Borton & Sons, Inc. v. Novazone, Inc.

Ninth Circuit

Borton & Sons, Inc. v. Novazone, Inc.

481 F. App'x 322

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 6, 2012

Docket11-35511, 11-35608

StatusUnpublished

This text of 481 F. App'x 322 (Borton & Sons, Inc. v. Novazone, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Borton & Sons, Inc. v. Novazone, Inc., 481 F. App'x 322 (9th Cir. 2012).

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Opinion

MEMORANDUM *

Novazone, Inc. d/b/a Purfresh, Inc. (No-vazone) appeals the district court’s award of prejudgment interest, following a jury trial, to Borton & Sons, Inc. (Borton). Borton cross-appeals the district court’s order denying its motion for attorney fees and costs. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

In Washington, a court may award prejudgment interest on a liquidated claim, i.e., “where the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.” Scoccolo Constr., Inc. ex rel. Curb One, Inc. v. City of Renton, 158 Wash.2d 506, 145 P.3d 371, 377 (2006). Novazone contends that the district court erred in awarding prejudgment interest because the jury did not compute its award with an exact measure, but instead relied upon its discretion. We agree. The jury relied upon its own “determination of reasonableness” in calculating Borton’s damages. Kiewit-Grice v. State, 77 Wash.App. 867, 895 P.2d 6, 9 (1995). Accordingly, we hold that Borton’s damages were unliquidated and reverse the district court’s award of prejudgment interest.

Under Washington law, absent a contractual provision, statutory provision, or a well-recognized principle of equity to the contrary, a court has no authority to award attorney fees to the prevailing party. N. Pac. Plywood, Inc. v. Access Road Builders, Inc., 29 Wash.App. 228, 628 P.2d 482, 487 (1981). Where a contract has been invalidated for lack of mutual intent, no contract was ever formed, and therefore, the parties are not entitled to rely upon any attorney fee provision under the purported contract. Wallace v. Kuehner, 111 Wash.App. 809, 46 P.3d 823, 830-31 (2002). Accordingly, because the contract containing the fee provisions was invalidated for lack of authority, we hold that the district court did not err in refusing to award Borton attorney fees.

AFFIRMED IN PART, REVERSED IN PART.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM *

Novazone, Inc. d/b/a Purfresh, Inc. (No-vazone) appeals the district court’s award of prejudgment interest, following a jury trial, to Borton & Sons, Inc. (Borton). Borton cross-appeals the district court’s order denying its motion for attorney fees and costs. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

In Washington, a court may award prejudgment interest on a liquidated claim, i.e., “where the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.” Scoccolo Constr., Inc. ex rel. Curb One, Inc. v. City of Renton, 158 Wash.2d 506, 145 P.3d 371, 377 (2006). Novazone contends that the district court erred in awarding prejudgment interest because the jury did not compute its award with an exact measure, but instead relied upon its discretion. We agree. The jury relied upon its own “determination of reasonableness” in calculating Borton’s damages. Kiewit-Grice v. State, 77 Wash.App. 867, 895 P.2d 6, 9 (1995). Accordingly, we hold that Borton’s damages were unliquidated and reverse the district court’s award of prejudgment interest.

Under Washington law, absent a contractual provision, statutory provision, or a well-recognized principle of equity to the contrary, a court has no authority to award attorney fees to the prevailing party. N. Pac. Plywood, Inc. v. Access Road Builders, Inc., 29 Wash.App. 228, 628 P.2d 482, 487 (1981). Where a contract has been invalidated for lack of mutual intent, no contract was ever formed, and therefore, the parties are not entitled to rely upon any attorney fee provision under the purported contract. Wallace v. Kuehner, 111 Wash.App. 809, 46 P.3d 823, 830-31 (2002). Accordingly, because the contract containing the fee provisions was invalidated for lack of authority, we hold that the district court did not err in refusing to award Borton attorney fees.

AFFIRMED IN PART, REVERSED IN PART.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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481 F. App'x 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borton-sons-inc-v-novazone-inc-ca9-2012.

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