Opinion
65664-3-I
01-17-2012
THOMAS ESPINOSA and KARI ESPINOSA, husband and wife, Respondents, v. PROJECT SERVICES CORP., a Washington corporation; and GREGORY GLIEGE, a single man, Appellants.
UNPUBLISHED OPINION
APPELWICK, J.
Project Services appeals the trial court's February 2010 order affirming specific performance under a vacant land purchase and sale agreement, extending the closing date and granting the Espinosas attorney fees and costs. It also argues the Espinosas were not the substantially prevailing party entitled to fees. Gliege argues that even if the Espinosas were entitled to fees, they should have been awarded only against Project Services, not against him personally. Because Gliege was not a party to the original contract, we hold that he is not personally liable for the judgment of attorney fees and costs. We affirm in part, reverse in part, and remand for correction of the judgment.
FACTS
The underlying facts of this case were set forth in an earlier appeal to this court. Espinosa v. Project Servs. Corp., noted at 144 Wn.App. 1025, 2008 WL 1934847, at *2 ("Espinosa I"). Thomas and Kari Espinosa entered into a vacant land purchase and sale agreement (VLPSA or "the contract") with Project Services Corporation on March 15, 2006. The VLPSA required Project Services to maintain the property in the condition it was in when the Espinosas first viewed it. The VLPSA was originally set to close on May 3, 2006, but the closing date was extended to May 15, 2006 by agreement of the parties. On May 12, 2006, a fire occurred at the property when debris was brought from off-site and placed too close to a smoldering fire. Gregory Gliege, the president of Project Services, extinguished the fire using heavy equipment to cover it with dirt, but resulting in some alteration to the property. Based on their concerns following the fire, the Espinosas included a reservation of rights with the closing documents. Espinosa I, 2008 WL 1934847, at *1-2. Project Services refused to sign the reservation, and the transaction failed to close. Id. at 2. The Espinosas brought suit against Project Services on October 13, 2006, requesting specific performance of the VLPSA and alleging breach of contract, fraud, and misrepresentation. Id. The trial court granted partial summary judgment for Project Services and dismissed the Espinosas' claim for specific performance. Id. at 3. But, in Espinosa I, this court reversed the trial court, holding that the Espinosas had established a prima facie case that the land was improperly altered by Gliege, and thus there was a question of material fact about which party breached the contract. Id. at 4.
On October 24, 2008, the Espinosas filed their first amended complaint adding Gliege as an additional defendant. Project Services had transferred ownership of the property to Gliege after the closing date, and the Espinosas named him "so that the relief sought [could] be effectively obtained." The Espinosas initially sought the remedy of specific performance and damages for breach of contract. Project Services answered and submitted a counterclaim against the Espinosas for breach of contract and slander of title. The Espinosas denied the counterclaim and requested rescission of the contract, or in the alternative, specific performance if possible. They also requested damages.
The Espinosas contend in their brief that they sought either specific performance or rescission beginning with their October 2008 first amended complaint. Project Services disputes this, and it appears that the Espinosas did not request rescission until their June 19, 2009 answer to Project Services' counterclaim.
The Espinosas moved for summary judgment, arguing that Project Services' failure to maintain the property constituted a material breach of the contract. Project Services opposed the motion. The trial court granted the Espinosas' motion in part, finding that Project Services breached its obligations under the VLPSA. The trial court also found the Espinosas were entitled to attorney fees and costs. It reserved a determination of the amount of attorney fees and costs and reserved the issue of the appropriate remedy. The trial court then bifurcated the trial, with a judge to make the initial decision on liability and determine whether rescission or specific performance was appropriate, and a jury to determine damages.
Following a bench trial on liability, the trial court issued an oral ruling on September 3, 2009, finding that Project Services materially breached the contract and that the Espinosas were entitled to submit the reservation. The trial court concluded that the Espinosas were entitled to an award of specific performance, and set the closing date for December 31, 2009. The damages phase of the trial was set for hearing on December 14, 2009. At the hearing, the Espinosas stated that they would not present additional evidence on damages. Instead, they would rely on the evidence already submitted at the liability phase, would waive their jury trial and defer to the judge's determination. On December 28, 2009, the trial court heard argument on the damages claim and on the proposed findings of fact and conclusions of law. The trial court announced its decision awarding no damages to the Espinosas, and entered findings of fact, conclusions of law, and final judgment that same day. That document confirmed the change of closing date to December 31, 2009, concluded that the Espinosas were the prevailing party following Project Services' breach, and concluded that they did not carry their burden on the matter of damages. The trial court also awarded the Espinosas attorney fees and costs in the amount of $93,796.62, after reducing their fees by $7,500 for attorney fees for the damages portion of the case. Both Project Services and Gliege were named as judgment debtors.
