IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

STAN McMURRAY and CHARLOTTE

McMURRAY, husband and wife,

Plaintiffs/Appellees/

Cross-Appellants,

v.

DREAM CATCHER USA, INC., an

Arizona corporation,

Defendant/Appellant/

Cross-Appellee.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

2 CA-CV 2007-0165

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. CV200700357

Honorable Stephen F. McCarville, Judge

AFFIRMED

The Kolesik Law Group, P.L.L.C.

 By Ivan Kolesik Jr.

Struckmeyer & Wilson

 By Christopher J. Wilson and Marc S. Windtberg

Goodyear

Attorneys for Plaintiffs/

Appellees/Cross-Appellants

Phoenix

Attorneys for Defendant/

Appellant/Cross-Appellee

V Á S Q U E Z, Judge.

JAN 30 2009

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO
2

¶1 In this action pursuant to the Purchaser Dwelling Actions Act (“the Act”),

A.R.S. §§ 12-1361 through 12-1366, defendant/appellant Dream Catcher USA, Inc. (“Dream

Catcher”) appeals from the trial court’s order denying its request for attorney fees following

the court’s dismissal of the lawsuit filed by Stan and Charlotte McMurray. On cross-appeal,

the McMurrays argue the court erred in granting Dream Catcher’s motion to dismiss. For the

reasons that follow, we affirm the trial court’s denial of Dream Catcher’s request for attorney

fees and dismiss the McMurrays’ cross-appeal for lack of jurisdiction.

Facts and Procedural Background

¶2 “In our review of a motion to dismiss, we must accept all material facts as

alleged by the non-moving party as true.” Sun World Corp. v. Pennysaver, Inc., 130 Ariz.

585, 586, 637 P.2d 1088, 1089 (App. 1981). In November 2003, the McMurrays entered into

a contract to have Dream Catcher construct a residence for them in Pinal County. In August

2006, after multiple construction problems, the McMurrays filed a complaint with the

Arizona Registrar of Contractors. In response, Dream Catcher offered to perform repairs to

correct the defects the McMurrays had alleged. Although Dream Catcher subsequently

repaired some of the defects to the McMurrays’ satisfaction, other defects remained. The

McMurrays filed an amended complaint with the Registrar after hiring a construction expert

who discovered additional defects. In February 2007, they filed this lawsuit in Pinal County

Superior Court, alleging breach of contract and of an implied covenant of good faith and fair

dealing, breach of implied warranty of workmanship, breach of implied warranty of
3

habitability and fitness of purpose, breach of express warranty, fraud, consumer fraud,

intentional and negligent misrepresentation, and estoppel.

¶3 Dream Catcher moved to dismiss, arguing the McMurrays had failed before

filing the lawsuit to provide it with notice and an opportunity to repair pursuant to the Act.

In response, the McMurrays argued that their complaint filed with the Registrar and Dream

Catcher’s subsequent efforts to make repairs were sufficient to comply with the Act’s

requirements. The trial court granted Dream Catcher’s motion, dismissing the case without

prejudice and requiring each party to pay its own costs and attorney fees.

Discussion

Jurisdiction

¶4 Although neither party has raised the issue, this court has an independent duty

to determine whether it has jurisdiction over an appeal. Davis v. Cessna Aircraft Corp., 168

Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991). “The general rule is that an appeal lies

only from a final judgment.” Id.; see also A.R.S. § 12-2101. Because it is not a final

judgment, “[a] dismissal without prejudice is not appealable and for that reason alone [an]

appeal of [such an] order should be dismissed.” L.B. Nelson Corp. of Tucson v. W. Am. Fin.

Corp., 150 Ariz. 211, 217, 722 P.2d 379, 385 (App. 1986). Here, the trial court dismissed

the McMurrays’ claims without prejudice, and they do not argue the statute of limitations

barred the refiling of any of the claims so that the court’s order “in effect determine[d] the

action and prevent[ed] final judgment from which an appeal might [have] be[en] taken.” See
The eight-year limitations period for the McMurrays’ claims under the Act had not 1

run when the action was dismissed. A.R.S. § 12-552; see Lofts at Fillmore Condo. Ass’n v.

