Plaintiff-Appellant-Cross Appellee Isabel Harris and her attorney, Jack Colaric (hereinafter "Harris" and "Colaric"), appeal from a judgment awarding Defendant-Appellee-Cross Appellant Reserve Life Insurance Company (hereinafter "Reserve") attorney's fees of $17,840 ($4,460 against Harris and $13,380 against Colaric) pursuant to A.R.S. § 12-349(A) and (B) and costs of $1,470.39. Reserve cross appeals from the trial court's refusal to grant it attorney's fees against Harris under rule 41(a)(2), Arizona Rules of Civil Procedure, and A.R.S. § 12-341.01(A) and (B). Although Colaric was not a named party in the trial court proceedings, he appears in this appeal as a nonparty appellant in order to challenge the judgment for attorney's fees entered against him.
FACTS AND PROCEDURAL HISTORY
On January 3, 1985, Harris instituted a breach of contract action against Reserve as the beneficiary of her deceased husband's life insurance policy to secure payment of a $25,000 death benefit. The complaint was served upon Reserve on August 28, 1985, and discovery ensued. On October 23, 1985, Reserve filed an answer denying liability on the policy. Further, Reserve affirmatively pled that no valid contract of insurance had ever been in force because the deceased had made material misrepresentations regarding prior medical treatment on his application for insurance.
PROPRIETY OF THE A.R.S. § 12-349 ATTORNEY'S FEES AWARD
The version of A.R.S. § 12-349 in effect at the time Harris commenced this action provided in pertinent part as follows:
A.R.S. § 12-350 requires the court to set forth the specific reasons for any attorney fee award pursuant to A.R.S. § 12-349, and enumerates the following eight factors the court may consider, if relevant, in entering a § 12-349 award:
Harris and Colaric argue that the attorney's fees award pursuant to A.R.S. § 12-349 was in error because Harris' claim was not initially brought without substantial justification; and, upon later learning that it lacked substantial justification, Harris filed a voluntary dismissal within a reasonable time.
In awarding attorney's fees to Reserve, the trial judge expressly found that Harris' claim was brought without substantial justification. No other findings were made. In reviewing the trial court's judgment, we must view the evidence in a manner most favorable to sustaining it and if, in so doing,
In conclusion we hold that the trial court had sufficient evidence upon which to determine that plaintiff's claim was brought without substantial justification. When Colaric filed suit, he had in his possession Ralph Harris' medical records from Dr. Gerster showing probable fatty metamorphosis of the liver in 1974 and in 1976. Therefore, he knew or should have known at the time he filed suit that the application for insurance falsely stated that the only consultation or examination by any physician within the previous five years was a general physical conducted by Dr. Gerster in February of 1977. He also knew that the death certificate showed that Ralph Harris had an "alcoholic liver." Thus, the trial court did not abuse its discretion in finding that Colaric filed suit when he knew, or should have known, that the claim was unjustified. Colaric's argument that he had a reasonable basis for filing suit because he believed Reserve had to prove an actual intent on the decedent's part to deceive the company in order for the company to avoid its obligations under the policy is contrary to law and consequently unjustified. See American Nat'l Ins. Co. v. Caldwell, 70 Ariz. 78, 79, 216 P.2d 413, 414 (1950).
While the chronology of events was not disputed in the trial court, the inferences to be drawn from those events were disputed. It is for the trial court, not this court, to resolve those conflicts. A decision is
State v. Chapple, 135 Ariz. 281, 297, n. 18, 660 P.2d 1208, 1224, n. 18 (1983) (citations omitted). If the trial court has rendered the correct decision for any reason apparent in the record, we will affirm. City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985).
