tempe/chavez v. state/brnovich ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CITY OF TEMPE, a municipal corporation; ELIZABETH CHAVEZ,
Tempe Housing Services Manager, Plaintiffs/Petitioners/Appellants,
v.
STATE OF ARIZONA, a body politic, and MARK BRNOVICH,1 in his
capacity as Attorney General for the State of Arizona,
Defendants/Respondents/Appellees.
No. 1 CA-CV 14-0282
FILED 6-4-2015
Appeal from the Superior Court in Maricopa County
No. CV2012-013761
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
Tempe City Attorney’s Office, Tempe
By Judith R. Baumann
Counsel for Plaintiffs/Petitioners/Appellants
Arizona Attorney General’s Office, Phoenix
By Ann R. Hobart
Counsel for Defendants/Respondents/Appellees
1 We amend the caption to reflect the current Arizona Attorney
General, and order the use of this caption for all further proceedings on
appeal.
TEMPE/CHAVEZ v. STATE/BRNOVICH
Opinion of the Court
OPINION
Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 In this case, the City of Tempe (Tempe) challenges the
authority of the Arizona Attorney General (AAG) to investigate a complaint
alleging discriminatory housing practices against a municipal corporation.
Because a municipal corporation is a “person” subject to the Arizona Fair
Housing Act (AFHA), Ariz. Rev. Stat. (A.R.S.) §§ 41-14912 to -1491.37, the
AAG can investigate a complaint against Tempe alleging housing
discrimination. Accordingly, we affirm the trial court’s grant of summary
judgment in favor of the State and the AAG and the award of fees under
A.R.S. § 12-348.01.
FACTS3 AND PROCEDURAL HISTORY
¶2 Tempe is a municipal corporation that, inter alia, operates
Tempe Housing Services (THS), a public housing agency. THS administers
the Section 8 Housing Choice Voucher Program (HCVP) through which the
U.S. Department of Housing and Urban Development (HUD) provides
rental subsidies to eligible families and individuals living in approved
housing units. As required by federal statute, Tempe adopted a plan for
administering the voucher program, which provides that THS shall
“comply fully with all Federal, State, and local nondiscrimination laws . . .
from the time a prospective tenant first applies [to the voucher program]
through a voucher being given.” See 42 U.S.C. § 3604 (prohibiting
2 Absent material revisions from the relevant date, we cite a statute’s
current version.
3 “On appeal from a grant of summary judgment, we view all facts
and reasonable inferences therefrom in the light most favorable to the party
against whom judgment was entered.” Bothell v. Two Point Acres, Inc., 192
Ariz. 313, 315, ¶ 2 (App. 1998).
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Opinion of the Court
discrimination in the sale or rental of housing); 24 C.F.R. § 982.53 (requiring
administrator of HCVP to comply with certain anti-discrimination laws).
¶3 The Arizona legislature adopted the AFHA in 1991 and
tasked the AAG with investigating and enforcing complaints brought
thereunder.4 A.R.S. §§ 41-1491.09, -1491.22(A), -1491.24, and -1491.34.
Additionally, through a Memorandum of Understanding, HUD declared
the AFHA to be “substantially equivalent” to the federal Fair Housing Act
(FHA), 42 U.S.C. §§ 3601 to 3631. As a result, HUD may refer local FHA
complaints to the AAG for investigation. See A.R.S. § 41-1491.24(A).
¶4 In June 2012, Ron Bircher filed a fair housing complaint
against Tempe with the AAG; Tempe then dual-filed the complaint with
HUD. Pursuant to the Memorandum of Understanding, HUD referred
Bircher’s complaint under the FHA to the AAG for investigation. Bircher
later amended his complaint to provide additional details in support of his
allegation that his application for a housing voucher was denied based
upon an alleged disability, and to add Elizabeth Chavez, a THS manager,
as an additional respondent.
