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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LINDA K. HART, Plaintiff/Appellant,

v.

DANIEL BIEDERBECK, Defendant/Appellee.

No. 1 CA-CV 18-0702

Appeal from the Superior Court in Maricopa County

No. CV2017-054019

The Honorable Bruce R. Cohen, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office PC, Phoenix

By David L. Abney 

Counsel for Plaintiff/Appellant

Alex H. Bergener PC, Phoenix

By Alex H. Bergener

Counsel for Defendant/Appellee

FILED 10-29-2019
HART v. BIEDERBECK

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Linda K. Hart challenges the trial court’s ruling declining to 

award punitive damages claimed against Daniel Biederbeck. A plaintiff 

seeking to recover punitive damages must present “clear and convincing 

evidence of the defendant’s evil mind.” Linthicum v. Nationwide Life Ins. Co., 

150 Ariz. 326, 332 (1986). The trial court did not abuse its discretion by 

concluding Hart failed to meet her burden. We affirm.

BACKGROUND

¶2 Hart sued Biederbeck alleging assault, battery, intentional 

infliction of emotional distress, and negligence stemming from a physical 

altercation occurring approximately two years before. She alleged that 

Biederbeck “charged at her in a menacing manner,” “picked [her] up . . . 

and threw her against a security gate leading into the [parties’ former] 

residence.” She alleged she suffered “severe physical injury” and “severe 

emotional distress” and sought both compensatory and punitive damages. 

¶3 Both parties testified at a bench trial at the conclusion of 

which the trial court found in favor of Hart on each of her claims. 

However, the court expressed that it had “credibility concerns as to both 

parties” and that “[d]iscerning the truth [was] a fairly monumental task 

under these circumstances.” The court entered judgment against 

Biederbeck for $15,000 but declined to award punitive damages. Hart 

timely appealed the judgment. 
HART v. BIEDERBECK

Decision of the Court

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DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion in Declining to 

Award Punitive Damages

¶4 Hart challenges the trial court’s decision not to award 

punitive damages. We review that ruling for an abuse of discretion.1 

Miscione v. Bishop, 130 Ariz. 371, 375 (App. 1981); see also Ahmed v. Collins, 

23 Ariz. App. 54, 58 (1975) (“Punitive damages are not to compensate for a 

loss, but rather to punish for misconduct, and it must, therefore be a matter 

of discretion for the trier of fact.”).

¶5 Courts should award punitive damages only in “the most 

egregious of cases, where there is reprehensible conduct combined with an 

evil mind over and above that required for commission of a tort.” 

Linthicum, 150 Ariz. at 332. A plaintiff establishes an “evil mind” by 

showing the defendant acted with the intent to injure, was motivated by 

spite or ill will, or acted to serve his own interests, consciously disregarding 

a substantial risk of significant harm to others. Ranburger v. Southern Pac.

Transp. Co., 157 Ariz. 551, 553 (1988); see also Medasys Acquisition Corp. v. 

SDMS, P.C., 203 Ariz. 420, 424, ¶ 15 (2002) (punitive damages are generally 

available where the defendant “pursued a course of conduct knowing that 

it created a substantial risk of significant harm to others and its conduct was 

guided by evil motives”).

¶6 Hart contends the requisite intent to injure is demonstrated 

by the court finding Biederbeck’s conduct constituted assault, battery, and 

intentional infliction of emotional distress. Prevailing on an assault or 

battery claim does not necessarily lead to punitive damages; the plaintiff 

also must show the defendant acted “wantonly, maliciously, or under 

circumstances of aggravation.” Reah v. Jupin, 68 Ariz. 335, 337 (1949), 

 

1 Hart contends the standard of review is “unclear,” arguing this court 

applied a de novo standard of review in Felipe v. Theme Tech. Corp., 235 Ariz. 

520, 528, ¶ 31 (App. 2014). Felipe is distinguishable because it was an appeal 

from a grant of summary judgment on a punitive damages claim. Id. 

Biederbeck, for his part, argues the denial of a punitive damages claim is 

not appealable, citing Rubi v. Transamerica Title Ins. Co., 131 Ariz. 403, 405 

(App. 1981). Biederbeck misconstrues the holding of that case. In fact, Rubi

addressed the appellants’ contention that the trial court erred in failing to 

assess punitive damages against one of the appellees. Id. at 404. 
HART v. BIEDERBECK

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overruled on other grounds by Tipton v. Burson, 73 Ariz. 144, 150 (1951); see also

Johnson v. Pankratz, 196 Ariz. 621, 624, ¶ 13 (App. 2000) (“[A] battery

entitling a plaintiff to compensatory damages may also entitle her to 

punitive damages. . . . [I]f malice is express or may be implied from the 

nature of the acts and the circumstances, punitive damages are possible.”) 

