Opinion
No. 22497-0-III
Filed: March 29, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No. 01-2-01328-5. Judgment or order under review. Date filed: 09/25/2003. Judge signing: Hon. Evan E. Sperline.
Counsel for Appellant(s), Nathan P. Albright, Attorney at Law, 312 S Balsam St Ste C, Moses Lake, WA 98837-1796.
Counsel for Respondent(s), Gregory Louis Ursich, Linville Linton PLLC, 800 5th Ave Ste 3850, Seattle, WA 98104-3101.
When seeking attorney fees under RCW 4.84.250, the trial court may not be notified of any settlement offers until after the judgment is signed. RCW 4.84.280; Hanson v. Estell, 100 Wn. App. 281, 290, 997 P.2d 426 (2000). The party seeking attorney fees under the statute in this case became ineligible when the trial judge was informed of the settlement offer before the summary judgment order was entered. Accordingly, we reverse the award of attorney fees.
FACTS
In December 2001, Chicago Title Insurance Company sued Leann Pauley in subrogation of a claim it paid for a lien on the title to the real property it insured. Ms. Pauley failed to disclose the lien and pay it upon closing. Chicago Title made an offer of settlement on August 21, 2003. Chicago Title offered to settle the claim for $12,600. Ms. Pauley did not respond. The summary judgment hearing was held on September 25. The court ruled that Chicago Title was entitled to a judgment principal for $9,571.52 and prejudgment interest of $3,030.37 together with attorney fees and costs of $9,279.45. Ms. Pauley appeals the award of attorney fees. She claims the title company violated the attorney fee statute by informing the judge of the offer of settlement prior to the entry of the summary judgment order.
DISCUSSION
Both parties erroneously cite the summary judgment standard for the review of attorney fees in this case. Generally, we will not overturn a trial court's decision to grant or to deny attorney fees absent a showing of manifest abuse of discretion. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d 1210 (1993). `However, if the amount in controversy is $10,000 or less, RCW 4.84.250 mandates fees to a prevailing party.' Mackey v. Am. Fashion Inst. Corp., 60 Wn. App. 426, 429, 804 P.2d 642 (1991) (citing Kingston Lumber Supply Co. v. High Tech Dev. Inc., 52 Wn. App. 864, 867, 765 P.2d 27 (1988)). When reviewing an award of attorney fees under RCW 4.84.250, we determine first whether the party is entitled to attorney fees, and second, whether the amount awarded is reasonable. Ethridge v. Hwang, 105 Wn. App. 447, 459, 20 P.3d 958 (2001). The amount awarded is reviewed under the abuse of discretion standard. Id. at 460. Whether the party is entitled to the award is an issue of law subject to de novo review. Id. Here, Ms. Pauley appeals the entitlement and not the amount.
A plaintiff seeking damages in an amount less than $10,000 is entitled to an award of attorney fees if he or she makes an offer of settlement and then later improves upon that offer at trial. RCW 4.84.250, .260. Interest is not included in the determination whether or not a claim qualifies for an attorney fee award under RCW 4.84.250. Northside Auto Serv., Inc. v. Consumers United Ins. Co., 25 Wn. App. 486, 492, 607 P.2d 890 (1980). The procedure for making offers of settlement is set forth in RCW 4.84.280. A party is entitled to attorney fees under RCW 4.84.250 only if the procedures are followed. Hanson, 100 Wn. App. at 291; Hertz v. Riebe, 86 Wn. App. 102, 107, 936 P.2d 24 (1997).
The offer of settlement must be served at least 10 days prior to trial and not until 30 days have lapsed from the filing and service of the summons and complaint. RCW 4.84.280. `Offers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorneys' fees as set forth in RCW 4.84.250.' RCW 4.84.280 (emphasis added). This court has interpreted this provision. `[T]he clear language of RCW 4.84.280 prohibits the trial court from learning of any settlement offers until after the judgment has been signed.' Hanson, 100 Wn. App. at 290. Therefore, the fact that there has been a settlement offer made must not be communicated to the trier of fact until after the final judgment is reduced to writing and entered. Id. at 291. A premature communication of the offer to the trier of fact disqualifies an award of attorney fees under the statute. Id. In this case, the order granting summary judgment included findings that an offer of settlement was made in the amount of $12,600 on August 21, 2003, and that Chicago Title was entitled to attorney fees under RCW 4.84.250. The trier of fact was obviously aware of the settlement offer before the entry of the summary judgment order. Therefore, Chicago Title was not entitled to attorney fees.
Chicago Title argues that because the summary judgment order is number 32 on the superior court's docket sheet and its offer of settlement is number 33, it has demonstrated that the judge entered the order before becoming aware of the settlement offer. However, because the settlement offer details are contained within the summary judgment order, Chicago Title's argument is not persuasive. To accept Chicago Title's argument, we would have to believe that the trial judge signed and entered the summary judgment order without reading it.
Chicago Title also argues that even if the order on summary judgment was entered simultaneously with the attorney fees award, Division Two of this court has approved the simultaneous entry of these orders in Lay v. Hass, 112 Wn. App. 818, 51 P.3d 130 (2002). In Lay, Division Two specifically identified the two issues under consideration: (1) whether notice was properly given under RCW 4.84.250, and (2) whether the amount of attorney fees awarded was reasonable. Id. at 823. It did not address the issue of communicating the settlement offer to the trier of fact. Therefore, any reference to the issue is dicta. Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 531, 79 P.3d 1154 (2003).
CONCLUSION
Chicago Title violated RCW 4.84.280 when it informed the trial court of the settlement offer before the summary judgment order was entered. It therefore was not entitled to attorney fees under RCW 4.84.250. Accordingly, we reverse the trial court's award of attorney fees.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J., and KURTZ, J., concur.