¶5 Upon receiving Bircher’s complaint, the AAG sent Tempe and
Chavez a “Notice of Charge of Discrimination” and requested Tempe
provide it with a position statement. Tempe resisted the investigation and
ultimately filed a complaint in the superior court seeking declaratory and
special action relief, asserting the AFHA did not authorize the AAG to
investigate a complaint made against a municipal corporation.5
¶6 The parties filed cross-motions for summary judgment,
disputing three issues: (1) whether Tempe and Chavez are “persons” within
the meaning of A.R.S. § 41-1491(9); (2) whether Tempe engages in conduct
that could constitute a discriminatory housing practice under the AFHA;
and (3) whether the AAG abused its discretion in refusing to summarily
dismiss Bircher’s complaint.
4 The AAG performs these tasks through the Civil Rights Division of
the AAG’s Office. For simplicity, we refer to the State, the AAG, the office
of the AAG, and the AAG’s employees and agents as AAG.
5 Tempe also sought injunctive relief to prohibit the AAG from issuing
subpoenas to Tempe and its employees for documents and testimony, an
issue not before us on appeal.
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Opinion of the Court
¶7 After oral argument on the cross-motions, the trial court
found: (1) municipal corporations are subject to the requirements of the
AFHA, (2) Tempe, a municipal corporation, engages in conduct regulated
by the AFHA, and (3) the AAG did not abuse its discretion or act arbitrarily
and capriciously by declining to dismiss Bircher’s complaint without an
investigation. The court also made specific findings that the AAG is
mandated to conduct an investigation, and “Tempe thwarted the
investigation,” such that it could not “now complain that the [AAG] abused
his discretion by not dismissing the complaint when the investigation [was]
not complete.” Accordingly, the court granted the State’s summary
judgment motion and dismissed Tempe’s complaint. The State then
applied for its attorneys’ fees under A.R.S. § 12-348.01, which the court
granted in the amount of $108,090. Tempe timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
STANDARD OF REVIEW
¶8 Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a); Nat’l Bank of Ariz. v. Thruston, 218
Ariz. 112, 115, ¶ 14 (App. 2008). Even where the facts are not disputed, as
here, summary judgment is improper “if the evidence of record does not
demonstrate that the movant is entitled to judgment as a matter of law.”
Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, ¶ 12 (App. 2010). We review
de novo the grant of summary judgment. Hourani v. Benson Hosp., 211 Ariz.
427, 432, ¶ 13 (App. 2005).
DISCUSSION
I. A Municipal Corporation is a “Person” Under A.R.S. § 41-1491(9).
¶9 The AFHA provides “[a] person may not discriminate in the
sale or rental or otherwise make unavailable or deny a dwelling to any
buyer or renter because of a disability.” A.R.S. § 41-1491.19. The legislature
adopted the AFHA with the intent to “undertake vigorous steps to provide
equal opportunity in housing; . . . and obtain substantial equivalency with
the federal government’s housing discrimination enforcement efforts.”
1991 Ariz. Sess. Laws, ch. 181, § 1. Therefore, The AFHA defines “person”
as “one or more individuals, corporations, partnerships, associations, labor
organizations, legal representatives, mutual companies, joint stock
companies, trusts, unincorporated organizations, trustees, receivers,
fiduciaries, banks, credit unions and financial institutions.” A.R.S. § 41-
1491(9). Tempe argues that, as a municipal corporation, it is not a “person”
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Opinion of the Court
within the meaning of A.R.S. § 41-1491(9), and therefore is not subject to the
AFHA. We review de novo issues of statutory construction. BMO Harris
Bank, N.A. v. Wildwood Creek Ranch, L.L.C., 236 Ariz. 363, 365, ¶ 7 (2015).
¶10 When interpreting a statute, we initially look to the language
of the statute itself as the most reliable indicator of the legislature’s intent.
Bilke v. State, 206 Ariz. 462, 464, ¶ 11 (2003); Walker v. City of Scottsdale, 163
Ariz. 206, 209 (1989). And, “when the language is clear and unambiguous,
and thus subject to only one reasonable meaning, we apply the language
without using other means of statutory construction.” Baker v. Univ.
