Opinion
No. 56410-2-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-39761-8, Mary Yu, J., entered June 10, 2005.
Counsel for Appellant(s), John Stocks, Van Siclen Stocks Finkins, 721 45th St NE, Auburn, WA 98002-1303.
Counsel for Respondent(s), David Lawrence Force, Carlson McMahon Sealby PLLC, 37 S Wenatchee Ave Ste F, PO Box 2965, Wenatchee, WA 98807-2965.
Patrick G. McMahon, Attorney at Law, 37 S Wenatchee Ave Ste F, PO Box 2965, Wenatchee, WA 98807-2965.
Reversed by unpublished opinion per Agid, J., concurred in by Grosse and Baker, JJ.
After John Doggett successfully defended the malicious prosecution action Wenatchee Police Chief Kenneth Badgley filed against him under RCW 4.24.350, he moved for attorney fees under RCW 4.84.250, which mandates attorney fees for the prevailing party in an action for damages where the amount pleaded is $10,000 or less. The trial court denied Doggett's request, ruling that the amount Badgley pleaded included his attorney fees and was thus over $10,000. Doggett appeals, arguing attorney fees requested under RCW 4.24.350(2) are not an element of damages.
The plain language of RCW 4.24.350(2) establishes that the legislature intended attorney fees be recovered as costs rather than as damages. So Badgley's `amount pleaded' is limited to the $1,000 in liquidated damages allowed under RCW 4.24.350(2). Under RCW 4.84.250, Doggett is thus entitled to an award of reasonable attorney fees. We reverse and remand for an award of reasonable attorney fees.
FACTS
On December 17, 2004, Wenatchee Police Chief Kenneth C. Badgley filed a summons and complaint against John E. Doggett, alleging malicious prosecution under RCW 4.24.350. Badgley sought $1,000.00 in liquidated damages, reasonable attorney fees and costs incurred defending against Doggett's allegedly unfounded lawsuit, and reasonable attorney fees and costs for bringing the malicious prosecution claim. After both parties moved for summary judgment, the trial court granted Doggett's motion and dismissed the case.
Doggett had previously filed a lawsuit against Badgley in federal court which was dismissed because the statute of limitations had expired.
Doggett then moved for entry of judgment against Badgley and requested attorney fees and costs under RCW 4.84.250. RCW 4.84.250 provides that in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is [ten thousand] 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. . . .
Ten thousand dollars became the maximum amount allowed after July 1, 1985. RCW 4.84.250. There is no dispute that Doggett was the prevailing party in Badgley's malicious prosecution action. See RCW 4.84.270 (The defendant is the prevailing party where the plaintiff `recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant.').
The trial court denied Doggett's motion, ruling that the damages Badgley sought included the reasonable attorney fees he requested for defending against Doggett's initial action. Because Badgley did not plead a specific amount of attorney fees, the court ruled his claim could have exceeded $10,000, so RCW 4.84.250 did not apply and Doggett was not entitled to attorney fees.
DISCUSSION
I. Attorney Fees Under RCW 4.24.350(2)
We must determine whether attorney fees sought in a malicious prosecution action under RCW 4.24.350(2) are an element of `damages' for purposes of determining the amount pleaded under RCW 4.84.250. If they are, Badgley pleaded over $10,000 and Doggett cannot recover attorney fees under RCW 4.84.250. If not, RCW 4.84.250 applies and mandates an award of attorney fees to Doggett as the prevailing party. We review questions of statutory interpretation de novo. Where statutory language is "plain, free from ambiguity and devoid of uncertainty, there is no room for construction because the legislative intention derives solely from the language of the statute." In undertaking a plain language analysis, this court takes care to avoid "unlikely, absurd or strained" results. We interpret a statute to give effect to every word and phrase. Only when legislative intent is not clear from the statutory language may we "resort to extrinsic aids, such as legislative history." This court interprets statutory provisions together with related provisions to maintain the integrity of the respective statutes and reads statutes addressing the same subject as complementary rather than conflicting.
