Bonito v. Flagstaff

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BONITO PARTNERS, LLC, an Arizona ) 1 CA-CV 10-0819 limited liability company, ) ) DEPARTMENT C Plaintiff/Appellant, ) ) O P I N I O N v. ) ) CITY OF FLAGSTAFF, a ) municipality, ) ) Defendant/Appellee. ) ) DIVISION ONE FILED: 02/21/2012 RUTH A. WILLINGHAM, CLERK BY: DLL Appeal from the Superior Court in Coconino County Cause No. CV2010-00231 The Honorable Jacqueline Hatch, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART Gerald W. Nabours Attorney for Appellant Flagstaff Mangum, Wall, Stoops & Warden, P.L.L.C. By Kenneth H. Brendel Clyde P. Halstead Attorneys for Appellee Flagstaff David R. Merkel Phoenix Joni L. Hoffman Attorneys for Amicus Curiae League of Arizona Cities and Towns H A L L, Judge ¶1 Bonito Partners, LLC (Bonito) appeals from the trial court s summary judgment in favor of the City of Flagstaff (the City). Bonito contends that the City s ordinance requiring that owners of property adjoining sidewalks keep them in repair and imposing a lien against the property for the costs of repair if performed by the City is unconstitutional because, among other reasons, it takes private property for public use without just compensation in violation of the Fifth Amendment. Finding that the ordinance is a valid exercise of the City s police powers, the trial court rejected Bonito s Takings Clause claim. Even though we agree that the ordinance constitutes a lawful exercise of the City s police powers, such a determination does not resolve the Takings Clause challenge, which is an analytically distinct issue. Therefore, we affirm in part and vacate and remand in part. FACTUAL AND PROCEDURAL HISTORY ¶2 The undisputed. facts relevant to the issues ordinance the City Section notified Bonito 8-01-001-0003, In a letter dated May that, Bonito that the City would repair pursuant was repairing the sidewalk within ten days. explained are At some point, through no fault of Bonito, the sidewalk fell into disrepair. 2009, appeal Bonito owns a parcel of land in Flagstaff that is adjacent to a City sidewalk. 18, on the to responsible City for The letter further sidewalk and bill Bonito for the work if Bonito failed to complete the repairs within the designated time period. 2 If Bonito then failed to timely pay the City for the repair work, the City would place a lien on Bonito s property. ¶3 On June 25, 2009, Bonito received a second notice from the City stating that Bonito was responsible for the cost of repairing the sidewalk. On June 29, 2009, Bonito responded to the City s second notice, stating: Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work. ¶4 The City performed the work to repair the sidewalk. On July 23, 2009, the City sent Bonito a letter explaining that it had performed the repairs and included an itemized statement of the repair costs. Bonito failed to pay the City for the repairs and the City recorded a lien on Bonito s property. ¶5 On March 23, 2010, Bonito filed a complaint in the trial court, arguing that the City s ordinance requiring private property owners to repair public sidewalks violates the federal and state constitutional prohibitions against the taking private property for public use without just compensation. subsequent amended complaint, Bonito also alleged that of In a the ordinance constitutes an unlawful tax and exceeds the authority permitted by Arizona statute and the City s charter. ¶6 judgment. Bonito and the City filed cross-motions for summary After holding oral argument on the motions, the trial court granted summary judgment in favor of the City. 3 ¶7 Bonito timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003). DISCUSSION ¶8 Summary judgment shall be granted when there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. 56(c). law. Ariz. R. Civ. P. We review de novo the trial court s application of the State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999). ¶9 by On appeal, Bonito contends that the trial court erred granting summary judgment in favor of the City. Specifically, Bonito argues that the City s ordinance requiring property owners to pay for repairs to public sidewalks (1) violates the federal and state constitutional takings clauses, (2) constitutes an unlawful tax, and (3) exceeds the authority extended to the City by statute and by its charter. We address each of these arguments in turn. I. Unconstitutional Taking ¶10 Bonito asserts that the City s ordinance requiring private property owners to repair public sidewalks violates the Takings Clause Constitution: of the Fifth Amendment to the United States [N]or shall private property be taken for public 4 use, without just compensation. 