04/29/2013 — LC2013000086 HOMEOWNERS ASSOCIATION INC, COLONY BILTMORE-GREENS 04/29/2013 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Filed ***
05/02/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
COLONY BILTMORE-GREENS
HOMEOWNERS ASSOCIATION INC
BETH MULCAHY
v.
SUSAN H GRANT (001)
SUSAN H GRANT
5301 N 25TH PL
PHOENIX AZ 85016
ARCADIA BILTMORE JUSTICE
COURT
REMAND DESK-LCA-CCC
RECORD APPEAL RULING / REMAND
Lower Court Case No. CC2012004442 RC.
Defendant-Appellant Susan H. Grant (Defendant) appeals the Arcadia Biltmore Justice
Court’s determination that she was responsible for Plaintiff’s attorneys’ fees. Defendant contends
the trial court erred. For the reasons stated below, the court affirms in part and reverses in part
the trial court’s judgment.
I. FACTUAL BACKGROUND.
On January 9, 2012, Plaintiff—Colony Biltmore-Greens HOA—filed a complaint alleging
Defendant failed to pay all of her mandatory expenses and delinquent assessments to the
association. Plaintiff alleged Defendant owed assessments and late fees totaling $773.00 plus
attorneys’ fees of $897.18. Defendant responded to the Complaint and denied owing the money.
She claimed she lacked sufficient information and belief to identify the charges Plaintiff claimed.
For several months the parties engaged in e-mail and mail correspondence about the alleged
debt. Defendant contested the original $773.00 Plaintiff claimed and asserted the assessments
were a combination of four unknown charges: (1) $345.00 listed on September 1, 2011, as a
balance forward after the balance forward was listed as $0.00 for August 31, 2011; (2) the
payment records for September 1, 2011; (3) a $150 late notice fee; and (4) an additional $279.18
for legal fees. Plaintiff requested attorneys’ fees pursuant to the CC&Rs as well as A.R.S. §12–
341.01.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 2
The parties disputed assessment payments for the next several months. Defendant asserted
she made several payments by electronic transfer and Plaintiff claimed not to have timely
received those payments. The lawsuit continued during this time and Plaintiff posted its ongoing
legal charges to Defendant’s account as further charges for Defendant. Defendant provided
disclosure to Plaintiffs and included copies of bank records showing electronic payments of
monthly assessments during 2011–2012.
In April, 2012, the trial court scheduled a pre-trial conference. Although both parties
appeared at the courthouse, a mix-up occurred and each party waited in a separate area, unaware
of the adverse party’s appearance. The trial court dismissed the action after Plaintiff failed to
appear at the courtroom. Because Plaintiff was able to demonstrate its representative was at the
courthouse, the matter was re-instated. Plaintiff’s counsel then filed an application for attorneys’
fees and costs—despite having no judgment and no finality for the case—requesting fees of
$1,947.50 and $191.68 for costs.
Thereafter, on July 12, 2012, the trial court set the matter for trial on October 19, 2012. On
August 15, 2012,—less than 90 days prior to trial—Plaintiff filed a Motion for Summary
Judgment. Defendant opposed this motion and asserted (1) it was not timely; and (2) Plaintiff
was not entitled to judgment as a matter of law because Plaintiff had not demonstrated it
followed the mandatory requirements for fixing the annual assessments or notifying the
owners/members of the Association. Plaintiff also filed a motion to continue the trial. The trial
court denied Plaintiff’s requested summary judgment on October 2, 2012. In its ruling, the trial
court said:
Case will proceed to trial.
Trial date will remain as scheduled. The Court reviewed Plaintiffs [sic.]
motion for continuance, however, since summary judgment was denied the trial
can still proceed as scheduled unless another continuance is requested.
