                    SUPREME COURT OF ARIZONA
                             En Banc

WILLIAM WAYNE ROUBOS, DERRICK     )   Arizona Supreme Court
STEPHEN DeNOMME and KTTL          )   No. CV-06-0181-PR
ENTERPRISES-PACIFIC BEACH CLUB,   )
INC., an Arizona corporation, dba )   Court of Appeals
DV8 Nightclub,                    )   Division Two
                                  )   No. 2 CA-SA 05-0080
                     Petitioners, )
                                  )   Pima County
                 v.               )   Superior Court
                                  )   No. C20052396
HON. LESLIE MILLER, JUDGE OF THE )
SUPERIOR COURT OF THE STATE OF    )
ARIZONA, in and for the County    )
of Pima,                          )   O P I N I O N
                                  )
                Respondent Judge, )
                                  )
CITY OF TUCSON, a municipal       )
corporation,                      )
                                  )
          Real Party in Interest. )
__________________________________)

                  Order from Tucson City Court
        The Honorable Antonio F. Riojas, Jr., Magistrate

                      REVERSED AND REMANDED
________________________________________________________________

          Appeal from the Superior Court in Pima County
                The Honorable Leslie Miller, Judge

                            REVERSED
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
                213 Ariz. 36, 138 P.3d 735 (2006)

                             AFFIRMED
________________________________________________________________
MUNGER CHADWICK, P.L.C.                                   Tucson
     By   John F. Munger
          Laura P. Chiasson
Attorneys for William Wayne Roubos, Derrick Stephen DeNomme,
and KTTL Enterprises-Pacific Beach Club, Inc.,
dba DV8 Nightclub

MICHAEL G. RANKIN, TUCSON CITY ATTORNEY                                 Tucson
     By   William F. Mills, Assistant City Attorney
          Dennis P. McLaughlin, Assistant City Attorney
Attorneys for City of Tucson

________________________________________________________________

B E R C H, Vice Chief Justice

¶1          This case requires us to decide whether a party that

prevails in a civil infraction proceeding brought by a city may

recover     attorneys’       fees    under     Arizona   Revised     Statutes

(“A.R.S.”) section 12-348 (2003).            We hold that it may.

                  I.      FACTS AND PROCEDURAL BACKGROUND

¶2          In 2004, the City of Tucson twice cited Defendants

William Roubos, Derrick DeNomme, and KTTL Enterprises-Pacific

Beach Club, Inc., for violating Tucson City Code (“TCC”) § 16-32

by allowing unruly gatherings at the DV8 Nightclub.                 Defendants

were found not responsible after a civil infraction hearing in

Tucson    City   Court.      The    magistrate   nonetheless   denied    their

request for attorneys’ fees, holding that they were not entitled

to such fees because the proceeding was not a “civil action.”

¶3          Defendants appealed the denial of fees to the superior

court, which affirmed the city court’s ruling.                 The court of

appeals reversed, holding that Defendants were entitled to an


                                      - 2 -
award of fees because they prevailed in a civil action brought

against them by the City.            Roubos v. Miller, 213 Ariz. 36, 40,

¶ 14, 138 P.3d 735, 739 (App. 2006).                We granted the City’s

petition for review because it raises an issue of statewide

importance that affects cities and towns.               We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 12-120.24 (2003).

                               II.    DISCUSSION

¶4           The statute under which Defendants sought attorneys’

fees requires an award of fees to a party that prevails in a

civil action brought against it by a city:

          A.   [A] court shall award fees and other
     expenses to any party . . . which prevails by an
     adjudication on the merits in any of the following:

          1.   A civil action brought by the state or a
     city, town or county against the party.

A.R.S. § 12-348(A)(1).         Subsection (H) of the statute, however,

exempts from the fees provision “proceedings brought by a city,

town or county on collection of taxes or pursuant to traffic

ordinances or to criminal proceedings brought by a city, town or

county on ordinances which contain a criminal penalty or fine.”

Id. § 12-348(H)(8).

