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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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 the Award of Attorney Fees: 

ELIZABETH A. DAVIS, Respondent/Appellant, 

v.

DESERT HIGHLANDS ASSOCIATION, Appellee

No. 1 CA-CV 14-0668 FC 

FILED 12-10-2015 

Appeal from the Superior Court in Maricopa County 

No. FC2014-051436 

The Honorable Jay M. Polk, Judge 

AFFIRMED 

COUNSEL 

Best Law Firm, Phoenix 

By Cynthia L. Best, Tali Collins, Robert Hendricks, Stephen Vincent 

Counsel for Respondent/Appellant 

Fennemore Craig, P.C., Phoenix 

By Jessica Post 

Counsel for Appellee
DAVIS v. DESERT HIGHLANDS 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Peter B. Swann delivered the decision of the court, in which 

Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined. 

S W A N N, Judge: 

¶1 Elizabeth Davis (“Davis”) appeals from a family court order 

requiring her to pay $3,000 in attorney’s fees as a sanction to The Desert 

Highlands Association arising out of her “Expedited Motion for the Court 

to Order Disclosure of Petitioner’s Employee File.” Because the trial court 

acted well within its discretion in entering the sanction, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 This appeal does not relate to the merits of the underlying 

family law matter -- it relates solely to sanctions imposed as a result of 

Davis’s counsel’s conduct of third-party discovery.1 On March 24, 2014, 

Davis’s counsel (“Best”) served a subpoena duces tecum for documents she 

wished to use at a hearing concerning legal decision-making and 

parenting time. The subpoena was directed to Father’s employer, The 

Desert Highlands Association (“the Association”), and requested 

personnel records, discipline records, financial records, performance 

reviews, security reports or videos, memoranda, and correspondence 

since Father’s date of hire. By its terms, the subpoena required that the 

records be produced by April 21, 2014. But Best later informed the 

Association that she needed the records on April 11 -- before the return 

date on the subpoena. On April 3, she requested that the Association 

produce the records “immediately.”2 

 

1 The underlying family law case was captioned In re the Marriage of: 

Ryan D. Davis, Petitioner/Appellee v. Elizabeth A. Davis, Respondent/Appellant,

with Desert Highlands Association, Appellee appended. Our caption has 

been amended to reflect the real parties in interest in this appeal and 

should be used henceforth. 

 

2 In an e-mail, Best explained the acceleration of production under 

the subpoena: “It happened because we originally thought 30 days was 

reasonable to respond but then the judge set a temporary orders hearing 
DAVIS v. DESERT HIGHLANDS 

Decision of the Court 

3 

¶3 The Association agreed to produce most of the requested 

records. It objected that some of the requests -- especially those for 

security reports, videos and correspondence since the date of hire -- were 

overbroad and unduly burdensome. The Association contended the 

subpoena would require it to review more than 700 hours of video footage 

and search every e-mail sent during Father’s employment. It also 

requested that Best agree to a protective order in view of the sensitive 

nature of its personnel files. Best first balked at the proposed protective 

order (writing “[w]e do not understand the concept of disclosing the 

documents pursuant to a protective order with opposing counsel”), but 

later agreed to sign a stipulation providing that the files would be used 

only for the present case. 

¶4 While negotiations over the disclosure of Father’s records 

were ongoing, Best indicated in an e-mail on April 3 that she was going to 

file an expedited motion to enforce the subpoena “so we do not run out of 

time.” On the same day, Best filed the “Expedited Motion for the Court to 

Order Disclosure of Petitioner’s Employee File,” (“the Motion”) asking to 

have all the requested materials produced by April 8, even though the 

Association had already agreed to provide records before the April 11 

hearing date. Best did not serve the Motion on the Association, and the 

Association did not become aware of it until April 7 when Father’s 

counsel revealed that it had been filed. 

¶5 Because Best refused to withdraw the Motion, the 

Association filed a response, accompanied by a request for sanctions and 

attorney’s fees. The court denied the Motion because (1) Davis failed to 

serve the Association, (2) the Motion did not contain the Ariz. R. Fam. L. 

