QUIGLEY v. ARRIAGA

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COHEN DOWD QUIGLEY PC, Plaintiff/CounterDefendant/Appellee,

v.

VIVIAN ARRIAGA, et al., Defendants/CounterClaimants/Appellants.

No. 1 CA-CV 25-0774
FILED 06-16-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-019603
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Hienton, Curry, La Voy & Durham, PLLC, Phoenix
By Christopher A. La Voy
Counsel for Defendants/CounterClaimants/Appellants

By Alexander R. Arpad, Phoenix
Counsel for Plaintiff/CounterDefendant/Appellee

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.
QUIGLEY v. ARRIAGA, et al.
Decision of the Court

P E R K I N S, Judge:

¶1 Vivian Arriaga and Michael Cota (“Clients”) appeal from a
superior court ruling granting summary judgment in favor of Cohen Dowd
Quigley P.C. (“the Firm”) on the Firm’s claims for unpaid legal fees. For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In October 2022, the Firm began representing Clients in
litigation and arbitration against their former business partners. Clients
timely paid the Firm in full each month through July 2023. After paying the
Firm $1,047,509 in total, Clients stopped paying the Firm’s invoices in
August 2023. In December 2023, the Firm withdrew from representing
Clients, and sued them for breach of contract, seeking $211,322.17 in unpaid
fees that Clients incurred from August to November 2023. Clients conceded
they had not paid those fees. They asserted affirmative defenses of
“recoupment and setoff,” on the basis that some of the earlier fees they paid
were unreasonable and they should receive a credit for the unpaid fees.
Clients also filed counterclaims against the Firm, seeking to recover
unreasonable fees in addition to the credit offsetting their unpaid fees.

¶3 In August 2024, Cindy Albracht-Crogan, a partner at the Firm
who worked on Clients’ case, prepared a declaration for Clients in the
underlying arbitration, attesting that “the services rendered and [$1,047,509
in] fees charged in the [underlying matter] were reasonable.” Relying on
that declaration, Clients requested and were awarded $700,000 in attorney
fees for the work performed by the Firm as part of a $4,563,731.41 total
arbitration award.

¶4 In this matter, the superior court set the expert witness
disclosure deadline on October 18, 2024, and the close of discovery on
January 17, 2025. The Firm served its initial disclosure statement in
September 2024. It named Albracht-Crogan as an expected witness who
would “testify about the facts and legal theories described herein.” On
January 13, 2025, the Firm filed its first supplemental disclosure statement,
including a more detailed description of Albracht-Crogan’s expected
testimony. Her expected testimony included “the value of the legal
services” the Firm provided Clients, and that “[the Firm] appropriately
represented” Clients, “exhibited great care and diligence,” and devoted
“prudent” time and labor. Albracht-Crogan also would testify consistent
with any affidavits she made in the underlying matter.

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¶5 Both parties moved for summary judgment on the Firm’s
claims for unpaid fees. The Firm attached a declaration from
Albracht-Crogan, in which she described when the Firm sent each bill, the
write-offs deducted, how the Firm reviewed the invoices, and the
qualifications and billing rates of the attorneys that worked on Clients’ case.
Albracht-Crogan concluded the fees billed were reasonable. The Firm
argued that undisputed evidence showed that the Firm performed on its
contract with Clients, and Clients failed to pay $211,322.17 for that work.
And that Clients’ affirmative defenses—recoupment and setoff of
unreasonable past fees—fail because Clients voluntarily paid those past
fees. See Raba Kistner, Inc. v. Connect 202 Partners, LLC, __ Ariz. __, __, ¶ 30,
588 P.3d. 16, 23 (App. 2026) (under the “voluntary payment doctrine,”
parties generally cannot “recover money voluntarily paid with a full
knowledge of all the facts and without any fraud, duress, or extortion, [even
if] no obligation to make such payment existed.” (cleaned up)).

