Opinion
No. 1 CA-CV 14-0600
12-17-2015
EASTWOOD PARK HOMEOWNERS ASSOCIATION, an Arizona nonprofit corporation, Plaintiff/Appellee, v. C. DEAN CATHEY, individually and as Trustee of the 520 Stapley Drive Trust dated August 20, 2008, Defendant/Appellant.
COUNSEL Maxwell & Morgan, PC, Mesa By Charles E. Maxwell, Nicole Miller Counsel for Plaintiff/Appellee Jackson White, P.C., Mesa By Bradley D. Weech, Roger R. Foote Counsel for Defendant/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2009-092933
The Honorable Mark F. Aceto, Retired Judge
AFFIRMED
COUNSEL Maxwell & Morgan, PC, Mesa
By Charles E. Maxwell, Nicole Miller
Counsel for Plaintiff/Appellee Jackson White, P.C., Mesa
By Bradley D. Weech, Roger R. Foote
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. THUMMA, Judge:
¶1 This dispute started in 2008 as a claim in Justice Court for less than $1,700 in condominium fees. Since that time, the parties have litigated in superior court, in an appeal to this court, in superior court again, in compulsory arbitration, in superior court again, in an attempted second appeal to this court, in superior court again and now this third appeal. Appellant C. Dean Cathey challenges a judgment against appellee Eastwood Park Homeowners Association (HOA), awarding Cathey his costs but not his attorneys' fees. Finding no error, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In August 2008, Karl Conover signed a deed transferring a condominium unit subject to the HOA to Cathey, identifying Cathey as both trustee and beneficiary of a named trust. At that time, Conover was obligated to pay the HOA condominium fees but had failed to do so. The next month, Cathey assigned the interest in the trust back to Conover.
¶3 In August 2009, the HOA filed this case against Cathey. Count One was a lien foreclosure claim, naming Cathey as trustee. Count Two was a contract claim seeking approximately $6,500, naming Cathey individually. The complaint sought attorneys' fees, including under Arizona Revised Statutes (A.R.S.) sections 12-341.01 and 33-1807 (2015). While self-represented, Cathey filed an answer and counterclaim, but no claim for attorneys' fees. The superior court granted the HOA's motions for summary judgment on its claims and to dismiss Cathey's counterclaim. Cathey then retained an attorney, who filed a notice of appearance that requested attorneys' fees and costs. Cathey, however, did not seek to amend his pleading to request fees. Judgment then entered reflecting the court's rulings.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
¶4 Cathey timely appealed, challenging that portion of the judgment holding him liable in his individual capacity for Count Two. This court affirmed in part, reversed in part and remanded for further proceedings. Eastwood Park Homeowners Ass'n v. Cathey, 1 CA-CV 10-0463, at 7 ¶ 14; 2012 WL 6599869, at *2 (Ariz. App. Dec. 18, 2012) (mem. decision).
¶5 The remanded claim was subject to compulsory arbitration. See Ariz. R. Civ. P. 72-76. Along with appointing an arbitrator, the superior court noted the case would be dismissed without further notice unless an appeal from arbitration was filed by January 10, 2014. On December 17, 2013, the arbitrator entered an Arbitration Award finding for Cathey and awarding him costs but not attorneys' fees. Cathey unsuccessfully asked the court to extend the January 10, 2014 deadline and, on January 16, 2014, filed a motion with the arbitrator seeking an award of fees and also filed an appeal from arbitration with the superior court. The HOA moved to strike the appeal as untimely, also arguing Cathey had no claim for fees because he failed to make a fee request in his pleading. See Ariz. R. Civ. P. 54(g)(1). The court ruled Cathey's January 16, 2014 appeal was "untimely and ineffective." Cathey's attempt to appeal that ruling to this court was dismissed for lack of an appealable order.
¶6 After additional motion practice, Cathey moved to amend his pleading to add a claim for attorneys' fees "pursuant to A.R.S. § 12-341.01, the contract if one is found and A.R.S. § 33-1807(H)." The superior court denied that motion and entered the Arbitration Award as the court's judgment, awarding Cathey costs but not fees. From Cathey's timely appeal, this court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶7 Because the Arbitration Award found for Cathey and awarded him costs, the only relief he seeks on appeal is an award of attorneys' fees. Accordingly, if Cathey is barred from recovering fees, as the HOA argues, the appeal is moot. Because the HOA's mootness argument is dispositive, it is unnecessary to address the parties' other arguments. First Credit Union v. Courtney, 233 Ariz. 105, 107 ¶ 7 (App. 2013) (noting this court may affirm if judgment is correct for any reason).
¶8 A "claim for attorneys' fees shall be made in the pleadings." Ariz. R. Civ. P. 54(g)(1). The only pleading Cathey filed was his answer and counterclaim, which did not include a claim for fees. Ariz. R. Civ. P. 7(a). Although his attorney's subsequent notice of appearance does request fees, a notice of appearance is not a pleading. Id. "The Arizona Supreme Court's use of the words 'shall be made in the pleadings' in Rule 54(g)(1) indicates its intent for the trial court to award fees under Rule 54(g)(2) only if the fees were previously claimed in one of the pleadings listed in Rule 7(a)." King v. Titsworth, 221 Ariz. 597, 599 ¶ 11 (App. 2009). Cathey did not seek leave to amend his pleading when his attorney became involved as Rule 54(g) required. See id. at 598 ¶¶ 4-7.