On October 12, 2012, Defendant paid the principal amount Plaintiff claimed. On October
16, 2012,—three days before the scheduled trial—Plaintiff filed “Plaintiff’s Expedited Motion
for Determination of Damages” and requested the trial court determine damages because
Defendant paid the contested principal amount. Plaintiff alleged the only matter to be resolved
was the award of attorneys’ fees and costs pursuant to the amended CC&Rs. Plaintiff argued the
provision of Article VII, Section 8 required the Owner and Member to pay reasonable attorneys’
fees and costs and claimed the law firm’s fees and costs were “necessary and just” under the
circumstances.1
In granting Plaintiff’s requested “Expedited Motion for Determination of Damages”, the
trial court stated:
In the interests of justice, this trial is hereby vacated. Defendant, Susan
Grant, paid principal amounts owed to Plaintiff & therefore a trial is unnecessary.
1 Plaintiff’s Expedited Motion For Determination of Damages, filed October 16, 2012 at p.5, l.1,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
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Docket Code 512
Form L512
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The only matter left before the Court is the reasonableness of Plaintiff’s
requested attorney’s [sic.] fees & costs. Defendant is hereby given ten (10)
judicial days to respond to Plaintiff’s Motion for Damages.
Defendant responded (1) she had always been open to settlement despite her belief the HOA’s
claims were improper; (2) the “sticking point” was the ever mounting attorneys’ fees; (3)
Plaintiff’s counsel filed unwarranted motions including an untimely motion for summary
judgment and motion to continue trial; (4) Plaintiff was not the successful party to the lawsuit;
(5) Plaintiff voluntarily dismissed its case which the trial court granted without allowing
Defendant the opportunity to respond; (6) the trial court dismissed the case and thereby lost
jurisdiction over the matter so it could no longer award attorneys’ fees; (7) the amended CC&Rs
did not provide for an award of attorneys’ fees as Plaintiff failed to prove any breach of the
CC&Rs or any delinquency in payment; (8) the requested fees were unreasonable as Plaintiff’s
counsel engaged in unnecessary work; (9) the requested fees of $8,250.18 exceeded the amount
claimed in the lawsuit by more than a factor of nine; (10) the claimed fees exceeded the amount
Plaintiff’s counsel published in its webpage for an uncontested delinquent assessment lawsuit;
and (11) Plaintiff’s counsel failed to comply with all of the mandates of Schweiger v. China Doll
Restaurant, Inc., 138 Ariz. 183, P.2d (Ct. App. 1983).2
Counsel, in its Affidavit is Support of Attorneys’ Fees and Costs, alleged its hourly rate was
between $185.00 and $245.00 and claimed it was a reasonable and competitive fee when
compared with other attorneys in the Phoenix area who practiced in the area of condominium
and association law. In Plaintiff’s Reply In Support Of Its Motion For Determination of Damages
and Award of Attorney fes [sic.] counsel asserted: “This firm exclusively practices in the area of
community association law and therefore all attorneys have specialized knowledge in this area.”3
On November 29, 2012, the trial court signed a judgment awarding Plaintiff $9,057.00 for
attorneys’ fees and $336.50 for costs plus interest at the rate of 4.25% on the unpaid balance. On
December 12, 2012, Defendant filed a Motion and Memorandum with the trial court asking the
trial court to explain its ruling and claiming (1) there was no trial to determine if she owed any
money to the Association; (2) the Association never proved it had the authority to assess monthly
fees of $233.00; (3) she had no opportunity to prove she had made every monthly assessment;
and (4) there was no proof that “$9,000+ attorney fees was required throughout the case.” The
trial court summarily denied Defendant’s requested explanation and ruled its order of judgment
remained. The trial court added Defendant “still has the right to appeal” on December 11, 2012.
The following day, Plaintiff filed “Plaintiff’s Motion To Strike Defendant’s Motion To Court To
Provide Explanation of Ruling.”
2 Susan H. Grant’s Declaration in Lieu of Affidavit In Answer to Plaintiff’s Expedited Motion for the Determination
of Damages and In Opposition to Plaintiff’s Application for Attorneys’ Fees and Costs, filed November 1, 2012.
3 Plaintiff’s Reply In Support Of Its Motion For Determination of Damages and Award of Attorney fes [sic.] at p. 6,
l.26 and p. 7, l. 1.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
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Docket Code 512
Form L512
Page 4
Defendant filed a timely appeal. Plaintiff—Colony Biltmore–Greens HOA—filed a
responsive memorandum. This Court has jurisdiction pursuant to ARIZONA CONSTITUTION Art. 6,
§ 16, and A.R.S. § 12–124(A).
