§ 4.3.6 THE FEE AWARD

• Jurisdiction: Arizona

§ 4.3.6 The Fee Award

A prevailing party may apply for "attorney fees and other expenses" under the "applicable procedural rules." A.R.S. § 12-348(D). Attorneys' fees are to be "reasonable and necessary." A.R.S. § 12-348(I)(1). The application must at a minimum include: (1) "evidence of the party's eligibility for the award," (2) the amount sought, (3) an itemized statement from the attorneys or experts stating the time expended, and (4) the rate at which the fees were computed. A.R.S. § 12-348(D). Of course, there must be an attorney-client relationship for there to be an entitlement to a fee award¾an attorney may not receive a fee award under this statute where the attorney represents himself or herself. Alano Club 12, Inc. v. Hibbs, 150 Ariz. 428, 434, 724 P.2d 47, 53 (App. 1986).

With the exception of several limitations noted below, fees shall be based "on prevailing market rates for the kind and quality of the services furnished." A.R.S. § 12-348(E). An expert is not to be compensated, however, at a rate in excess of the highest rate paid to experts by the governmental body. A.R.S. § 12-348(E)(1). This statute sets an upper limit on expert witness compensation. Thus, because the county's expert was paid $200 per hour, the trial court had discretion to award the taxpayer $150 per hour for its expert because it was less than the amount charged by the county's expert. Nordstrom, Inc. v. Maricopa County, 207 Ariz. 553, 561, ¶ 35, 88 P.3d 1165, 1173 (App. 2004). This limitation refers only to the rate of compensation, not the amount of compensation. Inspiration Consol. Copper Co. v. Arizona Dep't of Revenue, 147 Ariz. 216, 709 P.2d 573 (App. 1985).

For cases other than those challenging the assessment or collection of taxes covered under A.R.S. § 12-348(B), attorneys' fees shall not exceed the amount the prevailing party has paid or agreed to pay, or a maximum of $75 per hour, unless the court determines that "an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee." A.R.S. § 12-348(E)(2). In Phelps Dodge Corp. v. Arizona Elec. Power Coop., Inc., 207 Ariz. 95, 83 P.3d 573 (App. 2004), the court of appeals refused to reverse the superior court's decision declining to award a greater hourly rate than the statutory maximum of $75 per hour for attorneys' fees. Although the court acknowledged that the case required skilled counsel, it noted that the successful party made no showing that a limited number of qualified attorneys were available to undertake the representation. The appellate court also found that the trial court was correct in not making a cost of living adjustment because it was not necessary to fulfill the purposes of the statute and there was nothing in the record to suggest that the utility cooperatives would "suffer a disparity in resources or...