No notice of damages sought required in Washington pleadings

Kathryn Learner Family Trust v. Wilson, 2014 Wash. App. LEXIS 2196 (Wash. Ct. App., Div. 3, Sept. 4, 2014)

Decision: 140904-Learner-v-Wilson

It has long been the common law rule that a plaintiff must give notice to the defendant of the type of damages it is seeking. Prior to the advent of “notice pleading” the defendant had the right to notice of the amount of damages.

The rule developed that “general damages” did not need pled. General damages are those which are the “natural and necessary result of the wrongful act or omission asserted as the basis for liability. They are presumed by or implied in law to have resulted from the injury.”¹Jensen v. Torr, 44 Wn. App. 207, 214, 721 P.2d 992 (1986).

Attorney fees were considered “costs” but the meaning of “costs” changed over time through statutory construction and judicial decision as American courts moved from their British roots.

Under federal law, attorney fees arising under a contract²If the attorney fees are from another source like a statute or are part of the cause of action, the rule probably is not applicable are special damages that must be pled under Federal Rule of Civil Procedure 9(g).³United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996) (citing Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3rd Cir. 1973)

This court held that these rules have been altered in Washington by Civil Rule 54(c) which provides the except “as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”⁴See Allstot v. Edwards, 114 Wn. App. 625, 632, 60 P.3d 601 (2002).

Practice note – remember you have 10 days after the judgment to apply for the fees.

CR 54(d)(2) Attorneys’ fees and expenses.

Claims for attorneys’ fees and expenses, other than costs and disbursements, shall be made by motion unless the substantive law governing the action provides for the recovery of such fees and expenses as an element of damages to the proved at trial. Unless otherwise provided by statute or order of the court, the motion must be filed no later than 10 days after entry of judgment.