdict form” for allocating fault makes perfect 

sense. Armendt defended by arguing she was not at fault, and the trial 

court’s ruling limited Armendt’s ability to argue percentages of fault, which 

she did not do, but allowed her to argue someone else had caused the 

accident involving Day and that Day had failed to present sufficient 

evidence for the jury to find her at fault. Such an argument went toward 

whether Armendt could be found liable, rather than to an allocation of fault. 

Moreover, defense counsel’s arguments did not violate the trial court’s 

orders. Instead, counsel’s arguments fell squarely within the parameters of 

the trial court’s rulings, and the trial court did not abuse its discretion in 
DAY v. ARMENDT

Decision of the Court

19

allowing defense counsel to argue reasonable inferences from the evidence 

presented.20 See Ritchie, 221 Ariz. at 303-04, ¶ 54, 211 P.3d at 1287-88.

IV. Witness William Murray

¶48 Day argues the trial court abused its discretion by partially 

quashing the subpoena requiring Murray to appear for trial and allowing 

Murray to instead appear telephonically. We find no abuse of discretion.

¶49 The trial court retains discretion to control the courtroom and 

trial proceedings. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 33, 977 

P.2d 807, 813 (App. 1998). “We will not interfere in matters within [the trial 

court’s] discretion unless we are persuaded that the exercise of such 

discretion resulted in a miscarriage of justice or deprived one of the litigants 

of a fair trial.” O’Rielly Motor Co. v. Rich, 3 Ariz. App. 21, 27, 411 P.2d 194, 

200 (1966).

¶50 In this case, Murray, who did not live in Maricopa County at 

the time of trial and was not a party to the case, was served with a subpoena 

requiring his attendance at trial. Murray filed an expedited motion to quash 

the subpoena, raising numerous arguments, including that: (1) the 

subpoena had not been served in accordance with Rule 45(d)(1), Ariz. R.

Civ. P., and A.R.S. § 12-303 (2016) because Day had not tendered the 

mileage fee; (2) the subpoena required him to incur substantial travel 

expense, especially in light of his belief that the probative value of his 

testimony was low and because he no longer owned a car; (3) he was not 

afforded adequate time to prepare for his appearance because the subpoena 

was served one week before trial; and (4) the subpoena subjected him to 

undue burden. Murray also sought attorneys’ fees and costs as sanctions. 

Day filed a response, requesting oral argument and Rule 11 sanctions21

against Murray’s counsel, and arguing Murray was a crucial witness; the 

failure to serve the mileage fee was an oversight and would be remedied;

Day’s counsel had also been given little prior notice of the trial due to the 

case’s placement in the court’s case transfer system, which led to the short 

notice given to Murray; Murray would not incur substantial travel expense 

 

20 Moreover, the trial court did not allow the jury to find comparative 

fault. Instead, the jury was instructed it had to either find Armendt at fault 

or not, and the jury unanimously found in favor of Armendt. We presume 

the jury followed the instructions given it. See State v. LeBlanc, 186 Ariz. 437, 

439, 924 P.2d 441, 443 (1996).

21 See Ariz. R. Civ. P. 11(c).
DAY v. ARMENDT

Decision of the Court

20

and had not provided an affidavit indicating he did not own or have access 

to a vehicle; and Murray’s argument that he did not have time to prepare 

was frivolous.

¶51 At the November 13, 2014 final trial management conference, 

the trial court heard argument on the motions from counsel for Murray and 

Day. Counsel for Murray continued to object to the short notice provided 

by the subpoena, but stated Murray “would be willing to appear by phone.” 

After noting “the deficiencies with the subpoena, mainly the time,” were 

“an issue” for Day, the trial court quashed the subpoena as to personal 

appearance, but ordered Murray to appear telephonically. At trial, Murray 

appeared with counsel by telephone, testified fully, and was subject to 

direct, cross, re-direct, and re-cross examination, as well as questions from 

the jury.

22 Later, in denying Day’s motion for new trial, the trial court ruled 

as follows:

The jury heard Murray’s testimony by phone. It was 

within the discretion of the Court to permit him to testify 

telephonically. Plaintiff’s motion to compel him to appear in 

person was properly denied.

