Borowsky v. Brooks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TODD BOROWSKY, Plaintiff/Appellant,

v.

MARK BROOKS, et al., Defendants/Appellees.

No. 1 CA-CV 23-0699
FILED 12-19-2024

Appeal from the Superior Court in Maricopa County
No. CV2018-015307
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness, P.C., Phoenix
By Dennis I. Wilenchik
Counsel for Plaintiff/Appellant

Simbro & Stanley, PLC, Scottsdale
By Edwin B. Stanley
Counsel for Defendant/Appellee Mark Brooks

Tiffany & Bosco, P.A., Phoenix
By William M. Fischbach, Stephen C. Biggs, Mitchell S. Antalis
Counsel for Defendant/Appellee Mackenzie Pate
 BOROWSKY v. BROOKS, et al.
Decision of the Court

Moyes Sellers & Hendricks, Phoenix
By Keith L. Hendricks, Lawrence Palles
Counsel for Defendant/Appellee Robert Johnson

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Chief Judge David B. Gass and Judge Jennifer M. Perkins joined.

T H U M M A, Judge:

¶1 Plaintiff Todd Borowsky appeals the grant of a motion for
new trial for defendants Mark Brooks, Robert Johnson and Mackenzie Pate
(Defendants), and imposing attorneys’ fees as sanctions, based on
Borowsky’s trial misconduct. Borowsky claims his conduct does not satisfy
the standard for a new trial, meaning the sanctions also must be reversed.
Because Borowsky has shown no error, the new trial order and sanctions
are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 This case arises out of four loans Brooks made to Borowsky
totaling $200,000. In a May 2016 loan, Borowsky received $100,000, posting
as security a 2005 Lamborghini Gallardo and a bulletproof 2007 GMC
Denali. In an August 2016 loan, Borowsky received $40,000, posting as
security a 1971 Chevelle convertible. Both loans were evidenced by a one-
page form “Installment Loan Security Agreement” with an integration
clause. The loans charged 48 and 36 percent annual rates of interest, were
for a one-year term and were signed by Brooks and Borowsky.

¶3 In August 2016, Borowsky received an additional $50,000,
posting as security a specified liquor license. This $50,000 loan was
evidenced by a three-page Promissory Note, with an integration clause and
was for one year at 48 percent. A July 2017 one-page “Addendum to
Promissory Note” increased the $50,000 loan by $10,000. That addendum
cross-collateralized the previous loans and repeated a 48 percent interest
rate.

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¶4 In February 2018, after a dispute arose about Borowsky
repaying the loans, Brooks apparently took possession of the collateral and
demanded payment. Brooks apparently sold the vehicles and, ten months
later, Borowsky filed this case, alleging various contract, tort and statutory
claims against Defendants and others.

¶5 During four years of pretrial proceedings, the superior court
considered and ruled on various pretrial motions, some of which resolved
some of Borowsky’s claims, including his claims against others. The court
denied motions for summary judgment by Borowsky and Defendants. The
court also granted motions in limine precluding trial evidence of or inquiry
into: (1) Brooks’ felony convictions from 1999; (2) “areas covered by a
previously-issued protective order, including Millennium Banc LTD,
National Lending Group” and Auto Title Loans USA; (3) “any person
unknown to Borowsky to whom Brooks has lent money;” (4) “any pawn
shops in which Brooks may have an interest or some connection;” (5)
“Johnson’s prior business, disputes, and litigation between Johnson and
Brooks” and (6) “Johnson’s alleged participation in the subject loans or a
RICO conspiracy.”

¶6 Following these rulings, the court held a 13-day jury trial in
October and November 2022 on Borowsky’s claims and Defendants’
counterclaims. During trial, Borowsky repeatedly violated the court’s
pretrial orders, including volunteering references to Brooks’ prior felony
conviction; conspiracies of Brooks’ and Johnson’s unrelated joint business
activities and Johnson’s unrelated business activities and his alleged
involvement in the loans, Millenium Banc LLC and Auto Title Loans USA.
Despite repeated warnings by the court, Borowsky continued to introduce
testimony and refer to evidence the court had precluded in its pretrial
rulings.