1 In the trial court and on appeal, both parties frame their arguments in terms of whether the City s ordinance requiring property owners to repair defective sidewalks is a valid exercise of the City s police powers.2 the In its minute entry ruling dismissing the complaint, trial court agreed with the City s argument that the ordinance was a valid exercise of that power and therefore was not an parties unconstitutional arguments, analytically and taking. the As court s separate albeit we discuss ruling, below, the conflate the interrelated issues regarding whether the ordinance is valid under the Due Process Clause of the Fourteenth Amendment and, if so, whether it nonetheless violates the Takings Clause. 1 Article 2, Section 17, of the Arizona Constitution, Arizona s analogue to the Takings Clause, provides in relevant part: No private property shall be taken or damaged for public or private use without just compensation having first been made[.] Although Arizona s constitutional provision is not necessarily coextensive with its federal counterpart, see Bailey v. Myers, 206 Ariz. 224, 229, ¶ 20, 76 P.3d 898, 903 (App. 2003), Bonito does not contend that the state constitution affords him greater protection or applies differently under the circumstances of this case. Therefore, we analyze the issues presented here under the Fifth Amendment. 2 The two cases Bonito primarily relies upon, Rivett v. City of Tacoma, 870 P.2d 299, 301 (1994), and Tropiano v. City of Tacoma, 718 P.2d 801, 802 (1986), are both slip-and-fall cases in which the issue was whether the City of Tacoma could shift liability for damages caused by public sidewalk defects onto the adjacent private property owner. Because neither case addressed the issue raised here, namely, whether a municipality may require a private property owner to pay for repairs to an adjacent sidewalk, they are inapposite. 5 ¶11 As clarified by the United States Supreme Court in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), a Takings Clause analysis presupposes a valid exercise of police power. Id. at 543 ( [T]he Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. ).3 Thus, the question whether the City s ordinance is a valid exercise of police power, which is properly analyzed under the Due Process Clause of the Fourteenth Amendment, is preliminary to the Takings Clause claim. Lingle, 544 U.S. at 539; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (explaining that the Takings Clause is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking ) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225, 731 P.2d 113, 120 (App. 1986) ( Although a zoning ordinance may be a proper exercise of the police power, it nevertheless may result in an unconstitutional taking of property. ). Accordingly, 3 we need not consider The clarification was needed because the Court had previously used a substantially advances formula in determining whether a municipal zoning ordinance effected a taking, thereby commingling the due process and takings clauses. See Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) ( The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests[.] ). 6 whether the ordinance violates the Fifth Amendment unless we first determine that the ordinance is a valid exercise of the City s police powers. ¶12 A municipality has the right to define nuisances. Moton v. City of Phoenix, 100 Ariz. 23, 26, 410 P.2d 93, 95 (1966). Using its police powers, a municipality may abate a nuisance without compensating the owner of the property. City of Tempe v. Fleming, 168 Ariz. 454, 458, 815 P.2d 1, 5 (App. 1991); see also Moton, 100 Ariz. at 27-28, 410 P.2d at 95-96 ( In the absence of a statutory provision for compensation, private property may be destroyed by a municipal corporation without compensation to the owner where the destruction is necessary to protect the public and the municipality is properly exercising the police Corporations § 177). power. ) (quoting 62 C.J.S. Municipal When the reasonableness of [an] ordinance and its relationship to the police power are fairly debatable . . . the court will not substitute its opinion for that of the legislative body. City of Phoenix v. Fehlner, 90 Ariz. 13, 20, 363 P.2d 607, 612 (1961) (internal quotation omitted). Indeed, [a]n ordinance will not be found unconstitutional unless it affirmatively appears that the restriction is clearly arbitrary and unreasonable, and has not any substantial relation to the public health, safety, morals, or general welfare. City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) 7 (internal quotation ordinance carries unconstitutionality. ¶13 omitted). the The burden party of objecting to demonstrating an its Fehlner, 90 Ariz. at 18, 