Balestreiri v. Balestreiri – 7/16/2013

August 21, 2013

Arizona Court of Appeals Division One Holds That a Defendant Who Files a Motion to Dismiss in Lieu of an Answer Forfeits His Claim For Attorney’s Fees Unless He Requests Fees in the Motion to Dismiss.

Salvatore Balestrieri sued his son, David, for breach of contract.  David moved to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2).  After the trial court granted the motion, David filed a motion for attorney’s fees, which the court granted as well.

On appeal, Salvatore argued that the trial court erred by awarding attorney’s fees because David’s 12(b)(2) motion was not a “pleading” under Rule 54(g)(1).  Under Rule 7(a), a “pleading” only refers to a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, and an answer to a third-party complaint.  The court of appeals acknowledged that “[o]ur law is clear that ‘[a] motion is not a pleading within the meaning of [Rule 7(a)],’” but nonetheless held that a defendant may request fees in a Rule 12(b) motion filed in lieu of a responsive pleading, given Rule 54(g)(1)’s purpose of promoting settlement.

Notwithstanding its new interpretation of Rule 54(g)(1), the court of appeals vacated the trial court’s award of attorney’s fees, holding that a defendant forfeits his claim for fees when he fails to request them in his motion to dismiss.  The court rejected David’s suggestion that filing a request for attorney’s fees would have waived his objection to personal jurisdiction, holding that such a filing would not have been inconsistent with his jurisdictional objections.

Chief Judge Johnsen authored the opinion in which Judges Thumma and Brown concurred.