NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 Richard and Vicky Venable appeal from a number of trial court orders culminating in the dismissal with prejudice of their personal injury action. For the reasons that follow, we affirm the trial court's dismissal order and judgment.

Factual and Procedural Background

¶2 On January 3, 2013, a vehicle driven by defendant C. Scott Burton struck Richard Venable in or near the driveway of an apartment complex. Burton, who was delivering pizzas for co-defendant Angelo's Pizza & Gyros, told the responding officer he was looking at his GPS2 and did not realize he had left the roadway until he had struck Venable, who was in a wheelchair.

¶3 In July 2013, the Venables filed a personal injury action alleging "bodily injury . . . requiring extensive medical and surgical treatment," primarily associated with an injury to Richard's right leg, as well as "property damage," "pain and anguish," and "mental distress." An amended scheduling order set an initial disclosure deadline at the end of June 2014, before which Richard indicated in a response to a uniform interrogatory that none of his current injuries were a result of any previous accidents. However, at a deposition in May 2014, Richard testified he required the use of a wheelchair because of injuries sustained in 2003 after a "drunk driver pulled out of a driveway and ran [him] over in the middle of the street." He also testified that his health in 2012 "was very, very good," and when asked if there were any other accidents between 2003 and 2013, Richard indicated he thought there was one other accident but that he had no idea what year it was and nobody had been injured.

¶4 Because the Venables concluded medical records predating the 2013 accident would be irrelevant to the instant case, they provided none in their initial disclosure statements. Notwithstanding the lack of disclosure, Richard asserted in his deposition that the accident with Burton had caused an increase in pain in his legs, exacerbated his depression, aggravated his PTSD,3 increased impairment of his upper extremities, and may have caused the onset of atrial fibrillation. Because of these claims, Burton sought to compel the production of previously undisclosed medical records. The trial court rejected the Venables' assertion that the undisclosed material was privileged, and ordered them to produce the records.

¶5 Shortly thereafter, Richard changed his deposition testimony to indicate he had been injured in the previously disclosed accident. In light of his changed testimony, the trial court granted Burton's opposed request to depose Venable a second time. Prior to the second deposition, Burton's co-defendant discovered medical records indicating Richard was not only injured in an accident in 2010, but he also sought treatment from a chiropractor for injuries related to another automobile accident in 2012. As a result of the newly discovered injuries, Burton filed a motion for sanctions in which he alleged "willful[] and intentional[] fail[ure] to disclose information regarding two prior accidents."

¶6 During his second deposition in September 2015, Richard claimed to have forgotten about the 2012 accident until both his wife and his chiropractor had reminded him of it. In its sanctions ruling, the trial court described Richard's behavior at the deposition as "demonstrating hostility" by "refusing to answer questions" or advising opposing counsel they could "find their answer in the records." Moreover, Richard later testified at an evidentiary hearing on Burton's sanctions motion that he had asked his chiropractor to not disclose any medical records that predated the January 2013 accident, although he later changed his testimony on that point.

¶7 In ruling on Burton's sanctions motion, the trial court noted there was evidence "indicating clearly" that Richard's counsel had represented him in connection with both the 2010 and 2012 accidents, and concluded it was "not entirely certain whether the blame in this case lies solely with Venable or whether it lies with . . . Venable and his attorney." Accordingly, the court ordered, among other sanctions, that the Venables deposit with the clerk of court fees and costs incurred by the defendants for certain depositions and motions. When they failed to do so, the court dismissed their claims against Burton.

¶8 On appeal, the Venables argue the trial court abused its discretion by imposing sanctions. They additionally contend the court improperly denied their request for partial summary judgment, erred by allowing Burton to contest the reasonableness of Richard's medical bills, and erroneously rejected his medical privilege claim. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1), and Ariz. R. Civ. App. P. 9(c).