See Mackey v. Am. Fashion Inst. Corp., 60 Wn. App. 426, 429, 804 P.2d 642 (1991) (citing Kingston Lumber Supply Co. v. High Tech Dev., Inc., 52 Wn. App. 864, 867, 765 P.2d 27 (1988), review denied, 112 Wn.2d 1010 (1989)).
Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005) (citing Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999)).
Bravo v. Dolsen Cos., 125 Wn.2d 745, 752, 888 P.2d 147 (1995) (quoting Krystad v. Lau, 65 Wn.2d 827, 844, 400 P.2d 72 (1965)).
Berrocal, 155 Wn.2d at 590 (quoting Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)).
State v. Argueta, 107 Wn. App. 532, 538, 27 P.3d 242 (2001) (citing State v. Rodman, 94 Wn. App. 930, 932-33, 973 P.2d 1095 (1999)).
Burton, 153 Wn.2d at 423 (quoting Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992)).
State v. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282 (citing In re Estate of Kerr, 134 Wn.2d 328, 336, 949 P.2d 810 (1998)), cert. denied, 531 U.S. 984 (2000).
A. Statutory Language
Doggett argues the attorney fees Badgley requested in his malicious prosecution lawsuit are costs rather than an element of damages and the trial court erred by including them in Badgley's `amount pleaded' under RCW 4.84.250. He contends the plain language of both RCW 4.84.250 and RCW 4.24.350(2) support this conclusion. Badgley argues that attorney fees in a malicious prosecution action are recoverable as an element of damages rather than as costs, so he pleaded well over $10,000 in damages in the complaint.
The `amount pleaded' under RCW 4.84.250 includes only the plaintiff's basic claim for damages. There is no dispute Badgley's attorney fees, even if they are limited to the fees he incurred defending against Doggett's initial action, total over $10,000. Badgley brought his malicious prosecution action under RCW 4.24.350(2):
Mackey, 60 Wn. App. at 431-32.
In any action, claim, or counterclaim brought by a judicial officer, prosecuting authority, or law enforcement officer for malicious prosecution arising out of the performance or purported performance of the public duty of such officer, an arrest or seizure of property need not be an element of the claim, nor do special damages need to be proved. A judicial officer, prosecuting authority, or law enforcement officer prevailing in such an action may be allowed an amount up to one thousand dollars as liquidated damages, together with a reasonable attorneys' fee, and other costs of suit. A government entity which has provided legal services to the prevailing judicial officer, prosecuting authority, or law enforcement officer has reimbursement rights to any award for reasonable attorneys' fees and other costs, but shall have no such rights to any liquidated damages allowed.
(Emphasis added).
The `together with a reasonable attorneys' fee, and other costs of suit' language indicates the legislature considers attorney fees a cost of the suit rather than an element of damages. The next sentence confirms this, stating that a government entity providing legal services to a prevailing officer `has reimbursement rights to any award for reasonable attorneys' fees and other costs, but shall have no such rights to any liquidated damages allowed.' Even if it were not clear that the legislature considers attorney fees a cost of suit, the statutory language prevents them from being considered an element of damages. Black's Law Dictionary defines `liquidated damages' as an `amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. If the parties to a contract have properly agreed on liquidated damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages.' Where a statute provides for liquidated damages, the sum fixed is the only measure of damages recoverable under the statute, and there can be no additional recovery for special damages. RCW 4.24.350(2) limits damages to $1,000, but it also provides for recovery of reasonable attorney fees along with `other costs of suit.' The very fact that a law enforcement officer can recover attorney fees in addition to liquidated damages means those fees are not damages under the statute.
RCW 4.24.350(2). Doggett argues this court in Mackey, 60 Wn. App. at 429, held that nearly identical statutory language mandated the recovery of attorney fees as costs rather than damages for the purpose of determining the amount pleaded under RCW 4.84.250. But Mackey pleaded damages under a statute, RCW 49.52.050, that did not clearly classify attorney fees as costs. See RCW 49.52.070 (any employer violating RCW 49.52.050 `shall be liable in a civil action . . . for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney's fees.') (emphasis added). Nor did Mackey involve in a malicious prosecution action, in which, as noted below, attorney fees can be characterized as an element of damages under Washington common law. See Rorvig v. Douglas, 123 Wn.2d 854, 862, 873 P.2d 492 (1994).
