Mark Lighting Fixture Co., Inc. v. General Elec. Supply Co.

• Decision Date: 19 August 1986
• Docket Number: CA-CIV
• Parties: MARK LIGHTING FIXTURE COMPANY, INC., a New Jersey corporation, Plaintiff- Appellant, v. GENERAL ELECTRIC SUPPLY COMPANY, a Division of General Electric Company, a New York corporation, Defendant-Third Party Complainant-Appellee, and Tri-Valley Electric, Inc., an Arizona corporation, Third Party Defendant- Appellee. 18008.
• Court: Arizona Court of Appeals

Page 123

745 P.2d 123

155 Ariz. 65

MARK LIGHTING FIXTURE COMPANY, INC., a New Jersey corporation, Plaintiff- Appellant, v. GENERAL ELECTRIC SUPPLY COMPANY, a Division of General Electric Company, a New York corporation, Defendant-Third Party Complainant-Appellee, and Tri-Valley Electric, Inc., an Arizona corporation, Third Party Defendant- Appellee.

1 CA-CIV 8008.

Court of Appeals of Arizona,

Division 1, Department B.

Aug. 19, 1986.

Beus, Gilbert, Wake & Morrill by Leo R. Beus, Keith S. Knochel, Phoenix, for plaintiff-appellant.

John B. Marron, Phoenix, for defendant-third party complainant-appellee Gen. Elect. Co.

Johnston & Grynkewich by Gary S. Grynkewich, Tucson, for third party defendant-appellee Tri-Valley Elec., Inc.

OPINION

CONTRERAS, Judge.

The central issue in this appeal is whether costs pursuant to A.R.S. § 12-341 and attorney's fees pursuant to A.R.S. § 12-341.01 may be awarded to defendants-appellees where the plaintiff-appellant's action has been dismissed without prejudice for failure to prosecute and the merits of appellant's claim may be decided in a subsequently filed action. We determine that attorney's fees and costs may be awarded.

On October 22, 1982, Mark Lighting Fixture Company, Inc. filed a breach of contract action against General Electric Supply Company in Maricopa County Cause No. C-472488. General Electric then filed a third-party complaint against Tri-Valley Electric, Inc. for indemnification. During the ensuing year the parties conducted extensive discovery, but no motion to set and certificate of readiness was filed. On September 15, 1983, a minute entry was issued placing the case on the inactive calendar for dismissal on November 15, 1983, unless a motion to set and certificate of readiness was filed or a judgment entered before that date. Thereafter, when neither occurred, a minute entry signed by a superior court commissioner issued on November 22, 1983, ordering that the case be dismissed without prejudice for lack of prosecution pursuant to Rule V, Uniform Rules of Practice. Since the dismissal was without prejudice, the appellant reasserted its claim by filing the same action again under Maricopa County Cause No. C-501781.

General Electric filed a statement of costs on December 16, 1983, and on December 20, 1983, filed an application for attorney's fees pursuant to A.R.S. § 12-341.01 and Local Rule 3.7(e) for counsel's work on the original lawsuit in C-472488. On December 23, 1983, and January 9, 1984, the third-party defendant Tri-Valley also filed requests for attorney's fees and costs against the appellant. Appellant opposed all requests for costs and attorney's fees. On March 2, 1984, the trial court issued a minute entry order finding that the defendant and third-party defendant "are entitled to recover taxable costs and reasonable attorney's fees, provided Plaintiff does not prevail on an anticipated Rule 60(c) Motion for Relief from the minute order herein of November 22, 1983." The trial court set a date for a hearing on the reasonableness of the fee requests.

On May 22, 1984, appellant filed a motion pursuant to Rule 60(c), Arizona Rules of Civil Procedure, to vacate the minute entry order of dismissal in C-472488, alleging excusable neglect, and also moved to consolidate that case with the second one it had filed in C-501781. On May 25, 1984, a hearing was held on the reasonableness of the attorney's fees requests. The trial court granted General Electric's request for $5,182.00 in attorney's fees and Tri-Valley's request for $8,350.00, subject to its subsequent ruling on the Rule 60(c) motion. After hearing oral argument on the request for Rule 60(c) relief, the trial court denied the motion, finding that while there was an open question on the issue of excusable neglect, the appellant had not made a timely request for relief. On August 13, 1984, a formal written order was entered dismissing the action, denying the Rule 60(c) motion, denying the motion to consolidate, and granting General Electric attorney's fees of $5,182.00 and costs of $1,325.75 and Tri-Valley attorney's fees of $8,350.00 and costs of $859.00. Mark Lighting appeals from the trial court's award of costs and attorney's fees to General Electric and Tri-Valley, who will both be referred to as "appellees."