Reliance Commercial Constr., Inc., 218 Ariz. 574, n.4, 190 P.3d 733, 737 n.4 (2008) (noting

§ 12-552 imposes eight-year statute of limitations from substantial completion of dwelling,

regardless whether defective construction discovered during that period); see also § 12-

1363(H) (purchaser’s notice under Act “tolls the applicable statute of limitations, including

section 12-552, until ninety days after the seller receives the notice or for a reasonable period

agreed to in writing by the purchaser and seller”). And, to the extent any of the McMurrays’

claims are covered by other statutes of limitations, because they have not raised the issue on

appeal, we are “‘poorly situated . . . to decide . . . whether a statute of limitation has run to

the point of barring an action.’” Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, n.4, 151

P.3d 1267, 1271 n.4 (App. 2007), quoting Mesa v. United States, 61 F.3d 20, 22 n.6 (11th

Cir. 1995) (first alteration added). In particular, we lack sufficient information to determine

when these claims accrued and, therefore, whether the McMurrays would have been barred

from refiling them, thus giving the trial court’s order the effect of a final judgment.

Moreover, even time-barred claims may be resurrected under Arizona’s savings statute. See

A.R.S. § 12-504(A).

4

State ex rel. Hess v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914). See also 1

§ 12-2101(D) (appeal may be taken from “any order affecting a substantial right made in any

action when the order in effect determines the action and prevents judgment from which an

appeal might be taken”). We therefore lack jurisdiction over the McMurrays’ cross-appeal.

¶5 However, a dismissal without prejudice “may be ‘final’ for the purpose of an

award of attorney fees,” Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, ¶ 10, 151 P.3d 1267,

1270 (App. 2007), when a defendant’s request for reimbursement would otherwise “be left

to turn upon a plaintiff’s later decision as to whether he will abandon his claim or commence

a new action,” Callanan v. Sun Lakes Homeowners’ Ass’n # 1, Inc., 134 Ariz. 332, 336-37,

656 P.2d 621, 625-26 (App. 1982). We thus consider Dream Catcher’s appeal on the issue

of attorney fees.
A dwelling action is “any action brought by a purchaser against the seller of a 2

dwelling arising out of or related to the design, construction, condition or sale of the

dwelling.” A.R.S. § 12-1361(4).

5

Attorney fees

¶6 Dream Catcher argues the trial court erred in denying its request for attorney

fees because it was entitled to a mandatory award of such fees pursuant to § 12-1364. In

reviewing a trial court’s decision to deny attorney fees, we view the record in the light most

favorable to sustaining that decision and will uphold the court’s findings unless they are

clearly erroneous. Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 31, 20 P.3d 1158, 1168

(App. 2001). In the absence of express findings, we may deem any necessary findings to be

implied in the court’s judgment. Id. ¶ 34. To the extent a trial court’s decision involved a

matter of statutory interpretation, our review is de novo. See 4501 Northpoint LP v.

Maricopa County, 212 Ariz. 98, ¶ 9, 128 P.3d 215, 217 (2006).

¶7 In Arizona there is no general right to an award of attorney fees; thus, a court

may award such fees “only when expressly authorized by contract or statute.” Burke v. Ariz.

State Ret. Sys., 206 Ariz. 269, ¶ 7, 77 P.3d 444, 447 (App. 2003). And, “it is generally held

that a party seeking a right or benefit under a statute bears the burden of proving that he

comes within the ambit of the statute,” Harvest v. Craig, 195 Ariz. 521, ¶ 15, 990 P.2d 1080,

1083 (App. 1999), and is entitled to such an award. Woerth v. City of Flagstaff, 167 Ariz.

412, 419, 808 P.2d 297, 304 (App. 1990).

¶8 Section 12-1364 provides in part that, “[i]n any contested dwelling action, the

court shall award the successful party reasonable attorney fees.” Accordingly, the 2
Because we decide this case on different grounds, we need not address whether, as 3

McMurray contends, the complaint filed with the Registrar and Dream Catcher’s attempts

to repair constitute proper notice under the Act. We note that Dream Catcher challenged this

proposition below and on appeal.

6

dispositive issue is whether Dream Catcher is a “successful party” as contemplated by this

section. In construing a statute, our “primary goal . . . is to give effect to the intent of the

legislature.” Cornman Tweedy 560, LLC v. City of Casa Grande, 213 Ariz. 1, ¶ 8, 137 P.3d

309, 311 (App. 2006). “The language of a statute is the most reliable evidence of its intent.”

