Cruz v. Miranda

• Decision Date: 21 April 2016
• Docket Number: No. 2 CA-CV 2015-0131,2 CA-CV 2015-0131
• Parties: CECILIA CRUZ, Plaintiff/Appellant/Cross-Appellee, v. RICHARD MIRANDA, CITY MANAGER, AND ROGER RANDOLPH, CITY CLERK OF THE CITY OF TUCSON, Defendants/Appellees/Cross-Appellants.
• Court: Arizona Court of Appeals

CECILIA CRUZ, Plaintiff/Appellant/Cross-Appellee, v. RICHARD MIRANDA, CITY MANAGER, AND ROGER RANDOLPH,CITY CLERK OF THE CITY OF TUCSON, Defendants/Appellees/Cross-Appellants.

No. 2 CA-CV 2015-0131

ARIZONA COURT OF APPEALS DIVISION TWO

April 21, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. CR20132985

The Honorable Christopher P. Staring, Judge

VACATED AND REMANDED

COUNSEL

Risner & Graham, Tucson

By William J. Risner

Counsel for Plaintiff/Appellant/Cross-Appellee

Bossé Rollman PC, Tucson

By Richard M. Rollman and Richard A. Brown

Counsel for Defendants/Appellees/Cross-Appellants

MEMORANDUM DECISION

Presiding Judge Howard authored the decision of the Court, in which Judge Miller and Judge Vásquez concurred.

HOWARD, Presiding Judge:

¶1 Cecilia Cruz appeals from the trial court's award of attorney fees and costs against the City of Tucson ("City") pursuant to A.R.S. §§ 39-121.02(B) and 12-349(A)(3). She contends the court abused its discretion by reducing her award based on factors which were unsupported by the record.¹ The City has filed a cross-appeal, contending the court lacked subject matter jurisdiction over this case because Cruz named the defendants in their individual and not official capacities. Because we conclude the court had subject matter jurisdiction, but abused its discretion in determining the amount of attorney fees and costs awarded, we vacate the award of attorney fees and costs and remand for a redetermination of the appropriate amount.

Factual and Procedural Background

¶2 "In reviewing a trial court's fee award, we view the record in the light most favorable to sustaining the trial court's decision." See Solimeno v. Yonan, 224 Ariz. 74, ¶ 36, 227 P.3d 481, 489 (App. 2010). In May 2013, Cruz submitted a request to the Cityseeking to review all public records related to the potential sale of El Rio Golf Course ("El Rio") to Grand Canyon University ("GCU").² When the City denied her request, Cruz's attorney sent the City a letter indicating Cruz intended to seek legal action if the records were not made available. In response, the City disclosed what it then claimed were all the relevant public records and stated it was withholding an additional seven documents it believed were privileged. The City asserted it had "fully responded" to Cruz's request.

¶3 In July, the trial court held a hearing on the issue, at which the seven withheld documents were submitted to the court for an in camera review. In August 2013, the court ruled that Cruz was entitled to access some of the withheld records, but others were properly withheld based on attorney-client privilege. It also denied her request for attorney fees and costs.

¶4 Cruz then filed a timely Rule 59(a), Ariz. R. Civ. P., motion for a new trial on the issue of attorney fees, arguing the trial court had not followed the procedures laid out in Rule 54(g), Ariz. R. Civ. P., governing claims for attorney fees by denying her request in the August ruling. Before the scheduled hearing on Cruz's motion, the City disclosed more than 800 additional documents related to her original request.

¶5 At the hearing on Cruz's motion, the City's attorney stated he did not know why the recently released documents had not been found before the July hearing. He went on to state, "We think that we have found most of the documents now, almost all of the documents. I don't want to tell you that we aren't going to find a few more. But this release, really, is the last major release there will be. It's now truly going to be this or that document, I think." The trial court granted Cruz's motion for attorney fees and costs, and allowed Cruz to "depose the City concerning the retention and existence of documents responsive to [her] May 12, 2013 document request, and the efforts made in response to that document request."

¶6 Following those depositions, Cruz filed a motion for a new trial and, alternatively, a Rule 60(c), Ariz. R. Civ. P., motion for relief from judgment, alleging the recent depositions and disclosures showed the City was still withholding relevant documents and seeking "a complete reopening of the proceedings." In December 2013 and March 2014, the City disclosed additional documents responsive to Cruz's original request, many of which were e-mails produced prior to May 2013. At the hearing on all pending motions, the City stated, "We have made as good faith an effort as we possibly can to find records. We believe that we have given all the records that there are."

