IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KENNETH FIELDS, et al., 

Plaintiffs/Appellees,

v.

ELECTED OFFICIALS RETIREMENT PLAN,

Defendant/Appellee,

_________________________________

STATE OF ARIZONA, 

Defendant/Appellant.

No. 1 CA-CV 18-0126

Appeal from the Superior Court in Maricopa County

No. CV2017-001200

The Honorable Timothy J. Thomason, Judge

AFFIRMED

COUNSEL

Osborn Maledon, P.A., Phoenix

By Colin F. Campbell

Counsel for Plaintiffs/Appellees

Arizona Attorney General’s Office, Phoenix

By Paula S. Bickett, Andrew G. Pappas, Nancy M. Bonnell, 

Charles A. Grube, Eryn M. McCarthy

Counsel for Defendant/Appellant State of Arizona

FILED 2-6-2020
FIELDS, et al. v. EORP, et al.

Opinion of the Court

2

OPINION

Judge David D. Weinzweig delivered the opinion of the Court, in which 

Presiding Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.

W E I N Z W E I G, Judge:

¶1 A.R.S. § 12-341.01 allows the superior court to award 

reasonable attorney fees to the successful party in a contested action arising 

out of contract. Courts have held that fees may only be awarded under the 

statute if the successful party has a “genuine financial obligation” to 

compensate an attorney. At issue here is what that means.

¶2 Plaintiffs and their attorneys entered a contingent fee 

agreement here that limited attorney compensation to any potential courtordered fee award under the statute. The superior court found that 

Plaintiffs assumed a genuine financial obligation to compensate their 

attorneys under this agreement and granted their request for reasonable 

attorney fees under § 12-341.01. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 Plaintiffs Ken Fields and Gerald Porter are retired state court 

judges and members of the Elected Officials Retirement Plan (EORP), a 

defined benefit retirement plan for judges and other elected officials, which 

is funded by various sources, including employer and employee 

contributions. The legislature modified EORP in 2013 to cap employer 

contributions at 23.5 percent of aggregate payroll. See A.R.S. § 38-810 

(2014). Before then, employer contributions were set and made based on 

actuarial methods and assumptions consistent with generally accepted 

accounting standards.

A. The Fee Agreement

¶4 Plaintiffs retained the Osborn Maledon law firm in January 

2017 to pursue claims for declaratory and injunctive relief but not damages 

“arising from [the] 2013 statutory change capping employer contributions 

to the EORP.” Plaintiffs and Osborn Maledon entered a written contingent

fee agreement. The law firm agreed to “limit recovery of [its attorney] fees 

to those fees and costs awarded by the [superior court] under any 

applicable fee shifting statute.”
FIELDS, et al. v. EORP, et al.

Opinion of the Court

3

¶5 To that end, the fee agreement obligated Plaintiffs, if 

ultimately successful, to request a court-ordered award of attorney fees

under A.R.S. § 12-341.01 and to surrender any award to counsel:

If the case is successfully prosecuted or settled, Clients 

shall petition the Court for fees and costs under any 

applicable fee shifting statute.

** ** **

Client[s] agree to pay those fees and costs over to 

Attorneys. Attorneys’ fees will be payable only out of 

recovery, and if no recovery is obtained, no fees shall 

be payable to Attorneys. 

(Emphasis added).

B. The Lawsuit

¶6 Plaintiffs sued EORP and the State of Arizona for a 

declaratory judgment that the statutory cap on employer contributions 

breached their contract and violated the Arizona Constitution, and sought 

a mandatory injunction against EORP to set employer contribution rates as 

required by the law. Plaintiffs sought no money damages but did request 

an award of attorney fees and costs under A.R.S. § 12-341.01 and the private 

attorney general doctrine. 

¶7 After a bench trial, the superior court held the State’s 

statutory cap on EORP contributions violated Plaintiffs’ contract and the 

Arizona Constitution. See Ariz. Const. art. 29, § 1 (A). The court ordered 

the State to “set the employer contribution rates and other funding for 

EORP, as a whole, based on actuarial methods and assumptions that are 

consistent with generally accepted accounting standards.”

