PAMELA BIRIMISA v. PILATES CENTER OF REDMOND BRIAN HEBERLING LARISSA WILSON HEBERLING (2010)

BACKGROUND

Analysis

Birimisa contends that the Pilates Center is not entitled to an award of attorney fees in this case.   We agree.

“The general rule in Washington, commonly referred to as the American rule, is that each party in a civil action will pay its own attorney fees and costs.” ²  But trial courts may award attorney fees when authorized by contract, statute, or a recognized ground in equity.³  We review a trial court's attorney fee award for abuse of discretion.⁴

Here, RCW 49.48.030 expressly entitles an employee, Birimisa in this case, to attorney fees and costs in a successful wage claim.  RCW 49.48.030 provides in pertinent part:  “In any action in which any person is successful in recovering judgment for wages or salary owed to him or her, reasonable attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer.” ⁵  “RCW 49.48.030 is a remedial statute and must be construed liberally in favor of the employee.” ⁶  Clearly, RCW 49.48.030 does not provide a basis for the trial court's award of fees to the Pilates Center.⁷

The Pilates Center claims that the award is proper under section 17.2 of the parties' LLC agreement, which provides:

In the event any suit, action or other legal proceeding shall be instituted to declare or enforce any right created by this Agreement, or by reason of any breach of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and costs, whether said fees and costs are incurred prior to or during trial, during appeal of any trial or court decision, in bankruptcy, or during any collection of any judgment hereon.[8]

The Pilates Center argues that Birimisa's wage claims were bound by the LLC agreement, justifying the proportional fee award.⁹

But a review of the record establishes that Birimisa's suit did not seek enforcement of, or allege any breach of, the LLC agreement.   Although the LLC agreement was introduced and considered as evidence at trial, it did not create the employer/employee relationship between the Pilates Center and Birisima and does not provide the basis for any of her three claims for unpaid wages.   Because the claims here were based solely on statutes providing that only a prevailing employee will be entitled to recover attorney fees, the trial court abused its discretion by awarding attorney fees to the employer based on a proportionality approach.¹⁰

The trial court's award of attorney fees to the Pilates Center is therefore reversed and the matter is remanded for entry of judgment consistent with this opinion.

Reversed and remanded.

WE CONCUR:

FOOTNOTES

FOOTNOTE.  

FN2. Cosmopolitan Eng'g Goup, Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 296, 149 P.3d 666 (2006)..  FN2. Cosmopolitan Eng'g Goup, Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 296, 149 P.3d 666 (2006).

FN3. Id. at 297..  FN3. Id. at 297.

FN4. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, amended on recons., 966 P.2d 305 (1998)..  FN4. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, amended on recons., 966 P.2d 305 (1998).

FN5. (Emphasis added.).  FN5. (Emphasis added.)

FN6. Corey v. Pierce County, 154 Wn.App. 752, 773, 225 P.3d 367 (2010);  see also Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159, 961 P.2d 371 (1989) (“By providing for costs and attorney fees, the Legislature has provided an effective mechanism for recovery even where wage amounts wrongfully withheld may be small.”)..  FN6. Corey v. Pierce County, 154 Wn.App. 752, 773, 225 P.3d 367 (2010);  see also Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159, 961 P.2d 371 (1989) (“By providing for costs and attorney fees, the Legislature has provided an effective mechanism for recovery even where wage amounts wrongfully withheld may be small.”).

FN7. See Walters v. A.A.A. Waterproofing, Inc., 151 Wn.App. 316, 322, 211 P.3d 454 (2009) (RCW 49.48.030 is not reciprocal but provides for “an award of attorney fees only for prevailing employees.”)..  FN7. See Walters v. A.A.A. Waterproofing, Inc., 151 Wn.App. 316, 322, 211 P.3d 454 (2009) (RCW 49.48.030 is not reciprocal but provides for “an award of attorney fees only for prevailing employees.”).

FN8. Appellant's Br. at 6..  FN8. Appellant's Br. at 6.

FN9. See Marassi v. Lau, 71 Wn.App. 912, 917, 859 P.2d 605 (1993) (Where attorney fees are incurred to enforce a contract providing for attorney fees to either party such that RCW 4.84.330 provides for an award of fees to the prevailing party, and “the alleged contract breaches at issue consist of several distinct and severable claims, a proportionality approach ․ awards the plaintiff attorney fees for the claims it prevails upon, and likewise awards fees to the defendant for the claims it has prevailed upon.   The fee awards are then offset.”), overruled on other grounds, Wachovia SBA Lending v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009)..  FN9. See Marassi v. Lau, 71 Wn.App. 912, 917, 859 P.2d 605 (1993) (Where attorney fees are incurred to enforce a contract providing for attorney fees to either party such that RCW 4.84.330 provides for an award of fees to the prevailing party, and “the alleged contract breaches at issue consist of several distinct and severable claims, a proportionality approach ․ awards the plaintiff attorney fees for the claims it prevails upon, and likewise awards fees to the defendant for the claims it has prevailed upon.   The fee awards are then offset.”), overruled on other grounds, Wachovia SBA Lending v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009).

FN10. See also Walters, 151 Wn.App. at 325 (“in the context of an employee's suit where the governing statutes provide that only a prevailing employee will be entitled to recover fees and costs, a reciprocal attorney fees provision is unconscionable and, therefore, unenforceable”)..  FN10. See also Walters, 151 Wn.App. at 325 (“in the context of an employee's suit where the governing statutes provide that only a prevailing employee will be entitled to recover fees and costs, a reciprocal attorney fees provision is unconscionable and, therefore, unenforceable”).

Ellington, J.-Pamela Birimisa appeals the trial court's award of attorney fees to her former employer for successfully defending two of her three claims for unpaid wages.   Because the circumstances here do not warrant an award of attorney fees to the employer, we reverse.   Pamela Birimisa filed suit against the Pilates Center of Redmond for unpaid wages under RCW 49.48.010.   In particular, Birimisa's complaint sought (1) compensation for various management duties performed between January 2003 and November 8, 2007;  (2) compensation for Pilates instruction time from October 15, 2007 through November 8, 2007, in the amount of $2,600 plus $265 for health insurance;  (3) double damages under federal law and RCW 49.52.050 and .070;  and (4) attorney fees and costs.   The Pilates Center answered, denying her allegations and asserting several counterclaims seeking over $400,000.   At trial, Birimisa sought compensation for (1) Pilates instruction time from October 15 through November 9, 2007;  (2) time spent as an onsite manager;  and (3) 50 percent of the income received by the Pilates Center for certain specially licensed classes under contract with a third party.   The Pilates Center abandoned all but one counterclaim for lost revenue or other damages caused by Birimisa's actions in setting up a competing studio.   The trial court found that Birimisa was a 20 percent owner of the business based on the Pilates Center's limited liability company agreement (LLC agreement), and was therefore not entitled to wages for time spent managing the business.   However, because the Pilates Center treated Birimisa as an employee for the purposes of teaching classes, she was entitled to the wages she claimed for teaching.   The trial court also determined that the evidence did not support Birimisa's claim for double damages, Birimisa's claim for income received from the third party contract, or the Pilates Center's counterclaim.   The trial court awarded Birimisa $3,760 for unpaid wages and medical insurance for teaching classes, as well as an award of attorney fees incurred solely on that claim, pursuant to RCW 49.48.030.   Finally the trial court concluded, “Pursuant to the proportionality approach, the Defendants are entitled to an award of 2/3 of their reasonable attorney fees for successfully having defended two out of Ms. Birimisa's three claims.” 1  Birimisa appeals. FN1. Clerk's Papers at 50.