§17.6 WHO IS ENTITLED TO ATTORNEY FEES
The rule for recovery of attorney fees on appeals is different from the rule for recovery of costs. Unlike RAP 14.2, RAP 18.1 does not require a party to be the "substantially" prevailing party to recover fees. Rather, a party is entitled to a fee award on appeal if allowed by "applicable law." RAP 18.1(a).
Washington adheres to the American rule on attorney fees, which requires each party to bear its own fees and expenses. Cosmopolitan Eng'g Grp., Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 296, 149 P.3d 666 (2006). In practical terms, this means that in order to receive an award of fees, a party generally must prevail on appeal and qualify for an award under a contract, statute, or recognized ground in equity. Each of these requirements has its nuances.
(1) "Prevailing party" rule
The applicable case law and statutes usually make attorney fees available, if at all, to the "prevailing party." In general, the prevailing party is one in whose favor an affirmative judgment is entered. Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 505 P.2d 790 (1973).
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It is crucial to analyze the meaning of a "prevailing party" for purposes of appellate attorney fees under the specific authority that grants the fee award. The definition of a "prevailing party" in the specific statute, contract, or equitable provision varies. See e.g., RCW 4.84.330 (definition of "prevailing party"); Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009). |
As with respect to costs, there are some general rules that tend to govern whether a party "prevails" for fee purposes. In some cases, when both parties partially prevail neither is determined to be the prevailing party. Am. Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wn.2d 217, 234-35, 797 P.2d 477 (1990); Accord v. Petit, 174 Wn. App. 95, 114, 302 P.3d 1265, review denied, 178 Wn.2d 1005 (2013); Peterson v. Koester, 122 Wn. App. 351, 364, 92 P.3d 780 (2004); Puget Sound Serv. Corp. v. Bush, 45 Wn. App. 312, 724 P.2d 1127 (1986).
In State v. Black, 100 Wn.2d 793,676 P.2d 963 (1984), the defendants prevailed in an action brought by the state under the Consumer Protection Act. The Supreme Court expressly stated that the defendants were prevailing parties on appeal, but then held that no attorney fees would be awarded to the defendants because the defendants were not "substantially prevailing" parties under RAP 14.2 (dealing with award of costs). The court's reasoning on this point seems flawed.
It is especially important that the record include enough for the court to identify principles upon which the trial court awarded attorney fees. In DeBenedictis v. Hagen, 77 Wn. App. 284, 890 P.2d 529 (1995), the court could not tell from the record which party had sought a trial de novo of an arbitration award and was therefore unable to determine if the prevailing party on appeal was entitled to its attorney fees under MAR 7.3.
Although there are cases suggesting that a party must prevail to qualify for appellate fees under RCW 26.09.140, see, e.g., In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007) (no appellate fee award when neither party substantially prevailed), the statute itself does not contain such a requirement, and on reconsideration, the Supreme Court eliminated from its decision the prevailing party analysis in In re Marriage of Chandola, 180 Wn.2d 632, 327 P.3d 644 (2014). See also, e.g., In re Marriage of Wilson, 117 Wn. App. 40, 51, 68...