On December 31, 2009, the closing date, the Espinosas' counsel sent an e-mail to Project Services' counsel stating that the Espinosas would not be closing on the property, and stating that they would release the earnest money to Project Services. The Espinosas later explained to the trial court that they were unable to close the sale due to difficulty in securing the necessary financing in light of the economic crisis and more restrictive banking regulations.
The e-mail from the Espinosas' attorney, Rod Dembowski, to Project Services' attorney, Roy Stegena, read in part as follows:
I received final word late yesterday from the Espinosas that they will not be closing on the property. Please send whatever form Preview Properties (assuming they still hold the earnest money) requires to release the earnest money to your client. We will promptly have our clients sign it.
Project Services moved for reconsideration and amendment of the December judgment on January 6, 2010 after the sale again failed to close. Project Services also sought attorney fees, arguing that based on the failure to close, the Espinosas breached the contract in their own right and were no longer the prevailing party. The Espinosas responded that Project Services could not properly raise an alleged breach of contract as a new claim or theory for recovery, when that alleged breach occurred three days after the judgment. The trial court ruled on the motion for reconsideration orally on February 1, 2010, and in writing on February 23, 2010. The trial court exercised its equitable authority, pushing the closing date back to April 1, 2010, reaffirming specific performance as the remedy, and leaving all other contract provisions in effect. It also modified the original attorney fee award, making it contingent upon whether the sale actually closed. Under this ruling, the $93,796.62 award was to be deducted from or credited against the original purchase price in the VLPSA. In the event that the Espinosas were again unable close the sale by April 1, 2010, they would no longer be entitled to the award, and Project Services would receive the $9,000 earnest money.
While Project Services' January 6, 2010 motion for reconsideration was pending, Gliege performed additional work on the property, removing trees that were damaged or fallen, and removing approximately twelve trees to enhance the property's view. The Espinosas continued to work on obtaining funds to close the purchase by April 1, 2010. Upon visiting the property shortly before the new closing date, the Espinosas discovered that Gliege had removed trees and made additional alterations to the property, such as widening the driveway.
On March 24, 2010, the Espinosas moved the court for relief from judgment under CR 60 and requested an additional 60 days extension of the closing to investigate. Gliege and Project Services opposed the motion, arguing in part that it was untimely. They conceded that Gliege had removed the trees, but asserted that he did so as maintenance, and to spruce up the property for sale, believing that the VLPSA had expired when it did not close on December 31, 2009. The trial court conducted a hearing on the motion on March 29, 2010. At the hearing, the trial court expressed its concern that Gliege and his attorney failed to disclose these alterations at the February 1, 2010 hearing. The trial court stated it may have reached a different decision on the motion for reconsideration if at the time it had been properly informed of the additional alteration. The trial court granted the Espinosas' motion, permitted the parties to engage in additional discovery, and extended closing to June 30, 2010. It also emphasized that no additional work was to be done on the property without a court order.
Discovery commenced, and each side submitted testimony from expert arborists to address the matter of damages and the value of the removed trees. The trial court heard the motion on June 22, 2010, and stated:
For the purposes of my ruling, the amount of damages is not the paramount issue. The issue is, did Mr. Gliege compound the alteration of the property by the removal of the trees? . . .
. . . .
Had I known what I know now in February when the oral argument was presented to me, I would not have reconsidered. I would have [let] the findings of fact, conclusions of law and the judgment stand.
The trial court made it clear that it would not have chosen specific performance as a condition of the Espinosas receiving their attorney fees and costs, essentially requiring them to go through with the purchase, if it was aware of the additional alteration. The trial court therefore granted the Espinosas' motion to amend, rescinded the contract, and returned the earnest money to the Espinosas. It also granted them their attorney fees and costs as it had back in December, no longer conditioned upon their closing the VLPSA, and added those additional fees and costs incurred after February. The trial court entered an amended final judgment consistent with its final order against both Project Services and Gliege. Project Services and Gliege appealed.
