Opinion
No. 39926-1-II.
Filed: May 25, 2011.
Appeal from a judgment of the Superior Court for Thurston County, No. 08-2-00978-2, Anne Hirsch, J., entered October 9, 2009.
Affirmed in part, reversed in part, and remanded with instructions by unpublished opinion per Hunt, J., concurred in by Worswick, A.C.J., and Van Deren, J.
UNPUBLISHED OPINION
Richard and Ruby Vining appeal the jury's verdict finding them liable for $650.00 in damages to Karen A. Howarth-Tuomey under RCW 4.24.630(1), the trial court's award of $25,000.00 in attorney fees and $6,241.56 in costs to Howarth-Tuomey, and the trial court's denial of their CR 50(a)(1) motion seeking judgment in their favor on Howarth-Tuomey's RCW 4.24.630(1) claim as a matter of law. The Vinings argue that the trial court erred: (1) in denying their CR 50(a)(1) motion because the record contains insufficient evidence to satisfy the elements of RCW 4.24.630(1); (2) in failing to instruct the jury that the trial court could impose attorney fees and costs against the Vinings if the jury found them liable under RCW 4.24.630(1); and (3) in awarding excessive attorney fees and costs. We affirm the trebled jury damages award, but we remand to the trial court to determine the amount of attorney fees according to the lodestar method set forth in Mahler v. Szucs, 135 Wn.2d 398, 433-35, 957 P.2d 632 (1998), recons. denied, 966 P.2d 305 (1998) and Smith v. Behr Process Corp., 113 Wn. App. 306, 341-45, 54 P.3d 665 (2002). We also grant RCW 4.24.630(1) attorney fees and costs on appeal to Howarth-Tuomey.
FACTS I. Background
Karen Ann Howarth-Tuomey purchased waterfront lots 23 and 24 on Summit Lake, around November 1993. Lot 23 contains a home, 945 Summit Lake Shore Road; lot 24 contains a boathouse. Richard and Ruby Vining purchased the adjacent lot on Summit Lake, lot 22, 942 and 943 Summit Lake Shore Road, in 2006. The Vinings' lot did not contain a home. It was mostly raw land on which the Vinings intended to build a house. Both properties have septic easements that run underneath Summit Lake Shore Road to a septic drain field located on the other side the road.
Howarth-Tuomey's and the Vinings' rectangular lots divide lengthwise a steep slope from Summit Lake Shore Road down to the lakeshore. Howarth-Tuomey owns the one-story home located at the bottom of the slope on the shore of the lake. The Vinings built their home midway down the slope. Access to both properties is by a common gravel road that branches off from Summit Lake Shore Road and then passes first through the Vinings' lot and then through Howarth-Tuomey's two lots. At the entry to Howarth-Tuomey's lots, there is a gravel parking area with a guardrail for days when inclement weather prevents driving down the rest of the common road to Howarth-Tuomey's residence; 83 steps lead from this gravel parking area down the slope to Howarth-Tuomey's residence.
The previous owner of the Vinings' lot, John Seal, had partially excavated the land by creating "benches" on the slope and "remov[ing] quite a few trees." II Verbatim Report of Proceedings (VRP) at 230. The Vinings brought in loggers to remove additional trees so they could build their house. No excavation took place during the logging process on the Vinings' property.
As used here, a "bench" is a "shelf formed in working an open excavation on more than one level." Webster's Third International Dictionary 202 (1969); see also Ex. 45.
Richard Vining asked Howarth-Tuomey if he could have trees removed from her property at no cost to her. Howarth-Tuomey denied this request. Vining also asked Howarth-Tuomey for permission to park a crane on her driveway so the crane could more easily move trees from the Vinings' property onto the nearby road. Howarth-Tuomey refused this request because she did not want heavy equipment near the location of her newly-installed septic tank system. The Vinings never asked Howarth-Tuomey for permission to enter her property for any other reason in connection with logging.