¶6 Clients did not dispute any facts in Albracht-Crogan’s
declaration. Instead, Clients argued her declaration was inadmissible
because it contained either expert testimony disclosed beyond the expert
disclosure deadline or lay testimony improperly withheld until shortly
before the close of discovery. And without Albracht-Crogan’s declaration,
the Firm had insufficient evidence to prove the fees were reasonable.
Clients also argued: (1) Albracht-Crogan’s declaration should be
disregarded as conclusory even if admissible; (2) the Firm’s claims should
be precluded because it withheld portions of the client file; and (3) the
voluntary payment doctrine did not apply because the Firm assured Clients
that their lack of objection to billings would not constitute waiver.

¶7 The court granted summary judgment for the Firm on all
claims and counterclaims because the Firm “made a prima facie showing that
its fees were reasonable given the nature of the litigation and the time spent
on the case[, and Clients] have not provided any evidence or explanation
why, in a complex commercial litigation case such as the underlying case
for which services were provided, the fees billed were unreasonable.” The
court did not directly address Clients’ untimely disclosure argument, but
noted that expert testimony is not required to prove attorney fees are
reasonable. The court did not address the voluntary payment doctrine or
Clients’ allegation that the Firm withheld parts of the client file.

¶8 Clients appeal the grant of summary judgment on the Firm’s
claim for unpaid fees. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

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DISCUSSION

¶9 On appeal, Clients argue that (1) Albracht-Crogan’s
declaration was inadmissible, (2) the superior court applied the incorrect
standard for assessing the reasonableness of attorney fees, (3) there were
genuine disputes of material fact regarding whether the fees were
reasonable, and (4) the Firm failed to establish the amount of the unpaid
fees. Clients have not maintained on appeal their argument that the Firm
withheld parts of the client file. That argument is waived. See Dawson v.
Withycombe, 216 Ariz. 84, 100, ¶ 40 n.11 (App. 2007).

I. Albracht-Crogan’s declaration was admissible.

¶10 Clients argue, as they did below, that Albracht-Crogan’s
declaration was inadmissible because the Firm never disclosed her as an
expert witness. Alternatively, they argue that even if Albracht-Crogan’s
declaration was merely lay testimony, it was untimely disclosed. We review
the superior court’s rulings on discovery and disclosure matters for an
abuse of discretion. Link v. Pima Cnty., 193 Ariz. 336, 338, ¶ 3 (App. 1998).
For the following reasons, we conclude that Albracht-Crogan’s declaration
was admissible.

A. Albracht-Crogan’s declaration was not expert testimony.

¶11 To introduce testimony based on a witness’s “scientific,
technical, or other specialized knowledge”—expert testimony—the
witness’s identity must be disclosed under Rule 26.1(d). Ariz. R. Evid. 702;
Ariz. R. Civ. P. 26.1(d)(1). Testimony “rationally based on the witness’s
perception . . . and not based on scientific, technical, or other specialized
knowledge” is lay testimony, which does not require disclosure under Rule
26.1(d). Ariz. R. Evid. 701; Ariz. R. Civ. P. 26.1(d)(1).

¶12 Albracht-Crogan’s declaration primarily consisted of facts
and events that she directly observed while representing Clients in the
underlying matter, such as the work performed by the Firm and the
communications between Clients and the Firm. Those observations are lay
testimony. Clients argue that the following three statements in the
declaration constitute expert testimony:

71. As evidenced by [Client’s] fee request in the arbitration,
the fees and costs [the Firm] incurred and billed to [Clients]
were reasonable.

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74. [The Firm] undertook legal tasks and activities, including
tasks and activities expressly requested by
[Clients], reasonable and appropriate to the prosecution of
[Clients] claims and to the defense of the claims asserted
against [Clients].

75. The rates charged by [the Firm] for its attorneys and
paralegals are reasonable and in line with (or less than)
market rates for legal professionals of similar experience
specializing in complex commercial litigation in Arizona.

¶13 Clients contend that this testimony is based entirely on
Albracht-Crogan’s “specialized knowledge.” See Ariz. R. Evid. 702. Not so.
Albracht-Crogan supported these statements by citing Clients’ request for
attorney fees in the underlying arbitration, which relied on a declaration
from Albracht-Crogan, attesting that “the services rendered and fees
charged in the [underlying matter] were reasonable.” Relying on that
declaration, Clients requested and were awarded $700,000 in attorney fees
for the work performed by the Firm. Thus, in Albracht-Crogan’s declaration
in this matter, she did not base her reasonableness testimony on her
specialized knowledge of commercial litigation. Rather, she claimed the
fees were reasonable “[a]s evidenced by [Client’s] fee request in the
arbitration” and thus based on the fact that Clients themselves had relied
on her earlier declaration that the fees were reasonable.