¶5           Tucson City Code § 16-32(e) provides that “[a]n unruly

gathering . . . constitutes a civil infraction.”               Thus, whether

Defendants     may   recover     fees    turns     on   whether   the   civil



                                      - 3 -
infraction proceeding in this case was a “civil action” for

purposes    of       A.R.S.      §    12-348(A)(1)       and,     if    so,       whether      any

provision of A.R.S § 12-348(H)(8) exempts the City from having

to   pay    fees.               We     review      these        matters       of      statutory

interpretation de novo.                N. Valley Emergency Specialists, L.L.C.

v. Santana, 208 Ariz. 301, 303, ¶ 8, 93 P.3d 501, 503 (2004).

A.   Meaning of “Civil Action”

¶6          To       qualify         for   an    award     of    fees,       a     party      must

“prevail”    in       a    “civil      action”     brought       by     a    city.         Tucson

concedes that Defendants prevailed in an action commenced by the

City.   It maintains, however, that a civil infraction proceeding

is not a civil action for purposes of A.R.S. § 12-348.

¶7          When interpreting any statute, we look to its language

as   “the   best          and   most       reliable      index     of       [the]     statute’s

meaning.”        N. Valley, 208 Ariz. at 303, ¶ 9, 93 P.3d at 503

(quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133

(1993)).        We    give       words     their     ordinary      meaning          unless     the

legislature clearly intended a different meaning.                                  Mail Boxes,

etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777,

779 (1995).

¶8          A    “civil         action”     is   commonly        understood         to   be    any

action that is not a criminal prosecution.                                  See     BLACK’S    LAW

DICTIONARY 32 (8th ed. 2004); see also State v. Wise, 137 Ariz.

468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (approving reference


                                             - 4 -
to   dictionary        to      determine      ordinary       meaning).           Ordinance

violations are classified by the Tucson City Code as “civil”

infractions rather than criminal misdemeanors.                         See TCC § 16-

32(e).         Procedure       in   civil    infraction       cases    is,       moreover,

governed by the Tucson Local Rules of Practice and Procedure in

City Court Civil Proceedings, see TCC § 8-8, and appeals from

civil infraction proceedings are governed by the Superior Court

Rules of Procedure – Civil, see TCC § 16-51.                        The City’s choice

to classify the violations as civil infractions and to apply

rules    for     civil      proceedings      suggests     that      civil    infraction

proceedings      are     not    criminal     actions,     but      rather    are       “civil

actions.”

¶9             The   City      nonetheless     urges    us    to    ignore       the    usual

meaning     of   the     term       civil   action     and    instead       to    narrowly

construe it to exclude civil infraction proceedings.                              The City

contends    that       civil     actions     include     only      those     proceedings

governed by the Arizona Rules of Civil Procedure or proceedings

held in justice court.               We disagree.        While application of the

Rules of Civil Procedure provides compelling evidence that a

proceeding is a civil action, it does not follow that only those

proceedings governed by the Rules of Civil Procedure qualify as

civil    actions.           Indeed,    several      examples       suggest       that     the

opposite is true.           For example, in family court proceedings the

Rules of Civil Procedure do not apply, see Ariz. R. Fam. L.P.


                                            - 5 -
2(A), yet the mere inapplicability of those rules does not turn

family     court     proceedings   into      criminal       or   quasi-criminal

actions.     Traffic and juvenile cases similarly are not conducted

pursuant to the Arizona Rules of Civil Procedure, yet they are

classified as civil proceedings as well.                   See Ariz. R.P. Civ.

Traf. Viol. Cases 1; Ariz. R.P. Juv. Ct. 1(A).

¶10          Defendants’ position that civil infraction proceedings

constitute civil actions also finds support in statute.                          The

legislature    has    allowed    civil    infraction        proceedings     to    be

conducted as civil actions:

            The city or town may maintain a civil action in
       the municipal court for the recovery of a penalty or
       forfeiture provided for the violation of an ordinance.
       The action shall be brought and conducted as civil
       actions in justice of the peace courts.

A.R.S.   §   22-406    (2002).     The     city    court     hearing   in    which

Defendants prevailed was an action authorized by A.R.S. § 22-

406.     The use of the phrase “civil action” in § 22-406 to

describe the conduct of civil infraction proceedings indicates

that such proceedings are civil actions for purposes of § 12-

348(A)(1).     See Wash. Nat’l Ins. Co. v. Employment Sec. Comm’n,

61 Ariz. 112, 119, 144 P.2d 688, 691-92 (1944) (noting “that

legislative construction in one act of the meaning of certain

words is entitled to consideration in construing the same words

appearing in another act”).