Physicians Healthcare, 231 Ariz. 379, 383, ¶ 8 (2013).
¶11 The AFHA expressly defines “person” to include
“corporations.” A.R.S. § 41-1491(9). Although a municipal corporation is
not specifically included as a “person,” the term “corporation” is commonly
understood to include municipal corporations. See Braden ex rel. Gabaldon
v. State, 228 Ariz. 323, 327, ¶ 14 (2011) (noting “the term ‘corporation’ may
embrace both private and public entities”); Sumid v. City of Prescott, 27 Ariz.
111, 114-16 (1924) (holding the term “corporation” under Employers’
Liability Law applies to municipal corporations). Therefore, the plain
language of the statute includes Tempe as a “person” intended to be
regulated under the AFHA.
¶12 We are further persuaded in this regard by federal law
indicating a corporation is a “person” within the meaning of the AFHA. See
Canady v. Prescott Canyon Estates Homeowners Ass’n, 204 Ariz. 91, 93 n.3, ¶ 9
(App. 2002) (stating federal case law interpreting similar provisions of the
FHA is persuasive in interpreting the AFHA) (citations omitted); see also
Hartford Accident & Indem. Co. v. Ariz. Dep’t of Transp., 172 Ariz. 564, 568
(App. 1992) (“When our legislature models a statute after that of the federal
government, relevant federal judicial interpretations are persuasive in
interpreting the Arizona statutory counterpart . . . if the construction given
by the federal courts is based on the same wording.”) (citing SCA Constr.
Supply v. Aetna Cas. & Sur. Co., 157 Ariz. 64, 66 (1987)).6 When the AFHA
was enacted, it was well-established under federal case law that
municipalities are included in the FHA definition of “person.” Keith v.
6 The AFHA includes three entities in its definition of “person” not
found within the FHA version — banks, credit unions, and financial
institutions — and omits bankruptcy trustees. Compare A.R.S. § 41-1491(9)
with 42 U.S.C. § 3602(d). However, both include “corporations” within their
definition.
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Opinion of the Court
Volpe, 858 F.2d 467, 482 (9th Cir. 1988) (“The [FHA] applies to
municipalities.”); United States v. City of Parma, 661 F.2d 562, 571-72 (6th Cir.
1981) (holding a municipality is a “person” that could be sued under the
FHA); United States v. City of Black Jack, 508 F.2d 1179, 1183-84 (8th Cir. 1974)
(same); see also Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013, 1020
n.8 (7th Cir. 1978) (“The Village is a municipal corporation, and we see no
reason . . . to construe [the FHA] to exclude that type of corporation.”),
abrogated on other grounds, Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th
Cir. 1990).
¶13 Tempe contends, however, that the legislature can
differentiate between public and private entities in statutes, and because it
did not specifically include both, the legislature intended to exclude
municipalities from the definition of “person” under the AFHA. See Braden,
228 Ariz. at 327, ¶ 16 (noting courts may not extend liability to entities
“‘who do not fall within the categories of potential defendants described by
the statute’”) (quoting Hagert v. Glickman, Lurie, Eiger & Co., 520 F. Supp.
1028, 1034 (D. Minn. 1981)). We do not find Braden controlling or instructive
here. In Braden, our supreme court interpreted the statutory definition of
“enterprise” to determine whether the State could be a defendant to an
action brought under the Adult Protective Services Act, which was not
modeled after a federal statutory scheme. 228 Ariz. at 326, ¶ 10. Here, we
do not consider whether Tempe is a “legal entity,” but rather, whether it is
a “corporation” within the AFHA’s definition of “person.” Indeed, Braden’s
holding is limited to the proposition that the legislature specifically
mentions public actors “when it intends their inclusion in a list that uses the
general category of ‘legal entity.’” Id. at 327, ¶ 15. Moreover, the Braden
majority specifically acknowledges that the term “corporation” logically
may include both public and private entities. Id. at ¶ 14.