JURISDICTION TO AWARD ATTORNEY'S FEES

We first consider an issue raised by appellant for the first time in its reply brief. Appellant argues that the awards of attorney's fees must be reversed because the trial court lacked jurisdiction to rule on the attorney's fees requests. Normally, issues will not be considered on appeal if they have not been raised below, Brown Wholesale Electric Co. v. Safeco Insurance Co. of America, 135 Ariz. 154, 659 P.2d 1299 (App.1982), or if they are raised on appeal for the first time in the reply brief. Peagler v. Phoenix Newspapers, Inc., 131 Ariz. 308, 640 P.2d 1110 (App.1981). This rule does not apply to matters concerning jurisdiction, which can be raised for the first time on appeal and even sua sponte by this court. Bates & Springer of Arizona, Inc. v. Friermood, 109 Ariz. 203, 507 P.2d 668 (1973). We will therefore consider this issue.

Appellant argues that the attorney's fees requests were not timely filed and therefore the trial court lacked jurisdiction to consider them. Appellant cites the case of Title Insurance Co. of Minnesota v. Acumen Trading Co., Inc., 121 Ariz. 525, 591 P.2d 1302 (1979), in which the Arizona Supreme Court held that if a lower court judgment does not contain an award of attorney's fees where fees have been requested pursuant to A.R.S. § 12-341.01, the appellate court will consider that such an award was denied. A party wishing to contest the denial of attorney's fees must file a timely motion for new trial or a motion to alter or amend judgment. Rules 59(d) and 59(l), Arizona Rules of Civil Procedure, require that these motions be filed within 15 days of the entry of judgment. These time limits are jurisdictional and cannot be enlarged by the trial court. Rule 6(b), Arizona Rules of Civil Procedure. When such motions are not timely filed, no jurisdiction is conferred upon the trial court to rule upon the motions. Edwards v. Young, 107 Ariz. 283, 486 P.2d 181 (1971).

With the foregoing proposition in mind, the appellant contends that the minute entry order of dismissal which was signed by the court commissioner and filed with the clerk should be considered a judgment from which the 15 day time period for filing motions to reconsider or alter the judgment began to run. Appellant points out that in Stoneberg v. Northwood, 121 Ariz. 230, 589 P.2d 473 (App.1978), Division Two of this court held that a minute entry order signed by the judge and filed with the clerk was in compliance with Rule 58(a), Arizona Rules of Civil Procedure, which prescribes the requirements of a final judgment, and therefore was a final, appealable order. Appellant argues that since the signed minute entry order dismissing the case on November 22, 1983, did not contain an award of attorney's fees and since the requests for attorney's fees were not filed within the requisite 15 days from the entry of the signed minute entry order, the trial court had no jurisdiction to consider the requests for attorney's fees. We disagree.

In presenting the foregoing jurisdictional argument, appellant ignores Division One's opinion in Johnson v. Nelson, 128 Ariz. 587, 627 P.2d 1085 (App.1981), which was in effect at the time the awards of attorney's fees and costs were made. In Johnson v. Nelson, we disagreed with Division Two's decision in Stoneberg that a minute entry order signed by the court and filed with the clerk is a judgment within the meaning of Rule 58(a). We specifically held in Johnson v. Nelson that a separate instrument apart from a minute entry is required as the appropriate memorial for a judgment or appealable order. If we follow Johnson, no judgment was "entered" in the present case until the separate formal written instrument was signed by the court and filed with the clerk on August 13, 1984. The requests for attorney's fees had been filed long before that date and hence were not untimely, so the trial court did not lack jurisdiction to consider the requests if we follow Johnson.

The appellant attempts to bolster its argument with a decision rendered after the briefs were filed and after oral argument was heard. On February 27, 1986, the Arizona Supreme Court issued its opinion in Focal Point, Inc. v. Court of Appeals, 149 Ariz. 128, 717 P.2d 432 (1986). ¹ Focal Point addressed the conflict between the two divisions of the court of appeals represented by the Johnson and Stoneberg cases. The supreme court chose Stoneberg and rejected Johnson. It found that the written minute entry entitled "Judgment" in Focal Point satisfied the three requirements of Rule 58(a): it was written, signed by a judge, and filed with the clerk of the court. To require a separate instrument under the circumstances would place "undue emphasis on form, more so than is required by the language of the rule." Id. at 129, 717 P.2d at 433. Although we seriously question the soundness of this choice, we must consider its applicability, if any, to this case.

If the rule of Focal Point is applied retroactively, the appellees' post-judgment requests for attorney's fees in the immediate case were not timely filed. In Arizona, a presumption operates to give civil appellate court opinions retroactive, as well as prospective, effect. Chevron Chemical Co. v. Superior Court, 131 Ariz. 431, 641 P.2d 1275 (1982). The presumption may be overcome, however, by meeting a three-part test borrowed from Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) and first used in Arizona in Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216 (1977). A decision will not apply retroactively if (1) it establishes a new principle of law which either...