MCDOWELL MOUNTAIN RANCH COMMUNITY ASS'N v. Simons

OROZCO, Judge,

dissenting.

¶ 25 I respectfully dissent from the majority opinion and their reliance on Elson and Heritage Heights to support their holding that “the trial court may conduct a hearing to consider any evidence offered by Simons, then enter an award to the Association of all of its attorneys’ fees that were properly incurred in this matter except as to those fees the court expressly finds are clearly excessive.” Swpra ¶ 22.

¶26 A brief review of the affidavits for attorneys’ fees submitted by the Association indicates that the requested fees were “clearly excessive.” For example, some of the fees incurred were for a violation of the CC & R that was not alleged in the complaint; and Simons, who was pro per, essentially raised no legal or factual defenses at any time during the case. The trial court knew what this case was about, what the issues were, reviewed the affidavits and was in the best position to determine whether $8000 in attorneys’ fees was reasonable or “clearly excessive.”

¶ 27 In Heritage Heights, the deed restriction contained the following provision:

In the event ... the Association ] employs an attorney, or attorneys to ... enforce compliance with or specific performance of the terms and conditions of this Declaration, the owner, owners and parties against whom the action is brought shall pay all attorneys’ fees and costs thereby incurred by any such enforcing party prevailing in any such action.

115 Ariz. at 333, 565 P.2d at 210. (Emphasis added.) The majority correctly points out this court’s holding in Heritage Heights that the home owner “became contractually bound” to the deed’s provision when it accepted the deed and the contract provision trumped the decision of the trial court to award each party its own attorneys’ fees. Id. at 333-34, 565 P.2d at 210-11. Furthermore, the trial court “was obliged by the contract to assess attorneys’ fees and costs in favor of the enforcing party.” Id. at 334, 565 P.2d at 211. However, this court remanded the matter to the trial court for “the determination and assessment of costs and attorneys’ fees, including attorneys’ fees on appeal,” but did not go so far as to award “all attorneys’ fees and costs.” Id. (emphasis added.) In my view, Heritage Heights only addressed the issue of whether the contract mandated that the prevailing party would be entitled to their attorneys’ fees. The court did not award all attorneys’ fees; rather it left for the trial court to determine and assess what was reasonable. That is what the trial court did here and why I do not believe the trial court abused its discretion.

¶ 28 I also read Elson differently and do not believe the CC & R in this case entitles the Association to all of their attorneys’ fees and costs without allowing the court to make a finding of reasonableness. In Elson, the supreme court held “a provision in regard to a definite amount of attorney’s fees ... is binding only to the extent that it is reasonable.” 99 Ariz. at 223, 407 P.2d at 934. I interpret this holding as saying that in any case, the trial court not only should, but must examine the fees application and determine and assess what is reasonable. I believe the trial court in this ease already determined that the fees were obviously or clearly excessive, otherwise it would not have cut them in half.

¶29 Implicit in any contractual provision for attorneys’ fees is a standard of reasonableness, even if the contract provides for “all” attorneys’ fees. This position is supported by the Arizona Rules of Professional Conduct, which prohibits “unreasonable fee[s].” Ariz. R. Sup.Ct. 42, ER 1.5. I also find additional support in cases from other jurisdictions. See, e.g., Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn.App. 468 , 531 A.2d 177, 183 (1987) (holding “[w]e construe the term ‘attorney’s fees’ as an award for ‘reasonable attorney’s fees’ in this ease because the term ‘reasonable’ is implied by law even when it is absent in the contractual provision”); Rauch v. McCall, 134 Md.App. 624 , 761 A.2d 76, 82-85 (Ct.Spec.App.2000) (finding “implicit in the Agreement” to award *273 the non-breaching party all of its attorneys’ fees, “that the fees awarded ... were to be ‘reasonable’”); Kurtz v. Kurtz, 158 S.W.3d 12, 19 (Tex.App.2004) (holding “reasonableness is an implied term in the ... attorney’s fees provision and constru[ing] the term ‘attorney’s fees and costs’ to unambiguously require that [appellee] pay only reasonable and necessary attorney’s fees and costs”).

¶30 I also respectfully disagree with the majority’s position that

the Association submitted two fee applications consistent with the requirements set forth in Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 187-89 , 673 P.2d 927, 931-33 (App.1983), thereby establishing its prima facie entitlement to fees in the amount requested. Assuming that the fees requested were facially reasonable, Simons then had the burden to show that they were clearly excessive. If such a showing is not made, then the Association is entitled to receive its full attorneys’ fees.

Supra ¶ 20.

¶31 We review an award “of attorneys’ fees for an abuse of discretion.” Charles I. Friedman, P.C. v. Microsoft, 213 Ariz. 344, 350 , 141 P.3d 824, 830 (App.2006) (citation omitted). Based on the majority’s position, a logical conclusion would be that if a request for fees was made pursuant to a China Doll application, the trial court would be required to award the fees when the party opposing the fees did not object. Thus, in this case, if Simon had not objected, the trial court would be required to award the Association its fees for work that had nothing to do with this litigation. Supra ¶ 29. However, this result would violate our professional rules of conduct as it would award improper fees. Furthermore, it would obligate a trial court to award all fees without the ability to carefully review and scrutinize a fee application to make a proper award.

¶ 32 By awarding the Association one half of the fees it requested, the trial court implicitly found the request was unreasonable or clearly excessive. Based on the record before us, I cannot say the trial court abused its discretion in making this award.

¶ 33 For the reasons stated above, I would affirm the award of attorneys’ fees and costs by the trial court.