During spring 2007, the Vinings hired Todd Laney's D L Construction (D L), to remove some broken-up basalt, but D L was unable to excavate the solid, hardened basalt underneath the benches created during earlier excavation by the previous owner. The Vinings also hired D L to pour the concrete foundations and to frame their house.
Richard Vining was not present during the entire logging or excavation process, but he visited his property "maybe every other day for a half hour . . . to see the progress and to take . . . pictures." II VRP at 245. Visiting his property for the first time during the excavation process, Vining observed one excavator on the lower bench digging and moving materials up to a second excavator, which would then place the materials in a dump truck parked on the common driveway.
In April 2007, Howarth-Tuomey discovered that the Vinings' contractor had parked two excavators in the common driveway which she claimed prevented her accessing and parking in her driveway at night. Howarth-Tuomey also discovered that a "hole," or ditch, had been cut into her berm, extending onto her property adjacent to the small gravel driveway. I VRP at 75. She also claimed that "salal and red huckleberry[]" bushes had been removed from her property and that the grade of the property adjacent to her small gravel driveway had been reduced by about four feet in elevation. I VRP at 76. The hole was backfilled with dirt, but the grade remained one to two feet below its original elevation. Howarth-Tuomey called the phone number listed on the side of one of the excavators and left a message. No one called her back.
As estimated by Howarth-Tuomey's expert witness Galen M. Wright, a consulting forester and arborist, "soil had been removed from [Howarth-Tuomey's property] . . . roughly [in] the shape of an oblique triangle" with dimensions of 20 feet by 16 feet by 18 feet, about one to two feet deep, resulting in a "disturbed" area of 140 square feet or 8.2 cubic yards of soil. I VRP at 160.
Her expert witness later testified that vegetation in the "disturbed" area likely had been damaged, and estimated the "total estimated damages" to be $5,000. I VRP at 162, 167.
Around this time, Howarth-Tuomey claimed she had a conversation with Richard Vining, during which she stated, "I want you to stay on your side of the line," to which Richard Vining responded, "Well, I would have asked, but I knew what the answer was going to be." I VRP at 88. According to Howarth-Tuomey, this was the only conversation that she had with Richard Vining. Richard Vining denied that this conversation took place.
Following this conversation, Howarth-Tuomey found one excavator parked "down in the hole" and "one on the ramp this time instead of [her] driveway." I VRP at 79. During this time, D L allegedly drove dump trucks on Howarth-Tuomey's driveway and used her driveway "as a staging area to remove soils from the foundation area" for the Vinings' house. I VRP at 80. According to Laney, his D L dump trucks removed soil from the location about 15 to 20 times per day. According to Howarth-Tuomey, D L performed this work for three to four days.
About a month after the excavation work, D L began work on the concrete foundation for the Vinings' home. This work lasted two to three weeks. According to Howarth-Tuomey: (1) D L employees parked their vehicles on her property such that she and her daughter could neither enter nor exit their driveway; (2) she repeatedly asked the D L employees to stop blocking her driveway, but they did not comply; and (3) she never gave permission to any person to "slop" concrete on her property, to allow the Vinings' excavation to extend onto her property, or to use her property in any way for the Vinings' construction project. I VRP at 82.
According to Richard Vining: (1) he never had any doubt about the location of the line between his property and Howarth-Tuomey's, but he never advised Laney about that line location; (2) he never asked Howarth-Tuomey for permission or had any plans for him (Richard Vining) or his contractors to enter or to use her property for any reason related to his home construction; (3) he did not explicitly tell Laney or D L workers to stay off Howarth-Tuomey's property or warn them not to damage her property; (4) he asked his neighbor on the other side, Walt Pettit, if he (Vining) could use Pettit's driveway to park the concrete dump truck; and (5) although it was possible that D L had poured some concrete on Howarth-Tuomey's property, he did not receive any complaints or concerns about his home construction project.
