Hess v. Purcell – 3/22/2012

March 26, 2012

Arizona Court of Appeals Division One Holds That Litigant Who Has Partial Success in Suit Against Maricopa County Is Entitled to Attorneys’ Fees and Expenses

A gubernatorial candidate and several voters filed a special action against Maricopa County and several officials to compel them to perform statutory duties related to elections.  The trial court granted partial mandamus relief on three claims, in part because the relief the petitioners sought “has already been accomplished.” 

The trial court awarded the petitioners a fraction of their attorneys’ fees and expenses fees under A.R.S. § 12-2030, which authorizes such awards for a party who prevails on the merits in a civil action filed against the state or political subdivision to compel an officer to perform a duty.

The Court rejected the County’s principal argument that the petitioners were not entitled to fees or expenses because they did not prevail on the merits.  A party prevailed if it litigated a claim and relief was granted, even if it prevailed on only a portion of a claim.  In addition, a party prevailed on the merits even if “corrective action” had already occurred and no mandamus order was issued, because “but for the special action, the County may not have altered its process.”  A party did not prevail on the merits of a claim, however, if a settlement “effectively mooted” that claim.

The Court also rejected the County’s arguments that the petitioners may not recover the expenses of a report prepared in connection with the litigation.  It held that nothing in the statute requires the report to have been prepared by an expert or attorney, nor does it require the trial court to make specific findings that the report was necessary to the case.  The Court also held that the trial court has discretion to allocate fees appropriately when the petitioners prevailed on only a portion of their claims; the analysis requires more than computing the fraction of successful claims.

Judge Portley authored the opinion; Judges Thompson and Gemmill concurred.