II. ISSUES:
A. Is A Party Successful For Purposes Of Attorneys’ Fees Awards When The
Underlying Claim Ends Prior To Trial.
Introduction
Defendant alleged there were three issues for the appellate court to resolve: (1) is an HOA
entitled to recover attorneys’ fees when the trial is vacated because the underlying claim has been
resolved; (2) when the plaintiff HOA withdraws its breach of contract claim prior to trial because
the issue has been resolved, is the HOA the successful party for the purposes of an attorneys’ fee
award; and (3) is the HOA entitled to all of its claimed fees when Defendant alleged some of the
work performed was not necessary. The first two of these claims will be combined into a single
issue because both relate to whether the Plaintiff was entitled to an award of attorneys’ fees in
this case. The second issue relates to the amount of attorneys’ fees the trial court awarded.4
Plaintiff’s claim for attorneys’ fees emanates from A.R.S. §12–341.01 as well as the First
Amendment to Declaration of the Covenants, Conditions and Restrictions for Colony Biltmore-
Greens (Amended CC&Rs), Article VII, Section 8 which states—in relevant part:.
In the event the Association employs an attorney or attorneys for collection
of any assessment, whether by suit or otherwise, or to enforce compliance with or
specific performance of the terms and conditions of this Declaration, or for any
other purpose in connection with the breach of this Declaration each Owner and
Member agrees to pay reasonable attorneys’ fees and costs thereby incurred in
addition to any other amounts due or any other relief or remedy obtained against
said Owner or Member. In the event of a default in payment of any such
assessment when due, in which case the assessment shall be deemed delinquent,
and in addition to any other remedies herein, or by law provided, the Association
may enforce each such obligation in any manner provided by law or in equity, or
without any limitation of the foregoing, by either or both of the following
procedures:. . .
The CC&Rs provide for enforcement by suit or by lien.
. . . .
. . . .
4 This Court recognizes Defendant argued the trial court erred by (1) vacating the scheduled trial without her input;
(2) failing to rule on issues about the Association’s right to fix the annual assessments; and (3) failing to interpret the
provisions of the Declaration. Defendant filed no counterclaim and the trial court was not required to address these
issues.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 5
Standard of Review
Attorneys’ fees are reviewed under a combination of de novo review as well as a review for
an abuse of discretion. In Summers Grp., Inc. v. Tempe Mech., LLC, 1 CA-CV 12-0086, 2013
WL 1136417, ___ Ariz. ___, ¶ 9, ___P.3d___, ¶ 9, 656 Ariz. Adv. Rep, 15 (Ct. App. Mar. 19,
2013) the Arizona Court of Appeals held:
The grant or denial of a request for attorney fees is within the discretion of
the trial court and will not be overturned if it is reasonably supported by the
record. West v. Salt River Agric. Improvement & Power Dist., 179 Ariz. 619, 626,
880 P.2d 1165, 1172 (App.1994). When the application of an attorney fees statute
involves statutory interpretation, we review the trial court's ruling de novo.
Keystone Floor & More, LLC v. Ariz. Registrar of Contractors, 223 Ariz. 27, 29,
¶ 7, 219 P.3d 237, 239 (App.2009) (stating that the standard of review is de novo
when reviewing statutory attorney fees awards arising out of a contract dispute).
Questions of contract interpretation are reviewed de novo. In Burke v. Voicestream Wireless
Corp. II, 207 Ariz. 393, 395-96, ¶ 11, 87 P.3d 81, 83-84, ¶ 11 (Ct. App. 2004) the Arizona Court
of Appeals said:
The interpretation of a contract is generally a matter of law, and we are not
bound by the trial court's conclusions of law. Scholten v. Blackhawk Partners, 184
Ariz. 326, 328, 909 P.2d 393, 395 (App.1995). Likewise, whether a contract is
ambiguous is a question of law that we review de novo. Hartford v. Indus.
Comm'n, 178 Ariz. 106, 111, 870 P.2d 1202, 1207 (App.1994).
