                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     MICHAEL SNEBERGER, Petitioner,

                                        v.

THE HONORABLE MYRA A. HARRIS, Commissioner of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
             MARICOPA, Respondent Commissioner,

     CMRE FINANCIAL SERVICES, INC., a California corporation,
                    Real Party in Interest.

                             No. 1 CA-SA 14-0076
                              FILED 07-08-2014


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000555-001
             The Honorable Myra A. Harris, Commissioner

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

The Butler Law Firm, Phoenix
By Everett S. Butler, Matthew D. Williams
Counsel for Petitioner

Skarecky & Holder PA, Phoenix
By William W. Holder, Dennis J. Skarecky
Counsel for Real Party in Interest
                  SNEBERGER V. HON. HARRIS/CMRE
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Michael Sneberger (Petitioner), petitions this court for
special action relief from the superior court’s remand to the justice court to
reconsider Petitioner’s attorney fee award. For the reasons discussed
below, we accept special action jurisdiction, grant relief by vacating the
superior court’s order remanding this matter to the justice court, and
remand this matter to the superior court to consider Petitioner’s request
for attorney fees and costs on appeal to the superior court.

                 FACTS AND PROCEDURAL HISTORY

¶2            This action arises out of a billing dispute between Petitioner
and Phoenix Baptist Hospital.         Phoenix Baptist Hospital assigned
Petitioner’s debt for collection to real party in interest, CMRE Financial
Services, Inc. (CMRE). CMRE filed suit in justice court seeking $1,545 --
the amount of the alleged debt. Petitioner attempted to settle the dispute;
however, CMRE rejected all settlement offers.

¶3             After a trial before the justice court, Petitioner moved for
judgment as a matter of law. The justice court granted Petitioner’s
motion. Petitioner made an offer to settle his anticipated claim for
attorney fees. CMRE rejected the offer. Petitioner filed an application
with justice court seeking $31,890 in attorney fees plus costs. CMRE
responded to the application arguing Petitioner was not entitled to
attorney fees because the fee agreement created no genuine financial
obligation and Arizona Revised Statute (A.R.S.) section 12-341.01.B barred
an award that created no genuine financial obligation for the requesting
party. CMRE also argued Arizona case law favored a reduction of
Petitioner’s attorney fees request.

¶4          The justice court approved Petitioner’s application and
awarded Petitioner the full amount of his request. In rejecting CMRE’s
argument under § 12-341.01.B, the justice court stated:




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                  SNEBERGER V. HON. HARRIS/CMRE
                        Decision of the Court

       This court declines to read [A.R.S. § 12-341.01] so narrowly.
       Subsection B directs the making of an award “to mitigate the
       burden of the expense of litigation to establish a just claim or
       a just defense” . . . It is common in a [justice court] to observe
       a defendant lose mainly for want of adequate representation.
       This Court will not add to the number of such cases by
       adopting such a restrictive, one-sided interpretation of the
       statute as advocated by [CMRE].

The justice court also rejected CMRE’s argument that the fees should be
reduced, finding it failed to specifically challenge the amount or
reasonableness of the request, as required by Nolan v. Starlight Lines
Homeowner’s Ass’n, 216 Ariz. 482, 491, ¶¶ 38-39, 167 P.3d 1277, 1286 (App.
2007).

¶5             CMRE appealed the attorney fee award to the superior
court. The superior court remanded the attorney fee award to justice
court. In its order, the superior court explained the fee agreement created
no financial obligation for Petitioner. Moreover, the superior court held
the justice court erred in (1) not considering the factors set forth in
Associated Indemnity Corp. v. Warner (Warner), 143 Ariz. 567, 570, 694 P.2d
1181, 1184 (1985), and (2) the attorney fee award was not reasonable
because it lacked sufficient detail. This petition for special action
followed.

