IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE T & B WASHINGTON, INC. DBA COLDWELL BANKER TOMLINSON SOUTH, Interpleader Plaintiff,

v. VI R GINIA DULLANTY, AN UNMARRIED PERSON, Appellant,
and
GARY SAWYER AND SANDRA SA WYER, INDIVIDUALLY AND/OR AS TRUSTEES OF THE GARY AND SANDRA SAWYER REVOCABLE TRUST, Respondent s . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 35036

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PUBLISHED OPINION 

### FILED MAY 1, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 35036

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2 P ENNELL , A.C. J.

— This appeal stems from an interpleader action initiate d by
T & B Washington , Inc. to determine disbursement of $3,000 in earnest money after a
failed real estate transaction. The sole issue on appeal concerns the superior court ’s award of attorney fees under RCW 4.84.250 to Gary and Sandra Sawyer as disburse ment recipients . We hold that because the interpleader brought by T & B Washington was not an “action for damages,” the attorney fee award pursuant to RCW 4.84.250 was inappropriate. The judgment awarding fees is therefore reversed.
FACTS The underlying facts of the parties’ real estate transaction are not relevant to the issue on appeal and therefore r equire only brief mention . Virginia Dullanty was in the process of selling her home to Gary and Sandra Sawyer

. As part of the purchase and sale agreement , the Sawyers posted $3,000 in earnest money toward the sale . Prior to closing , a windstorm damaged Ms. Dullanty’s property and the Sawyers declined to proceed with the purchase. The Sawyers requested a return of the ir earnest money, but Ms. Dullanty
ref used. Pursuant to RCW 64.04.220 and the terms of the purchase and sale agreement,
T & B Washington, the holder of the earnest money, instituted an interpleader action in superior court to determine disbursement of the earnest money.No. 35036

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3 After initial attempt s at settlement , the Sawyers moved for summary judgment.
The y sought disbursement of the $3,000 th at had been deposited into the c ourt’s registry and an award of reasonable attorney fees and expenses. Ms. Dullanty responded by claiming the $3,000 should be disbursed to her and that she should be awarded fees and

costs. Neither the Sawyers nor Ms. Dullanty formally asserted a claim or cross claim against the other. The superior court ultimately granted summary judgment and ordered the $3,000 held in the court’s registry to be disb ursed to the Sawyers.
T he superior court then requested additional briefing on the issue of attorney fees

. After reviewing the briefing and hearing argument from the parties, t he court again found
in favor of the Sawyers . The c ourt entered a judgment against Ms. Dullanty in the
amount of $36,510.75 for attorney fees as costs pursuant to RCW 4.84.250. Ms. Dullanty appeals.
ANALYSIS Superior court award of fees as costs
RCW 4.84.2 5 0 authorizes an award of reasonable attorney fees as costs to the prevailing party in “any action for damages” of $10,000 or less . Our review of whether

a given law suit constitutes an “action for damages” under the statute is de novo. See Target Nat’l Bank v. Higgins , 180 Wn. App. 1 65, 172, 321 P.3d 12 15 (2014).No. 35036

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4 We agree with Ms. Dullanty that the instant case did not involve an action for damages. 1 This matter was initiated as an interpleader action by a neutral party in order to determine which entity, Ms. Dullanty or the Sawyers, was entitled to ret urn of the $3,000 earnest money deposit. RCW 64.04.220. Neither Ms. Dullanty nor the Sawyers requested any additional relief in the form of contract or tort damages. See Davy v. Moss , 19 Wn. App. 32, 34, 573 P.2d 826 (1978) (“In Washington, the word ‘da mages’ has been
construed to include bot h tort and contract actions

. ”). Given this procedural posture, the
action before the superior court was purely equitable. We have previously held that when a court is only asked to adjudicate the return
of property, the suit does not constitute an action for damages, as contemplated by the attorney fee statute. In re 1992 Honda Accord , 117 Wn. App. 510, 523, 71 P.3d 226 (2003) ; s ee also Kobza v. Tripp , 105 Wn. App. 90, 18 P.3d 621 (2001)

. Our prior reasoning fully applies in this case. The fact that the property at issue here is a lump sum of money, as opposed to an item of personal property , does not alter our analysis. 1992
Honda Accord , 117 Wn. App. at 523 (return of impound fees did not constitute an action

1 Ms. Dullanty did not waive this issue. Throughout the superior court proceedings, the parties focused largely on the issue of contract damages under the purchase and sale agreement. Nevertheless, in her briefing regarding statutory attorney fees, Ms. Dullanty plainly stated that the instant interpleader complaint was not an action for damages.No. 35036

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5 fo r damages). Our ruling should not be read to mean that no suit regarding an earnest money deposit can qualify as an action for damages. An earnest money deposit can be akin to liquidated damages. When the purchaser to a real estate contract breaches the terms of a purchase and sale agreement, the seller can pursue forfeiture of earnest money as a remedy in lieu of actual damages. See RCW 64.04.005

. In such circumstances, a breach of contract suit would constitute an action for damages for purposes of st atutory attorney fees. But that is not what happened here. Ms. Dullanty never filed a claim for breach of contract, requesting return of the earnest money as liquidated damages

. Nor did the Sawyers file a claim for breach of contract. Inst ead, both par ties merely requested disbursement of funds, which was a form of relief fully within the scope of T & B Washington’s original interpleader suit. Although the parties ’ briefing in support of disbursement included arguments over whether there had been a bre ach of the purchase and sale agreement, th ose substantive arguments did not alter the nature o f the action
before the superior court

. Because the instant case did not involve an action for damages, RCW 4.84.250
is not applicable . The superior court theref ore erred in awarding fees as costs to the Sawyers under that statute.No. 35036

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6 Appellate f ees and c osts Both parties seek attorney fees on appeal. Neither request is warranted. Our resolution of the Sawyers’ fee request is evident from the substance of this opin ion. Because the Sawyers have not prevailed on asserting an action for damages , they are not eligible for fees under RCW 4.84 .250 and . 290

. Recognizing that she also cannot obtain attorney fees under RCW 4.84.2 5 0 and
.290 , Ms . Dullanty instead seeks fees under RCW 4.84.330, which allows a court to award fees and costs based on a contract provision. Ms. Dullanty’s fee request fails based
on the terms of her contract. B ecause this matter did not involve a suit instituted by either Ms. Dullanty or the S awye rs, the plain wording of the parties’ real estate contract does not permit an award of attorney fees. 2 Nor can Ms. Dullanty assert a basis for fees under the equitable theory of mutuality of remedy. See Almanza v. Bowen , 155 Wn. App. 16,
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Sa w y ers are ineligible for attorney fees, Ms. D ullanty is ineligible as well.

2 The purchase and sale agreement states, “if Buyer or Seller institutes suit against the other concerning this Agreement the prevailing party is entitled to reasonable attorneys’ fees and expenses.” Clerk’s Papers at 9.No. 35036-3-III T & B Washington, Inc. v. Dullanty



### CONCLUSION
We reverse the superior court's award of attorney fees as costs under
RCW 4.84.250. Each side shall bear its own attorney fees on appeal.

Pennell, A.C.J. WE CONCUR:

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