Is a seller under a purchase agreement provision for attorney fees who initially refuses to mediate but later offers mediation before the buyer files litigation entitled to attorney fees when they prevail?

Facts: A buyer and seller of residential property enter into a purchase agreement which includes an attorney fee provision contingent on first attempting to mediate disputes before filing litigation. The buyer has a dispute with the seller and seeks resolution by mediation. The seller initially refuses to mediate but later offers to mediate. After the offer, the buyer files a court action. The seller prevails in the litigation and demands their attorney’s fees.

Claim: The buyer claims the seller may not recover attorney’s fees since the initial refusal to mediate breaches the purchase agreement’s attorney fee provision.

Counterclaim: The seller claims they may recover attorney’s fees since their initial refusal to mediate does not breach the purchase agreement when they later agreed to mediate before the buyer began litigation.

Holding: A California appeals court holds the seller may recover attorney’s fees as the prevailing party since their initial refusal to mediate does not breach the purchase agreement’s attorney fee provision as they later agreed to mediation before the buyer filed litigation. [Evleshin v. Meyer (2025) 338 CA3rd 669]

Evleshin v. Meyer

Real Estate Legal Aspects Chapter 39: Attorney fees reimbursed