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Estate of Balestrieri v. Balestrieri

Court of Appeals of Arizona, First Division, Department C

July 16, 2013

DAVID A. BALESTRIERI, Defendant/Appellee.

Appeal from the Superior Court in Maricopa County Cause No. CV2011-070011 The Honorable Jose S. Padilla, Judge

Baroumes & Bruen PLC Sun City By Charles J. Bruen III Derek M. Baroumes Attorneys for Plaintiff/Appellant

Law Office of Stephen D. Smith, L.L.C. Phoenix By Stephen D. Smith Attorneys for Defendant/Appellant



¶1 We hold in this appeal that a defendant who files a motion to dismiss pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b) in lieu of an answer forfeits his claim for attorney's fees if he does not ask for fees at the time he moves to dismiss. The defendant here did not request fees until after the superior court granted his motion to dismiss. We vacate the award of fees because the defendant's request was untimely.


¶2 Salvatore Balestrieri sued his son, David A. Balestrieri, alleging breach of contract. David moved to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction. David's motion did not include a request for attorney's fees. After the superior court granted the motion to dismiss, David filed a motion for attorney's fees, which the superior court granted. We have jurisdiction over Salvatore's timely appeal from the order granting fees pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2013) and -2101(A)(1) (West 2013).[1]


¶3 Salvatore first argues the superior court erred by granting attorney's fees to David because David did not ask for fees in a pleading pursuant to Rule 54(g)(1) . We review the superior court's interpretation of court rules de novo. Adrian E. v. Ariz. Dep't of Econ. Sec, 215 Ariz. 96, 99, 9, 158 P.3d 225, 228 (App. 2007) . We construe rules in a manner that will apply all their provisions meaningfully and not render any of them superfluous. Devenir Assocs. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991).

¶4 Rule 54(g)(1) states that a request for attorney's fees "shall be made in the pleadings." Under Rule 7(a), a "pleading" means only a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint and an answer to a third-party complaint. Because David successfully moved to dismiss the complaint before filing an answer pursuant to Rule 12(b) (2), he made no filing that Rule 7(a) denominates as a "pleading." Citing King v. Titsworth, 221 Ariz. 597, 599, 11, 212 P.3d 935, 937 (App. 2009), Salvatore contends that because David filed no pleading, he was not eligible for a fees award pursuant to Rule 54(g)(1).

¶5 The defendant in King did not ask for fees in his answer; he waited until after trial to file a motion requesting fees. Id. at 12. In holding the fees request was untimely, we reasoned that our "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)." Id. at 11.

¶6 Salvatore argues that we should strictly interpret Rule 54(g)(1) to forbid a fees request made in connection with a motion rather than a pleading. He cites our comment in King that "[o]ur law is clear that '[a] motion is not a pleading within the meaning of [Rule 7(a)].'" Id. at ¶ 10 (quoting 2 Daniel J. McAuliffe & Shirley J. Wahl, Arizona Practice Series, Civil Trial Practice § 3.5 (2d ed. Supp. 2008)). But the defendant in King first requested fees by way of a motion filed after trial. Certainly Rule 54(g)(1) forbids a request first made in a post-trial motion. But for purposes of Rule 54(g)(1), a motion made after trial is a far cry from a Rule 12(b) motion filed in lieu of an answer. Moreover, there is little sense in construing Rule 54(g)(1) to bar an otherwise valid fees request simply because the defendant prevailed sooner (by responding to the complaint with a Rule 12(b) motion) rather than later (by filing an answer, then moving to dismiss or otherwise litigating the case to a conclusion).

¶7 "When construing a rule, we may look at a variety of elements, including the rule's context, the language used, the subject matter, the historical background, the effects and consequences, and its spirit and purpose." State ex rel. Romley v. Superior Court (Stewart), 168 Ariz. 167, 169, 812 P.2d 985, 987 (1991). In King we observed that "one of the purposes of fee-shifting statutes is to 'promote settlement of disagreements out of court' and that '[u]nless each party is on notice before each stage of the law suit that its opponent intends to ask for attorney[s'] fees, [that] purpose cannot be served.'" 221 Ariz. at 600, 14, 212 P.3d at 938 (alterations in original) (quoting Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 391, 710 P.2d 1025, 1046 (1985), superseded by statute on other grounds, Employment Protection Act, 1996 Ariz. Legis. Serv. Ch. 140 (West)); accord Robert E. Mann Constr. Co. v. Liebert Corp., 204 Ariz. 129, 133, 10, 60 P.3d 708, 712 (App. 2003) ("It is fair to require parties to request fees earlier in the litigation process so that both sides may accurately assess the risks and benefits of litigating versus settling.").

¶8 Consistent with the purpose of promoting settlement of disputes, we interpret Rule 54(g)(1) to allow the court to grant a fees request made in a Rule 12(b) motion filed in lieu of a responsive pleading. Such a motion effectively takes the place of an answer for as long as it remains pending; indeed, if the defendant's motion is successful, as here, he or she never will file a pleading listed in Rule 7(a). And, like a fees request stated in a pleading, a fees request stated in a Rule 12(b) motion filed in lieu of an answer puts the ...

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