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Hertz v. Riebe

May 1, 1997


Appeal from Superior Court of Spokane County. Docket No: 91-2-03383-2. Date filed: 01/19/95. Judge signing: Hon. Richard J. Schroeder.

Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. A prevailing party is entitled to attorney fees if fees are authorized by contract, statute, or a recognized equitable ground. Seattle-First Nat'l Bank v. Siebol, 64 Wash. App. 401, 409, 824 P.2d 1252, review denied, 119 Wash. 2d 1010, 833 P.2d 386 (1992); RCW 4.84.330. Donald and Lee Hertz sued Howard and Norma Riebe to rescind an earnest money agreement. They prevailed. The Riebes sued the Hertzes for rent and other damages owed by the Hertzes as a result of their preclosing occupancy of two apartments. The Riebes prevailed. The question here is who, if either, is the prevailing party and therefore entitled to recover attorney fees at trial and on appeal. We hold that neither is and affirm the trial court's decision denying fees.


The Hertzes agreed to buy an apartment complex from the Riebes. They signed an earnest money agreement and gave the Riebes $1,000 earnest money. The earnest money agreement provided for attorney fees to the prevailing party in an action based on the agreement. The Hertzes occupied two of the apartments before closing.

After they discovered that the underlying mortgage balance, interest rate, and monthly payments had been misrepresented, the Hertzes refused to purchase the property. They demanded return of their earnest money. The Riebes refused. The Hertzes sued in small claims court for $1,525, which included their earnest money deposit, telephone installation costs, home inspection fee, and moving expenses. The Riebes sued the Hertzes in a separate small claims action for rent for their preclosing occupancy, for repairs, a ladder, and cleaning bills. The Riebes prevailed in both actions. The Hertzes appealed to superior court. The cases were consolidated. The Riebes offered to settle the matter by exchanging the earnest money of $1,000 for the rent awarded them in district court. The Hertzes rejected the offer.

The superior court found that the Hertzes had rightfully refused to close the sale, were entitled to a return of their earnest money, and that the Riebes were entitled to $1,000 as reasonable rent. Because both parties prevailed on major issues, the court refused to award fees and costs. The Hertzes appeal contending that they were the prevailing party. The Riebes request attorney fees on appeal based on their settlement offer after the district court judgment, but before the trial de novo in superior court.


Prevailing Party. An award of attorney fees must be based on contract, statute or recognized ground in equity. Siebol, 64 Wash. App. at 409. In any action on a contract which allows attorney fees incurred to enforce the contract provisions, attorney fees should be awarded to the "prevailing party." RCW 4.84.330.

Here, the earnest money agreement provided for attorney fees. The Hertzes' first contention is that because the basis for their claim the earnest money agreement provided for attorney fees and the basis for the Riebes' counterclaim unpaid rent and expenses did not, they should be entitled to fees as the "prevailing party."

RCW 4.84.330 defines a prevailing party as "the party in whose favor final judgment is rendered." That, in turn, has been interpreted to mean the party who substantially prevailed. Marine Enters., Inc. v. Security P. Trading Corp., 50 Wash. App. 768, 772, 750 P.2d 1290, review denied, 111 Wash. 2d 1013 (1988). Accordingly, if both parties prevail on a major issue, neither is a prevailing party. Wesche v. Martin, 64 Wash. App. 1, 13, 822 P.2d 812 (1992); Marine Enters., 50 Wash. App. at 773. The statute does not define the prevailing party as one who prevailed on a claim which authorized attorney fees. The statute focuses rather on the relief afforded to the parties for the entire suit whether or not the underlying claim provides for fees. See generally Rowe v. Floyd, 29 Wash. App. 532, 535 n.4, 629 P.2d 925 (1981). After consolidation, both the Hertzes' claim and the Riebes' claim were part and parcel of the same suit. CR 42(a). Both parties prevailed on their respective claims and thus neither is a "prevailing party."

The Hertzes next argue that the court should have apportioned attorney fees between the parties based on the claims on which each prevailed. They rely on Marassi v. Lau, 71 Wash. App. 912, 917, 859 P.2d 605 (1993). There, the court held that "when the alleged contract breaches at issue consist of several distinct and severable claims, a proportionality approach is more appropriate." Id. at 917.

Marassi is not applicable. There, the plaintiff was successful in only 2 of 12 contract claims. Each claim was distinct and severable. The court held that concluding the plaintiff had prevailed was unjust when the defendant successfully defended against the majority of claims. Marassi, 71 Wash. App. at 916-17. It concluded that the "substantially prevailing standard" was not adequate. Here, each party recovered on a substantial theory and therefore the proportionality approach adopted in Marassi does not apply.

Fees on Appeal. The Riebes request fees on appeal. They rely on an earlier case from this division, Valley v. Hand, 38 Wash. App. 170, 684 P.2d 1341, review denied, 103 Wash. 2d 1006 (1984). There, the plaintiff made no offer of settlement but prevailed in small claims court and on appeals to superior court and the Court of Appeals. The court held that based on its reading of RCW 4.84.290 an offer of ...

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