The HOA Contract
To analyze Plaintiff’s claim under its HOA contract, this Court will perform a de novo
review but look to the plain meaning of the contract. See, ELM Ret. Ctr., LP v. Callaway, 226
Ariz. 287, 290–91, ¶ 15, 290-91, 246 P.3d 938, 941-42, ¶ 15 (Ct. App. 2010) where the Arizona
Court of Appeals held:
We review issues of contract interpretation de novo. Ahwatukee Custom
Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279
(App.2000). Our purpose in interpreting a contract is to ascertain and enforce the
parties' intent. U S West Commc'ns, Inc. v. Ariz. Corp. Comm'n, 185 Ariz. 277,
280, 915 P.2d 1232, 1235 (App.1996). To determine the parties' intent, we “look
to the plain meaning of the words as viewed in the context of the contract as a
whole.” United Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238, 259, 681 P.2d
390, 411 (App.1983). When the terms of a contract are plain and unambiguous, its
interpretation is a question of law for the court. Chandler Med. Bldg. Partners v.
Chandler Dental Grp., 175 Ariz. 273, 277, 855 P.2d 787, 791 (App.1993). If the
contract language is reasonably susceptible to more than one meaning, extrinsic
evidence may be admitted to interpret the contract. Taylor v. State Farm Mut.
Auto. Ins. Co., 175 Ariz. 148, 158–59, 854 P.2d 1134, 1144–45 (1993).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 6
The HOA contract provided for attorneys’ fees when the HOA employed an attorney to collect an
assessment. Here, the HOA employed counsel to collect an assessment which the HOA
maintained was owed. Ultimately, Defendant paid this assessment. The plain meaning of the
attorneys’ fees provision is that if the Association employs the attorney to collect an assessment,
the Owner or Member agrees to pay reasonable attorneys’ fees and costs in addition to any other
amount due. The exact language of the relevant language in the provision is that “each Owner
and Member agrees to pay reasonable attorneys’ fees and costs thereby incurred in addition to
any other amounts due or any other relief or remedy obtained against said Owner or Member.”
This Court notes the use of the disjunctive “or” in the provision. The Owner/Member agrees to
pay the attorneys’ fees incurred in addition to (1) “any other amounts due”; or (2) any other relief
or remedy obtained against said Owner or Member. In this case, Defendant voluntarily paid the
underlying assessment of $773.00. Because Defendant paid the “other amount due”, Defendant
became responsible for attorneys’ fees under Article VII, Section 8.
A.R.S. §12–341.01
In addition to the contract provisions, a successful party to a contract action may be
awarded attorneys’ fees according to A.R. S. §12–341.01 which states:
A. In any contested action arising out of a contract, express or implied, the court
may award the successful party reasonable attorney fees. If a written settlement
offer is rejected and the judgment finally obtained is equal to or more favorable to
the offeror than an offer made in writing to settle any contested action arising out
of a contract, the offeror is deemed to be the successful party from the date of the
offer and the court may award the successful party reasonable attorney fees. This
section shall not be construed as altering, prohibiting or restricting present or
future contracts or statutes that may provide for attorney fees.
B. The award of reasonable attorney fees pursuant to this section should be made
to mitigate the burden of the expense of litigation to establish a just claim or a just
defense. It need not equal or relate to the attorney fees actually paid or contracted,
but the award may not exceed the amount paid or agreed to be paid.
C. The court and not a jury shall award reasonable attorney fees under this
section.
To determine if Plaintiff was entitled to attorneys’ fees under A.R.S. § 12-341.01, this Court
must first find Plaintiff was a successful party despite never receiving a trial verdict for the
underlying claim. In Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874
P.2d 982, 987 (Ct. App. 1994) the Arizona Court of Appeals addressed the concept of successful
party and said:
. . . .
. . . .
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
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Form L512
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The decision as to who is the successful party for purposes of awarding attorneys'
fees is within the sole discretion of the trial court, and will not be disturbed on
appeal if any reasonable basis exists for it. Schwartz v. Farmers Ins. Co., 166
Ariz. 33, 800 P.2d 20 (App.1990). While the award of money is an important item
to consider when deciding who is the prevailing party, the fact that a party does
not recover the full measure of relief it requests does not mean that it is not the
successful party. Ocean West Contractors, Inc. v. Halec Constr. Co., 123 Ariz.