¶9 In King, as here, a self-represented party (Titsworth) filed a pleading that did not include a claim for attorneys' fees. 221 Ariz. at 598 ¶4. In King, as here, the self-represented party then hired an attorney who appeared but did not move to amend the pleadings to make a claim for fees. Id. In King, as here, that same party then prevailed and requested a fee award. Id. at 598 ¶ 5. King rejected a claim that Rule 54(g) did not apply because the pleading was filed when Titsworth was self-represented:
Titsworth also argues that he should be excused from the requirement to make a claim for fees in the pleadings because "there were no attorney[s'] fees to 'recover'" at the time he filed his answer as a pro per defendant. We are likewise not persuaded by this argument. Once Titsworth retained counsel, he could have moved to amend his answer to assert a claim for attorneys' fees. Since Titsworth did not make a claim for attorneys' fees in his initial pleading or in an amended pleading, the trial court's award of fees to Titsworth was in error and is vacated.221 Ariz. at 600 ¶ 16. Under King, Cathey was required to comply with Rule 54(g) but failed to do so.
¶10 Cathey argues the attorney's notice of appearance was sufficient because it satisfied the purpose of Rule 54(g): to place the HOA on notice that fees would be sought. See Balestrieri v. Balestrieri, 232 Ariz. 25, 27, ¶ 8 (App. 2013) (concluding request for fees in motion to dismiss, although not an enumerated pleading, satisfied Rule 54(g)'s notice requirement because it "effectively [took] the place of an answer" and placed "the opposing party on immediate notice that he or she risks a fees award if the case is not settled before the court decides the motion"). A reference to fees in a notice of appearance, however, is not akin to a formal claim for attorneys' fees set forth in a pleading as required by Rule 54(g), or in a filing that obviates a pleading as in Balestrieri. The inclusion of a fee request in the notice of appearance failed to satisfy Rule 54(g).
¶11 Cathey argues he was not required to comply with Rule 54(g) because the HOA sought fees in its complaint, including under A.R.S. § 33-1807(H). Cathey, however, has not supported his argument that a Rule 54(g)-compliant fee request by an opposing party means he had no obligation to comply with Rule 54(g). Nor has Cathey supported his argument that A.R.S. § 33-1807 is self-effectuating, or that the procedure in Rule 54(g) need not be followed to invoke the substance of that statute.
¶12 Cathey argues the HOA waived his failure to comply with Rule 54(g). Not so. In superior court, the HOA opposed Cathey's fee request, arguing he "never requested attorneys' fees in his Answer and Counterclaim" as required by Rule 54(g). Cathey's response addressed the merits of that argument, citing King among other cases. On appeal, the HOA argues Cathey did not comply with Rule 54(g) meaning he could not be awarded fees. Cathey's reply on appeal addresses this argument on the merits. Cathey has not shown the HOA waived the Rule 54(g) issue.
¶13 Cathey argues fees are justified based on the first appeal, where this court vacated a fee award to the HOA, noting "[o]n remand, the trial court may again consider awarding attorneys' fees to the successful party once that party has been determined." Eastwood, 1 CA-CV 10-0463, at 12 ¶ 24. Cathey argues this language is the law of the case establishing that the prevailing party on remand was entitled to fees. The "law of the case" is a "judicial policy of refusing to reopen questions previously decided in the same case by the same court." Powell-Cerkoney v. TCR-Mont. Ranch Joint Venture, II, 176 Ariz. 275, 278 (App. 1993). It is "a procedural doctrine rather than a substantive limitation on the court's power," id., and does not apply when "the issue was not actually decided in the first decision or the decision is ambiguous," Dancing Sunshines Lounge v. Industrial Commission, 149 Ariz. 480, 483 (1986). In the first appeal, this court did not decide the fee issue for remand. Instead, the court declined to award fees and noted the superior court "may again consider" the issue on remand. Because Cathey's entitlement to fees was "not actually decided," the first appeal did not create any "law of the case" that required a fee award on remand. See id.
¶14 Finally, both parties request fees on appeal, Cathey pursuant to A.R.S. §§ 12--341.01 and 33-1807(H), and the HOA pursuant to A.R.S. § 12-341.01 and paragraphs 14.3(I) and 21.2 of the Covenants, Conditions and Restrictions (CC&Rs). Because Cathey is not the prevailing party, his request is denied. The HOA has not shown it is entitled to a fee award against Cathey under the CC&Rs, and in exercising the court's discretion, the request under A.R.S. § 12-341.01 is denied. The HOA's request for taxable costs pursuant to A.R.S. § 12-342 is granted, contingent upon its compliance with ARCAP 21.
CONCLUSION
¶15 The judgment is affirmed.