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                                                                  onald R. Carpenter'    f~
                                                               · ~upreme Court Clerk


IN THE SUPREME COURT OF THE STATE OF WASHINGTON


ALLIANCEONE RECEIVABLES                )
MANAGEMENT, INC.,                      )     No. 87445-0
                                       )
                       Respondent,     )
                                       )
v.                                     )     EnBanc
                                       )
WILLIAM CARL LEWIS, JR., and           )
JANE DOE, and MARITAL                  )
COMMUNITY,                             )
                                       )
                       Appellants.     )      Filed         MAY 0 8 2014
_______________________ )
      FAIRHURST, J.-AllianceOne Receivables Management Inc. instituted a

collections action against William Carl Lewis Jr. and then voluntarily dismissed it.

Lewis claims that he is entitled to attorney fees as the "prevailing party" under RCW

4.84.250 and .270 since under RCW 4.84.270 a defendant is a prevailing party when

the plaintiff"recovers nothing." The district court denied Lewis' fee request, holding

that there is no prevailing party for the purposes of an award of attorney fees when

the plaintiff voluntarily dismisses the action. We affirm and hold that there must be

a final judgment before attorney fees can be made available to the prevailing party

under RCW 4.84.250 and .270. When a defendant requests fees under these statutes,
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


the court should apply a three-factor test: ( 1) the damages sought must be equal to

or less than $10,000, (2) there must be an entry of judgment, and (3) the defendant

must be deemed the prevailing party. Here, there was no judgment because

AllianceOne voluntarily dismissed its claim against Lewis. Without a judgment,

there is no prevailing party. Lewis was not entitled to attorney fees upon dismissal

at the district court, nor is he entitled to an award of attorney fees on appeal.

                 I.     FACTUAL AND PROCEDURAL HISTORY

       The facts in this case are generally not disputed. AllianceOne filed a collection

suit against Lewis for three low dollar claims totaling $550.77, plus attorney fees.

AllianceOne voluntarily dismissed two of the three claims, leaving one remaining

claim totaling $272.67, which Lewis claimed he had already paid in full. After

further proceedings, AllianceOne filed a motion for voluntary dismissal of the

remaining claim without prejudice and without costs to either party. Lewis did not

object to the dismissal of the claim but, since he had incurred attorney fees in the

matter, he objected to dismissing the claim without costs. Lewis argued that he was

the "prevailing party" under RCW 4.84.250 and .270 because AllianceOne

recovered nothing in the suit.

        The district court initially denied Lewis' request for attorney fees, relying on

 our decision in Wachovia SEA Lending, Inc. v. Kraft, 165 Wn.2d 481,494, 200 P.3d

 683 (2009), where we held that a final judgment must be entered for a defendant to


                                              2
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


be a prevailing party under RCW 4.84.330. Upon reconsideration, the district court

affirmed the denial on different grounds, noting that since Wachovia interpreted a

different statute than the one at issue in this case, it was not controlling. The district

court noted that there is a split of authority in the Court of Appeals on this issue but

it chose to follow Cork Insulation Sales Co. v. Torgeson, 54 Wn. App 702, 775 P .2d

970 (1989), and Beclanan v. Wilcox, 96 Wn. App. 355, 979 P.2d 890 (1999) from

Divisions Two and Three.         The district court held that "a CRLJ 41 voluntary

dismissal does not effectuate costs and attorney fees." Second Am. Designation of

Clerk's Papers (Decision on Recons. Mot. (May 4, 2012) at 4). In light of the split

authority, we granted Lewis' motion for direct review. We affirm the district court.

                                      II.    ISSUES

       1.     Whether a defendant can be a prevailing party under RCW 4.84.250

and .270 when a plaintiff voluntarily dismisses the case.

       2.     Whether either party is entitled to attorney fees on appeal under RCW

4.84.290.




                                              3
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


                                         III. ANALYSIS

A.     "Prevailing party" under RCW 4.84.250 and .270

       The meaning of a statute is a question of law reviewed de novo. 1 State v.

Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001); State v. J.M, 144 Wn.2d 472,

480, 28 P.3d 720 (2001). The court's objective is to ascertain and carry out the

legislature's intent. J.M, 144 Wn.2d at 480. The starting point is always the statute's

plain language, which may be discerned '"from all that the Legislature has said in

the statute and related statutes which disclose legislative intent about the provision

in question."' State v. J.P., 149 Wn.2d 444,450,69 P.3d 318 (2003) (quotingDep't

of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). The

court considers a statute within the context of the entire statutory scheme to

determine the plain meaning. Williams v. Tilaye, 174 Wn.2d 57, 63, 272 P.3d 235

(2012) (citing Campbell & Gwinn, 146 Wn.2d at 11-12); see also ITT Rayonier, Inc.

v. Dalman, 122 Wn.2d 801, 807, 863 P.2d 64 (1993) (A term in a regulation should

not be read in isolation but, rather, within the context of the regulatory and statutory




        1
          Lewis argues that the district court erred in failing to enter findings of fact and conclusions
oflaw with respect to its order denying fees, citing Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632,
966 P.2d 305 (1998). But Mahler is about appellate review of a trial court's fee award decision,
not all fee decisions. !d. at 435. It requires findings of fact and conclusions of law to establish "an
adequate record on review to support a fee award." !d. In other words, Mahler affects decisions in
which attorney fees were granted, not denied. Here, we are reviewing whether the district court
properly determined that Lewis is not entitled to attorney fees as a "prevailing party" within the
meaning ofRCW 4.84.250 and .270.
                                                   4
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


scheme as a whole; statutory provisions must be read in their entirety and construed

together, not piecemeal.).

       1.     Attorney fees statutes in small claims

       As a general rule in Washington, each party must bear its own attorney fees

in civil actions. Cosmopolitan Eng'g Grp., Inc. v. Ondeo Degremont, Inc., 159

Wn.2d 292, 296, 149 P.3d 666 (2006). However, the legislature has carved out

certain exceptions to this general rule. Williams, 174 Wn.2d at 63. "In the context of

civil actions, the question of costs and attorney fees are dealt with in a series of

provisions under chapter 4.84 RCW." Wachovia, 165 Wn.2d at 488. These

provisions generally award attorney fees to the prevailing party in an action, but the

term "prevailing party" is not defined in the same manner in every statute. !d.

Whether an individual is a prevailing party after voluntary dismissal turns on

whether the claimant meets the conditions of the specific statute that authorizes the

fees. Beckman, 96 Wn. App. at 362.

       Courts have long approached RCW 4.84.250-.300 as a statutory scheme

where each statute is given force in the context of related rules. See, e.g., Davy v.

Moss, 19 Wn. App. 32, 33-34, 573 P.2d 826 (1978) (citing four provisions in their

entirety to clarify the meaning of"action for damages" in chapter 4.84 RCW); Valley

v. Hand, 38 Wn. App. 170, 684 P.2d 1341 (1984) (reading four provisions to

 determine prevailing party on appeal), overruled on other grounds by Williams, 174


                                               5
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


Wn.2d 57; Beckmann v. Spokane Transit Auth., 107 Wn.2d 785,733 P.2d 960 (1987)

(reading three statutory provisions to determine whether pleading notice is required);

Hertz v. Riebe, 86 Wn. App. 102, 107, 936 P.2d 24 (1997) (reading RCW 4.84.290

"in the broader context of the statutory scheme"); Hanson v. Estell, 100 Wn. App.

281, 997 P .2d 426 (2000) (reading three statutory provisions to clarify notification

rule for settlement offers); LRS Elec. Controls, Inc. v. Hamre Constr., Inc., 153

Wn.2d 731, 107 P.3d 721 (2005) (reading five statutory provisions to award attorney

fees on appeal to defendant after summary judgment); Williams, 17 4 Wn.2d at 61-

62 (reading four statutory provisions in arbitration case).

       RCW 4.84.250 is the starting point for determining which party, if any, is

entitled to attorney fees in small claim actions. The prevailing party in a small claims
                                                                           •
action may request attorney fees "[n]otwithstanding any other provisions of chapter

4.84 RCW and RCW 12.20.060." RCW 4.84.250. RCW 4.84.260 states that a

plaintiff is the "prevailing party" and eligible for attorney fees when "the recovery,

exclusive of costs, is as much as or more than the amount offered in settlement by

the plaintiff." (Emphasis added.) Under RCW 4.84.270, a defendant receives fees

"if the plaintiff ... recovers nothing, or if the recovery, exclusive of costs, is the

same or less than the amount offered in settlement by the defendant." (Emphasis

added.) Under RCW 4.84.280, settlement offers must be made at least 10 days before

a trial begins and may not be conveyed to the judge until after final judgment is


                                              6
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


rendered. Only after the judgment can a court assess whether the plaintiff or

defendant meets the definition of a "prevailing party" by examining a recovery after

judgment and comparing it to settlement offers. 2 This contextual interpretation

presents a plain language reading of the complete statutory scheme and is a logical

analysis of a statute designed to promote settlement and avoid trials.

