                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 06 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BORTON & SONS, INC., a Washington                No. 11-35511
corporation,
                                                 D.C. No. 2:08-cv-03016-RHW
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

NOVAZONE, INC., DBA PURFRESH,
INC., a California corporation,

              Defendant - Appellant.



BORTON & SONS, INC., a Washington                No. 11-35608
corporation,
                                                 D.C. No. 2:08-cv-03016-RHW
              Plaintiff - Appellant,

  v.

NOVAZONE, INC., DBA PURFRESH,
INC., a California corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Eastern District of Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                 Robert H. Whaley, Senior District Judge, Presiding

                         Argued and Submitted July 10, 2012
                                Seattle, Washington

Before: SCHROEDER, REINHARDT, and M. SMITH, Circuit Judges.

        Novazone, Inc. d/b/a Purfresh, Inc. (Novazone) 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, 145 P.3d 371, 377

(Wash. 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-



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Grice v. State, 895 P.2d 6, 9 (Wash. Ct. App. 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., 628 P.2d 482, 487 (Wash. Ct. App. 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, 46 P.3d 823, 830-31 (Wash. Ct. App.

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.




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