Cavalry Spvi, Llc, Respondent V. James Swalwell And Doe I, Appellants

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CAVALRY SPVI, LLC,
Respondent,
JAMES SWALWELL and DOE I and their
marital community composed thereof,
Appellant.
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) 	DIVISION ONE 	CD
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) 	UNPUBLISHED OPINION o
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) 	FILED: July 28, 2014
Trickey, J. — The "prevailing party" in a lawsuit alleging damages of
$10,000 or less is statutorily entitled to an award of attorney fees. 	But there can
be no prevailing party under RCW 4.84.250 and .270 without entry of a judgment.
Because a voluntary dismissal without prejudice under CR 41 does not result in
the entry of a judgment, the trial court properly denied James Swalwell's request
for attorney fees. 	We affirm.
FACTS
Beneficial 	Financial 	I 	Inc. 	filed 	this 	collection 	action 	against 	James
Swalwell on December 12, 2011. 	Cavalry SPVI, LLC (Cavalry), purchased the
account in November 2012, and the trial court later granted Cavalry's motion to
be substituted as the plaintiff.
On May 14, 2013, the trial court granted Cavalry's motion for a dismissal
without 	prejudice 	under 	CR 41(a)(1)(B). 	Swalwell 	requested an 	award 	of
attorney fees, asserting that he was the "prevailing party" under RCW 4.84.250
and .270. 	Following a hearing on July 19, 2013, the trial court denied the motion,

No. 70747-7-1 / 2
ruling that RCW 4.84.250 does not authorize an attorney fee award following a
voluntary dismissal under CR 41. 	Swalwell appeals.
ANALYSIS
Swalwell contends that the trial court erred 	in denying 	his request for
attorney fees. 	Citing Allahvari v. Carter Subaru, 78 Wn. App. 518, 897 P.2d 413
(1995), he argues that he was the prevailing party because Cavalry recovered
nothing after voluntarily dismissing its case. 	In Allahvari. the court concluded that
when the plaintiff voluntarily dismisses the case, the plaintiff recovers nothing
and 	the 	defendant 	is 	therefore 	a 	prevailing 	party 	under 	RCW 	4.84.270
"regardless of whether [a] 	voluntary 	dismissal constitutes a final 	judgment."
Allahvari, 78 Wn. App. at 524.
In Washington, the prevailing party is not entitled to an award of attorney
fees as a cost of litigation absent a contract, statute, or recognized ground of
equity. 	Rettkowski v. Department of Ecology. 128 Wn.2d 508, 514, 910 P.2d 462
(1996). 	RCW 4.84.250 provides that in actions in which "the amount pleaded" is
$10,000 or less, "there shall be taxed and allowed to the prevailing party ... a
reasonable amount to be fixed by the court as attorneys' fees." 	A defendant is
the "prevailing party" under RCW 4.84.250 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, or the party resisting relief." 	RCW 4.84.270.
After the parties submitted their briefs in this case, our Supreme Court
held that "there must be a final judgment before attorney fees can be made

No. 70747-7-1 / 3
available to the prevailing party under RCW 4.84.250 and .270." 	AllianceOne
Receivables Mqmt.. Inc. v. Lewis. 	Wn.2d 	, 325 P.3d 904, 905 (2014).
The court further concluded that because a voluntary dismissal without prejudice
does not result in the entry of a judgment, the defendant cannot be a "prevailing
party" following a CR 41 dismissal and is not entitled to attorney fees under RCW
4.84.250 and .270. AllianceOne. 325 P.3d at 909.
In reaching its decision, the majority in AllianceOne rejected the analysis
in Allahvari v. Carter Subaru, upon which Swalwell relies. 	Instead, the majority
adopted the three-part test from Cork Insulation Sales Co. v. Torqeson. 54 Wn.
App. 702, 775 P.2d 970 (1989). 	Consequently, in order to be entitled to attorney
fees 	under 	RCW 	4.84.250, 	the 	defendant 	must 	demonstrate 	(1) 	that 	the
damages pleaded were equal to or less than $10,000, (2) that the defendant is
the prevailing party, and (3) that there was an entry of judgment. 	AllianceOne.
325 P.3d at 905, 909.
Because 	there 	was 	no 	entry 	of 	judgment 	after 	Cavalry 	voluntarily
dismissed its action, 	Swalwell cannot be the prevailing party. 	The trial court
properly denied his request for attorney fees under RCW 4.84.250 and .270.1
1Because there is no prevailing party, we need not address Cavalry's contention that
Swalwell also failed to demonstrate that the damages requested were equal to or less
than $10,000.

No. 70747-7-1 / 4
Swalwell has also requested an award of attorney fees on appeal. 	See
RCW 4.84.290. 	Because he is not a prevailing party, the request is denied. 	See
AllianceOne. 325 P.3d at 909-10.
Affirmed.
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WE CONCUR:
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