Civil Procedure—Right of Prevailing Party to Attys’ Fees under ARS 12-341.01, Trial Court Discretion/ Citing Unpublished Opinions/Taxable Costs

Motzer v. Escalante, 622 Ariz. Adv. Rep. 42 (App. Div. II, November 22, 2011) (J. Howard) TRIAL COURT MAY DENY “PREVAILING” PARTY AWARD OF ATTYS’ FEES FOR MANY REASONS WITH WIDE DISCRETION/UNPUBLISHED OPINIONS SHOULD NOT BE CITED AND ARE NOT BINDING/TAXABLE COSTS INCLUDE TRANSCRIPTION AND COPYING OF DEPOSITIONS BUT NOT JURY NOTEBOOKS WHICH TRIAL COURT “ENCOURAGED” BE PREPARED BUT DID NOT “ORDER” BE PREPARED Plaintiff sued defendant regarding a construction remodeling job and defendant counterclaimed. Plaintiff won on some theories, lost on others and defendant lost on its counterclaims. Plaintiff was found by the trial court to be the prevailing party but trial court denied plaintiff’s request for attorneys’ fees under ARS sec. 12-341.01—the dispute having arisen out of contract. . The Arizona Court of Appeals affirmed and reversed on a taxable cost issue. The court of appeals found that the trial court has very wide discretion in considering whether or not to award attorneys’ fees under ARS sec. 12-341.01. Here the trial court orally acknowledged it had considered the factors outlined in Associated Indem. Corp. v. Warner, 143 Ariz. 567, 569, 694 P.2d 1181, 1183 (1985) including the merits of each side in the case, settlement offers by the defendant and the failure of the parties to mediate or otherwise seek alternative dispute resolution. The court summarily rebuked appellant for citing an unpublished decision. Finally, the court held that while transcription and copying of depositions for trial constitutes a cost associated with depositions and therefore taxable, costs associated with the production of jury notebooks “strongly encouraged” by minute entry of the court but never strictly ordered to be completed, are not taxable. By: Ted Schmidt