§ 11.2.4 Timing of An Attorneys' Fees Request.

• Jurisdiction: Arizona

§ 11.2.4 Timing of An Attorneys’ Fees Request. Under ARCAP 13(a)(8), a party seeking fees should include in its brief “[a] ‘notice under Rule 21(a),’ if applicable, that the party intends to claim attorneys’ fees.” In previous versions of ARCAP 21, the request also could be made by written motion filed and served prior to oral argument or submission of the appeal. See ARCAP 21(a)(1) (2014). The 2015 amendments struck this language, limiting the request solely to “an opening or an answering brief” or “in the petition or cross-petition [for review] or in the response to a petition or cross-petition.” ARCAP 21(a)(1) (2015). The change reflects current practice, which is generally considered to be more efficient than the filing of a separate motion. See also Powell v. Washburn, 211 Ariz. 553, 560, ¶ 29, 125 P.3d 373, 380 (2006) (denying fee request because request was made for first time in supplemental brief contrary to requirements of former ARCAP 21(c), now ARCAP 21(a)(1)). This requirement enables the court to consider the propriety of an award in conjunction with its decision on the merits of the case.

The fee request must “specifically state” the authority upon which the request is based, i.e., “the statute, rule, decisional law, contract, or other authority for an award of attorneys’ fees.” ARCAP 21(a)(2); see also In re Guardianship of Pacheco, 219 Ariz. 421, 430, ¶ 39, 199 P.3d 676, 685 (App. 2008) (“The estate has requested attorney fees on appeal, but it has failed to state the statutory basis for such an award; we therefore deny the request.”); Neal...