470, 473, 600 P.2d 1102, 1105 (1979). In Arizona, “a party [is] ‘successful’ if he
obtains judgment for an amount in excess of the setoff or counterclaim allowed.”
Id. Here, appellee was awarded $8,589.05, an amount far in excess of the setoff of
$1,387.60 allowed by the court on appellants' illegality defense. Given that, we
cannot say that the trial court acted unreasonably in deeming appellee the
successful party.
While often the defendant is considered to be the successful party when a plaintiff
voluntarily dismisses a lawsuit, this is not always the case. Here, Plaintiff dismissed its case
because Defendant voluntarily paid the underlying assessment. Consequently, Plaintiff prevailed
in its original intent—obtaining its assessment. Neither party provided binding precedent
addressing whether a defendant is the successful or prevailing party when the trial for the
underlying claim is voluntarily dismissed because the defendant paid the claim just prior to the
scheduled trial date. However, and persuasively, in Scatcherd v. Love, 166 F. 53, 56 (6th Cir.
1908) the Sixth Circuit Court of Appeals held:
To entitle the defendant to recover costs against the plaintiff under sections 4938
and 4942, Shannon's Code, it must appear that he was the ‘successful party’
within the meaning of these sections. The learned attorney for the plaintiff in error
insists that this appears from the fact that there was no judgment against the
defendant upon the merits, and that the only judgment rendered was one
dismissing the plaintiff's suit and taxing defendant with the costs. From this it is
argued that the case is one of ‘dismissal’ under the provisions of section 4942.
This method of stating the case eliminates the important fact that, after a new trial
had been awarded, the defendant, in recognition of his liability and in settlement
of the claim, paid to the plaintiff $5,000 and that there was no agreement as to
costs accrued. Upon this state of facts the court found that the defendant had
thereby acknowledged a liability to the plaintiff which entitled the plaintiff to
recover his costs. It is true that the judgment does ‘dismiss’ the suit and award
costs to the plaintiff; but the court did this because the sum received by the
plaintiff had been received in satisfaction of his claim, and not because the suit
had not been properly brought. The dismissal was solely because there was
nothing more at issue by reason of this settlement pending suit. In a very true
sense the plaintiff was the ‘successful party,’ for his suit had brought about a
satisfaction of the claim by the defendant. When a defendant, after suit begun,
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MARICOPA COUNTY
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acknowledges his liability by the payment of the claim upon which he is sued, and
makes no agreement about the costs accrued, the plaintiff is the ‘successful party’
within the meaning of the Tennessee Code provision, and the costs should be
awarded to him. This is the view taken by the Supreme Court of Tennessee, and is
the law of the state, which was followed by the court below. State v. Dail, 3
Heisk. 272; Woodward v. Alston, 12 Heisk. 581.
Although Defendant argued Britt v. Steffen, 220 Ariz. 265, 205 P.3d 357 (Ct. App.)
controlled, this Court finds Britt, id., to be distinguishable. The Britt, id., holding, 220 Ariz. at
268, ¶ 11, 205 P.3d at 360 ¶ 11 addressed a situation where the case against the defendant was
dismissed for lack of prosecution. That is not the situation in the current case. Here, Plaintiff
informed the trial court there was no longer a need for trial because the Defendant paid the
underlying assessment. Defendant had not filed any counterclaim. Because Defendant paid the
claim prior to trial, there was no need for a further trial to establish Defendant’s need to pay the
claimed assessment.
This Court does not find the trial court abused its discretion in awarding Plaintiff its
attorneys’ fees. In Grand Real Estate, Inc. v. Sirignano, 139 Ariz. 8, 14, 676 P.2d 642, 648 (Ct.
App. 1983) our Court of Appeals discussed some factors militating toward an award of
attorneys’ fees and referenced the following:
1. The merits of the claim or defense presented by the unsuccessful party.
2. The litigation could have been avoided or settled and the successful party's
efforts were completely superfluous in achieving the result.
3. Assessing fees against the unsuccessful party would cause an extreme
hardship.
