                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA
                                   DIVISION TWO


STATE OF ARIZONA,                             )             2 CA-CV 2002-0158
                                              )             DEPARTMENT B
                     Petitioner/A ppellant,   )
                                              )             O P I N IO N
                      v.                      )
                                              )
HON. CHA RLES SHIPMA N, Judge of the          )
Green Valley Justice Court, in and of the     )
County of Pima,                               )
                                              )
                              Respon dent,    )
                                              )
                       and                    )
                                              )
THOMAS JOHN SWEENEY,                          )
                                              )
           Real Party in Interest/Appellee.   )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C-20022694

                             Honorable Edgar B. Acuña, Judge

                                       VACATED


Barbara LaWall, Pima County Attorney
 By Elizabeth Hurley                                                                  Tucson
                                                           Attorneys for Petitioner/Appellant

Zohlmann Law Offices
 By Robert James Zohlmann                                                              Arivaca
                                                  Attorney for Real Party in Interest/Appellee
E S P I N O S A, Acting Presiding Judge.


¶1             The State of Arizona appeals from the superior court’s order imposing a sanction

against it in the form of attorney fees, arguing that, contrary to the court’s ruling, Rule 11,

Ariz. R. Civ. P., 16 A.R.S., Pt. 1, does not apply to this action and that even if it does, the c ourt

had no authority to award attorney fees as a sanction in this case. Because we agree that

Rule 11 does not apply in the context of a criminal proceeding, we vacate the award.

                                 Facts and Procedural History

¶2             Thomas Sweeney was charged with three counts of driving under the influence

of an intoxicant (DUI) in Pima County Consolidated Justice C ourt and was tried bef ore a ju ry.

After the close of th e state’s case, Sween ey moved fo r a judgme nt of acquittal pursuant to

Rule 20, Ariz. R. Crim. P., 17 A.R.S., on the ground the state had failed to establish that the

offenses “occurred in Justice of the Peace Precinct Seven.” The state responded by pointing

out it was only necessary to show the incident occurred within Pima County and that it had

established events that had occurred at a specific location within the county that was also

within Precinct Seven. The ju stice of the peace granted the motion, stating that the court

lacked jurisdiction of the case because the state failed to “include with specificity . . . the

jurisdiction of Precinct Seven.” The state filed a special action petition in Superior Court

challenging the dismissal. In lieu of filing a response to the petition, Sweeney filed a motion

for its dismissal and for sanctions pursuant to Rule 11, Ariz. R. Civ. P. The state then moved




                                                  2
to withdraw the special action and its motion was granted.1 After a subsequent hearing on

Sweeney’s request for sa nctions, the superior co urt award ed attorney fee s and costs to

Sweeney pursuant to Rule 11.

                                           Discussion

¶3             Rule 11(a), Ariz. R. Civ. P., requ ires attorneys to make reasonable inq uiry before

signing a pleading to assure, inter alia, that the pleading is “well grounded in fact and is

warranted by existing law.” If the rule is violated, it requires a court to impo se “an ap propriate

sanction which may include . . . a reasonable attorney’s fee.” Ariz. R. Civ. P. 11(a). Sweeney

correctly points out that an award o f attorney fees p ursuant to R ule 11 is reviewed for abuse

of discretion. James, Cooke & Hobson, Inc. v. Lake H avasu Plumbing and Fire Protec., 177

Ariz. 316, 868 P.2d 329 (App 1993). However, the question whether a particular basis for

awarding fees applies at all is an issue of law that we review de novo. Burke v. A rizona State

Retirement Sys., 206 Ariz. 269, 77 P.3d 444 (Ap p. 2003); Phoenix New spapers, Inc. v. D ep’t

of Corr., 188 Ariz. 237, 9 34 P.2d 801 (App. 1997 ).

¶4             The state contends in its reply brief that Rule 11 does not apply to anything but

civil proceedings, citing State v. Richey, 160 Ariz. 564, 774 P.2d 1354 (1989), and Mields

v. Villarreal, 159 Ariz. 556, 769 P.2 d 464 (App . 1989). 2 The state’s reliance on Richey is

       1
        A.R.S. § 13-4032(7) allows the state to appeal a judgment of acquittal only when it
follows a guilty verdict. Double jeopardy principles prevent further proceedin gs if no guilty
verdict was reached. State v. Millanes, 180 Ariz. 418, 8 85 P.2d 106 (App. 1994 ). Therefore,
even if it was erroneous, the justice court’s ruling here was not subject to review.
       2
       Although Sweeney’s motion for sanctions and the superior court’s ruling were both
based entirely on Rule 11, the state inexplicably did not address this issue or even mention it

                                                 3
largely unavailing because that case involved an award of attorney fees against a defendant and

in favor of the state under A .R.S. § 12-34 8, a statute that, as discussed below, has no direct

application here. Our supreme court vacated the award of fees in Richey, finding that the

purpose of § 12-348 is to “entitl[e] prevailing parties to recover an award of attorney fees . . .

against the state” rather than to contemplate a fee award to the state. 160 Ariz. at 566, 774 P.

2d at 1356, quoting 1981 Ariz. Sess. Laws, ch. 20 8, §1. Thus, if anything, Richey appears

more supportive of S weeney’s position than the state’s.

¶5             Mields, however, does provide guidance. There, a criminal defendant filed a

special action complaint in superior court challenging a magistrate’s ruling in his DUI case.

