Camelback v. ANMK

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CAMELBACK AUTOGLASS, L.L.C., an Arizona limited liability company, ) ) ) ) Plaintiff/Counterdefendant/ ) Appellant, ) ) and ) ) MICHAEL B. O'CONNELL and JANE ) DOE O'CONNELL, husband and wife, ) ) Counterdefendant/Appellant, ) ) v. ) ) ANMK INVESTMENTS, INC., an ) Arizona limited liability ) company, ) ) Defendant/Appellee. ) __________________________________) DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 09-0771 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2006-018073 The Honorable John Rea, Judge AFFIRMED Campana, Vieh & Loeb, PLC by Donald O. Loeb Attorneys for Plaintiff/Counterdefendants/Appellants Scottsdale Allen & Lewis, PLC by Robert K. Lewis Amanda J. Taylor Attorneys for Defendant/Appellee Phoenix P O R T L E Y, Judge ¶1 Camelback Autoglass, L.L.C. ( CAG ) appeals the denial of its request for attorneys fees. FACTS AND PROCEDURAL BACKGROUND ¶2 Theodore Lang, Marketing and Sales. III ( Lang ) was CAG s Director of During a six-month period in 2006, Lang cashed forty-six checks payable to CAG at ANMK Investments, Inc. ( ANMK ). 1 CAG fired Lang, and sued ANMK, alleging that it was damaged because ANMK was negligent and acted in a commercially unreasonable manner. ¶3 A jury subsequently found that CAG had been damaged but that ANMK was only sixty percent liable, and CAG bore the remaining liability. unsuccessfully requested Before judgment attorneys fees was entered, pursuant to CAG Arizona Revised Statutes ( A.R.S. ) section 12-341.01(A) (2003). CAG timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). 1 ANMK is a convenience store that, as a part of its business, cashes checks for customers. 2 DISCUSSION ¶4 The sole issue on appeal is whether the trial court erred when it refused to award CAG attorneys fees pursuant to § 12-341.01(A). Although we review the decision to deny fees for an abuse of discretion, Maleki v. Desert Palms Prof l Props., L.L.C., 222 Ariz. 327, 334, ¶ 32, 214 P.3d 415, 422 (App. 2009), we review the application of the fee statute de novo. Phx. Newspapers, Inc. v. Ariz. Dep t of Corr., 188 Ariz. 237, 244, 934 P.2d 801, 808 (App. 1997). ¶5 Section 12-341.01(A) allows a successful party in any contested action arising out of a contract, whether express or implied, to claimant recover cannot its attorneys recover fees. attorneys fees. A successful See Hoffman tort v. Greenberg, 159 Ariz. 377, 380, 767 P.2d 725, 728 (App. 1988). ¶6 Here, the trial court denied CAG s fee request after reviewing CAG the argues pleadings that the and court cogently detailing improperly relied its on analysis. Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127 (1982). The court, however, did not address Sparks even though CAG had discussed Sparks in its reply. ¶7 CAG also asserts that there is a contract to support fees pursuant to § 12-341.01(A); namely that Lang, who had an employment contract with CAG, created forty-six unilateral contracts when he cashed the checks. 3 separate CAG did not, however, allege a breach of contract. Instead, and as the trial court found, CAG sued ANMK for the tort of negligence and a statutory violation of the Arizona Uniform Commercial Code. The mere fact that there may have been a contract somewhere in the fraudulent transaction chain of events will not support a fee award. See Ramsey Air Meds., L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 14, ¶ 21, 6 P.3d 315, 319 (App. 2000) (citing Marcus v. Fox, 150 Ariz. 333, 335, 723 P.2d 682, 684 (1986)). ¶8 Although CAG argues that the trial court erred by relying on Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987), CAG ignores the fact that Barmat is the lodestar for the analysis on the issue. There, the Arizona Supreme Court analyzed whether a successful client could recover statutory attorneys fees in a legal malpractice action. 520-21, 747 P.2d at 1219-20. Id. at After finding that the law implies a contract between an attorney and client, the court held that contracts that are implied in law are not encompassed under § 12-341.01 and denied the fee award. Id. at 521, 524, 747 P.2d at 1220, 1223. ¶9 Sparks In reaching the decision, the supreme court examined and found that one cannot without an insurance contract. bring a bad faith lawsuit Id. at 522, 747 P.2d at 1221. Here, unlike Sparks, any employment contract between CAG and Lang was not the basis of the lawsuit but a mere incidental 4 fact. If, for example, Lang had not been an employee but a thief who stole checks from the office, CAG still had a cause of action against ANMK that did not require, or arise out of, a contract. See Forged Checks: An Analysis of Civil Liability Under the Uniform Commercial Code, 28 Ariz. St. L.J. 927, 945 (1996) (citing Uniform Commercial Code § 3-406 (1990) (amended 2002); A.R.S § 47-3406(B) (1996)). Consequently, the trial court did not err in following established case law. ¶10 Finally, CAG argues that the trial court misconstrued San Tan Irr. Dist. v. Wells Fargo Bank, 197 Ariz. 193, 3 P.3d 1113 (App. 2000). We disagree. ¶11 In San Tan, we reviewed whether the grant of summary judgment was appropriate, but found that there issues of material fact and remanded the case. 18, 3 P.3d at 1118. were genuine Id. at 198, ¶ In examining the attorneys fees issue, we found that it had not been properly pled and noted, as an aside, that the issue could be raised once the case was remanded. ¶12 verdict Here, that the has case been was tried, reduced to a and the judgment. jury Id. issued Although a it requested fees pursuant to § 12-341.01, CAG did not allege that there was a contract or that it had been breached before trial. CAG has not challenged the verdict. Because we agree with the trial court s determination, there is no reason to remand this case. 5 ¶13 Additionally, CAG requests attorneys fees and costs on appeal. Because CAG was not the prevailing party, it is not entitled to fees. CONCLUSION ¶14 Based on the foregoing, we affirm the denial attorneys fees. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 6 of

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