Sanctions

¶9 The Venables first argue the trial court imposed sanctions (1) "without a proper legal basis," (2) under circumstances involving no prejudice, and (3) failed to consider lesser penalties. We review the imposition of sanctions for discovery violations for an abuse of discretion, and will defer to explicit or implicit factual findings supported by reasonable evidence. Roberts v. City of Phoenix, 225 Ariz. 112, ¶ 24, 235 P.3d 265, 272 (App. 2010).

Legal Basis for Sanctions Order

¶10 The Arizona Rules of Civil Procedure impose on litigants a continuing duty to disclose any documents that may be relevant to the lawsuit. See Ariz. R. Civ. P. 26.1(a)(9) (each party must disclose documents "that may be relevant to the subject matter of the action"); Ariz. R. Civ. P. 26.1(d)(2) ("The duty of disclosure prescribed in Rule 26.1(a) is a continuing duty."). "A party's or attorney's knowing failure to timely disclose damaging or unfavorable information shall be grounds for imposition of serious sanctions in the court's discretion." See 186 Ariz. LXXXIII-IV.

¶11 As noted above, the trial court found the Venables had failed to timely disclose relevant medical records and ordered that they deposit with the clerk of court attorney fees and costs associated with certain motions and depositions. In doing so, the court specifically noted that Richard had refused to answer questions during his second deposition, and at one point admitted he instructed his chiropractor to not disclose certain medical records, which were discovered only when the defendants subpoenaed records from Richard's insurance company. The court likened the situation to Rivers v. Solley, 217 Ariz. 528, 177 P.3d 270 (App. 2008), noting "Plaintiff[s] in both cases failed to disclose previous car accidents." The court directed that the deposited fees would offset any favorable judgment obtained by the Venables and that the lawsuit would be dismissed if they did not comply with the sanctions order.

¶12 On appeal, the Venables contend the chiropractor was disclosed "[s]ome six months before the scheduled trial," and they had provided Burton an authorization to obtain "all of [Richard's] . . . records" from the chiropractor. But it is undisputed that Richard failed to disclose, on both an interrogatory and at his deposition, that he was injured in two additional accidents between 2003 and 2013, and the fact that he provided authorization forms does not excuse his concealment of injuries related to the two previous accidents. On this point, the Venables only reassert that the injuries sustained in 2010 and 2012 were "unrelated" to the instant case and therefore privileged, an argument the trial court rejected on numerous occasions. We too find the Venables privilege argument unavailing.

¶13 First, the Venables contend the trial court "misinterpreted the law" when it "overrul[ed] [their] medical privilege to . . . medical records unrelated to [Richard]'s fractured tibia" and "eviscerated [his] privacy by allowing the very persons who harmed him to paw through the most intimate details of his pre-existing medical conditions." Burton responds that the Venables waived any privilege by claiming the accident at issue exacerbated various other injuries from previous accidents. The existence of an evidentiary privilege is a question of law subject to our de novo review. Carondelet Health Network v. Miller, 221 Ariz. 614, ¶ 8, 212 P.3d 952, 955 (App. 2009); Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App. 1994).

¶14 "Arizona law recognizes that physician-patient communications are privileged." Phx. Children's Hosp., Inc. v. Grant, 228 Ariz. 235, ¶ 8, 265 P.3d 417, 419 (App. 2011); see also A.R.S. § 12-2235 (statutory privilege). The privilege is waived, however, with respect to a particular medical condition where a privilege holder places such condition at issue. Bain v. Superior Court, 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986). In this case, the Venables alleged major injuries to Richard's right leg as a result of being struck by Burton's vehicle, as well as "pain and anguish and physical impairment and mental distress." Specifically, at his first deposition Richard alleged several collateral effects from the accident including the exacerbation of previous impairment to both his upper and lower extremities. Although Richard's attorney later indicated he was willing to limit his claims to the physical injury to Richard's right leg only, it appears no such stipulation was ever filed or agreed upon. Barring such an agreement, we cannot say the trial court erred by rejecting the claim that the medical records from the 2010 and 2012 motor vehicle accidents were "unrelated" and privileged.