¶14 Because Albracht-Crogan based her reasonableness
testimony on her observations of Clients’ own contentions, and not her
legal expertise, it was lay testimony. Accordingly, the Firm was not
required to comply with Rule 26.1(d)’s expert disclosure requirements.

B. Clients waived any timeliness objections to Albracht-Crogan’s
testimony.

¶15 Clients are correct that the Firm’s description of
Albracht-Crogan’s testimony in its September 2024 initial disclosure
statement—that she would “testify about the facts and legal theories
described herein”—was not sufficiently detailed. Parties must disclose “a
description of the substance . . . of the testimony sufficient to fairly inform
the other parties of each witness’ expected testimony” and must amend its
disclosures “when new information is discovered or revealed.” Ariz. R.
Civ. P. 26.1(a)(3), (f)(2). But, on January 13, 2025, four days before the
disclosure deadline, the Firm provided its first supplemental disclosure
statement. And this disclosure included an amended description of

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Albracht-Crogan’s expected testimony that provided sufficient detail to
inform Clients of the testimony in her subsequent declaration. See Ariz. R.
Civ. P. 26.1(a)(3).

¶16 Clients argue that the Firm’s amendment to
Albracht-Crogan’s expected testimony was untimely disclosed only four
days before the close of discovery, preventing Clients “from deposing or
taking discovery on these untimely disclosed opinions.” They thus contend
her testimony was inadmissible, meaning her declaration was inadmissible.
Rule 37(c)(1) precludes the use of untimely disclosed evidence “at trial, at a
hearing, or with respect to a motion” unless the court finds “no prejudice
or orders otherwise for good cause.” But a party must file a discovery
dispute for a disclosure to be deemed untimely, otherwise that objection is
waived. See Ariz. R. Civ. P. 26(d)(2) (“When the parties have a [discovery]
dispute . . . they must file with the court a joint statement of discovery or
disclosure dispute . . . [and] attach[] a good faith consultation certificate.”);
Est. of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9 (2000)
(objections to improper disclosures not made contemporaneously are
waived).

¶17 Clients did not initiate a discovery dispute and raised their
objections for the first time in their motion for summary judgment. The lack
of a discovery dispute deprived the court of the opportunity to determine
whether the disclosure was improper, made in good faith, or if it prejudiced
Clients. See Ariz. Civ. P. 26(d)(2) (“The purposes of the joint statement are
to notify the court of the dispute, and to make a record of the discovery or
disclosure sought.”), (3) (allowing courts to hold hearings to resolve
discovery disputes). Clients argue that they could not have initiated a
discovery dispute before the amended disclosure because they did not
know that the Firm planned to introduce testimony on the reasonableness
of its fees. We are not persuaded. In Clients’ answer, they raised the
unreasonableness of the fees as an affirmative defense. And the Firm’s
initial disclosure statement listed Albracht-Crogan as a witness, who, less
than a month earlier, had provided Clients with a declaration for their fee
application explaining that the fees were reasonable. Clients cannot claim
to have been surprised by Albracht-Crogan’s reasonableness testimony. By
failing to challenge the Firm’s incomplete initial disclosure through a
discovery dispute, Clients waived their objections to the Firm’s amended
disclosure. See Est. of Reinen, 198 Ariz. at 286, ¶ 9.

¶18 Regardless, Clients also waived their objections to the
amended testimony by failing to seek additional discovery under Rule
56(d) after receiving it. If Clients required more discovery after the Firm

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disclosed the expanded version of Albracht-Crogan’s expected testimony,
“it was incumbent upon [Clients] to request” additional discovery under
Rule 56(d). Edwards v. Bd. of Supervisors, 224 Ariz. 221, 223–24, ¶ 19 (App.
2010) (applying Rule 56(f), the predecessor to current Rule 56(d)).