¶7 Outside the presence of the jury, the court then addressed the
issue with the parties. Johnson’s counsel noted the court’s pretrial orders
were “crystal clear” and Borowsky had violated the orders “about six
different ways in ten minutes” during his direct examination. The court
asked Borowsky’s counsel if Borowsky was aware of the evidence that was
precluded from trial. The court then addressed Borowsky directly: “I know
you have a story or narrative that you want to convey, but you have to do
that within the confines of the court’s rulings.” Borowsky responded that
he understood but claimed to lack knowledge that he was violating the
court’s orders. After an extended discussion, the court admonished
Borowsky directly and allowed his attorney to use leading questions in an
attempt to avoid additional violations of the court’s pretrial rulings.

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¶8 Despite these efforts, Borowsky continued to repeatedly
refuse to abide by the court’s directives. Borowsky then sought to avoid
answering questions during cross-examination, prompting the court to
repeatedly admonish him and strike non-responsive and prejudicial
answers dozens of times. Borowsky then tried to address the jury and
control questions during his testimony, despite the court directing he was
not allowed to do so. Throughout the 13-day trial, the court repeatedly
admonished Borowsky all six days he testified as well as other times.

¶9 During direct examination of Brooks, counsel advised the
court — without mentioning Borowsky by name — that “someone in the
courtroom is waving their hands, kicking their head back” in apparent
response to testimony. In response to Borowsky’s behavior, the court
“direct[ed] everybody in the courtroom not to be reacting to testimony as
it’s given” and admonished that if it continued to happen the court “will
have any offending party removed.” Again, however, Borowsky refused to
comply with the court’s orders. Instead, he was heard snickering and
snorting and laughing during Brooks’ testimony such that the court
directed Borowsky to control himself, warning that he would be removed
from the courtroom if he failed to do so.

¶10 Given Borowsky’s actions during trial, the court gave the
following curative instruction to the jury:

Mr. Todd Borowsky testified about various
things the court has ruled cannot be admitted or
considered by the jury because they are either
irrelevant to the issues before you or for some
other reason are inadmissible. Mr. Borowsky
was previously directed not to testify as to those
things and knowingly violated that directive.
The court struck that testimony and instructed
you not to consider those things. To reiterate,
you’re instructed to give no weight to that
testimony in assessing any claim or contested
fact or in assessing the credibility of any witness
in this lawsuit. You are to assume there’s no
evidence or factual basis to support such
statements and not speculate about the same.

¶11 At the close of Borowsky’s case, Brooks and Pate moved for
judgment as a matter of law on all counts. The court granted the judgment
as a matter of law for an invasion of privacy count but denied it for all other

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counts. Although the four loans in dispute totaled $200,000, after
deliberating, the jury awarded Borowsky compensatory damages of
$6,216,000 against Brooks, $4,875,000 against Johnson and $200,000 against
Pate. The jury awarded Borowsky $5,000,000 in punitive damages against
Brooks and $2,500,000 in punitive damages against Johnson.

¶12 Brooks and Pate then renewed their motions for judgment as
a matter of law and Defendants all moved for a new trial. Denying the
motions for judgment as a matter of law, the court granted Defendants’
motion for new trial based on Borowsky’s misconduct during trial. In a 20-
page minute entry, the court discussed the legal standard in Arizona for
granting a motion for new trial based on trial misconduct and summarized
Borowsky’s repeated trial misconduct. The superior court found it was
proper to infer resulting prejudice and concluded that a new trial as to all
claims and counterclaims was the proper remedy. As an additional
sanction, the court awarded Defendants attorneys’ fees incurred during
trial totaling more than $230,000.

