Arizona Court of Appeals Division One Holds That A Party Defending Against a Quiet Title Claim Has Not Brought an “Action” and Therefore Cannot Recover Attorneys’ Fees Pursuant to A.R.S. § 12-1103(B).

Robert and Linda Long asserted a quiet title claim against Roger and Cindy Clark.  The Clarks tendered a request for execution of a quit claim deed and five dollars to the Longs.   After the trial court granted the Clarks’ motion for summary judgment, the Clarks requested attorneys’ fees pursuant to A.R.S. § 12-1103(B), which states:

If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state, holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney’s fee to be fixed by the court.

The trial court granted the request and awarded attorneys’ fees to the Clarks.  The Longs appealed, arguing that the Clarks never filed an “action” as required by the statute. 

The Court of Appeals reversed the trial court’s award of attorneys’ fees.  The Court first rejected the Clarks’ argument that the Longs had waived their argument by failing to raise it at the time the Clarks tendered five dollars and the request for execution of the quit claim deed.  The Court reasoned that the Longs could not have objected at the time of tender to the Clarks’ entitlement to fees based on the Clarks’ subsequent failure to file an “action.”  The Court found that Longs had raised their objection at the proper time – when the Clarks sought fees.

The Court of Appeals further held that the answer to the complaint filed by the Clarks did not constitute an “action” pursuant to A.R.S. § 12-1103(B).  The Court was not persuaded by the Clarks’ assertion that defending against the Longs’ claim was “in effect a counterclaim,” relying upon Arizona Rule of Civil Procedure 3 to hold that an “action” only commences when a plaintiff files a complaint with the court.  Because the Clarks failed to meet all of the requirements in A.R.S. § 12-1103(B), the Court of Appeals determined that the trial court erred in awarding attorneys’ fees to the Clarks.  

Chief Judge Timmer authored the opinion; Judges Hall and Weisberg concurred.