(dissenting) — In my dissent to State v. Roth, *72378 Wn.2d 711, 479 P.2d 55 (1971), I discuss in detail my reasons for disagreeing with the majority’s conclusion that an award of fees under RCW 8.25.070 is mandatory. That dissent is equally applicable to this case.
Under RCW 8.25.070, properly construed, the decision to grant or deny reasonable attorney’s and expert witness’ fees rests in the sound discretion of the trial court. The question before us on appeal is whether that discretion has been abused.
This case is before us on stipulated facts and a short record. We do not have the trial court’s findings of fact, memorandum opinion or oral decision. There is nothing which shows the reasoning of the trial court, or the circumstances considered by it, in denying this motion for fees. Thus, there is nothing from which it can be concluded that the trial court abused its discretion, and the appellants have failed to meet their burden.
Accordingly, I would affirm.
Finley, Hamilton, and Hale, JJ., concur with Neill, J.
February 25, 1971. Petition for rehearing denied.