Appeal from Grant Superior Court. Docket No: 09-2-01276-4. Judge signing: Honorable John D Knodell. Judgment or order under review. Date filed: 03/29/2013.
Dillon E. Jackson and Charles P. Rullman III (of Foster Pepper PLLC ), for appellant.
George M. Ahrend and Matthew C. Albrecht (of Ahrend Albrecht PLLC ), for respondents.
Authored by Robert E. Lawrence-Berrey. Concurring: George B. Fearing, Stephen M. Brown.
[183 Wn.App. 496] ¶ 1 This case presents an issue of first impression in Washington: whether a prevailing party in a contract action is entitled to attorney fees when it fails to assert such a right in response to a pleading that requests contractual attorney fees. The lower court concluded that attorney fees are special damages under CR 9(g) and that the failure to plead them prevents their award. We hold that CR 54(c) creates an exception: Where, as here, the nonprevailing party makes a claim for contractual attorney fees, such party has sufficient notice that attorney fees are awardable so that CR 54(c) obligates their award to the prevailing party. We therefore reverse.
¶ 2 The Kathryn Learner Family Trust (Trust) leases property from James Wilson and the estate of Elsa Burgett (collectively Mr. Wilson). In September 2009, the Trust filed a lawsuit against Mr. Wilson seeking a declaratory judgment concerning the parties' lease. The Trust asked the court to interpret rent provisions of the lease, to determine the amount the Trust owed to Mr. Wilson, and to direct the Estate to complete probate. The complaint stated that it was not seeking a money award and did not include a demand for attorney fees.
¶ 3 By February 2010, Mr. Wilson had not answered the declaratory judgment action. The Trust filed a motion for default judgment. On February 16, Mr. Wilson answered the Trust's declaratory judgment complaint. In the same filing, he alleged a
counterclaim against the Trust for material breach of the lease and intentional misconduct and knowing violation of the law. He requested monetary [183 Wn.App. 497] damages. Mr. Wilson also sought an award of attorney fees and costs as provided by the lease contract. The Trust answered the counterclaim, denied that the relief requested by Mr. Wilson was appropriate, but (again) did not request an award of attorney fees.
¶ 4 In July 2011, the Trust moved for summary judgment on the declaratory relief claim. It still did not request attorney fees. Eventually, on August 17, 2012, the trial court granted summary judgment in favor of the Trust, adopting the Trust's interpretation of the contract. Mr. Wilson voluntarily dismissed his counterclaim on September 14.
¶ 5 On September 24, the Trust filed a motion for an award of attorney fees, requesting over $130,000. The Trust argued that it was entitled to attorney fees under the express terms of the lease. The lease stated, " In the event of suit or action brought because of or to enforce provisions herein, the prevailing party in such suit or action shall be entitled to recover reasonable attorney fees in addition to such other relief as the Court may grant." Clerk's Papers (CP) at 379. The Trust contended that it was the prevailing party because ...