Black's Law Dictionary 418 (8th ed. 2004).
See Pac. Puget Sound Bottling Co. v. Clithero, 162 Wash. 156, 158-59, 298 P. 316 (1931); Mon Wai v. Parks, 43 Wn.2d 562, 567, 262 P.2d 196 (1953). "If the amount agreed upon is liquidated damages, there can be no additional recovery for special items of damages arising out of breach of covenants for which liquidated damages were provided." Clithero at 159 (quoting Smith v. Lambert Transfer Co., 109 Wash. 529, 534, 187 P. 362 (1920)).
Badgley relies on Washington case law recognizing attorney fees as an element of damages when they arise from a malicious prosecution lawsuit. In Washington, attorney fees are considered costs of litigation, but there are "certain circumstances" where a party may recover attorney fees as an element of damages. In Rorvig v. Douglas, the Washington Supreme Court held that, in malicious prosecution actions, `it has long been the rule that damages include the attorney fees for the underlying action made necessary by the defendant's wrongful act.' But neither Rorvig nor any other case has addressed whether, in the context of RCW 4.24.350(2), attorney fees are considered an element of damages or costs. Washington common law does not change the fact the legislature in RCW 4.24.350(2) limits damages to $1,000 and allows a separate recovery of attorney fees as costs. Not only does the statute authorize an attorney fees award in addition to liquidated damages, indicating the fees are allowed as part of the cost of litigation, it specifically treats attorney fees as distinct from damages. The legislature intended that a prevailing party recover attorney fees as costs rather than as an element of damages under RCW 4.24.350(2).
Detonics `.45' Assocs. v. Bank of California, 97 Wn.2d 351, 354, 644 P.2d 1170 (1982). Washington follows the American rule about attorney fees: `absent a contract, statute, or recognized ground of equity, the prevailing party does not recover attorney fees as costs of litigation.' Rorvig v. Douglas, 123 Wn.2d 854, 861, 873 P.2d 492 (1994) (citing Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 757, 649 P.2d 828 (1982)).
Rorvig, 123 Wn.2d at 861 (quoting State ex rel. Macri v. Bremerton, 8 Wn.2d 93, 113, 111 P.2d 612 (1941)).
123 Wn.2d 854, 862, 873 P.2d 492 (1994) (citing Aldrich v. Inland Empire Tel. Tel. Co., 62 Wash. 173, 176-77, 113 P. 264 (1911)).
See Mackey, 60 Wn. App. at 431.
B. Policy Concerns
Badgley argues that even if attorney fees are recoverable as costs rather than damages under RCW 4.24.350(2), allowing Doggett to recover attorney fees under RCW 4.84.250 creates an absurd result that is contrary to the policies underlying RCW 4.24.350(2). He contends the legislature did not intend to expose law enforcement officers to liability for attorney fees under RCW 4.84.250 by limiting liquidated damages to $1,000. In enacting RCW 4.24.350(2), the legislature found that a growing number of unfounded lawsuits, claims, and liens are filed against law enforcement officers, prosecuting authorities, and judges, and against their property, having the purpose and effect of deterring those officers in the exercise of their discretion and inhibiting the performance of their public duties.
The legislature also finds that the cost of defending against such unfounded suits, claims and liens is severely burdensome to such officers, and also to the state and the various cities and counties of the state. The purpose of section 2 of this 1984 act is to provide a remedy to those public officers and to the public.
Laws of 1984, ch. 133, sec. 1.
`[O]ur Legislature has attempted to discourage lawsuits by enacting RCW 4.24.350, which allows law enforcement officers to counterclaim against those who institute malicious prosecution actions against them.' Malicious prosecution actions in general are not favored in law. `The reasons assigned for this attitude on the part of the courts are that it is to the best interest of society that those who offend against the law shall be promptly punished; that any citizen who has good reason to believe that the law has been violated shall have the right to take proper steps to cause the arrest of the offender; and that in taking such steps the citizen who acts in good faith shall not be subjected to damages merely because the accused is not convicted; yet, withal, that no [person] shall be charged with a crime, exposed to the danger of a conviction, and subjected to the expense, vexation, and ignominy of a public trial merely for the gratification of another's malice or ill will.'
