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Parker v. McNeill - 3/8/2007

Arizona Court of Appeals Division One Holds that Superior Court May Award Costs and Expenses, But Not Attorneys’ Fees, Incurred Before and in the Course of Prior Appeal, to Party Who Failed to Request Costs and Fees in Prior Appeal.


In a settlement agreement regarding child-rearing expenses, former spouses Parker and McNeill had agreed to a provision granting attorneys’ fees in the event of a default. Parker later sued for unpaid child health-care expenses, but the superior court ruled that the claim was time-barred. On appeal (the “prior appeal”), the Court of Appeals concluded that the claim was not necessarily time-barred because of evidence of a signed writing acknowledging the debt, and thus remanded for further proceedings. After the remand, Parker and McNeill stipulated to the entry of a money judgment in Parker’s favor. Parker then sought attorneys’ fees, costs and expenses incurred before and in the first appeal, and after remand to the trial court. The superior court denied the request for pre-remand costs and fees because Parker had failed to request these reimbursements before or in connection with her prior appeal pursuant to Ariz. R. Civ. App. P. Rule 21. Parker again appealed.

The Court of Appeals upheld the denial of attorneys’ fees incurred before and during the prior appeal. Parker’s failure to request the fees on appeal, or by written motion filed and served before oral argument or submission of the appeal, constituted a failure to comply with Rule 21(c)(1). The later request for these fees was therefore properly denied. Under Rule 21(a), however, a request for costs incurred is permissive, not mandatory; failure previously to request these costs, therefore, did not bar the superior court from later awarding these costs after remand. An award to Parker of other expenses incurred before or during the first appeal would also be permissible notwithstanding Parker’s failure previously to request an award of these expenses. The Court of Appeals therefore reversed in part, affirmed in part, and remanded to the trial court for further proceedings.

Presiding Judge Norris wrote the opinion; Judges Barker and Thompson concurred.

Posted On: 3/12/2007