¶7 In May 2014, the trial court denied Cruz's motion for new trial as untimely, but granted Cruz's Rule 60(c) motion in part, and amended its August 2013 ruling to "order[ the City] to produce all documents requested in Ms. Cruz's May 2013 request, with the exception of documents already identified as being subject to the attorney-client privilege" by June 4, 2014. The court also found the City's previous representation that it had "fully responded" with Cruz's request "and, at best, slipshod approach to Ms. Cruz's request, unreasonably expanded and delayed the resolution of this matter, mandating an award pursuant to § 12-349(A)(3)." The court awarded Cruz a portion of her attorney fees and costs pursuant to §§ 39-121.02(B) and 12-349(A). Cruz then filed a timely motion for a new trial on the attorney fees issue, contending the court's determination of the amount was an abuse of discretion.

¶8 On June 4, the City disclosed approximately 204 additional documents, the majority of which were created between January and June 2013.³ At the hearing on Cruz's motion for a new trial, the City's attorney stated he did not "have a good answer" for why those documents had not been found prior to the May 2014 ruling. When asked about his previous representations that the City had complied fully with Cruz's request, the attorney stated:

I have no answer for that other than that is what I believed at the times, and I keep being wrong. And I don't have a legal answer for you. But you asked me to certify on June 4, and I did. And I do believe it now. I really believe it because I triple-checked everything.

¶9 In September 2014, the trial court granted Cruz's motion for a new trial on the § 12-349(A) sanctions issue and ruled that she could depose three additional City employees "concerning what documents were contained in [the City's] files, including the lost ones, the non-privileged circumstances and timing of the delivery of any files to the City Attorney's office, whether duplicates exist, and whether the witnesses know or have information concerning the possible whereabouts of the files or how they were lost." It also allowed Cruz to file supplemental briefing concerning whether the court should impose additional sanctions pursuant to § 12-349(A), which she did.

¶10 In April 2015, the trial court granted Cruz's motion for an additional award of attorney fees and costs pursuant to § 12-349(A), bringing the total amount awarded, including the May 2014 award, to $84,079.84. We have jurisdiction over Cruz's appeal pursuant to A.R.S. §§ 12-2101(A)(1) and 12-120.21. See Ariz. R. P. Spec. Actions 8(a).

Subject Matter Jurisdiction

¶11 In its cross-appeal, the City argues the trial court lacked subject matter jurisdiction to hear the case. It reasons that § 39-121.02 authorizes special actions against the "public body" or "official" that denies access, but Cruz sued the City Manager and City Clerk in their individual, and not official, capacities, thus depriving the court of jurisdiction. If the trial court lacked subject matter jurisdiction, we would not reach the propriety of the attorney fees award. See Glover v. Glover, 231 Ariz. 1, ¶ 22, 289 P.3d 12, 18 (App. 2012). Therefore, we address this issue first. We review a trial court's subject matter jurisdiction de novo. Id. ¶ 18.

¶12 After filing its answer below, the City moved to dismiss this action because Cruz had sued the City Manager and City Clerk in their individual, rather than official, capacities. The trial court found the "plain language of [§ 39-121.02] lets [Cruz] sue the individual officers." Moreover, it concluded that, ultimately, "how the two gentlemen were denominated as defendants" was not "a subject matter jurisdiction issue."

¶13 Subject matter jurisdiction refers to a court's "'power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.'" Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 507, 744 P.2d 29, 34 (App. 1987), quoting Sil-Flo Corp. v. Bowen, 98 Ariz. 77, 81-82, 402 P.2d 22, 25 (1965); see also State ex rel. Baumert v. Mun. Ct. of City of Phx., 124 Ariz. 543, 545, 606 P.2d 33, 35 (App. 1979) ("The existence of subject matter jurisdiction is determined by the general nature of the charge contained in the complaint."). Put another way, it is "the power of the court to hear the class of cases involved." Rash v. Town of Mammoth, 233 Ariz. 577, ¶ 21, 315 P.3d 1234, 1241 (App. 2013). This type of jurisdiction is conferred solely through our constitution and statutes. Glover, 231 Ariz. 1, ¶ 18, 289 P.3d at 16.

¶14 Pursuant to § 39-121.02(A), any person "who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court, pursuant to the rules of procedure for special actions against the officer or public body." That statute thus authorizes a trial court "to deal with the general abstract question" of access to public records as it relates to a case's particular set of facts. See Gatecliff, 154 Ariz. at 507, 744 P.2d at 34.

¶15 Here, Cruz filed a special action from the denial of access to the requested public records pursuant to § 39-121.02....