Attorneys’ Fees ARS §12-341.01; Rule 68 Sanctions; Berry v. 352 E Virginia LLC, 1 CA-CV 09-0630 (06-Oct-2011)

Guy W. Bluff, Esq.

Detailed analysis by the Court relating to discretionary award of attorneys fees pursuant to ARS §12-341.01 and analysis of award of Rule 68 Sanctions when considering “judgment finally obtained.”

Determination of the prevailing party for purposes of award of attorneys fees pursuant to ARS §12-341.01 is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Appellate court will accord deference to the trial court pursuant to §12-341.01 because trial court is better able to evaluate the parties’ positions during the litigation and to determine which party has prevailed. When a case involves several claims based upon different facts or legal theories, the trial court may decline to award fees for those unsuccessful separate and distinct claims.
For purposes of determining an award of awarding attorneys fees pursuant to competing ARS §12-341.01 and Rule 68 offers, the “judgment finally obtained / more favorable judgment” includes the award of damages, plus taxable costs, plus any prejudgment interest.

Lastly, the court held that in order for a party to preserve its right to seek attorneys fees pursuant to a contractual provision (as opposed to a discretionary award pursuant to §12-341.01) requires specific pleading and proof. A general request for attorneys’ fees in the complaint or answer is not sufficient to support an award following trial and the trial court may properly disregard the contractual provisions when making a discretionary award.

Practice Pointer.

When drafting the Complaint and Answer, if there is are specific contractual provision upon which the parties may seek an award of attorneys fees, taxable costs, expenses, or other costs of collection, it is important to specifically plead that provision in the Complaint or Answer and in the prayer for relief in addition to any statutory provisions that might support such an award. For a typical construction contract, prompt pay act, and mechanic’s lien foreclosure complaint the language might be:

Plaintiff requests that this court determine it to be the prevailing party and award its reasonable attorneys fees pursuant to Contract sections 8(a), 14(d), and 15(c), and pursuant to ARS §12-341.01, §32-1129.01(S), §33-998(B) and any other statutory authority which may be applicable in the circumstances.

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Posted in Arizona, Arizona Prompt Pay Act, Attorneys Fees, Mechanic Liens, Rule 68 Sanctions