THIS WAS RE-DESIGNATED A MEMORANDUM OPINION by order of the Supreme Court August 27, 2013
We will not blog this for one or more reasons set forth in our FAQ. Insurance attorneys will want to note, though, that the written offer of UM/UIM coverage for auto policies must under this case include a premium quote. There is a dissent, so perhaps the Supreme Court will speak to this.
A small case about an obscure point of law but interesting nonetheless.
In 2001 Pinetop abandoned to Cook a piece property next to his that it no longer intended to use for a road. In 2007 a neighbor complained that the abandonment landlocked him; turns out there’s a statute prohibiting road abandonments that do that. So Pinetop, at a hearing at which Cook was present, voted to “rescind” the abandonment. Over a year later he sued to quiet title. Pinetop moved for summary judgment on the statute of limitations.
A.R.S. 12-821 provides that “All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.” The court first concludes that “all” does indeed mean “all,” including actions to quiet title.
The next question was when the statute accrued. Pinetop argued that it accrued at the time of the vote to rescind because Cook knew then that his property would be taken. Cook argued that it hadn’t accrued because he hadn’t been damaged, in the sense that no one had attempted to interfere with his use of the property. The court holds that “the statute of limitations does not run against a plaintiff in possession who brings a quiet title action purely to remove a cloud on the title to his property,” citing a long string of cases from Arizona and other jurisdictions. Pinetop’s “argument would be correct if Cook was [sic] suing to collect monetary damages” but this wasn’t a damage case.
Even though it spurns the subjunctive mood this is a nice opinion. There is reason to think Cook’s brief poor; that can lead to a confused opinion, as we’ve pointed out often enough, but the court avoids that here. The opinion is twelve pages long; its nice to know that CA1 can make them that short – now please do it more often. There are four footnotes but one of them is actually a decent, legitimate footnote: “The question whether the October 2007 resolution effectively rescinded and reversed the 2001 abandonment is not before us. We express no opinion regarding the effect of the 2007 action.” We wonder whether the court mentions the issue because the parties thought of it or because they didn’t.
“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.
