King v. Titsworth (CA1 6/4/09)

If you want fees, be careful to follow the rules.

The Kings sued Titsworth for breath of contract. They lost. Titsworth moved for a fee award under 12-341.01. Rule 54(g) requires that such a request be made in the pleadings but his Answer (filed pro se and not amended when he got a lawyer) didn’t. The trial court awarded him fees anyway; the Court of Appeals reversed.

The court goes to some lengths to justify its conclusion, pointing out that the rule was amended in 1999 specifically to add the requirement of a request in the pleadings, that a motion (for a fee award) isn’t a pleading, that it has to interpret rules according to the intent shown by their language, and that there is a similar rule in the ARCAPs. The opinion also explains that the policy underlying the statute supports it because that policy includes promoting the settlement of disputes, and if you don’t tell people ahead of time that there is a statute out there that allows a fee award then they will be “deprived” of the opportunity to figure out whether they should settle the dispute. (This nonsense comes from a couple of Arizona Supreme Court cases talking about appellate rules, so you can’t blame Division One for it entirely.)

Why did the court use so much time, effort, and pages – and publish it (resolving other issues in the case by memo) – to say that the rule means what it says? Maybe its just the inefficient allocation of attention typical of our appellate courts. Or maybe somebody was feeling a bit guilty about the fact that the statute itself doesn’t require a request in the pleadings. When can a court rule condition a statutory right? We bet you can find cases about that – but Titsworth apparently didn’t mention it, so this isn’t one of them.