363 P.2d at 611. The City s ordinance Section 8-01-001-0003 provides: It shall be the duty of the owner or owners of [lots adjoining sidewalks in disrepair] within ten (10) days after the service of [notice from the City] to place the sidewalk or portion of sidewalk in such notice mentioned or described in good condition and repair using therefor material similar in character and dimensions of that with which such sidewalk was originally constructed; provided that such sidewalk shall comply with the provisions and specifications for the laying and constructing of sidewalks as are on file in the Engineering Section of the City. The lien placed by the City was authorized pursuant to Section 8-01-001-0007: The cost of such repairs . . ., together with all costs and penalties herein provided for,[4] shall constitute a lien upon the lot or lots fronting or adjoining the said sidewalk so repaired . . . in favor of the City. 4 If the property owner does not pay the costs of repair within ten days of its filing with the City Clerk, fifty percent of the amount of the cost is added to the cost and becomes an additional charge upon the property. Section 8-01-001-0008. Although the City has not done so here, and claims that its practice is only to enforce the lien upon a sale of the property, the City is empowered to publish a notice of sale of property for four consecutive issues in a weekly paper [a]s soon as practicable after the attaching of such penalties and thereafter sell the property from the front door of the City Hall. Section 8-01-001-0009. 8 ¶14 its Bonito does not dispute that the sidewalk adjacent to property in and pedestrians, was disrepair, would posed constitute maintained on private property. a a potential nuisance hazard if it to were Nor does Bonito dispute that the City has the authority to require a private property owner to remove expense. a nuisance from private property at the owner s See Fleming, 168 Ariz. at 457-58, 815 P.2d at 4-5 (explaining that a municipality may require a property owner to terminate a nuisance on the property, such as trash, debris, or weeds, at the property owner s expense). Instead, Bonito contends that the City is the party responsible for keeping public sidewalks in good repair, not adjacent property owners, and asserts that the ordinance s appropriation of private funds to cure a public nuisance is an invalid exercise of the City s police power. ¶15 We disagree. Under the auspices of its police power, the legislature may place the burden of the upkeep of sidewalks which would otherwise rest upon the community upon the abutting owner, provided it does not act arbitrarily or unreasonably. City of Bridgeport v. United Illuminating Co., 40 A.2d 272, 273 (Conn. 1944); see also City of Philadelphia to the Use of Tony Depaul and Son v. Authority for Indus. Dev., 326 A.2d 502, 504 (Pa. Super. Ct. 1974) ( [T]here is ample authority that a city may properly regulate and police the condition of its sidewalks, 9 and require abutting landowners to make repairs when necessary[.] ); Palmyra v. Morton, 25 Mo. 593, 596 (1857) ( The right of a municipal corporation to require the owner to pave the sidewalk in front of his property, may be derived from its duty to protect the public health and to prevent nuisances, and is a mere requiring police adjoining regulation. ).5 landowners to Moreover, keep an sidewalks ordinance in a safe condition serves not only the general interest of the community, but the special interest the abutter has in keeping clean and safe the sidewalk in front of his property[.] City of Bridgeport, 40 A.2d at 273; see also Ford v. Kansas City, 79 S.W. 923, 926 (1904) ( The fundamental ground upon which the ordinance is predicated is that a sidewalk kept in good repair enhances the value of the property upon which it fronts. ). We likewise is conclude that ordinance Section 8-01-001-0003 neither arbitrary nor unreasonable and is, therefore, a valid exercise of the City s police power. ¶16 We now consider whether nonetheless violates the Takings Clause. the statutory scheme We initially note that if Section 8-01-001-0003 is viewed in isolation, it could be 5 We also note that Arizona Attorney General Opinion 56-43 opines that a municipality has the power to require a property owner to repair defective sidewalks adjoining his lot. Attorney General Opinions are advisory only, however, and not binding on the court. Marston s, Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P.2d 244, 248 (1982). 