Halt v. Sunburst Farms East, Inc. – 10/20/2015

December 8, 2015

Arizona Court of Appeals Division One holds that under ARCAP Rule 21, as in effect in 2012, a claim for attorneys’ fees incurred pre-appeal and on appeal must be made in the appeal briefing or in a motion before oral argument.

A party lost in the superior court, got the judgment reversed by the Court of Appeals, and then, as the prevailing party, successfully sought attorneys’ fees in the superior court after remand.  The losing party objected to the fee award, arguing that the prevailing party waived any claim for pre-appeal attorneys’ fees by failing to request those fees in its appellate briefing or at oral argument as required by ARCAP 21.    

ARCAP 21 contains the procedural requirements regarding requests for attorneys’ fees on appeal.  It was amended in 2012, 2014, and 2015.  The losing party argued that under ARCAP 21’s 2012 amendment, the prevailing party waived any claim for pre-appeal attorneys’ fees by failing to request those fees in briefing or oral argument before the Court of Appeals.  The prevailing party contended that the current version of the rule should apply and that both the 2014 and 2015 amendments limit the request for fees with the appellate court to those incurred only on appeal.

The Court of Appeals held that ARCAP 21’s 2012 amendment was in effect at the time the case was briefed and argued before the Court.  Under that version of the rule, claims for attorneys’ fees incurred pre-appeal and on appeal were untimely if not made in the appeal briefing or in a motion before oral argument.  Accordingly, the prevailing party waived its pre-appeal attorneys’ fees by failing to make its request in its appeal briefing or before oral argument. 

The Court of Appeals did not analyze this issue under the current version of ARCAP 21, which was amended most recently in 2015. 

Judge Howe authored the opinion; Judges Thompson and Winthrop concurred.