Appellate panel hears dispute over attorneys�fees after voluntary nonsuit in Galinas v. El Masleymani

William John Crittendon, appearing for the appellant, told a Court of Appeals panel that respondents who sought to enforce homeownerscovenants with an attorney-fee clause should not have been denied fees after taking a voluntary nonsuit. "When you take a nonsuit in a case with a fee-shifting provision, if you are the losing party you pay," Crittendon said, arguing the trial courterred by relying on an unsupported mediation theory to deny fees.

Crittendon told the panel the covenants at issue are bilateral fee provisions and cited precedent (as argued) he said requires awarding fees to the prevailing party in that situation. He challenged the trial courtfinding that the parties were "still going to mediate," saying there was no evidentiary support for that finding in the record and that the mediation theory was raised only after dismissal.

A panel member pressed whether a voluntary nonsuit can represent two different realities: that the plaintiff conceded defeat or that the plaintiff achieved the relief sought and withdrew. "So why wouldn't we just leave it to our trial courts to make this rather situation-specific decision?" the judge asked.

Kelly DeLot Mayer, representing the respondents, said the respondents relied on three bases in the trial court for fees (contract, CR 11, and an RCW provision) and asked the court to defer to the trial court's exercise of discretion on the fee question. She told the panel the covenant's fee clause does include prevailing-party language but described the clause as unusually worded and urged the court to consider the posture of the case when deciding whether fees are appropriate.

Respondent counsel also pointed to precedent discussed in the briefing and at oral argument, saying a prior decision (cited during argument) instructs courts to examine the posture of each case and the contract language before deciding whether a voluntary nonsuit should trigger an award of attorney fees. She emphasized that the trial court relied on a record showing mediation had been attempted and that at least one defendant (the Sanders party) remained in the neighborhood and had stated in a declaration that mediation remained appropriate.

The panel repeatedly pressed both sides on appealability and practical effect. Counsel and the judges discussed scenarios in which the question would return to an appellate court, such as an arbitration award or a subsequent enforcement action. Respondents argued the trial courthad a factual basis for concluding mediation was still possible; appellants contended the dismissal made the case no longer pending and that, as a matter of law in contract cases, a defendant faced with a voluntary nonsuit is the prevailing party entitled to contractual fees.

Crittendon reserved rebuttal time and reiterated his position that the trial court lacked authority to deny contractual fees on the record before it. The argument in the transcript concluded after rebuttal time was used and the panel did not announce a ruling in the recorded exchange.

The central legal questions presented were (1) whether a voluntary nonsuit in this posture permits recovery of contractual attorneyfees as a matter of law, (2) whether the trial court had sufficient evidentiary support to exercise discretion to deny fees based on an asserted mediation posture, and (3) whether that fee ruling was immediately appealable. The panel's questions suggested it was focused on the factual posture at the time of dismissal and on distinctions counsel drew from several precedents cited during argument.

No formal ruling or vote appears in the transcript. The argument concluded with counsel requesting affirmance (respondent) and reserving rebuttal (appellant); the panel did not announce a decision in the excerpted record.