II. Summary judgment was proper even though the superior court
applied the incorrect reasonableness standard.

¶19 Clients argue the court improperly placed the burden on them
to prove the fees were unreasonable. We review a grant of summary
judgment de novo, construing the facts and reasonable inferences in the light
most favorable to the non-moving party. Wells Fargo Bank, N.A. v. Allen, 231
Ariz. 209, 213, ¶ 14 (App. 2012). Summary judgment is appropriate when
“the moving party shows that there is no genuine dispute as to any material
fact and [it] is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a).

¶20 The moving party bears the initial burden of production—the
responsibility to show there is no genuine issue of material fact. Nat. Bank
of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 15 (App. 2008). If the moving party
makes the requisite showing, the burden of production shifts to the
non-moving party, meaning it must “set forth specific facts showing a
genuine issue for trial.” Ariz. R. Civ. P. 56(e). If the moving party has the
ultimate burden to prove a claim or affirmative defense at trial, it has the
burden of persuasion at summary judgment—the responsibility to
persuade the court that any reasonable juror would find in its favor on those
claims or defenses. Thruston, 218 Ariz. at 115, ¶ 16; Allen, 231 Ariz. at 213, ¶
18. The “burden of persuasion never shifts to the non-moving party.” Allen,
231 Ariz. at 213, ¶ 17.

¶21 Here, the parties agree that, in litigation between an attorney
and a client over fees, the burden “must be on the attorney” to establish the
reasonableness of the fees by a preponderance of the evidence. Ohliger v.
Carondelet St. Mary’s Hosp. & Health Ctr., 173 Ariz. 597, 598 (App. 1992). That
is because the attorney “will have the best access to the information
necessary to assist the court.” Id. Therefore, the Firm had the burden of
production and persuasion regarding the reasonableness of the fees. In
other words, the Firm had to produce undisputed evidence establishing by
a preponderance of the evidence that the fees were reasonable.

¶22 Clients argue that the court did not require the Firm to prove
reasonableness by a preponderance of the evidence, instead requiring only
a prima facie showing of reasonableness. Such a prima facie showing is
appropriate in a collateral request for attorney fees. McDowell Mountain

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Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266, 270–71, ¶ 20 (App. 2007).
The party requesting fees must submit only an affidavit setting forth certain
facts—the type of legal services, when the services were provided, the time
spent, and who the provider was—in sufficient detail to allow the court to
assess the reasonableness of the time incurred. Id.; Schweiger v. China Doll
Rest., Inc., 138 Ariz. 183, 188 (App. 1983). Once those “minimum
requirements” are met, “the burden shifts to the party opposing the fee
award to demonstrate” that the requested fees are unreasonable. Nolan v.
Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 491, ¶ 38 (App. 2007).

¶23 We agree with Clients that the court improperly applied the
collateral-fee request burden-shifting framework. Citing collateral-fee
request cases, the court stated:

To prevail on summary judgment in a fee dispute, an attorney
must demonstrate the reasonableness of the fees requested.
This involves making a prima facie showing that the fees were
reasonable, after which the burden shifts to the opposing
party to show that the fees were excessive/unreasonable. An
attorney must provide detailed evidence to support the
reasonableness of the fees requested. This typically includes
an affidavit based on contemporaneous billing records,
specifying the time spent, the tasks performed, and the hourly
rates charged. See Geller v. Lesk, 230 Ariz. 624, 285 P.3d. 972
(App. 2012). Contrary to [Clients’] position, this requirement
does not require an expert. Instead, an affidavit from the
attorney who provided the services is sufficient. See [China
Doll Restaurant, Inc., 138 Ariz. 183].

The court erred by requiring the Firm to make only a prima facie showing
that the fees were reasonable, instead of requiring the Firm to prove
reasonableness by a preponderance of the evidence.

¶24 Despite that error, we will affirm the grant of summary
judgment for any reason supported by the record. Citibank (Ariz.) v. Van
Velzer, 194 Ariz. 358, 359, ¶ 5 (App. 1998).

