Mehlenbacher v. DeMont

11 P.3d 871
CourtCourt of Appeals of Washington
DecidedNovember 3, 2000
Docket24104-8-II
StatusPublished
Cited by14 cases

This text of 11 P.3d 871 (Mehlenbacher v. DeMont) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mehlenbacher v. DeMont, 11 P.3d 871 (Wash. Ct. App. 2000).

Opinion

11 P.3d 871 (2000)
103 Wash.App. 240

Richard E. MEHLENBACHER and Karen S. Mehlenbacher, Respondents,
v.
John L. DeMONT and Jo K. DeMont, husband and wife; Joel K. DeMont, an unmarried individual d/b/a Nova Development Company; the Administration of the Small Business Administration, an agency of the government of the United States of America; also all other persons or parties unknown claiming any right, title, estate, lien or interest in the real property described in the Complaint herein, Appellants.

No. 24104-8-II.

Court of Appeals of Washington, Division 2.

November 3, 2000.

*872 Kelly Ann Delaat Mahr, Thomas L. Dickson, Law Offices of Thomas L. Dickson, Tacoma, for Appellants.

Jeffrey Paul Helsdon, Justin D. Park, McFerran & Helsdon, P.S., Tacoma, for Respondents.

*873 ARMSTRONG, C.J.

The DeMonts purchased unimproved property from the Mehlenbachers in 1994. The Mehlenbachers financed part of the purchase price with a promissory note secured by a deed of trust. When a neighbor sued the DeMonts for landslide damage, the DeMonts joined the Mehlenbachers, alleging that they had misrepresented the property's stability. The Mehlenbachers counterclaimed to foreclose the deed of trust and then moved successfully for summary judgment on the misrepresentation claim. Several months later, the trial court severed the Mehlenbachers' foreclosure claim from the other litigation. The Mehlenbachers started a separate action to foreclose, which resulted in a decree of foreclosure and judgment in favor of the Mehlenbachers for the balance due, $18,715 in interest and $20,000 in attorney fees, which included some of the work done defending the misrepresentation claim. On appeal, the DeMonts argue that the Mehlenbachers waived any claim for attorney fees in the misrepresentation claim by not asserting it in that action. The DeMonts also argue that the award of fees and costs was excessive and that under the terms of the contracts, the Mehlenbachers were not entitled to interest. The Mehlenbachers cross appeal, arguing that the trial court reduced their requested fee without using the lodestar method. We hold that the Mehlenbachers are entitled to fees and costs for defending the misrepresentation work but only to the extent necessary to obtain the foreclosure judgment. We remand to the trial court to make such determination. Further, the trial court must reconsider its award of attorney fees based on the lodestar method. We vacate the judgment for fees and costs and remand to the trial court to reconsider the amount of fees and costs. We find no error in the court's prejudgment interest award.

FACTS

In 1994, John, Jo, and Joel DeMont purchased unimproved property on Fox Island from Richard and Karen Mehlenbacher. The DeMonts paid $100,000 and gave the Mehlenbachers a promissory note for the balance of $44,000. The note was secured by a deed of trust.[1] Before the DeMonts finished constructing a house on the property, a landslide damaged the house and, apparently, the neighbor's property.

In 1996, the adjoining landowners, Johnny and Sarolye Reeder, sued the DeMonts and Pierce County, claiming the DeMonts and Pierce County's negligence damaged their home (the Reeder action). The DeMonts answered and named the Mehlenbachers as third-party defendants, claiming they misrepresented the condition of the land when they sold it and withheld the geotechnical reports about the hazards of surface water runoff. The Mehlenbachers joined other parties and counterclaimed to foreclose the deed of trust. The trial court granted summary judgment to the Mehlenbachers on the DeMonts' misrepresentation action.

A few months later, the trial court severed the Mehlenbachers' foreclosure claim from the remaining claims in the Reeder action. The Mehlenbachers re-filed their claim under a new cause number and eventually prevailed against the DeMonts' affirmative defenses. The trial court then awarded the Mehlenbachers attorney fees and costs in the foreclosure action. This included fees for some of the work done in the Reeder action for defending the misrepresentation claim. The trial court entered a judgment and decree of foreclosure granting the Mehlenbachers $44,000 in principal, $18,715 in post-default interest, and $20,000 in attorney fees and costs. The DeMonts appeal the award of attorney fees and costs and the award of interest; the Mehlenbachers cross appeal on the amount of fees and costs awarded.

*874 ANALYSIS

I. Attorney Fees

A. Standard of Review

Washington follows the American rule that attorney fees are only recoverable in a suit when authorized by statute, contract, or equity. Dayton v. Farmers Ins. Group, 124 Wash.2d 277, 280, 876 P.2d 896 (1994). A trial court's decision to award fees and costs is a question of law and reviewed to determine if the relevant statute or contract provides for an award of fees. Tradewell Group, Inc. v. Mavis, 71 Wash.App. 120, 126, 857 P.2d 1053 (1993).

An award of attorney fees based on a contractual provision is appropriate when the action arose out of the contract and the contract is central to the dispute. Seattle-First Nat'l Bank v. Washington Ins. Guar. Ass'n, 116 Wash.2d 398, 413, 804 P.2d 1263 (1991). In an action to enforce or defend a contract that includes an attorney fee provision, the prevailing party may recover attorney fees and costs under RCW 4.84.330. See Seattle First Nat'l Bank v. Siebol, 64 Wash. App. 401, 409, 824 P.2d 1252 (1992).

B. Trial Court Award

The DeMonts argue that the trial court erred by allowing the Mehlenbachers to recover fees and costs from the Reeder action and not just the subsequent foreclosure action. The Mehlenbachers, according to the DeMonts, waived any right to attorney fees and costs from the Reeder action because they did not ask for them at the time of summary judgment or in a post-judgment cost bill. Further, the DeMonts argue, once the foreclosure action was severed from the Reeder action, any judgments or attorney fees should also be separate. Finally, the DeMonts contend that the trial court erred in not calculating the fee awards according to the lodestar formula.

We first consider whether the order severing the foreclosure action bars any recovery for work done in the Reeder action. CR 21 governs the misjoinder and nonjoinder of parties and provides:

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Here, the trial court found that the Mehlenbachers' claims arose from different transactions and occurrences than the Reeders' claims, that there were no common issues of law or fact, and that the Mehlenbachers would be prejudiced unless the claims were severed.

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Bluebook (online)
11 P.3d 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mehlenbacher-v-demont-washctapp-2000.