The question in this attorney-fee dispute is whether Mulcaire “prevailed” in its mandamus action. The court concludes that it didn’t but did.

Mulcaire, a contractor, lost a bid for a City of Cottonwood job and sued to force a rebid. The City then fired the winning bidder and announced that it would do the work itself – in part to avoid this lawsuit – and moved to dismiss the case as moot. After an evidentiary hearing, the trial court instead found that Mulcaire would have won had the City not already rescinded the winning contract. It entered what purported to be a judgment on the merits in Mulcaire’s favor even though no relief was granted. That of course makes no sense – a mandamus that doesn’t mandate anything – except to set up what came next: a judgment awarding Mulcaire its fees.

The prevailing party in a statutory mandamus is entitled to fees (12-2030). The City appealed the fee award, arguing that Mulcaire hadn’t prevailed. (It didn’t appeal the “merits” award, since it won the award against it, so that nonsense is not on review.)

The Court of Appeals – after examining the nature of mandamus, the legislative history, and other fee statutes – concludes that to get fees you have to get an actual mandamus, i.e., an order requiring the government to do something. Which Mulcaire didn’t.

Except that it wins anyway. The court says that a party “cannot by its own voluntary conduct ‘moot’ a case and deprive a court of jurisdiction.” For this it cites two cases; one it can’t have read since that case says nothing about mootness, the other comes closer to supporting the City than Mulcaire. Anyway, the court says, not awarding fees here would “undercut the . . . purpose” of the statute that the court has just said doesn’t support an award here. And mandamus is equitable and there are “unique circumstances” in this case and – well, you know the routine. The opinion affirms the fee award.

So what was the basis of the trial court’s fee award? Its inherent equitable power? What about the cases saying fee awards are statutory? Why does the court think the Legislature enacted the statute in the first place?

Some courts that invoke “equitable principles” actually show some grasp of them. Others use the phrase as code for “we can do anything we want.” We report, you decide.

(link to opinion)