Arizona Court of Appeals Division Two Holds That the Successful Party Is Not Entitled to an Award of Costs of Preparing Juror Notebooks That Were Encouraged But Not Required by Order of the Trial Court.

Following a jury trial in which both parties were partially successful, the trial court found the Plaintiff to be the successful party for purposes of an award of costs.  The court, however, exercised its discretion to deny Plaintiff’s request for an award of attorneys’ fees pursuant to A.R.S. § 12-341.01.  It also declined to award Plaintiff certain costs for which Plaintiff sought a cost award under A.R.S. §§ 12-341 and -332(A). 

Plaintiff appealed.  The Arizona Court of Appeals affirmed in part.

Section 12-341.01(A) provides that “the court may award the successful party reasonable attorney fees” in an “action arising out of a contract.”  The statute does not create any presumption in favor of a fee award.  Here, the trial court acted within its discretion in denying a fee award based in part on the reasoning that both parties were partially successful.  

The trial court erred in part, however, by its denial of Plaintiff’s request for an award of certain costs.  Under §§ 12-341 and -332(A), a successful party may recover taxable costs, including the cost of taking depositions and “other disbursements that are made or incurred pursuant to an order or agreement of the parties.” 

The trial court erred by denying Plaintiff an award of costs incurred for transcription and photocopies of deposition transcripts.  It did not err, however, by denying reimbursement for costs of photocopying juror notebooks.  The trial court had encouraged, but not required, the preparation of juror notebooks containing exhibits admitted by stipulation.  Because the court did not order the parties to prepare juror notebooks, the cost of the notebooks was not incurred pursuant to a court order and therefore was not taxable.

Chief Judge Howard authored the opinion; Presiding Judge Eckerstrom and Judge Brammer concurred.