Trantor v. Fredrikson
| Decision Date | 28 July 1994 |
| Docket Number | No. CV-93-0124-PR,CV-93-0124-PR |
| Parties | Margie P. TRANTOR, Plaintiff/Appellant, Leighton P. Clark, Appellant, v. Glen FREDRIKSON and Jane Doe Fredrikson, his wife, Defendants/Appellees. |
| Court | Arizona Supreme Court |
In State v. Richey, 160 Ariz. 564, 774 P.2d 1354 (1989), we held that a trial court must make specific findings of fact and conclusions of law in awarding attorneys' fees under A.R.S. § 12-341.01(C) and § 12-349. The question we answer today is whether the failure of a party to object to the absence of these findings prevents that party from raising the issue on appeal. We hold that it does.
Trantor fell through a ceiling at work and was injured. The Fredriksons owned the building. Trantor brought an action against the Fredriksons alleging that an unreasonably dangerous condition in the building caused her injuries. The Fredriksons discovered that the dangerous condition was actually created by Trantor's employer, Fredriksons' lessee, without the Fredriksons' knowledge. The trial court granted the Fredriksons' motion for summary judgment.
The Fredriksons moved for an award of attorneys' fees under A.R.S. § 12-341.01(C) and § 12-349. The court granted the award against Trantor and her lawyer (hereinafter Trantor), stating:
This matter having been under advisement, IT IS ORDERED granting attorney fees against plaintiff and her counsel. Defendant is directed to submit an affidavit of the amount of fees incurred.
Minute Entry of November 16, 1990.
Although Trantor filed a motion to reconsider the award of attorneys' fees, she did not object to the court's failure to make findings of fact and conclusions of law. The motion to reconsider addressed only the substantive propriety of an award of fees under the relevant statutes. The trial court denied Trantor's motion.
On appeal, Trantor argued that the court erred when it failed to make findings of fact and conclusions of law in awarding the fees. Trantor also argued that there was no evidence to support an award of fees under the relevant statutes. The Fredriksons argued that because Trantor did not raise the absence of findings below, the issue was not preserved for appeal.
The court of appeals agreed with Trantor and, relying on Richey, held that a trial court's obligation to make findings and conclusions in awarding fees under § 12-341.01(C) or § 12-349 cannot be waived by a failure to object. Trantor v. Fredrikson, 176 Ariz. 389, 861 P.2d 674 (App.1993). We granted review to decide whether a party may raise the absence of findings on appeal without first raising the issue in the trial court.
A.R.S. § 12-341.01(C) allows a court to award reasonable attorneys' fees in civil actions in which a claim or defense constitutes harassment, is groundless, and is not made in good faith. A.R.S. § 12-349 allows for an award of fees in any civil action in which a lawyer or party (1) brings or defends a claim without substantial justification (defined by § 12-349(F) to mean one that "constitutes harassment, is groundless and is not made in good faith"), (2) brings or defends a claim solely or primarily for delay or harassment, (3) unreasonably expands or delays the proceeding, or (4) engages in abusive discovery. Section 12-350 requires a court to set forth the specific reasons for an award under § 12-349.
Neither § 12-341.01(C) nor §§ 12-349 and 12-350 specifically require findings of fact and conclusions of law. Nevertheless, building on this court's opinion in Associated Indem. Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985), which related to § 12-341.01(A), this court held in Richey that specific findings of fact and conclusions of law were required. 160 Ariz. at 565, 774 P.2d at 1355. We noted that § 12-341.01(C) referred to a heightened standard of proof (clear and convincing evidence) and that § 12-350 required the court to set forth the specific reasons for an award. Together with the prudential concerns expressed in Warner, we concluded that a party is entitled to findings and conclusions to aid in appellate review. We did not address the question of waiver or preclusion.
Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal. Van Dever v. Sears, Roebuck & Co., 129 Ariz. 150, 151-52, 629 P.2d 566, 567-68 (1981); United States v. Globe, 113 Ariz. 44, 51, 546 P.2d 11, 18 (1976). Even if the doctrine of fundamental error applied to civil cases, see Johnson v. Elliott, 112 Ariz. 57, 61, 537 P.2d 927, 931 (1975), it would only apply when the error goes to the foundation of the case or deprives a party of a fair trial. Although findings of fact and conclusions of law are certainly helpful on appellate review, they do not go to the foundation of the case or deprive a party of a fair hearing. If the court has failed to make findings and a party wants them, all one has to do is to make that issue known in the trial court. The trial court will either make findings or it will not. If it does, the party gets what it wants. If it fails to do so, the issue is preserved for review. But by failing to act at all, a litigant is not in the position to complain about how helpful findings would have been on appeal.
The question of findings by the court is generally addressed in Rule 52(a), Ariz.R.Civ.P. Although not specifically applicable to findings made in connection with an award of attorneys' fees, the underlying policy considerations are the same. Findings and conclusions promote appellate review. In an action tried to the court without a jury, a party is entitled to findings of fact and conclusions of law only if requested before trial. But with or without a request, the court must make findings of fact and conclusions of law in granting or denying preliminary injunctive relief. And even though findings are required in granting or denying injunctive relief, the...
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