This is an appeal from an award of attorneys fees in a contract case. The holding is this: just as fees may be awarded where contract and non contract claims are intertwined, they may be awarded where contract and non-contract actions are intertwined – at least where the fees would have been incurred anyway, at least where the “non-contract” action is a bankruptcy about which there is a strong smell of gamesmanship.

Zeagler sued Buckley for breach of contract. Buckley responded by filing for bankruptcy; she withdrew her petition months later, the day before a hearing on Zeagler’s motion to dismiss it for bad faith. The contract action resumed, Buckley lost at trial, the court awarded fees. The award included fees incurred in the bankruptcy action, which the trial court found – and Buckley apparently did not deny – were for “obtaining information and establishing contractual rights” that would have been obtained and established regardless of the bankruptcy.

Buckley appealed. Her only argument was that the court could not award the bankruptcy fees because bankruptcy is not a “contested action” as required by 12-341.01. Division Two decided that that didn’t matter, that the “intertwined” rule applies, and that if it didn’t then parties would file bankruptcy just to avoid fees.

We tend to think that the those-fees-would-have-happened-anyway aspect is important but the appeal wasn’t structured to emphasize that much. And while we agree that some would try to take advantage of a bankruptcy loophole to avoid a fee award, what does that say about the responsible-lawyers-will-never-do-this-bad-thing line we get from the courts whenever they decide to allow that particular bad thing to be done?

The Court of Appeals seems annoyed by the fact that Buckley based her appeal on an issue of law rather than on a factual debate about abuse of discretion. Why a lawyer would do that seems fairly obvious. The opinion nevertheless spends a long footnote whining that Buckley’s “scant” briefs fail to argue an issue she didn’t raise. We would have thought them a Godsend: briefs that really are brief and that present a clear question of law rather than rehashing facts disputing a forgone conclusion. Had Buckley’s briefs violated ARCAP 13, we bet that at least one footnote would have said so. Maybe her lawyer said something at oral argument to set the court off; if so, the footnote should have said that so as not to seem utterly clueless.

In our last review we called the lawyering “weird.” Here it is pretty good.

Some home builders (“Grosvenor”) wanted to build homes in Pinal County. They entered into a development agreement with the Board of Supervisors that let them do so for five years  and then request an extension, under  typical  “not to be unreasonably withheld” language, for another five. The Board promised in the agreement not to charge impact fees. When the time came, Grosvenor requested an extension; the Board refused it because it wanted to impose impact fees on all future construction. Grosvenor sued. The County moved for summary judgment because the agreement said that all disputes had to be resolved pursuant to the Administrative Review Act. The agreement did say that; the wrinkle is that the A.R.A. does not apply to a Board of Supervisors. The Board argued that it could voluntarily agree to use it; Grosvenor, arguing that it couldn’t, filed a motion for partial summary judgment. The trial court agreed with the Board and denied the motion.

This is where good lawyering pays off. Among Grosvenor’s arguments was a clear issue of law that made a fine hook for special action: the Board couldn’t voluntarily use the A.R.A. because that would expand the trial court’s subject-matter jurisdiction. The hook was so good that the Court of Appeals accepted review of the denial of a partial summary judgment. (For some reason Grosvenor’s petition also raised other issues; Division Two essentially ignored them.)

The Court of Appeals reversed. The holding is that a court has the power to review administrative decisions only as granted it by the A.R.A.; agreements use the A.R.A. in situations that it does not cover are void. You cannot extend a court’s subject-matter jurisdiction by stipulation.

Judging by the opinion it looks like Grosvenor’s lawyers briefed the matter well, though perhaps at too much length. The opinion is clearly-written and well-organized but is the sort that wants to cite a case with every breath, proving with at least one citation every legal commonplace. But that has become the courts’ style, so we probably shouldn’t blame it on the parties.

The court’s notification of the case calls it “Grosvenor Holdings v. Pinal County,”  which we applaud since it avoids the “Hon” problem we vented about recently and shows, by not throwing the judge’s name around as if he were a party to a lawsuit, what we old-fashioned types would consider a proper measure of grace and respect.

We often wonder why an opinion was reported; perhaps this memorandum should have been.

Krasinski sued Goldstein. Goldstein moved to compel arbitration pursuant to A.R.S. 12-1502. The court granted the motion and dismissed the action. Krasinki filed an appeal; the Court of Appeals dismissed it.

The catch is that the statute requires a court, when compelling arbitration, to stay the case rather than to dismiss it. No one, apparently, had pointed this out to the trial court. Since the court shouldn’t have dismissed, Division Two ruled that it didn’t: “the trial court’s order is not final and is instead an interlocutory order compelling arbitration.”

Which is the point of law that makes the case interesting. A dismissal, it turns out, may or may not be a dismissal. Its a dismissal unless it shouldn’t have been, in which case it wasn’t, in which case an error of law that the Court of Appeals normally exists to correct becomes a non-event. And the way to find out whether its a dismissal or not is to appeal it and see whether the appeal is dismissed. If it isn’t, you guessed right; if it is, you guessed wrong but can try again later. And if nobody seeks appellate relief, nobody ever quite knows what the order was – a bit like those sub-atomic particles that don’t quite exist until you look at them.

You can, actually, appeal an arbitration order, by including Rule 54(b) language in it. The court points this out and seems to say that Krasinski should have asked for that. Since 54(b) language in a dismissal makes no sense, what the court apparently means is that he should have read the statute and sought the right order in the first place, which is of course correct.

In fairness to the court, there is a problem here. You’re not supposed to be able to appeal an order compelling arbitration and you ought not to be able to get around that by inducing or allowing the court to enter the wrong order. But the answer is not to pretend that things are always what they should be in this, the best of all possible worlds. The answer is not to throw the very nature of court orders into doubt and debate. The answer is to recognize an indisputable error of law, vacate the dismissal, and remand with instructions to enter a stay.