IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GREG PATERNO; GARY PATERNO, JR., a single man; HOLLY PATERNO, a single woman; GARY PATERNO, SR.; and MICROGROUP MANUFACTURING, INC., an Arizona corporation, Defendants/Counterclaimants/ Appellants, v. JEFFREY HERNANDEZ and DEBRA A. HERNANDEZ, husband and wife, Counterdefendants/Appellees. 1 CA-CV DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV The Honorable Eddward P. Ballinger, Jr., Judge AFFIRMED D. Thomas Law Offices, Ltd. Phoenix By Douglas E. Thomas Attorneys for Defendants/Counterclaimants/Appellants Broening Oberg Woods & Wilson PC By Robert T. Sullivan Brian W. Purcell Attorneys for Counterdefendants/Appellees Phoenix J O H N S E N, Judge

2 1 Appellants Greg Paterno, Gary Paterno, Jr., Holly Paterno, Gary Paterno, Sr. and Microgroup Manufacturing, Inc. ( Microgroup (collectively the Paterno Parties appeal from the superior court s award of attorney s fees to Jeffrey Hernandez. We affirm. FACTS AND PROCEDURAL BACKGROUND 2 Hernandez, a lawyer, filed a complaint on behalf of Michael Poling and Lightwave Technologies, L.L.C. against the Paterno Parties, alleging breach of contract and other claims. The Paterno Parties eventually filed an Amended Counterclaim (in substance a third-party complaint to add Hernandez and his spouse as defendants. The pleading alleged numerous claims against Hernandez, including joint venture liability, breach of fiduciary duty, fraud misrepresentation, fraud - concealment, intentional interference with contract, breach of the duty of good faith and fair dealing and breach of contract. The Paterno Parties alleged Hernandez entered into contracts and committed acts on behalf of his marital community, and acted in the capacity of and in the scope of his role as attorney for the Plaintiffs/Counterdefendants at all relevant times. 3 Hernandez moved to dismiss the claims against him pursuant to Arizona Rule of Civil Procedure 12(b(6. Among other arguments, Hernandez contended he had no contract with the Paterno Parties. The superior court granted Hernandez s motion. 2

3 Hernandez then filed a request for $20,040 in attorney s fees pursuant to Arizona Revised Statutes ( A.R.S. sections (A (2003 and (2003. He mailed his motion to one of the Paterno Parties two attorneys, but not to the other. After receiving no response, the superior court awarded $15,000 in fees to Hernandez pursuant to A.R.S (A. 4 The Paterno Parties then filed a Motion for the Revision of That Part of the August 26, 2009 Judgment Awarding Third-Party Defendant Jeffrey J. Hernandez, Esq. $15,000 Worth of the Attorneys Fees He Requested. In response, Hernandez argued the Paterno Parties motion sought reconsideration pursuant to Arizona Rule of Civil Procedure 7.1(e. The superior court treated the motion as a motion for reconsideration and denied it. 5 The Paterno Parties next filed a motion to reconsider that ruling and asked the court to amend the judgment to include language from Arizona Rule of Civil Procedure 54(b. They also pointed out for the first time that Hernandez had served his motion for attorney s fees on only one of their two attorneys. The superior court entered a judgment with Rule 54(b language on December 10, 2009 but otherwise denied the Paterno Parties motion to reconsider. The judgment awarded fees and costs to Hernandez pursuant to A.R.S (A. This appeal followed. 3

4 DISCUSSION A. Attorney s Fees Award. 6 In relevant part, (A provides, In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees. The Paterno Parties asserted claims against Hernandez for breach of contract, among other claims. The Paterno Parties argue that because Hernandez prevailed on the theory that he had no contract with them, he is not entitled to fees pursuant to (A. 7 Under Arizona law, however, a defendant sued for breach of contract may be awarded fees under A.R.S (A when he prevails by establishing the absence of the alleged contract. See Marcus v. Fox, 150 Ariz. 333, 334, 723 P.2d 682, 683 (1986 (citing Shirley v. Hartford Accident & Indem. Co., 125 Ariz. 70, 71, 607 P.2d 389, 390 (App. 1979; Berthot v. Sec. Pac. Bank of Ariz., 170 Ariz. 318, 324, 823 P.2d 1326, 1332 (App. 1991; Rogus v. Lords, 166 Ariz. 600, , 804 P.2d 133, (App. 1991; Lacer v. Navajo County, 141 Ariz. 392, 394, 687 P.2d 400, 402 (App Accordingly, the court acted within its discretion in awarding fees to Hernandez pursuant to A.R.S (A in his defense against the Paterno Parties claims. See Nolan v. Starlight Pines 4

