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Mohave County v. Arizona Department of Water Resources

Court of Appeals of Arizona, First Division

June 20, 2017

MOHAVE COUNTY, Plaintiff/Appellee,
v.
ARIZONA DEPARTMENT OF WATER RESOURCES, Defendant/Appellant.

         Appeal from the Superior Court in Maricopa County No. LC2014-000624-001 The Honorable Crane McClennen, Judge (Retired)

          Arizona Department of Water Resources, Phoenix By Kenneth C. Slowinksi, Janet L. Miller, Jennifer Heim Counsel for Defendant/Appellant

          Munger Chadwick, P.L.C., Tucson By John F. Munger, Robert J. Metli Co-Counsel for Plaintiff/Appellee

          Quarles & Brady LLP, Tucson By Adriane J. Hofmeyr Co-Counsel for Plaintiff/Appellee

          Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge James P. Beene joined.

          OPINION

          THUMMA, Judge.

         ¶1 This appeal turns on whether an award of attorneys' fees under Arizona Revised Statutes (A.R.S.) section 12-348.01 (2017)[1] is subject to the $10, 000 cap in A.R.S. § 12-348(E)(4). Because that cap does not apply to such an award, the fee award is vacated and this matter is remanded for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶2 This matter began when appellee Mohave County filed objections with appellant Arizona Department of Water Resources (ADWR) to the transfer of certain water rights. Mohave County challenged ADWR's denial of those objections in court. In the end, the Arizona Supreme Court found ADWR properly denied Mohave County's objections. Ariz. Dept. of Water Res. v. McClennen, 238 Ariz. 371, 372 ¶ 2 (2015). The court awarded ADWR attorneys' fees pursuant to A.R.S. § 12-348.01, "but remand[ed] the case to the superior court for a determination of the amount of the award." Id. at 377 ¶ 35.

         ¶3 On remand, ADWR requested approximately $135, 000 in fees. Mohave County opposed the request, arguing A.R.S. § 12-348(E)(4) capped any award at $10, 000. Tacitly accepting Mohave County's argument, the superior court awarded ADWR "attorneys' fees in the amount of $10, 000.00." ADWR's timely appeal followed.

         DISCUSSION

         ¶4 This court reviews de novo the interpretation of statutes. See Pima Cty. v. Pima Cty. Law Enft Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13 (2005). The fee award to ADWR is made pursuant to A.R.S. § 12-348.01, which provides that "[notwithstanding [A.R.S.] section 12-348, " if a county "files a lawsuit against" a state agency, "the court shall award reasonable attorney fees to the successful party in the action." A.R.S. § 12-348.01. Mohave County argues any fee award to ADWR is capped by A.R.S. § 12-348(E)(4), which provides that "an award of fees against a city, town or county as provided in this section shall not exceed ten thousand dollars." Focusing on the text of A.R.S. § 12-348.01, the text of A.R.S. § 12-348(E)(4) and case law construing the two statutes, Mohave County's argument is not well taken.

         ¶5 First, ADWR was awarded fees pursuant to A.R.S. § 12-348.01. Ariz. Dept. of Water Res., 238 Ariz. at 377 ¶ 35. Section 12-348.01 contains no cap limiting a fee award. Nor does the phrase "[notwithstanding section 12-348" used in A.R.S. § 12-348.01 import such a cap. To the contrary, "'[notwithstanding' means '[i]n spite of, '" and the use of that term shows A.R.S. § 12-348.01 is "a self-contained article" dealing with the issue. Wilshire Ins. Co. v. The Home Ins. Co., 179 Ariz. 602, 604 (App. 1994) (citation omitted); see also City of Phx. v. Glenayre Elecs., Inc., No. CV-16-0126-PR, 2017 WL 1929472, at *4 ¶ 16 (Ariz. 2017) (noting Legislature "has often used language such as 'notwithstanding any other statute' . . . to indicate that a particular provision will trump any conflicting statutes") (citations omitted). Thus, the use of "[n]othwithstanding section 12-348" in A.R.S. § 12-348.01 shows the fee award here is not subject to the $10, 000 cap in A.R.S. § 12-348(E)(4).

         ¶6Second, the $10, 000 cap in A.R.S. § 12-348(E)(4) is limited to "an award of fees . . . as provided in this section" (i.e., A.R.S. § 12-348).[2] But fees were awarded to ADWR pursuant to A.R.S. § 12-348.01, not A.R.S. § 12-348. Accordingly, this express language in A.R.S. § 12-348(E)(4) (limiting the cap to fees awarded pursuant to A.R.S. § 12-348), and the fact that the fee award to ADWR ...


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