Vicari v. Lake Havasu City

• Decision Date: 04 August 2009
• Docket Number: No. 1 CA-CV 08-0534.,1 CA-CV 08-0534.
• Citation: 213 P.3d 367,222 Ariz. 218
• Parties: Richard VICARI, an individual dba Color Arts Landscaping; and Color Arts Landscaping, a sole proprietorship, Plaintiffs-Appellants, v. LAKE HAVASU CITY, an incorporated municipality, Defendant-Appellee.
• Court: Arizona Court of Appeals

213 P.3d 367

222 Ariz. 218

Richard VICARI, an individual dba Color Arts Landscaping; and Color Arts Landscaping, a sole proprietorship, Plaintiffs-Appellants, v. LAKE HAVASU CITY, an incorporated municipality, Defendant-Appellee.

No. 1 CA-CV 08-0534.

Court of Appeals of Arizona, Division 1, Department A.

August 4, 2009.

Law Offices of Keith S. Knochel, P.C. by Keith S. Knochel, Bullhead City, Attorneys for Appellants.

Grasso Law Firm, P.C. by Kim S. Alvarado, Jamie R. Heller, Tempe, Attorneys for Appellee.

OPINION

WEISBERG, Judge.

¶ 1 Richard Vicari and Color Arts Landscaping (collectively "Vicari") appeal from the portion of the superior court's final judgment that awarded $1,000 in attorneys' fees to Lake Havasu City ("the City"). For the following reasons, we affirm.

BACKGROUND

¶ 2 On June 12, 2007, Vicari, a subcontractor for Western Municipal Construction, Inc. ("Western"), filed a first-amended complaint against Western and the City for breach of contract. The complaint alleged, in part, that (1) the City owed Vicari a third-party contractual duty that arose from a contract between the City and Western and (2) the City breached its duty to Vicari by failing to direct Western to pay its subcontractors as provided by the City's contract with Western.

¶ 3 The City did not file an answer to the complaint, but instead filed a motion on June 20, 2007, to dismiss the complaint pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b)(6). The City argued that it did not enter into or breach any contract with Vicari, that it directed Western to pay its subcontractors on a timely basis, and that Vicari failed "to state a claim upon which relief can be granted." The City additionally requested an award of attorneys' fees.

¶ 4 Vicari did not respond to the City's motion, but instead filed a notice of voluntary dismissal on July 20, 2007 seeking to dismiss without prejudice its complaint against the City. On July 25, the superior court acknowledged receipt of Vicari's notice of voluntary dismissal and indicated that it "will sign [a] written Order upon presentation."

¶ 5 However, on July 31, 2007, the court noted "interesting procedural issues" in the case and indicated that it would treat the pending motion to dismiss as one for summary judgment because that motion "included matters outside of the pleadings." The court then stated, "[I]t would appear then that [the City] has not been voluntarily dismissed from the case." Nevertheless, the court was unsure whether the City wished to accept the voluntary dismissal and withdraw its motion to dismiss or have the court address its motion. The court directed the City to advise the court of its position.

¶ 6 Thereafter, the City filed a statement indicating that it would accept Vicari's voluntary dismissal, but that it was renewing its request for attorneys' fees. Vicari objected to the City's request and, in turn, sought its own award of attorneys' fees.

¶ 7 On May 1, 2008, the court issued a minute entry granting the City's motion to dismiss and awarding it reasonable attorneys' fees and costs. The court stated that although the purpose of a Rule 41(a) dismissal was to allow a party to avoid litigation expenses, both parties had incurred expenses. The court then treated the City's motion to dismiss as one for summary judgment and made specific findings of fact and conclusions of law to support its ruling.

¶ 8 Vicari then moved for reconsideration. In a minute entry filed on May 19, 2008, the court stated that it might grant the motion for reconsideration because the City had not provided supporting documentations that would permit the court to treat the motion to dismiss as a motion for summary judgment pursuant to the applicable rules.¹ Thus, the court concluded that "it would appear ... that the Notice of Dismissal was timely in that there was no properly supported Motion for Summary Judgment before the Court." However, the court permitted the City an opportunity to file a response, which it did.

¶ 9 On June 5, 2008, the court issued a minute entry affirming its prior order of dismissal and award of attorneys' fees and effectively denying Vicari's motion for reconsideration. The court reasoned,

[T]here was no substantial justification for the Complaint against [the City]. Therefore, irrespective of the status of the Motion to Dismiss, whether the same is treated as a Motion for Summary Judgment or not, [the City] incurred attorney's fees and costs that it simply should not have had to incur. Additionally, the Notice of Dismissal was not filed until after the Motion to Dismiss had been filed. Accordingly, [Vicari's] efforts to portray that there was an agreement to dismiss the matter has to be taken in light of the fact that [the City] proceeded to incur the costs of the preparation and the filing of the Motion to Dismiss.

