A father sued his son for breach of contract. The son moved to dismiss the complaint pursuant to Rule 12(b)(2), and the court granted the motion. Although the son made no request fees in his motion to dismiss, upon a subsequent motion, the court granted the son an award for his attorney’s fees.
The Court of Appeals vacated the attorney fees award. Under the Arizona Rule of Civil Procedure 54(g)(1), a request for attorney’s fees “shall be made in the pleadings.” Under Rule 7(a), a “pleading” means a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint and an answer to a third-party complaint. A Rule 12(b)(2) motion to dismiss is not a “pleading” pursuant to Rule 7(a). The Court of Appeals rejected the argument that rule 54(g)(1) requires a fee request be made in a motion to dismiss, but nevertheless held a defendant forfeits his claim for fees by failing to ask for fees in a successful motion to dismiss. The Court reasoned that it would be inconsistent with the purpose of promoting early settlement of disputes to allow a defendant to wait to ask for fees until after the superior court grants his motion to dismiss.
Judge Johnsen authored the opinion; Judges Thumma and Brown concurred.
Posted by: Grace Rebling