Hawkins v. Diel, 166 Wash. App. 1 (2011)

Citation: Hawkins v. Diel, 166 Wash. App. 1 (2011)
Parent Document: Hawkins v. Diel, 166 Wash. App. 1 (2011)
Jurisdiction: Washington (state)
Effective Date: 2011-11-18
Original Source: https://www.courtlistener.com/opinion/4950936/hawkins-v-diel/ ↗

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¶22 Hertz is distinguishable from this case because both Hertz and Riebes filed separate lawsuits and because both received affirmative relief on their legal theories. Hertz, 86 Wn. App. at 104-05. The Hertz court did not find persuasive that the basis of the Hertzes’ claim (the earnest money agreement) provided for attorney fees and the basis of the Riebes’ claim did not. Instead, the court understood that the Hertzes’ and the Riebes’ suits were “part and parcel... the same” after consolidation. Hertz, 86 Wn. App. at 105. In that consolidated suit, both the Hertzes and the Riebes recovered on their claim and, thus, neither could be said to have been a “prevailing party.” Hertz, 86 Wn. App. at 105. Here, the court afforded affirmative relief, in the form of judgments against both Diel and DMC, only to the Hawkinses. DMC did not file a counter suit against the Hawkinses; DMC merely asserts that it defended a successful portion of the Hawkinses’ suit. But DMC successfully defending a portion of the Hawkinses’ suit does not make them a prevailing party. We do not read Hertz as precluding a party with a valid RCW 4.84.330 claim for attorney fees from recovering those fees when the other party does not obtain affirmative relief.

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