IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

RS INDUSTRIES, INC. and SUN MECHANICAL CONTRACTING, INC.,

Plaintiffs/Appellants,

v.

J. SCOTT and BEVERLY CANDRIAN,

Defendants/Appellees

.
No. 1 CA

- CV 15

- 0035

Appeal from the Superior Court in Maricopa County

No. CV2014

- 009512 The Honorable Katherine M. Cooper
, Judge

AFFIRMED

COUNSEL
Haralson, Miller, Pitt, Feldman & McAnally, PLC
, Tucson By Gerald Maltz Counsel for Plaintiff

s /Appellant s
Rusing, Lopez & Lizardi, PLLC
, Tucson By Michael J. Rusing, P. Andrew Sterling Co

- C ounsel for Defendant/Appellee

Thomas A. Zlaket, PLLC
, Tucson By Thomas A. Zlaket Co

- Counsel for Defendant/AppelleeRS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

2 OPINION
Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.

J O H N S E N , Judge:

¶1 After an arbitrator ruled on several claims and made a significant award of attorney 's fees and expenses , the superior court confirmed the award and granted more fees and expenses. On appeal, the parties dispute whether their arbitration agreement and applicable law authorize the awards of fees and expenses . We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Scott and Beverly Candrian founded Sun Mechanical Contracting, Inc., a Tucson plumbing and HVAC contractor. In 2003, the Candrians entered into a series of agreements with RS Industries, Inc. , an Iowa company, by which the Candrians exchanged their stock in Su n for a 25 percent interest in RS. Mr. Candrian agreed to serve as president of Sun
, now wholly owned by RS, for ten years and, at the end of that period, RS would buy back the Candrians' stock in RS

. Mr. Candrian was guaranteed a position on RS's board of directors so long as he owned RS stock ; meanwhile, the Candrians continued to serve on the Sun board

. ¶3 In late 2012, before time for the stock buy

- back , RS accused Mr. Candrian of breach ing his employment agreement and alleged that , as a result of his breach
, the Candrians' stock in RS had no value. In response , the Candrians filed suit in federal district c ourt , asking it to declare the value of the stock; s everal months later, Sun sued the Candrians in superior
court , alleging $10.7 million in damage s for breach of the employment agreement and seeking enforcement of newly passed corporate resolutions purporting to oust the Candrians from the Sun board

. A month later, the district court dismissed the complaint in favor of arbitration. The parties

eve ntually negotiated an arbitration agreement covering all their disputes
, and the superior court stayed the sta te action pending arbitration.

¶4 The parties selected a Phoenix lawyer as their arbitrator. In the two court cases, they had made numerous filings and litigated an application for a temporary injunction. They continued to battle during theRS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

3 run

- up to the four

- day arbitration . With several million dollars at stake, they retained expert witnesses, took depositions, propounded and responded to discovery requests
, litigated discovery disputes , and briefed a motion by the Candrians for summary judgment. T he arbitrator ultimately decided nearly all issues in favor of the Candrians
, concluding they were owed $5,006,245 for their RS stock and that M r. Candrian was due $77,000 in unpaid wages

. ¶5 Having prevailed on the merits, the Candrians filed an application seeking $1,032, 411 .50 in attorney's fees and $211,240.41 in "costs." Over RS's objection, the arbitrator granted the Candrians nearly every dol lar they had sought, citing as authority the arbitration agreement
, RS bylaws, Iowa indemnity laws (one of the contracts referenced Iowa law) and Arizona Revised Statutes ( " A.R.S. " ) section 12

- 341.01(A) (2016)

. 1 RS then filed a motion in superior court t o vacate the arbitrator ' s award of attorney's fees and costs ; the Candrians moved to confirm the award

. After briefing and oral argument, the superior court denied the motion to vacate and confirmed the arbitration award in its entirety. The court then granted the Candrian s attorney's fees and expenses of $54,781.33 , along with taxable costs of $243, incurred in the confirmation proceeding

. ¶6 RS timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A. R.S. §§ 12

- 2101(A)(1) (2016) and

- 2101.01(A)(6) (2016)

.
DISCUSSION

A. Arbitrator's Award of Attorney's Fees and Costs.

1. Attorney' s fees.

¶7 Arizona public policy favors arbitration as a speedy and affordable means of resolving disputes, and judicial review of an arbitrator's award is substantially limited by statute. City of Cottonwood v. James L. Fann Contracting, Inc. , 179 Ariz. 185, 189 (A pp. 1994). An arbitrator's decisions regarding questions of law and fact are final, and will not be disturbed unless the arbitrator has purported to decide a matter that is beyond the scope of the issues submitted for arbitration. Smitty's Super

