ORDER

CINDY JORGENSON, District Judge

On August 3, 2006, Magistrate Judge Jennifer C. Guerin issued a Report and Recommendation [Doc. # 42] in which she recommended Defendant's Motion for Summary Judgment [Doc. # 28] be granted on all of Plaintiff's claims and Defendant's request for an award of attorneys' fees be denied. Defendant Commercial Federal Bank, Inc. ("CFB") has filed an objection to the Report and Recommendation asserting that it is the prevailing party in this matter and it is entitled to an award of attorneys' fees for expenses incurred in proving the absence of a contract and because Plaintiff Giles Construction, Inc. ("Giles") acknowledged in the Complaint that an award of attorneys' fees to the successful party would be appropriate. Giles asserts, however, that CFB prevailed on the four tort claims and that there was never a breach of contract claim alleged by Giles. Neither party has filed any objections to the remaining issues.

The Court is to make a de novo review of those issues to which objection is made. 28 U.S.C. § 636(b)(1). As to those issues to which no objections are filed, the Court is to review the findings and recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The parties have not objected to the magistrate judge's determinations of the issues presented in the Motion for Summary Judgment. The Court has reviewed those issues and finds they were correctly decided by the magistrate judge.

CFB has objected, however, to the magistrate judge's determinations as to an award of attorney's fees. The Court will review this issue de novo. "A party is entitled to an award of its attorney's fees under A.R.S. § 12-341.01 if judgment in its favor is based upon the absence of the contract sued upon by the adverse party." Lacer v. Navajo County, 141 Ariz. 392, 394, 687 P.2d 400, 402 (App. 1984). Indeed, an award of attorney's fees is not precluded merely because two legal theories are intertwined "`as long as the cause of action in tort could not exist but for the breach of the contract.'" In Re Larry's Apartment, L.L.C., 249 F.3d 839, 836 (9th Cir. 2001), quoting Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 543, 647 P.2d 1127, 1141 (1982) (en banc); see also White v. Arizona Property and Casualty Insurance Guaranty Fund, 190 Ariz. 526, 950 P.2d 1147 (1997). An award is not appropriate, however, where the contract is "merely somewhere in the factual background." Larry's Apartment, 249 F.3d at 836.

In this case, Giles' tort claims were not reliant on a breach of contract. Giles' allegations against CFB could have existed whether or Giles and the medical facility had contracted for the construction work. Further, the allegations against CFB do not involve a contractual relationship between Giles and CFB. Lastly, Giles' own assertion in the Complaint that the successful party is entitled to an award of attorney's fees does not require a determination that an award is appropriate. Rather, just as the Court is to determine whether a complaint states a cause of action or whether there is an absence of a genuine issue of material fact and that judgment as a matter of law should be granted, it is the Court that determines whether a party is entitled to an award of attorney's fees. The Court finds the contractual relationships were peripheral to the claims and an award of attorney's fees is not appropriate.

After an independent review, IT IS ORDERED:

1. The Report and Recommendation [Doc. # 42] is ADOPTED;

2. Defendant's Motion for Summary Judgment [Doc. # 28] is GRANTED;

3. Summary judgment in favor of Defendant is GRANTED;

4. The request for an award of attorney's fees is DENIED, and;

5. The Clerk of the Court shall enter judgment accordingly and shall then close its file in this matter.