¶52 After reviewing the record, we agree with the trial court. The 

cold transcript does not appear to support Day’s characterization of Murray 

as “belligerent, non-responsive, irritable and angry,” and even if it did, 

Murray testified fully, and the record does not indicate a miscarriage of 

justice occurred or that Day was deprived of a fair trial. The jury had ample 

opportunity to assess Murray’s credibility, and nothing indicates the jury 

failed to do its job. See generally Logerquist v. McVey, 196 Ariz. 470, 488, 

¶ 52, 1 P.3d 113, 131 (2000) (recognizing it is within the jury’s province to 

determine witnesses’ credibility), superseded in part on other grounds by 

amendment to Ariz. R. Evid. 702; Cano v. Neill, 12 Ariz. App. 562, 569, 473 

P.2d 487, 494 (1970) (citation omitted). The trial court did not abuse its 

discretion in allowing Murray to appear by telephone.

V. Insurance

¶53 Day argues he was prejudiced because the subject of liability 

and medical insurance was repeatedly raised during trial. We disagree.

¶54 Admitting evidence of insurance may create an unacceptable 

risk that the jury, either in finding liability or in determining the amount of 

 

22 After Murray testified, Day’s next witness, Dr. Leroy Kareus, also 

testified telephonically.
DAY v. ARMENDT

Decision of the Court

21

the award to make, will be influenced by the fact that an insurance policy 

is available to pay any award made. See generally Muehlebach v. Mercer 

Mortuary & Chapel, Inc., 93 Ariz. 60, 62, 378 P.2d 741, 742 (1963). However, 

the mere mention of insurance will not require declaration of a mistrial or 

a new trial, unless prejudice resulting from it is shown. Id. at 64, 378 P.2d 

at 743-44; accord Michael v. Cole, 122 Ariz. 450, 452, 595 P.2d 995, 997 (1979); 

Sheppard v. Crow-Barker Paul No. 1 Ltd. P’ship, 192 Ariz. 539, 547, ¶ 43, 968 

P.2d 612, 620 (App. 1998).

¶55 Day provides no citation to any mention of the word 

“insurance” in the record. Accordingly, he has arguably abandoned and

waived his claim by failing to comply with Rule 13(a)(7), ARCAP. See 

Ritchie, 221 Ariz. at 305, ¶ 62, 211 P.3d at 1289. Also, the only mentions

before the jury of the word “insurance” we could find in the trial transcripts

came from Day and his witness, Officer Jarol, who testified on direct 

examination that in investigating an accident, he collects the “driver’s 

license, insurance, [and] registration” from those involved before starting 

work on his report, and that leaving the scene of a collision without 

providing such information could subject a person to a “hit and run” 

charge. These brief mentions of insurance did not influence the verdict and 

were not prejudicial to Day. Further, a party cannot inject error into the 

proceedings and complain of it on appeal. Acheson v. Shafter, 107 Ariz. 576,

579, 490 P.2d 832, 835 (1971). Moreover, Day did not object. See Ritchie, 221 

Ariz. at 303, ¶ 51, 211 P.3d at 1287 (recognizing that counsel’s failure to 

object at trial generally waives the issue on appeal). Finally, the trial court 

instructed the jury not to consider insurance in its deliberations. We 

presume the jury followed the instructions given it. See LeBlanc, 186 Ariz. 

at 439, 924 P.2d at 443.

¶56 The trial court also recognized the deficiencies in Day’s 

argument when, in denying Day’s motion for new trial, the court stated,

The Court does not recall testimony regarding 

insurance or whether [Day] even objected during trial. [Day]

does not attach a transcript. [Day] fails to demonstrate that 

the mention of insurance, if any, warrants a new trial.

We agree with the trial court. On this record, Day has shown no error, 

much less prejudice.

VI. Costs and Attorneys’ Fees on Appeal

¶57 Armendt requests an award of attorneys’ fees and costs on 

appeal pursuant to A.R.S. §§ 12-341.01 (2016) and 12-341 (2016), 
DAY v. ARMENDT

Decision of the Court

22

respectively. This action does not arise out of a contract between the 

parties, and thus, Armendt is not entitled to fees under A.R.S. § 12-341.01. 

As the successful party on appeal, however, she is entitled to an award of 

her taxable costs under A.R.S § 12-341, contingent upon her compliance 

with Rule 21, ARCAP.

CONCLUSION

¶58 For the foregoing reasons, we affirm the trial court’s judgment 

in favor of Armendt.