Balestrieri v. Balestrieri
232 Ariz. 25
| Ariz. Ct. App. | 2013Background
- Balestrieri sued his son for breach of contract.
- David moved to dismiss under Rule 12(b)(2) for lack of personal jurisdiction, without seeking fees.
- Superior court granted the Rule 12(b) dismissal and awarded fees to David.
- Salvatore appealed the fee award as timely from the grant of fees.
- Court analyzes Rule 54(g)(1) and related timing rules for fee requests in dismissals in lieu of an answer.
- Holding: defendant who moves to dismiss under Rule 12(b) in lieu of an answer forfeits fee recovery if not requested at that time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 54(g)(1) allows a fee request with a Rule 12(b) motion | Salvatore argues fees must be in a pleading, not a motion | David argues fees may be requested with a Rule 12(b) motion | Rule 54(g)(1) may permit a fee request with a Rule 12(b) motion in lieu of an answer |
| Whether a defendant who delays fee request after dismissal forfeits the claim | Salvatore contends no forfeiture if fees are timely after dismissal | David contends he timely requested fees only after dismissal terms were resolved | Yes, forfeiture occurs if fees are requested after the court grants the motion to dismiss |
Key Cases Cited
- King v. Titsworth, 221 Ariz. 597 (App.2009) (fee request must be raised in pleadings for Rule 54(g)(1) applicability (contextual discussion))
- Britt v. Steffen, 220 Ariz. 265 (App.2008) (fees may be awarded where dismissal terminates action; timing governs Rule 54(g)(2))
- Aries v. Palmer Johnson, Inc., 153 Ariz. 250 (App.1987) (filing fees-related matters does not constitute general appearance or waiver of jurisdiction)
- Kadota v. Hosogai, 125 Ariz. 131 (App.1980) (filing fee-related requests evaluated in relation to jurisdictional challenges)
- Taylor v. Fireman’s Fund Ins. Co. of Can., 161 Ariz. 432 (App.1989) (defendant did not waive jurisdiction by asserting related motions; relevance to fee requests)