DISCUSSION
When findings of fact and conclusions of law are entered following a bench trial, appellate review is limited to determining whether the findings are supported by substantial evidence and, if so, whether the findings support the trial court's conclusions of law and judgment. Sunnyside Valley Irrigation Dist. v. Dickie, 111 Wn.App. 209, 214, 43 P.3d 1277 (2002), aff'd, 149 Wn.2d 873, 73 P.3d 369 (2003). Evidence is substantial if it is sufficient to persuade a fair-minded person that the declared premise is true. Id. Conclusions of law are reviewed de novo. Sunnyside, 149 Wn.2d at 880.
I. February 2010 Order on Reconsideration
Project Services' arguments and assignments of error focus first on the trial court's February 23, 2010 order on reconsideration. Project Services contends the trial court erred by upholding the earlier award of attorney fees to the Espinosas (albeit, conditioned on the closing of the purchase) and by extending the closing date to April 1, 2010.
A. Attorney Fees and Costs
It is clear from the December 28, 2009 decision that the Espinosas were the prevailing party on their breach of contract claim, and the trial court initially awarded them the remedy of specific performance. They also successfully defended against Project Services' slander of title and breach of contract claims. The contract provides that the prevailing party is entitled to reasonable attorney fees and expenses in the event of a suit concerning the agreement. Project Services now argues that, after failing to close on December 31, 2009, the Espinosas should no longer have been considered the substantially prevailing party. On December 28, 2009, the trial court granted the Espinosas the remedy of specific performance. Project Services contends that when the Espinosas rejected that relief, they breached the contract and relinquished the ability to claim they were the substantially prevailing party.
Under RCW 4.84.330, "prevailing party" means the party in whose favor final judgment is rendered. As a general rule, the prevailing party is one who receives an affirmative judgment in its favor. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997). But, if neither party wholly prevails, the determination of who is the substantially prevailing party depends on the extent of the relief accorded. Marassi v. Lau, 71 Wn.App. 912, 916, 859 P.2d 605 (1993), abrogated on other grounds by Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009); Transpac Dev., Inc. v. Young Suk Oh, 132 Wn.App. 212, 217, 130 P.3d 892 (2006).
Project Services relies on Marassi, and asserts that, because it prevailed in the damages phase of trial, both parties have achieved a measure of success, and this court must look to the extent of relief accorded. Project Services then takes this argument even further. It contends that after the Espinosas failed to close, they had forsaken the only relief afforded to them, leaving Project Services as the only party entitled to any relief, and thus establishing it as the substantially prevailing party. We reject that argument. The fact that the Espinosas were unable to close on December 31, 2009 or avail themselves of the relief granted does not undermine the trial court's December 28, 2009 ruling that they were the prevailing party in the underlying lawsuit. Here, unlike in Marassi, Project Services did not prevail in the underlying contract dispute, but was deemed to have breached the contract and was awarded nothing. Because the Espinosas succeeded in their breach of contract claim, they were initially, and remained, the prevailing party.
The trial court considered this same argument on December 28, 2009, stating:
There are several intertwining issues, but the court would find that the Espinosas were the prevailing parties under the lawsuit.
And defendants indicate that, well, they should only be prevailing parties if in fact they carry through with their specific performance. The court rejects that approach. The court may have been sitting as a court of equity in terms of presenting various relief, i.e., rescission or specific performance, but having done so, the court then is required to follow the conditions of the contract. And the contract in this case indicates that the prevailing party will be entitled to their attorneys' fees. It doesn't say, well, you're only entitled to these attorneys' fees in the event that you in fact close this transaction. It says, you're entitled to your attorneys' fees if you are successful at the lawsuit. The plaintiffs have been successful at the lawsuit.
This analysis remains applicable now. We hold that the trial court did not err in awarding the Espinosas attorney fees and costs.
B. Extension of Closing Date
In a related argument, Project Services contends the trial court abused its discretion by extending the closing date from December 31, 2009 to April 1, 2010. Project Services contends that the Espinosas' failure to close by
December 31 constituted a material breach by them as buyers. Project Services also suggests in the alternative that if the Espinosas did not breach the contract, it was only the trial court's improper and sua sponte decision to extend the closing date that prevented such a breach.
