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Kimicata v. McGee - 5/10/2012

Arizona Court of Appeals Division One Holds That A Court May Award Attorneys’ Fees In Connection With Proceedings To Modify, Quash, Or Continue An Injunction Against Harassment.

Kimicata and McGee separately secured ex-parte injunctions against each other prohibiting harassment.  McGee asked for a hearing to quash Kimicata’s injunction.  The superior court agreed to quash it and McGee later requested attorneys’ fees under A.R.S. § 12-1809(N). Kimicata submitted written objections to the request but did not seek a hearing or specific factual findings.  Without holding a hearing or making specific findings, the court awarded fees to McGee.  Kimicata appealed.

A.R.S. § 12-1809(N) addresses a number of issues.  The statute states that the “remedies provided in this section for enforcement of the orders of the court are in addition to any other civil and criminal remedies available.”  It further states that “[a]fter a hearing with notice to the affected party, the court may enter an order requiring any party to pay the costs of the action, including reasonable attorney fees, if any.”  The statute also gives municipal and justice courts power to “hear and decide all matters arising pursuant to this section” and gives parties a right to appeal those lower courts’ decisions to the superior court.

The Court of Appeals unanimously affirmed the award of fees.  Kimicata argued that the statute permitted an award of fees only “in an ‘enforcement action, that is, after a hearing to determine whether a party violated an existing injunction against harassment.”  In Kimicata’s view, the first sentence dealing with “remedies . . . for enforcement” limited the reach of the sentence allowing attorneys’ fees. 

The Court rejected this argument, reasoning that subsection N concerned various “unrelated matters,” and that the sentence concerning fees “is a stand-alone provision” separate from the sentence addressing the “remedies provided . . . for enforcement.”  Thus, the court had discretion to award fees in a proceeding to “modify, quash, or continue an injunction.”  In addition, when a statute uses the word the “action,” it refers to “the entire judicial process of dispute resolution,” not the limited construction Kimicata preferred.  Sw. Airlines Co. v. Ariz. Dep’t of Revenue, 197 Ariz. 475, 477 ¶ 7 (App. 2000).

The Court also held that the superior court did not need to hold a separate hearing regarding the request for fees.  Kimicata objected in writing but did not request a hearing and thus waived any right to a hearing.  Likewise, Kimicata waived any argument regarding the lack of specific factual findings by failing to ask for findings.

Judge Norris authored the unanimous opinion; judges Johnsen and Kessler concurred.

Posted by: Joseph Roth

Posted On: 5/14/2012