¶13 This court has jurisdiction over Borowsky’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-201.21(A)(1) and –2101(A)(5)(a)(2024).1

DISCUSSION

¶14 “The grant or denial of a motion for new trial on grounds of
misconduct is a matter within the trial judge’s discretion.” Leavy v. Parsell, 188 Ariz. 69, 72 (1997). This court reviews a ruling on a motion for new trial
for an abuse of discretion, “given the record and circumstances of the case.”
Styles v. Ceranski, 185 Ariz. 448, 450 (App. 1996) (citation omitted); accord
State v. Fischer, 242 Ariz. 44, 48–51 ¶¶ 11–25 (2017) (discussing broad
discretion afforded to a trial court in addressing a motion for new trial in
criminal and civil cases).

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated. The court directed
the parties to provide supplemental briefing addressing jurisdiction, which
confirms this court has appellate jurisdiction. See Brumett v. MGA Home
Healthcare, L.L.C., 240 Ariz. 420, 430 ¶ 19 (App. 2016) (“compliance with
Rule 54(b) or 54(c) is not required for [appellate jurisdiction over] the
rulings specified in A.R.S. § 12-2101(A) . . . (5)(a).”).

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I. Borowsky Has Not Shown the Superior Court Erred in Granting
Defendants’ Motion for New Trial.

A. Arizona Legal Standards for Granting a New Trial Based on
Trial Misconduct.

¶15 When exercising its discretion in ruling on a motion for new
trial based on trial misconduct, “the judge must decide whether the
misconduct materially affected the rights of the aggrieved party.” Leavy, 188
Ariz. at 72 (citing cases). A new trial is “required only when it appears
probable that the misconduct ‘actually influenced the verdict.’” Id.
(emphasis added; citing cases); accord Ring v. Taylor, 141 Ariz. 56, 60–61
(App. 1984). Although prejudice is not presumed, “[i]f the misconduct is
serious, . . . the judge should resolve any doubt in favor of the party
aggrieved.” Leavy, 188 Ariz. at 72 (citing cases).

¶16 Appellate review of the grant of a motion for new trial is
limited.

When an appellate court reviews an order
granting a new trial for abuse of discretion, it
“look[s] to the broad scope of the trial and
do[es] not attempt to reweigh the facts.” The
appellate court’s role is to oversee the granting
of new trials and to ensure that the exercise of a
trial court’s broad discretion has a legal, rather
than an arbitrary, basis. The reviewing court
must “inquire whether substantial evidence
exists to support the trial court’s
determination.” If such evidence exists, then the
order is within the sound discretion of the trial
court and should be affirmed.

Fischer, 242 Ariz. at 51 ¶ 26 (citations omitted). Because the trial judge here
observed the trial misconduct, and because trial judges “disfavor new trial
motions and will generally grant them only with great caution,” Liberatore
v. Thompson, 157 Ariz. 612, 620 (App. 1988) (citations omitted), this court
reviews the grant of a motion for new trial “under a more liberal standard
than an order denying one,” Englert v. Carondelet Health Network, 199 Ariz.
21, 25 ¶ 5 (App. 2000) (citation omitted). Because “the trial judge who tried
the case and who personally observed the proceedings” ruled on the
motion, see Fischer, 242 Ariz. at 50 ¶ 21, this court will not reverse a new trial

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order based on trial misconduct “absent a clear showing of prejudicial
error,” Ring, 141 Ariz. at 61 (citations omitted).

¶17 Assessing prejudice resulting from trial misconduct is context
dependent and turns on the nature of the misconduct. Sometimes resulting
prejudice from trial misconduct is obvious from the cold record on appeal,
but sometimes it is not. Consistent with the deference owed to the trial
judge, “prejudice will be found when there has been significant misconduct
affecting the essential rights of a litigant and when the very nature of the
misconduct makes it impossible to determine the extent of prejudice.”
Leavy, 188 Ariz. at 73 (citations omitted).