According to Laney, the Vinings did not give him permission to be on any part of the Howarth-Tuomey property. And no one complained to him about the construction, except for Howarth-Tuomey's daughter, who asked Laney to move his trucks from the driveway so she could enter the driveway after school.
II. Procedural History
Howarth-Tuomey sued the Vinings, D L Construction, and Laney and his wife, alleging: (1) negligence; (2) conversion; (3) nuisance; (4) trespass; (5) loss of lateral support; and (6) a violation of RCW 4.24.630(1) (illegal removal of trees). Howarth-Tuomey sought damages and injunctive relief to prevent "further tortious conduct on the part of defendants, including but not limited to construction of a driveway which prevents plaintiff from accessing her property and/or using her parking area." Clerk's Papers (CP) at 47. Howarth-Tuomey also sought to enforce various prescriptive and implied easements.
A jury found that D L and the Laneys committed common law trespass, but it did not award any damages for this claim. After the jury returned its verdict, the trial court dismissed the Laneys and D L as a "substantially prevailing" party. VRP (Oct. 9, 2009) at 4.
"Loss of lateral support" is defined generally as a neighbor's actions that cause a party's property to slide or to slip down a slope or bank. See, e.g., State v. Williams, 12 Wn.2d 1, 9, 120 P.2d 496 (1941).
Howarth-Tuomey and the Vinings stipulated: (1) that the trial court could grant summary judgment in favor of Howarth-Tuomey on Howarth-Tuomey's prescriptive easement claim; (2) that the trial court could grant summary judgment in favor of the Vinings on Howarth-Tuomey's claims for injunctive relief and damages relating to obstruction of easement; and (3) that the trial court could grant summary judgment in favor of the Vinings on Howarth-Tuomey's injunctive relief and damages claims relating to removal of lateral support. This stipulation preserved for trial Howarth-Tuomey's trespass and nuisance claims, and a claim for willful damage to property under RCW 4.24.630(1). Along with negligence, these were Howarth-Tuomey's only remaining claims for trial against D L, the Vinings, and the Laneys.
During trial, the Vinings orally moved under CR 50(a)(1) to dismiss Howarth-Tuomey's RCW 4.24.630(1) claim, arguing that the evidence was insufficient to support this claim. Howarth-Tuomey responded that RCW 4.24.630(1) was applicable because "the statute reads [in part], 'Every person who goes onto the land of another and who causes injury to the land is liable to the injured party'" and the evidence was sufficient to satisfy all the elements of the statute. II VRP at 262. The trial court denied the Vinings' CR 50(a)(1) motion, stating, "I think [Howarth-Tuomey's] points are accurate with respect to the reading of [RCW 4.24.630(1)]." II VRP at 263.
After both parties rested, the trial court reviewed the Vinings' proposed Instruction 14, which contained the whole text of RCW 4.24.630(1). Howarth-Tuomey proposed a different version of Instruction 14, which contained the RCW 4.24.630(1) provisions, except for the sentence imposing liability for attorney fees and costs. The Vinings' counsel responded, "I think we should give [the jury] the whole statute and then put something in the damage instruction to that extent." II VRP at 352. The trial court replied, "But it is not a jury issue"; "it is confusing and not their province in any event." II VRP at 352-53. The Vinings "t[ook] exception" to the trial court's denial of their request to include the statutory attorney fees and costs language in Instruction 14. II VRP at 353. The trial court then ordered deletion of RCW 4.24.630(1)'s sentence about attorney fees and costs from Instruction 14.
The omitted sentence of RCW 4.24.630(1) provides: "In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs."
The jury found the Vinings, but not D L, liable for waste under RCW 4.24.630(1) and awarded Howarth-Tuomey $650.00 in damages. The jury found that both the Vinings and D L had committed trespass, but awarded no damages for this trespass. The jury found that neither the Vinings nor D L had committed nuisance and that neither had been negligent. The trial court dismissed Todd Laney, Stacey Laney, and D L as "substantially prevailing" parties, VRP (Oct. 9, 2009) at 4, and ordered Howarth-Tuomey to pay D L $200.00 in attorney fees.
