Hunt Investment Co. v. Eliot

742 P.2d 858, 154 Ariz. 357, 1987 Ariz. App. LEXIS 504
CourtCourt of Appeals of Arizona
DecidedSeptember 1, 1987
Docket1 CA-CIV 9052
StatusPublished
Cited by25 cases

This text of 742 P.2d 858 (Hunt Investment Co. v. Eliot) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunt Investment Co. v. Eliot, 742 P.2d 858, 154 Ariz. 357, 1987 Ariz. App. LEXIS 504 (Ark. Ct. App. 1987).

Opinion

OPINION

GREER, Judge.

This appeal and cross-appeal raise questions concerning the award of costs and reasonable attorney’s fees to the plaintiff in a tax lien foreclosure action pursuant to A.R.S. § 42-454. The issues raised on appeal are:

(1) Whether reimbursement of costs incurred by the plaintiff is limited to *359 “taxable costs,” as set forth in A.R.S. § 12-322, and
(2) Whether the trial court abused its discretion by reducing the amount of attorney’s fees requested by plaintiff.

The sole issue raised in the cross-appeal is whether the plaintiff was acting as his own counsel, therefore barring his right to any attorney’s fees. The trial court awarded the plaintiff attorney’s fees and costs. We affirm the trial court.

FACTS

On or about February 19, 1980, plaintiff-appellant Hunt Investment Company (Hunt) purchased a residence at a tax sale from the Maricopa County Treasurer, for delinquent 1978 taxes of $489.62. Five years later, Hunt filed suit to foreclose the property owner’s right to redeem the property pursuant to A.R.S. § 42-454. After being personally served, property owners Bradfield F. and Janet Eliot redeemed the property. The Eliots subsequently filed an answer to the complaint. Hunt thereafter moved for an award of its reasonable attorney’s fees and costs, as permitted by A.R.S. § 42-454. It requested $2,040.00 in attorney’s fees and $190.58 for costs.

After extensive discovery, the Eliots filed a response to Hunt’s motion opposing the requested amount of attorney’s fees and costs. The grounds for their opposition to the attorney’s fees were:

(1) the claimed fees included time spent reviewing documents on tax parcels and property interests other than the property at issue,
(2) the request included time spent conducting a records review with the county assessor’s and county recorder’s offices for the names and addresses of defendants which was contrary to the customary practice among attorneys, who generally obtain and rely upon title research reports and litigation guarantees prepared by title companies, which are less expensive,
(3) fees were claimed for communications to and from Transamerica Title resulting from Hunt’s counsel’s failure to communicate necessary information or his provision of erroneous information,
(4) the fees included an unnecessary redemption check which was made after suit was filed and appellant’s counsel had been informed that a redemption would be made, and
(5) the request included fees for Hunt’s response and oral argument for attorney’s fees and costs in support of his application.

The Eliots also opposed the award of any attorney’s fees because they claimed that Hunt in essence represented himself. Hunt Investment Company is an Arizona general partnership consisting of two general partners. One partner is Jack Simón, Hunt’s attorney, and the other partner is the Ina P. Hunt Trust. Jack Simon is the trustee for the trust, with the ultimate right to distribute all trust assets to himself, upon the death of certain still-living beneficiaries.

The Eliots opposed the amount of costs claimed by Hunt because not all of them were taxable costs provided by A.R.S. §§ 12-332 and -333. Hunt had sought reimbursement for postage and non-certified copying charges, neither of which are allowed under those sections. The Eliots requested that the costs be reduced by $28.64.

The trial court ultimately awarded Hunt attorney’s fees of $400 and $251.94 in costs. The court, in effect, awarded only the taxable costs as authorized by A.R.S. § 12-332, thereby reducing the amount of costs requested by $60.58. The court expressly held that Hunt’s counsel was not representing himself. Hence, an attorney-client relationship existed, and attorney’s fees could be awarded under A.R.S. § 42-454.

Hunt moved for a new trial on the basis that it was improper for the trial court to reduce the amount of attorney’s fees requested and that all costs, rather than just taxable costs, should be awarded. The motion for new trial was denied on March 5, 1986. Hunt filed a timely appeal from the *360 denial of its motion for new trial and the Eliots filed a cross-appeal on the issue of whether attorney’s fees could be awarded at all.

COSTS

Arizona Revised Statutes § 42-454 provides in pertinent part:

At any time prior to entry of judgment foreclosing the right of redemption any person entitled to redeem under this article may redeem as in other cases, notwithstanding that an action has been commenced. However, if redemption is made by any person who has been served personally or by publication in the action, judgment shall be entered in favor of the plaintiff against such person for the costs incurred by the plaintiff, together with a reasonable attorney’s fee to be determined by the court____(emphasis added). If complainants in these cases be not allowed a reasonable counsel fee, the buying at tax sales will be discouraged. Persons will not bid at tax sales if they believe that such transactions will, or may, result in their being considerably out of pocket. If purchase at tax sales is discouraged, municipalities will be thus deprived of the opportunity to collect their taxes, and such collection is obviously a public necessity.

Hunt argues that the trial court’s failure to award all its requested costs was contrary to the law and public policy. It points out that § 42-454 was intended to afford property owners a last opportunity to recover their property. The intent of the státute was also to encourage people to buy properties at tax sales by ensuring that if they do make a purchase which results in a redemption, they will be made whole by recovery of all their costs and attorney’s fees. In addition, because of the governmental necessity of obtaining sufficient tax funds to perform necessary functions, the public policy of Arizona should be to encourage, rather than discourage, tax sale purchases of property. Therefore, the statute must be construed in a manner so as to encourage people to make such purchases.

Hunt cites several New Jersey cases which have addressed the public policy concerning tax sales and tax sale foreclosures. In Wiltsie v. Belenski, 114 N.J. Eq. 1, 168 A.

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Bluebook (online)
742 P.2d 858, 154 Ariz. 357, 1987 Ariz. App. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-investment-co-v-eliot-arizctapp-1987.