§ 11.2.1.1.2 Successful Party. Fees may be awarded only to a “successful party” under A.R.S. § 12-341.01(A). When a party has two or more separate and distinct contract claims and is successful on fewer than all such claims, attorneys’ fees should not be awarded for unsuccessful claims and apportionment is required. See Trus Joist Corp. v. Safeco Ins. Co. of Am., 153 Ariz. 95, 110, 735 P.2d 125, 140 (App. 1986). In cases involving multiple claims, the court may use a “percentage of success factor” or a “totality of the litigation” test to determine the relative success of the parties. See Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38, 800 P.2d 20, 25 (App. 1990). Fees are equally available to those who successfully defend an action as to those who successfully seek affirmative relief. See id. When the defendant asserts an independent counterclaim, a party is successful if it obtains a judgment in excess of any setoff awarded to the other party. See id. (citing Trollope v. Koerner, 21 Ariz. App. 43, 47, 515 P.2d 340, 344 (1973)).
The court will deny an award of attorneys’ fees on appeal pursuant to A.R.S. § 12-341.01(A) when it determines neither party was successful. See Paloma Inv. Ltd. P’ship v. Jenkins, 194 Ariz. 133, 139, ¶ 32, 978 P.2d 110, 116 (App. 1998). Similarly, when a party has prevailed on appeal only as a cross-appellee, not as an appellant, fees have been denied. See Liberty Mut. Fire Ins. Co. v. Mandile, 192 Ariz. 216, 224, 963 P.2d 295, 303 (App. 1997).
A party’s failure to recover the full measure of relief it requested does not mean it is not the “successful party” pursuant to A.R.S. § 12-341.01. A party is successful for purposes of attorneys’ fees if the party receives a judgment in excess of any setoff or counterclaim allowed. See Ocean W. Contractors, Inc. v. Halec Constr. Co.,...
