Opinion
Amended on Reconsideration August 15, 1996.
Page 826
John Robert Christiansen, Seattle, WA, for appellant.
Randall Paul Beighle, Michael Barr King, Ellen Marie Davis, Lane, Powell, Spearss&sLubersky, Seattle, WA, for respondents.
ORDER ON MOTIONS FOR RECONSIDERATION
Both appellant and respondent having filed motions for reconsideration herein, and the court having determined that appellant's motion should be denied; and respondent's motion should be granted, now, therefore, it is hereby
ORDERED that respondent's motion for reconsideration be, and the same is, hereby granted, and that appellant's motion for reconsideration be, and the same is, hereby denied.
IT IS FURTHER ORDERED that the opinion filed in this matter on May 6, 1996, 81 Wash.App. 532, 914 P.2d 1220, shall be amended in accordance with this order.
Brader and Minute Muffler each move this court to reconsider its refusal to grant appellate level attorney fees. Minute Muffler appealed the trial court's award of attorney fees and costs to Brader for its successful suit against Minute Muffler for violations of FIPA. Minute Muffler argued that although Brader was successful on the merits, Brader was not the "prevailing party" because it failed to accept Minute Muffler's CR 68 offer of judgment for a amount exceeding its recovery at trial. Brader cross appealed the trial court's denial of its request for damages for business losses under the rescission remedy of FIPA.
In a recent published opinion, we affirmed, holding that Minute Muffler's offer of judgment was untimely and that consequential damages are not allowed under the theory of rescission and restitution. We also denied appellate attorney fees to each party, holding that (1) although Minute Muffler prevailed on cross appeal, it failed to brief its request for attorney fees on that issue as required by RAP 18.1, and (2) there was no basis for Brader's recovery of attorney fees under CR 68, and no other basis was proposed.
Brader argues that we misunderstood the basis of its fee claim to be CR 68 instead of the attorney fee provision of the Franchise Investment Protection Act (FIPA). It does not request fees for its unsuccessful cross appeal. We agree and award Brader its fees under the FIPA fee-shifting provision. Next, Minute Muffler contends that although it failed to devote a portion of its response on cross appeal to a request for fees on that issue, it substantially complied with RAP 18.1 by requesting fees in its opening brief on appeal. We do not agree that Minute Muffler adequately argued a basis for fees on the cross appeal, and therefore deny its motion for reconsideration.
BRADER
In our opinion, we held that Brader was not entitled to fees because the offer of judgment rule does not provide for an award of fees to the offeree, and because no other proper basis was advanced. The briefs reveal that Brader actually requested fees for its successful defense of Minute Muffler's appeal under the FIPA attorney fee provision. We therefore grant Brader's motion for reconsideration and evaluate its entitlement to fees incurred on appeal.
Brader is entitled to its appellate fees. First, the statute underlying the cause of action in this case allows fees to the "prevailing party". It is clear that this court may extend a party's statutory entitlement to attorney fees to those billings accrued on appeal. Brader's unsuccessful cross appeal does not deprive it of its status as prevailing party, as the trial court's disposition on the merits remains undisturbed.
Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 825, 828 P.2d 549 (1992).
Second, fees are available under FIPA although Minute Muffler's appeal concerns the entitlement to trial fees and costs and not the underlying FIPA claim itself. The Supreme Court has adopted the federal rule that "time spent on establishing entitlement to, and amount of, a court awarded attorney fee is compensable where the fee shifts to the opponent under fee shifting statutes." The Court awarded fees for time spent establishing the value of work performed on a commissive waste claim. Federal cases cited for the adopted rule involve statutes protecting an important public interests such as civil rights. We hold that FIPA is the type of public interest fee shifting statute contemplated by this rule: Lawsuits under the Act protect more than the plaintiff's private contractual interests by deterring and policing "unfair and deceptive acts" affecting the public welfare. Accordingly, we grant the motion for reconsideration and award appellate fees for Brader's successful defense of Minute Muffler's challenge to its fee award.
Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wash.2d 364, 378, 798 P.2d 799 (1990).
Fisher Properties, 115 Wash.2d at 378, 798 P.2d 799. See also Martinez v. City of Tacoma, 81 Wash.App. 228, 245-46, 914 P.2d 86 (1996) (granting appellate fees to a civil rights plaintiff/appellant where the sole issue on appeal was the trial court's valuation of reasonable attorney fees).
See Daly v. Hill, 790 F.2d 1071, 1080 (4th Cir.1986).
See RCW 19.100.190; Laws of 1972, Ex.Sess., ch. 116, § 17 ("This act is necessary for the immediate preservation of the public peace, health and safety....").
MINUTE MUFFLER
RAP 18.1 strictly requires separate briefing on the issue of attorney fees. In the opinion, we refused to address Minute Muffler's claim for fees in defending Brader's cross appeal because it did not comply with this rule. In this case, Minute Muffler requested fees as the prevailing party in a FIPA suit through the operation of CR 68. Because the court rejected Minute Muffler's interpretation of CR 68, a separate basis for the award of fees on the cross appeal was necessary. The cross respondent's brief provides no such basis or supporting argument. We hold that at minimum, separate argument is required for each claim where the basis for attorney fees is different. We therefore deny Minute Muffler's motion for reconsideration.
Appellant's Brief at 26-29.
/s/ William W. Baker, C.J.
/s/ Susan R. Agid, J.
/s/ Faye C. Kennedy, J. ORDER REVISING OPINION
The court having granted respondent's motion for reconsideration regarding the issue of attorney fees, it is hereby ordered that the opinion filed in this matter on May 6, 1996, 81 Wash.App. 532, 914 P.2d 1220, is amended as follows:
At page 8, line 8 of the opinion, [At page 538-539 of 81 Wash.App., and at page 1223 of 914 P.2d.] delete the first paragraph following roman numeral III, and insert the following:
We award Brader its attorney fees incurred in its defense of Minute Muffler's appeal under the FIPA attorney fee provision.
Except as herein modified, the court's opinion in this matter filed on May 6, 1996, is unchanged.