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BALESTRIERI v. BALESTRIERI

No. 1 CA-CV 12-0089.

300 P.3d 560 (2013)

Salvatore BALESTRIERI, Plaintiff/Appellant, v. David A. BALESTRIERI, Defendant/Appellee.

Court of Appeals of Arizona, Division 1, Department C.

May 9, 2013.

Attorney(s) appearing for the Case

Baroumes & Bruen PLC, By Charles J. Bruen III , Derek M. Baroumes , Attorneys for Plaintiff/Appellant.

Law Office of Stephen D. Smith, L.L.C., By Stephen D. Smith , Attorneys for Defendant/Appellant.

OPINION

JOHNSEN, Judge.

¶ 1 We hold in this appeal that a defendant who files a motion to dismiss pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b) in lieu of an answer forfeits his claim for attorney's fees if he does not ask for fees at the time he moves to dismiss. The defendant here did not request fees until after the superior court granted his motion to dismiss. We vacate the award of fees because the defendant's request was untimely...

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