Opinion
1 CA-CV 98-0158
Filed March 25, 1999
Appeal from the Superior Court of Maricopa County, Cause No. CV 96-06748
The Honorable William J. Schafer, III, Judge
SUPPLEMENTAL MOTION TO RECONSIDER FEES: GRANTED
Lepley Law Offices, P.C. by Stephen C. Lepley, Attorneys for Plaintiff-Appellant, Phoenix.
Owens Pyper, P.L.C. by Mark B. Pyper, Attorneys for Defendants-Appellees Helgoe, Phoenix.
Thomas Elardo, P.C. by Neal B. Thomas, Attorneys for Defendants-Appellees, Hall Phoenix.
Kenneth A. Winsberg, P.C. by Kenneth A. Winsberg, Attorneys for Counterclaimants-Appellees, Phoenix.
OPINION
¶ 1 In our opinion in BCAZ Corp. v. Helgoe, 286 Ariz. Adv. Rep. 3 (App. Dec. 29, 1998), we granted BCAZ's motion for attorneys' fees on appeal pursuant to A.R.S. section 12-341(A). Upon further reflection, and based on the parties' pleadings addressing fees, we conclude that we should deny such fees with leave to re-urge them in the trial court.
¶ 2 The Arizona Supreme Court held in Wagenseller v. Scottsdale Memorial Hosp. that a party who prevails on an interim appeal may be eligible for an award of fees under A.R.S. section 12-341 if the appeal finally determines a central issue of law "sufficiently significant that the appeal may be considered as a separate unit." 147 Ariz. 370, 393-94, 710 P.2d 1025, 1048-49 (1985). The appeal in this case did not finally determine a significant issue of law central to the merits of the case but, instead, held that the trial court had erroneously dismissed the case on a procedural issue before the case began to develop. An award of fees on appeal is therefore not appropriate under Wagenseller.
¶ 3 We hereby strike the last sentence of BCAZ Corp. v. Helgoe, supra, and vacate any award of attorneys' fees, with leave to each party to seek attorneys' fees from the trial court at the conclusion of trial court proceedings.
__________________________________ Rudolph J. Gerber, Presiding Judge
CONCURRING:
_____________________________ Noel Fidel, Judge
_____________________________ Sarah D. Grant, Judge