¶11          The   City   counters       that     A.R.S.     §   22-406     merely


                                     - 6 -
authorizes civil actions to collect fines or penalties imposed

in prior ordinance violation proceedings and does not categorize

the    underlying       penalty-finding         proceeding           as     a   civil       action.

Only the collection proceeding, the City argues, qualifies as a

“civil action.”              The underlying civil infraction proceedings,

the City maintains, remain “civil offense proceedings” governed

by A.R.S. § 9-500.21 (Supp. 2006).

¶12           We    are      not   persuaded.          A        civil       action     “for       the

recovery      of   a    penalty”     is   a     term       of    art      referring         to    the

enforcement        of   an    ordinance    in    the       first       instance.            See    9A

Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 27.05, at

292 (3d ed. rev. 1996) (“In this country there are two modes

ordinarily recognized for enforcing penal ordinances.                                  One is an

action to recover the penalty, and the other is the ancient and

familiar summary proceeding on information or complaint.”); see

also     62    C.J.S.         Municipal       Corporations              §       204(c)        (1999)

(“[V]iolations          of   municipal    ordinances            or     regulations          may   be

enforced by a civil action to recover a penalty . . . .”).

Thus, we conclude that A.R.S. § 22-406 authorizes actions to

enforce    ordinances,         not   merely     to     recover          penalties,          through

civil     infraction         proceedings        that       are       conducted         as     civil

actions.

¶13           We also do not agree with the City’s contention that

civil     infraction         proceedings      are      a    separate            type     of      case


                                          - 7 -
authorized by A.R.S. § 9-500.21.                    That section requires a “city

or town that classifies ordinance violations as civil offenses

[to]     establish          procedures        to     hear      and      determine                these

violations.”       Id.        The statute does not create a new type of

“civil offense” proceeding that is something other than a civil

action.       It merely requires cities to establish procedures if

they choose to enforce their ordinances civilly under § 22-406.

¶14           The City’s argument that civil infraction proceedings

are not civil actions fails for yet another reason.                                    The Tucson

City   Charter     provides        that       “[t]he    violation           .    .     .    of     any

ordinance of the city . . . may be prosecuted by the authorities

of the city . . . or may be redressed by civil action, at the

option of the mayor and council.”                      Tucson City Charter ch. 25,

§ 5.       The   Charter        thus      allows       two     options          for     enforcing

ordinances,      one    civil      and    one      criminal.          See       id.;       see    also

A.R.S.    §   9-240(B)(28)(c)            (Supp.     2006).       By     choosing            to     use

summary civil proceedings rather than criminal prosecutions, the

City has avoided the higher standard of proof that applies in

criminal      cases     as     well      as     other        procedural          restrictions.

Compare TCC § 8-8 (“The rules of criminal procedure of the state

shall apply to all criminal proceedings in city court.”), with

Tucson Local R. Practice & P. in City Ct. Civ. Proceedings 11

(preponderance         of    the   evidence        standard      of    proof          applies       in

civil cases).          It has, on the other hand, subjected itself to


                                           - 8 -
payment of fees in those cases in which it cannot meet the lower

civil standard of proof.              The City cannot take the benefit of

its   choice    to     pursue    ordinance      violations    as    civil    actions

without also bearing the burden of that choice.

¶15           Finally, the City argues that allowing an award of

fees is incompatible with the summary nature of civil infraction

proceedings.         Because the summary nature of civil infraction

proceedings does not affect the disparity in resources between

cities and parties, however, we are not persuaded.

¶16           When interpreting statutes, we also strive to “give

effect to legislative intent.”                Mail Boxes, etc., 181 Ariz. at

121, 888 P.2d at 779.           While legislative intent may sometimes be

difficult     to     ascertain,    in   this    case,    when   the     legislature

enacted   §    12-348    in     1981,   it    stated    its   intent    to   protect

citizens from the high cost of defending against unreasonable

governmental actions.           1981 Ariz. Sess. Laws, ch. 208, § 1.            The

legislature chose to mitigate that burden by allowing awards of

reasonable      fees    to    those     who    prevail    against      governmental

entities.      Id.    The legislature explained:

      A.   The legislature finds that certain individuals
      . . . may be deterred from seeking review of or
      defending against unreasonable governmental action
      because of the expense involved in securing the
      vindication of their rights.   The economic deterrents
      to contesting governmental action are magnified in
      these cases by the disparity between the resources and
      expertise of these individuals and their government.