5 Homeowners Ass n, 216 Ariz. 482, 490, 36, 167 P.3d 1277, 1285 (App B. The Superior Court s Treatment of the Motion For Revision as a Motion for Reconsideration pursuant to Rule 7.1(e. 8 The Paterno Parties also argue the superior court should have treated their Motion for Revision as a motion made pursuant to Arizona Rule of Civil Procedure 54(b rather than a motion made pursuant to Rule 7.1(e. 1 Even assuming that Rule 54(b provided the proper procedural vehicle by which the court to evaluate the Paterno Parties tardy objection to the court s award of fees, it made no difference because the relief available was the same under either rule. 9 Rule 54(b provides that, in absence of a determination and direction about a judgment s finality, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Ariz. R. Civ. P. 54(b (emphasis added. Rule 7.1(e likewise allows a party to ask for reconsideration of a court s ruling. Ariz. R. Civ. P. 7.1(e. 1 We review de novo the superior court s interpretation of procedural rules. See Rivera-Longoria v. Slayton, 225 Ariz. 572, 574, 8, 242 P.3d 171, 173 (App

6 10 The Paterno parties offer no support for the implied assertion that they would have been entitled to greater relief (or that they could have more easily obtained relief pursuant to Rule 7.1(e than pursuant to Rule 54(b. As Hernandez points out, a federal court likely would regard the rules approaches as equivalent: Presumably, Plaintiffs seek reconsideration under either: (i Fed.R.Civ.P. 54(b, which allows courts to revise any order or other form of decision, however designated, which adjudicates fewer than all the claims or the right and liabilities of fewer than all the parties... before the entry of judgment... ; or (ii the Court s inherent commonlaw authority to rescind an interlocutory order over which it has jurisdiction.... While the common law and Rule 54(b may provide distinct sources for this Court s authority to reconsider its rulings, it appears that the approach should be the same under both. Motorola, Inc. v. J.B. Rogers Mech. Contractors, Inc., 215 F.R.D. 581, (D. Ariz (citation omitted Equally unavailing is the Paterno Parties argument that the superior court refused to consider the merits of the Motion for Revision. Rule 7.l(e directs the court to determine whether a response is necessary to such a motion. Having determined that no response was necessary, the court ruled against the Paterno Parties. The court likewise rejected the Paterno Parties ensuing motion for reconsideration. On 2 After Motorola, the Arizona District Court enacted a local rule concerning such motions. Ariz. R. U.S. Dist. Ct. 7.2(g. 6

7 this record, we cannot conclude the superior court failed to consider the Paterno Parties arguments. C. The Paterno Parties Have Not Preserved Their Due Process and Rule 5(c(1 Arguments. 12 The Paterno Parties further contend that the superior court deprived them of due process by treating their Motion for Revision as a motion for reconsideration. They cite no authority for this argument and fail to develop it sufficiently on appeal. Accordingly, we decline to consider it. See Adrian E. v. Ariz. Dep t of Econ. Sec., 215 Ariz. 96, 102, 22, 158 P.3d 225, 231 (App Alternatively, the Paterno Parties argue the superior court misapplied Arizona Rule of Civil Procedure Rule 5(c(1 by granting Hernandez s fee request even though the request was served on only one of the Paterno Parties two lawyers. The Paterno Parties, however, did not raise this issue until their motion for reconsideration. This court generally does not consider arguments first raised in a motion for reconsideration, except when the facts or arguments presented were not available at the time the [ruling] was entered. Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 241, 16, n.5, 159 P.3d 547, 551 (App Moreover, the Paterno Parties do not say how they were prejudiced by the alleged rule violation; i.e., they do not explain why service on one of their lawyers was not 7

8 sufficient to put them on notice of Hernandez s fee request. For these reasons, we need not address this argument. CONCLUSION 14 We affirm the superior court s rulings. We award Hernandez his costs and reasonable attorney s fees on appeal in accordance with A.R.S (A, subject to compliance with ARCAP 21(c. CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ DONN KESSLER, Presiding Judge /s/ SHELDON H. WEISBERG, Judge 8