¶14 Tempe further contends that other articles within the Arizona
Civil Rights Act, A.R.S. §§ 41-1401 to -1493.04, of which the AFHA is
included, list public entities within their respective definitions of “person,”
evidencing the legislature’s ability to do so when it intends. We do not find
this point persuasive where the language of the statute at issue closely
mimics its federal counterpart.
¶15 Accordingly, we hold that a municipal corporation is a
“person” within the meaning of A.R.S. § 41-1491(9). We also conclude
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Opinion of the Court
Chavez, as an individual, is a proper respondent.7 See A.R.S. § 41-1491(9)
(defining “person” to include “one or more individuals”).
II. Tempe Engages in Conduct Subject to the AFHA.
¶16 The AFHA provides “[a] person may not discriminate in the
sale or rental or otherwise make unavailable or deny a dwelling to any
buyer or renter because of a disability of . . . that buyer or renter.” A.R.S.
§ 41-1941.19(A)(1). It is undisputed that Tempe, through THS, does not
participate in the direct sale or rental of housing. The question, though, is
whether its administration of the HCVP is such an action that might
“otherwise make unavailable or deny a dwelling” to a person. We review
this question de novo. BMO Harris, 236 Ariz. at 365, ¶ 7.
¶17 The HCVP is a federal program intended to assist low-income
families, the elderly, and the disabled in affording “decent, safe, and
sanitary housing” through the provision of rental subsidies. 24 C.F.R.
§ 982.1(a)(1). The program is generally administered by State or local
governmental entities, such as THS, called public housing agencies. Id. The
public housing agencies determine an applicant’s eligibility for the
program and whether the applicant’s rental unit meets certain quality
standards. Id. § 982.1(a)(1)-(2), (b)(2). If an applicant gains approval, the
public housing agency contracts with the owner of the approved housing
property to make rent payments on the person’s behalf. Id. § 982.1(a)(2),
(b)(2). The funds for the rental subsidies are provided to the public housing
agencies by HUD. Id. § 982.1(a)(1).
¶18 The purpose of the HCVP is to help eligible persons obtain
housing they would otherwise be unable to afford. As a practical matter,
denying an application to participate in the program has the ultimate effect
of making certain dwellings “otherwise unavailable” to applicants.
Therefore, the administration of the HCVP, which includes the authority to
grant or deny assistance, is an activity that renders the AFHA applicable to
public housing agencies like THS. See Hinneberg v. Big Stone Cnty. Hous. &
Redevelopment Auth., 706 N.W.2d 220, 224-25 (Minn. 2005) (concluding “the
broad phrase in the FHA[] — ‘to otherwise make unavailable or deny’ a
dwelling — makes the FHA[] applicable to public housing authorities
administering [federal] housing voucher programs”).
7 We take no position on the merits of Chavez’s potential liability.
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Opinion of the Court
III. The AAG Did Not Err by Refusing to Summarily Dismiss
Bircher’s Complaint.
¶19 Tempe argues the AAG acted arbitrarily and capriciously by
declining to dismiss Bircher’s complaint. We review the AAG’s decision to
continue its investigation of Tempe de novo to determine whether it was
supported by law, or whether it was arbitrary, capricious or an abuse of
discretion. Sharpe v. AHCCCS, 220 Ariz. 488, 492, ¶ 9 (App. 2009).
¶20 Bircher’s amended complaint against Tempe alleged the
following: In July 2011, Bircher applied for a housing voucher from THS.
In mid-August 2011, THS informed Bircher by letter that his application
had been lost and directed him to file a new one. When he visited THS to
resubmit his application, Chavez refused to accept the resubmission, and
ordered him to leave, eventually contacting the police who escorted Bircher
from the premises. Bircher alleged the ultimate denial of his application
was the result of his disability.