Valu, Inc. v. Pasqualetti , 22 Ariz. App. 178, 180

- 81 (1974); see also Hirt v. Hervey , 118 Ariz. 543, 545 (App. 1978) ("[A]n arbitration award is not subject to attack merely because one party believes that the arbitrators erred with

1 Absent material revision after the relevant date, we cite a statute's current version.RS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

4 respect to factual determinat ions or legal interpretations."). Indeed, under Arizona ' s version of the Revised Uniform Arbitration Act, A.R.S. §§ 12

- 30 01 et seq ., as relevant to this appeal , an aggrieved party may petition the superior court to vacate an arbitration award only if the " arbitrator exceeded the arbitrator' s powers. " A.R.S. § 12

- 3023(A)(4) (2016). We review the superior court's decision to confirm an arbitration award in the light most favorable to upholding the decision and will affirm unless the superior court abused i ts discretion. See Atreus Communities Group of Ariz. v. Stardust Dev., Inc. , 229 Ariz. 503, 506, ¶ 13 (App. 2012)

. ¶8 RS do es not conte st the arbitrator' s findings on liability and damages, but argue s the arbitrator exceeded his authority when he awarded at torney's fees and expenses

. By statute, "[a]n arbitrator may award reasonable attorney fees and other reasonable expenses of arbitration only if that award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding." A.R.S. § 12

- 3021(B) (2016). In that regard, § 12

- 3021(B) grants an arbitrator the same power the superior court has to award fees in a civil action. See Sanders v. Boyer , 126 Ariz. 235, 241 (App. 1980) (general rule is th at attorney' s fees are not allowed " except where expressly provided for by either statute or contract " ).

¶9 The arbitration agreement the parties negotiated stated : All Parties have the right to apply to the Arbitrator for recovery of reasonable attorney's fees incurred in connection with the arbitration, and also the authority to apply for reasonable attorneys' fees previously incurred in the lawsuits referenced in R ecitals C [the prior district

- court proceeding ] and E [the prior state

- court proceeding ], under any applicab le statute, rule, or contract.
After prevailing in the arbitration, the Candrians sought $611,693 in fees incurred in the two lawsuits before the ar bitration began and $420,718.50 incurred in the arbitration. The arbitrat or awarded them fees of $1,032,299.50.

¶10 Although RS broadly contends the arbitrator exceeded his powers, each argument RS raises to the fees award is a contention that the arbitrator ruled incorrectly, not that he lacked the power to rule. For example, RS argues the dismissals of the two lawsuits constituted res judicata against the Candrians, barring any fee award to them. It argues A.R.S. § 12

- 341.01, the Arizona statute that allow s a court to grant fees toRS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

5 the prevailing party in a " contested action arising out of a contract , " did not apply because the buy

- sell agreement specified that Iowa law would govern and the other claims were not sufficiently inter twined with claims under th e employment agreement, to which Arizona law applied

. And it argues the Iowa laws and the corporate bylaws the arbitrator cited do not permit a fees award under the circumstances presented here. All of these are arguments why the arbitrator assertedly erred in deciding to award fees, not arguments why he exceeded his authority in doing so.

¶11 RS further contends that under the language in the arbitration agreement quoted above
, no fees could be gra nted except as provided by

" applicable statute, rule
, or contract

. " T he Candrians interpret the agreement differently ; they argue the "applicable statute, rule
, or contract" language was intended to apply to a request for fees incurred in the lawsuits but not to a request for fees incurred in the arbitration itself. Regardless, by their agreement, the parties granted to the arbitrator the power to resolve any dispute about the meaning of the fees provision. Pursuant to A.R.S. § 12

- 3023(A), on appeal, we will not review the merits of an arbitrator ' s factual findings or legal conclusions. See Atreus Communities
, 229 Ariz. at 506, ¶ 13 (" [T] he arbitrator's decisions are final and binding as to both issues of fact and law, regardless of the correctness of th e decision.").

¶12 RS failed to show the arbitrator exceeded the power s granted to him by the law and the agreement to award reasonable attorney's fees incurred in the arbitration proceeding and in the two lawsuits that preceded the arbitration. See A.R.S. § 12

- 3023(A). The superior court accordingly did not err in confirming the fee s award

.
2. Costs

/Expenses

. ¶13 The Candrians asked the arbitrator to award them roughly $98, 600 in expenses incurred in the pre

- arbitration lawsuits and $112, 600 in expen ses incurred during the arbitration. The arbitrator's award of $ 211,240.41 in expenses included filing fees, deposition transcripts and videographer charges, costs of travel to attend depositions, expert witness fees, food and lodging during the arbitrati on (both sides had Tucson lawyers; the arbitration was conducted in Phoenix), copying costs, delivery expenses, parking, and the costs of preparing hearing exhibits

