Opinion
No. 25325-2-III.
May 29, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-2-05325-7, Harold D. Clarke III, J., entered June 14, 2006.
Donita and Bart Humrich filed this action seeking damages against a contractor, Ken and Jane Kerr and Kustom Remodle Konst. Co. (the Kerrs) and the contractor's bonding company, Contractors Bonding and Insurance Co. The Kerrs counterclaimed. The jury returned a verdict awarding $8,915 to the Humriches and $3,000 to the Kerrs. The Humriches moved for an award of attorney fees under RCW 18.27.040(6). The court concluded that they were not entitled to an award of attorney fees because both parties prevailed at trial. We affirm.
FACTS
The Humriches commenced this action seeking damages against a contractor and the contractor's bonding company. When the Humriches filed their complaint, they sought $25,000 in damages. Later, they amended their complaint to request $12,649. The Kerrs counterclaimed that the Humriches breached their contract by refusing to pay $6,118.94.
The dispute was arbitrated under the Mandatory Arbitration Rules. The arbitrator awarded $3,905.55 to the Humriches, but did not award attorney fees to either party. The Humriches appealed for a de novo trial.
The trial involved two issues: which of the parties violated their oral construction contract and, if so, what were the damages. The jury returned verdict form C, awarding $8,915 to the Humriches and $3,000 to the Kerrs. The trial court entered a net judgment of $5,915 in favor of the Humriches. The court denied the Humriches' motion for attorney fees, concluding that neither party prevailed, and neither party was entitled to an award of attorney fees. The Humriches appeal.
ANALYSIS
Did the trial court err by denying the Humriches' request for attorney fees?
The Humriches contend that the trial court erred by denying their request for attorney fees. The Humriches point out that generally the party with an affirmative judgment is the prevailing party. They maintain that the court should have applied the net affirmative judgment rule and awarded attorney fees. Additionally, the Humriches assert that they should be awarded their attorney fees because they bettered their position at trial.
The determination of the prevailing party is a mixed question of law and fact that is reviewed under an error of law standard. Sardam v. Morford, 51 Wn. App. 908, 911, 756 P.2d 174 (1988). The question of whether a party is entitled to attorney fees is an issue of law reviewable de novo. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126-27, 857 P.2d 1053 (1993).
In Washington, a prevailing party generally does not recover its attorney fees unless expressly authorized by statute, by agreement of the parties, or upon a recognized equitable ground. Cohn v. Dep't of Corr., 78 Wn. App. 63, 66, 895 P.2d 857 (1995). Here, the Humriches requested attorney fees under RCW 18.27.040, which reads:
(6) The prevailing party in an action filed under this section against the contractor and contractor's bond or deposit, for breach of contract by a party to a construction contract, is entitled to costs, interest, and reasonable attorneys' fees.
The prevailing party is the party who receives an affirmative judgment in their favor. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997). However, the prevailing party also means the party who substantially prevailed. Hertz v. Riebe, 86 Wn. App. 102, 105, 936 P.2d 24 (1997). Accordingly, if both parties prevail on a major issue, neither party is a prevailing party. Id.
Here, each party litigated a single claim against the other party. Both parties prevailed on their claim and both parties received a judgment in their favor. Under these circumstances, the Humriches did not substantially prevail and are not entitled to an award of attorney fees.
Attorney Fees. Both parties request attorney fees on appeal pursuant to RAP 18.1(a) and RCW 18.27.040(6). Under RCW 18.27.040(6), the prevailing party in an action against a contractor or contractor's bond for a breach of a construction contract is entitled to costs and attorney fees. Neither party here is a prevailing party.
Affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Schultheis, A.C.J., Brown, J.