[WSBARP] Arbitration and Attorney Fees

[Paul Neumiller]

In a recent arbitration hearing, my client/homeowner asked for attorney fees
if successful and the HOA also requested attorney fees if they were
successful in arbitration.  The parties had agreed to an informal private
arbitration process that did not address attorney fees.  The CC&Rs state, in
part, "In any other proceeding arising out an alleged default by a Lot
Owner, the prevailing party shall be entitled to recover costs of the
proceeding, and such reasonable attorney's fees as may be determined by the
court."  Later, the CC&Rs say "in addition to the rights, remedies and
procedures  described above, the [HOA] may, with the consent of the affected
Lot Owner. agree to resolve any dispute through mediation, binding or
non-binding arbitration.."

 

Mediation was unsuccessful so each party made a presentation to the
mediator/arbitrator for the purposes of the binding arbitration, with both
parties requesting attorney fees.  The Arbitrator found for the homeowner
BUT denied the request for attorney fees saying the earlier CC&Rs reference
to "in other proceeding" must be "determined by the court" (with the
implication that he is not a court) and the alternative resolution provision
of the CC&Rs didn't reference attorney fees so he denied attorney fees.  I
find it hard to believe that the parties inadvertently waived their right to
attorney fees when they agreed to private arbitration.  

 

I could ask the arbitrator to reconsider the arbitrator's decision by citing
a mistake in law if I can show that a prevailing party attorney's fee
provision "determined by the court" is still effective in an arbitration
proceeding.  I have spent some time (hours) on Caselaw and not really
finding any support (maybe it doesn't exist).  Any thoughts or cases out
there? 

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