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DeAtley v. Barnett5/17/2005
mpshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed. 2d 968 (2001), the United States Supreme Court invoked judicial estoppel, describing the doctrine as preventing ''perversion of the judicial process'' by not allowing parties to ''gain an advantage by litigation on one theory, and then seek{ing} an inconsistent advantage by pursuing an incompatible theory.'' Id. at 749 (quoting In re Cassidy, 892 F.2d 637, 641, cert. denied, 498 U.S. 812 (1990); 18B Charles A. Wright, Federal Practice and Procedure sec. 4477, at 549 (2002)).
The DeAtleys inconsistently received bankruptcy relief, and thereafter sought contradictory relief. Under these facts, we conclude judicial estoppel applies here to foreclose the DeAtleys' claim.
In sum, the lack of standing and judicial estoppel leads us to conclude the trial court did not err in dismissing the DeAtleys' complaint or in denying reconsideration. Therefore, it is unnecessary to analyze the parties other issues and contentions except those related to the Barnetts' attorney fees.
B. Attorney Fees at the Superior Court
The issue is whether the trial court erred in limiting the Barnetts' award of attorney fees to those incurred to bring their motion to dismiss. The Barnetts contend the court erred as a matter of law in finding the Barnetts delayed in bringing their motion to dismiss without just cause because the delay was caused by the DeAtleys' delay in providing requested discovery. We review trial court's attorney fees award for an abuse of discretion. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). Abuse of discretion occurs when the trial court's decision rests on untenable grounds or untenable reasons. State ex rel. Carroll v. Junkel, 79 Wn.2d 12, 26, 482 P. 775 (1971).
The trial court reasoned the bankruptcy issue was known to the Barnetts well prior 'to the end of 2003 and now here in 2004, the motion was always available to the defendants.' Report of Proceedings at 3. The record supports the trial court's reasoning. For example, Mr. Barnett admitted he received notice of the DeAtleys' bankruptcy proceeding in 1992. Mr. Barnett assumed the DeAtleys abandoned the road building project so the bankruptcy notice did not make 'an impression' on him. CP at 519. While the bankruptcy schedules were not received until 2003, the discharge of the road building obligation was sufficiently known to him to charge him with notice of the critical fact bearing upon the viability of the first right of refusal.
We defer to the trial court's personal and exhaustive contact with the issue. We limit our review to whether the judge's exercise of his discretion was manifestly unreasonable or based on untenable grounds or reasons. Mr. Barnett's recollection of the bankruptcy notice, while vague, was a tenable basis for the trial court to find the motion to dismiss could have been brought sooner. The trial court did not abuse its discretion in limiting the award.
C. Attorney Fees on Appeal
The Barnetts and Lookout Point request fees and costs on appeal pursuant to RAP 18.1. Attorney fees are awarded pursuant to contract, statute, or a recognized ground of equity. Wilkerson v. United Inv., Inc., 62 Wn. App. 712, 716, 815 P.2d 293 (1991). By statute, attorney fees are awarded to the prevailing party in an action on a contract that specifically provides for attorney fees and costs incurred to enforce its provisions. RCW 4.84.330.
The parties' agreement provides, 'In the event any suit or action shall be instituted under this Agreement . . . the prevailing party in such suit or action shall be entitled to reasonable attorney's fees, together with such other assessable c
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