Opinion
No. 52479-8-I.
Filed: March 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-2-27272-1. Judgment or order under review. Date filed: 05/16/2003. Judge signing: Hon. Mary I Yu.
Counsel for Appellant(s), Thomas Simon Wampold, Attorney at Law, Fisherman's Terminal, 1900 W Nickerson St. Ste 209, Seattle, WA 98119-1650.
Counsel for Respondent(s), Stephan Douglas Wakefield, Hecker Feilberg PS, 321 1st Ave W, Seattle, WA 98119-4103.
This case concerns attorney fees. The trial court denied fees on all grounds. This was error, because Kimberly Lester sought trial de novo and failed to improve her position. Katmandu Condominium Association is entitled to its fees under MAR 7.3, and we therefore remand. Kimberly Lester was a member of the Katmandu Condominium Association. After Katmandu undertook some work to reinforce an unstable slope, Lester brought this action in superior court to recover damages to her patio and landscaping. In its answer, Katmandu made a general request for fees and costs.
The parties stipulated that the matter involved less than $35,000, and the case was referred to mandatory arbitration. The arbitrator found in Katmandu's favor, but did not award fees or costs.
Lester requested a trial de novo under MAR 7.2. The trial court granted summary judgment of dismissal. The order did not mention attorney fees or costs.
In a motion filed about six weeks after the summary judgment order, Katmandu sought its attorney fees on three grounds: as the prevailing party under RCW 4.84.250; under RCW 64.34.455 (the Condominium Act fee provision); and under MAR 7.3. Katmandu's request separately identified fees incurred before and after Lester's request for trial de novo. Lester contended Katmandu was not entitled to fees and costs because (1) Katmandu failed to show fees were actually incurred; (2) Katmandu waived its right to seek fees because the matter was dismissed with prejudice at summary judgment and `Defendant did not reserve it[s] right to seek attorneys' fees in a subsequent Motion'; and (3) even if Katmandu was entitled to some fees, any award must be limited to fees incurred after Lester's request for trial de novo because the MAR arbitrator declined to grant fees.
Clerk's Papers at 40.
The trial judge denied Katmandu's motion for fees without explanation. This appeal followed.
As a threshold matter, we address Lester's contention that Katmandu is not entitled to fees because the declaration in support of its motion was unsigned when first submitted. Lester relies upon Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 735, 844 P.2d 1006 (1993), in which an unsigned declaration was held insufficient where it contained the statement `[o]riginal to be filed when signature obtained,' was filed without signature, and no signed document appeared in the record. Harris is inapposite here. Attorney Thomas Wampold submitted his declaration as part of Katmandu's motion for fees. He signed the motion, but failed to sign the declaration two pages later. This error was ministerial and was corrected. The record does not establish when that occurred, but the record does make clear that the parties vigorously litigated the merits of the motion, and that the missing signature was likely an oversight. The fact that the declaration was unsigned when originally submitted is not, standing alone, a tenable reason to deny fees to which Katmandu is entitled.
Condominium Act. Katmandu seeks fees under RCW 64.34.455 of the Condominium Act. That section pertains to actions alleging failure to comply with the Act or with provisions of the condominium declaration or bylaws. It is not apparent how this provision applies to this litigation. Lester did not mention the Condominium Act in her complaint, the parties make no arguments specific to the Condominium Act, nor do they cite any other of the statute's provisions that may apply here. Katmandu states only that the statute `provides for an award of attorney fees to a [party] who prevails in an action under [t]he Condominium Act.' Since Katmandu does not establish that this is an action `under' the Act, we decline to address this allegation.
RCW 64.34.455 provides:
If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. The court, in an appropriate case, may award reasonable attorney's fees to the prevailing party.
Appellant's Brief at 12.
RCW 4.84.250. In cases where the plaintiff pleads damages less than $10,000, the prevailing party is entitled to attorney fees as a part of the costs of the action. The defendant is the prevailing party when the plaintiff recovers nothing. RCW 4.84.270. Katmandu alleges Lester pleaded damages less than $10,000 and recovered nothing, and that Katmandu is thus the prevailing party and is entitled to its reasonable fees for this entire action under the statute.