In matters of equity, trial courts have broad discretionary power to fashion equitable remedies. Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172 (2006).
The trial court understandably expressed its trepidation with the Espinosas tying up the property for years if they were not going to go through with the purchase. While litigation was pending, Project Services was unable to sell to another buyer. But, the evidence before the trial court in February 2010 suggested the Espinosas had every intention of going through with the specific performance remedy and always wanted to close the sale. The Espinosas presented evidence that they attempted to secure financing from Frontier Bank, but were unsuccessful. Accordingly, the trial court stated:
So it seems to me, using the equitable powers that are available under this prayer, that it would be appropriate that the judgment of attorney fees and costs would only be satisfied from the proceeds of a sale of the property for its original price of $375,000.
Now, in light of this court's ruling, I will extend by 60 days the time for the plaintiffs to close, and that is the closing date will be [April 1], 2010. All other terms of the purchase and sale agreement shall remain in full force and effect.
This result-a conditional judgment for fees and costs to the Espinosas-ultimately did not stand when the trial court subsequently granted rescission instead of specific performance in its June 2010 ruling. But, it was a result that the trial court was entitled to reach, under its broad discretionary authority sitting in equity. Indeed, as the Espinosas point out, this result was consistent with what Project Services had in fact requested in its response. Instead of the independently enforceable award of attorney fees and costs that was in place after the December 28, 2009 judgment, the trial court required the award of fees and costs to be in the form of an offset against the contract price. At the time, based on the drastic decrease in property value during the intervening years, requiring the Espinosas to pay the original 2006 VLPSA price was a favorable result for Project Services, as they argue themselves. We hold that the trial court did not abuse its broad discretion in extending the closing date or conditioning the Espinosas' attorney fees on their closing the sale.
II. Award of Fees Against Gliege Personally
Project Services argues that any fees and costs awarded to the Espinosas should have been imposed only against Project Services and not against Gliege personally. It contends that Gliege was not a party to the VLPSA since the property was not transferred to him until after the material breach had occurred, but prior to the initiation of the law suit.
Project Services transferred ownership of the property to Gliege by quitclaim deed on August 8, 2006, several months after the March 2006 fire and breach of the VLPSA. The Espinosas' original complaint filed on October 13, 2006 only named Project Services. This was consistent with the fact that the Espinosas and Project Services were the only two parties involved in the VLPSA. The Espinosas first added Gliege's name in their amended complaint filed on October 24, 2008. That amended complaint stated: "Defendant Gregory Gliege was the president of Project Services, caused the property to be transferred to his personal name after the closing date, and is named herein as the owner of the property in dispute, so that the relief sought can be effectively obtained." The relief sought was specific performance. It did not allege that Gliege was a party to the contract.
On September 3, 2009, having already found that Project Services breached the contract by altering the property, the trial court granted the Espinosas the remedy of specific performance. The court also concluded that they were entitled to an award of attorney fees and costs, as provided for in the contract. The Espinosas filed their motion for attorney fees and costs on December 16, 2009, and Project Services filed their response on December 22, 2009. Neither party addressed the issue of whether Gliege should be personally liable, jointly and severally, for any fees or costs awarded. The trial court awarded the Espinosas a $93,796.62 judgment, and indicated that both Project Services and Gliege were judgment debtors. That judgment was based on the fees and costs the Espinosas incurred litigating the breach of contract issue and damages, which they were entitled to as the prevailing party based on paragraph p of the VLPSA. But, while the trial court included Gliege as a debtor liable for the judgment, it did not enter any findings or conclusions pertaining to the basis for his personal liability.
The matter of Gliege's personal liability on the judgment was raised for the first time by Gliege and Project Services in their January 6, 2010 motion for reconsideration. They argued there, as they do now on appeal, that Project Services was the only seller listed in the VLPSA and that Gliege was never a party to the contract (or guilty of any breach) in his individual capacity. The Espinosas responded on January 25, 2010 with several arguments for why Gliege should be personally liable. They contended: (1) that a May 2006 amendment to the VLPSA included Gliege personally; (2) that he was an assignee of the contract, and took on its obligations and rights when he took ownership of the property; and (3) that he took title to the property subject to the Espinosas' contract rights, and the Espinosas' action against him personally was appropriate since it was an "action on the contract."