       2.     Plain language reading of"recovers nothing"

       The meaning of the phrase "recovers nothing" is critical to interpreting these

statutes. "In the absence of a specific statutory definition, words in a statute are given

their common law or ordinary meaning." State v. Chester, 133 Wn.2d 15, 22, 940

P.2d 1374 (1997). To determine the plain meaning of a term undefined by statute,

the court first looks at the dictionary definition. State v. Kintz, 169 Wn.2d 537, 547,

238 P.3d 470 (2010). Black's Law Dictionary defines "recover" in full as:

       1. To get back or regain in full or in equivalence <the landlord
       recovered higher operating costs by raising rent>. 2. To obtain by a
       judgment or other legal process <the plaintiff recovered punitive
       damages in the lawsuit>. 3. To obtain (a judgment) in one's favor <the
       plaintiff recovered a judgment against the defendant>. 4. To obtain
       damages or other relief; to succeed in a lawsuit or other legal


       2
         A defendant is not required to make an offer of settlement to qualify for an attorney fees
award under RCW 4.84.250-.300. RCW 4.84.270 provides that "the defendant can be the
prevailing party if either the plaintiff recovers nothing or the defendant makes an offer 10 days or
more before trial and the plaintiff recovers as much or less than that offer." Williams, 174 Wn.2d
at 61-62 (emphasis added). This statute is disjunctive; an offer of settlement is not mandatory for
a defendant. Further, this reading makes logical sense because it would be unfair to require a
defendant to make an offer of settlement to recover fees when, as here, the defendant contends that
he does not owe anything to the plaintiff.


                                                 7
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


       proceeding <the defendant argued that the plaintiff should not be
       allowed to recover for his own negligence>.

BLACK'S LAW DICTIONARY          1389 (9th ed. 2009). The entirety of this definition

indicates that "recover" is more often used in connection with a final judgment.

       Statutory language must be interpreted in context, not in isolation. When

determining the plain meaning of a statute, the court considers the statute within the

entire scheme of other statutes, presuming the legislature enacts legislation in light

of existing law. Williams, 174 Wn.2d at 63; Campbell & Gwinn, 146 Wn.2d at 11.

The court then considers the definition of the term in the context of the statutory

scheme to determine the plain meaning as intended by the legislature. Reading the·

provisions ofRCW 4.84.250-.300 in sequence, it is clear that it is necessary to define

"recover" or "recovery" in conjunction with a final judgment. Without an entry of

judgment by the court, there is no recovery and there can be no prevailing party

under RCW 4.84.250 and .270.

       This definition of "recover" is supported by the legislative intent of the

statutes. These statutes encourage and provide for a mechanism for individuals to

seek payment on unresolved claims. Northside Auto Serv., Inc. v. Consumers United

Ins. Co., 25 Wn. App. 486, 492, 607 P.2d 890 (1980). If a potential plaintiff knew

he or she would have to pay the defendant's attorney fees in the event he or she

decided to dismiss the action instead of taking it to trial, he or she would be much

more hesitant to pursue these claims in the first place, negating this goal of resolution
                                              8
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


of legitimate claims. The small claims statutes are also intended to encourage

settlement and avoid the expense of trial. Beckmann, 107 Wn.2d at 790. A definition

of "recover" unconnected to a final judgment would not get the parties to the

bargaining table; it would encourage plaintiffs to pursue trial rather than risk a court

order to pay attorney fees by voluntarily dismissing their claims. Finally, CR 11

allows a judge to impose sanctions on any party that files a baseless claim,

addressing any concern that a plaintiff may bring meritless claims against a

defendant just to force that individual to incur expenses. And if the claim was not

frivolous, the adversarial system is designed to allow a plaintiff the discretion to file

a meritorious claim, conduct discovery, and then decide if the claim is worth taking

to trial.

        3.     Determine prevailing party under Cork's three-factor test

        Despite this clear contextual interpretation of the statutory meaning of the

phrase, the Court of Appeals divisions have reached different conclusions on

whether RCW 4.84.250 authorizes an award of fees after a voluntary dismissaP In

Allahyari, Division One found that voluntary dismissal was sufficient to trigger

RCW 4.84.250 and entitle the defendant to attorney fees as the prevailing party.


