Background
Cohen Dowd Quigley PC represented Vivian Arriaga and Michael Cota in complex commercial litigation and arbitration against their former business partners beginning in October 2022. The clients paid all invoices in full — totaling $1,047,509 — through July 2023, then stopped paying. The firm withdrew in December 2023 and sued for $211,322.17 in unpaid fees covering August through November 2023. The clients did not dispute that the fees went unpaid, but asserted affirmative defenses of recoupment and setoff, claiming that earlier fees they had voluntarily paid were unreasonable and should offset what they owed.
A notable wrinkle: Firm partner Cindy Albracht-Crogan had provided the clients a declaration in the underlying arbitration attesting that all $1,047,509 in fees were reasonable. The clients relied on that declaration to obtain a $700,000 attorney-fee award as part of a $4,563,731.41 arbitration judgment. When the firm later submitted Albracht-Crogan’s declaration in the fee-collection suit — reaching the same reasonableness conclusion — the clients challenged it as an untimely and improperly disclosed expert opinion.
The Maricopa County Superior Court granted summary judgment for the firm on all claims and counterclaims, finding the firm had made a prima facie showing of reasonableness and that the clients had offered no evidence to the contrary. The clients appealed.
The Court’s Holding
The Court of Appeals affirmed, resolving four issues against the clients. First, the court held that Albracht-Crogan’s declaration was lay testimony, not expert testimony, because her reasonableness opinion was grounded in her first-hand observations of the work performed and, critically, in the clients’ own prior reliance on her identical declaration to obtain a $700,000 arbitration fee award — not in specialized legal expertise. Second, the court held that any timeliness objection to the firm’s supplemental disclosure (filed four days before the discovery cutoff) was waived because the clients never filed a discovery dispute as required by Arizona Rule of Civil Procedure 26(d)(2), and separately because they never sought additional discovery under Rule 56(d) after receiving the expanded disclosure.
The court agreed with the clients on one point: the trial court had misapplied the burden-shifting framework used for collateral fee requests, when instead the firm — as the attorney-party — bore the full burden to prove reasonableness by a preponderance of the evidence. But that error was harmless. The firm’s evidence (attorney qualifications, billing rates, time records, write-offs, complexity of the matter, and Albracht-Crogan’s supported lay opinion) was sufficient to meet the preponderance standard, and the clients failed to controvert a single factual assertion in the firm’s summary judgment motion on the merits. Because they offered no affirmative evidence of unreasonableness, there was no genuine dispute of material fact to send to a jury.
Third, the court rejected the clients’ challenge to the amount of unpaid fees, noting they had admitted the $211,322.17 figure in their answer and never moved to amend their pleadings. Fourth, the court awarded the firm its attorney fees and costs on appeal under A.R.S. § 12-341.01 as the prevailing party in a contract action.
Key Takeaways
- A lawyer’s testimony about the reasonableness of her own firm’s fees is lay testimony — not expert testimony requiring Rule 26.1(d) disclosure — when it is grounded in personal observation of the work performed and in the opposing party’s own prior conduct endorsing the same fees.
- Clients who fail to file a discovery dispute under Arizona Rule of Civil Procedure 26(d)(2) and fail to seek Rule 56(d) additional discovery waive timeliness objections to supplemental witness disclosures, even if those disclosures came close to the discovery cutoff.
- In attorney-client fee litigation, the attorney bears the burden of proving reasonableness by a preponderance of the evidence — not merely a prima facie showing — but a client who offers zero controverting evidence at summary judgment cannot survive that standard regardless of which burden framework the trial court applied.
- A party who relies on opposing counsel’s fee declaration to win a $700,000 arbitration award will face significant credibility and estoppel-type obstacles if it later tries to attack that same declaration as inadmissible or conclusory in subsequent fee-collection litigation.
Why It Matters
This decision reinforces the practical difficulties clients face when they attempt to use reasonableness challenges as a sword against a former attorney for fees already incurred — especially where their own litigation conduct has implicitly validated those fees. The clients here not only voluntarily paid over $1 million without objection, but actively leveraged the firm’s work product and fee declarations to win a multi-million-dollar arbitration award. Trying to flip that position in subsequent fee litigation, without producing any affirmative expert or lay evidence of unreasonableness, left the clients with no genuine factual dispute to litigate.
The decision also provides useful procedural guidance for Arizona practitioners: discovery timeliness objections must be preserved through the formal discovery dispute mechanism and, if disclosure gaps surface late, through a Rule 56(d) motion for additional discovery. Saving such objections for a summary judgment brief — without having triggered the court’s discovery oversight machinery earlier — will not preserve them.