An "action on a contract" is broadly construed and encompasses any action in which it is alleged that a person is liable on a contract. Herzog Aluminum Inc. v. Gen. Am. Window Corp., 39 Wn.App. 188, 197, 197, 692 P.2d 867 (1984). An action is "on a contract" if it arises out of the contract and the contract is central to the dispute. Edmonds v. John L. Scott Real Estate, Inc., 87 Wn.App. 834, 855, 942 P.2d 1072 (1997).
The trial court's order on February 23, 2010 made no affirmative findings of fact on the Espinosas' arguments, nor did it enter any conclusions of law to support Gliege's personal liability. However, when it added the condition that the Espinosas were only entitled to attorney fees and costs as an offset upon closing, the result was that the Espinosas' judgment for fees and costs was required to come directly out of money they would pay to Project Services in specific performance upon closing. While Project Services did not own the property, it was the corporate name on the VLPSA, not Gliege's.
They also argued for the first time that liability could be extended to Gliege by piercing the corporate veil, if the court deemed that appropriate. This theory was not fully developed and the court entered no findings or conclusions on this issue.
Finally, on the Espinosas' CR 60 motion, the trial court entered an amended final judgment in June 2010, vacating the February 2010 order and reinstating the independent attorney fee judgment as it initially existed in December 2009. The trial court also awarded additional fees and costs that had been incurred since that time. For a third time, the trial court made no findings of fact or conclusions of law that established Gliege's personal liability.
The burden was on the Espinosas as plaintiffs to demonstrate why they were entitled to judgment against Gliege personally, when he was not a party to the original VLPSA at the time of its creation or the time of its breach. See generally Navlet v. Port of Seattle, 164 Wn.2d 818, 858, 194 P.3d 221 (2008). If the trial court fails to enter a finding on a material factual issue, this court presumes that the party with the burden of proof failed to sustain his or her burden on that issue. State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997). Here, the trial court did not enter findings on the matter of Gliege's personal liability in December 2009, February 2010, or June 2010. Accordingly, we hold that the Espinosas have failed to sustain their burden of proof that Gliege should be personally liable for the award of attorney fees and costs. We reverse the award of judgment against Gliege jointly and severally in his personal capacity, and affirm the judgment against Project Services.
III. Espinosas' March 24, 2010 CR 60 Motion
While Project Services' January 6, 2010 motion for reconsideration was pending, Gliege removed additional trees from the property. He did not disclose this fact to the trial court or the Espinosas at the February 1, 2010 hearing on Project Services' motion or at any time before the trial court entered the order on that motion on February 23, 2010. The Espinosas became aware of the additional changes to the property on March 7, 2010, upon visiting to prepare for the April 1, 2010 closing. On March 24, 2010, the Espinosas moved the court for relief from judgment under CR 60, requesting an additional 60 day extension of the closing date to investigate.
A. Challenge to the Timeliness of the Motion
Project Services now argues that the trial court erred by considering and granting the Espinosas' CR 60 motion because it was untimely. CR 60(b)(3) allows a court to relieve a party from a final judgment, order, or proceeding based on "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule [CR] 59(b)." It also provides that "[t]he motion shall be made within a reasonable time and for [newly discovered evidence] not more than 1 year after the judgment, order, or proceeding was entered or taken." CR 60(b). CR 59, in turn, provides that when there are grounds for a new trial or reconsideration, a motion must be filed not later than 10 days after the entry of the order. CR 59(b). Project Services contends that the Espinosas failed to establish that the newly discovered evidence could not have been discovered within 10 days of the trial court's February 23, 2010 order.
The trial court heard argument on the CR 60 motion on March 29, 2010. The court expressed its considerable concern about Gliege and Project Services' failure to disclose the alterations on February 1, 2010, particularly since it was prior alterations to the property that initially led to the lawsuit in 2006. And, while the Espinosas' March 24, 2010 motion for relief was not submitted within ten days of the February 23, 2010 order, it was not a motion for a new trial or for reconsideration, as is contemplated under CR 59(b), and was thus not subject to the 10 day requirement. Instead, it was a motion for relief from a judgment or order, governed by CR 60(b). Accordingly, it was required only to be brought within a reasonable time, not more than 1 year after the order, and based on "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule [CR] 59(b)." CR 60(b). The VLPSA required the seller to perform no alteration to the land. The litigation commenced because of an earlier alteration of the land, and Project Services did not disclose the subsequent alteration during the pendency of the litigation. The fact that the trial court did not find that the Espinosas failed to exercise due diligence on these facts is unremarkable and not an abuse of discretion. We reject the challenge to the trial court's decision to hear the motion or extend the closing date.
