Ball v. City of Chandler Imp. Dist. No. 48

Decision Date06 March 1986
Docket NumberCA-CIV,No. 1,No. 35,D,35,1
Citation150 Ariz. 559,724 P.2d 1228
PartiesGermain H. BALL, as Co-Trustee of the Germain H. Ball Trust; First Interstate Bank of Arizona, N.A., as Co-Trustee of the Germain H. Ball Trust, Petitioners Plaintiffs-Appellees, Joe V. Anderson, Gerald P. Andersen, and the Thomas S.J. Andersen Trust, Intervening Plaintiffs-Appellees, American Legion, Mathew B. Juan, Postepartment of Arizona, Intervening Plaintiffs-Appellees, Eli Gates, Intervening Plaintiff-Appellee, 56th Street Properties, a partnership, Intervening Plaintiff-Appellee, v. The CITY OF CHANDLER IMPROVEMENT DISTRICT NO. 48; the City of Chandler, an Arizona municipal corporation; James Patterson, Mayor of the City of Chandler, in his official capacity; Thomas B. Burns, Jr., Genny Appleton, Jerry Brooks, Wayne Lewis, Charles Shell and Coy Payne, members of the City Council of the City of Chandler, in their official capacities; James Goff, Superintendent of Streets and Director of Public Works for the City of Chandler, in his official capacity; Harold L. Schilling, City Manager for the City of Chandler, in his official capacity; Walter Bobotek, Director of Planning and Development for the City of Chandler, in his official capacity; John Doe, Bondholder; John Roe, Noteholder; White Company, Contractor; Black Company, Financial Advisor or Underwriter, Respondents Defendants-Appellants. 8036.
CourtArizona Court of Appeals

Lewis & Roca by Peter D. Baird, Edward M. Lewis, Susan M. Freeman, Edward M. Mansfield, Phoenix, for petitionersplaintiffs-appellees.

Neal S. Sundeen, Phoenix, for intervening plaintiff-appellee American Legion.

Dohn M. Rosenthal, Scottsdale, for intervening plaintiff-appellee Gates.

Johnson, Blake & Kadish, P.C. by Ronald K. Blake, Tempe, for intervening plaintiff-appellee 56th Street Properties.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by John H. Westover, Alan A. Meda, Phoenix, for respondentsdefendants-appellants.

CONTRERAS, Judge.

This is an appeal from an award of costs and attorney's fees in an action successfully prosecuted by certain landowners to invalidate an improvement district established by appellant, City of Chandler(Chandler) and its city officials.We conclude that the trial court correctly found "that the 'zoning agreements issue' portion of the litigation 'arose out of a contract express or implied' within the meaning of A.R.S. § 12-341.01," and affirm the award of attorney's fees and costs.

On June 9, 1983, Chandler officially formed Improvement DistrictNo. 48 for purposes of constructing extensive road improvements along Williams Field Road in Chandler, Arizona.Pursuant to A.R.S. § 9-673, the City adopted ResolutionNo. 1129 further defining the district boundaries.11] In July of 1983, a protest hearing was held as required by A.R.S. §§ 9-676and9-677, however, because only 27% of the district frontage property protested, the protests were overruled by the City Council.2Subsequent statutory protests were also overruled.

On October 25, 1983, appellees, Germain H. Ball, et al., filed suit against Chandler and its city officials asserting improper implementation of the improvement district based upon invalid assessment practices.3Four months later the City proceeded to distribute "preliminary assessments."Following extensive and accelerated discovery, both parties filed motions for summary judgment.On April 17, 1984, the trial court granted appellees' motion for summary judgment.In its written findings, the court concluded that:

1.The resolution was adopted in violation of A.R.S. § 9-673 since the assessment was made without any reference to the corresponding benefits to be received by the land owners, and

2.That the City's conditional zoning practices relating to future improvement districts, violated A.R.S. § 32-2181(K), were contrary to public policy, and were unenforceable to the extent they deprived the landowners of their right to protest the formation of the improvement district.