4. The successful party did not prevail with respect to all of the relief sought.
These factors—and others—will be more fully addressed in the following section. However, and
based on at least the first two of these factors, the trial court did not err by awarding Plaintiff
attorneys’ fees for the action as Defendant essentially demonstrated Plaintiff’s underlying claim
had merit and the action could have been avoided or settled earlier. To the extent this Court must
conduct a de novo review of this issue, this Court concurs with the trial court’s decision.
B. Did The Trial Court’s Abuse Its Discretion When It Awarded Plaintiff All Of Its
Requested Attorneys’Fees.
Defendant’s second claim is that the amount of attorneys’ fees awarded was excessive and
the trial court abused its discretion when (1) it awarded the full amount of requested fees; and (2)
those fees exceeded—by more than a factor of ten—the underlying claim. Here, this Court first
notes the trial court provided no explanation as to how the amount of awarded fees was
determined. However, Defendant did not request a finding of fact and a trial court is not required
to set forth the basis for its decision absent such request. In Ellingsen v. Fuller, 20 Ariz. App.
456, 459, 513 P.2d 1339, 1342 (Ct. App. 1973) our Arizona Court of Appeals held: “A court is
only required to make findings of ‘ultimate facts.’ ”
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MARICOPA COUNTY
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Attorney fee award amounts are reviewed under an abuse of discretion standard. Chase
Bank of Arizona v. Acosta, 179 Ariz. 563, 574, 880 P.2d 1109, 1120 (Ct. App. 1994). In
reviewing a case for an abuse of discretion, this Court must determine if there was sufficient
evidence for the trial court’s determination. The appellate court must not re-weigh the evidence
to see if it would reach the same conclusion as the original trier-of-fact. State v. Guerra, 161
Ariz. 289, 293, 778 P.2 1185, 1189 (1989). Instead, the appellate court must find if the trial court
could find sufficient evidence to support its decision. Normally, appellate courts do not adjust the
attorney fee award determined by the trial court because (1) the trial court has a “superior
understanding of the litigation” and (2) appellate review of primarily factual matters is not
desirable. Chase Bank of Arizona v. Acosta, id., 179 Ariz. at 574, 880 P.2d at 1120.
Where this Court reviews the trial court’s actions based on an abuse of discretion
standard, this Court will not change or revise the trial court’s determination if there is a
reasonable basis for the order. A court abuses its discretion when there is no evidence supporting
the court’s conclusion or the court’s reasons are untenable, legally incorrect, or amount to a
denial of justice. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 141 P.3d 824 ¶ 17
(Ct. App. 2006). In discussing discretion, the Arizona Supreme Court, in State v. Chapple, held:
Something is discretionary because it is based on an assessment of conflicting
procedural, factual or equitable considerations which vary from case to case
and which can be better determined or resolved by the trial judge, who has a
more immediate grasp of all the facts of the case, an opportunity to see the
parties, lawyers, and witnesses, and who can better assess the impact of what
occurs before him. Where a decision is made on that basis, it is truly
discretionary and we will not substitute our judgment for that of the trial judge;
we will not second-guess. Where however, the facts or inferences from them
are not in dispute and where there are few or no conflicting procedural, factual
or equitable considerations, the resolution of the question is one of law or logic.
Then it is our final responsibility to determine law and policy and it becomes
our duty to “look over the shoulder” of the trial judge and, if appropriate,
substitute our judgment for his or hers.
State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n. 18 (1983) (citation omitted). In
this case, the “factual and equitable considerations which vary from case to case” are in dispute
as the parties contest if the amount of awarded attorneys’ fees were excessive in light of the
underlying claim. If the trial court had sufficient evidence to sustain its determination, this Court
must affirm the trial court’s decision. This Court will not reverse the trial court’s ruling in favor
of Plaintiff because a trial court judgment will not be disturbed if there is any substantial legal
evidence to support it. Corn v. Branche, 74 Ariz. 356, 357, 249 P.2d 537, 538 (1952).
. . . .
. . . .
