Trantor v. Fredrikson

McGREGOR, Judge,

dissenting.

The majority’s decision to vacate the trial court’s award of attorney’s fees results from two conclusions. First, the majority concludes that “a trial court must make appropriate findings of fact and conclusions of law in awarding attorney’s fees under either A.R.S. §§ 12-341.01(0) or 12-349.” Op. at 391, 861 P.2d at 676. I agree. State v. Richey, 160 Ariz. 564, 565, 774 P.2d 1354, 1355 (1989). Second, the majority concludes that if a trial court fails to set forth specific findings supporting an award of fees, this court must vacate the award even though the party opposing the award did not object to the lack of findings. I respectfully dissent from that conclusion. I would hold, consistent with earlier decisions of this and other courts, that Tran-tor’s failure to object to the lack of findings precludes her from obtaining relief on that basis.

In Hamm v. Y & M Enterprises, Inc., 157 Ariz. 336, 757 P.2d 612 (App.1988), this court considered the same argument advanced by Trantor. There, we held that a party, against whom the trial court had awarded attorney’s fees under A.R.S. § 12-349.A.3 without making findings, could not argue for the first time on appeal that this court should vacate the award because of the trial court’s failure to make findings. Id. at 338, 757 P.2d at 614. That holding is consistent with this court’s earli*393er decision in Callanan v. Sun Lakes Homeowners’ Ass’n, 134 Ariz. 332, 656 P.2d 621 (App.1982). Callanan involved an appeal of an order awarding attorney’s fees under A.R.S. § 10-049.B, which permits the court to award fees in a shareholder’s action if the plaintiff brings the action “without reasonable cause.” There too the plaintiff failed to object to the form of the judgment “or bring to the attention of the trial judge this alleged insufficiency of findings in any way.” Id. at 337, 656 P.2d at 626. The court, assuming that the statute required the trial court to set out express findings to support its award of fees, concluded the plaintiff had waived his right to urge the court’s failure to do so as a basis for reversal on appeal.

The approach adopted in Hamm and Cal-lanan finds additional support from case law interpreting Arizona Rule of Civil Procedure 52(a), which involves similar considerations. Rule 52(a) provides in relevant part that

in all actions tried upon the facts without a jury or with an advisory jury [or in granting or refusing interlocutory injunctions], the court ... shall find the facts specially and state separately its conclusions of law thereon____ (Emphasis added.)

Rule 52(a)’s express mandate that the court make special findings therefore mirrors Richey’s requirement that courts must make appropriate findings to support an attorney’s fee award.

The purpose of Rule 52(a) also mirrors that of the attorney’s fees statutes. Rule 52(a) is primarily intended to aid appellate courts in reviewing decisions of trial courts. Educational Testing Services v. Katzman, 793 F.2d 533, 537 (3d Cir.1986); Danny Kresky Enterprises Corp. v. Ma-gid, 716 F.2d 206, 215 (3d Cir.1983); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2571, at 679-80 (1971). Similarly, a trial court’s findings of fact and conclusions of law underlying the grant of attorney’s fees under A.R.S. §§ 12-341.01.C and -349 “demonstrate the application of the statute’s language [and] greatly assist an appellate court on review.” Richey, 160 Ariz. at 565, 774 P.2d at 1355. In both situations, the trial court’s express findings aid appellate courts in reviewing the trial court’s decision.

Because the requirements and purposes of Rule 52(a) and the attorney’s fees statutes are so similar, I also would consider our interpretation of Rule 52(a) in deciding whether a party can waive his objection to a trial court’s failure to make findings to support an attorney’s fees award. Significantly, a trial judge’s failure to make the findings required by Rule 52(a) does not permit a party to “sit back and not call the trial court’s attention to the lack of a specific finding on a critical issue, and then urge on appeal that mere lack of a finding on that critical issue as a grounds for reversal.” Bayless Investment & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz.App. 265, 271, 547 P.2d 1065, 1071 (1976). Rather, we limit an appellant’s challenge on appeal to examining the sufficiency of the evidence to support the judgment and review the evidence in the light most favorable to the appellee. Id.

Practical and long-accepted reasons justify requiring a party to object to the trial court’s failure to make needed findings:

We have many times held that in the interests of judicial economy and the prompt disposition of matters, alleged errors should be called to the trial judge’s attention in order that he may have an opportunity to correct his own errors, thereby perhaps avoiding needless appellate delay and the wasted judicial effort necessarily involved if a different rule were applied.

Id.; see, e.g., Educational Testing Services, 793 F.2d at 537 (lack of Rule 52(a) findings does not differ from other procedural errors that a party waives by failing to object at trial court level); Danny Kre-sky Enterprises Corp., 716 F.2d at 215 (appellate court’s review limited to determining whether record provides sufficient support for award and to remanding for further findings if necessary).

*394The reasoning of Bayless Investment applies with equal force when a party fails to call the trial court’s attention to the lack of express findings to support an award of fees. I find it particularly inappropriate to vacate an award of attorney’s fees due to the lack of sufficient findings in an action such as this. The trial judge, who considered the course of proceedings and who carefully questioned the parties’ attorneys before awarding fees, necessarily concluded Trantor’s claim “constitutes harassment, is groundless and not made in good faith,” A.R.S. § 12-341.01.C, or was brought “without substantial justification” or “primarily for delay or harassment.” A.R.S. § 12-349. Trantor and Clark do not suggest they lacked adequate opportunity to request express findings from the trial court. For whatever reason, Trantor and Clark remained silent when the trial court failed to record express findings setting out the basis for its award rather than provide the trial court an opportunity to correct its error. The rule adopted by the majority encourages precisely such actions. Then, on appeal, when the trial court can no longer correct its error, the party against whom fees are awarded may call this court’s attention to the lack of findings and automatically be relieved of his duty to pay attorney’s fees, no matter how justified the award.

The majority bases its decision to depart from settled principles of appellate practice primarily upon the Arizona Supreme Court’s decision in Richey. Although, as the majority notes, the court decided Rich-ey after Hamm, the Richey opinion does not even mention, let alone expressly overrule, Hamm. Additionally, Richey neither discussed whether the party against whom the court awarded attorney’s fees had objected to the form of judgment before the trial court nor stated that a party cannot waive objections to the lack of specific findings.

The majority further justifies its decision by pointing out that sections 12-341.01.C and 12-349 “are not judicial creations but rather legislative mandates to the court that compel it to impose penalties in those situations.” Op. at 392, 861 P.2d at 677. I agree with the majority’s characterization of these attorney’s fees statutes as legislative mandates. I do not agree, however, that the conclusion reached by the majority furthers that legislative mandate. The issue raised in this action can arise only after a trial judge has awarded attorney’s fees because the court finds that a party has asserted a groundless or frivolous claim or defense, for purposes of harassment or delay. To permit such a party to avoid complying with the trial court’s order awarding fees by “lying in the weeds” and failing to object to the court’s lack of findings does not further, and in fact counteracts, the legislative mandate so clearly defined in the attorney’s fees statutes.

Because Trantor and Clark failed to object to the trial court’s lack of findings, I would conclude they may not raise the failure to make the findings alone as a basis for reversal of the award. They may, however, challenge on appeal the sufficiency of the evidence to support an award of attorney’s fees under A.R.S. §§ 12-341.01.C or 12-349.