The trial court granted appellees declaratory and injunctive relief and permanently enjoined the city from taking any further action to "enforce that certain Improvement District formed pursuant to Resolution 1129 and which was known as City of Chandler Improvement DistrictNo. 48,...."Finally, of the $111,813.70 of attorney's fees requested by appellees, the court awarded appellees $34,572.00 as to the improvement district agreements claim finding that it arose out of contract within the meaning of A.R.S. § 12-341.01.Appellees were also awarded their taxable costs.Chandler filed a notice of appeal on October 9, 1984, which in its complete context stated:

NOTICE IS HEREBY GIVEN that the above-named defendants appeal to the Court of Appeals, Division One, of the State of Arizona from that portion of the judgment entered in the above entitled court in the above entitled action on the 26th day of September, 1984, in favor of the above-named plaintiffs and against the above-named defendants which awards attorney's fees and costs to Plaintiffs and to intervenors, being Paragraphs 4 and 5 of said judgment.

On October 26, 1984, the time period for filing a notice of appeal expired, and the injunctive and declaratory relief portions of the judgment became final.Chandler did not appeal the merits of the trial court's decision.

SCOPE OF APPELLATE REVIEW

Chandler argues that because A.R.S. § 12-341.01 permits the court to award attorney's fees to the "successful party" in actions arising out of contract, an appeal solely from an award of costs and attorney's fees (granted pursuant to this statute) vests the appellate court with jurisdiction to redetermine the underlying merits of the case so as to test the trial court's "successful party determination" which led to the original fees award.Specifically, Chandler contends that if a party should not have been the "successful party" in the trial court, it should not have received attorney's fees pursuant to A.R.S. § 12-341.01 and therefore an appeal from an award of attorney's fees can contest the issue of whether the prevailing party"should have been" the "successful party" below.SeeLaMoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839(Alaska1982).

Appellees contend that since the city failed to appeal the merits, the judgment below cannot be attacked on appeal.They argue that not only does the appellate court lack jurisdiction to review the merits where the underlying judgment is not part of the notice of appeal, but that such omission renders the judgment below final and unassailable under principles of collateral estoppel.SeeLee v. Lee, 133 Ariz. 118, 649 P.2d 997(App.1982).

In its Reply, Chandler defends its failure to appeal the underlying judgment on the basis that "[t]he merits of the action ... are now moot because of delays occasioned by this litigation."As a consequence, Chandler requests that we adopt the rule in LaMoureaux v. Totem Ocean Trailer Express, Inc., supra, and reconsider the underlying merits for purposes of determining whether attorney's fees were properly awarded pursuant to the prevailing or "successful"party language of the statute.Finally, Chandler contends that while the merits are not directly jurisdictionally before this court, the "successful party" language of A.R.S. § 12-341.01 permits review of the underlying merits and thus, a direct attack on the judgment.We find appellants' arguments innovative but untenable.

From the outset, we note that LaMoureaux represents a distinct minority of courts which accept jurisdiction of a moot case merely to determine who is the prevailing party for purposes of awarding costs and attorney's fees.See also, Heckers v. Avanti Corp., 495 P.2d 239(Colo.Ct.App.1972).Indeed, the majority of jurisdictions appear to hold that a litigant's desire to obtain a fee or cost award at the conclusion of a case cannot keep the case in court after it has become moot in all other respects.Flesch v. Eastern Pennsylvania Psychiatric Institute, 472 F.Supp. 798(E.D.Penn.1979).See alsoState v. Gibson Product Company Inc., 699 S.W.2d 640(Tex.Ct.App.1985);Wassom v. SAC County Fair Association, 313 N.W.2d 548(Iowa1981);Southland Corp. v. Village of Hoffman Estates, 11 Ill.App.3d 816, 297 N.E.2d 688(1973).Significantly, LaMoureaux and the existing contrary authority almost uniformly deal with the situation where the underlying judgment (or some portion thereof) is appealed, a judicial determination of mootness made, and only then does the appellate court decide whether it will consider the otherwise moot merits to determine the prevailing party for purposes of awarding costs and attorney's fees.4

