§ 3.6 DETERMINATION OF THE SUCCESSFUL OR PREVAILING PARTY IN A CONTRACTUALLY BASED CLAIM FOR ATTORNEYS' FEES

• Jurisdiction: Arizona

The most commonly used attorneys' fees provision typically will provide for an award of attorneys' fees to the "prevailing" or "successful" party in an action to enforce the provisions of the contract (see, e.g., Form 3:1). As in the case of A.R.S. § 12-341.01(A), it becomes critical to determine who is the "successful" or "prevailing" party. If the contract does not define "prevailing" or "successful" party and does not contain a choice of law provision that broadly incorporates Arizona law as governing the rights and remedies of the parties under the contract, and, accordingly, the fee shifting provision in the second sentence of A.R.S. § 12-341.01(A) is inapplicable, see Am. Power Prods., Inc. v. CSK Auto, Inc., discussed in § 3.4 supra, the court will have considerable discretion in determining who is the "prevailing" or "successful" party for purposes of an award of attorneys' fees under a contractual provision. Sirrah Enters., LLC v. Wunderlich, 240 Ariz. 163, 169, ¶ 16, 377 P.3d 360, 366 (App. 2016) ("In deciding which party prevailed under the terms of a contract when the case involves multiple claims, we apply the same standard as if we were deciding which party prevailed under...