Andersen v. Gold Seal Vineyards, Inc.

• Decision Date: 25 January 1973
• Docket Number: No. 42471,42471
• Citation: 505 P.2d 790,81 Wn.2d 863
• Parties: Robert W. ANDERSEN, Plaintiff, v. GOLD SEAL VINEYARDS, INC. a foreign corporation, Appellant, The State of Washington, Defendant, Sparkletop Corporation, a foreign corporation, Respondent and Cross-Appellant, Napco Corporation, Respondent. *
• Court: Washington Supreme Court

Page 863

81 Wn.2d 863

505 P.2d 790

Robert W. ANDERSEN, Plaintiff, v. GOLD SEAL VINEYARDS, INC. a foreign corporation, Appellant The State of Washington, Defendant Sparkletop Corporation, a foreign corporation, Respondent and Cross-Appellant Napco Corporation, Respondent. ^*

No. 42471.

Supreme Court of Washington, En Banc.

Jan. 25, 1973.

Detels, Draper & Marinkovich, Frank W. Draper, Seattle, for appellant.

Reed, McClure, Moceri & Thonn, William R. Hickman, Wolf, Hackett, Beecher & Hart, James M. Beecher, Seattle, for respondent.

ROSELLINI, Associate Justice.

This appeal brings to the court questions concerning the allowance of costs under the 'long arm statute,' RCW 4.28.185, which provides in paragraph (5):

In the event the defendant is personally served outside the state on causes of action enumerated in this section, and prevails in the action, there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys' fees.

The plaintiff, Andersen, was injured when he was struck in the eye by a plastic stopper which flew off a bottle of sparkling wine while he was in the process of opening the bottle. The wine was bottled by the defendant, Gold Seal Vineyards, Inc., which will be referred to herein as Gold Seal. Gold Seal brought an indemnity action against the supplier of the stopper, Sparkletop Corporation, to be referred to herein as Sparkletop. Sparkletop answered the complaint in that third party action, denying the allegations generally and affirmatively alleging contributory negligence on the part of Gold Seal. It also brought an indemnity action against the manufacturer of the stopper, Napco Corporation, to be referred to herein as Napco. Napco filed a responsive pleading generally denying the allegations of Sparkletop's third party complaint.

All of these actions were consolidated for trial. Other pleadings were filed, but none of them affects the disposition of the questions before the court on this appeal.

After the trial had been in progress several days, Gold Seal moved for a voluntary nonsuit of its third party complaint against Sparkletop. Sparkletop then moved for a voluntary nonsuit of its third party complaint against Napco. The motions were granted without argument or comment.

At the conclusion of the trial, judgment was entered on a verdict in favor of the plaintiff, against the only defendant remaining in the action, Gold Seal. Gold Seal satisfied the judgment. Thereafter, the trial court awarded costs and attorney's fees to Napco, in the third party action brought by Sparkletop, in the amount of $2,882.38. It also awarded costs and attorney's fees to Sparkletop, in the third party action brought by Gold Seal, in the amount of $5,501.57. Included in this sum was the amount of the judgment for attorney's fees and costs which Napco had been awarded against Sparkletop.

Gold Seal and Sparkletop have appealed from the judgments entered against them. However, Sparkletop's appeal is contingent upon the court's holding in favor of Gold Seal. Primarily, it seeks to sustain the judgment.

It is first contended that the court erred in awarding any costs or attorneys' fees under the long arm statute, since, it is claimed, Sparkletop did not prevail in the third party action which was brought against it, and Napco did not prevail in the third party action in which it was named defendant. The theory advanced is that there can be no prevailing party unless an affirmative judgment is entered.

The prevailing party in a lawsuit is that party in whose favor judgment is entered. As a general rule where a plaintiff voluntarily dismisses his action, the defendant is entitled to costs. 20 C.J.S. Costs § 68 (1940); 20 Am.Jur.2d Costs § 18 (1965). See also 21 A.L.R.2d 627 Voluntary Dismissal--Conditions (1952). This court has said, by dictum, that the awarding of costs to the defendant, where there is a voluntary nonsuit, is within the discretion of the trial court. In re Estate of Frye, 198 Wash. 406, 88 P.2d 576 (1939). ¹ It would seem to follow that, if the defendant is awarded costs, he is the prevailing party.

While we find no case in which this court has been asked to decide whether the defendant 'prevails' when an action against him is dismissed on motion of the plaintiff, we have recognized that, where no judgment is entered against a defendant in an action at law, he is entitled to his costs. Sibbald v. Chehalis Sav. & Loan Ass'n, 6 Wash.2d 203, 107 P.2d 333 (1940). It also was said in that case that if the action is one of equitable cognizance, the disposition of the costs is within the discretion of the trial court and will not be disturbed in the absence of abuse.

