Ino Ino, Inc. v. City of Bellevue , 132 Wash. 2d 103 ( 1997 )

Talmadge, J.

(concurring in part/dissenting in part) — I agree with the majority’s analysis of all of the issues in the case except attorney fees for the dissolution of the temporary restraining order. The majority is correct in concluding that the fees are not limited to the amount of the bond required by CR 65(c). I agree with the majority that 42 U.S.C. § 1988 (1994) does not preempt an award of fees to the City of Bellevue (Bellevue) under state law and that the respondents were not a prevailing party for purposes of the federal statute. But I believe Bellevue is entitled to attorney fees on appeal under the dissolution of a wrongful injunction exception to the American rule on attorney fees. RAP 18.1(a).

I disagree with the majority’s narrow interpretation of the dissolution of the wrongful injunction exception to the American rule. In Cecil v. Dominy, 69 Wn.2d 289, 291-92, 418 P.2d 233 (1966), we stated a broader formulation of the exception:

Because the trial on the merits had for its sole purpose a determination of whether the injunction should stand or fall, and was the only procedure then available to the party enjoined to bring about dissolution of the temporary injunction, the case comes within the rule that a reasonable attorney’s fee reasonably incurred in procuring the dissolution of an injunction wrongfully issued represents damages suffered from the injunction.

See also Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 635 P.2d 108 (1981). The entire thrust of the respondents’ cross-appeal was to restore the original injunction. To the extent the respondents maintain in play the question of whether an injunction should be issued, Bellevue is entitled to its expenses incurred for resisting the wrongful injunction respondents sought throughout this case.

In the cases cited by the majority in its opinion at page 144, attorney fees were awarded at trial and on appeal where a party successfully reversed a wrongful injunction on appeal. There is a certain illogic to the proposition that a party is entitled to its attorney fees at trial under the wrongful injunction dissolution exception to the American rule in removing the wrongful injunctive order, yet is denied its fees on appeal defending the trial order that dissolved the wrongful injunction. Our policy on the awarding of fees and costs on appeal should more accurately reflect the realities of litigation.

To the extent a party persists in pursuing injunctive relief, the opposing party who successfully dissolves an injunction or successfully defends against the restoration of a wrongfully issued injunction on appeal should be entitled to its reasonable attorney fees.

Durham, C.J., concurs with Talmadge, J.