 Walker v. City of Scottsdale, 163 Ariz. 206, 209, 786 P.2d 1057, 1060 (App. 1989).

Furthermore, “the words of a statute must be construed in conjunction with the full text of

the statute.” Golder v. Dep’t of Revenue, 123 Ariz. 260, 265, 599 P.2d 216, 221 (1979).

¶9 Here, the Act requires a purchaser to provide written notice of alleged defects

prior to filing an action. The seller must respond within sixty days and may include in its

response “an offer to repair or replace any alleged defects, to have the alleged defects

repaired or replaced at the seller’s expense or to provide monetary compensation to the

purchaser.” § 12-1363. Section 12-1364 defines “successful party” only in terms of the

disparity between such an offer and the final judgment. If the seller’s offer “is rejected and

the judgment finally obtained is less than or less favorable to the purchaser than the offer,”

the seller is deemed to be the successful party. § 12-1364. In other words, whether a party

is “successful” is determined following a final resolution of the purchaser’s underlying claim.

¶10 The trial court found that the McMurrays had failed to provide notice to Dream

Catcher as required under the Act and, by implication, that there was no corresponding offer.3
7

See Rowland, 199 Ariz. 577, ¶ 34, 20 P.3d 1158 at 1168. In any event, the underlying claims

have not been finally resolved because the court dismissed the lawsuit without prejudice.

Consequently, Dream Catcher could not be a “successful party” as contemplated by § 12-

1364. Based on the plain language of the Act, we agree with the trial court’s conclusion.

See Cornman Tweedy, 213 Ariz. 1, ¶ 8, 137 P.3d at 311; Walker, 163 Ariz. at 209, 786 P.2d

at 1060.

¶11 Dream Catcher nevertheless contends that, for the purpose of an award of

attorney fees, “a party is a ‘successful party’ after obtaining a dismissal without prejudice.”

In support of its argument, Dream Catcher relies on Mark Lighting Fixture Co., Inc. v. Gen.

Elec. Supply Co., 155 Ariz. 65, 67, 745 P.2d 123, 125 (App. 1986). However, that case was

vacated by our supreme court, which declined on review to reach this issue in the context of

a different statute. 155 Ariz. 27, 32, 745 P.2d 85, 90 (1987) (declining to resolve “whether

attorneys’ fees may be awarded under A.R.S. § 12-341.01 where the complaint is not

disposed of on the merits”).

¶12 Dream Catcher also cites Harris v. Reserve Life Ins. Co., 158 Ariz. 380, 385,

762 P.2d 1334, 1339 (App. 1988), in support of its position. Its reliance on Harris is

misplaced for two reasons. First, that case involved an award of costs under A.R.S. § 12-

341, not attorney fees under § 12-1364. Where a statute’s language is “clear and

unequivocal,” we do not consider other sources, such as decisions construing arguably

analogous statutes. See Lowing v. Allstate Ins. Co., 176 Ariz. 101, 103-04, 859 P.2d 724,

726-27 (1993). Second, to the extent the relevant part of the Harris decision itself relied on
8

Mark Lighting, it did so inappropriately. “Vacated cases have no precedential value.”

Wertheim v. Pima County, 211 Ariz. 422, n.2, 122 P.3d 1, 5 (App. 2005). Dream Catcher

has therefore failed to establish it was a “successful party” under the Act. We thus find no

error in the court’s requiring each party to pay its own attorney fees.

Disposition

¶13 For the reasons stated above, we dismiss the McMurrays’ cross-appeal and

affirm the trial court’s judgment with respect to attorney fees. Because neither party has

prevailed on its respective claims, we deny both parties’ requests for an award of attorney

fees on appeal. See Kaman Aerospace v. Ariz. Bd. of Regents, 217 Ariz. 148, ¶¶ 37-38, 171

P.3d 599, 609 (App. 2007).

____________________________________

GARYE L. VÁSQUEZ, Judge

CONCURRING:

____________________________________

PETER J. ECKERSTROM, Presiding Judge

____________________________________

J. WILLIAM BRAMMER, JR., Judge