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Bolding v. Wesley-Davis

October 28, 1996

JOHN A. BOLDING, RESPONDENT,
v.
CYNTHIA S. WESLEY-DAVIS, APPELLANT, AND GREG B. DAVIS, DEFENDANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-2-05492-7. Date filed: 06/22/95. Judge signing: Hon. Ronald L. Castleberry.

PER CURIAM -- Cynthia S. Wesley-Davis appeals the trial court order denying her motion for attorney fees. Wesley-Davis contends that as the prevailing party at arbitration, an award of attorney fees was mandatory and that the arbitrator erred in failing to resolve the issue of attorney fees and in concluding he had no jurisdiction to enter an amended award addressing the issue. Wesley-Davis also contends that the trial court erred in failing to award attorney fees when the arbitrator refused to do so. We need not reach these issues because, as explained below, Wesley-Davis was not a substantially prevailing party.

In 1991, John Bolding entered into a lease agreement with an option to purchase property owned by Cynthia S. Wesley-Davis and Greg Davis (hereafter Wesley-Davis). *fn1 The lease included an attorney fees clause that provided:

If, by reason of any default or breach on the part of either party in the performance of any of the provisions of this agreement, a legal action is instituted, the losing party agrees to pay all reasonable costs and attorney's fees in connection therewith.

Wesley-Davis and Bolding entered into two real estate purchase and sale agreements, under which Bolding paid a $5,000 earnest money and later paid additional sums. A dispute arose over whether Wesley-Davis or Bolding was responsible for roof repairs. The roof dispute was never resolved, and Bolding was unable to exercise his option to purchase. In July 1994, Bolding vacated the property.

Bolding filed a complaint against Wesley-Davis for return of the $5,000 earnest money under theories of breach of contract, return of moneys paid, and quantum meruit. Bolding subsequently amended his complaint to add a cause of action for anticipatory breach of the option to purchase contract. *fn2 Wesley-Davis counterclaimed for breach of the lease, common law waste, and intentional waste. Due to the amount of damages pleaded, the case was subject to mandatory arbitration.

The arbitrator awarded nothing on Bolding's claim and nothing on Wesley-Davis' counterclaim. The arbitrator found:

5. Looking at the acts of the parties and their attorneys at the time of the alleged breach, I conclude that the option was abandoned by Bolding and that Wesley voluntarily re-entered the property, with both parties impliedly waiving all claims under the 1991 Lease Agreement. Unfortunately, I find no basis to return the initial $5,000 payment for the lease-option. I find that the rent was $900/month for the time Bolding occupied the premises with $150/month being only a contingent credit in the event Bolding was able to exercise his option.

6. I further find no damage to the premises other than normal wear and tear.

The arbitrator's award made no mention of attorney fees, although Wesley-Davis had requested an award of attorney fees on several theories.

Wesley-Davis and Bolding then requested that the arbitrator reconsider or clarify his decision with respect to attorney fees. The arbitrator responded: "Although I appreciate your respective positions on attorneys' fees, I am not going to reopen the hearing to sort this out. It is my position that I have no further jurisdiction [in] this matter."

Neither Wesley-Davis nor Bolding sought a trial de novo. After the 20-day trial de novo appeal period had elapsed, Wesley-Davis moved for entry of a judgment on arbitration award. At the same time, Wesley-Davis sought an award of attorney fees, arguing that the award was mandatory but the arbitrator believed he was without jurisdiction to make such an award.

Bolding opposed Wesley-Davis' request for attorney fees.

The trial court refused to award Wesley-Davis attorney fees and entered the judgment on award of arbitration.

Wesley-Davis contends that as the prevailing party at arbitration, an award of attorney fees was mandatory under the lease agreement and RCW 4.84 et seq. She argues that (1) the arbitrator erred in failing initially to address the issue of attorney fees, contrary to MAR 3.2, SCLMAR 3.2, MAR 6.1 and SCLMAR 6.1; (2) under MAR 6.2 the arbitrator had the authority to enter an amended order addressing the issue of attorney ...


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