Opinion
No. 21664-1-III.
Filed: February 10, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 01-2-00085-1. Judgment or order under review. Date filed: 11/26/2002.
Counsel for Appellant(s), Sandra G. Cody, Attorney at Law, 408 Sherman Avenue, #307, Coeur D' Alene, ID 83814.
Counsel for Appellant(s), Tonya R Hanson, Hanson Associates Law Offices, 1314 S Grand Blvd Ste 2-190, Spokane, WA 99202-1174.
Counsel for Appellant(s), Stephen Templeton Osborne, Rettig Osbourne Forgette O'Donnell LLP, 6725 W Clearwater Ave, Kennewick, WA 99336-1788.
Counsel for Respondent/Cross-Appellant, John Peter Mele, Attorney at Law, 1201 3rd Ave Ste 3400, Seattle, WA 98101-3034.
Counsel for Respondent/Cross-Appellant, David L. Tift, Attorney at Law, 1201 3rd Ave Ste 3400, Seattle, WA 98101-3034.
This attorney fee dispute arises under the Washington Abuse of Vulnerable Adult Act, chapter 74.34 RCW (Act). Jewell A. Smith, personally and as personal representative of the Estate of Ivin G. Smith, and Allyson Smith-Dennis were awarded lodestar attorney fees and costs under the Act against Life Care Centers of America, Inc. d/b/a Life Care Center of Kennewick (Life Care). Mainly arguing for a contingency multiplier, the Smiths requested clarification and reconsideration. Life Care objected that reconsideration was untimely. The Smiths immediately appealed, then successfully sought leave of this court to proceed with entry of amended orders. The trial court, on reconsideration, entered amended findings and conclusions regarding the fees, and an amended judgment, which increased the lodestar fee and cost awards, but without the contingency multiplier.
In their amended appeal, the Smiths contend (1) the court abused its discretion in not granting an upward adjustment to their attorney fee award as a contingency multiplier in view of the exceptional risk of undertaking representation, and (2) the court erred in failing to articulate in its findings of fact how it applied the factors found in Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 675 P.2d 193 (1983).
In Life Care's cross-appeal, it contends (1) the Smiths' motion for reconsideration was untimely, and (2) we should remand with instructions to enter findings of fact and conclusions of law in support of the trial court's original limited award and include specific findings and conclusions on Life Care's objections.
Because we determine the amended findings combined with the trial court's colloquy adequately explain the trial court's rationale, we hold the trial court acted within its discretion to reject the contingency multiplier. Additionally, we reject Life Care's contentions. Accordingly, we affirm.
FACTS
Mr. Smith died while residing at the Life Care Center of Kennewick. Mr. Smith's wife and daughter successfully brought claims against Life Care for wrongful death, negligence and abuse under the Act. The court entered a judgment in favor of the Smiths, awarding them $42,500 in damages plus attorney fees and costs pursuant to RCW 74.34.200(3), in an amount to be determined at a later date.
On November 26, 2002, the court awarded the Smiths' attorneys $88,224 in fees and $17,863.83 in costs. The court included findings and conclusions with its judgment, but the sole reference to attorney fees was that they were awarded for 'violation of RCW 74.34.' Clerk's Papers (CP) at 63 — Conclusion of Law 5. On December 5, 2002, the Smiths requested clarification or reconsideration, arguing the court failed to provide a record of how it calculated the fees and should have included a contingency multiplier. Although filed and mailed before the 10-day service limit for reconsideration under CR 59(b), the motion was not technically served on Life Care, via mail, until December 9, three days after the service deadline. Life Care objected on that basis. The Smiths immediately appealed to this court and Life Care cross-appealed.
On January 7, 2003, in response to the motion to reconsider, the trial court decided after 'careful reconsideration of the file and submissions by counsel' to award the Smiths additional cases and attorney fees based upon what it believed were specified hourly rates, and recited: 'The Bowers factors have been considered herein. An amended judgment pursuant to this letter may be presented.' CP at 307. The Smiths formally asked this court for permission to enter the trial court's decision as an Amended Judgment with Amended Findings and Conclusions under RAP 7.2(e). There being no objection from Life Care, our clerk granted the motion.
On February 27, the trial court entered its amended findings, conclusions, and judgment, noting it had the 'discretion to do so' and Life Care 'informally . . . had notice it was going to be made and it was being made' and 'it was substantially complied with.' Report of Proceedings (RP) (February 27, 2003) at 9-10. The court awarded $125,781 in attorney fees and $18,152.25 in costs. The court found Sandra G. Cody expended 449.04 hours at $150 per hour and Stephen T. Osborne expended 340 hours at $170 per hour, his intern expended 2.5 hours at $100 per hour and his firm's investment hours were 7.5 at $50 per hour. The court found the hours and hourly rates were reasonable. And, the trial court noted the Bowers factors were considered.
The Smiths duly filed their amended notice of appeal and Life Care duly filed its amended cross-appeal.
ANALYSIS A. Reconsideration Timeliness
The issue is whether the trial court erred in considering the motion when it was served on Life Care three days beyond the time period specified in CR 59(b).
A motion for reconsideration under CR 59 is addressed at the sound discretion of the trial court, and will not be reversed absent a showing of manifest abuse. Lund v. Benham, 109 Wn. App. 263, 266, 34 P.3d 902 (2001), review denied, 146 Wn.2d 1018 (2002). Abuse of discretion occurs when the trial court's decision rests on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Life Care contends the trial court abused its discretion in reviewing its November 26, 2002 judgment because the motion for reconsideration was untimely.