The jury verdict form does not mention the Laneys.
Howarth-Tuomey requested approximately $50,000.00 in attorney fees, $6,670.00 in costs, and trebling of the $650.00 jury award under RCW 4.24.630(1). Asserting that Howarth-Tuomey should receive only the jury's nominal $650 damages award and no fees and costs, the Vinings argued vigorously that Howarth-Tuomey's attorney fee and cost requests were disproportionate and excessive and that, if awarded, the fees should be no more than $2,000.Saying that it was inclined to cut the attorney fees and costs request in half, the trial court: (1) asked the parties if they could confer and agree on the amount of attorney fees and costs; and (2) explained that, if they were unable to agree, then the trial court itself would review the submitted proposed orders and decide on the amounts. Counsel for Howarth-Tuomey agreed, stating they would only "come back to the Court if we have to." VRP (Oct. 9, 2009) at 20. The Vinings' counsel similarly replied, "If we can agree on them, we will agree on them; if not we will present it to the Court." VRP (Oct. 9, 2009) at 21.
More specifically, the trial court noted:
There is going to be no duplication of fees for [Howarth-Tuomey's two attorneys]. When I was looking through the amount of fees, most of the issues on summary judgment, if I recall correctly, were resolved in Mr. Vining's favor, and that should not be included in the fee award.
The only issue that Ms. Tuomey was successful on was the [RCW] 4.24.630 issue, and it is difficult to peel away factually what issues are involved in that versus what issues were involved in the unsuccessful claims that she had, but I think there needs to be some provision made to take some of the requested fees out on that as well.
My sense is that probably about half of what was requested is what is really reasonable given the outcome in this case, but, as I said, I did not go through it with a fine-tooth comb because I have too many other cases I am looking at to do that. VRP (Oct. 9, 2009) at 17-18.
The parties apparently acceded to the trial court's request and conferred privately. The record contains a judgment signed by both counsel, awarding Howarth-Tuomey $25,000.00 in attorney fees and $6,241.56 in costs, and trebling the jury's damages award to $1,950.00, for a total award to Howarth-Tuomey of $33,191.56. The Vinings' counsel's signature on the judgment acknowledges only "copy received by," not "approved for entry." CP at 432. The judgment does not suggest the Vinings agreed that the recited Howarth-Tuomey's attorney fees and costs amounts were justified or reasonable.
The record does not reflect what happened during this private conference.
The trial court subsequently initialed the changes and signed off on the judgment.
The Vinings appeal.
ANALYSIS I. Denial of CR 50(a)(1) Motion for Insufficient Evidence
The Vinings first argue that the trial court erred in denying their motion to dismiss Howarth-Tuomey's RCW 4.24.630(1) claim because the record contains insufficient evidence of the Vinings' intent to damage Howarth-Tuomey's property. This argument fails.
A. Standard of Review
We review a trial court's denial of a motion for judgment as a matter of law using the same standard as the trial court. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). A grant of judgment as a matter of law is appropriate when, viewing the evidence in a light most favorable to the nonmoving party, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party as a matter of law. See Sing, 134 Wn.2d at 29. Our Supreme Court has defined "substantial evidence" as "'evidence sufficient . . . to persuade a fair-minded, rational person of the truth of the declared premise.'" Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003) (quoting Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963)).
B. Elements of RCW 4.24.630(1) Satisfied
RCW 4.24.630(1) provides:
Every person who goes onto the land of another and [i] who removes timber, crops, minerals, or other similar valuable property from the land, or [ii] wrongfully causes waste or injury to the land, or [iii] wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, 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. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs.
