Opinion
No. 22492-9-III
Filed: August 31, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-2-06044-1. Judgment or order under review. Date filed: 10/24/2003. Judge signing: Hon. Kathleen M O'Connor.
Counsel for Appellant(s), Stephen Day Phillabaum, Attorney at Law, 900 Paulsen Ctr, 421 W Riverside Ave, Spokane, WA 99201-0405.
Counsel for Respondent(s), Sean David Jackson, Miller Devlin McLean Weaver PS, 201 W North River Dr Ste 500, Spokane, WA 99201.
Christine M. Weaver, Miller Devlin McLean Weaver PS, 201 W North River Dr Ste 500, Spokane, WA 99201-2282.
Richard Hammer sued Margaret Sailand for injuries he received while on her property. Ultimately, Mr. Hammer moved the court for a voluntary nonsuit of his lawsuit. In response, Ms. Sailand sought attorney fees under RCW 4.84.250, contending that she was the prevailing party. The trial court disagreed and refused to award Ms. Sailand fees beyond statutory attorney fees. We affirm the judgment of the trial court. Also, we deny both parties' requests for attorney fees on appeal.
FACTS
Richard Hammer filed a lawsuit against Margaret Sailand In that lawsuit, he alleged that he had been invited onto Ms. Sailand's property as a social guest. He further alleged that he was severely injured as the result of her failure to maintain a stairway in conformance with local codes and standards, and that the stairs constituted a latent defect.
Mr. Hammer further alleged that '[a]s a direct and approximate [sic] result of the premises liability, Plaintiff has suffered and continues to suffer economic, physical injuries, pain and suffering, and other damages, with specific amounts to be proven at the time of trial.' Clerk's Papers (CP) at 44. Mr. Hammer requested that he be awarded, among other things, '[d]amages for his injury due to Defendants' failure to maintain their property,' as well as costs and attorney fees. CP at 44.
In her answer, Ms. Sailand included the allegation, 'Defendant pleads that less than $10,000 is in controversy and reasonable attorneys' fees will be sought pursuant to RCW 4.84.250 and 4.84.270.' CP at 48.
Several months after filing the amended complaint, Mr. Hammer filed a motion and order for voluntary nonsuit. The order was filed September 25, 2003. The following day, Ms. Sailand filed a motion for award of attorney fees and costs.
At the hearing related to the request for attorney fees, the court held that Reynolds v. Hicks, 134 Wn.2d 491, 951 P.2d 761 (1998) was controlling. Ultimately, the court denied the motion for reasonable attorney fees, granted the motion for costs, and awarded statutory attorney fees.
Ms. Sailand appeals.
ANALYSIS
Ms. Sailand contends that the trial court erred by denying her an award of attorney fees as the prevailing party under RCW 4.84.250. 'A trial court's decision to award fees and costs is a question of law and reviewed to determine if the relevant statute or contract provides for an award of fees.' Mehlenbacher v. DeMont, 103 Wn. App. 240, 244, 11 P.3d 871 (2000) (citing Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993)).
Ms. Sailand argues RCW 4.84.250 applies:
Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars.
(Emphasis added.) Ms. Sailand argues RCW 4.84.250 indicates that her answer is dispositive in proving the amount in controversy. She further argues that she should be considered the prevailing party and she should be awarded attorney fees.
However, neither common sense nor case law supports Ms. Sailand's interpretation of this provision. In Reynolds, the Supreme Court stated, '[a]ttorneys fees under RCW 4.84.250 are to be awarded to the prevailing party if the pleading party sought damages, exclusive of costs, of $10,000 or less.' Reynolds, 134 Wn.2d at 502 (emphasis added). The court then noted that the plaintiff in that case did not specify an amount in the complaint, but rather pleaded that the damages were an amount that would be determined at the time of trial. As a result, the court found that 'the Plaintiffs did not limit their award and based on their claim for damages and relief could have received well above $10,000 in damages.' Id.
This case presents similar facts to those in Reynolds. In the amended complaint, Mr. Hammer's request for damages asks for '[d]amages for his injury due to Defendants' failure to maintain their property.' CP at 44. He fails to specify an amount. Later, Mr. Hammer provided a statement specifying damages indicating that the medical specials through May 7, 2002, exclusive of physical therapy was $17,322.15. Additionally, Mr. Hammer specified three additional damage items totaling $260,000.
Thus, the Reynolds court's interpretation of RCW 4.84.250 does not support Ms. Sailand's interpretation that her assessment, as prevailing party, of the amount of damages is dispositive or even relevant. As a result, Ms. Sailand is not entitled to attorney fees under RCW 4.84.250. For the same reason, she is not entitled to her fees on appeal.
Mr. Hammer also requests his fees on appeal. He contends that he is entitled to fees on appeal because the appeal is frivolous.
An appellate court can order a party or counsel who files a frivolous appeal to pay sanctions to any other party who has been harmed by the delay. RAP 18.9(a); Orwick v. Fox, 65 Wn. App. 71, 90-91, 828 P.2d 12 (1992). An appeal is frivolous if it cannot be supported by any rational argument on the law or facts. Orwick, 65 Wn. App. at 90. In other words, an appeal is frivolous only 'if no debatable issues are presented upon which reasonable minds might differ, and it is so devoid of merit that no reasonable possibility of reversal exists.' Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224 (1985). A party has a right to appeal, and an appeal is not frivolous simply because the party's arguments are rejected. Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980).
In this case, Ms. Sailand raises a debatable issue based upon the language of RCW 4.84.250. Thus, her appeal is not frivolous.
We affirm the judgment of the trial court and deny attorney fees to both parties.
The majority of the panel has determined 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.
SWEENEY, A.C.J. and SCHULTHEIS, J., concur.