10 argued that the ordinance does not implicate the Takings Clause. See Eastern (Kennedy, Enterprises J.) v. (concurring Apfel, in the 524 U.S. judgment 498, and 541 (1998) dissenting in part) (disagreeing with the Takings Clause rationale relied on by the four-justice lead opinion to enjoin a coal mining regulation: [O]ne constant limitation has been that in all of the cases where the regulatory analysis has been employed, a specific property right or interest has been at stake. ). Even assuming that Section 8-01-001-0003 does not take any property right for which compensation may be required under the Takings Clause, however, Bonito s property is also regulated by the lien imposed pursuant to Section 8-01-001-0007 as part of the overall statutory scheme. See id. at 540. Therefore, even though we have determined that the requirement that a lot owner repair the adjoining sidewalk is a valid exercise of the City s police powers, Bonito s the question property whether effects the imposition of a an unconstitutional taking be regulated certain lien on must be separately addressed. ¶17 [P]roperty may to a extent, [but] if a regulation goes too far it will be recognized as a taking. Ranch 57, 152 Ariz. at 225, 731 P.2d at 120 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). Takings Clause requires payment so that government The cannot forc[e] some people alone to bear public burdens, which, in all 11 fairness and justice, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49 (1960); see also Tahoe-Sierra Pres. Council, Inc., v. Tahoe Reg l Planning Agency, 535 U.S. 302, 336 (2002) (explaining that the concepts of fairness and justice [] underlie the Takings Clause ). ¶18 The United States Supreme Court has recognized two categories of per se takings for Fifth Amendment purposes: (1) when the government requires the property owner to suffer a permanent physical government invasion regulations of her completely property, deprive an economically beneficial use of her property. and (2) owner of when all Lingle, 544 U.S. at 538. Here, Bonito has suffered neither a permanent physical invasion of its property nor a complete deprivation economically beneficial use of its property. of all Therefore, no per se taking has occurred. ¶19 per Outside the[] two relatively narrow categories [of se takings] . . ., regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). Id. In applying the Penn Central factors, the Court has generally eschewed any set formula for determining how far is too far, preferring instead to engage in essentially ad hoc, factual inquiries. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (quoting Penn Central, 438 U.S. at 124). 12 Such an inquiry requires an examination into all of the relevant circumstances in a particular economic case, impact of with the primary emphasis regulation on on: the (1) [t]he claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations, and (2) the character of the governmental action for instance whether it amounts property to a physical interest invasion through some or instead public merely program affects adjusting the benefits and burdens of economic life to promote the common good[.] Lingle, 544 U.S. at 538 (internal quotation omitted). ¶20 Neither standard for party has yet determining addressed when a the Penn governmental affecting property rights requires compensation. Central regulation Rather, the parties argued and the trial court seemingly relied on case law predating Lingle that failed to distinguish between due process and takings analysis. Court s own Amendment analysis). See id. at 537-39 (explaining the Supreme doctrinal due process confusion law with in conflating Fifth Fourteenth Amendment takings Because of the essentially ad hoc, factual nature of the inquiry, an appellate court is ill-equipped to apply the Penn Central factors when they have not been developed by the parties in the trial court. addressed and Therefore, we vacate the trial court s ruling on this issue and remand for the court to determine whether the City s lawful exercise of its 13 police powers nonetheless constituted an unconstitutional taking. II. Unlawful Taxation ¶21 Bonito special tax in contends that violation of the City s Article 9, ordinance Section 1, is of a the Arizona Constitution. ¶22 706 In Smith v. Mahoney, 22 Ariz. 342, 346-47, 197 P. 704, (1921), the supreme court explained that whether an enactment falls within the scope of the police power or the taxing power depends upon the purposes of the act. The police power must also be distinguished from the taxing power, and the distinction is this: That the taxing power is exercised for the raising of revenue, while the police power is exercised only for the purpose of promoting the public welfare, and though this end may be attained by taxing or licensing occupations, yet the object must always be regulation and not the raising of revenue, and