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State v. Shipman8/3/2004
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 court 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 Court and was tried before a jury. After the close of the state's case, Sweeney moved for a judgment 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 justice 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 to withdraw the special action and its motion was granted. [FN1] After a subsequent hearing on Sweeney's request for sanctions, the superior court awarded attorney fees and costs to Sweeney pursuant to Rule 11.
FN1. 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 proceedings if no guilty verdict was reached. State v. Millanes, 180 Ariz. 418, 885 P.2d 106 (App.1994). Therefore, even if it was erroneous, the justice court's ruling here was not subject to review.
Discussion
3 Rule 11(a), Ariz. R. Civ. P., requires attorneys to make reasonable inquiry 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 impose "an appropriate sanction which may include ... a reasonable attorney's fee." Ariz. R. Civ. P. 11(a). Sweeney correctly points out that an award of attorney fees pursuant to Rule 11 is reviewed for abuse of discretion. James, Cooke & Hobson, Inc. v. Lake Havasu 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. Arizona State Retirement Sys., 206 Ariz. 269, 77 P.3d 444 (App.2003); Phoenix Newspapers, Inc. v. Dep't of Corr., 188 Ariz. 237, 934 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.2d 464 (App.1989). [FN2] The state's reliance on Richey is largely unavailing because that case involved an award of attorney fees against a defendant and in favor of the state under A.R.S. § 12-348, 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. *1171
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