King v. Titsworth (6/4/2009)

June 5, 2009

Arizona Court of Appeals Division One Holds That a Request for Attorneys’ Fees Must Be Made in the Pleadings Under Ariz. R. Civ. P. 54(g)(1).

After the Kings filed a complaint against Titsworth for breach of a settlement agreement, Titsworth answered proper.  His answer did not include a request for attorneys’ fees.  Titsworth subsequently retained counsel but never moved to amend his answer to include a request for attorneys’ fees.  Titsworth prevailed at trial and filed an application for attorneys’ fees pursuant to Arizona Rule of Civil Procedure 54(g) and A.R.S. § 12-341.01.  The Kings opposed the motion, arguing that Titsworth had failed to include a request for attorneys’ fees in his pleadings, as required by Rule 54(g)(1).  The trial court awarded Titsworth attorneys’ fees and the Kings appealed.

The Arizona Court of Appeals vacated the trial court’s award of fees, holding that pursuant to Rule 54(g)(1), “a claim for attorneys’ fees shall be made in the pleadings.”  The Court cited Rule 7(a), which defines “pleadings” to include a complaint, an answer, a counterclaim, a cross-claim, a third-party complaint, a third-party answer, and a reply.  Because Titsworth’s first claim for attorneys’ fees was made in a motion filed pursuant to Rule 54(g)(2), the trial court erred in awarding him fees. 

Judge Barker authored the opinion, Judges Thompson and Timmer concurred.