Had the Caubles complained back in January 1983 about the amount of fees being charged by the Receiver, assuming no resolution of the The prejudice to the Receiver in this matter is obvious.
#OSSELAER REAL ESTATE MANAGEMENT TRIAL#
§ 12-341.01 and, if so, whether the trial court abused its discretion in fixing the amount of attorney's fees awarded. The appeal presents the following issues for our consideration: (1) whether the trial court abused its discretion in reducing Osselaer's management fee (2) whether the trial court should have held Cauble's claim for reduction of the management fee to have been barred by laches (3) whether Cauble was eligible for an award of attorney's fees under A.R.S. Osselaer and his surety appeal from a judgment in favor of appellees Cauble requiring Osselaer to refund a portion of the compensation and expenses he charged against the income from the encumbered premises during his receivership, and awarding attorney's fees to Cauble pursuant to A.R.S. In this case court-appointed receiver Thomas F.25, 1986), in which we held that an accountant's duty of care to his client existed separate and apart from the contract that created the relationship between the parties, and that a successful plaintiff in an accountant malpractice action was not eligible for an award of attorney's fees under A.R.S. Miller Wagner Co., Ltd., CA-CIV 7809 (Ariz.App. at 591, 653 P.2d at 48 (emphasis in original). § 12-341.01 is applicable is whether the "action in tort could not existġ33 Ariz. That the test to be applied in determining whether the "arising out of contract" language of A.R.S. We therefore do not construe the "factor test" adopted inĪSH to mean that simply because a contract is peripherally involved in a cause of action, A.R.S. The factor giving rise to the litigation. As the court noted "it is that contract which prompted the suit." This language was used in the context of an action by an unsuccessful bidder to invalidate a contract between a public body and the successful bidder. § 12-341.01, the words `arising out of a contract' describe an action in which aĬontract was a factor causing the dispute."Ħ73 P.2d at 936 (emphasis added). Go toĪSH this court held that "as used in A.R.S. Viewed against that standard, the record reveals no abuse of discretion. Instead, we must uphold the trial court's determination unless we find it is without any evidence to support it or is absolutely contrary to the uncontradicted and unconflicting evidence on which it purports to rest. Where a factual determination within the trial court's discretion is challenged on appeal, we cannot reweigh the evidence and substitute our own evaluation of it. Osselaer argues that given the facts revealed by the record, the trial court abused its discretion in reducing his management fee. Osselaer acknowledges that the fixing of a receiver's management fee is within the trial court's discretion. The trial court reduced Osselaer's management fee from $4,800 to $2,327.32, which is approximately seven percent of the gross rental income generated by the property during the receivership.
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