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However, this does not mean the Justice Court should blindly adopt whatever fee counsel
charged or requested. Instead, the trial court should review the requested fee to insure that it is
not an unreasonable one. In McDowell Mountain Ranch Community Ass’n Inc. v. Simons, 216
Ariz. 266, 165 P.3d 667 ¶ 18 (Ct. App. 2007), the Court ruled that while a defendant may be
obligated to pay the full amount of the attorneys’ fees, that obligation may not be enforced when
the requested amount for the fees is “obviously excessive.”
In determining if the award of attorney fees is reasonable, this Court is guided by the
underlying purpose behind the attorney fees statute—to mitigate the burden of the expense of
litigation. Fousel v. Ted Walker-Mobile Homes, Inc. 124 Ariz. 126, 602 P.2d 507 (Ct. App.
1979). Before determining any award, this Court notes (1) the attorney must provide a China
Doll affidavit detailing the work performed, Schweiger v. China Doll Restaurant, Inc., 138 Ariz.
183, 673 P.2d 927 (Ct. App. 1983) and (2) any award of attorney fees under A.R.S. 12–341.01 is
subject to an analysis about the reasons for the shifting of responsibility for fees. In Schweiger v.
China Doll, id., 138 Ariz. at 188, 673 P.2d at 932 the Court of Appeals reviewed the types of
services which may be included in a fee application but cautioned if “a particular task takes an
attorney an inordinate amount of time, the losing party ought not be required to pay for that
time.”
The Arizona Supreme Court discussed the factors a court should consider prior to
making an award. These include:
1. whether the unsuccessful party’s position or defense had merit;
2. whether the litigation could have been avoided, or settled and how the
successful party’s efforts influenced the result;
3. whether assessing fees against the unsuccessful party would cause extreme
hardship;
4. whether the successful party prevailed with respect to all of the relief sought;
5. whether the legal question was novel;
6. whether a similar claim had been previously adjudicated in this jurisdiction;
7. whether the particular award would discourage other parties with tenable
claims or defenses from litigating or defending for fear of incurring liability
for substantial amounts of attorney fees.
Assoc. Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985); Moedt v.
General Motors Corp., 204 Ariz. 100, 60 P.3d 240 ¶ 19 (Ct. App. 2003). In establishing these
factors, the Arizona Supreme Court considered the language of A.R.S. 12–341.01 and cited
subsection B which states the award
“. . . should be made to mitigate the burden of the expense of litigation to
establish a just claim or a just defense. It need not equal or relate to the attorney’s
fees actually paid or contracted. . .”
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MARICOPA COUNTY
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Assoc. Indem. Corp. v. Warner, 143 Ariz. at 569, 694 P.2d at 1183. Here, however, there is no
indication that the trial court considered these factors in determining the reasonableness of the
awarded amount. The $9,057.00 awarded fee is over ten times greater than the requested past due
assessments of $773.00. This does not mean that Plaintiff cannot expect to recover attorney fees
that exceed the amount of its judgment. Defendant has not produced any law indicating an
attorney fee award cannot exceed the amount of the debt. In Wagner v. Caster, 136 Ariz. 29, 32,
663 P.2d 1020, 1023, (Ct. App. 1983) the Court of Appeals stated:
The fact that the attorney’s fees are in excess of the amount in dispute does not
mean they are unreasonable. Appellants took the risk of having to pay such an
amount by its refusal to agree to a proper adjustment of the taxes.
The determination of the amount of attorney fees—according to A.R.S. § 12–341.01—is
subject to the court’s discretion. “The trial court has broad discretion in determining whether to
award attorneys’ fees under A.R.S. section 12–341.01(A).” State Farm Mut. Auto Ins. Co. v.
Arrington, 192 Ariz. 255, 963 P.2d 334 ¶ 27 (Ct. App. 1998). “[The] trial court abuses its
discretion as to attorneys’ fees only when its view would not be taken by a reasonable man.”
