Borton & Sons, Inc. v. Novazone, Inc. , 481 F. App'x 322 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BORTON & SONS, INC., a Washington No. 11-35511
corporation,
D.C. No. 2:08-cv-03016-RHW
Plaintiff - Appellee,
v. MEMORANDUM*
NOVAZONE, INC., DBA PURFRESH,
INC., a California corporation,
Defendant - Appellant.
BORTON & SONS, INC., a Washington No. 11-35608
corporation,
D.C. No. 2:08-cv-03016-RHW
Plaintiff - Appellant,
v.
NOVAZONE, INC., DBA PURFRESH,
INC., a California corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted July 10, 2012
Seattle, Washington
Before: SCHROEDER, REINHARDT, and M. SMITH, Circuit Judges.
Novazone, Inc. d/b/a Purfresh, Inc. (Novazone) appeals the district court’s
award of prejudgment interest, following a jury trial, to Borton & Sons, Inc.
(Borton). Borton cross-appeals the district court’s order denying its motion for
attorney fees and costs. As the facts and procedural history are familiar to the
parties, we do not recite them here except as necessary to explain our disposition.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in
part.
In Washington, a court may award prejudgment interest on a liquidated
claim, i.e., “where the evidence furnishes data which, if believed, makes it possible
to compute the amount with exactness, without reliance on opinion or discretion.”
Scoccolo Constr., Inc. ex rel. Curb One, Inc. v. City of Renton, 145 P.3d 371, 377
(Wash. 2006). Novazone contends that the district court erred in awarding
prejudgment interest because the jury did not compute its award with an exact
measure, but instead relied upon its discretion. We agree. The jury relied upon its
own “determination of reasonableness” in calculating Borton’s damages. Kiewit-
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Grice v. State, 895 P.2d 6, 9 (Wash. Ct. App. 1995). Accordingly, we hold that
Borton’s damages were unliquidated and reverse the district court’s award of
prejudgment interest.
Under Washington law, absent a contractual provision, statutory provision,
or a well-recognized principle of equity to the contrary, a court has no authority to
award attorney fees to the prevailing party. N. Pac. Plywood, Inc. v. Access Road
Builders, Inc., 628 P.2d 482, 487 (Wash. Ct. App. 1981). Where a contract has
been invalidated for lack of mutual intent, no contract was ever formed, and
therefore, the parties are not entitled to rely upon any attorney fee provision under
the purported contract. Wallace v. Kuehner, 46 P.3d 823, 830-31 (Wash. Ct. App.
2002). Accordingly, because the contract containing the fee provisions was
invalidated for lack of authority, we hold that the district court did not err in
refusing to award Borton attorney fees.
AFFIRMED IN PART, REVERSED IN PART.
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