        3
         Division Two of the Court of Appeals has not directly addressed the issue, but it has cited
Cork approvingly in dictum in Beckman, 96 Wn. App. 355 when weighing a request for attorney
fees under a different statute. Division Two noted that "until after entry of judgment, a pretrial
voluntary dismissal makes the attorney fee provision inapplicable" under RCW 4.84.050 and .070.
Id. at 361.

                                                 9
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


Allahyari v. Carter Subaru, 78 Wn. App. 518, 524, 897 P.2d 413 (1995), abrogated

by Wachovia, 165 Wn.2d at 481. The Allahyari court looked at cases interpreting

other statutes in chapter 4.84 RCW that considered a defendant a prevailing party

after a voluntary dismissal and said it found no compelling reason not to interpret

RCW 4.84.250 the same way. Allahyari, 78 Wn. App. at 523. But reliance on

Allahyari is problematic because the court did not utilize the required contextual

approach to the statutory scheme. Id. Instead, it simply focused on the phrase

"recovers nothing" without considering its meaning in light of the other statutes to

decide when there would be a prevailing party under the statute. Id. Further,

Allahyari was abrogated by Wachovia. Although the legal question in Wachovia

involved a different statute, this court clarified that there is no default rule that

permits the award of attorney fees following voluntary dismissal of a claim under

CR 41(a)(1)(B). Wachovia, 165 Wn.2d at 490-91. The court said, "[W]here neither

party prevails with a final judgment, neither party is entitled to attorney fees." Id. at

492. Since we nullified Allahyari's fundamental rationale for equating voluntary

dismissal of a claim with a defendant's entitlement to attorney fees in Wachovia,

Allahyari's logic and analysis is seriously undermined.




                                              10
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


       Division Three held in Cork that a defendant was not entitled to attorney fees

under RCW 4.84.250 following a plaintiffs voluntary dismissal. 54 Wn. App. 702. 4

After the plaintiff voluntarily dismissed its suit, the defendant requested attorney

fees under RCW 4.84.250, saying the plaintiffs voluntary dismissal was equivalent

to no recovery. Id. at 704. Division Three applied a three-factor test based on "[a]

review of the statute and its related provisions." Id. at 706. Before the statute could

be triggered, the defendant had to show that ( 1) the damages sought were equal to

or less than $10,000, (2) he was deemed the prevailing party, and (3) there was an

entry of judgment. Id. Since the amount pleaded was $2,625.38, defendant Shane

Torgeson met the first factor. I d. Under the second factor, Torgeson may have tried

to argue that he was the prevailing party given Cork's voluntary dismissal of the suit

but the court did not accept the dismissal as proof of judgment. !d. at 705. The court

held that "a voluntary nonsuit does not result in an adjudication on the merits and no

judgment is entered." Id. at 706. Since one of the factors was not met, the court

denied any attorney fees for the defendant.




       4
         In Cork, the defendant offered the plaintiff a settlement of one dollar, and argued that since
the plaintiff recovered less than one dollar (nothing), it was the prevailing party. 54 Wn. App. at
705. Allahyari distinguished itself from Cork based on the defendant in Cork's reliance on this
argument that he had made an offer of settlement, not on the fact of the nonsuit alone. Allahyari,
78 Wn. App. at 524. While this argument has some merit, Cork discussed the concept of the
prevailing party in RCW 4.84.250 in total. In order to resolve the fundamental issue of what makes
one a prevailing party, the court had to discuss that concept in its entirety, including a discussion
of whether a voluntary dismissal made a defendant a prevailing party in the first place.
                                                  11
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


        Unlike the Allahyari court, which focused only on "recovers nothing," the

Cork court employed a contextual approach for resolution of this issue. Cork, 54

Wn. App. at 706. Further, the facts and legal arguments here are more similar to

those in Cork than to those in Allahyari. Lewis, like Torgeson, meets the first

requirement of RCW 4.84.250 since the claim was for only $550.77. Lewis, like

Torgeson, also argued the plaintiff recovered nothing under RCW 4.84.270 when it

dismissed the claim. But, just like in Cork, the district court here also rejected this

argument, finding that no judgment was entered in a voluntary dismissal. "[T]hus,

the statute was not triggered and the attorney fees and costs sought" by Lewis were

properly denied. Id.

