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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BIRNEY DEMPCY and MARIE DEMPCY,
husband and wife, and their marital                   No. 73869-1-1
community,
                                                      DIVISION ONE
                    Appellants,
                                                      UNPUBLISHED OPINION
              v.



CHRIS AVENIUS and NELA AVENIUS,
husband and wife, and their marital
community,

                     Respondents,

JACK SHANNON, an individual; and
RADEK ZEMEL, an individual,

                     Defendants.                       FILED: September 26, 2016


      Appelwick, J. — The Dempcys sued their neighbors, the Aveniuses, to

establish their right to an easement over part of the Aveniuses' property and to
require the Aveniuses to remove a hedge, fence, trellis, and 11 trees from their
property. The trial court dismissedthe Dempcys' easement claim and their request

to remove the trellis and 11 trees. The court ordered the Aveniuses to remove the

hedge and fence. The Dempcys moved for attorney fees under the CC&Rs that
govern the neighborhood. The court denied that motion, reasoning that each party

prevailed on a major issue so there was no prevailing party. We affirm.
No. 73869-1-1/2




                                      FACTS


      Birney and Marie Dempcy and Chris and Nela Avenius are neighbors. The

Aveniuses' property is immediately adjacent to and north of the Dempcys' property.

Both properties are part of the Pickle Point Association.

      The Pickle Point Association is governed by a declaration of protective

covenants, restrictions, easements, and agreements (the CC&Rs). The CC&Rs

contain a provision relating to fences. This provision prohibits the construction of

fences, walls, hedges, and mass plantings between the Dempcy property and the

Avenius property, unless both affected owners approve. It also restricts all fences,

walls, hedges, or mass plantings from extending higher than six feet above the

ground. The CC&Rs also permit the prevailing party in an action enforcing the

CC&Rs to recover attorney fees.

       The Dempcys sued the Aveniuses alleging that the Aveniuses' fence,

hedge, trellis, and 11 of their trees violated the CC&Rs provisions pertaining to
fences. And, the Dempcys asserted that the Aveniuses were interfering with an

easement that gives the Dempcys the right to use the Aveniuses' property for

ingress and egress and for utilities as may be reasonably necessary.            The
Dempcys argued that this easement also permitted them to use a different portion

of the Aveniuses' property to walk from the east part of their own property to the

west yard.

       After a bench trial, the trial court rejected the Dempcys' claim that the

easement permitted them to use a different strip of the Aveniuses' property. The
No. 73869-1-1/3




trial court also ruled that the fence and hedge between the Dempcy and Avenius

properties violated the CC&Rs.    But, the court determined that the Aveniuses'

trellis and 11 trees did not violate the CC&Rs. Accordingly, the court ordered that

the Aveniuses must remove the fence and hedge and denied with prejudice all

other requested relief.

       Following the trial court's decision, the Dempcys requested an award of

attorney fees and costs pursuant to the CC&Rs.         The trial court denied the

Dempcys' motion for attorney fees. It noted that with regard to the claims relating

to the CC&Rs, each side won in part and lost in part. As a result, the court held

that there was no prevailing party, and an award of attorney fees was not

appropriate.

       The Dempcys appeal.

                                  DISCUSSION


       The Dempcys assert that the trial court erred in determining that they were

not the prevailing party and therefore denying their motion for attorney fees. And,

both parties contend that they are entitled to reasonable attorney fees on appeal.

       The determination of which party was the prevailing party below is a mixed

question of law and fact that we review under the error of law standard. Sardam

v. Morford, 51 Wn. App. 908, 911, 756 P.2d 174 (1988); Eaale Point Condo.

Owners Ass'n v. Coy, 102 Wn. App. 697, 706, 9 P.3d 898 (2000).

       Attorney fees are not available unless permitted by a contract, statute, or

recognized ground of equity. City of Seattle v. McCreadv, 131 Wn.2d 266, 273-
No. 73869-1-1/4




74, 931 P.2d 156 (1997).      When authorized by contract, the trial court has

discretion to determine a reasonable fee award.     Newport Yacht Basin Ass'n of

Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 86, 97-98, 285 P.3d 70

(2012). Generally, the prevailing party is the party that receives a favorable

judgment. Sardam, 51 Wn. App. at 911.

       In this case, the CC&Rs contained a provision permitting the prevailing party

in any action to enforce the CC&Rs to collect attorney fees and costs. Therefore,

the issues related to the CC&Rs only could support an award of attorney fees.