In this case, Chandler argues that "[t]he merits of the action ... are now moot because of the delays occasioned by this litigation."We disagree.A "[d]efendant cannot, by his own voluntary conduct, moot the case and thereby deprive the Court of jurisdiction."Vaughan v. Bower, 313 F.Supp. 37(D.Ariz.1970), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129(1970).There were no substantive or procedural impediments to a direct appeal on the merits.Chandler could have properly challenged the merits by a direct appeal to this court.That an appeal of the judgment below would have resulted in costly delays to the city did not in and of itself render the action moot.A real controversy continued to exist.Nor did the city's independent and unilateral choice to pursue alternative measures to implement the improvements affect the existence of the controversy.Thus, by failing to appeal the merits of the underlying judgment, Chandler effectively withdrew from the controversy.Consequently, it cannot now assert this self-imposed mootness as grounds for relitigating the underlying merits when such merits are not properly before this...

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  • Desert Palm Surgical Grp., P. L.C. v. Petta
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    ... ... City of Phoenix, 193 Ariz. 570, 572–73, ¶ 10, 975 ... Citing Ball v. Chandler Improvement District No. 48, 150 ... Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, 524, ¶ 14, ... ...
  • Tom Mulcaire Contracting Llc v. City of Cottonwood
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16 books & journal articles
  • Appendix A Table of Authorities
    • United States
    • State Bar of Arizona Land Use Law Appendix A Table of Authorities
    • Invalid date
    ...City, 540 F.2d 1360 (9th Cir. 1976), cert. denied, 431 U.S. 913 (1977)........................... 6-25, 10-30Ball v. City of Chandler, 150 Ariz. 559, 724 P.2d 1228 (App. 1986)........................................................ 2-7, 4-8, 12-9Ballen v. City of Redmond, 466 F.3d 736 (9th ......
  • APPENDIX A: TABLE OF AUTHORITIES
    • United States
    • State Bar of Arizona Land Use Law (2021 Ed.) Appendix A Table of Authorities
    • Invalid date
    ...540 F.2d 1360 (9th Cir. 1976), cert. denied, 431 U.S. 913 (1977)....................................6-31, 10-35 Ball v. City of Chandler, 150 Ariz. 559, 724 P.2d 1228 (App. 1986)................................................................2-9, 4-10, 12-12 Ballen v. City of Redmond, 466 F......
  • § 2.9 RECOVERY OF FEES BY GOVERNMENTAL ENTITIES
    • United States
    • State Bar of Arizona Attorneys Fees Chapter Two A.R.S. § 12-341.01
    • Invalid date
    ...P.3d 560 (App. 2013)............................................................ 2-22 Ball v. City of Chandler Improvement Dist. No. 48, 150 Ariz. 559, 724 P.2d 1228 (App. 1986)......... 2-16 Bar J Bar Cattle Co. v. Pace, 158 Ariz. 481, 763 P.2d 545 (App. 1988)....................................
  • § 10.10 AWARD OF ATTORNEYS' FEES AS APPELLATE SANCTIONS
    • United States
    • State Bar of Arizona Attorneys Fees Chapter Ten Attorneys' Fees On Appeal
    • Invalid date
    ...Ins. Co., 229 Ariz. 216, 273 P.3d 668 (App. 2012).......................... 10-2, 7 Ball v. City of Chandler Improvement Dist. No. 48, 150 Ariz. 559, 724 P.2d 1228 (App. 1986)............... 10-3 Baseline Fin. Servs. v. Madison, 229 Ariz. 543, 278 P.3d 321 (App. 2012).............................
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