¶ 10 The court then certified its ruling as final and signed a judgment dismissing with prejudice the complaint against the City. The court also awarded the City $1,000 in attorneys' fees and $255.40 in costs. Vicari timely appealed the award of attorneys' fees.

ANALYSIS

¶ 11 Vicari does not challenge the superior court's order dismissing the case with prejudice or that portion of the judgment awarding costs to the City. Rather, appealing only the award of attorneys' fees, it argues that the superior court lacked "jurisdiction" to award attorneys' fees to the City because it had voluntarily dismissed the case prior to any proper conversion of the motion to dismiss into a motion for summary judgment. The City responds that because Vicari only appealed the award of attorneys' fees, and not the judgment, the issue before us is whether the superior court abused its discretion by awarding the City its requested fees.

¶ 12 Despite presenting a "jurisdictional" challenge, Vicari neither cites supporting authority nor explains how the superior court lacked the power to award attorneys' fees. See Schuster v. Schuster, 75 Ariz. 20, 23, 251 P.2d 631, 633 (1953) (describing "jurisdiction" generally as "the power to act"). Although a judgment may be rendered void in a collateral proceeding if it lacked personal jurisdiction, subject-matter jurisdiction, and jurisdiction to render the particular judgment, Collins v. Superior Court, 48 Ariz. 381, 393, 62 P.2d 131, 137 (1936) (citing Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914)), Arizona courts have noted the often imprecise use of the word "jurisdiction" to attack the legality of a judgment on direct appeal. See, e.g., Collins, 48 Ariz. at 393, 62 P.2d at 137 (explaining that "jurisdiction" often incorrectly used to mean, "not the power to perform a certain act, but the performing of it when it was prohibited, a very different thing"); Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983) (distinguishing the term jurisdiction from legal error); State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 338-39, 651 P.2d 862, 866-67 (App.1982) (noting that in cases involving direct appeal, lack of jurisdiction is often confused with legal error). Given the context of Vicari's challenge, we conclude that the "jurisdictional" argument here refers not to the power of the court to award attorneys' fees, but to the correctness of the court's decision to award attorneys' fees on any basis following a Rule 41(a)(1) voluntary dismissal. We therefore will limit our inquiry to the scope of this question.

¶ 13 In resolving the question before us, we review the superior court's interpretation of the applicable law and its legal conclusions de novo. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 136, ¶ 49, 180 P.3d 986, 1001 (App.2008). "We interpret rules of procedure, as we do statutes, by their plain meaning." State v. Old W. Bonding Co., 203 Ariz. 468, 471, ¶ 12, 56 P.3d 42, 45 (App.2002). Where the statutory language is clear, we ascribe plain meaning to its terms. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999). If ambiguity exists, we apply secondary principles of statutory construction and consider other relevant information, including the history, context, and spirit and purpose of the law, to glean legislative intent. Ariz. Newspapers Ass'n, Inc. v. Superior Court, 143 Ariz. 560, 562, 694 P.2d 1174, 1176 (1985); see also Fuentes v. Fuentes, 209 Ariz. 51, 54-55, ¶ 12, 97 P.3d 876, 879-80 (App.2004).

Notice of Voluntary Dismissal

¶ 14 Vicari argues that its notice of voluntary dismissal was self-executing and automatically effective without court order because it was filed before the City served an answer or motion for summary judgment. Vicari admits that the City's motion to dismiss was pending at the time it voluntarily dismissed the case, but contends that the City never converted its motion to one for summary judgment and that the court did not treat that motion as one for summary judgment until "it was too late."

¶ 15 Rule 41(a) provides, in relevant part,

1. Subject to [certain provisions], an action may be dismissed (A) by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs .... Unless otherwise stated in the notice ... the dismissal is without prejudice ....

¶ 16 The plain language of Rule 41(a)(1) permits a plaintiff to voluntarily dismiss his own case without court order if he files a notice of dismissal before the adverse party serves an answer or motion for summary judgment. Accordingly, in Goodman v. Gordon, 103 Ariz. 538, 540, 447 P.2d 230, 232 (1968), our supreme court explained,

It is now the well-settled rule that ... before [an] answer is filed the right to dismiss is absolute, self-executing, and accomplished automatically by plaintiff's filing a notice of dismissal. There need be no notice to defendant, no hearing on the matter, and no order of the court.

¶ 17 The...