(Emphasis added.) Under this plain language of RCW 4.24.630(1), a party is liable if he "goes onto the land of another" and does one of three acts: (1) "removes timber, crops, minerals, or other similar valuable property from the land"; (2) "wrongfully causes waste or injury to the land"; or (3) "wrongfully injures personal property or improvements to real estate on the land." RCW 4.24.630(1). To act "wrongfully" for purposes of the second or third type of act under this statute, the defendant must have acted "intentionally and unreasonably . . . and knew or had reason to know that he or she lacked authorization." Clipse v. Michels Pipeline Constr., Inc., 154 Wn. App. 573, 580, 225 P.3d 492 (2010).
The Vinings contend that the facts of this case make it impossible for Howarth-Tuomey to show liability for the first or third types of acts under this statute — removal of timber or injury to land. We agree. We further note that Howarth-Tuomey never alleged nor did the trial produce facts showing that the Vinings removed property from her land or that the Vinings injured her personal property or improvements to real estate on her land.
The Vinings contend that the only way they could possibly be liable under the second ground of RCW 4.24.630(1) is if they had "'wrongfully cause[d] waste or injury' to [Howarth-Tuomey's] land" for which they lacked the requisite intent to injure or to commit waste. Reply Br. of Appellant at 5 (quoting RCW 4.24.630(1)). The Vinings further assert that they did not commit injury or waste because, "at most, a few native bushes were damaged by [their] contractor." Br. of Appellant at 16.
Howarth-Tuomey counters that the record contains substantial evidence to support a judgment against the Vinings under this RCW 4.24.630(1) second prong, waste or injury to land of another. We agree. Viewing the evidence in the light most favorable to the nonmoving party, Howarth-Tuomey, the record is sufficient to "persuade . . . a fair-minded, rational person" that the Vinings wrongfully, intentionally and unreasonably caused waste or injury to Howarth-Tuomey's land, while they knew or should have known that they lacked authorization to do so. Davis, 149 Wn.2d at 531; see also RCW 4.24.630(1); Clipse, 154 Wn. App. at 580.
First, the record is sufficient to support a neutral and rational juror's finding that the Vinings caused injury to Howarth-Tuomey's property. Howarth-Tuomey testified that the "hole" and ramp that encroached on her property damaged vegetation and lowered the grade of her property adjacent to her gravel driveway. I VRP at 76. Her forester and arborist expert witness testified that almost 140 square feet of her property experienced soil and vegetation disturbance that would cost about $5,000 to repair. These facts are substantial evidence to support the jury's determination that the Vinings' activities "cause[d] . . . injury to [Howarth-Tuomey's] land." RCW 4.24.630(1).
The Vinings argued at trial that the current condition of the allegedly damaged area on Howarth-Tuomey's land was no different than its condition before the Vinings purchased their property. See, e.g., I VRP at 169-81. In addition, an investigative engineer that Vining hired opined that the elevation of Howarth-Tuomey's land did not change between 2005 and after the Vinings completed their housing construction project. But this first investigative engineer's testimony subsequently was contradicted by Howarth-Tuomey's investigative engineer, who testified that, based on the available evidence, there was no "reliable way from an engineering point of view to determine the elevation of the damaged area on the [Howarth-Tuomey] property." II VRP at 308-09. This contradicting testimony is sufficient evidence to support the jury's verdict. Moreover, "we do not weigh evidence or render judgments regarding witness credibility; that is the exclusive province of the trier of fact." Ives v. Ramsden, 142 Wn. App. 369, 382, 174 P.3d 1231 (2008).
The Vinings also appear to argue that courts should not entertain claims under RCW 4.42.630 for small amounts of damage. See Br. of Appellant at 12 ("[RCW 4.24.630] was never intended to apply in a case in which one neighbor merely steps on another's property or a trespasser unintentionally causes nominal damages.") But the Vinings cite no authority to support this argument; therefore, we do not further consider it. RAP 10.3(a)(6).
