§ 4.3.4 EXCEPTIONS

• Jurisdiction: Arizona

§ 4.3.4 Exceptions

Despite the broad categories enumerated in A.R.S. § 12-348(A), some proceedings are excluded. A.R.S. § 12-348(H). The exempted proceedings in this section are all inclusive; "the legislature must specifically list a class of proceedings in subsection (H) for those proceedings to be exempted from the fee provision." Roubos v. Miller, 214 Ariz. 416, 420, ¶ 19, 153 P.3d 1045, 1049 (2007).

First, the statute does not apply to "an action arising from a proceeding" before the state or a city, town, or county, in which the government's role "was to determine the eligibility or entitlement of an individual to a monetary benefit or its equivalent, or to adjudicate a dispute or issue between private parties or to establish or fix a rate." A.R.S. § 12-348(H)(1). An example of the state's role in adjudicating a dispute between private parties can be found in Wildwood Hills Mobile Home Park v. Arizona Dep't of Bldg. & Fire Safety, 180 Ariz. 443, 885 P.2d 131 (App. 1994). In Wildwood Hills, a group of tenants filed a petition against their mobile home park seeking a hearing with the Department of Building and Fire Safety on a number of complaints. A hearing officer granted a rent reimbursement to the tenants and the park appealed. Although the court of appeals reversed the hearing officer's decision, it declined to award attorneys' fees because it concluded the state's role was to adjudicate a dispute or issue between private parties. Phelps Dodge Corp. v. Arizona Elec. Power Coop., Inc., 207 Ariz. 95, 83 P.3d 573 (App. 2004), discussed the exception contained in A.R.S. § 12-348(H)(1) for actions to establish or fix a rate. Because the role of the Corporation Commission in granting a certificate of convenience and necessity was to establish rates, the appellate court held that the superior court erred in granting fees to the prevailing electric cooperative utilities for successfully adjudicating claims pertaining to the certificates of convenience and necessity as this issue fell within the exception in A.R.S. § 12-348(H)(1) for an "action arising from a proceeding . . . in which the role of this state . . . was . . . to establish or fix a rate."

The Registrar of Contractors was found not entitled to this exemption in Mission Hardwood Co. v. Registrar of Contractors, 149 Ariz. 12, 716 P.2d 73 (App. 1986) (citing former A.R.S. § 12-348(F)(1)). In that case, a home buyer filed a complaint with the Registrar against the contractor who built his home. The court found that the Registrar's role as a party whose interest was to protect the public welfare and to pursue the administrative proceeding against the contractor meant that its role was not to adjudicate a dispute between private parties.

The exemption for agency proceedings to determine eligibility or entitlement to a monetary benefit or its equivalent applies to situations when the party is "seeking the payment of money or its equivalent from a government agency." Cortaro Water Users' Ass'n v. Steiner, 148 Ariz. 314, 319, 714 P.2d 807, 812 (1986) (citing former A.R.S. § 12-348(G)(1)); see Marlar v. State, 136 Ariz. 404, 666 P.2d 504 (App. 1983). This exemption is not intended to apply to "situations of economic impact alone," Cortaro, 148 Ariz. at 319, 714 P.2d at 812, and does not apply to actions challenging an agency's jurisdiction. American Cable Television, Inc. v. Arizona Pub. Serv. Co., 143 Ariz. 273, 693 P.2d 928 (App. 1983) (citing former A.R.S. § 12-348(F)(1)).

Second, proceedings brought by the state, or a city, town or county under the Arizona Criminal Code (Title 13) and the Motor Vehicle...