Opinion
Nos. 60806-1-I; 61780-0-I.
April 27, 2009.
Appeals from a judgment of the Superior Court for King County, No. 00-2-18923-1, Jim Rogers, J., entered October 5, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Becker and Appelwick, JJ.
An appellate court has discretion to disregard the law of the case doctrine and review an earlier decision in the same case if that decision is clearly erroneous and would work a manifest injustice to one party. But Robert Koester has not demonstrated any error or manifest injustice in our attorney fee decision in an earlier appeal. We therefore decline to revisit that decision and affirm the trial court.
FACTS
In 1999, Robert and Judith Koester built a pool, mechanical room, and surrounding structures on their Kirkland property in violation of the consent to construction covenant in the declaration of covenants, conditions, and restrictions (CCRs). The neighbors (collectively referred to as "the Petersons") filed suit, seeking removal of the improvements. Following trial, which began in July 2001, the trial court found, among other things, that the Koesters had knowingly violated the consent to construction covenant by not submitting accurate plans before beginning construction. The court concluded that the Petersons were entitled to equitable relief and ordered the Koesters to reduce the elevation of all improvements and to move and modify the mechanical room. The court also awarded the Petersons approximately $137,000 in attorney fees and costs.
Robert Koester is the sole appellant.
In Peterson v. Koester, 122 Wn. App. 351, 92 P.3d 780 (2004) ( Koester I), we affirmed almost all of the challenged trial court decisions, including the finding that the Koesters had knowingly violated the consent to construction covenant, the finding that the Koesters had knowingly built the pool to an unapproved level, the order regarding modification of the mechanical room, the decision not to balance the equities in granting relief, the trial court's refusal to reopen evidence, and the trial court's award of attorney fees. We reversed the order requiring the Koesters to reduce the height of the improvement and remanded for imposition of a remedy consistent with the principle that a consent to construction covenant cannot be used to impose a more burdensome restriction than specific covenants.
We also directed the trial court, on remand, to enter findings of fact and conclusions of law to support the reasonableness of the attorney fee award using the lodestar methodology. Because we concluded that neither party had prevailed on appeal, we declined to award attorney fees on appeal. The Koesters did not seek further review.
On remand, the Petersons abandoned the attorney fee issue because the Koesters had declared bankruptcy in December 2001. The bankruptcy court eventually paid a small pro rata share of the attorney fee judgment and discharged the remainder of the obligation.
For purposes of this appeal, Koester's participation in the proceedings on remand following Koester I was limited to a series of motions involving the original award of attorney fees. On April 14, 2008, following entry of the final order on remand, Koester moved for the entry of findings of fact and conclusions of law supporting an award of attorney fees to him as the prevailing party at trial. The trial court denied the motion, concluding that the analysis of legal and factual issues in Koester I supported the determination that the Petersons remained the prevailing party at trial. Koester's appeals from several trial court rulings have been consolidated.
DECISION
Koester contends that the trial court on remand failed to comply with our mandate in Koester I to enter findings of fact and conclusions of law supporting the reasonableness of the attorney fee award under the lodestar methodology. He maintains that because Koester I reversed the trial court's decision on the elevation of the improvements, application of the lodestar factors requires a significant reduction in the fee award for unsuccessful claims.
But Koester fails to demonstrate that the entry of findings of fact and conclusions of law would serve any useful purpose. Koester acknowledges that after paying a small pro rata share of the attorney fee award, the bankruptcy court completely discharged his obligation to pay the remainder of the award. Given this court's determination in Koester I that the Petersons remained the prevailing party at trial, Koester has not presented any legal argument suggesting how the entry of findings on the discharged award, even if it resulted in some reduction for unsuccessful claims, could provide him with a net award of attorney fees or any other meaningful relief. Accordingly, any issues arising from the trial court's failure on remand to enter findings on the attorney fee award are moot. See Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn .2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993) (appeal is moot if it presents purely academic issues and appellate court cannot provide effective relief); see also Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to consider issues unsupported by cogent legal argument and citation to relevant authority).
In an effort to revive the attorney fee issue, Koester next asks this court to review the holding in Koester I that the Petersons remained the prevailing party at trial for purposes of the attorney fee award. See RAP 2.5(c)(2). Koester maintains that because Koester I reversed the trial court on what he characterizes as the "predominate issue in this litigation" (Appellant's Reply Br. at 5), he — not the Petersons — was the substantially prevailing party at trial and entitled to an award of attorney fees. In the alternative, he asks this court to order an award of fees based on the "proportionality" approach developed in Marassi v. Lau, 71 Wn. App. 912, 859 P.2d 605 (1993) (where multiple distinct and severable contract claims are at issue, each party is entitled to attorney fees for the claims it prevailed on), rather than the lodestar methodology.
RAP 2.5(c)(2) provides, "The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review."
"In its most common form, the law of the case doctrine stands for the proposition that once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation." Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005); see also Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). But an appellate court has discretion to disregard the doctrine "where the prior decision is clearly erroneous, and the erroneous decision would work a manifest injustice to one party." Roberson, 156 Wn.2d at 42. An appellate court is not obligated to "perpetuate its own error." Id.
In Koester I, this court expressly held that "[a]lthough we are reversing the order to reduce the improvements[,] the respondents remain the prevailing party below." Koester I, 122 Wn. App. at 363. Koester argues that we should disregard this determination as erroneous. But he supports this contention with little more than conclusory assertions that he prevailed on the only significant litigated issue. The record fails to support this characterization.
In determining that the Petersons remained the substantially prevailing party at trial, the court in Koester I clearly viewed all of the disputed issues in light of the outcome of the appeal. The court's decision reflects that it considered not only the elevation issue, which it remanded for entry of a different remedy, but also a number of issues that the trial court decided in favor of the Petersons, including modification of the mechanical room. Moreover, an appellate court's decision must also be assessed in light of the arguments presented by the parties. Koester has not identified any of the arguments that he raised on this issue in the prior appeal. Under the circumstances, Koester has failed to establish an error in Koester I.
The law of the case doctrine promotes the strong policy of "finality and efficiency in the judicial process." Roberson v. Perez, 156 Wn.2d at 41. Because Koester has failed to demonstrate any error or other circumstances that would justify disregarding that policy here, we decline to revisit our earlier decision in Koester I.
The Petersons have requested an award of attorney fees on appeal under the provisions of the CCRs. See RAP 18.1(a). The request is granted subject to compliance with RAP 18.1(d).
Affirmed.