Uncontroverted facts also support that, in injuring or causing waste to Howarth-Tuomey's land, the Vinings acted intentionally, unreasonably, and knowingly without authorization. See RCW 4.24.630(1). It is uncontroverted that Richard Vining never asked Howarth-Tuomey for permission to use her property for his housing construction project. Richard Vining had no doubt about the location of the boundary between his property and Howarth-Tuomey's property, and he admitted that he visited the construction site frequently, almost every other day. Yet he never advised Laney, D L's owner, about the location of this boundary line, explicitly told them to stay off Howarth-Tuomey's property, nor warned them to refrain from damaging Howarth-Tuomey's land.
In contrast, he did ask his other neighbor for such permission.
The record shows Richard Vining knew that D L's excavation extended into Howarth-Tuomey's property because he took a picture showing that D L had damaged her property. Additionally, Richard Vining took "almost all" of the pictures of the construction progress that served as exhibits in this case. II VRP at 245. This evidence is sufficient to show that Richard Vining observed and was aware of D L's intrusion onto and damage to Howarth-Tuomey's property.
These facts are substantial evidence that the Vinings "knew . . . that [they] lacked authorization" to permit D L to intrude onto Howarth-Tuomey's property in any way in connection with constructing their home yet acted "intentionally and unreasonably" in allowing D L to dig out an area of Howarth-Tuomey's property, thereby damaging vegetation and "caus[ing] . . . injury to [Howarth-Tuomey's] land." Clipse, 154 Wn. App. at 580; RCW 4.24.630(1). We hold, therefore, that the trial court did not err by denying the Vinings' CR 50(a)(1) motion for judgment as a matter of law as to Howarth-Tuomey's RCW 4.42.630(1) claim.
Because the Vinings did not raise the argument below, we do not address, for the first time on appeal, their contention that they cannot be liable for a violation of RCW 4.24.630(1) where the jury did not also find D L (their independent contractor) liable. RAP 2.5(a).
II. Jury Instruction
The Vinings next argue that the trial court's jury instruction about the text of RCW 4.24.630(1) was not a correct statement of the law because it did not disclose to the jury that, if the jury found the Vinings liable under RCW 4.24.630(1), the Vinings were also liable for attorney fees and costs. Even though the Vinings conceded below that attorney fees and costs are not issues for the jury to decide, they nevertheless contend, "Had [the jury] known that [Howarth-Tuomey] would be receiving an award of attorney fees, it is unlikely that [the jury] would have awarded any damages." Br. of Appellant at 18. This argument fails.
A. Standard of Review
We review de novo a challenged jury instruction, evaluating the jury instruction "in the context of the instructions as a whole." State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d 289 (1993). "Jury instructions are sufficient when they allow counsel to argue their theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied." Thompson v. King Feed Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105 P.3d 378 (2005). "Jury instructions are sufficient if they are readily understood and are not misleading to the ordinary mind." State v. Sublett, 156 Wn. App. 160, 183, 231 P.3d 231 (citing State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968)), review granted, 170 Wn.2d 1016 (2010). "Even if an instruction may be misleading, it will not be reversed unless prejudice is shown by the complaining party." State v. Aguirre, 168 Wn.2d 350, 364, 229 P.3d 669 (2010) (citing Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)).
If, however, the trial court refused to give a jury instruction because of a factual dispute, we review such refusal for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). Here, the trial court based its refusal to instruct the jury on the attorney fees and costs portion of RCW 4.34.630(1) on a legal issue (whether the jury should know that the Vinings may be liable for attorney fees and costs), not a factual one. Thus, we review the trial court's jury instruction under a de novo standard.
B. Refusal To Instruct on Attorney Fees and Costs Potential Liability Instruction No. 14 read:
A Washington Statute states:
"(1) Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of damages caused by the removal, waste, or injury. For purposes of this section, 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. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration."
This paragraph is identical to the language in RCW 4.24.630(1), minus the sentence about attorney fees and costs, which reads, "In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs."