The trial court considered the factors set forth in A.R.S. § 12-350 and determined that an award of attorney's fees was proper pursuant to A.R.S. § 12-349. The court determined that the true facts were always available to Colaric, enabling him to determine the validity of the claim, and that Harris herself was aware of her husband's condition. The relative financial position of the parties involved was considered as well, as is evidenced by the trial court's allocation of the bulk of the attorney's fees against Colaric rather than Harris. Further, Colaric's disregard of the misrepresentations made by the deceased on his application for insurance supports an inference of bad faith. Additionally, even if the medical records in Colaric's possession at the time he filed suit did not reveal that Dr. Gerster had actually informed Ralph Harris of his liver condition, Dr. Gerster testified that Harris herself was aware of this
The inquiry does not end here, however, for even if a claim is brought without substantial justification, attorney's fees will not be assessed pursuant to A.R.S. § 12-349 if the party voluntarily dismisses his claim within a reasonable time after learning the claim is unjustified. A.R.S. § 12-349(C). Because the determination of what is reasonable varies with the circumstances, we believe this determination falls within the exercise of the trial court's sound discretion. We find no abuse of discretion in the determination that a four-month delay in filing the motion to dismiss was unreasonable, particularly in light of the fact that Colaric did not file the motion until time to respond to Reserve's motion for summary judgment was about to expire and then vacillated in his decision to dismiss even after his motion had been filed. Colaric offered no explanation as to why it took Harris from February 24, 1986, the date he received a copy of Dr. Gerster's deposition, until March 18, 1986, to read the deposition and agree to dismiss her complaint. Such conduct could reasonably be construed to be a lack of diligence, and, in fact, unreasonable under the circumstances, particularly since no new facts were developed between Colaric's conversation with Dr. Gerster in November of 1985 and the final decision to dismiss in late March of 1986.
Harris and Colaric further argue that even if the award of attorney's fees under § 12-349 was proper, the amount awarded was exorbitant and unreasonable and, therefore, should be reduced. They argue particularly about the additional $8,620 in fees incurred after Colaric allegedly informed Reserve on January 29, 1986, that he intended to recommend the case be dismissed. These fees were apparently incurred in preparation of the motion for summary judgment.
The determination of whether the amount of attorney's fees awarded is reasonable is a matter peculiarly within the discretion of the trial court, Woliansky v. Miller, 146 Ariz. 170, 704 P.2d 811 (App. 1985), and will not be disturbed absent a showing of abuse of that discretion. A trial court abuses its discretion when no reasonable basis exists in the record from which the trial judge could award attorney's fees. Associated Indemnity Corporation v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985). Even fees in excess of the amount in dispute are not per se unreasonable. Wagner v. Casteel, 136 Ariz. 18, 663 P.2d 1020 (App. 1983).
Reserve submitted an itemized bill detailing the activity of its counsel in defending Reserve. Harris and Colaric offer no evidence of abuse of discretion other than the amount of the award. Such does not support the finding that the trial court abused its discretion. The itemized statement provided by Reserve provides a reasonable basis on which the trial court could award attorney's fees in the amount that it did.
This court will not consider issues and theories not presented in the trial court. Richter v. Dairy Queen of Southern Arizona, Inc., 131 Ariz. 595, 643 P.2d 508 (App. 1982). Thus, we do not consider whether A.R.S. § 12-349 should be applied when an alternate statute, A.R.S. § 12-341.01, also provides for attorney's fees in this situation.
PROPRIETY OF AWARD OF COSTS
The judgment awarded Reserve costs in the amount of $1,479.39. The judgment is silent as to the basis of this award. Harris argues that the award of costs is improper under A.R.S. § 12-341 because Reserve was not the successful party. Reserve argues that costs are appropriate in the context of a dismissal, and also under the court's power to impose terms and conditions
We have held that when a plaintiff's complaint is dismissed because of plaintiff's failure to prosecute, the defendant may be considered the successful party for purposes of recovering costs pursuant to A.R.S. § 12-341. The fact that the action is dismissed without prejudice and that plaintiff can refile is not relevant. Mark Lighting Fixture Company, Inc. v. General Electric Supply Company, 155 Ariz. 65, 745 P.2d 123, vacated on other grounds, 155 Ariz. 27, 745 P.2d 85 (1987). We find the record supports the award of costs to Reserve.
RESERVE'S CROSS APPEAL
Because we have found the trial court's imposition of costs and attorney's fees proper under A.R.S. § 12-341 and § 12-349, it is unnecessary to consider Reserve's argument that it was also entitled to an award of fees under A.R.S. § 12-341.01 and rule 41(a)(2).
ATTORNEY'S FEES AND COSTS ON APPEAL
Both parties have requested attorney's fees and costs on appeal. We deny Harris' and Colaric's request and grant Reserve's request pursuant to A.R.S. § 12-341.01 and § 12-342 in an amount to be determined pursuant to rule 21(c), Arizona Rules of Civil Appellate Procedure.
GRANT and CONTRERAS, JJ., concur.