You Won In Court! But That Doesn’t Mean Your Fees Get Paid
In civil lawsuits, each side normally pays its own legal bills. However, a contract, statute, or “recognized equitable doctrine” may force the loser to pay the winner’s fees and costs. A recent Washington Court of Appeals decision called Fid. Nat’l Title Ins. Co. v. Horton examined three arguments for awarding attorney fees.
In June 2021, Clayton and Melissa Horton signed a contract to sell three vacant lots in downtown Puyallup to Coba Construction. That deal had conditions. If Coba could not get building permits by a certain date, the contract would keep extending automatically until the permits came through. While that process was still ongoing, the Hortons got impatient and signed a second contract to sell the same lots to a different buyer. They transferred the deed to that second buyer the following month. Coba found out and sued, arguing it still had right to buy the property. The second buyer’s title insurer, Fidelity National Title, paid $75,000 to settle Coba’s claims and then turned around and sued the Hortons, arguing they had breached the warranty deed by selling property they did not have authority to sell. The Hortons won that lawsuit. The trial court then awarded them over $40,000 in attorney fees. Fidelity National Title appealed, and the main issue was the attorney fee award. The Washington Court of Appeals reversed that fee award in February 2026.
The Hortons argued three different theories to justify the fee award. First, they pointed to an attorney fee clause in the original Coba contract. The court rejected this because Fidelity was never a party to that contract, and the lawsuit didn’t arise from it. Second, they argued Washington’s warranty deed statute authorized fees. The court said no: that statute allows injured buyers to recover attorney fees as damages when a seller fails to defend their title, but it does not flip around to benefit the seller. Third, the Hortons tried to argue fairness. They said that because Fidelity put them at risk of paying attorney fees by suing them, it was only fair that Fidelity pay their fees when they won. The court rejected this too. That fairness principle only works when both sides have an independent legal right to fees somewhere in the contract or the law. It is not a standalone argument. It cannot create a fee right out of thin air. Here, neither side had a legal basis for fees to begin with, so there was nothing to make mutual.
Attorney fees in litigation are often an afterthought – until they aren’t. A case like Horton can cost tens or hundreds of thousands of dollars to litigate, and Washington law gives you no guarantee of recovering that money even if you win. If the relevant contract and/or relevant statute is silent on attorney fees, you are likely paying your own bills no matter the outcome.
The lawyers at Beresford Booth help clients recover attorney fees in litigation whenever possible and practical. If you are facing a property dispute or business dispute, or if you have questions about your exposure, please feel free to contact us directly at info@beresfordlaw.com or by phone at (425) 776-4100.