Opinion
41187-3-II
12-20-2011
RICHARD TAKACH, as his separate estate, and KARI JONASSEN, as her separate estate, Plaintiffs/Respondents, v. BENTER A. ORIKO, Defendant/Appellant.
UNPUBLISHED OPINION
Worswick, J.
Pavers surrounding a pond on Benter A. Oriko's land encroach on the land of Richard Takach and Kari Jonassen (Takach). Takach sued Oriko for trespass and went to trial in her absence, winning a judgment quieting title, a money judgment, and attorney fees. Oriko appeals pro se, arguing for the first time on appeal that (1) the trial court erred by denying her motion to continue trial and discovery dates, (2) the trial court erred by granting money damages, and (3) the trial court erred by granting attorney fees. Because Oriko failed to preserve her first two arguments, we consider only her third argument and reverse the trial court's award of attorney fees.
FACTS
On June 20, 2006, Takach filed suit against Oriko, alleging that a pond on Oriko's land encroached on Takach's land. Takach sought damages and an injunction requiring Oriko to remove all encroaching areas of the pond.
The case proceeded to trial on June 9, 2010 in Oriko's absence. The trial court ruled that Takach was entitled to a judgment to quiet title in the encroaching area and for money damages. Takach subsequently filed a notice of presentation of judgment, submitting a proposed judgment quieting title in the encroaching area and awarding him money damages. He also filed a motion for an award of attorney fees under RCW 4.84.250 and .185. Oriko did not appear at the hearing on Takach's presentation of judgment and motion for attorney fees. Rather, she telephoned the court on the day of the hearing to request to appear telephonically, and informed opposing counsel by telephone that she objected to the proposed judgment and would like a continuance.
RCW 4.84.250 provides that where the amount pleaded in any action for damages is $10,000 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."
RCW 4.84.185 provides that a court 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."
The trial court awarded Takach the requested judgment quieting title in the encroaching area. The trial court further awarded Takach $1,000 in damages, $19,590 in attorney fees, and $456.80 in costs. The trial court's order granting attorney fees specified that it was based on RCW 4.84.250, not RCW 4.84.185. Oriko appeals.
The trial court did not enter findings of fact and conclusions of law as required when a case is tried on the facts without a jury. CR 52(a)(1). Under CR 52(d), a judgment issued without findings or conclusions when such are required is subject to a timely motion to vacate. Oriko filed no such motion.
ANALYSIS
I. RAP 2.5(a)
Oriko argues that the trial court erred by failing to grant her motion to continue and awarding Takach money damages. But because she raises these claims for the first time on appeal, we do not consider them.
Under RAP 2.5(a), we generally will not consider arguments raised for the first time on appeal, except (1) lack of trial court jurisdiction, (2) failure to establish facts on which relief can be granted, and (3) manifest error affecting a constitutional right. The purpose of RAP 2.5(a) is to give trial courts the opportunity to address any errors. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 671 n.2, 230 P.3d 583 (2010).
Here, Oriko did not participate in the proceedings at all, except to file an answer and request multiple continuances. She asks us to reverse the trial court based on objections she could have raised below and based on a record created without her substantial participation. The record shows no legally cognizable excuse for Oriko's failure to participate in the case. If Oriko had properly raised the continuance and money damages arguments below, the trial court would have been afforded the opportunity to correct any errors. As such, we do not consider Oriko's first two arguments.
Oriko also argues that the trial court erred by awarding Takach attorney fees. Takach was required to show facts entitling him to relief under RCW 4.84.250, primarily that he gave Oriko sufficient notice. Oriko's argument that Takach was not entitled to attorney fees under this statute is a claim that Takach failed to establish facts upon which relief could be granted and may be considered for the first time on appeal under RAP 2.5(a)(2).
II. Attorney Fees Under RCW 4.84.250
Oriko argues that the trial court erred in granting attorney fees below because no statute authorizes a party to recover attorney fees in an action to quiet title. She further argues that attorney fees were unavailable under RCW 4.84.250 because Takach did not request attorney fees in his complaint and she received no notice that Takach sought attorney fees. We reverse the trial court's award of attorney fees, holding that Takach did not make a settlement offer sufficient to put Oriko on notice that he might seek attorney fees under RCW 4.84.250.
RCW 4.84.250 provides that a prevailing party may be awarded attorney fees in an action seeking $10,000 or less. A party need not seek money damages alone; a request for other relief does not preclude attorney fees under RCW 4.84.250. Hanson v. Estell, 100 Wn.App. 281, 290, 997 P.2d 426 (2000). A plaintiff is a prevailing party for the purpose of RCW 4.84.250 only when the plaintiff recovers as much as, or more than, the amount the plaintiff offered in settlement. RCW 4.84.260. And offers of settlement must be served at least ten days before trial. RCW 4.84.280.
For a plaintiff to recover attorney fees under RCW 4.84.250, the amount of damages or the intent to seek attorney fees need not be pleaded in the complaint; an offer of settlement up to 10 days before trial is sufficient. Beckmann v. Spokane Transit Authority, 107 Wn.2d 785, 788-89, 733 P.2d 960 (1987). However, this offer must put the defendant on notice that the claim is small enough to invoke RCW 4.84.250. Beckmann, 107 Wn.2d at 789-90. And when the plaintiff seeks attorney fees under RCW 4.84.250, a copy of the settlement offer "shall" be filed after the trial court enters judgment, for the purpose of determining attorney fees. RCW 4.84.280. We review a trial court's decision to grant or deny attorney fees for manifest abuse of discretion. Lay v. Hass, 112 Wn.App. 818, 826, 51 P.3d 130 (2002) (quoting Mackey v. Am. Fashion Inst. Corp., 60 Wn.App. 426, 429, 804 P.2d 642 (1991)).
Although Beckmann based this holding in part on the fact that statute prohibits personal injury plaintiffs from specifying the amount of damages in the complaint, its holding is not limited to personal injury suits. Beckmann, 107 Wn.2d at 789 (requiring "some type of notice" as a general matter, without reference to personal injury); see also Lay v. Hass, 112 Wn.App. 818, 824, 51 P.3d 130 (2002) (following Beckmann on a trespass claim).
Takach argues that he made a sufficient settlement offer in a letter sent to Oriko on July 25, 2006. But this letter did not state a settlement amount, it only offered to settle in exchange for an unspecified amount of attorney fees and expenses, as well as a license agreement allowing Oriko to continue her encroachment. It did not inform Oriko that the amount sought was $10,000 or less, and thus did not put Oriko on notice as required by Beckmann, 107 Wn.2d at 789. Accordingly, the trial court applied the wrong legal standard in granting attorney fees to Takach under RCW 4.84.250.
We reverse the award of attorney fees against Oriko and remand for further proceedings consistent with this opinion.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Van Deren, J., Penoyar, C.J.