Opinion
No. 56424-2-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-35672-7, Jim Rogers, J., entered May 18, 2005.
Counsel for Appellant(s), Frederick H. Ockerman, Attorney at Law, 9757 NE Juanita Dr Ste 100, Kirkland, WA 98034-4299.
Counsel for Respondent(s), David Eugene Powell, David E. Powell PS, 410 Dayton St, Edmonds, WA 98020-3518.
Elizabeth K. Reeve, Reeve Shima PC, 500 Union St Ste 800, Seattle, WA 98101-4051.
Affirmed by unpublished per curiam opinion.
Steve Goewey and his company Dutchcraft, Inc., defendants below, appeal the trial court's award of treble damages and costs and fees to Goewey's downhill neighbor James Crone, II, for damage caused by water Goewey diverted onto Crone's land. The enhanced damages and fees were proper under RCW 4.24.630 because the court found Goewey's acts diverting the water were intentional and he knew or should have known they were not authorized by law and were harming Crone's land. And the amount of the fees and costs award was not so grossly disproportionate to the amount of damages in controversy to render the award unreasonable as a matter of law. We affirm.
FACTS
James Crone, II, owned residential property downhill from land owned by Steve Goewey's company Dutchcraft, Inc. The Goewey property was accessed by an easement running along the southern edge of Crone's property. The easement contained a culvert running parallel to the driveway, which was used to drain water from Goewey's property into a storm drainage system downhill from Crone's property. Beginning in 2000, Goewey began preparing his land for construction, which included altering the existing drainage system to deal with runoff from a large farm uphill from Goewey's property. The alterations resulted in flooding that damaged Crone's land during the winters of 2002-2003 and 2003-2004. In addition, during Goewey's construction of the new house, his agents and employees parked on the driveway, drove too fast for the conditions and engaged in other activities not allowed by the easement.
Relations between the property owners deteriorated, and before Goewey completed the construction of the new house on his property, he and Crone each accused the other of interfering with their property in numerous ways. Crone eventually sued Goewey under a theory of intentional trespass by water, and Goewey counterclaimed for damages due to Crone's interference with Goewey's construction, use of the easement and attempts to sell the completed house.
After a three-week bench trial, the court entered judgment in favor of Crone, finding some merit to each party's factual claims, and determining that Crone's actual damages exceeded Goewey's. The court awarded treble damages and attorney fees and costs to Crone under RCW 4.24.630, concluding the award was appropriate because Crone prevailed on his claim for intentional trespass by water. The court ultimately entered judgment for Crone in the amount of $104,410.05, representing $29,329.50 in trebled damages offset by damages to Goewey, $66,100.02 in attorney fees and $8,980.53 in costs. Goewey appeals.
ANALYSIS
Goewey first argues that the trial court erred by awarding treble damages and fees under RCW 4.24.630. He does not challenge the court's factual findings. Instead, citing the trial court's written and oral findings, Goewey contends that the court found he acted only with negligence and therefore erred in applying the statute as a matter of law.
Preliminarily, Crone objects to Goewey's reliance on the trial court's oral ruling because Goewey has attached it to his opening brief as an appendix without designating it part of the record on review. Crone correctly argues this procedure is improper because an 'appendix may not include materials not contained in the record on review without permission from the appellate court' except to provide the text of an applicable statute, rule, jury instruction or the like. RAP 10.3(a)(7); RAP 10.4(c); Crista Sr. Community v. Dept. of Social Health Services, 77 Wn. App. 398, 412 n. 3, 892 P.2d 749 (1995). Since Goewey has not obtained the requisite permission, we do not consider the transcript.
RCW 4.24.630 provides for treble damages, attorneys fees and other costs if a person 'wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land' of another. For purposes of the statute, 'a person acts 'wrongfully' if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act.' RCW 4.24.630(1). Whether the trial court's findings support application of this statute is a legal conclusion we review de novo. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
The trial court entered two sets of findings and conclusions. The court's 'Findings of Fact and Conclusions of Law Following Trial to the Court' contain 68 specific findings and 24 conclusions of law. Those findings reference a second set of findings, entitled 'Findings of Fact and Conclusions of Law on Fees and Costs Following Trial on Land Trespass', which contain 13 additional findings and 10 additional conclusions. The trial court found that Goewey's conduct that caused the damage to Crone's property consisted of intentional acts. For example, Goewey and his employees dug a curtain drain along the boundary of his property with the uphill farm, altered the existing pattern of drainage by burying the opening to the culvert, and planned and created the inadequate dispersal trenches that caused the flooding on Crone's property. While Goewey does not dispute that these were intentional acts, he nonetheless asserts that the statute is inapplicable because the court did not find he intended the resulting harm to Crone's property. He cites Colwell v. Etzell, 119 Wn. App. 432, 81 P.3d 895 (2003), for the proposition that the statute requires a finding that the actor have the conscious objective of causing the harm to the damaged property.
Goewey misreads Colwell. In that case, a landowner took steps to remedy increasing damage to his land caused by runoff from an uphill adjacent parcel by installing culverts and ditches. A neighbor, who possessed an easement for passage over the land, sued for damages under the theory that the owner had damaged the neighbor's interest in the easement. Applying the plain language of RCW 4.24.630, this court reversed the trial court's award of damages because the statute's premise is a physical trespass on the plaintiff's land and there clearly was no such trespass. Colwell, 119 Wn. App. at 439.
Contrary to Goewey's position, the plain language of the statute is clear that the requirement of 'wrongful conduct' is satisfied if the actor 'acts while knowing, or having reason to know, that he or she lacks authorization to so act.' RCW 4.24.630 (emphasis added). Here, several of the trial court's findings, including some findings misdesignated as conclusions, addressed Goewey's knowledge that his actions were harmful and unauthorized. See Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (The reviewing court treats mislabeled findings as findings and mislabeled conclusions as conclusions.)