¶21 When the AAG initiated an investigation into Bircher’s
complaint, Tempe argued it did not engage in activities covered by the
AFHA, an argument we have rejected above. In addition, Tempe provided
the AAG with two documents it believed refuted Bircher’s allegations: an
affidavit from Chavez that stated the underlying incident never occurred,
and a workplace injunction against harassment ordering Bircher to stay
away from the THS premises. Based upon this documentation, Tempe
argued that even had the incident occurred, any actions by its employees
were fully justified, and could not form the basis of a complaint that Bircher
was deprived of housing because of his disability. The AAG declined to
dismiss the complaint without completing the investigation.
¶22 The AAG is tasked with administering the AFHA. A.R.S.
§ 41-1491.07. To this effect, “[t]he attorney general shall receive, investigate,
seek to conciliate and act on complaints alleging violations of th[e AFHA].”
A.R.S. § 41-1491.09; see also A.R.S. § 41-1491.22(A) (“The attorney general
shall investigate alleged discriminatory housing practices.”). Once a
complaint has been filed, the AAG is mandated to “promptly investigate
the allegations set forth in the complaint.” A.R.S. § 41-1491.24(A)-(B); see
also Ariz. Admin. Code (A.A.C.) R10-2-120(A). The mandate applies to “all
complaints.” A.R.S. § 41-1491.24(B).
¶23 The purpose of the investigation is to “[o]btain information
concerning the events . . . identified in the complaint,” “[d]ocument policies
or practices of the respondent,” and “[d]evelop factual data” necessary to
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Opinion of the Court
determine whether the fair housing act has been violated. A.A.C. R10-2-
120(A). In furtherance of this purpose, the AAG is authorized to
“propound[] interrogatories, conduct[] formal and informal interviews of
witnesses, conduct[] on-site inspections of the property and dwelling, and
issu[e] subpoenas and subpoenas duces tecum.” A.A.C. R10-2-120(B).
After completing its investigation, the AAG must consider “the facts
concerning the alleged discriminatory housing practice provided by
complainant and respondent or otherwise disclosed during the
investigation,” and “determine whether reasonable cause exists to believe
that a discriminatory housing practice has occurred or is about to occur.”
A.A.C. R10-2-124; see also A.R.S. § 41-1491.29(A). If the AAG concludes no
reasonable cause exists, it “shall promptly dismiss the complaint and give
written notice of the dismissal” to the parties. A.R.S. § 41-1491.30.
¶24 Based upon this statutory and regulatory framework, the
AAG was within its discretion to continue the investigation beyond receipt
of the documents provided by Tempe. It is the AAG’s duty to investigate
all complaints, and that duty cannot be circumvented by a respondent who
simply denies the claim and unilaterally declares it resolved on the basis of
the limited information the respondent chooses to provide. Tempe has
shown no arbitrary or capricious action by the AAG.
IV. Attorneys’ Fees Award
A. Fees Were Required Under A.R.S. § 12-348.01.
¶25 The AAG sought and was awarded its attorneys’ fees in the
amount of $108,090 pursuant to A.R.S. § 12-348.01, representing
approximately 360 hours at $300 per hour. Section 12-348.01 provides:
Notwithstanding § 12-348, in addition to any costs that are
awarded by statute, if an agency, department, board or
commission of this state, a city, town or county, governmental
officer acting in the officer’s official capacity or an association
whose membership is primarily composed of governmental
entities files a lawsuit against this state, or an agency,
department, board or commission of this state, a city, town or
county, governmental officer acting in the officer’s official
capacity or an association whose membership is primarily
composed of governmental entities, the court shall award
reasonable attorney fees to the successful party in the action.
A.R.S. § 12-348.01 (emphasis added). Tempe argues the award of fees to the
AAG was error because A.R.S. § 12-348.01 is not applicable here, where its
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Opinion of the Court
complaint for declaratory, injunctive, and special action relief against the
AAG was “arguably” not a lawsuit within the meaning of the statute
because it was prompted by the AAG’s investigation. We review both the
AAG’s entitlement to fees and issues of statutory interpretation de novo.