. 2

2 RS argues the arbitrator lacked the power to award computerized legal research costs as an expense. But costs of computerized legal researchRS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

6 ¶14 As noted, A.R.S. § 12

- 3021(B) empowers an arbitrator to grant a party its "reasonable exp enses of arbitration only if that award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding." Because the arbitration agreement here said nothing about expenses, the arbitrator h ad the power to award expenses only if authorized by law. This is the same rule that governs awards of litigation expenses during court proceedings

. See Schritter v. State Farm Mut. Auto. Ins. Co. , 201 Ariz. 391, 392, ¶ 6 (2001) ("A party to a civil action cannot recover its litigation expenses as costs without statutory authorization.")

. ¶15 By statute, a successful party to a civil action in Arizona is entitled to recover "from his adversary all costs expended or incurred therein u nless otherwise provided by law." A.R.S. § 12

- 341 (2016)

. But the statutes do not grant the prevailing party a right to recover every manner of litigation expense

. Under A.R.S. § 12

- 33 2 (2016) , the prevailing party in a civil action in superior court is allowed only its taxable costs, which are defined to include :

1. Fees of officers and witnesses.

2. Cost of taking depositions.

3. Compensation of referees.

4. Cost of certifi ed copies of papers or records.

5. Sums paid a surety company for execut ing any bond or other obligation therein, not exceeding, however, one per cent on the amount of the liability on the bond or other obligation du ring each year it was in force.

6. Other disbursements that are made or incurred pursuant to an order or agreem ent of the parties.

A.R.S. § 12

- 332(A)(1)

- (6) ; see Reyes v. Frank's Serv. & Trucking, LLC , 235 Ariz. 605, 608, ¶ 6 (App. 2014) (whe ther an expense is recoverable a s a taxable cost is reviewed de novo )

.

are recoverable as attorney's fees. Ahwatukee Custom Estates Mgmt. Ass' n v. Bach , 193 Ariz. 401, 40 4 (1999).RS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

7 ¶16 Some but not all of the expenses the arbitrator approved would be recoverable as taxable costs under § 12

- 3 3 2(A). For example,

a lthough a party may recover costs it incurs in deposing an opposing party's expert witness, the fees it pays its own expert witness are not recoverable

. See Reyes , 235 Ariz. at 608

- 09, ¶ 8. 3 Other expenses, including those incurred for photocopying
, facsimiles, shipping and travel expenses
, are not recoverable as taxable costs

. See Bennett v. Baxter Group , Inc. , 223 Ariz

. 414, 423, ¶ 37 (App. 2010).

¶17 In granting the Candrians' request for expenses, however, the arbitrator cited Iowa indemnity statutes and RS bylaws. Iowa law allows a corporation to indemnify a director against liability under certain circumstances. See Iowa Code § 490.8 51(1) (2016) . A nd the RS corporate bylaws provided that RS "shall indemnify each director . . . to the fullest extent possible, against all obligations, i ncluding attorney's fees . . . and reasonable expenses actually incurred by such director . . . upon claim made by [R S], any stockholder thereof or by any third party relating to his or her conduct as a director."

¶18 As with the attorney's fees award, RS argues the arbitrator exceeded his power s by granting the Candrians' request to be reimbursed for expenses that are not taxable costs. But as with the attorney's fees award, RS's argument in reality is that the arbitrator erred in interpreting the legal authorities he cited as allowing the expen ses. By entering into the arbitration agreement, RS agreed the arbitrator's decisions in matters of law would be final. See Atreus Communities , 229 Ariz. at 506, ¶ 13. Under A.R.S. § 12

- 3023(A), we will not review whether the arbitrator correctly interp reted Iowa law and the RS bylaws to require RS to indemnify the Candrians for non

- taxable expenses they incurred in the lawsuits and the arbitration. Accordingly, the superior court did not err in confirming the arbitrator's award of expenses.

3 Recoverable costs associated with depositions may include fees paid for court reporters and transcripts, reasonable travel expenses for attorneys and court reporters, and photocopies of deposition records, so long as they are "reasonably and necessarily in curred." Reyes , 235 Ariz. at 608

- 09, ¶¶ 8

- 12. Expenses associated with recording depositions are eligible for recovery as a taxable cost, "[b]ut when a party has chosen to incur expenses for both stenographic and video recording of a deposition, the tria l court must determine the reasonableness and necessity of those expenses on a case

- by

case basis." Id. at 611, ¶ 21.RS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

8 B. Superio r Court's Confirmation of the Arbitration Award.

1. Section 12

- 3025.