The complaint was resolved by stipulation, but the superior court awarded the defendant

attorney fees against both the state and the ma gistrate pursuant to § 12-348. This court vacated

the award, finding it impermissible u nder the sp ecific exception the legislature had adopted for

criminal proceedings in § 12 -348(G)(7) (since renumbered as §12-348(H)(7)).                  We

specifically noted: “Mields’ suggestion that his special action did not involve a criminal

prosecution but rather a se parate matter is in itself frivolous.” Mields, 159 Ariz. at 559, 769

P.2d at 467. We then rejected the defendant’s cross-appeal, observing that A.R.S. § 12-349

is limited to civil actions by its own language and, therefore, “has no application to a special




in its opening brief. Consequently, Sweeney requests that we disregard the state’s brief and
dismiss the appeal. We m ay disregard arguments raised fo r the first time in an appellant’s
reply brief. State v. Cohen, 191 Ariz. 471, 957 P.2d 1014 (App. 1998). Because the issue
was joined by both sides below, however, and because it raises an important point of law, we
exercise our discretion to address it on the merits.

                                                4
action arising in a criminal prosecution.” Id. The same rationale applies here. Moreover, the

rules of procedure are themselves instructive. Rule 1, Ariz. R. Civ. P., 16 A.R.S., Pt. 1,

provides: “These rules govern the procedure in the superior courts of Arizona in all suits of

a civil nature.” (Emphasis added.) In contrast, Rule 1.1, Ariz. R. Crim. P ., 16A A.R .S., states:

“These rules shall govern the procedure in all criminal proceedings in all courts within the

State of Arizon a.” The c riminal rules co ntain no co unterpart to R ule 11 of the civil rules. We

thus conclude that Rule 11 do es not apply in a special action arising from a criminal

prosecution. Cf. State of Wis. v. Glick, 782 F.2d 670 (7th Cir. 1986) (noting that Rule 11 of

the Federal Rules of C ivil Procedure applies only to civil litigation). 3

¶6             We note that the state’s initial and primary argument is that an award of attorney

fees in this case is flatly prohibited by law under § 12-348 and Richey. Section 12-348

generally permits a prevailing party to recover a ttorney fees ag ainst the state, b ut, as the state

points out, it expressly excludes “proceedings brought by this state pursuant to title 13 or 28,”

§ 12-348(H)(2), and “proceedings brought by a city, town or county pursuan t to title 13 or 28.”

§ 12-348(H)(7). The state ignores, however, that the legislature expressly chose to restrict

these exclusions to “this section .” § 12-34 8(H); see also Richey, 160 Ariz. at 566, 774 P.2d

at 1356 (proper interpretation of exception to § 12-348 is that “private parties are not entitled

to attorneys’ fees u nder § 12 -348 wh en the state action is brought pursuant to title 13 or 28 ”).




       3
       Arizona’s Rule 11(a ) is based on Rule 11 of the Federal Rules of Civil Procedure, see
Ariz. R. Civ. P . 11(a), historical notes, an d is identical to the federal rule. Lake Havasu
Plumbing.

                                                 5
Because Sweeney at no time sought an awa rd of fees under §12 -348 and the supe rior court did

not base its ruling on that statute, it is not at issue.

¶7             Although not argued by either side, we also note that Rule 4(g), Ariz. R. P. Spec.

Actions, 17B A .R.S., broad ly states: “[i]n any special action, a party may claim costs and

attorneys’ fees as in other civil actions.” That rule goes on to set out the procedure to be

followed for a party to claim an aw ard of attorne y fees in an ap pellate court if a n approp riate

basis exists for such an award. See Western Sun v. Superior Court, 159 Ariz. 223, 230-232,

766 P.2d 96, 103-105 (App. 1988) (Rule 4(f), w hich was renumbe red as 4(g), and its

counterpart, Rule 21(c), Ariz. R . Civ. App. P ., 17B A.R .S., are designed to pe rmit courts to

consider entitlements to fees prior to issuance of opinion). In supplemental briefing ordered

by this court, the state asserts that Rule 4(g) does not authorize attorney fees in this case,

arguing there is no precedent for awarding fees in special actions arising from criminal

proceedings, special actions in which fees have been awarded are uniformly civil in nature,

and, once aga in, citing the sta tutory provision prohibiting fe es against the state under A.R.S.

§ 12-348.4 Although, as noted above, § 12-348 does not a pply to this case, w e find some merit

to the state’s argu ment. Because Ru le 4(g) merely permits “claims” for fees and is clearly a

procedural provision, because we are no t aware of any case involving a special action

proceeding arising from a criminal prosecution in which attorney fees have been awarded


       4
         The state also argues that Sweeney waived any entitlement to fees under Rule 4(g) by
failing to raise this provision below. But it is well established that we may consider alternative
grounds for upholding a challenged ruling. State v. Cañez, 202 Ariz. 133, 4 2 P.3d 564 (20 02);
State v. Mincey, 130 Ariz. 389, 6 36 P.2d 637 (1981).

                                                  6
pursuant to Rule 4(g) or any civil rule authorizing fees, and because a long-established Arizona

statute expressly excludes criminal cases from its provisions authorizing fees against the state,

§ 12-348(H)(2) and (7), we conclude Rule 4(g) was not intende d to authorize the grant of fees

or costs in special actions arising from criminal proceedings. Similarly, Rule 4(g) does not

enlarge the substantive scope of a court’s authority to apply a civil sanction in a criminal

setting.

                                          Disposition

¶8            In accordance w ith the foregoing, we v acate the superior court’s award of

attorney fees. Sweeney’s requ est for multiple sanctions against the state, including an award

of attorney fees on appeal, is denied.




                                                PHILIP G. ESPINOSA, Acting Presiding Judge

CONCURRING:




JOHN PELA NDER, Chief Judge




PETER J. ECKER STROM, Judge




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