T & B WASHINGTON, INC. DBA COLDWELL BANKER TOMLINSON SOUTH, Interpleader Plaintiff,
VIRGINIA DULLANTY, AN UNMARRIED PERSON, Appellant, and GARY SAWYER AND SANDRA SAWYER, INDIVIDUALLY AND/OR AS TRUSTEES OF THE GARY AND SANDRA SAWYER REVOCABLE TRUST, Respondents.
appeal stems from an interpleader action initiated by T &
B Washington, Inc. to determine disbursement of $3, 000 in
earnest money after a failed real estate transaction. The
sole issue on appeal concerns the superior court's award
of attorney fees under RCW 4.84.250 to Gary and Sandra Sawyer
as disbursement recipients. We hold that because the
interpleader brought by T & B Washington was not an
"action for damages, " the attorney fee award
pursuant to RCW 4.84.250 was inappropriate. The judgment
awarding fees is therefore reversed.
underlying facts of the parties' real estate transaction
are not relevant to the issue on appeal and therefore require
only brief mention. Virginia Dullanty was in the process of
selling her home to Gary and Sandra Sawyer. As part of the
purchase and sale agreement, the Sawyers posted $3, 000 in
earnest money toward the sale. Prior to closing, a windstorm
damaged Ms. Dullanty's property and the Sawyers declined
to proceed with the purchase. The Sawyers requested a return
of their earnest money, but Ms. Dullanty refused. Pursuant to
RCW 64.04.220 and the terms of the purchase and sale
agreement, T & B Washington, the holder of the earnest
money, instituted an interpleader action in superior court to
determine disbursement of the earnest money.
initial attempts at settlement, the Sawyers moved for summary
judgment. They sought disbursement of the $3, 000 that had
been deposited into the court's registry and an award of
reasonable attorney fees and expenses. Ms. Dullanty responded
by claiming the $3, 000 should be disbursed to her and that
she should be awarded fees and costs. Neither the Sawyers nor
Ms. Dullanty formally asserted a claim or cross claim against
the other. The superior court ultimately granted summary
judgment and ordered the $3, 000 held in the court's
registry to be disbursed to the Sawyers.
superior court then requested additional briefing on the
issue of attorney fees. After reviewing the briefing and
hearing argument from the parties, the court again found in
favor of the Sawyers. The court entered a judgment against
Ms. Dullanty in the amount of $36, 510.75 for attorney fees
as costs pursuant to RCW 4.84.250. Ms. Dullanty appeals.
court award of fees as costs
4.84.250 authorizes an award of reasonable attorney fees as
costs to the prevailing party in "any action for
damages" of $10, 000 or less. Our review of whether a
given lawsuit constitutes an "action for damages"
under the statute is de novo. See Target Nat'l Bank
v. Higgins, 180 Wn.App. 165, 172, 321 P.3d 1215 (2014).
agree with Ms. Dullanty that the instant case did not involve
an action for damages. This matter was initiated as an
interpleader action by a neutral party in order to determine
which entity, Ms. Dullanty or the Sawyers, was entitled to
return of the $3, 000 earnest money deposit. RCW 64.04.220.
Neither Ms. Dullanty nor the Sawyers requested any additional
relief in the form of contract or tort damages. See Davy
v. Moss, 19 Wn.App. 32, 34, 573 P.2d 826 (1978)
("In Washington, the word 'damages' has been
construed to include both tort and contract actions.").
Given this procedural posture, the action before the superior
court was purely equitable.
previously held that when a court is only asked to adjudicate
the return of property, the suit does not constitute an
action for damages, as contemplated by the attorney fee
statute. In re 1992 Honda Accord, 117 Wn.App. 510,
523, 71 P.3d 226 (2003); see also Kobza v. Tripp,
105 Wn.App. 90, 18 P.3d 621 (2001). Our prior reasoning fully
applies in this case. The fact that the property at issue
here is a lump sum of money, as opposed to an item of
personal property, does not alter our analysis. 1992
Honda Accord, 117 Wn.App. at 523 (return of impound fees
did not constitute an action for damages).
ruling should not be read to mean that no suit regarding an
earnest money deposit can qualify as an action for damages.
An earnest money deposit can be akin to liquidated damages.
When the purchaser to a real estate contract breaches the
terms of a purchase and sale agreement, the seller can pursue
forfeiture of earnest money as a remedy in lieu of actual
damages. See RCW 64.04.005. In such circumstances, a
breach of contract suit would constitute an action for
damages for purposes of statutory attorney fees. But that is
not what happened here. Ms. Dullanty never filed a claim for
breach of contract, requesting return of the earnest money as
liquidated damages. Nor did the Sawyers file a claim for
breach of contract. Instead, both parties merely requested
disbursement of funds, which was a form of relief fully
within the scope of T & B Washington's original
interpleader suit. Although the parties' briefing in
support of disbursement included arguments over whether there
had been a breach of the purchase and sale agreement, those
substantive arguments did not alter the nature of the action
before the superior court.
the instant case did not involve an action for damages, RCW
4.84.250 is not applicable. The superior court therefore
erred in awarding fees as costs to the Sawyers under that