¶8 The superior court also ruled that Plaintiffs were “entitled to 

at least some of their reasonable costs and attorneys’ fees under the private 

attorney general doctrine and A.R.S. § 12-341.01,” and directed Plaintiffs to 

file a fee affidavit. Plaintiffs requested $62,943 in attorney fees and 

$2,355.30 in costs. The State countered that fees should be denied or 

“greatly reduce[d]” for various reasons, including that Plaintiffs “had no 

obligation to pay any fees to Osborn Maledon, [and] instead agree[d] that 

the firm could have any fees that a court might assess against the 

defendants.” After more briefing, the court held “[t]he private attorney 

general doctrine [did] not apply,” but still awarded fees under A.R.S. § 12-
FIELDS, et al. v. EORP, et al.

Opinion of the Court

4

341.01, reasoning that Plaintiffs had assumed a “sufficient financial 

obligation” under the contingent fee agreement because they “agree[d] to 

pay any attorney fees awarded to the lawyers.” Even so, the court reduced 

the award by twenty percent because Plaintiffs had not secured all relief

requested. 

¶9 The court eventually entered a revised final judgment for 

Plaintiffs, awarding $46,088.80 in attorney fees, $1,899 in costs and postjudgment interest at 5.25 percent. The State timely appealed. We have 

jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 The State contends that Plaintiffs did not qualify for an award 

of attorney fees under A.R.S. § 12-341.01. We interpret and apply the statute 

de novo. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 13, ¶ 

12 (App. 2000).

¶11 Section 12–341.01(A) provides that a court may award 

reasonable attorney fees to the successful party in any contested action 

arising out of a contract. The statute further directs that a fee award “need 

not equal or relate to the attorney fees actually paid or contracted, but the 

award may not exceed the amount paid or agreed to be paid.” A.R.S. § 12-

341.01(B). To recover fees under the statute, the successful party must 

therefore show it entered an attorney-client relationship and assumed a 

genuine financial obligation to compensate the attorney. Moedt v. General 

Motors Corp., 204 Ariz. 100, 103, ¶ 11 (App. 2002).

¶12 The State does not contest that Plaintiffs entered an attorneyclient relationship with the Osborn Maledon law firm or that Plaintiffs 

succeeded in a contested action arising out of a contract. Rather, the State 

argues that Plaintiffs cannot recover any attorney fees because they “never 

paid or agreed to pay their lawyers” under § 12-341.01(B). We disagree. 

¶13 Plaintiffs “agreed to [pay]” counsel here and thus qualified 

for an award of fees not to exceed that amount. A.R.S. § 12-341.01(B). We 

interpret a statute to achieve the legislature’s intent, which is best expressed 

by its plain language. SolarCity Corp. v. Ariz. Dep’t of Revenue, 243 Ariz. 477, 

480, ¶ 8 (2018). Plaintiffs entered a written fee agreement with the law firm

that required Plaintiffs to perform two affirmative acts if successful in the 

lawsuit. Plaintiffs promised first to “petition” the superior court for an 

award of attorney fees and costs under the fee-shifting statute, and 

promised then to surrender “those fees and costs over to” counsel. Those

twin promises are contractually enforceable under Arizona law and 
FIELDS, et al. v. EORP, et al.

Opinion of the Court

5

represent a genuine financial obligation to compensate counsel. Sparks v. 

Republic Nat’l Life Ins. Co., 132 Ariz. 529, 545 (1982). 

¶14 The conditional nature of payment does not diminish the 

genuine financial obligation. Arizona courts have long recognized that 

attorney fees are recoverable under § 12-341.01 “when the contract between 

the party and the attorney is a contingency-fee agreement,” reasoning that 

“[a]fter obtaining a judgment, a client who has retained counsel on a 

contingency basis must surrender the agreed upon percentage of the 

judgment as remuneration.” Id.

¶15 Even so, the State contends this case is different than Sparks

because the clients there sought damages and entered a contingent fee 

agreement that required them to compensate counsel “out of whatever 

[damages] they recover,” rather than merely “turn over whatever attorney 

fees a court awards.” But § 12-341.01 only requires an agreement to pay 

counsel—it never mentions or limits the source of payment. And clients

remain on the hook under either arrangement because payment must be 

surrendered—whether from an independent fee award (here) or as a 

percentage of the damages award (there).

