This fees-and-costs opinion is a useful reminder of the Associated Indemnity case on fees and also says something worthwhile about costs.

The parties sued each other in contract. The jury awarded money both ways, though more to Motzer. The court denied fees to either but awarded Motzer some of her costs. Motzer appealed, wanting fees and all her costs.

“There is no presumption that a successful party should be awarded attorney fees under §12-341.01.” The trial court “has broad discretion” to analyze various factors. “Those factors apply in determining whether a court will exercise its discretion to grant a successful party attorney fees rather than in determining which party is successful.” Although the trial court found Motzer to be the successful party the record (the opinion, appropriately, does not go into much detail about it) supported its decision not to award fees.

(Motzer tried to base an argument on a memorandum decision; the opinion has to remind her that that can’t be done.)

Motzer wanted the cost of preparing jury notebooks, arguing that a court order required her to prepare them. But the order, while encouraging notebooks, required only that if used they had to meet certain standards. Had the court actually ordered them then they would have been taxable under 12-332(A)(6). “A bright-line rule that only costs ordered by the court are taxable allows trial courts to determine and counsel to be aware of what costs are recoverable.”

For some reason the trial court denied Motzer’s costs for buying copies of Escalante’s depositions of her and her expert, so the opinion has to reverse that; otherwise it affirms.

(link to opinion)