        We adopt Cork's three-part test for determining whether a party is entitled to

attorney fees. A voluntary dismissal does not result in an entry of judgment, so the

third factor is not satisfied in that situation. Wachovia, 165 Wn.2d at 492 ("[A]

'voluntary dismissal' is not a final judgment. A voluntary dismissal leaves the parties

as if the action had never been brought."). And as discussed above, without an entry

of judgment, there can be no "prevailing party" under RCW 4.84.250 and .270, so

the second factor would also not be satisfied if the plaintiff voluntarily dismisses the

case.

        Lewis fails two of the three requirements necessary to be deemed the

prevailing party. He undisputedly meets the first requirement, but all three are


                                              12
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0


necessary for an award of attorney fees. We affirm the district court's denial of

attorney fees to Lewis upon the voluntary dismissal because he cannot be deemed a

prevailing party under the statutory small claims attorney fees provisions.

B.     Attorney fees on appeal

       Both parties have requested attorney fees for this appeal under RCW 4.84.290,

which provides in part:

       [I]f the prevailing party on appeal would be entitled to attorneys' fees
       under the provisions of RCW 4.84.250, the court deciding the appeal
       shall allow to the prevailing party such additional amount as the court
       shall adjudge reasonable as attorneys' fees for the appeal.

Given our decision that neither party is a prevailing party under RCW 4.84.250 after

a plaintiff voluntarily dismisses the suit, neither party is entitled to the attorney fees

requested under this statute. Cork, 54 Wn. App. at 707. 5

                                   IV. CONCLUSION

       We affirm the district court's denial of attorney fees and costs to Lewis

because he cannot be deemed a prevailing party under the statutory small claims

attorney fees provisions since AllianceOne voluntarily dismissed its case. We also

deny both parties' request for fees for the appeal.


       5
        In addition to requesting attorney fees under RCW 4.84.290, Lewis requests costs
(including attorney fees) under RCW 12.20.010 and .060. We find a similar problem with this
request as with the RCW 4.84.290 request. Without a final judgment or prevailing party (both of
which are absent in the case of a voluntary dismissal), no award of attorney fees are mandatory
under this statutory scheme. In his discretion the judge decided not to award fees or costs.
Consequently, we deny this request for attorney fees under RCW 12.20.010 and .060 as well.

                                              13
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0




WE CONCUR:




                    I       7




                                              14
AllianceOne Receivables Mgmt., Inc. v. Lewis
Dissent by C. Johnson, J.




                                     No. 87445-0

      C. JOHNSON, J. ( dissenting)-This case asks us to decide whether the

defendant in a district court civil case is entitled to attorney fees as the "prevailing

party" under RCW 4.84.250, when the plaintiff voluntarily dismisses the action.

RCW 4.84.270 defines the defendant as the prevailing party if the plaintiff

"recovers nothing." The statute requires only two conditions: an "action" where the

plaintiff"recovers nothing." That language needs little interpretation. The

majority, though, reads into the statute a requirement that there must be a final

judgment before attorney fees can be made available to the prevailing party and

concludes, based on this statutory rewrite, that a defendant is not a prevailing party

and is not entitled to fees when a plaintiff voluntarily dismisses the case. I

disagree. Here, the plaintiff voluntarily dismissed the case and "recover[ ed]

nothing" from the lawsuit. The statute simply does not require what the majority

claims. I would reverse the district court's denial of attorney fees.
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


       AllianceOne Receivables Management Inc. filed a collections action against

William Lewis in district court for $550.77, but then filed a motion under CRLJ

41(a)(1)(ii) 1 to voluntarily dismiss its claims without prejudice and without costs.

Lewis argued that he was entitled to attorney fees as the "prevailing party" under

RCW 4.84.250 and .270.

       This case centers on the meaning of primarily two words ofRCW 4.84.270:

"recovers nothing." RCW 4.84.250 authorizes fees to the prevailing party in suits

where the amount pleaded is equal to or less than $10,000. 2 Under RCW 4.84.270,

the defendant is the prevailing party if the plaintiff "recovers nothing, or if the

recovery, exclusive of costs, is the same or less than the amount offered in

settlement by the defendant." The meaning ofRCW 4.84.250 and .270 is a

question of law reviewed de novo. Where the meaning of a statute is plain on its

face, it "is not subject to judicial construction." State v. JM, 144 Wn.2d 472, 480,

28 P.3d 720 (2001).



        1
         CRLJ 41(a)(l)(ii) provides that dismissal is mandatory "[u]pon motion of the plaintiff at
any time before plaintiff rests at the conclusion of his opening case."