The trial judge should find prejudice when . . .
(1) the misconduct is significant, especially if the
record establishes knowing, deliberate
violations of rules or court orders that a litigant
may confidently expect to be observed by his or
her adversary; (2) the misconduct is prejudicial
in nature because it involves essential and
important issues, but the extent is impossible to
determine in a close case; and (3) the
misconduct is apparently successful in
achieving its goals. In cases in which these
factors are present, prejudice should be
inferred, absent an affirmative showing to the
contrary by the guilty party.

Id. With this background, the court addresses Borowsky’s arguments.

B. The Superior Court Properly Set Forth the Applicable Legal
Standards for Considering Whether to Grant a Motion for
New Trial Based on Trial Misconduct.

¶18 Borowsky argues Leavy applies to “repeated, knowing,
deliberate misconduct by counsel.” Borowsky argues that Leavy does not
apply to witness conduct, or in the alternative, it must be applied “with less
rigor to non-attorneys who are not subject to ‘professional standards’ and
should be permitted more leeway than a licensed attorney.” Borowsky
provides no authority for this argument and offers no alternative standard
that he suggests should govern. Moreover, Borowsky’s argument
misinterprets the superior court’s ruling and Leavy itself.

¶19 The superior court granted a new trial under Rule 59(a)(1),
which provides a court may grant a new trial on various “grounds

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materially affecting [the moving] party’s rights,” including “misconduct of
the . . . prevailing party.” Ariz. R. Civ. P. 59(a)(1)(B). Thus, the court applied
the proper rule and standard in granting the motions for new trial.

¶20 The superior court cited and applied Leavy. It also cited and
applied several other binding Arizona appellate court decisions addressing
prejudice, trial misconduct and the appropriate relief in granting the
motions for new trial. See, e.g., State v. Gentry, 247 Ariz. 381 (App. 2019);
Varco, Inc. v. UNS Elec., Inc., 242 Ariz. 166 (App. 2017); State v. Hatch, 225
Ariz. 409 (App. 2010); Liberatore v. Thompson, 157 Ariz. 621 (App. 1988).
Accordingly, the court did far more than apply Leavy in concluding a new
trial was required based on Borowsky’s repeated trial misconduct.

¶21 Although Leavy addressed an attorney’s trial misconduct,
Borowsky has not shown how the principles in that case should not apply
to a party’s trial misconduct. That is particularly true given Borowsky’s
repeated violation of court directives given directly to Borowsky by the trial
judge. Rule 59(a)(1) and the cases relied upon by the superior court properly
provide guidance to determine the consequences for a party’s trial
misconduct. The superior court properly set forth the applicable legal
standards in Arizona for considering whether to grant a motion for new
trial based on trial misconduct.

C. Borowsky Has Not Shown the Superior Court Erred in
Applying Arizona Law.

¶22 Borowsky argues the superior court erred in finding the jury
was prejudiced because “none of [the three Leavy] factors—and certainly
not all three—are satisfied by Borowsky’s conduct.” The court addresses
these three factors in turn.

1. The Record Supports the Superior Court’s Finding
that Borowsky’s Misconduct Was Significant.

¶23 The first Leavy factor focuses on whether “the misconduct is
significant, especially if the record establishes knowing, deliberate
violations of rules or court orders that a litigant may confidently expect to
be observed by his or her adversary.” 188 Ariz. at 73. Borowsky argues that
“two passing references to Brooks’ criminal background . . . does not justify
a new trial because nothing but . . . speculation exists to demonstrate that
the fleeting testimony had any effect on the jury at all.” The record,
however, shows that Borowsky’s trial misconduct was far more significant
than these “two passing references.”