                               DISCUSSION

I.     Special Action Jurisdiction

¶6             Special action jurisdiction is discretionary. Catrone v. Miles,
215 Ariz. 446, 450, ¶ 8, 160 P.3d 1204, 1208 (App. 2007). Jurisdiction,
however, is warranted where there is no “equally plain, speedy, and
adequate remedy by appeal.” See Ariz. R.P. Spec. Act. 1(a). Generally, we
lack jurisdiction over the superior court’s decision in an action appealed
from the justice court. See A.R.S. § 22-375.A (2013) (limiting this court’s
jurisdiction in such cases to appeals involving “the validity of a tax,
impost, assessment, toll, municipal fine or statute.”). Because Petitioner’s
challenge does not bring a case described within § 22-375.A, he lacks a
remedy by appeal. Moreover, A.R.S. § 12-120.21.A.4 grants this court
special action jurisdiction “without regard to its appellate jurisdiction.”

¶7             Moreover, we may accept jurisdiction over a special action if
a petition is predicated on an error of law. See Abeyta v. Soos ex rel. Cnty. of
Pinal, 234 Ariz. 190, 193, ¶ 7, 319 P.3d 996, 999 (App. 2014).           Here,


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                  SNEBERGER V. HON. HARRIS/CMRE
                        Decision of the Court

Petitioner argues the superior court erred when it remanded the justice
court’s attorney fee award for specific findings in accordance with
Warner.1

¶8            Accordingly, in the exercise of our discretion, we accept
special action jurisdiction.

II.    Award of Attorney Fees

¶9           An award of attorney fees is left to the discretion of the trial
court. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d
1030, 1035 (App. 2004). On appeal, an award of fees should not be
reversed unless there is no reasonable basis for it. Id.

¶10           Petitioner argues the superior court erred for various
reasons in remanding the case to the justice court. The petition challenges
the superior court’s (1) requirement that the justice court consider the
Warner factors and (2) finding that Petitioner’s attorney fee application
contained an unreasonable amount of hours billed or work expended. In
its response, CMRE does not address the issues raised by Petitioner. A
respondent’s failure to address debatable issues may constitute a
confession of error. See Caretto v. Ariz. Dep’t of Transp., 192 Ariz. 297, 303,
¶ 25, 965 P.2d 31, 37 (App. 1998); see also Welch v. Super. Ct. In and For
Maricopa Cnty., 21 Ariz. App. 131, 132, 516 P.2d 587, 588 (1973) (applying
confession of error in the special action setting). We elect to address
Petitioner’s arguments, notwithstanding CMRE’s failure to respond to
those arguments.

       A.     Consideration of the Warner Factors

¶11           A trial court has discretion to award reasonable attorney fees
in contract actions, pursuant to A.R.S. § 12-341.01. Here, Petitioner argues
the superior court erred when it remanded case to the justice court for it to
“consider a reasonable charge for [Petitioner’s] counsel’s services. . . after
due consideration of the factors identified in [Warner].” We agree.


1      In its response, CMRE’s sole argument is that A.R.S. § 12-341.01.C
bars an attorney fee award in this case. Based on its arguments, however,
we believe that CMRE intended to cite to A.R.S. § 12-341.01.B. However,
Petitioner did not raise this issue, and thus we find the issue non-
responsive. Also, because we find nothing wrong with the Petitioner’s fee
agreement, we do not address it.



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                  SNEBERGER V. HON. HARRIS/CMRE
                        Decision of the Court

¶12            In Warner, the supreme court listed several factors it deemed
useful in assisting a trial court in determining whether to award attorney
fees under A.R.S. § 12-341.01. See 143 Ariz. at 570, 694 P.2d at 1184. These
factors include: (1) the merits of the unsuccessful party’s claim; (2) the
extent to which the litigation could have been avoided or settled and the
“successful party’s efforts were completely superfluous in achieving the
result”; (3) assessing attorney fees would cause an extreme hardship for
the unsuccessful party; (4) “the successful party did not prevail with
respect to all relief sought”; (5) the novelty of the legal issue presented by
the parties; and (6) whether a fee award will “discourage other parties
with tenable claims or defenses from litigating or defending legitimate
contract issues . . . .” Id.

¶13           The statute does not create an obligation for a court to make
specific findings based on the Warner factors, although doing so
constitutes a “better practice.” Id. at 571, 694 P.2d at 1185. Accordingly, a
court is under no obligation to make specific findings to support an award
of attorney fees. See, e.g., Hawk v. PC Vill. Ass’n, Inc., 233 Ariz. 94, 100,
¶ 21, 309 P.3d 918, 924 (App. 2013).