Gold Seal cites Ennis v. Ring, 56 Wash.2d 465, 473, 341 P.2d 885, 353 P.2d 950 (1959), for the proposition that there can be no prevailing party unless an affirmative judgment entered. That was a suit by a lessor for rent due, in which the lessee counterclaimed for wrongful leasing of part of the demised premises to a third party. This court held that the lessees had established sufficient damages to offset the plaintiff's claim for rent, and that neither party was entitled to costs.

We said:

The statute provides that the prevailing party is entitled to costs in the superior court. RCW 4.84.030. The prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case. Snider v. Wright, 112 Wash. 536, 192 P. 923 (1920).

Snider v. Wright, 112 Wash. 536, 192 P. 923 (1920), the one authority cited in that opinion, was also a case in which the defendant filed a cross-complaint. The amount of damages allowed the plaintiff, was in excess of those allowed the defendant, however, and this court applied the rule that the party in whose favor an affirmative judgment is entered is entitled to costs. See also Basse v. Kamholz, 65 Wash.2d 369, 397 P.2d 420 (1964); Nowogroski v. Southworth, 100 Wash. 336, 170 P. 1011 (1918); and Empire State Surety Co. v. Moran Bros. Co., 71 Wash. 171, 127 P. 1104 (1912).

The rule stated in these cases is correctly applied where the defendant has obtained judgment upon a cross-complaint, but it does not answer the question, Who is the prevailing party where no affirmative judgment is entered? We did not state in any of those cases and it is not the law that there can be no prevailing party unless such a judgment is entered.

We have said that a defendant who obtains a judgment setting aside the verdict in favor of the plaintiff and granting a new trial is the prevailing party and entitled to costs, even though the plaintiff again obtains a verdict in the second trial. Klock Produce Co. v. Diamond Ice & Storage Co., 98 Wash. 676, 168 P. 476 (1917); Briglio v. Holt & Jeffery, 91 Wash. 644, 645, 158 P. 347 (1916). We said in the latter case, 'Costs follow as an incident to a judgment.' This statement is in harmony with the definitions found in Black's Law Dictionary (Rev. 4th ed. 1968) at 1352, which cites the case of Klock Produce Co. v. Diamond Ice & Storage Co., Supra, as illustrative of the rule stated there, that to be the prevailing party

does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has successfully maintained it.

For this rule, the dictionary cites Bangor & Piscataquis R.R. v. Chamberlain, 60 Me. 285 (1872).

6 J. Moore, Federal Practice 54.70(4), at 1306 (1966, Supp.1967), states the rule to be that where there is a dismissal of an action, even where such dismissal is voluntary and without prejudice, the defendant is the prevailing party, noting that it may be otherwise if the dismissal results from a settlement of the plaintiff's claim before trial. Under our decision in Thurston County v. Scammell, 7 Wash. 94, 34 P. 470 (1893), there also is an exception to the rule where the court loses jurisdiction after an action is brought. Whether that exception should apply in cases where service was obtained under the long arm statute, we need not and do not decide at this time.

We think the general rule pertaining to voluntary nonsuits, that the defendant is regarded as having prevailed, should be applied to cases in which service upon the defendant was obtained under RCW 4.28.185(5). Since that statute was enacted to facilitate service upon out-of-state defendants, the legislature must naturally have had in mind that a defendant who 'prevails' is ordinarily one against whom no affirmative judgment is entered. When an action against such a defendant is dismissed, even though that dismissal be upon the motion of the plaintiff, the judgment which is entered shows that the plaintiff failed to prove his claim. We think it was the legislative intent that, at such a point, a defendant who has been served outside this state and has been put to expense in answering the complaint and preparing for trial should be reimbursed by the plaintiff if the court finds that the justice of the case requires it.

In this case, not only did the defendants in the indemnity actions expend funds in preparation for trial, but they were put to the further expense of participation in the trial itself for several days before the motion was made to dismiss. The legislature must have had in mind situations such as this, as well as those in which the defendant might prevail on the merits, when it provided for the taxing and allowance of costs, including attorneys' fees, in the court's discretion, in cases where the foreign defendant prevails.

We hold that the trial court was authorized by RCW 4.28.185(5) to award costs and attorneys' fees to the defendants in both indemnity actions, when they were dismissed on motion of the plaintiffs. There is no contention that the amount of the attorneys' fees awarded was unreasonable. The judgment, insofar as it awarded...