BMO Harris, 236 Ariz. at 365, ¶ 7; Thompson v. Corry, 231 Ariz. 161, 163, ¶ 4
(App. 2012). Again, “when the language [of a statute] is clear and
unambiguous, and thus subject to only one reasonable meaning, we apply
the language.” Baker, 231 Ariz. at 383, ¶ 8.
¶26 Section 12-348.01 applies if the underlying proceeding was a
“lawsuit.” In the absence of legislative intent to the contrary, we construe
words “according to the[ir] common and approved use.” A.R.S. § 1-213.
The word “lawsuit” is “a vernacular term for a suit.” Cannon v. Hirsch Law
Office, P.C., 222 Ariz. 171, 177, ¶ 19 (App. 2009) (citing In re Barrett Ref. Corp.,
221 B.R. 795, 802-03 (W.D. Okla. 1995), and Black’s Law Dictionary (6th ed.
1991)) (internal quotations omitted). Suit is defined as “[a]ny proceeding
by a party or parties against another in a court of law.” Black’s Law
Dictionary (10th ed. 2014).
¶27 It is clear the filing of Tempe’s complaint seeking declaratory
and special action relief in the superior court initiated an adversary
proceeding, or lawsuit, against the AAG. With that, an award of fees to the
prevailing party was mandatory. A.R.S. § 12-348.01. Accordingly, the trial
court properly found the AAG, as the prevailing party, was entitled to fees.8
B. Calculation of Hourly Rate
¶28 Finally, Tempe argues the trial court erred by calculating the
award of attorneys’ fees based upon a prevailing market rate of $300 per
hour. Tempe contends this hourly rate was not supported by sufficient
evidence. We review the court’s fee award for an abuse of discretion.
Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App.
2006). We will affirm if there is any reasonable basis that supports the trial
8 Tempe argues A.R.S. § 12-348(A)(3) and (4), which preclude the
recovery of attorneys’ fees by the State or state agency, is a more specific
statute that should apply in this situation. The argument ignores the plain
directive by the legislature that A.R.S. § 12-348.01 shall apply
“notwithstanding § 12-348.” For that same reason, we reject Tempe’s
arguments that the hourly rate used to calculate a fee award and the fee
award cap found in A.R.S. § 12-348(E)(2) and (4) are applicable here.
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Opinion of the Court
court’s decision. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9
(App. 2007).
¶29 In State ex rel. Corbin v. Tocco, this Court held that the
prevailing market rate standard shall be used to calculate the State’s
reasonable attorneys’ fees when represented by the AAG. 173 Ariz. 587,
591-92 (App. 1992) (citing Illinois v. Sangamo Constr. Co., 657 F.2d 855, 861-
62 (7th Cir. 1981)); see Kadish v. Ariz. State Land Dep’t, 177 Ariz. 322, 331-32,
(App. 1993) (citing Arnold v. Ariz. Dep’t of Health Servs., 160 Ariz. 593, 608
(1989)). A determination of the prevailing market rate requires
consideration of “the difficulty and quality of the work performed, the
experience and reputation of counsel, and the nature and significance of the
result.” Kadish, 177 Ariz. at 332.
¶30 Here, the AAG supported its application for attorneys’ fees
with an affidavit adequately explaining the basis for the fee request and the
appropriateness of a prevailing market rate of $300 per hour. Specifically,
the affidavit explained that in 2001, the individual hourly rate of assistant
attorneys general with fifteen or more years of experience was $185; an
attached 2013 Arizona State Bar study found hourly billing rates had risen
at a rate of 3.5% per year since 2001. Based upon these numbers, adjusted
slightly upward, the AAG calculated $300 as a reasonable hourly rate of
compensation for the two assistant attorneys general that worked on the
matter.
