Primer on Award of Attorney Fee Awards

Guillen v. Contreras, 195 P.3d 90 (Wash.App. Div. 3 Nov 04, 2008) (NO. 26432-7-III)

Many Washington State statutes allow attorney fees to the party who “prevails” or “substantially prevails.” Division III of the Washington Court of Appeals explained the rule in Guillen , which provided a review of existing law on the subject.

When the question is one of money damages, the party that obtains judgment is the prevailing party. Blair v. Wash. State Univ., 108 Wash.2d 558, 571, 740 P.2d 1379 (1987). When a monetary judgment is not the sole issue and both parties to the litigation prevail to some significant degree, neither is a prevailing party. For example, see Northwest Television Club, Inc. v. Gross Seattle, Inc., 96 Wash.2d 973, 634 P.2d 837, 640 P.2d 710 (1981) and Goedecke v. Viking Investment Corporation, 70 Wash.2d 504, 513, 424 P.2d 307 (1967).

If one party prevails on only a marginal issue, it is not a prevailing party. S. Kitsap Family Worship Ctr. v. Weir, 135 Wash.App. 900, 915, 146 P.3d 935 (2006) (party that won on claim of property ownership was substantially prevailing party even though opposing party won on claim that a contractual attorney fee provision did not apply to case). However, when there is one primary issue, the party prevailing on that issue is entitled to its costs and fees as the “prevailing party” even though the party lost on another issue. Osborn v. Grant County, 130 Wash.2d 615, 630, 926 P.2d 911 (1996).

In the case of contractual attorney fee awards under RCW 4.84.330 where both parties prevail on discrete contractual issues, the trial court is to award fees on a proportional basis. See Marassi v. Lau, 71 Wash.App. 912, 859 P.2d 605 (1993); Transpac Dev., Inc. v. Young Suk Oh, 132 Wash.App. 212, 130 P.3d 892 (2006); but see Hertz v. Riebe, 86 Wash.App. 102, 106, 936 P.2d 24 (1997) (declining to apply Marassi in situation of both contractual and non-contractual claims).