P. 65(A)(2)(c) language certifying a good faith effort to resolve the dispute, 

and (3) the Motion was premature given the April 21 deadline in the 

subpoena. The court ultimately granted the Association’s request for 

attorney’s fees, and directed counsel for the Association to submit a fee 

application. 

¶6 The Association’s requested fees totaled $7,847. Davis 

challenged this amount as unreasonable, contending inter alia that the 

actual disclosure of records had only taken 12 minutes and that the 

Association’s counsel’s billing rate was excessive. In addition to her 

response, Best also submitted a sur-reply, which the court struck as 

 

for April 11 and that sped up the timetable.” (Emphasis added.) This 

statement was false. The court had set the April 11 hearing on March 10, 

2014 -- two weeks before Best served the subpoena. 
DAVIS v. DESERT HIGHLANDS 

Decision of the Court 

4 

unauthorized. The court ultimately ordered Davis to pay $3,000 in fees, 

and certified its order as final under Rule 78(B). Davis appeals. 

DISCUSSION 

¶7 We review an award of attorney’s fees for abuse of 

discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011). 

¶8 On behalf of Davis, Best filed a 55-page appellate brief to 

defend her actions in this $3,000 dispute. On appeal, Davis contends that 

the proceedings regarding the subpoena and her Motion were not 

unreasonable and did not cause undue expense or burden to the 

Association. She argues that the award should be reduced to $73 -- 

compensation for the time Davis claims the Association actually spent 

complying with the subpoena. 

¶9 Ariz. R. Fam. L. P. 52(C)(1) requires that the party serving a 

subpoena “shall take reasonable steps to avoid imposing undue burden or 

expense on a person subject to that subpoena.” It also allows the court to 

award reasonable attorney’s fees to sanction breaches of that duty. Id. 

Because the record amply supports the trial court’s conclusion that Best’s 

actions were unreasonable and imposed undue expense on the 

Association, we affirm the award of attorney’s fees. 

¶10 Best knew or should have known the April 11 hearing date 

before she sent the subpoena to the Association. It was her failure to 

choose the proper return date for the subpoena that led to her attempts to 

shorten the time for compliance. Further, Best filed the Motion after the 

Association agreed to produce the majority of the requested documents 

early. Best did not include with the Motion the required Ariz. R. Fam. L. 

P. 65(A)(2)(c) certification that she had attempted to resolve the discovery 

dispute by meeting and conferring with the Association. Finally, she 

failed to serve the Motion on the Association. These facts support the 

conclusion by the trial court that Best did not take reasonable actions to 

avoid imposing undue burden or expense. Indeed, given the high level of 

cooperation that Best received from the Association, it is difficult to 

discern how the discovery dispute was anything other than imaginary. 

Put simply, no motion should ever have been filed. 

¶11 The Association is a non-party to the underlying action. The 

expense it incurred in responding to the subpoena and the machinations 

Best employed to accelerate compliance were not functions of its own 

wrongdoing and could never have inured to its benefit. The courts should 

be vigilant in such circumstances to ensure that counsel are discouraged 
DAVIS v. DESERT HIGHLANDS 

Decision of the Court 

5 

from imposing any greater cost on non-parties than absolutely necessary. 

Without the Motion, the Association would have saved the cost of 

preparing every filing it was to submit in this case. 

¶12 The family court properly awarded fees against Davis to 

compensate the Association for wasteful expenditures necessitated by 

Best’s transformation of routine subpoena compliance into a litigated 

discovery dispute. Indeed, the court was measured in the sanction it 

chose, limiting its award to less than half of the fees requested by the 

Association. On this record, Davis has not come close to showing that the 

trial court abused its discretion by awarding fees greater than it properly 

should have awarded. We also would have considered an award of the 

entire amount sought by the Association reasonable under the 

circumstances here. 

CONCLUSION 

¶13 For the foregoing reasons, we affirm the trial court’s award 

of attorney’s fees. Both the Association and Davis request an award of 

attorney’s fees on appeal. Given the frivolous nature of the appeal, 

Davis’s request is denied. In exercise of our discretion, we award 

reasonable attorney’s fees in favor of the Association and against Davis’s 

counsel only under ARCAP 25, subject to the Association’s compliance 

with ARCAP 21(c). 

¶14 We forward this decision to the State Bar of Arizona for 

disciplinary investigation.