¶25 To determine whether fees are reasonable, courts consider (1)
the attorney’s training, education, experience, professional standing, and
skill, (2) the difficulty, intricacy, and complexity of the work, (3) “the skill,
time, and attention given to the work[,]” and (4) “whether the attorney was
successful and what benefits were derived.” Schwartz v. Schwerin, 85 Ariz.
242, 245–46 (1959). The Firm provided evidence of the attorneys’

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qualifications, billing rates, time spent, the write-offs deducted, the lead
attorney Albracht-Crogan’s description of the complexity and importance
of the work, and her lay opinion that “the fees and costs the Firm incurred
and billed to [Clients] were reasonable.” Contrary to Clients’ claims,
Albracht-Crogan’s reasonableness opinion was not conclusory; rather it
was supported by a detailed showing on each of the relevant factors, and
the Clients’ implicit approval of Albracht-Crogan’s reasonableness opinion
by relying on it in their arbitration fee application. The Firm thus carried its
burden to produce undisputed evidence “that would compel any
reasonable juror to find in its favor on every element of its claim.” Comerica
Bank v. Mahmoodi, 224 Ariz. 289, 293, ¶ 20 (App. 2010).

¶26 At that point the burden of production shifted to Clients,
meaning that to defeat summary judgment they had to “set forth specific
facts showing a genuine issue” as to the reasonableness of the fees. Ariz. R.
Civ. P. 56(e).

¶27 On appeal, Clients argue that there were genuine disputes of
material fact as to the reasonableness of the fees due to the lack of results
the Firm obtained and alleged bill-padding tactics such as block-billing. But
in opposition to summary judgment in superior court, Clients presented no
evidence to controvert the Firm’s reasonableness evidence. Clients’
responsive statement of facts did not dispute a single fact alleged in the
Firm’s motion for summary judgment on the basis that those facts were not
true. Clients’ only objections were that some of the facts were inadmissible
due to improper disclosure of Albracht-Crogan’s expected testimony. And,
as we explained, supra ¶¶ 10–18, Albracht-Crogan’s declaration was
admissible. Clients thus failed to show any genuine disputes of fact as to
the reasonableness of the fees. See Sato v. Van Denburgh, 123 Ariz. 225, 228
(1979) (failure to controvert a motion for summary judgment with affidavits
or other evidence means admission of the movant’s version of facts); see,
e.g., Aesthetic Prop. Maint. Inc. v. Capitol Indem. Corp., 183 Ariz. 74, 78 (1995)
(a party that does not dispute facts in opposing summary judgment, other
than objecting to their relevance, admits those facts); Mahmoodi, 224 Ariz. at
292, ¶ 16 n.3 (“A party opposing a motion for summary judgment is not
entitled to proceed to trial on the mere hope that the jury will disbelieve
uncontroverted testimony.”).

¶28 So, even though the court applied the improper
reasonableness standard, we affirm the grant of summary judgment
because the record shows that the Firm produced undisputed evidence that
established by a preponderance of the evidence the fees were reasonable.
We recognize that the fee agreement required the Firm to bill Clients only

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for the “fair value of services render[ed.]” But Clients have not sufficiently
developed an argument that the Firm’s fees could be reasonable yet do not
constitute fair value. See State v. Bolton, 182 Ariz. 290, 298 (1995) (failure to
offer argument sufficient for appellate review waives claim). So we need
not conduct a separate fair value analysis.

III. The amount of the unpaid fees was undisputed.

¶29 Clients also argue there is a genuine dispute as to the amount
of unpaid fees because the Firm did not offer all the unpaid bills into
evidence. But Clients admitted to the amount of unpaid fees in their answer.
So Clients could not dispute the amount of unpaid fees at summary
judgment unless they amended their pleadings. See Black v. Perkins, 163
Ariz. 292, 293 (App. 1989). And Clients did not object to the amount of the
fees in their opposition to the Firm’s motion for summary judgment. As
mentioned, supra ¶ 27, Clients did not dispute any facts in the Firm’s motion
for summary judgment on the basis that those facts were not true. The
amount of the unpaid fees was not in dispute.

IV. The Firm is entitled to attorney fees and costs on appeal.

¶30 Both parties request attorney fees on appeal under Arizona
Revised Statutes Section 12-341.01. Because this action arose out of a
contract, and the Firm is the successful party on appeal, we award the Firm
its reasonable attorney fees and costs upon compliance with ARCAP 21. See
A.R.S. § 12-341.01(A).

CONCLUSION

¶31 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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