Keates v. City of Vancouver, 73 Wn. App. 257, 268, 869 P.2d 88, 124 Wn.2d 1026 (1994).
Hanson v. City of Snohomish, 121 Wn.2d 552, 557, 852 P.2d 295 (1993) (citing Bender v. Seattle, 99 Wn.2d 582, 602-03, 664 P.2d 492 (1983) (Dimmick, J., concurring in part, dissenting in part); Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 496, 125 P.2d 681 (1942)).
Id. at 557-58 (alteration in original) (quoting Peasley, 13 Wn.2d at 496-97).
Washington courts strictly limit "the right to bring suit for malicious prosecution of civil actions, reasoning that such suits intimidate prospective litigants and that the public policy favors open courts in which a plaintiff may fearlessly present his case."
Brin v. Stutzman, 89 Wn. App. 809, 820, 951 P.2d 291 (quoting Gem Trading Co. v. Cudahy Corp., 22 Wn. App. 278, 283, 588 P.2d 1222 (1978), aff'd, 92 Wn.2d 956, 603 P.2d 828 (1979)), review denied, 136 Wn.2d 1004 (1998).
Through RCW 4.84.250, the legislature encourages settlements and penalizes parties who unjustifiably bring or resist small claims. The legislature intended "to enable a party to pursue a meritorious small claim without seeing his award diminished in whole or in part by legal fees." But RCW 4.84.250 prohibits the court from considering costs in determining whether a claim falls under the statute. Thus, anytime a law enforcement officer brings a claim under RCW 4.24.350(2), a prevailing defendant could recover attorney fees under RCW 4.84.250 because the officer could never plead more than $1,000 in damages. Given the purpose of RCW 4.24.350(2), this is not an absurd result.
Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 788, 733 P.2d 960 (1987) (citing Valley v. Hand, 38 Wn. App. 170, 684 P.2d 1341, review denied, 103 Wn.2d 1006 (1984); Harold Meyer Drug v. Hurd, 23 Wn. App. 683, 598 P.2d 404 (1979)).
Id. (quoting Northside Auto Serv., Inc. v. Consumers United Ins. Co., 25 Wn. App. 486, 492, 607 P.2d 890 (1980)).
RCW 4.24.350(2) provides a remedy for law enforcement officers subjected to unfounded actions. It eliminates the requirement that officers prove arrest, seizure or damages, thus creating a cause of action not available to them under common law. It was intended as a shield, not a sword, and was designed to discourage litigants from ever filing unfounded actions against law enforcement officials. Although it entitles law enforcement officers to a higher degree of protection from frivolous lawsuits, malicious prosecution actions remain disfavored in law, including those filed by law enforcement officers. Allowing a defendant who prevails in a RCW 4.24.350(2) action to recover attorney fees under RCW 4.84.250 discourages law enforcement officers from bringing all but the most meritorious malicious prosecution actions. This comports with legislative and court policy limiting the right to bring malicious prosecution actions. There is nothing absurd about allowing those who must defend an unsuccessful malicious prosecution action to recover reasonable attorney fees.
Badgley's situation is unlikely to arise with much frequency because typically law enforcement officers will utilize RCW 4.24.350(2) in a counterclaim rather than a separate lawsuit. See Keates, 73 Wn. App. at 268 (statute `allows law enforcement officers to counterclaim against those who institute malicious prosecution actions against them.').
ATTORNEY FEES ON APPEAL
Doggett requests attorney fees on appeal under RAP 18.1, which provides that this court may award attorney fees `[i]f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court.' Because RCW 4.84.250 grants Doggett the right to recover attorney fees, he is entitled to reasonable attorney fees on appeal.
We reverse and remand to the trial court to determine the reasonable attorney fees Doggett is entitled to recover.
GROSSE and BAKER, JJ., Concur.