Balestrieri v. Balestrieri (CA1 5/9/13) (mod. 7/16/13)

“We hold in this appeal that a defendant who files a motion to dismiss . . . 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.”

Father sued Son in a contract case. Son moved to dismiss for lack of jurisdiction and won. Son then asked for fees, which the trial court granted. Father appealed.

Father argued Rule 59(g)(1): “a request for fees must be made in the pleadings.” Under Rule 7 “pleadings” are Complaint, Answer, Reply to a Counterclaim, Answer to a Crossclaim, and third-party Complaint and Answer. A Motion to Dismiss is therefore not a pleading; no pleading, no fees.

So the court holds that Rule 59(g)(1) means that if a pleading is filed it must ask for fees but that the rule can’t, by its own terms, apply to a litigant who didn’t file a a pleading and that a rule that doesn’t even mention his situation can’t take away his statutory right to fees. Right?

Okay, our first sentence already let the cat out of the bag: Wrong. The court reverses the fee award.

The court bought halfway into Father’s argument. It decided that 59(g)(1) would indeed bar fees unless the court could find a way around it. And it wanted to find a way around it since that’s “consistent with the [fee statute’s] purpose of promoting settlement of disputes.”

The way around it is to turn the motion into a pleading. The problem with that was that the court had already told us, and in the context of a fee award, that “our law is clear that a motion is not a pleading” (King 2009). The motion in King, however, was made after trial. That’s “a far cry” from a Rule 12 motion. “Such a motion effectively takes the place of an answer.” So it is a pleading after all. So it must claim fees. Son did file a pleading, or did effectively file a pleading, or something, but didn’t claim fees in his motion, or pleading, or whatever, so he doesn’t get them.

Remember, then, that a motion made after trial is not a pleading but that a motion made before trial is a pleading, or at least might be. The law, in other words, is that a motion is clearly not a pleading except when it is. And remember that the rules mean what they say except that they also mean whatever, in the court’s mind, “effectively takes the place” of the what they say.

The court also holds that claiming fees doesn’t waive the personal-jurisdiction defense. There isn’t any Arizona authority on this so the court finds a few cases from out of state and decides that they are “consistent with” some Arizona fee cases that had nothing to do with jurisdiction. The court does not even attempt any serious theoretical analysis of the jurisdiction question.

(link to opinion)