Moser v. Moser, 117 Ariz. 312, 315, 572 P.2d 446, 449 (Ct. App. 1977). Here, however, this
Court must determine if a reasonable person would allow an attorneys’ fee award that exceeded
the amount at issue by a multiplicand of ten or more. In this case, Plaintiff’s counsel charged an
hourly rate between $185.00 and $245.00 per hour. That is not unreasonable for attorney work
provided the time the attorney takes to perform a task is not excessive or unwarranted. Counsel
is certainly at liberty to run its office as it chooses. In Metro Data Systems, Inc. v. Durango
Systems, Inc., 597 F. Supp. 244, 245 (D. Ariz. 1984) the federal district court engaged in an
extensive analysis of an attorney’s fee request and quoted with approval from Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)5 the following:
The trial judge should weigh the hours claimed against his own knowledge,
experience, and expertise of the time required to complete similar activities. If
more than one attorney is involved, the possibility of duplication of effort along
with the proper utilization of time should be scrutinized … It is appropriate to
distinguish between legal work, in the strict sense, and investigation, clerical
work, compilation of facts and statistics and other work which can often be
accomplished by non-lawyers but which a lawyer may do because he has no other
help available. Such non-legal work may command a lesser rate. Its dollar value is
not enhanced just because a lawyer does it.
. . . .
. . . .
. . . .
5 This case was abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939 (1986).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 12
Counsel’s China Doll indicated it spent 0.7 hours in drafting a Notice and Claim of Lien for
a charge of $129.50. This is a form document. Similarly, counsel spent an equivalent amount of
time—and money—in drafting a “Pre-foreclosure Notice”—another form document. These fees
are excessive. Counsel requested 2 hours of time for drafting its Complaint—a three page
document which is essentially a form for any firm—such as this one—that regularly deals with
condominium law. This claimed amount is excessive. Counsel also charged for the “missed”
April conference. Since Defendant had no responsibility for the missed conference, this Court
fails to see why Defendant should be responsible for the full charge for the error. Similarly,
Plaintiff did not prevail on its requested summary judgment yet Defendant was assessed the full
charge for Plaintiff’s untimely motion. This is another example of an unwarranted charge.
Additionally, this Court notes hundreds of dollars in charges for preparing counsel’s billing
statement for the trial court despite (1) the amounts having been assessed to Defendant as part of
the monthly assessment; and (2) the likelihood counsel already had its basic China Doll
statements readily available. The amounts awarded for these charges were unreasonable.
From the record before this Court, it appears the trial court adopted counsel’s billing
statement without analyzing the specific charges and without considering the factors required by
Assoc. Indem. Corp. v. Warner, id., 143 Ariz. at 570, 694 P.2d at 1184. That is not reasonable.
Courts have reduced requested attorney fee amounts. In ABC Supply, Inc. v. Edwards, 191 Ariz.
48, 52, 952 P.2d 286, 290 (Ct. App. 1996), the Court of Appeals allowed an almost ninety percent
(90%) reduction in the awarded amount. The current case, like ABC Supply Inc., id., illustrates a
situation where the attorney fees greatly exceeded the amount at issue. Having reviewed the
Plaintiff’s billing statement, this Court finds the awarded fees are excessive when compared with
the complexity of the case and the result achieved.
C. Is Either Party Entitled To Attorneys’Fees On Appeal.
Neither party prevailed on appeal. Although Plaintiff was successful in its claim that it was
entitled to attorneys’ fees for the trial court action, Defendant established the amount of awarded
fees was excessive. Therefore, each party is responsible for its own costs and fees for the appeal.
III. CONCLUSION.
Based on the foregoing, this Court concludes the Arcadia Biltmore Justice Court did not err
in finding Defendant responsible for attorneys’ fees but abused its discretion and erred in
assessing the amount of attorneys’ fees.
IT IS THEREFORE ORDERED affirming in part and reversing in part the judgment of
the Arcadia Biltmore Justice Court.
IT IS FURTHER ORDERED remanding this matter to the Arcadia Biltmore Justice Court
for all further appropriate proceedings consistent with this Minute Entry and so the Justice Court
can consider the appropriate amount of attorneys’ fees in light of (1) the factors expressed in
Assoc. Indem. Corp. v. Warner, id.; and (2) this opinion.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000086-001 DT
04/29/2013
Docket Code 512
Form L512
Page 13
IT IS FURTHER ORDERED each party shall be responsible for its own costs and fees for
this appeal.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris
THE HON. MYRA HARRIS
Judicial Officer of the Superior Court
042920121700