       2
         RCW 4.84.250 provides, "Notwithstanding any other provisions of chapter 4.84 RCW
and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing
party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less,
there shall be taxed and allowed to the prevailing party as a part of the costs of the action a
reasonable amount to be fixed by the court as attorneys' fees. After July 1, 1985, the maximum
amount of the pleading under this section shall be ten thousand dollars."


                                                 2
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


       The statute provides that for a defendant in a lawsuit to recover attorney

fees, the statute requires only that the plaintiff "recovers nothing." As defined in

Black's Law Dictionary, "recover" means in a broad sense "[t]o get back or regain

in full or in equivalence" and in a narrower sense "[t]o obtain (a judgment) in one's

favor." BLACK'S LAW DICTIONARY 1389 (9th ed. 2009). By this broad definition, a

plaintiff "recovers nothing" when it voluntarily dismisses its suit. Or, put another

way, the plaintiff files the lawsuit asserting it is entitled to a judgment but, upon

dismissal, it recovers nothing.

       The majority holds that there must be a final judgment before attorney fees

can be made available to the prevailing party under RCW 4.84.250 and .270. To

reach this holding, the majority relies heavily on Cork Insulation Sales Co. v.

Torgeson, 54 Wn. App. 702, 775 P.2d 970 (1989). The Court of Appeals, Division

Three, held in Cork that a defendant was not entitled to fees under RCW 4.84.250

fol,lowing a plaintiffs voluntary dismissal. In Cork, the defendant made an offer of

settlement of one dollar prior to the voluntary dismissal, which makes Cork

different. The court noted that RCW 4.84.280 requires settlement offers be made

known to the trier of fact for purposes of determining fees only after judgment has




                                              3
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


been entered. 3 Thus, the court reasoned that before a defendant can recover

attorney fees under RCW 4.84.250 (1) the damages sought must be less than

$10,000, (2) the party seeking to recover attorney fees and costs must be deemed

the prevailing party, and (3) a judgment must be entered before the offer of

settlement is opened. The court acknowledged that the defendant indisputably met

the first requirement and that he arguably was the prevailing party under the

statute. Therefore, the holding in Cork rested on the fact that the third requirement

never occurred. Cork, 54 Wn. App. at 706.

       The majority mistakenly adopts this three-part test, which was developed on

the premise that in order for a defendant to qualify for an attorney award under

RCW 4.84.250, the defendant is required to make an offer of settlement. As the

majority correctly recognizes, RCW 4.84.270 expressly provides that a defendant

is the prevailing party if the plaintiff"recovers nothing, or if the recovery,

exclusive of costs, is the same or less than the amount offered in settlement by the

defendant." (Emphasis added); see majority at 7 n.2. In other words, as we

previously clarified, "the defendant can be the prevailing party if either the



       3
        RCW 4.84.280 provides, in part, "Offers of settlement shall not be filed or
communicated to the trier of the fact until after judgment, at which time a copy of said offer of
settlement shall be filed for the purposes of determining attorneys' fees as set forth in RCW
4.84.250."


                                                 4
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


plaintiff recovers nothing or the defendant makes an offer 10 days or more before

trial and the plaintiff recovers as much as or less than that offer." Williams v.

Tilaye, 174 Wn.2d 57, 61-62, 272 P.3d 235 (2012) (emphasis added).

       The Cork test should apply, if at all, only when a defendant tenders a

settlement offer. Under such circumstances, a defendant is the prevailing party

only if the plaintiff recovers as much or less than the offer. RCW 4.84.270. To

resolve whether the plaintiff recovers as much as or less than the defendant's offer

necessitates a final judgment. But the statute is disjunctive. Defendants can also

recover if the plaintiff recovers nothing. The Cork case did not address this

situation, and the majority's adoption and paraphrasing of the Cork test stretches

the holding beyond its facts.

       In a different case, most directly comparable here, the Court of Appeals,

Division One, recognized the two separate bases for recovery under RCW 4.84.250

and concluded that the statute does authorize an award of attorney fees to the

defendant following voluntary dismissal. Allahyari v. Carter Subaru, 78 Wn. App.

