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Phillips Building Co. v. Bill an and Soo an

filed: May 10, 1996.

PHILLIPS BUILDING CO., INC., RESPONDENT,
v.
BILL AN AND SOO AN, HUSBAND AND WIFE, ET AL., APPELLANTS.



Superior Court of Thurston County. Superior Court Docket No. 93-2-00308-8. Date Filed In Superior Court: June 6, 1994. Superior Court Judge Signing: Wm. McPhee.

Written By: Armstrong, J., Concurred IN By: Seinfeld, C.j., Houghton, A.c.j.

Author: Armstrong

ARMSTRONG, J. -- Phillips Building Company and Bill

and Soo An agreed to arbitrate several claims of disputed amounts against each other arising from the construction of a motel. The arbitrators awarded the Ans approximately $15,000 in satisfaction of all of the claims and required them to discharge all subcontractor and supplier liens on the motel. The arbitrators also ruled that each party should bear its own attorney fees and costs. The Ans moved to modify the decision to include an award of attorney fees to them as the prevailing party. Because the prevailing party cannot be determined from the face of the arbitration award, we affirm the trial court's denial of the motion to modify.

FACTS

Bill and Soo An ("the Ans") entered into a contract with Phillips Building Co., Inc. ("PBC") for the construction of a motel in Tumwater, Washington. The contract provided that all disputes between the parties would be settled by arbitration. During construction, a dispute arose and PBC sued the Ans, filing a lien against the motel for the unpaid contract balance. PBC claimed over $1.2 million in damages as a result of the unpaid balance, work interference, economic compulsion, and quantum meruit. The Ans counterclaimed against PBC for misrepresentation, breach of contract, defective construction, and breach of warranty. The Ans sought approximately $980,000 in damages, and joined John and Ann Phillips ("Phillips") as third party defendants. The Phillips were required to personally guarantee PBC's obligations under the contract. At a mediation session, the parties signed an "Agreement to Arbitrate." The agreement provided that "all attorneys fees and costs will be awarded to the prevailing party."

At oral argument before this court, the parties could not agree on the claims and amounts that each side had

sought during arbitration.*fn1 It appears that PBC had sought approximately $1.3 million and that the Ans counterclaimed for between $500,000 and $600,000. The parties also disagree over whether issues concerning the warranties and the liens owed to various subcontractors and suppliers were before the arbitration panel.*fn2

During the arbitration proceedings, approximately $138,000 in subcontractor and supplier liens were still on the motel. The Ans had paid, but not released, all of these liens, except for one unpaid lien of $4,424.40. Seafirst Bank had refused to release PBC's $100,000 bond, guaranteeing lien-free completion, until all of the liens were released by the Ans.

After three weeks of testimony, the arbitrators issued the following decision:

[PBC] shall assign all rights to warranties, express or implied, received from subcontractors and/or suppliers to [the Ans].

In satisfaction of all monetary and performance claims entered in relation to this case and to the above-referenced contract, the ...


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