Trantor v. Fredrikson

861 P.2d 674, 176 Ariz. 389, 133 Ariz. Adv. Rep. 35, 1993 Ariz. App. LEXIS 44
Court of Appeals of Arizona·Decided February 18, 1993·No. No. 1 CA-CV 91-0179·Published·Cited by 1 cases

Opinions

OPINION

GERBER, Judge.

This is an appeal from an award of attorney’s fees entered against appellant Margie Trantor (Trantor) and her attorney, Leigh-ton Clark (Clark), in favor of appellees Glen and Jane Doe Fredrikson (the Fredriksons). Fees were awarded after the trial court granted summary judgment in favor of the Fredriksons. We conclude that the trial court’s award of attorney’s fees should be reversed.

FACTS AND PROCEDURAL HISTORY

Trantor, an employee of AMFAC Electrical Supply (AMFAC), sued the Fredriksons for negligence after she sustained injuries by falling through an office ceiling in a building leased by AMFAC from the Fre-driksons. Trantor alleged in her complaint that the storage structure above the ceiling from which she fell was dangerous, that the Fredriksons either knew or should have known of the existence of the defective structure, that it was being used by Tran-tor’s employer, and that the Fredriksons therefore owed Trantor a duty to take reasonable precautions to prevent an injury from occurring.

Shortly after answering the complaint, the Fredriksons filed a motion for summary judgment arguing that, because the structure from which Trantor fell had been constructed by Trantor’s employer after the commencement of the lease and the Fredriksons had no knowledge of the structure, they owed no duty of care towards Trantor under Restatement of Torts (2d) § 355 (1965). Trantor elected not to oppose the motion for summary judgment. Judgment was thereafter granted in favor of the Fredriksons.

The Fredriksons then moved for attorney’s fees under Ariz.Rev.Stat.Ann. (“A.R.S.”) §§ 12-341.01(A), 12-341.01(C), and 12-349. The trial judge subsequently awarded the Fredriksons attorney’s fees in the amount of $5,500.00 against Trantor and Clark jointly, without making any findings of fact or setting forth any statutory basis for the award. After the trial judge granted the fees but before final judgment was entered, Trantor filed a motion for reconsideration in which she argued that the award of fees was inappropriate because her claim was not groundless, was made in good faith, and did not constitute harassment. This motion was denied. Trantor and Clark then brought this appeal from the judgment.

DISCUSSION

Trantor and Clark argue on appeal that the trial court’s award of attorney’s fees in favor of the Fredriksons should be reversed because the trial court made no findings of fact or conclusions of law as required by A.R.S. §§ 12-341.01(C) and 12-350. Although the Fredriksons moved for attorney’s fees under A.R.S. §§ 12-341.-01(A), 12-341.01(C), and 12-349, the trial judge did not identify which statute justified granting the fees. We must assume [391] that the basis for the award was either A.R.S. §§ 12-341.01(0) or 12-349 because there was no contract involved. The Fre-driksons concede that A.R.S. § 12-341.-01(A) does not apply; they did not discuss that statute as a basis for the award in their briefs.

A.R.S. § 12-341.01(0) provides that the court shall award attorney’s fees in an action “upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and not made in good faith.” A.R.S. § 12-349 similarly states that the court shall assess attorney’s fees against an attorney or party if the attorney or party “[b]rings or defends a claim without substantial justification” or “[bjrings or defends a claim solely or primarily for delay or harassment.” A.R.S. § 12-349 further provides that “without substantial justification” means that “the claim or defense constitutes harassment, is groundless and is not made in good faith.” A.R.S. § 12-350 provides that the court shall set forth the specific reasons for the award in granting attorney’s fees pursuant to A.R.S. § 12-349.

The Arizona Supreme Court recently held in State v. Richey, 160 Ariz. 564, 774 P.2d 1354 (1989), that a trial court must make appropriate findings of fact and conclusions of law in awarding attorney’s fees under either A.R.S, §§ 12-341.01(0) or 12-349:

Because [A.R.S. § 12-341.01(0)] specifically requires a higher burden — “clear and convincing evidence” — before a trial court can determine that a claim or defense constitutes harassment, is groundless and not made in good faith, the trial court must make appropriate findings of fact and conclusions of law to enable a party required to pay attorneys’ fees to seek appellate review____
We also note, by way of comparison, that A.R.S. § 12-350 requires the trial court to “set forth the specific reasons” for a fee award made pursuant to § 12-349, which permits fee awards when claims are brought “without substantial justification” or “primarily for delay or harassment.” ... Because the contexts in which § 12-341.01(0) applies may often overlap those in which § 12-349 applies, we hold that requiring a trial court to set forth specific findings in the former as well as in the latter contexts is appropriate.

(Emphasis added.) 160 Ariz. at 565, 774 P.2d at 1355.

Because the trial court failed to make these required findings, the supreme court vacated the trial court’s award of attorney’s fees to the plaintiffs.

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Trantor v. Fredrikson, 861 P.2d 674, 176 Ariz. 389, 133 Ariz. Adv. Rep. 35, 1993 Ariz. App. LEXIS 44 (Ark. Ct. App. 1993).

861 P.2d 674 (Trantor v. Fredrikson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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