hence the restrictions upon the taxing power do not apply. Id. (internal quotation omitted). ¶23 measure. Here, the City s ordinance is not a revenue-generating The purpose of the ordinance is clearly limited to abating public nuisances. Pursuant to the ordinance s express terms, a property owner may independently make the necessary sidewalk repairs without remitting any funds to the City. Alternatively, a property owner may choose to allow the City to make the necessary repairs and then pay the City only the costs 14 incurred to remedy the nuisance. Under either circumstance, the City does not generate any revenue. III. Local or Special Law ¶24 Bonito argues that the City s sidewalk repair ordinance constitutes a local or special law that violates Article 4, Section 19, of the Arizona Constitution. Specifically, Bonito asserts that the City s ordinance applies to only certain members of a class, namely, property owners with an adjoining sidewalk, and it maintains that the ordinance is arbitrary because it has no relation to the use or benefit of the sidewalk. ¶25 A special law applies only to certain members of a class or to an arbitrarily defined class which is not rationally related to a legitimate legislative purpose. State Comp. Fund v. 273, Symington, 174 Ariz. (quotation omitted). the classification 188, 192, 848 P.2d 277 (1993) A law is general, not special, when: (1) is rationally related to a legitimate governmental objective, (2) the classification is legitimate, encompassing all members of the relevant class, and (3) the class is elastic, allowing members to move in and out of it. Long v. Napolitano, 203 Ariz. 247, 253, ¶ 14, 53 P.3d 172, 178 (App. 2002). ¶26 legitimate In this case, governmental the City s objective 15 of ordinance abating furthers public a sidewalk nuisances. The proximity limitation placed on the class is rationally related to the purpose in that the owner of private property adjacent to the public sidewalk may be in the best position to monitor the state of the sidewalk and often derives a significant benefit from the sidewalk as a means of ingress and egress to his private property. In addition, the ordinance applies uniformly to all property owners with public sidewalks adjacent to their properties. Finally, the class is elastic when a person acquires property adjacent to a public sidewalk he becomes a member of the class, and when a person relinquishes property adjacent to a public sidewalk he is no longer included in the class. Therefore, the trial court did not err by finding the City s ordinance is not a local or special law. IV. Statutory Authority and Scope of Charter ¶27 Bonito asserts that the City s ordinance exceeds the scope of authority granted to the City by statute. ¶28 Bivens A v. Instead, municipal Grand [a] corporation Rapids, city can 505 has N.W.2d exercise no 239, only inherent 241 such (Mich. powers power. 1993). as are delegated to it by the Constitution and the laws of the state and its charter. City of Phoenix v. Williams, 89 Ariz. 299, 303, 361 P.2d 651, 654 (1961) (internal quotation omitted and emphasis removed). 16 ¶29 Pursuant to A.R.S. § 9-243 (2008), the common council of a city or town may require the proprietor of any block, lot or part of a lot within the town to construct a sidewalk in front thereof . . . and may by ordinance provide that upon failure of the proprietor to construct the sidewalk within a time to be prescribed after notice so to do it may be constructed by the town, and the expense against the block, lot or part thereof. the City, granted numerous by additional A.R.S. § statutes 9-243. See thereof assessed Moreover, as noted by supplement A.R.S. § the powers 9-240(B)(3)(a) (granting cities and towns exclusive control over the streets, alleys, avenues and sidewalks of the town ); A.R.S. § 9- 240(B)(21)(a) (granting cities and towns authority to define, abate and remove nuisances ); A.R.S. § 9-240(B)(21)(b) (granting cities and towns authority to compel the owner or any occupant of any house or premises to clean the grounds, stables, alleys, streets and walks appurtenant and adjacent thereto ); A.R.S. § 9-276(A)(6) (granting cities and towns authority to regulate the use of sidewalks . . . and require the owner or occupant of premises to keep the sidewalks in front of or along the premises free from obstruction ). ¶30 The interpretation of a statute is a question of law that we review de novo. See Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 532, ¶ 5, 115 P.3d 124, 126 (App. 2005). 