518,524, 897 P.2d 413 (1995). There, the court distinguished Cork, noting that the

defendant in that case based his claim for attorney fees on his offer of settlement

and not on the fact of the voluntary dismissal alone. The court stated:




                                              5
AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


       Under RCW 4.84.270, a defendant's status as a prevailing party is
       determined by examining what, if anything, the plaintiff recovered ..
       . . . When a plaintiff voluntarily dismisses its entire action, as here,
       the plaintiff recovers nothing. Therefore, for purposes of a fee award
       under RCW 4.84.250, the defendant under such circumstances is the
       prevailing party.

Allahyari, 78 Wn. App. at 523. This analysis and holding should not be remarkable

because that is what the statute says.

       The majority's holding also ignores our analysis and conclusion in

Wachovia SEA Lending Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009). In

Wachovia, we held that no attorney fees were available when a plaintiff voluntarily

dismissed its suit under CR 41(a)(1)(B) for purposes ofRCW 4.84.330. RCW

4.84.330 controls in suits where a contract or lease specifically provides for

attorney fees to be awarded to one of the parties. Under that statute, "prevailing

party" means "the party in whose favor final judgment is rendered." RCW

4.84.330. We pointed out that Black's Law Dictionary defines a "final judgment"

as '"[a] court's last action that settles the rights of the parties and disposes of all

issues in controversy .... ' BLACK'S LAW DICTIONARY 859 (8th ed. 2004)."

Wachovia, 165 Wn.2d at 492 (alterations in original). We determined that a

voluntary dismissal is not a final judgment because it "leaves the parties as if the

action had never been brought." Wachovia, 165 Wn.2d at 492. We therefore



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AlfianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Jolmson, J., dissenting)


concluded that the defendant cannot be considered a prevailing party when the

plaintiff voluntarily dismisses the action for purposes ofRCW 4.84.330.

       Here, RCW 4.84.270 is worded differently and does not contain a similar

requirement that a "final judgment" be rendered in order for the defendant to be

deemed the prevailing party. The majority must read that requirement into a statute

that doesn't require a final judgment. As Lewis notes, if the legislature intended to

require that a final judgment be entered, it could have used the same language as it

did in RCW 4.84.330. Because there is no express requirement that a final

judgment be rendered to have a prevailing party under RCW 4.84.270, we should

not add one. Rather, we should conclude that the plain and ordinary meaning of the

phrase "recovers nothing" means just that and nothing more.

        Contrary to what the majority contends, this interpretation is consistent with

the purposes ofRCW 4.84.250 and .270. We have recognized that "[t]hese statutes

have multiple purposes of encouraging out-of-court settlements, penalizing parties

who unjustifiably bring or resist small claims, and enabling a party to pursue a

meritorious small claim without seeing the award diminished by legal fees."

 Williams, 174 Wn.2d at 62 (emphasis added). The majority seems to suggest that

as with settlement, voluntary dismissal avoids the expense of trial and therefore

plaintiffs who seek a nonsuit should not be penalized with the payment of attorney


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AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


fees. But this argument overlooks the fact that CRLJ 41(a)(l)(ii) requires

mandatory dismissal " [u]pon motion of the plaintiff at any time before plaintiff

rests at the conclusion of his opening case." Accepting the majority's argument

would mean that a plaintiff could precede to the end of the plaintiffs presentation

of the case, and then if it does not go well, dismiss without facing fees. As Lewis

observes, this would discourage settlement and is contrary to the purposes behind

RCW 4.84.250. In addition, awarding fees to a defendant following a voluntary

nonsuit will encourage collection agencies and other plaintiffs to actually verify the

merits of a claim before filing. This is consistent not only with CR 11, which

requires attorneys to verify that the pleading is well grounded in fact and warranted

by law, but also with the purpose of the statute to penalize parties who

unjustifiably bring small claims.

       From the defendant's viewpoint, being wrongly sued where, as here, nothing

is owed imposes on them the unnecessary burden to defend. This includes hiring

an attorney, incurring costs and fees in defending the claim, and possible future

consequences from the public court record of having been sued. All of this

potential burden is easily avoided by following the statutory directive. This places




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AllianceOne Receivables Mgmt., Inc. v. Lewis, No. 87445-0
(C. Johnson, J., dissenting)


the incentive on plaintiffs, where it logically belongs, to investigate and verify their

claims before filing meritless lawsuits.




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