The Court will treble the damages if any are awarded. Your award, if any, should be for the actual damages, if any.
CP at 370.
The common law requirement that jury instructions "properly inform the jury of the law to be applied" refers only to the law pertaining to issues that the jury must decide. Thompson, 153 Wn.2d at 453. Although RCW 4.24.630(1) authorizes attorney fees and costs to the prevailing party, this determination is for the trial court to make; the statute does not entitle a party to have a jury make such attorney fees and costs determinations. See Hough v. Stockbridge, 152 Wn. App. 328, 347, 216 P.3d 1077 (2009), review denied, 168 Wn.2d 1043 (2010). Because as a matter of law the Vinings were not entitled to a jury instruction on an issue that was not for the jury to decide, we hold that the trial court did not err in refusing the Vinings' request to submit the issue of statutory fees and costs to the jury.
Nor were the Vinings entitled to such an instruction based on its potential effect on the jury's determination of the Vinings' liability under RCW 4.24.630(1), a question that, unlike attorney fees and costs, was for the jury to decide. Here, a jury instruction on the potential award of attorney fees and costs under RCW 4.24.630(1) would have had a corrosive effect on the jury's deliberations because it would have "invite[d] them to ponder matters that [were] not within their province, distract[ed] them from their factfinding responsibilities, and create[d] a strong possibility of confusion." Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994). The jury's duty was to find the facts, to determine whether the Vinings met the liability elements of the statute, and to award damages if appropriate. Accordingly, we hold that the trial court did not misstate the law in refusing the Vinings' request to include the attorney fees and costs provision of RCW 4.24.630(1) in Jury Instruction 14.
III. Attorney Fees and Costs Award at Trial
Last, as they argued at trial, the Vinings continue to argue on appeal that the attorney fees and costs award below was excessive and, therefore, we should reverse. See Br. of Appellant at 20-23. More specifically, they contend that the $31,241.56 fees and costs award was disproportionate to the jury's $650 damages award to Howarth-Tuomey. The Vinings further contend that the fees and costs award was excessive because all but one of Howarth-Tuomey's claims were either (1) dismissed by the trial court through summary judgment in favor of the Vinings, D L, and the Laneys; or (2) failed to result in a jury verdict in Howarth-Tuomey's favor awarding damages.
As we previously noted, the only claim that resulted in both a jury verdict finding the Vinings liable and awarding a damages award was Howarth-Tuomey's waste and injury claim under RCW 4.24.630(1).
A. Standard of Review
"[A]ttorney fees should be awarded only for those services related to the causes of action which allow for fees." Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 66, 738 P.2d 665 (1987); see also Absher Const. Co. v. Kent School Dist. No. 415, 79 Wn. App. 841, 847, 917 P.2d 1086 (1995) ("Fees should be awarded only for services related to causes of action which allow for fees."). "In determining reasonable attorney fees, the trial court must first calculate the 'lodestar' figure." Smith, 113 Wn. App. at 341 (quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)). "This figure represents the number of hours reasonably expended (discounting hours spent on unsuccessful claims, duplicated effort, and otherwise unproductive time) multiplied by the attorney's reasonable hourly rate." Smith, 113 Wn. App. at 341.
"Necessarily, [the lodestar method] requires the court to exclude from the requested hours . . . any hours pertaining to unsuccessful theories or claims." Mahler, 135 Wn.2d at 434. But, as we observed in Brand v. Dep't of Labor Indus., "[w]hen a plaintiff's claim for relief involves a common core of facts and related legal theories, there is no precise rule or formula for taking into account the degree of success in a fee award." Although a relevant consideration in determining the reasonableness of the fee award, the amount of the recovery is not a conclusive factor. Mahler, 135 Wn.2d at 433.