CR 59(b) states a motion for reconsideration 'shall be served and filed not later than 10 days after the entry of the judgment.' In general, the word 'shall' imposes a mandatory requirement. Erection Co. v. Dep't of Labor Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). The Smiths argue substantial compliance is sufficient and that notice to Life Care that they wanted reconsideration was enough to extend the necessary time period for service. However, our Supreme Court has specifically stated: 'A trial court may not extend the time period for filing or serving a motion for reconsideration.' Schaefco, Inc. v. Columbia River Gorge Com'n, 121 Wn.2d 366, 367-68, 849 P.2d 1225 (1993) (citing CR 6(b); Moore v. Wentz, 11 Wn. App. 796, 799, 525 P.2d 290 (1974)). CR 59(b) is a strict compliance rule. 'The CR 59 service requirement is mandatory.' Kaech v. Lewis County Pub. Util. Dist. No. 1, 106 Wn. App. 260, 268, 23 P.3d 529 (2001), review denied, 145 Wn.2d 1020 (2002).
Since the motion for reconsideration was untimely, the trial court lacked authority to review the Smiths' request. However, the Smiths aptly expressed the concern in their original notice of appeal, that the November 26, 2002 judgment was facially deficient for its failure to disclose the methodology for calculation of the lodestar attorney fees. Life care joins in this concern. Thus, our analysis continues.
B. Lodestar Attorney Fees
The next issue is whether the trial court erred in not entering findings of fact and conclusions of law explaining the basis of its November 26, 2002 fee award.
An appellate court reviews the reasonableness of an award of attorney fees and costs for an abuse of discretion. Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 519, 910 P.2d 462 (1996). However, the trial court must enter findings of fact and conclusions of law supporting an award of attorney fees. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). Both parties agree the trial court erred in not entering findings of fact and conclusions of law, explaining the basis of its fee award.
Here, the sole mention of attorney fees in the trial court's original findings of fact and conclusions of law is in Conclusion of Law No. 5, which states fees are awarded for 'violation of RCW 74.34.' CP at 63. In Mahler, our Supreme Court noted the need for an adequate record to review a fee award, the absence of which 'will result in a remand of the award to the trial court to develop such a record.' Mahler, 135 Wn.2d at 435.
Specifically, the reviewing court needs to know if the services of the attorneys 'were reasonable or essential to the successful outcome. . . . if there were any duplicative or unnecessary services. . . . if the hourly rates were reasonable.' Id.
We need an adequate record to 'exercise our supervisory role to ensure that discretion is exercised on articulable grounds.' Id.
Normally the remedy would be to grant relief to the extent that the November 26, 2002 fee award would be remanded for entry of findings of fact and conclusions of law. But here, the Smiths requested permission from this court for formal entry of amended findings, conclusions, and judgment, and no objection was interposed. Accordingly, our clerk granted permission to proceed. No purpose is served by ordering a remand to accomplish what has already transpired. When the trial court formally reconsidered this matter on February 27, 2003, it orally clarified its rulings, entered findings explaining its lodestar rationale, and declined to enter findings regarding Life Care's objections detailed at CP 146-57 and reviewed in Respondent's Br. at 2-3. We determine the existing record is adequate for us to conclude the trial court did not abuse its discretion when deciding the attorney fee and cost issues.
Regarding Life Care's detailed objections, the trial court's failure to enter findings as to the material facts placed in issue by Life Care indicates to us the equivalent of a negative finding on each of these points against Life Care, which had the burden of proof. Pacesetter Real Estate, Inc. v. Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989). Further, the trial court set the number of hours expended by each attorney, and determined an hourly rate, which was specifically found by it to be reasonable. We defer to the trial court's fact finding function. While not expansive, the trial court's written decision is clarified when we review its colloquy with counsel on February 27, 2003 at RP 6-9. Although it did not set out its full reasoning in writing, the trial court nevertheless indicated it went through the fees line by line and carefully considered the Bowers factors. Specifically, the trial court said: [B]ut I do want to indicate to both counsel that I looked at those factors and considered those factors a couple of times at least prior to my initial ruling and after the Motion for Reconsideration looked at them at least a couple times more, and I do believe that the lodestar was set at a reasonable rate, the hours reasonable. I did review the billings very carefully, and although there are some duplicates, I think those are reasonable. I think all in all, the hours are reasonable and the rates were reasonable. And I did — however, I did not feel it was appropriate in this case to raise or lower or make an adjustment upward or downward based on those 12 factors, so hopefully that clarifies that.
RP (February 28, 2003) at 9.
From this, we also determine the trial court squarely rejected the arguments of Life Care regarding duplicated fees. Similarly, the trial court elected within its discretion to reject the Smiths' claim for a contingency multiplier. These determinations came within the trial court's broad discretion. Therefore, we hold the trial court did not err in rejecting Life Care's objections, or in denying a multiplier for the Smiths.
C. Attorney Fees
The Smiths request attorney fees and costs on appeal under RAP 18.1 and RCW 74.34.200(3). Under the Act, the prevailing party is entitled to fees and costs. RCW 74.34.200(3). Since the Smiths have not prevailed in their pursuit of a contingency multiplier, their request for attorney fees is denied.
Affirmed.
KURTZ, J. and KATO, J., concur.