The trial court found that not only was Goewey's dispersal trench inadequate to carry the water he had directed to it, but as an experienced contractor and the drainage plan's designer, Goewey knew or should have known it was inadequate. The court also found that because of the frequency of the events of water flowing from Goewey's property onto Crone's property, Goewey knew or should have known the drainage system was failing and causing the harm to Crone's property. In addition, the court found Goewey deliberately routed the water from the large curtain drain to the dispersal trench after representing to the city in his permit application that the trench would carry water only from the new construction. These findings supported the court's conclusion that Goewey's actions were wrongful because he knew or should have known they were unauthorized.
In Washington, the 'common enemy doctrine' allows landowners to repel surface water flowing downhill onto their land even if damage thereby results to land further downhill. Colwell, 119 Wn. App. at 440-41. The doctrine requires, however, that the landowner act in good faith and with due care to avoid unnecessary damage to the property of others. Colwell, 119 Wn. App. at 441. The court's findings support the conclusion that Goewey knew his actions were unlawful under this doctrine. The findings also established the basis for the court's partial rejection of Goewey's other defense that the City's approval authorized his actions. Goewey nonetheless contends the court's conclusion that he 'failed to exercise due care with regard to water discharge onto the Crone property' demonstrated the court found only negligence on his part since a failure to exercise due care is a classic definition of negligent behavior. We reject this argument.
As noted above, RCW 4.24.630 expressly requires the act causing the harm to be both intentional and unreasonable. The trial court's reference to one part of that statutory standard does not imply that it did not find the other statutory elements. Moreover, consistent with other areas of the law, the law of torts considers negligence a lesser mental state of culpability than intent. See Kloepfel v. Bokor, 149 Wn.2d 192, 200, 66 P.3d 630 (2003). In the context of the issues before the trial court, whether Goewey owed any duty of care to Crone and if so, whether he breached it, presented threshold questions properly considered before determining whether liability could attach to Geowey for either negligent or intentional acts. Considering the relevant law and issues before the court, the court's finding that Goewey failed to exercise due care was not inconsistent with the court's ultimate conclusion that Goewey was liable under RCW 4.24.630.
Goewey also challenges the amount of the award of attorney fees. As with his first claim, he does not challenge the court's factual findings, but raises only the question of whether the fees were unreasonable as a matter of law.
Trial courts must independently determine what a reasonable fee is. Mahler v. Szucs, 135 Wn.2d 398, 434, 966 P.2d 305 (1998). To make that determination, the court begins by calculating a lodestar figure. The lodestar is determined by multiplying the hours reasonably expended in the litigation by each lawyer's reasonable hourly rate of compensation. The court must exclude wasteful or duplicative hours. Mahler, 135 Wn.2d at 434. The novelty and complexity of the issues are factors to consider in determining the reasonableness of the hours expended in the litigation. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150, 859 P.2d 1210 (1993). Another factor that may be relevant is the amount of time "spent on unsuccessful claims, duplicated effort, or otherwise unproductive time." Absher Constr. Co. v. Kent Sch. Dist. 415, 79 Wn. App. 841, 847, 917 P.2d 1086 (1995). We review the attorney fees award for an abuse of discretion. Mahler, 135 Wn.2d at 435. Abuse of discretion occurs when the trial court's decision rests on untenable grounds or is made for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Goewey does not challenge the trial court's lodestar calculation. Instead, relying on Fetzer, 122 Wn.2d at 150, he contends the fee award is improper because it 'grossly exceeds' the actual amount in issue. Since Fetzer, however, our Supreme Court has explained that 'the amount of the recovery, while a relevant consideration in determining the reasonableness of the fee award, is not a conclusive factor" and that appellate courts 'will not overturn a large attorney fee award in civil litigation merely because the amount at stake in the case is small.' Mahler, 135 Wn.2d at 433. To the extent disproportionality in a fee award serves as a basis for reversal, it is limited to 'rare instances' in which the trial court would have no other choice but to exercise its discretion to adjust an otherwise proper lodestar figure downward. Mahler, 135 Wn.2d at 434.
Goewey characterizes the fee award as nearly 16 times the amount of the underlying judgment award, which he calculates to be $6,701.50, representing the base damages to Crone of $11,314.00 offset by the damages to Goewey of $4,612.50. This approach, however, ignores the statutory treble damages Crone sought from the outset of the litigation and successfully recovered. In addition, Goewey does not consider that the trial court correctly awarded Crone no fees for the portion of the trial in which Crone was defending Goewey's counterclaims. Cf. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 743-44, 733 P.2d 208 (1987) (fees awards under Consumer Protection Act (CPA) must be limited to fees generated by work on CPA aspects of suit). As Crone suggests, a more reasonable figure to consider is the amount of $33,942, representing the trebled damages for the trespass.
The trial court expressly considered Goewey's claim that Crone's claimed fees were excessive in light of the amount in controversy and, as a matter of contested fact, rejected Goewey's argument that the trespass issue was 'overlawyered.' The court further noted the complexity of the legal and factual issues involved in the three-week long trial, appropriately reduced the fee award for issues not included within the trespass claim and further reduced the award commensurate with Goewey's partially successful defense that the City had authorized some of his work on the drainage system. Of the $112,791.71 in fees and costs that Crone actually expended litigating the case, he requested $81,803.33. Under the circumstances, the trial court's conclusion that fees of $66,100.02 were appropriate notwithstanding the smaller amount in controversy had a tenable basis and was not an abuse of discretion.
We affirm.
BECKER, APPELWICK and COX, JJ.