Brand v. Dep't of Labor Indus., 91 Wn. App. 280, 292, 959 P.2d 133 (1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 435-36, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)), overruled on other grounds by Brand v. Dep't of Labor Indus., 139 Wn.2d 659, 989 P.2d 1111 (1999).
We 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. On the contrary, we will reverse a trial court's award for attorney fees only on a showing of "manifest abuse" of discretion, namely, "if the trial court exercised its discretion on untenable grounds or for untenable reasons." Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 98, 231 P.3d 1211 (2010) (citing Pham v. City of Seattle, 159 Wn.2d 527, 538, 151 P.3d 976 (2007)).
Boeing, 108 Wn.2d at 65.
B. Inconclusive Record
RCW 4.24.630(1) authorizes the award of attorney fees and costs against the party found liable under the statute. RCW 4.24.630(1). At the outset, Howarth-Tuomey's counsel attempted to strike from his billing those fees and costs related to claims that did not survive to trial. Thereafter, the trial court took initial steps to follow the lodestar method of determining fees by asking Howarth-Tuomey's counsel to calculate the number of hours expended, minus fees generated by his associated counsel, in addition to his already having stricken fees and costs associated with unsuccessful claims.
RCW 4.24.630(1) provides: "[T]he person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs."
After the jury returned its verdict, the trial court and counsel for both parties engaged in a colloquy about the amount of attorney fees and costs the trial court should award to Howarth-Tuomey under the statute. After hearing the arguments of both counsel, the trial court stated:
My sense is that probably about half of what was requested is what is really reasonable given the outcome in this case, but, as I said, I did not go through it with a fine-tooth comb because I have too many other cases I am looking at to do that.
VRP (Oct. 9, 2009) at 17-18. After another brief exchange involving the parties, the trial court asked counsel to try to agree on the amounts; counsel responded that they would try to "come up with something in line with the Court's ruling." VRP (Oct. 9, 2009) at 20-21. The colloquy ended with the Vinings' counsel stating, "Why don't we adjourn and we will take a look at the fees and see if we can come up with a number." VRP (Oct. 9, 2009) at 24 (emphasis added). The record is silent about what happened after this colloquy.
The judgment, dated October 9, 2009, contains handwritten reduced amounts of attorney fees ($50,502.50 to $25,000.00) and costs ($6,679.06 to $6,241.56), which reductions both counsel and the trial court initialed. But the Vinings' counsel signed "[c]opy received by," not "approved for entry," at the end of the judgment. CP at 425. The mere notation "copy received" does not show that the Vinings' counsel agreed to the substance of the judgment in general or to the attorney fee and cost amounts in particular. Thus, the judgment that the trial court signed and entered is not evidence of a binding agreement between the parties about the amount of attorney fees and costs that the Vinings owed to Howarth-Tuomey.
Although, as we have already noted, the trial court took initial steps to follow the lodestar method in determining reasonable attorney fees, the record does not show that it completed the process. Therefore, we vacate the attorney fees and costs amounts and remand to the trial court to follow the steps outlined in Smith and Mahler to determine reasonable attorney fees and costs and then to amend the judgment for Howarth-Tuomey reflecting these new amounts.
IV. Attorney Fees on Appeal
Howarth-Tuomey requests attorney fees and costs on appeal under RCW 4.24.630(1), which expressly provides that a person found liable under the statute is also "liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs." RCW 4.24.630(1). The jury found the Vinings liable under this statute. On appeal, we affirm the jury's verdict. Therefore, under this statute Howarth-Tuomey is also entitled to attorney fees and costs incurred in defending her verdict and awards below against the Vinings' appeal.
We affirm the trebled jury verdict award of damages. We vacate Howarth-Tuomey's attorney fees and costs award and remand to the trial court for recalculation in accordance with the lodestar method. We grant Howarth-Tuomey's request for attorney fees and costs on appeal in amounts that our court commissioner will determine upon compliance with RAP 18.1(d).
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Worswick, A.C.J., Van Deren, J., concur.