(emphases added) (citation omitted); Barker v. James, 15 Ariz. App. 83, 87 

(1971) (“[I]n an action for assault and battery malice is an appropriate basis 

for punitive damages and that malice may be inferred or implied from the 

nature of the acts complained of and the surrounding circumstances.”)

(emphasis added); Safeway Stores, Inc. v. Harrison, 14 Ariz. App. 439, 442 

(1971) (“[W]e find nothing more than a simple battery which lacks the 

necessary malice or aggravation to support the award of punitive

damages.”). We have reached the same conclusion regarding other 

intentional torts, such as fraud. See Dawson v. Withycombe, 216 Ariz. 84, 112,

¶ 96 (App. 2007) (“[P]unitive damages are not recoverable in every fraud

case, even though fraud is an intentional tort”) (citation omitted); Hunter 

Contracting Co. v. Sanner Contracting Co., 16 Ariz. App. 239, 246 (1972) (“Just 

a simple showing of actionable fraud . . . is not sufficient to submit to the 

jury the issue of punitive damages.”) (citation omitted). “For the fact finder 

to award punitive damages, a plaintiff must prove something more than 

the mere commission of a tort.” Quintero v. Rogers, 221 Ariz. 536, 541 (2009).

Just as the amount of a punitive damage award is within the purview of the 

factfinder, declining to make a punitive damages award in a given case is 

soundly in the discretion of the factfinder. Magma Copper Co. v. Shuster, 118 

Ariz. 151, 153 (1977).

II. Different Burdens of Proof Support a Denial of Punitive Damages

¶7 Each of Hart’s tort claims can be established by a 

preponderance of the evidence. See, e.g., Aileen H. Char Life Interest v. 

Maricopa County, 208 Ariz. 286, 291, ¶ 11 (2004) (stating “the usual rule [is] 

that a plaintiff must establish each element of a civil action by a 

preponderance of the evidence”). But a plaintiff seeking to recover a 

punitive damages award must present “clear and convincing evidence of 

the defendant’s evil mind.” Linthicum, 150 Ariz. at 332. Clear and 

convincing evidence “reflects a heightened standard of proof that indicates 

that the thing to be proved is highly probable or reasonably certain.” Kent 

K. v. Bobby M., 210 Ariz. 279, 284–85 ¶ 25 (2005) (citation omitted). 

¶8 Even if we were to accept Hart’s argument that “the evil mind 

is an inherent, proven part of th[e] three intentional torts,” the court did not 

find her evidence to be clear and convincing regarding an “evil mind” or 

any other issue. It instead found neither party to be particularly credible, 
HART v. BIEDERBECK

Decision of the Court

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stating that it could not “determine with precision what happened” based 

on the evidence presented and that “[d]iscerning the truth is a fairly 

monumental task.” On this basis alone the court was justified in declining 

to award punitive damages. 

¶9 “[I]t is the trial court and not the appellate court which draws 

a distinction between evidence which is clear and convincing and evidence

which merely preponderates.” Webber v. Smith, 129 Ariz. 495, 498 (App. 

1981). Moreover, we defer to the trial court’s credibility determinations in 

a bench trial. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009)

(citation omitted). The court did not abuse its discretion in declining to 

award punitive damages.

¶10 Moreover, regardless of whether Hart met her burden, a 

punitive damage award is permissive and not mandatory. Even had Hart 

established by clear and convincing evidence her claim of intentional 

infliction of emotional distress, that would only make her eligible for a

punitive damage award and not entitled to one. Given the superior court’s 

explanation regarding the relative uncertainty about what transpired, the 

decision not to award punitive damages was well within the court’s 

discretion.

III. We Decline to Award Attorney Fees

¶11 Biederbeck requests his attorney fees incurred on appeal 

pursuant to ARCAP 25, under which we may sanction an appellant who 

brings a frivolous appeal. Johnson v. Brimlow, 164 Ariz. 218, 221–22 (App. 

1990). An appeal is frivolous if it is brought for an improper purpose or 

indisputably has no merit. Arizona Tax Research Ass’n v. Dep’t of Revenue, 163 

Ariz. 255, 258 (1989). Sanctions are unwarranted if the issues raised are 

supportable under any legal theory or reasonable attorneys could differ. 

Matter of Levine, 174 Ariz. 146, 153 (1993). We consider ARCAP 25 sanctions 

with great caution. Price v. Price, 134 Ariz. 112, 114 (App. 1982). In our 

discretion, we decline to award fees under ARCAP 25. 
HART v. BIEDERBECK

Decision of the Court

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CONCLUSION

¶12 We affirm the judgment. Biederbeck may recover his taxable 

costs incurred in this appeal upon compliance with ARCAP 21.