State v. O'Connell
| Decision Date | 05 December 1974 |
| Docket Number | No. 42417,42417 |
| Citation | 84 Wn.2d 602,528 P.2d 988 |
| Parties | The STATE of Washington et al., Appellants, v. John J. O'CONNELL et al., Respondents and Cross-Appellants. |
| Court | Washington Supreme Court |
Slade Gorton, Atty. Gen., Malachy R. Murphy, Asst. Atty. Gen., Olympia, Helsell, Paul, Fetterman Todd & Hokanson, William A. Helsell, Thomas W. Huber, Seattle, for appellants.
John J. O'Connell, Tacoma, Short, Cressman & Cable, Paul R. Cressman, William L. Hintze, John O. Burgess, Seattle, for respondents and cross-appellants.
This matter is before the court on a motion of the respondents Aliotos (who will be referred to herein as the Aliotos) for an award of attorney fees on appeal. They ask the court to make the award under RCW 4.28.185(5), the 'long arm' statute. That act provides:
(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 Aliotos were personally served in California with summons and complaint in an action brought by the State of Washington and a number of municipal corporations to forfeit attorney fees, which attorney Alioto had received in antitrust suits which he had conducted for the appellants. The appellants relied upon several theories to support their claim that the legal fees should be forfeited. The Aliotos filed a cross-claim based on quantum meruit. A verdict was returned in favor of the Aliotos, who then moved the trial court to aware them attorney fees in accordance with the authorization, RCW 4.28.185(5).
The court denied this request, giving as its reasons, among others, that the complaint was not entirely frivolous and that Washington was the most appropriate place to try the case. It also noted that there had been no showing that the Aliotos had incurred additional expenses by reason of having to defend the action in Washington.
The plaintiffs appealed, and the respondents cross-appealed from an order of the trial court dismissing the cross- complaint and the order denying attorney fees. This court was asked to consider the cross-appeal from the order dismissing the crosscomplaint, only in the event it ordered a new trial.
In a 6--3 decision, this court affirmed the judgment entered on the verdict. State v. O'Connell, 83 Wash.2d 797, 523 P.2d 872 (1974). We were unanimous, however, in the opinion that the judgment should be affirmed as to the Aliotos, the dissent stating that the evidence showed that attorney Alioto had acted properly in both a legal and an ethical sense and, further, that the instructions concerning his liability were correct and proper. We refused to set saide the trial court's order denying the motion for attorney fees, finding that there had been no clear showing of abuse of discretion. We said, however, that upon proper application, we would consider the question whether attorney fees should be allowed in this court.
Such an application is now before us. The Aliotos assert that the amount which they were required to pay their attorneys for representing them on the appeal was reasonable and request that the appellants be required to reimburse them in this amount. The appellants do not question the reasonableness of the fees charged. They do, however, insist that this court does not have discretion, under the statute, to make an award of attorney fees on appeal. They insist that such discretion is vested solely in the superior court. Their argument is based upon cases which were decided under the mechanics' lien statute, RCW 60.04.130, wherein this court construed that act to vest jurisdiction in the trial court to determine the question whether an attorney fee should be allowed on appeal. While not departing from our previous holding that the superior court has such jurisdiction, we said in the recent case of Rosellini v. Banchero, 83 Wash.2d 268, 517 P.2d 955 (1974), that this court itself has inherent power to determine whether attorney fees should be awarded on appeal, where they are authorized by statute.
RCW 4.28.185(5) provides that the attorney fees may be taxed and alowed as part of the costs of defending the action. The appellants do not suggest that it authorizes attorney fees only at the trial level. This court taxes and allows costs on appeal. ROA I--55. We think the logical interpretation of this provision is that is authorizes the award of attorney fees by the Supreme Court where a defendant who was served under the long arm statute prevails on the appeal. If a question arises as to the reasonableness of the fees claimed, the matter can be remanded for an evidentiary hearing.
It is contended by the appellants that the respondents Aliotos did not prevail on the appeal within the meaning of the statute because their cross-appeal directed to the denial of their motion for attorney fees was denied. We do not find this argument persuasive. The statutee provides for the award of attorney fees to a defendant who prevails 'in the action.' Undoubtedly the reference is to the action on the merits. The motion for attorney fees in entertained only after the defendant has prevailed in the action. His status as prevailing party is not affected by the ruling on the motion for attorney fees.
The constitutionality of the provision authorizing an award of attorney fees to a prevailing defendant was upheld in the Court of Appeals, Division One, Panel 1, in Mahnkey v....
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