                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                  HOLLIS E. CROWE, II, Plaintiff/Appellant,

                                         v.

                  CAROL F. BRACALE, Defendant/Appellee.

                              No. 1 CA-CV 17-0696
                                FILED 11-1-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-006271
                The Honorable Kerstin G. LeMaire, Judge

                REVERSED IN PART; VACATED IN PART


                                    COUNSEL

Matt Palmer Law Firm P.L.C., Mesa
By Matt Palmer
Counsel for Plaintiff/Appellant

Bluff & Associates, P.C., Phoenix
By Guy W. Bluff, Bruce A. Smidt
Counsel for Defendant/Appellee
                          CROWE v. BRACALE
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.


J O N E S, Judge:

¶1            In 2015, Hollis Crowe, II, sued Carol Bracale for breach of
contract. Nearly sixteen months later, Crowe moved to dismiss his
complaint with prejudice with each side bearing its own attorneys’ fees and
costs. Although Bracale did not oppose a voluntary dismissal with
prejudice, she did oppose the condition that she be precluded from
pursuing attorneys’ fees and costs against Crowe under Arizona Revised
Statutes (A.R.S.) §§ 12-3411 and -341.01. In reply, Crowe asked the trial
court to deny his motion if it were inclined to award fees and instead allow
him to proceed with litigation. The court granted Crowe’s motion and
dismissed the complaint with prejudice, but awarded Bracale $15,329 in
fees and costs.

¶2             On appeal, Crowe argues the trial court abused its discretion
when it imposed additional conditions upon his voluntary dismissal
contrary to those specifically articulated within his request. We hold that
when a plaintiff moves to dismiss his complaint with prejudice, the court
may not grant the dismissal while imposing conditions that are contrary to
the plaintiff’s proffered terms and over his objection. Accordingly, we
reverse the order of dismissal and vacate the award of attorneys’ fees and
costs.

                              DISCUSSION

I.    Jurisdiction and Waiver

¶3            Bracale first argues this Court lacks jurisdiction to consider
the dismissal because Crowe’s notice of appeal only identifies “the Minute
Entry Denying Plaintiff’s Motion for New Trial” and “the Final Judgment.”
“Generally, when a notice of appeal following a motion for new trial does


1      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


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                            Decision of the Court

not specifically or separately appeal the underlying judgment, [appellate]
review is limited to issues raised in the motion.” See Watts v. Medicis Pharm.
Corp., 236 Ariz. 511, 516, ¶ 17 (App. 2015) (citing Sandretto v. Payson
Healthcare Mgmt., Inc., 234 Ariz. 351, 355, ¶ 7 (App. 2014)), vacated in part on
other grounds, 239 Ariz. 19 (2016). However, this Court will liberally
construe a notice of appeal “if the result is neither misleading nor
prejudicial to the appellees involved.” Hanen v. Willis, 102 Ariz. 6, 8-9
(1967).

¶4             In Watts, this Court held it had jurisdiction to consider issues
raised within an earlier motion to dismiss even though the appellant’s
notice of appeal only referred to the trial court’s ruling denying a motion
for new trial. 236 Ariz. at 515, ¶ 14. There, the record indicated that: the
motion for new trial was based upon an asserted error in the underlying
dismissal, the trial court had specifically referenced the pleadings from the
underlying dismissal, and the notice of appeal had referenced the “final
ruling of the court.” Id. at 515-16, ¶ 19. Under those circumstances, the
appellee could not show any prejudice from the appellant’s failure to
specifically reference the underlying judgment. Id. at 516, ¶ 20; see also
Hanen, 102 Ariz. at 9 (“[W]hen adequate notice to appeal has been given to
the other party, no mere technical error should prevent the appellate court
from reaching the merits of the appeal.”).

¶5            Similarly, Bracale fails to allege, let alone establish, any
prejudice from Crowe’s failure to specifically reference the order
dismissing the case with prejudice. Indeed, as did the appellee in Watts,
Bracale responds fully to the merits of Crowe’s arguments. Moreover,
Crowe’s motion for new trial was premised, in part, upon an asserted error
in the underlying dismissal: that the trial court “should not have dismissed
the case with prejudice unless it also ruled that each side would bear their
own fees.” Although the court here did not specifically reference the
motion to dismiss within its order denying the motion for new trial, Bracale
incorporated her response to the motion to dismiss by reference, and the
court “confirm[ed] the prior dismissal of Crowe’s complaint with
prejudice” within its final judgment. Accordingly, we conclude Crowe’s
notice of appeal is sufficient to invoke our jurisdiction to review the
underlying dismissal.