¶15 Second, the Venables assert that an in-camera review of all medical records was required and the trial court erred in not conducting one. But they have not indicated at what point they requested such a review. To preserve a claim for appellate review, a party must present its legal theories to the trial court so as to give the court an opportunity to properly rule. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App. 2007). The Venables did not do so here, and thus have not preserved this argument for review. Accordingly, we do not further address their contention that the trial court lacked an adequate legal basis for imposing sanctions.

Prejudice

¶16 The Venables also argue the sanctions order was inappropriate because "[t]he [t]rial [c]ourt failed to point to a single iota of prejudice." As Burton notes, however, the trial court's order expressly rejected this argument. In the November 2016 sanctions ruling, the court observed that the defendants' medical expert would not be available to testify at trial, and at the time of her video deposition full medical records from the 2010 and 2012 accidents were not available for her review. Moreover, several days after the doctor's recorded trial deposition, the Venables disclosed a new expert witness, whom, because of the late disclosure, the defendants' would have been unable to rebut with their expert who had already memorialized her testimony.

¶17 In their reply brief, the Venables assert there was nothing about either the 2010 or 2012 "injury or its treatment [that] is `damaging or unfavorable' to Richard's pending claim." They argue the defendants' expert had reviewed Richard's medical records, but do not controvert that additional records were discovered after the doctor had recorded her trial testimony. And their argument that "there is simply no basis to establish those two pages had any consequence to the [defendants' retained] physician whatsoever" is unsupported, as they have failed to identify the records referred to. Cf. Myrick v. Maloney, 235 Ariz. 491, ¶ 12, 333 P.3d 818, 822 (App. 2014) (appellant carries burden of showing the trial court erred). Given the "considerable latitude" afforded trial courts in these situations, see Rivers, 217 Ariz. 528, ¶ 27, 177 P.3d at 275, quoting Zimmerman v. Shakman, 204 Ariz. 231, ¶ 16, 62 P.3d 976, 981 (App. 2003), we cannot say the court erred in rejecting the Venables' lack-of-prejudice argument.

Lesser Sanctions

¶18 Finally, the Venables argue the trial court erred by not considering lesser sanctions. The court's order, however, expressly noted it had not only considered a lesser sanction, but in fact would impose the lesser of the sanctions considered. Specifically, the court stated that although dismissal was a "possible sanction," it had decided to "not impose the most drastic sanction" because the Venables' attorney may also have been at fault. The Venables' assertion that the court did not consider lesser sanctions is clearly controverted by the record.

¶19 The Venables offer a related argument in which they contend the trial court erred by not making the "express findings" identified by this court in Seidman v. Seidman, 222 Ariz. 408, ¶ 20, 215 P.3d 382, 385-86 (App. 2009). In that case, we held that due process requires specific findings before a default judgment can be entered. Id. ¶¶ 19-20. But there was no default judgment here, and the Venables have offered no persuasive reason why those same findings are required where, as here, a party is allowed to continue in the action but certain fees on deposit with the clerk of court are to be credited against any favorable judgment. In sum, the Venables have not established that the trial court erred or abused its discretion by ordering sanctions and ultimately, after the Venables did not comply with the lesser sanction, dismissing the case against Burton.4

Attorney Fees

¶20 Both parties have requested attorney fees and costs pursuant to Rule 21, Ariz. R. Civ. App. P. As the prevailing party, Burton is entitled to his costs upon compliance with the procedural requirements of that rule. A.R.S. § 12-341. However, he has failed to provide an adequate legal basis for an award of fees, as required by the rules, and we therefore deny his request. See Ariz. R. Civ. App. P. 21(a)(2); Roberts, 225 Ariz. 112, ¶ 49, 235 P.3d at 277 (denying attorney fees for failure to provide supporting authority).

Disposition

¶21 For the reasons stated above, the trial court's judgment is affirmed.