 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CAVALRY SPVI, LLC,
                                             )    No. 70747-7-1                c__    m


                       Respondent,                                                        5 *




                                             )    DIVISION ONE                 CD

                                                                                      './'
                                                                               T1*


                                                                                o
JAMES SWALWELL and DOE I and their           )    UNPUBLISHED OPINION
                                                                                en        ---



marital community composed thereof,                                             c




                       Appellant.            )    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.




                                                 ) ^, o^e vf *J"
WE CONCUR:




                                                   6&tA-