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¶24 During trial, Borowsky repeatedly violated the court’s
pretrial orders precluding evidence. Borowsky’s misconduct included
multiple unprompted references to (1) Brooks’ prior felony conviction,2 (2)
Brooks and Johnson’s unrelated joint business activities, (3) Johnson’s
unrelated business activities and his alleged involvement in the loan, (4)
Millenium Banc LLC and (5) Auto Title Loans USA. The superior court
explicitly precluded all those references in its pretrial orders. The court
explained its rulings to Borowsky personally, yet his improper conduct
continued.

¶25 Borowsky repeatedly refused to abide by the court’s
instructions to limit his answers to the questions asked. Borowsky
repeatedly attempted to avoid answering questions during cross-
examination, prompting the court to repeatedly admonish him and to
strike, on dozens of occasions, non-responsive, prejudicial responses by
Borowsky. In fact, the court admonished Borowsky every day he testified.
Borowsky then violated court orders when he tried to address the jury and
control the questions asked during his testimony despite being represented
by counsel throughout the trial.

¶26 Borowsky then disrupted trial proceedings while others
testified. During Brooks’ direct testimony, Borowsky was waving his
hands, kicking his head back, snickering, snorting and laughing in response
to Brooks’ testimony. Even after the court’s admonition, Borowsky’s
misconduct continued, and the court later directed Borowsky to control
himself if he did not want to be removed from the courtroom.

¶27 During oral argument on appeal, Borowsky conceded the
superior court had the discretion to grant a mistrial based on Borowsky’s
references to Brooks’ previous felony convictions in violation of the court’s
order in limine. Although arguing the court then was precluded from
waiting until after the verdict to grant a new trial, Borowsky has cited (and
the court has found) no rule that estopped the superior court from waiting
until the end of trial to assess the prejudicial nature of misconduct.

¶28 As shown by the record, Borowsky’s misconduct was a
prolonged series of knowing, deliberate, persistent misconduct that

2 Borowsky’s argument based on the superior court’s statement about how

many felony convictions Brooks has misses the mark. Borowsky was
precluded by the court’s pretrial order from referencing any felony
conviction, yet Borowsky repeatedly violated that order.

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violated court orders, rules and instructions. As this court noted not long
ago, “cumulative actions” may lead to granting a new trial based on
misconduct. Varco, 242 Ariz. at 173 ¶ 22 (citations omitted). On this record,
Borowsky has shown no error in the court concluding that his repeated trial
misconduct was significant.

2. The Record Supports the Superior Court’s Finding
that Borowsky’s Trial Misconduct Was Prejudicial.

¶29 The second Leavy factor asks whether “the misconduct is
prejudicial in nature because it involves essential and important issues, but
the extent is impossible to determine in a close case.” 188 Ariz. at 73. In
other words, “[t]he trial court must make a factual determination of
whether the misconduct has affected the result; as with most factual
determinations, this is a matter within [the trial court’s] discretion.” Grant
v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455 (1982). Borowsky raises two
challenges to the finding that his repeated trial misconduct was prejudicial.

¶30 Borowsky argues Leavy only applies “in a close case” and this
was not a close case. Borowsky bases this argument on the fact “the jury
overwhelmingly believed Borowsky and resoundingly disbelieved the
Defendants,” noting the jury found for Borowsky “on thirty-nine of his
claims, and only found against Borowsky on two of his claims. The jury also
rejected all five . . . counterclaims against Borowsky and issued verdicts in
Borowsky’s favor on every counterclaim.” Numerically, Borowsky
correctly counts the jury’s verdicts. But he overlooks the fact that those
verdicts resulted from a flawed trial given his repeated trial misconduct. In
granting a new trial, the superior court concluded that Borowsky’s repeated
trial misconduct materially affected Defendants’ rights. Flawed verdicts
following a party’s repeated trial misconduct are not a proper benchmark
to determine whether this was a close case.

¶31 The prolonged and hard-fought pretrial history here also
supports the superior court’s conclusion. In addressing the parties’
competing summary judgment motions, the court noted:

The evidence of record is significantly more
than documents, deposition transcripts, emails
and text messages; it is a web of relationships
and conduct that requires multiple levels of
determination of credibility to untangle . . . The
resolution of the claims in issue must be left to

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the trier of fact, who will have the opportunity
firsthand to assess the parties and their actions.