¶14           In its order, the justice court explained that it considered
“[Petitioner’s] Application for [Attorney] Fees and Costs, Statement of
Costs, the supporting documents, and the parties’ arguments.” In
Petitioner’s Application for Attorney Fees, Petitioner specifically analyzed
each of the Warner factors. Also, in its response, CMRE concedes the
justice court considered the Warner factors. Therefore, we find the
superior court erred when it remanded the case to the justice court for
consideration of the Warner factors.

       B.        Reasonableness of Attorney Fees

¶15           Petitioner next argues that the superior court erred when it
remanded the case to the justice court for a determination of reasonable
attorney fees consistent with its decision. Specifically, the superior court
found Petitioner’s fee application contained instances of block billing, and
the application failed to make a “showing the fee was based on a
reasonable number of hours – particularly in light of the de minimus
value of the claim when compared to the total fee charged.” However, as
Petitioner correctly points out, CMRE has waived this argument.

¶16            An application for attorney fees must contain detail
sufficient to allow the court to determine the reasonableness of the time
spent. Orfaly, 209 Ariz. at 266, ¶ 23, 99 P.3d at 1036. It is well settled that



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                  SNEBERGER V. HON. HARRIS/CMRE
                        Decision of the Court

the reasonableness of an attorney’s time is demonstrated through an
affidavit indicating “the type of legal services provided, the date the
service was provided, the attorney providing the service, . . . and the time
spent providing the service.” Schweiger v. China Doll Rest., Inc., 138 Ariz.
183, 188, 673 P.2d 927, 932 (App. 1983). Once this preliminary showing is
met, the burden shifts to the party challenging the fees. See Nolan, 216
Ariz. at 491, ¶ 38, 167 P.3d at 1286. Merely arguing that a fee is
unreasonable, however, is not a sufficient challenge. Id. Instead, the
challenger must set forth specific objections to the request. See id. at ¶ 39.

¶17          In this case, Petitioner’s application included a “Detail fee
Transaction List” that set forth each task and the amount spent on each
task. Thus, Petitioner met its preliminary burden of showing its request
was reasonable. Conversely, CMRE’s response to the fee application
lacked the specificity that is required by Nolan. At no time in its response
did CMRE challenge any specific times or activities set forth in Petitioner’s
application. Thus, CMRE did not meet its burden of demonstrating the
fees were unreasonable under Nolan.

¶18           In its decision, the superior court stated that it found
Petitioner’s application to contain instances of blocked billing. However,
block billing alone is not a sufficient basis on which to overturn an
attorney fee award. See Hawk, 233 Ariz. at 100, ¶ 23, 309 P.3d at 924.

¶19            Based on this record, and given the discretion granted to a
trial court in determining fees, Petitioner’s fee application was sufficient to
allow the justice court to assess the reasonableness of the hours and tasks
claimed. Therefore, we find the superior court erred in remanding the
case to the justice court.

       C.     Failure of the Superior Court to Award Attorney Fees

¶20           Lastly, Petitioner contends that the superior court erred in
failing to award him attorney fees and costs on the basis that neither party
was the successful party. Petitioner requests that we award him attorney
fees and costs on appeal from the superior court. As the prevailing party,
Petitioner was entitled to his attorney fees and costs, at the superior
court’s discretion. We remand this matter to the superior court to
consider Petitioner’s request for fees and costs.

                ATTORNEY FEES ON SPECIAL ACTION

¶21          Pursuant to ARCAP 21 and A.R.S. § 21-341, Petitioner
requests his attorney fees and costs in this special action. In our


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                 SNEBERGER V. HON. HARRIS/CMRE
                       Decision of the Court

discretion, we decline to award Petitioner his reasonable attorney fees and
costs in this special action.

                             CONCLUSION

¶22            For the foregoing reasons, we accept special action
jurisdiction, grant relief, and vacate the superior court’s order remanding
the case to the justice court. We also remand this matter to the superior
court to consider Petitioner’s request for attorney fees and costs in
defending the appeal from the justice court.




                               :gsh




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