Opinion
No. 54506-0-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-2-06939-6. Judgment or order under review. Date filed: 06/22/2004. Judge signing: Hon. Deborah Fleck.
Counsel for Appellant(s), Yvonne Kinoshita Ward, Attorney at Law, 128 14th St SE, Auburn, WA 98002-6642.
Counsel for Respondent(s), William Ralph Levinson, Attorney at Law, 1316 Central Ave S Ste 100, Kent, WA 98032-7431.
Darlin' Boudreau Mitchell appeals a trial court's award of attorney fees to Neil Hammons. Because the trial court never entered a final judgment and the case was never dismissed, the attorney fee award is not appealable. We remand for further proceedings.
FACTS
In June 2000, Neil Hammons loaned $99,500 to his daughter, Darlin' Boudreau Mitchell. Mitchell signed a note promising to pay the entire principal amount with interest by May 31, 2001. The note also stated that Mitchell would repay the loan by re-financing her Port Angeles property, and that she would pay all attorney fees and costs of collection in the event the note was in default.
In September 2001, Hammons and Mitchell signed an addendum to the promissory note, extending the loan's due date to January 15, 2002. The addendum again made Mitchell responsible for paying any attorney fees necessary for collection, stating `As per the original terms of the Note, unless payment is made in full by January 15, 2002, the borrower, Darlin' Boudreau Mitchell, will be held fiscally responsible for all collection costs, including but not limited to, all attorney fees.' Mitchell did not repay the loan.
In August 2003, Hammons filed suit for breach of the promissory note. Approximately one month later, he filed a lis pendens on Mitchell's Port Angeles property. In December 2003, Hammons moved for summary judgment. One month later, Mitchell amended her answer to include counterclaims of an illegal lis pendens filing, illegal interference with Mitchell's reasonable business expectation, and tortious interference with her real property contract. At the same time, she filed a motion to cancel the lis pendens. The trial court heard oral argument on the parties' motions on January 23, 2004.
On January 28, 2004, the parties' attorneys signed an agreement in which (1) Mitchell promised to sell her Port Angeles property and transfer the proceeds to Hammons' attorney's IOLTA trust account; (2) Hammons' attorney promised not to release the funds to Hammons without first executing `settlement documents, including dismissal of this lawsuit with prejudice and without costs, or by order of the court[,]'and (3) the parties agreed to orders denying Hammons' summary judgment motion and canceling the lis pendens. The agreement also stated that `[t]he parties dispute attorney fees and costs. The parties will either enter a separate settlement on this issue, or have it resolved by the court.' The trial court then entered an order denying Hammons' summary judgment motion without prejudice and without costs. It also canceled the lis pendens, ordering that all proceeds from the sale of Mitchell's Port Angeles property be transferred to Hammons' attorney's IOLTA trust account, to be disbursed to Hammons `as set forth in a fully executed settlement agreement or by further order of this court.'
In June 2004, Hammons moved for attorney fees. Mitchell challenged Hammons' motion and requested a hearing. Without comment, the trial court issued a `Judgment for Attorney's Fees' and ordered Mitchell to pay fees and costs in the amount of $14,279.05 plus interest. Mitchell appeals this award.
DISCUSSION
Although neither party raised the question whether this appeal is properly before us, we must remand to the trial court because its judgment for attorney fees is not currently appealable. Under RAP 2.2(a), parties may appeal only certain superior court decisions, and the court's attorney fee judgment does not fall within any of the rule's enumerated categories. Specifically, the attorney fee award cannot be classified as a `written decision affecting a substantial right in a civil case which in effect determines the action and prevents a final judgment or discontinues the action[,]' because the court's decision to award attorney fees to Hammons did not determine or discontinue the action. Nor is the award a `final judgment' for the purposes of RAP 2.2(a). In fact, no final judgment has been entered in this case, and the record indicates that the case is still active in the trial court.
RAP 2.2(a)(3).
RAP 2.2(a)(1).
First, the trial court denied Hammons' summary judgment motion, so that motion did not terminate the case. Second, the parties' settlement agreement specifically states that the proceeds from the sale of Mitchell's property would not be distributed to Hammons until the court dismissed the case with prejudice, but the court never did so. Similarly, in its order canceling the lis pendens, the trial court specifically stated that the proceeds would not be disbursed except as set forth in a fully executed settlement agreement or by court order. The record contains neither. And finally, Mitchell claims that the case is still active because she has defenses, counterclaims, and claims for attorney fees that have not yet been litigated.
The January 2003 memorandum agreement, signed by the parties' attorneys, was attached to Hammons' motion for attorney fees. But it was attached only to demonstrate that the parties had not resolved the attorney fees issue. It does not constitute a fully executed settlement agreement.
Because the trial court entered no final judgment and Mitchell appears to have raised issues that require litigation, the attorney fee award is not appealable. On remand, any remaining claims should be litigated as appropriate. The trial court should then enter a final judgment and order a distribution of the proceeds from Mitchell's property sale. The trial court may then consider the issue of attorney fees.
There are several problems with the fee award appealed here. First, the fee award was not timely, as there was no final judgment and Mitchell still had claims pending. Second, the court specifically denied plaintiff's motion for summary judgment `without prejudice and without costs.' (Emphasis added.) And finally, the amount of attorney fees to be awarded was highly contested, but the court awarded fees without holding a hearing or issuing factual findings as required by Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998). These may all be corrected on remand.
We will, however, reach Mitchell's motion to strike and the parties' requests for attorney fees on appeal. In his brief, Hammons described the parties' failed settlement efforts before the final agreement was signed, and Mitchell moved to strike that information. We grant that motion under ER 408, and we do not consider Hammons' accounts of failed settlement negotiations. Any request for attorney fees on appeal is premature. While a contractual provision authorizing attorney fees is sufficient to award fees incurred on appeal, we leave it to the trial court to award any fees it deems appropriate, including fees on appeal.
RAP 18.1(a); Marassi v. Lau, 71 Wn. App. 912, 920, 859 P.2d 605 (1993) (citing Leen v. Demopolis, 62 Wn. App. 473, 485, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 (1992)).
We dismiss the appeal and remand for further proceedings.
AGID, COLEMAN, and BECKER, J., concur.