17 When construing a statute, we examine its individual provisions in the context of the entire statute to achieve a consistent interpretation. Reeves v. Barlow, 227 Ariz. 38, 41, ¶ 12, 251 P.3d (App. 417, 420 2011) (internal quotation omitted). Indeed, if statutes relate to the same subject and are thus in pari materia, they should be construed together . . . as though they constituted one law. Id. (internal quotation omitted and emphasis in original). ¶31 Bonito correctly points out that no Arizona statute expressly authorizes a city to compel owners to repair public sidewalks. which permits cities to require its private property Considering A.R.S. § 9-243, private property owners to construct public sidewalks, in conjunction with A.R.S. §§ 9-240 and -276, which grant cities exclusive control over sidewalks, the authority to define and abate nuisances, and compel private property owners to clean sidewalks and keep them free from obstruction, we construe Title 9 s grant of general and specific powers to cities to encompass the authority to require private property owners to repair sidewalks adjacent to their property. Cf. Thomas v. Baker Family Trust, 191 Ariz. 187, 188, 953 P.2d 931, 932 (App. 1997) (explaining that a property owner has no common-law duty to repair a sidewalk adjacent to his property, but noting that such a duty may be imposed by statute or city 18 ordinance ). Therefore, the City s ordinance does not exceed the scope of authority extended to the City by statute. ¶32 Next, Bonito argues that the City s ordinance exceeds the authority extended to the City by its charter. ¶33 [T]he powers derived by a municipality from its charter are three-fold: those granted in express words, those fairly powers implied essential purposes to of in the expressly the accomplishment the corporation indispensible. of not the granted, declared simply and those objects and convenient, but Williams, 89 Ariz. at 302, 361 P.2d at 654 (quoting Schultz v. City of Phoenix, 18 Ariz. 35, 39, 156 P. 75, 76 (1916)). ¶34 Bonito correctly notes that the City s charter does not expressly grant the City the authority to compel a private property owner to repair a public sidewalk. Article 1, Section 3, of the City s charter, however, grants the City all the powers granted to municipal corporations and to cities by the Constitution and general laws of this State, together with all the implied powers necessary to carry into execution all the powers granted. Moreover, Article 13, Section 8, grants the City Council the plenary power to enact and make all proper and necessary ordinances . . . to carry out and give effect to the express, as well as the implied, powers granted in this Charter . . . and thereby protect and safeguard the rights, interests, 19 safety, morality, health, and welfare of the City and its inhabitants. ¶35 As discussed above, we construe Title 9 as extending cities the power to compel private property owners to repair public sidewalks adjacent to their property. Therefore, Article 1, Section 3, which incorporates all of the powers given to the City by statute, authorizes the City s ordinance. In addition, Article 13, Section 8, also gives the City the police power to enact all ordinances necessary to promote the health and safety of its citizens. And, as discussed above, the ordinance at issue falls within this broad police power. Latchford, city s 843 A.2d maintain ordinance public 689, 694 (Del. transferring sidewalks the from 2004) Compare Schadt v. (holding obligation the city to to that the repair and private property owners constituted a wide and inconsistent departure from the city s charter that prohibited the city from delegating the duty to anyone other than by contract ). Therefore, the City s ordinance does not exceed the scope of the City s charter. V. ¶36 Request for Attorneys Fees Bonito has requested an award of its attorneys fees incurred on appeal pursuant to A.R.S. §§ 12-348(B)(1) (Supp. 2011) and 33-420 (2007). Section 12-348(B)(1) permits a court to award attorneys fees to a party that successfully challenges the assessment or collection of taxes. 20 Because the ordinance at issue is not a revenue-generating measure, this statutory basis for an award of attorneys fees is inapplicable. Likewise, A.R.S. § 33-420, which states that a party that places a lien against real property knowing or having reason to know that the [lien] is . . . groundless is liable for the other party s attorneys fees, is also inapplicable. Therefore, we deny Bonito s request for an award of its attorneys fees. CONCLUSION ¶37 The summary judgment is affirmed in part and vacated and remanded in part. /s/ PHILIP HALL, Judge CONCURRING: _/s/____________________________________ MICHAEL J. BROWN, Presiding Judge _/s/____________________________________ PATRICIA K. NORRIS, Judge 21

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