§ 9.3.1.3 The Successful Party
In civil litigation, the party who obtains a judgment is generally considered the "successful party" and therefore is entitled to recover costs. While A.R.S. § 12-341 provides for an award of costs to a "successful party" in all actions, and A.R.S. § 12-341.01 provides for an award of costs to a "successful party" only when an action involves certain types of claims, to promote "the desirable uniformity of interpretation of 'successful party' as used in [A.R.S. § 12-341.01] and the costs statute," Arizona courts apply the principles developed in the attorneys' fees context to costs cases. Thus, this Chapter relies upon cases dealing with A.R.S. § 12-341 and/or A.R.S. § 12-341.01. Henry, 189 Ariz. at 44, 938 P.2d at 93. See § 2.7, "Successful Party."
The trial court possesses discretion to determine who is the successful party, including in multiple-party and multiple-claim litigation. Hall v. Read Dev., Inc., 229 Ariz. 277, 279, 274 P.3d 1211, 1213 (App. 2012); Berry, 228 Ariz. at 13, 261 P.3d at 788; Hooper, 171 Ariz. at 695, 832 P.2d at 712; Schwartz, 166 Ariz. at 38, 800 P.2d at 25; Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 467, 733 P.2d 652, 664 (App. 1986). In Pioneer Roofing Co., the use of a "percentage of success factor" test to determine the relative success of the parties was held to be appropriate, 152 Ariz. at 467, 733 P.2d at 664, as was a "totality of the litigation" test in Nataros v. Fine Arts Gallery, 126 Ariz. 44, 49, 612 P.2d 500, 505 (App. 1980). See Schwartz, 166 Ariz. at 38, 800 P.2d at 25; see also Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 134, 272 P.3d 355, 365 (App. 2012) ("When deciding who is the successful party entitled to fees under A.R.S. § 12-341.01(A) when a case involves multiple claims and varied success and the net judgment rule is inapplicable, the trial court may use a 'percentage of success' factor or a 'totality of the litigation' rubric to determine which party prevailed.").
If the plaintiff sues on only one claim and the defendant does not file a counterclaim, it is usually not difficult to determine which party was successful. In particular, the plaintiff need not win a money judgment to be "successful." A party who prevails on a claim for possession of property, for example, is successful within the meaning of A.R.S. § 12-341. See Altfillisch Constr. Co. v. Torgerson Constr. Corp., 120 Ariz. 438, 440, 586 P.2d 999, 1001 (App. 1978) (discussing what it means to be a "successful party" under A.R.S. § 12-341.01). See also Estate of Lamparella, 210 Ariz. at 254, 109 P.3d at 967. Furthermore, the plaintiff can be "successful" even though the judgment is for less than the full amount of the money or other relief that it requested. Ocean West Contractors, Inc. v. Halec Constr. Co., 123 Ariz. 470, 473, 600 P.2d 1102, 1105 (1979) (court discussed contractual provision providing for fees and costs to the successful party); see also Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App. 1994) (a party who obtains judgment for an amount in excess of an allowed setoff or counterclaim is "successful" for purposes of A.R.S. § 12-341.01); O'Dowd v. UNUM Life Ins. Co. of America, 2006 WL 2872425, *3 (D. Ariz. 2006); Gametech, Inc. v. Trend Gaming Systems, L.L.C., 380 F. Supp. 2d 1084, 1099 (D. Ariz. 2005) (fact that prevailing party did not recover the full amount of relief requested did not mean that it was not the prevailing party). A plaintiff can recover costs as the "successful" party even when its net award, after crediting a pretrial settlement, is zero. McEvoy v. Aerotek, Inc., 201 Ariz. 300, 302-03, ¶ 11, 34 P.3d 979, 982-83, ¶ 11 (App. 2001). The plaintiff in McEvoy received a pretrial settlement offer of $100,000 from one of two defendants. At trial, the jury awarded $75,000. The court concluded that the plaintiff was the successful party for purposes of an award of costs, because she won on the merits and was awarded damages. Finally, a party can recover costs as the "successful" party when the contested proceeding is resolved by settlement or ends because the breaching party voluntarily tenders the amount allegedly due. Assyia, 229 Ariz. at 224, 273 P.3d at 676.
A party that successfully defends an action is also entitled to costs under A.R.S. § 12-341. See Hooper, 171 Ariz. at 695, 832 P.2d at 712; McAlister v. Citibank, 171 Ariz. 207, 216, 829 P.2d 1253, 1262 (App. 1992). In McAlister, the defendant bank prevailed on all the plaintiff's claims. However, to compensate the plaintiff for an overpayment after the litigation began, the bank paid the plaintiff $800. The plaintiff argued he was the "successful party" by virtue of the $800 payment. The court of appeals disagreed because the payment was made independently of the litigation ? it was not the result of any motion by the plaintiff or order of the court. Thus, the court of appeals affirmed the trial court's award of costs to the bank. Id.
In a comparative negligence personal injury case involving no counterclaims, the court...