¶31 The rate advanced by the AAG is supported by the
documentation. Of the two assistant attorneys general who submitted
billing statements, one had over fourteen years of experience, and one had
more than twenty-five years of experience. The State Bar study reported a
mean hourly billing rate for attorneys with eleven to fifteen years’
experience at $279, while attorneys with greater than twenty-five years’
experience had a mean hourly billing rate of $320. As the two attorneys
billed for nearly identical hours, a $300 average hourly rate was in line with
the average market rate.
¶32 Once the AAG established an entitlement to fees and met the
minimum requirements in an application and affidavit, the burden shifted
to Tempe to demonstrate the impropriety or unreasonableness of the
requested fees.9 Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216, 223,
9 Tempe does not contend on appeal that the AAG’s attorneys’ fee
affidavit was deficient. See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183,
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Opinion of the Court
¶ 29 (App. 2012) (citing Corbin, 173 Ariz. at 594). But Tempe offered no
evidence or persuasive argument to controvert the reasonableness of the
hourly rate provided by the AAG. See Corbin, 173 Ariz. at 594 (noting
opposing party cannot simply claim that the rates submitted are too high)
(citing Arizona v. Maricopa Cnty. Med. Soc’y, 578 F. Supp. 1262, 1264 (D. Ariz.
1984)).
¶33 Tempe instead contends the hourly rate for the AAG should
be capped at $175 to remain consistent with Thompson, 231 Ariz. at 163, ¶ 3.
We disagree. The Thompson court adopted an hourly fee of $175, pursuant
to A.R.S. § 25-324 and Arizona Rule of Family Law Procedure 92(E)(2), to
award fees to a party represented by counsel on a pro bono basis. Id. at 167,
¶ 22. However, the opposing party did not contest that $175 was the
prevailing market rate, and there is no discussion to provide guidance as to
the appropriateness of this amount. Moreover, Thompson addressed the
prevailing market rate for representation in family court, and Tempe has
not illustrated that such services are similar to the type of representation
provided by the AAG here. Id. at 162, 167, ¶¶ 1, 22 (noting hourly rate
should be calculated in reference to “the prevailing market rate in the
community for similar services”).
¶34 To summarize, the AAG was entitled to an attorneys’ fee
award under A.R.S. § 12-348.01, and Tempe does not dispute that the
$108,090 award was calculated correctly when based upon a prevailing
market rate of $300 per hour. Because a reasonable basis existed for the
prevailing market rate, and by extension, the total award, we affirm the trial
court’s fee award. See Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265,
¶ 18 (App. 2004) (“An award of attorney fees is left to the sound discretion
of the trial court and will not be reversed on appeal absent an abuse of
discretion.”); Hale v. Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, 117, ¶ 20
188 (App. 1983) (requiring under Arizona law a fee application be
supported by an affidavit that indicates “the type of legal services provided,
the date the service was provided, the attorney providing the service, . . .
and the time spent in providing the service”). Nor does Tempe adequately
contend the hours billed were excessive, as it only generally argues on
appeal that the hours were excessive because the case lasted approximately
one year and was settled on cross-motions for summary judgment. A party
opposing a fee request does not meet its burden “‘merely by asserting broad
challenges to the [fee] application.’” In re Indenture of Trust Dated Jan. 13,
1964, 235 Ariz. 40, 53, ¶ 47 (App. 2014) (quoting Corbin, 173 Ariz. at 594).
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(App. 1998) (“We will not disturb the trial court’s discretionary award of
fees if there is any reasonable basis for it.”).
CONCLUSION
¶35 For the foregoing reasons, we affirm both the trial court’s
grant of summary judgment and its award of attorneys’ fees in favor of the
AAG.
¶36 The AAG requests its costs and reasonable attorneys’ fees on
appeal pursuant to A.R.S. § 12-348.01. As the prevailing party and
consistent with our holding, we grant the AAG’s request subject to
compliance with ARCAP 21(b).
:ama
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