¶16 If contingent fee clients must seek and recover money 

damages to qualify for an award of attorney fees under § 12-341.01, and 

recovery of declaratory and injunctive relief is not enough, the result will 

be an unintended and undesirable emphasis on damages. Section 12-341.01 

was enacted to mitigate the “expense of litigation to establish a just claim 

or a just defense,” not to encourage more lawsuits for money damages in 

lieu of meaningful injunctive or declaratory relief. Cf. Blanchard v. Bergeron, 

489 U.S. 87, 95 (1989) (rejecting strict limitation on fee awards in civil rights 

litigation). 

¶17 Another consequence of the State’s argument, if accepted, 

would be to curtail public interest litigation where individuals band 

together and retain contingent fee counsel to pursue contract-related 

injunctive and declaratory relief, but have no money damages. For clients 

who lack the means to retain competent representation, a contingent fee 

agreement to surrender any fee-shift award represents the only economic 

option—shifting the risk and expense of litigation to counsel. Cf. Arnold v. 

Ariz. Dep’t of Health Servs., 160 Ariz. 593, 608 (1989) (“Attorney’s fees should 

not be limited by the fact that the plaintiffs are indigent and that their 

attorneys accepted the case on a pro bono basis.”). Nothing in § 12-341.01

shows this fee arrangement is outside its reach.
FIELDS, et al. v. EORP, et al.

Opinion of the Court

6

¶18 The State also insists that Plaintiffs’ award of attorney fees 

represents a “windfall” that contravenes the purpose of fee awards under 

§ 12-341.01. But Plaintiffs’ fee award tracks the express and recognized 

purposes of § 12-341.01, which are to “mitigate the burden of the expense 

of litigation to establish a just claim or a just defense,” and to encourage an 

early and ongoing assessment of the merits and facilitate settlement.

Chaurasia v. Gen. Motors Corp., 212 Ariz. 18, 29, ¶ 43 (App. 2006). A fee 

award here mitigates the burden of litigation expenses incurred by counsel 

to establish Plaintiffs’ claims. Neither the statute nor common law requires

clients to personally assume “the burden of the expense,” Catalina Foothills 

Ass’n, Inc. v. White, 132 Ariz. 427, 428 (App. 1982), which if required would 

defeat the rationale of contingent fee agreements. And given the contingent

fee agreement, it was imperative for all counsel to perform an early, 

comprehensive appraisal of claims and defenses. 

¶19 Meanwhile, the State asserts that § 12-341.01 is intended to 

make litigants whole for having to pay attorney fees from their own pocket. 

But the State arrogates that purpose from a different statute, A.R.S. § 12-

349, as applied in Lisa v. Strom, 183 Ariz. 415, 417 (App. 1995), where 

attorney fees were awarded as a sanction against defendants for pressing a 

groundless defense and abusing discovery. And even there, the court only 

mentions the rationale to justify its denial of attorney fees to selfrepresented “attorney-litigants.” Id. at 420 (“[A] financial obligation from 

the community to itself is no obligation at all. An award of fees is therefore 

inappropriate.”).

¶20 Nor can the fee award be characterized as an unreasonable or 

unearned “windfall.” The statute independently requires any fee award to 

be reasonable, both as to the number of hours devoted and billing rates. See 

A.R.S. § 12-341.01(A), (B). The State again misrelies on Lisa, which warned 

about the perception of “windfalls” where self-represented “attorneylitigants” seek to recover attorney fees for representing themselves. 183 

Ariz. at 419 (“The general rule against awarding fees to attorney-litigants is 

based upon a perception that such awards are windfalls to persons who 

have spent no money and incurred no debt for legal representation.”). This 

case raises no such concern because Plaintiffs were represented by Osborn 

Maledon and contractually bound to surrender any fee award to them.

¶21 The superior court did not abuse its discretion in awarding 

attorney fees to Plaintiffs.
FIELDS, et al. v. EORP, et al.

Opinion of the Court

7

CONCLUSION

¶22 We affirm the superior court’s fee award to Plaintiffs. We 

grant Plaintiffs their costs and reasonable attorney fees on appeal under 

A.R.S. §§ 12-341 and -341.01 upon compliance with Arizona Rule of Civil 

Appellate Procedure 21.