                                        - 9 -
        B.   The purpose of this section is to reduce the
        deterrents and the disparity by entitling prevailing
        parties to recover an award of reasonable attorney
        fees, expert witness fees and other costs against the
        state.

Id.     This remedial purpose supports our broad interpretation of

the phrase “civil action.”

¶17          The ordinary meaning of civil action, as well as the

use of that phrase in § 22-406 to describe civil infraction

proceedings, demonstrates that civil infraction proceedings are

civil    actions   for   purposes    of    A.R.S.   §   12-348(A)(1).      The

expressed legislative purpose of the statute also confirms that

parties that prevail in civil infraction proceedings may recover

fees and costs.

B.      Exceptions to Attorneys’ Fees Provision

¶18          Having determined that the proceeding in this case was

a civil action for purposes of A.R.S. § 12-348(A)(1), we turn to

whether subsection (H) of that statute excepts civil infraction

proceedings    from   the   fees    provision.      Because   the   City   has

conceded that the civil infraction proceedings at issue are not

criminal proceedings, the only exception that could apply is the

one for proceedings arising from “traffic ordinance” violations.

The City argues that the legislature intended to exempt civil

infraction     proceedings    when        it   listed    traffic    ordinance

proceedings, because the two proceedings are similar in nature.

We do not agree.


                                    - 10 -
¶19               The    fees     statute        “mandate[s]    awards     to    all     parties

prevailing against the state [or city], absent an affirmative

statutory prohibition.”                   Estate of Walton v. State, 164 Ariz.

498, 501, 794 P.2d 131, 134 (1990) (emphasis added); see also

Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 317, 714

P.2d 807, 810 (1986).                    Thus, the legislature must specifically

list     a    class          of   proceedings         in   subsection      (H)    for     those

proceedings to be exempted from the fees provision.

¶20               The    legislature         has     not   specifically         listed    civil

infraction         proceedings         in    §     12-348(H),    demonstrating         that   it

intended the fees provision to apply to those proceedings.                                    See

Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 10, 51 P.3d 338, 340

(2002) (explaining that when a statute expressly lists certain

items,       we    presume        that      the    legislature    intended        to    exclude

similar items that are not listed).                         The legislature knows how

to exempt proceedings when it wishes to do so, see A.R.S. § 12-

348(H)(1)-(8) (listing several types of proceedings), and it has

not    chosen           to    exempt      civil      infraction        proceedings.           The

legislature may, of course, amend § 12-348(H) if it determines

that civil infraction proceedings should be exempted.                                    Absent

such   a     legislative           exemption,        however,     we    cannot    judicially

create one.

C.     Attorneys’ Fees on Appeal

¶21               In their supplemental brief, Defendants requested fees


                                                  - 11 -
incurred in responding to the City’s petition to this Court.

When a party requests fees, it not only must state the statutory

or    contractual    basis     for   the   award,      but    also    must    make    the

request in a timely manner.             Rule 21(c)(1) of the Arizona Rules

of    Civil   Appellate       Procedure    requires       that       “a    request    for

allowance of attorneys’ fees shall be made in the petition or

cross-petition for review or response thereto.”                           In this case,

Defendants     failed    to    request     fees   in     their      response    to    the

City’s    petition      for   review.       We    thus       deny    the    request    as

untimely.      See Powell v. Washburn, 211 Ariz. 553, 560, ¶ 29, 125

P.3d 373, 380 (2006).

                                III.     CONCLUSION

¶22           We hold that civil infraction proceedings are civil

actions for purposes of the attorneys’ fees provision in A.R.S.

§ 12-348(A)(1), and nothing in A.R.S. § 12-348(H)(8) provides an

exception for such proceedings from the application of the fees

provision.      We therefore affirm the judgment of the court of

appeals that Defendants are entitled to an award of attorneys’

fees, reverse the contrary judgments of the superior court and

city court, and remand the case for proceedings consistent with

this opinion.


                                 _______________________________________
                                 Rebecca White Berch, Vice Chief Justice




                                       - 12 -
CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice


_______________________________________
W. Scott Bales, Justice




                             - 13 -