¶6          Bracale also argues Crowe is judicially estopped from relying
upon Arizona Rule of Civil Procedure 41(a)(2) (governing a plaintiff’s
voluntary dismissal) because Crowe explicitly disavowed Rule 41’s




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                           Decision of the Court

applicability in the motion for new trial proceedings.2 Although Crowe
rejected Rule 41’s applicability below, his underlying arguments were not
inconsistent with the rule. Indeed, Bracale was the first party to suggest
Rule 41 governed the motion and argued its applicability in its response to
the motion for new trial. Accordingly, we do not find that Crowe has
waived this issue on appeal. Cf. Magma Copper Co. v. Indus. Comm’n, 139
Ariz. 38, 48 (1983) (“Waiver . . . is not based on the unimportant mistake of
failing to cite the statute by its correct number . . . [but] rather, upon the
failure to raise the issue.”); Lundy v. Lundy, 242 Ariz. 198, 201, ¶ 13 (App.
2017) (holding a party’s failure to cite the applicable section of the child
support guidelines did not constitute waiver).

II.    Voluntary Motion to Dismiss

¶7            “Rule 41(a)(2) is based upon former rules of equity practice,
and it confers equitable powers on the court.” State ex rel. Corbin v. Portland
Cement Ass’n, 142 Ariz. 421, 424 (App. 1984) (citations omitted). When
resolving a Rule 41(a)(2) motion, whether with or without prejudice, the
trial court must consider the equities of both the plaintiff and the defendant.
See Goodman v. Gordon, 103 Ariz. 538, 540 (1968). Accordingly, we review
the grant of a voluntary motion to dismiss for an abuse of discretion. See
Corbin, 142 Ariz. at 424 (citing Goodman, 103 Ariz. at 540, and Wustrack v.
Clark, 18 Ariz. App. 407, 409 (1972)).

¶8           The operative word in this case is “voluntary.” Crowe
voluntarily moved to dismiss his own case — limited only by the specific
condition that each side bear its own attorneys’ fees and costs. The trial
court, however, ordered the dismissal but ignored the specific condition,
which ultimately rendered the dismissal involuntary. By doing so, the trial
court ignored Crowe’s right to continue litigating and therefore abused its
discretion. See Goodman, 103 Ariz. at 540 (“A failure to consider the

2      Crowe’s reluctance to rely upon Rule 41 in the proceedings below
appears to stem from a paragraph in Damron v. Sledge, 105 Ariz. 151, 153
(1969), which, when taken out of context, could be interpreted to exclude a
voluntary motion to dismiss with prejudice from Rule 41. Damron clearly
did not intend this result because the plain language of both the 1969
version of Rule 41 and its current form clearly contemplate its application
to voluntary dismissals with prejudice. See Ariz. R. Civ. P. 41(a)(2) (“Unless
the order states otherwise, a dismissal under this Rule 41(a)(2) is without
prejudice.”). Moreover, no other rule of civil procedure provides a means
by which a plaintiff might bring a voluntary motion to dismiss with
prejudice.


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                           CROWE v. BRACALE
                           Decision of the Court

plaintiff’s equities is a denial of a full and complete exercise of judicial
discretion.”) (quoting Lunn v. United Aircraft Corp., 26 F.R.D. 12, 18 (D. Del.
1960)).

                               CONCLUSION

¶9           We reverse the order dismissing Crowe’s complaint with
prejudice and vacate the award of attorneys’ fees and costs attendant to that
dismissal.

¶10           Both parties request an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. § 12-341.01(A) (authorizing an award of
attorneys’ fees to the successful party in an action arising out of contract).
In our discretion, we decline to award fees on appeal. As the prevailing
party, Crowe is entitled to his costs incurred on appeal upon compliance
with ARCAP 21(b).




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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