Ryder

This case presents the issue of whether a party defendant who is voluntarily dismissed from an action prior to trial is entitled to recover attorney fees based on a contractual provision. We answer the question in the negative.

Factual and Procedural History

The facts in this matter are undisputed. Leonard and Susan Ryder entered into a written agreement for the purchase of the single-family residence with the sellers, Donald H. and Mary Peterson, in May of 1992. Escrow closed and the Ryders acquired the property in July 1992.

Paragraph 23 of the purchase agreement provided: “In any action, proceeding or arbitration arising out of this agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs.”

On November 23, 1993, the Ryders filed this action against the Petersons as well as the real estate agents and brokers involved in the transaction. The complaint set forth both contract and tort causes of action, all relating to claimed defects in the roof of the house. The Petersons answered and cross-complained against certain other parties. Discovery ensued for the next several months. On July 26, 1994, the Ryders filed a request for voluntary…