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State v. Shipman8/3/2004
160 Ariz. at 566, 774 P.2d at 1356, quoting 1981 Ariz. Sess. Laws, ch. 208, § 1. Thus, if anything, Richey appears more supportive of Sweeney's position than the state's.
FN2. 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 in its opening brief. Consequently, Sweeney requests that we disregard the state's brief and dismiss the appeal. We may disregard arguments raised for 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.
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 magistrate pursuant to § 12-348. This court vacated the award, finding it impermissible under the specific 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 separate 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 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 Arizona." The criminal rules contain no counterpart to Rule 11 of the civil rules. We thus conclude that Rule 11 does 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 Civil Procedure applies only to civil litigation). [FN3]
FN3. 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, and is identical to the federal rule. Lake Havasu Plumbing.
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 attorney fees against the state, but, 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 pursuant 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." § 12-348(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 under § 12-348 when the state action is brought pursuant to title 13 or 28"). Because Sweeney at no time sought an award of fees under § 12-348 and the superior 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.
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