Opinion
No. 60327-2-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-05239-7, Arden J. Bedle, J. Pro Tem., entered July 13, 2007.
Affirmed by unpublished per curiam opinion.
The existence of an appealable order does not automatically entitle the appealing party to review of all issues asserted in a brief. An appellate court will generally decline to review contentions that were not adequately identified or argued to the trial court. We agree with appellant Ila King that the trial court's decision on attorney fees was appealable, but conclude that she failed to preserve any issues for appellate review. Therefore, we affirm.
FACTS
The relevant facts are undisputed. Respondent Susanne Ericson owns a residential building in Everett. In 2007, Ericson filed an unlawful detainer action against Ila King, alleging that King had failed to pay her monthly rent as specified in the lease. On May 29, 2007, the trial court dismissed the action, concluding that it lacked jurisdiction under Christensen v. Ellsworth, 134 Wn. App. 295, 139 P.3d 379 (2006) (CR 6(a) applies to the three-day notice period for unlawful detainer actions). The court did not rule on King's motion for CR 11 sanctions.
The Supreme Court subsequently reversed the Court of Appeals decision. See Christensen v. Ellsworth, 162 Wn.2d 365, 173 P.3d 228 (2007) (CR 6(a) does not apply to calculation of three-day notice period of RCW 59.12.030(3)).
On June 14, 2007, Ericson filed a new unlawful detainer action. Following a show cause hearing, the trial court set the matter for trial. Shortly thereafter, Ericson moved for a voluntary dismissal without prejudice under CR 41(a)(1)(B), informing the court that because of a discrepancy between the unit number specified on the three-day notice and the unit number on the summons and complaint, further proceedings could be a waste of judicial resources. In a supporting declaration, Ericson alleged that the tenants in the building had caused the confusion by rearranging the unit numbers on the doors.
In response, King alleged that Ericson had committed perjury by characterizing the trial court's decision in the prior unlawful detainer proceeding as a voluntary dismissal without prejudice rather than a dismissal for lack of jurisdiction. Counsel for King, who was present at the prior proceeding, reasoned that if the court assumed Ericson's declaration was correct, then Ericson was seeking a second dismissal without prejudice and the court should dismiss the matter with prejudice under CR 41(a)(4) (when second voluntary dismissal operates as an adjudication on the merits). Counsel for King also submitted a verbatim transcript of the earlier proceeding, acknowledging that it showed the basis for the prior dismissal and that Ericson was in fact entitled to a voluntary dismissal without prejudice under CR 41(a)(1)(B). King requested CR 11 sanctions and reimbursement of the transcript costs "for this motion only" and asked that the remaining issues of additional CR 11 sanctions and attorney fees and costs as the prevailing party "be heard before a judge."
On July 13, 2007, a court commissioner heard the parties' motions. After permitting King's counsel to argue at length about the issue of the "false declaration," the commissioner granted Ericson's motion and dismissed the action without prejudice. Counsel for King then referred to the request for "costs under CR 11 for bringing this motion." After the court replied, "$125, that's all you're entitled to," counsel for King moved on to a different matter. Later, after an interruption while the court heard an unrelated case, Ericson's counsel asked about the amount of the award. The court replied, "$125 statutory fees," and signed the order of dismissal. Although counsel for King informed the commissioner that King would be seeking revision, counsel filed a notice of appeal on the same date and did not move for revision.
The second matter, which involved a protection order, is not an issue on appeal.
DECISION
Appealability
After King filed her notice of appeal, this court set a motion to determine appealability. See RAP 6.2(b). A commissioner determined that the challenged order appeared to be appealable but directed the parties to address the issue in their briefs.
Under RAP 2.2(a)(3), a party may appeal "[a]ny written decision affecting a substantial right in a civil case that in effect determines the action and prevents a final judgment or discontinues the action." A dismissal without prejudice that satisfies these criteria is appealable. Munden v. Hazelrigg, 105 Wn.2d 39, 44, 711 P.2d 295 (1985). In making this determination, an appellate court looks to the practical effect of the dismissal. See Munden, 105 Wn.2d at 44.