¶19 Under A.R.S. § 12

- 3025 (2016) , a party may collect attorney's fees and expenses incurred in connection with an action to confirm an arbitration award. Subs ection C of the statute states : On application of a prevailing party to a contested judicial proceeding under § 12

- 3022, 12

- 3023 or 12

- 3024, the court may add reasonable attorney fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment vacating an award without directing a rehearing or confirming, modifying or corre cting an award.

A.R.S. § 12

- 3025(C)

.

2

. Attorney' s fees.

¶20 The Candrians were successful in confirming the arbitration award over RS 's vigorous attempt to vacat e it under A.R.S. § 12

- 3023, and thus were entitled to their reasonable attorney 's fees pursuant to A.R.S. § 12

- 3025(C). RS a ck nowledges the power of the superior court to award fees in confirming the award, but argue s the amount of fees the court awarded was unreasonable. RS contend s the Candr ians' fee application revealed "block

- billing" by their lawyers and argue s the court should not have awarded the fees of all three lawyers who traveled from Tucson to Phoenix

so that one of them could participate in oral argument on the motion to confirm the award.

¶21 We review an award of attorney's fees for an abuse of discretion. Motzer v. Escalante , 228 Ariz. 295, 296, ¶ 4 (App. 2011). W e will affirm the court ' s award of attorn ey ' s fees if there is a reasonable basis for doing so. James L. Fann Contracting , 179 Ariz. at 195. Although the better practice may be to avoid block

- billing when it can be done reasonably, as the Candrians contend, no Arizona authority holds that a cou rt abuses its discretion by awarding fees that have been block

- billed. In its order granting the fees, the superior court noted it had reviewed the billing statements and found them sufficiently detailed. As for the presence of three lawyers at oral argu ment, the court found the Candrians had offered a reasonable explanation: " [T] here was a lot at stake

. . . , and it took the collective expertise of three attorneys to ensure the best result for their clients. Reason enough." RS do es not argue the Cand rians' lawyers ' hourly rates were excessive, that the total bill was too large, or that too many hours,RS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

9 in total, were spent on the matter. Under these circumstances, we cannot conclude the court abused its discretion in awardi ng the Candrians their
attor ney' s fe es.

3. Expenses.

¶22 The superior court award ed about $3,350 in non

- taxable expenses incurred in connection with the confirmation proceeding
, including copying costs, delivery charges , travel and meals. By contrast to A.R.S. § § 12

- 3 41 and

- 332, which allow the court to award a narrow class of "taxable" costs, A.R.S. § 12

- 3025(C) confers on the court a broader power to award "reasonable expenses of litigation."

¶23 Section 12

- 3025 is nearly identical to Section 25 of the Revised Uniform Arbitration A ct. The comment to S ection 25 explains it intended to "discourage " unfounded appeals of arbitration awards :

Section 25 (c) promotes the statutory policy of finality of arbitration awards by adding a provision for rec overy of reasonable attorney's f ees and reasonable expenses of litigation to prevailing parties in contested judicial actions to confirm, vacate, modify or correct an award. Potential liability for the opposing parties' post

- award litigation expenditures will tend to discourage all but the most meritorious ch allenges of arbitration awards.

Unif. Arbitration Act § 25 cmt. 3 (Nat'l Conference of Comm'rs on Unif. State Laws 2000).

¶24 Interpreting § 12

- 3025(C) consistent with this underlying policy, we conclude that "expenses" as used in the statute ne cessarily must be broader than "costs " as used in §§ 12

- 341 and

- 332. Allowing a prevailing party to collect reasonable expenses of litigation beyond taxable costs serves the policy of promoting the finality of arbitration award s and deterring re

litigati on of arbitrable issues. Moreover, as the comment to Uniform Arbitration Act Section 25 explains
, parties may, if they choose, agree to waive this provision . Unif. Arbitration Act § 25 cmt. 6 (Nat'l Conference of Comm'rs on Unif. State Laws 2000) ("Secti on 25(c) is a default rule only because it is waivable . . . . If the parties wish to contract for a different rule, they remain free to do so.").

¶25 The parties here did not agree to preclude expense awards in connection with confirmation; as a result, the statutory default allowed the superior court to award reasonable expenses to the prevailing party

.RS INDUSTRIES, et al. v. CANDRIAN Opinion of the Court

10 CONCLUSION

¶26 For the foregoing reasons, we affirm the superior court's confirmation of the final arbitration award , including the arbitrator's awards of attorney's fees and expenses. We also affirm the court ' s separate grant of fees and expenses incurred in the confirmation proceeding

. Pursuant to A.R.S. § 12

- 3025(C), we grant the Candrians their costs and reasonable attorney's fees on appeal, contingent on compliance with Arizona Rule of Civil Appellate Procedure 21.