RCW 4.84.250 provides:
Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded . . . 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).
Lester does not respond to the applicability of RCW 4.84.250, or to Katmandu's allegation that she pleaded damages less than $10,000. Rather, she contends Katmandu waived its rights under this provision because it did not give notice of its intent to seek fees and because its request for fees was untimely: `At no time did Katmandu claim that it was seeking fees until well over 30 days after the case was dismissed on [s]ummary [j]udgment.' But Katmandu requested fees and costs in its answer to Lester's complaint; it was not required to specify the statute or rule under which it would seek fees at that early stage. See Beckman v. Spokane Transit Auth., 107 Wn.2d 785, 789, 733 P.2d 960 (1987). There was no waiver.
Respondent's Brief at 6.
As to timeliness, Lester acknowledges that no rule or statute sets a deadline for a fees request under RCW 4.84.250. She points to RCW 4.84.185, which provides for fees in a frivolous action so long as the motion is filed within 30 days of an order on summary judgment, and contends this statute should guide us in finding the trial court did not abuse its discretion. We do not find this statute analogous. The motion under RCW 4.84.185 is not merely a motion for fees but a request that the court declare the entire action frivolous; sound reasons can easily be stated for requiring such a motion to be made soon after conclusion of the litigation. Moreover, Katmandu filed its motion only about two weeks after this `deadline,' with no apparent prejudice to Lester. We do not see this as an unreasonable delay.
RCW 4.84.185 provides:
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense. This determination shall be made upon motion by the prevailing party after a voluntary or involuntary order of dismissal, order on summary judgment, final judgment after trial, or other final order terminating the action as to the prevailing party. The judge shall consider all evidence presented at the time of the motion to determine whether the position of the nonprevailing party was frivolous and advanced without reasonable cause. In no event may such motion be filed more than thirty days after entry of the order.
(Emphasis added).
Lester also contends Katmandu's request is untimely under RCW 4.84.090, which requires that a party seeking costs and expenses under the general costs statute, RCW 4.84.030, must file a cost bill within 10 days entry of final judgment. There is no similar deadline for a request for reasonable attorney fees, but Lester may be correct that this rule applies to fees requested under RCW 4.84.250, because such fees are awarded as costs. All of this, however, is academic. The parties do not address the chief obstacle to application of RCW 4.84.250: by its clear terms, it applies only where a plaintiff pleads a claim under $10,000. See Reynolds v. Hicks, 134 Wn.2d 491, 502, 951 P.2d 761 (1998) (citing Klein v. Seattle, 41 Wn. App. 636, 640, 705 P.2d 806 (1985); Northside Auto Serv. Inc. v. Consumer United Ins. Co., 25 Wn. App. 486, 492, 607 P.2d 890 (1980)); see also Smukalla v. Barth, 73 Wn. App. 240, 868 P.2d 888 (1994). Lester did not plead damages in any amount, but rather sought damages `in an amount to be proven at trial.' Katmandu did not make an offer of settlement under RCW 4.84.270. Katmandu is therefore not a prevailing party under RCW 4.84.250. Arbitration Appeal. Katmandu was, however, entitled to fees incurred after notice of trial de novo. MAR 7.3 provides:
RCW 4.84.090 provides:
The prevailing party, in addition to allowance for costs, as provided in RCW 4.84.080, shall also be allowed . . . all necessary disbursements. . . . The disbursements shall be stated in detail and verified by affidavit, and shall be served on the opposite party or his attorney, and filed with the clerk of the court, within ten days after the judgment. (Emphasis added).
RCW 4.84.030 provides:
In any action in the superior court of Washington the prevailing party shall be entitled to his or her costs and disbursements; but the plaintiff shall in no case be entitled to costs taxed as attorneys' fees in actions within the jurisdiction of the district court when commenced in the superior court.
Clerk's Papers at 6.
The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo. . . . `Costs' means those costs provided for by statute or court rule. Only those costs and reasonable attorney fees incurred after a request for a trial de novo is filed may be assessed under this rule.