Contrary to Ericson's repeated assertions, King is not challenging the dismissal without prejudice itself, but rather the basis and the amount of the trial court's attorney fee award. The trial court's decision on fees effectively discontinued that portion of the action and was therefore appealable under RAP 2.2(a)(3). See Allahyari v. Carter Subaru, 78 Wn. App. 518, 521 n. 2, 897 P.2d 413 (1995); see also Wachovia SBA Lending v. Kraft, 138 Wn. App. 854, 858 n. 4, 158 P.3d 1271 (2007) (order dismissing plaintiff's action without prejudice was appealable to extent defendant challenged trial court's refusal to award attorney fees), review granted, 163 Wn.2d 1011, 180 P.3d 1291 (2008).
In her opening brief, King also argued that the trial court erred in refusing to impose CR 11 sanctions, but she withdrew that contention in her reply brief.
Attorney Fees
King's sole contention on appeal is that the commissioner erred in ordering $125 in statutory attorney fees without further explanation. In her opening brief, King argues that the trial court should have considered her request for attorney fees under the terms of the parties' lease, see RCW 4.84.330, and as the prevailing party under the unlawful detainer statute. See RCW 59.18.290; Council House, Inc. v. Hawk, 136 Wn. App. 153, 147 P.3d 1305 (2006). King further maintains that if the trial court's award was based on nominal attorney fees designated as costs in RCW 4.84.080, the trial court erred in not awarding the full amount of $200 mandated by the statute.
Generally, an appellate court will not address contentions that were not presented to the trial court. See RAP 2.5(a). This general rule
reflects a policy of encouraging the efficient use of judicial resources. The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.
State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). Fundamental fairness also requires that the opposing party have an opportunity to respond to possible claims of error at the trial level. See State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995). A party's obligation to identify the basis for an attorney fee request is particularly important because the court "has no power to award attorney fees as a cost of litigation in the absence of contract, statute, or recognized ground of equity providing for fee recovery." Dayton v. Farmers Ins. Group, 124 Wn.2d 277, 280, 876 P.2d 896 (1994).
King devoted her written response to the motion to dismiss and oral argument at the hearing almost exclusively to her request for the imposition of CR 11 sanctions. Counsel maintained that Ericson had committed perjury by mischaracterizing the basis of the prior dismissal and indicated that he was requesting fees based solely on CR 11. On appeal, King has now abandoned any argument based on CR 11. King did not inform the trial court of the statutory bases for fees that she urges on appeal or present any meaningful legal argument in support of the request for fees. Nor did she request an award of attorney fees under the terms of the parties' lease. Indeed, the lease was not before the trial court. Although the trial court twice stated that it was awarding $125 in statutory attorney fees, King did not object, challenge the amount, ask for clarification, or call any error to the court's attention. Under the circumstances, King has failed to preserve any challenges to the trial court's attorney fee award for appellate review.
While the appeal was pending, a commissioner granted the parties' agreed motion to include the lease as additional evidence under RAP 9.11. But the mere presence of the lease in the appellate record does not excuse King from raising the issue before the trial court.
In her reply brief, King raises several arguments for the first time, including a claim that she was entitled to attorney fees under RCW 4.84.250 and .270. But for the reasons set forth above, King failed to preserve these contentions for review. Moreover, even if King had raised these issues below, we would decline to consider them. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (an appellate court will generally not consider contentions raised for the first time in a reply brief).
Motion to Strike
King has moved to strike the statement of the case and one subsequent factual assertion in Ericson's response brief for failure to cite to the record. See RAP 10.3(5) (reference to the record must be included for each factual statement). Erickson's brief utilizes references to documents that were attached to her motion to modify the commissioner's appealability decision, rather than to the documents transmitted as Clerk's Papers. But King's original opening brief also included references to those same attachments. She later filed an amended opening brief removing the references to the attachments one day before filing the motion to strike. Under the circumstances, we deny the motion to strike. This court is fully capable to determine whether the record supports the parties' contentions.
Attorney Fees on Appeal
Both parties have requested attorney fees on appeal based on RAP 18.1. In light of our decision, King is not entitled to fees. Ericson has submitted nothing more than a conclusory request, unsupported by any meaningful discussion of the appropriate grounds for an award of fees. Accordingly, we deny Ericson's request. See Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998) (party seeking attorney fees on appeal is obligated to support request with legal argument and citation to authority).
Affirmed.