B. Supplemental Award of Attorneys Fees
The trial court allowed discovery, heard the merits of the motion for relief in June. It reversed its February 2010 order, which had the effect of reinstating the prior judgment from December 2009. The trial court also awarded the Espinosas attorneys fees incurred subsequent to the entry of the February order.
Project Services challenges the award of those fees. However, there is no doubt that the Espinosas were the prevailing party and that the proceedings between February and June were a continuation of the same cause of action on the contract. As previously noted, the contract provides for the award of fees to the prevailing party. The Espinosas prevailed under the December judgment and under the June order which reinstated it. We find no error.
IV. Contested Findings of Fact and Conclusions of Law
Finally, Project Services assigns error to two of the trial court's findings of fact and one conclusion of law contained in the December 28, 2009 findings of fact, conclusions of law, and final judgment. The disputed findings of fact read:
16. The Espinosas contacted Defendants about their concerns. The VLPSA provided for a ten day extension of closing. Project Services Corp. refused to delay closing to allow the Espinosas time to investigate the nature and extent of the damage to the Property.
. . ..
18. The Espinosas were within their rights by executing a Reservation of Rights with respect to the damages caused by the fire and grading and entering the document into escrow.
And, the disputed conclusion of law reads:
8. Plaintiffs were within their rights in terms of presenting Exhibit No. 4 (the reservation of rights document) and it was not a breach of the contract for them to do so.Project Services contends that if the court finds in their favor on this matter, all other assignments of error become moot.
Project Services does not raise an argument that substantial evidence does not support the disputed findings or that the findings do not support the conclusion. Instead, it argues that when the Espinosas added the reservation of rights to the VLPSA in 2006 upon discovering the alteration to the property, it prevented the transaction from closing by adding new material contract terms. But, as the Espinosas point out, this is merely a resurrection of the same argument that was raised in, and resolved by, this court in Espinosa I. In Espinosa I, this court stated:
Through the reservation of rights the Espinosas sought to ensure that they received the land they had contracted to buy in the condition they bargained for. The reservation was an attempt to preserve existing rights under the contract rather than assert new rights or responsibilities for the parties. However, adding a reservation of rights in the absence of breach by Project Services would itself be a breach by Espinosa, and they would be ineligible for specific performance.Espinosa I, 2008 WL 1934847, at *3. Project Services never sought further review of this court's determination in Espinosa I. The earlier holding thus constitutes the law of the case. See Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992) ("'law of the case'" refers to "'the binding effect of determinations made by the appellate court on further proceedings in the trial court on remand.'") (footnote omitted) (quoting 15 L. Orland & K. Tegland, Washington Practice: Judgments § 380, at 56 (4th ed. 1986)). While this language found only that there was a material fact still in dispute and that summary judgment for Project Services was inappropriate, it now must be read in conjunction with the subsequent undisputed trial court finding that Project Services did indeed breach the contract by altering the property. The reservation of rights was not an assertion of new rights, but was merely the Espinosas' attempt to preserve their already existing rights under the VLPSA. The trial court simply abided by the decision in Espinosa I in entering the challenged findings and conclusion. We reject Project Services' argument.
V. Attorney Fees
Both parties seek attorney fees and costs on appeal under RAP 18.1. The contract provides for the award of attorney fees and costs to the prevailing party:
Attorneys' Fees. If Buyer or Seller institutes suit against the other concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses.
Because the Espinosas substantially prevail on appeal, we award them attorney fees and costs as against Project Services. However, Gliege has prevailed on the issue of his personal liability for attorneys fees. Inasmuch as that claim was based on the assertion of contractual liability for those fees, Gliege is entitled to attorneys fees attributable to that issue on appeal. See Herzog Aluminum, Inc. v. Gen. Am. Window Corp., 39 Wn.App. 188, 197, 692 P.2d 867 (1984).
We affirm in part, reverse in part, and remand for correction of the judgment.