(Emphasis added). The purpose of this provision is to discourage meritless appeals of arbitration awards, to reduce delay in hearing civil cases, and to relieve court congestion. Christie-Lambert Van Storage Co. v. McLeod, 39 Wn. App. 298, 302-03, 693 P.2d 161 (1984). When a party fails to improve its position, fees are mandatory under the rule. Lester requested a trial de novo, and failed to improve her position.
Lester complains Katmandu did not demand its fees under MAR 7.3 when she filed her request for trial de novo, but the rule does not require it to do so, and such a requirement would be both premature and redundant. The parties are on notice by virtue of the rule itself that such fees are awardable. Neither the rule nor its governing statute, former RCW 7.06.060 (1980), establishes a deadline for making a fees demand. Katmandu was entitled to recover its fees on trial de novo.
Former RCW 7.06.060 provided: `The supreme court may by rule provide for costs and reasonable attorney's fees that may be assessed against a party appealing from the award who fails to improve his position on the trial de novo.' The Legislature rewrote this provision in 2002. RCW 7.06.060 currently provides, in pertinent part:
(1) The superior court shall assess costs and reasonable attorneys' fees against a party who appeals the award and fails to improve his or her position on the trial de novo. The court may assess costs and reasonable attorneys' fees against a party who voluntarily withdraws a request for a trial de novo if the withdrawal is not requested in conjunction with the acceptance of an offer of compromise.
(2) For the purposes of this section, `costs and reasonable attorneys' fees' means those provided for by statute or court rule, or both, as well as all expenses related to expert witness testimony, that the court finds were reasonably necessary after the request for trial de novo has been filed.
Fees Actually Incurred. Finally, Lester argues Katmandu is not entitled to fees because Katmandu was not actually billed for its attorney's services. Lester argues that because Mr. Wampold represented Katmandu pro bono, Katmandu did not actually incur any attorney fees. Lester cites no authority for the proposition that a party who is otherwise entitled to attorney fees is barred from recovery because counsel elected not to collect fees from the client. Katmandu relies upon Fahn v. Civil Service Comm'n of Cowlitz Cty, 95 Wn.2d 679, 628 P.2d 813 (1981) to argue that no such bar exists. Fahn involved an award of fees to plaintiffs who were represented by pro bono counsel in a suit under the Washington Law Against Discrimination. The Supreme Court held that the parties were entitled to their fees because `the statute does not prevent an award of statutory attorney fees in such a situation, and there is federal authority for such an award in similar circumstances.' Fahn, 95 Wn.2d at 685. The court looked only to the language of the statute, and there is nothing to suggest that the court's conclusion depended upon the public interest nature of civil rights litigation.
The same analysis should apply to the statutes and rules at issue here. Nothing in MAR 7.3 or RCW 4.84 prevents an award of statutory attorney fees where the prevailing party is represented by counsel on a pro bono basis. Katmandu is entitled to its reasonable fees.
Lester contends Katmandu's fees request was not reasonable. This determination is for the trial court on remand. The determination of reasonableness may include consideration of the extent to which time spent was productive. See Absher Const. Co. v. Kent School Dist. No. 415, 79 Wn. App. 841, 847-48, 917 P.2d 1086 (1995) (setting forth relevant factors).
Costs. Katmandu contends the court erred in denying its requests for statutory costs under RCW 4.84.010. There is no evidence in the record that Katmandu sought statutory costs. The motion for fees did not mention RCW 4.84.010, did not mention costs, and no cost bill was filed.
Fees On Appeal. Katmandu requests attorney fees on appeal under MAR 7.3, and is so entitled. Eagle Point Condo. Owners Assoc. v. Coy, 102 Wn. App. 697, 716, 9 P.3d 898 (2000). On remand, the trial court shall award such fees on appeal as the court deems reasonable.
CONCLUSION
The court below erred in failing to award Katmandu its reasonable fees incurred after the notice of trial de novo. We reverse and remand, with instructions to award reasonable fees on appeal as well.
ELLINGTON, KENNEDY and BAKER, JJ., concur.