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King v. Dickinson

April 21, 1997

BRENDA KING, RESPONDENT
v.
JEFF DICKINSON AND JANE DOE DICKINSON, APPELLANTS



Appeal from Superior Court of King County. Docket No: 94-2-24953-3. Date filed: 03/26/96. Judge signing: Hon. John M. Darrah.

Per Curiam. In this partnership accounting action, the trial court concluded that both sides had "prevailed" and were entitled to attorney fees, but that the awards would offset one another; the judgment therefore contained no attorney fee award. Jeff Dickinson appeals, arguing that as the prevailing party for purposes of RCW 4.84.250, he was entitled to an award of attorney fees without offset. Because the "amount pleaded" in this case exceeded $10,000, however, RCW 4.84.250 did not authorize an award of attorney fees. We therefore affirm the trial court's decision not to award attorney fees, but on an alternative ground.

In August 1992, appellant Jeff Dickinson and respondent Brenda King became partners in a business venture to generate and sell various kinds of sales "leads" to marketing companies. Dickinson and King eventually had a falling out, and on September 30, 1994, King filed this action for dissolution of the partnership and an accounting. In her complaint, King sought "damages . . . in the sum of $10,532.42, together with prejudgment interest." Following mandatory arbitration, Dickinson requested a trial de novo.

On December 21, 1995, Dickinson made an offer of settlement under RCW 4.84.250 for $5,000. Following a bench trial, the trial court found that Dickinson had breached his duty to King by failing to grant her access to the partnership records and by failing to account to the partnership for profits; the court then entered a judgment totaling $3,770.50 plus prejudgment interest in King's favor. Both sides requested an award of attorney fees: Dickinson sought $15,790 under RCW 4.84.250; King sought attorney fees based on Dickinson's breach of his fiduciary duty. See Hsu Ying Li v. Tang, 87 Wash. 2d 796, 557 P.2d 342 (1976). The trial court found that both sides had prevailed and were entitled to attorney fees, but ruled that the awards would offset one another. Only Dickinson has appealed the trial court's ruling.

Dickinson argues that the trial court erred in ruling that both sides had "prevailed" at trial. He maintains that King failed to demonstrate any recognized basis for an award of attorney fees and that, in any event, only one party can be the "prevailing" party for purposes of RCW 4.84.250. Dickinson reasons that he is therefore entitled to an award of attorney fees without any offset. We conclude, however, that Dickinson was not entitled to attorney fees under RCW 4.84.250.

Attorney fees may be awarded under RCW 4.84.250 only if the "amount pleaded" is less than $10,000. The "amount pleaded" for purposes of RCW 4.84.250 includes only a party's basic claim for damages. Mackey v. American Fashion Institute Corp., 60 Wash. App. 426, 431-32, 804 P.2d 642 (1991) ("amount pleaded" does not include attorney's fees); Northside Auto Service, Inc. v. Consumers United Ins. Co., 25 Wash. App. 486, 492, 607 P.2d 890 (1980) ("amount pleaded" does not include interest). In this case, King's complaint alleged damages exceeding $10,000, excluding prejudgment interest.

Dickinson asserts that the "amount pleaded" means the "amount in controversy," i.e., the amount "actually litigated at trial," and that RCW 4.84.250 was applicable because King requested damages of only $8,081.01 at trial. Dickinson cites no relevant authority in support of this proposition. Moreover, in Beckmann v. Spokane Transit Authority, 107 Wash. 2d 785, 733 P.2d 960 (1987), the court noted that because the purpose of RCW 4.84.250 is to prevent trials and encourage settlements, "anything occurring during trial has no effect on the applicability of [RCW 4.84.250]." Beckmann, 107 Wash. 2d at 791 (party's request during closing argument for damages exceeding statutory maximum did not affect applicability of RCW 4.84.250).

Nor has Dickinson identified anything in the record supporting his assertion that King amended her complaint prior to trial to claim damages totaling only $8,081.01. The record designated by Dickinson for purposes of this appeal contains only King's original complaint, which sought damages exceeding $10,000.

Dickinson also argues that King cannot challenge the trial court's ruling that he was a prevailing party because she failed to file a cross appeal. Even if the trial court relied on an incorrect reason, however, this court has discretion to affirm the judgment on any alternative basis supported by the record. See Bock v. State, 91 Wash. 2d 94, 95, n.1, 586 P.2d 1173 (1978). A respondent need not file a cross appeal when urging additional grounds for affirmance of the judgment. Nord v. Phipps, 18 Wash. App. 262, 266 n.3, 566 P.2d 1294 (1977), review denied, 89 Wash. 2d 1014 (1978). Our determination that RCW 4.84.250 does not apply under the facts of this case constitutes an affirmance of the trial court's decision on an alternative ground.

A notice of cross appeal is required "if the respondent seeks affirmative relief as distinguished from the urging of additional grounds for affirmance." Phillips Building Co., Inc. v. An, 81 Wash. App. 696, 700 n.3, 915 P.2d 1146 (1996). King's failure to file a notice of cross appeal therefore precludes this court from granting her affirmative relief in the form of reversal of the trial court's ruling and remand for an award of attorney fees. Phillips Building Co., 81 Wash. App. at 700 n.3.

Finally, in his Reply Brief, Dickinson has moved to strike King's Brief, arguing that it misstates the facts and fails to comply with the Rules of Appellate Procedure. Dickinson's motion is not properly brought in his brief and is therefore denied. See RAP 17.4(d) (party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits); State v. Saas, 118 Wash. 2d 37, 46 n.2, 820 P.2d 505 (1991).

The judgment is affirmed; the parties' requests for attorney fees on appeal are denied.

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