dissenting:
I respectfully dissent. Unlike the majority, I agree with Focal Point, and believe that Johnson v. Nelson was an anomaly.
The request for attorneys’ fees preceded the enactment of A.R.S. § 12-349(A)(3). On the merits, I do not believe the trial court could award costs and attorneys’ fees pursuant to A.R.S. §§ 12-341 or -341.01. Wagenseller v. Scottsdale Mem. Hosp. is distinguishable. There, the supreme court determined that Wagenseller was the “successful party” on appeal, even though the cause was remanded for trial, because the appeal “settled issues of law central to the case.” 147 Ariz. 370, 394, 710 P.2d 1025, 1049 (1985) (supplemental opinion).
Although any party to this case could have filed a motion to set and certificate of readiness pursuant to Rule 5(b), Uniform Rules of Practice, no one did. Through the tacit acquiescence of all parties, this case was dismissed without prejudice. A.R.S. § 12-341.01(B) predicates the award of attorney’s fees on a party “establishpng] a just claim or a just defense.” This was done in Wagenseller; no party to this case has established anything relative to a claim or defense. I do not believe that the authorities cited by the majority require that all defendants be conferred the status of successful parties in cases dismissed pursuant to Rule 5.
I would reverse the awards of costs and attorney’s fees.