      The Dempcys assert that, because they were the only party that received

an affirmative judgment on a claim, they are the prevailing party. They point to the

court's order requiring the Aveniuses to remove the fence and hedge as evidence

of an affirmative judgment in their favor. They argue that under Washington law,

a party who does not receive the full amount of relief sought is still the prevailing
party. See Silverdale Hotel Assocs. v. Lomas &Nettleton Co., 36 Wn. App. 762,
774, 677 P.2d 773 (1984) (noting that a party need not recover its entire claim to

be the prevailing party); Stott v. Cervantes, 23 Wn. App. 346, 347, 349, 595 P.2d

563 (1979) (plaintiffs who recovered damages of $3,419 in suit for $10,000 were

prevailing party).

       However, Washington case law recognizes that a defendant can be a

prevailing party by successfully defending against a claim. Marassi v. Lau, 71 Wn.
App. 912, 918, 859 P.2d 605 (1993), abrogated on other grounds by Wachovia
SBA Lending. Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009). The defendant
No. 73869-1-1/5




need not have made a counterclaim for affirmative relief to recover as a prevailing

party. Newport Yacht, 168 Wn. App. at 99. When both parties prevail on major

issues, attorney fees are not appropriate. Marassi, 71 Wn. App. at 916.

       Here, the Dempcys prevailed on whether the CC&Rs prohibited the

Aveniuses' fence and hedge. The Aveniuses prevailed on whether the CC&Rs

prohibited the trellis and 11 trees.

       The Dempcys respond that the CC&Rs issue constituted a single claim, and

the trial court erred in treating them as two separate issues so as to deny their

motion for attorney fees. However, the record does not contain a transcript of the

trial pertaining to these claims. Our review is limited to the pleadings in the record
and the trial court's oral ruling, memorandum decision, and order. The Dempcys

alleged two violations of the CC&Rs: the Aveniuses' "fence structure and mass
plantings between the Dempcy property and the Avenius property." The trial court
found in their favor on the fence and hedge, but denied the Dempcys' other

requested relief with prejudice. In denying the Dempcys' motion for attorney fees,
the court ruled that both sides prevailed on major issues related to the covenant.

On this record, the trial court did not abuse its discretion in ruling that both sides

prevailed on major issues.

       Alternatively, the Dempcys contend that the trial court failed to follow the
appropriate procedure for awarding attorney fees in a multiple claim case. They
argue that under International Raceway, Inc. v JDFJ Corp., 97 Wn. App. 1, 970
No. 73869-1-1/6




P.2d 343 (1999), the trial court is required to provide findings of fact and

conclusions of law to support the allocation of fees among the claims.

      JDFJ Corp. does not apply on these facts. In that case, each party made a

separate and distinct claim against the other. JDFJ Corp., 97 Wn. App. at 4. The

trial court determined that neither party prevailed on one issue, and International

Raceway won on the other issue, jd. at 7. Reasoning that the issue on which

International Raceway prevailed constituted two-thirds of the action, the court

awarded International Raceway two-thirds of its attorney fees. Id On appeal, the

court held that this proportionality approach is appropriate in cases where multiple

distinct and severable claims are at issue. Id. at 8-9.

       This case did not involve multiple distinct and severable claims made by

each party. Instead, the Dempcys claimed that the Aveniuses violated the CC&Rs

in multiple ways. They were successful in part and unsuccessful in part. The

applicable rule here is that stated in Marassi: where both parties prevail on major
issues, an attorney fee award is not appropriate. 71 Wn. App. at 916. The trial

court properly applied the Marassi rule to these facts.

       The Dempcys and the Aveniuses both seek attorney fees on appeal under

RAP 18.1. RAP 18.1(a) permits attorney fees on appeal if authorized by applicable

law. Where a contract allows for attorney fee awards in the trial court, the

prevailing party before this court may seek reasonable attorney fees incurred on

appeal. Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 717-18, 334

P.3d 116 (2014). Here, the CC&Rs authorize attorney fee awards in any action to
No. 73869-1-1/7




enforce it, so the prevailing party on appeal may also recover attorney fees.

Because we hold that the trial court did not err in denying the Dempcys' motion for

attorney fees, the Aveniuses are the prevailing party on appeal. They are entitled

to reasonable attorney fees for the costs of appeal.

      We affirm.




WE CONCUR:




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