¶32 Borowsky argues his trial misconduct did not involve
“essential and important issues” because the “two passing references” to
Brooks’ prior felony convictions did not impact Brooks’ credibility. That
argument, as discussed above, significantly understates his trial
misconduct. And it does not account for the fact that witness credibility can
be an essential issue in cases, like this, involving diametrically conflicting
testimony. See Leavy, 188 Ariz. at 72 (noting “one of the improper remarks
was directly relevant to the issue of witness credibility, the essential issue
in this case of diametrically conflicting stories”). On this record, Borowsky
has failed to show that the court erred in finding his repeated trial
misconduct was prejudicial.

3. The Record Supports the Superior Court’s Finding
that Borowsky’s Trial Misconduct Apparently Was
Successful in Achieving His Goals.

¶33 The third Leavy factor looks at whether “the misconduct is
apparently successful in achieving its goals.” Id. at 73. Borowsky argues “a
new trial is not justified unless the [misconduct] actually can be shown to
have resulted in an erroneous verdict.” But as the cases Borowsky cites
discuss, the trial court need only “make a factual determination of whether
the misconduct has affected the result,” not a finding that the misconduct
caused an erroneous verdict. See, e.g., Liberatore, 157 Ariz. at 620 (citations
omitted); see also Ring, 141 Ariz. at 68 (requiring “the improper conduct
actually influenced the verdict”). Given evidentiary prohibitions, if nothing
else, the “but for” causation standard Borowsky advances would be
impossible to meet. See Ariz. R. Evid. 606(b)(1) (prohibiting inquiry into jury
deliberations “[d]uring an inquiry into the validity of a verdict in a civil
case”). Moreover, the misconduct itself may make it impossible to
determine the effect on the outcome. See Leavy, 188 Ariz. at 73 (citing cases).

¶34 The superior court recognized the verdicts and damages
awarded do not, in and of themselves, establish passion or prejudice. But
the duplicative and excessive nature of the damages awarded, in addition
to the evidence of Borowsky’s persistent trial misconduct on key issues,
supports the court’s conclusion that Borowsky’s misconduct affected the
outcome of the trial. That conclusion follows Varco, which applied Leavy’s
analysis and noted “[s]uch misconduct does not require a finding that the
jury has reached an erroneous result; indeed, misconduct itself may make
it impossible to determine the effect on the outcome. The [repeated trial

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misconduct] all support the court’s conclusion that Varco was prejudiced.”
242 Ariz. at 174 ¶ 25 (citations omitted).

¶35 Borowsky claims the superior court erred in granting a new
trial rather than ordering a remittitur, arguing deference was owed to the
jury’s damages award. White v. Greater Arizona Bicycling Association, the
authority Borowsky cites for that argument, reversed the denial of a motion
for new trial on damages. 216 Ariz. 133, 142 ¶ 30 (App. 2007). And White
did not involve trial misconduct, but found a new trial was warranted
because the jury found no compensable loss in a wrongful death action. Id.
at 135 ¶ 1. Although acknowledging White’s declaration that “it is a jury’s
role to determine the amount of damages,” id. at 138 ¶ 15, that directive
does not preclude the grant of a new trial following a trial infected with
repeated trial misconduct by a party. On this record, Borowsky has failed
to show the court erred in finding his repeated trial misconduct apparently
was successful in achieving his goals.

¶36 As the Arizona Supreme Court has noted, this court’s role on
appeal is to “determine whether, resolving every conflict in the evidence in
support of the order, substantial evidence supports the trial judge’s order”
granting a new trial. Fischer, 242 Ariz. at 52 ¶ 28. Here, substantial evidence
supports the superior court’s findings and the resulting grant of a new trial.
Accordingly, on this record, Borowsky has failed to show the court abused
its discretion in granting a new trial based on his repeated trial misconduct.

