Jue

Mike Patton and Margaret Tam (appellants) appeal from an order denying attorney fees pursuant to a real estate sales contract. They contend that as prevailing parties they are entitled to attorney fees under Code of Civil Procedure sections 1032 and 1033.5. We affirm.

Factual Background

This litigation arises from a dispute concerning the purchase and sale of apartment buildings pursuant to a written agreement. Respondents were the purchasers of the buildings while Tam was the seller and Patton was Tam’s agent under the agreement. Respondents financed the purchase of the buildings by assuming a loan held by Bay View Federal Savings (Bay View). In April 1992, Bay View filed the underlying complaint in this action for judicial foreclosure based on the allegation that respondents failed to make the required payments on the loan. In June 1992, respondents filed a cross-complaint against appellants alleging intentional and negligent misrepresentation and other tort claims as well as requesting rescission and equitable indemnity. In May and June of 1993, the parties discussed settling the cross-complaint. The parties were unable to settle the matter and subsequently,…