D. The Superior Court Did Not Err in Ordering a New Trial on
All Counts.

¶37 Arguing in the alternative, Borowsky asserts that there is “no
basis for ordering a new trial for Defendants Johnson and Pate.” Borowsky
claims it is “irrational and [] entirely speculative” to “impermissibly
presume that the jury was prejudiced against Pate and Johnson because
Borowsky said Brooks had a criminal record.” Again, Borowsky’s argument
profoundly understates his trial misconduct. He has also shown no abuse
of discretion in the court ordering a new trial on all counts.

¶38 “Limiting a new trial to only some of the issues lies within the
sound discretion of the court. Partial new trials are not recommended
because they create much opportunity for confusion and injustice.” Styles,
185 Ariz. at 451 (citing cases). “A partial trial should be granted when the
issues are not inextricably intertwined and can be separated without
prejudice to the parties. Any doubt should be resolved in favor of a trial on
all the issues.” Englert, 199 Ariz. at 27 ¶ 15 (citing cases); accord Ariz. R. Civ.

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P. 59(e) (“A new trial, if granted, must be limited to the question or
questions found to be in error, if separable.”) (emphasis added).

¶39 As discussed above, Borowsky’s trial misconduct extended
far beyond the testimony about Brooks’ criminal record and included
prejudicial and precluded testimony about both Brooks and Johnson.
Borowsky’s claims against Defendants included both direct and derivative
claims. The superior court, which saw the witnesses, heard the testimony
and personally observed the misconduct, found the claims and the parties
were “inextricably intertwined. Indeed, Borowsky alleged that
[Defendants] conspired together or aided and abetted one another with
respect to some of the alleged tortious conduct.” On this record, Borowsky
has failed to show that the court erred in granting a new trial on all counts.

II. The Superior Court Did Not Err in Awarding Defendants
Attorneys’ Fees.

¶40 Borowsky argues the superior court erred in awarding
Defendants attorneys’ fees incurred at trial as sanctions for the same
reasons he contends that the court erred in ordering a new trial. As
explained above, the court did not err in ordering a new trial based on
Borowsky’s trial misconduct. And awarding fees incurred at trial based on
a party’s trial misconduct requiring a new trial is an appropriate sanction.
Taylor, 130 Ariz. at 523 (citing authority). Thus, Borowsky has shown no
error in the court awarding Defendants their attorneys’ fees incurred
during the first trial.

III. Defendants Are Awarded Their Taxable Costs Incurred on
Appeal.

¶41 Borowsky requests his reasonable attorneys’ fees and costs
pursuant to A.R.S. § 12-341 and ARCAP 21. Brooks requests an award of
attorneys’ fees and costs incurred on appeal, citing ARCAP 21. Johnson and
Pate request an award of attorneys’ fees and costs incurred on appeal, citing
A.R.S. § 12-349 and ARCAP 21. Borowsky is not the successful party on
appeal. See A.R.S. § 12-341. Johnson and Pate have not shown Borowsky
violated A.R.S. § 12-349 in pressing this appeal. And ARCAP 21 is not an
independent basis for an award of attorneys’ fees. See ARCAP 21(a)(2). This
court has the discretion to decline to award fees if the requesting party does
not “specifically state the statute, rule, decisional law, contract, or other
authority for an award of attorneys’ fees.” Id. ARCAP 21(a)(2) “only
establishes the procedure for claiming attorneys’ fees and does not create
any substantive right to them.” Id.

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¶42 For these reasons, all requests for attorneys’ fees incurred on
appeal are denied. Defendants may recover their taxable costs incurred on
appeal contingent upon their compliance with ARCAP 21(b).

CONCLUSION

¶43 The orders granting a new trial and imposing an award of
attorneys’ fees as sanctions against Borowsky are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: JR

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