Opinion
No. 64308-8-I.
Filed: February 28, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-2-03951-6, Steven C. Gish, J. Pro Tem., entered September 16, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Ellington, J., concurred in by Grosse and Schindler, JJ.
Helen Feiger brought an unlawful detainer action against Tony and Anna Pratt in March 2009. The parties settled in open court the following July, with the Pratts agreeing to pay the full amount requested in Feiger's complaint, including attorney fees through June 25, 2009. The questions here concern the subsequent award of attorney fees. The Pratts contend the award exceeded the agreement and was based upon an untimely motion. We hold the court did not err in ordering fees, but the Pratts are correct that the award included fees not contemplated by the agreement. We affirm in part, reverse in part, and remand.
FACTS
The Pratts fell behind in their rent, and Feiger filed an unlawful detainer action seeking $3,750 in past due rent, per diem rent thereafter, and other costs and fees. On June 25, 2009, the Pratts presented a CR 68 offer of judgment for the full amount demanded in the complaint, including the prorated rent accrued during April and "court costs and reasonable attorney's fees . . . as of the date of this offer, as determined by the court."
Clerk's Papers (CP) at 89.
On July 7, in open court, counsel for Feiger accepted the Pratts' offer of judgment on the condition his client could seek sanctions against the Pratts for allegedly frustrating discovery. The court clarified the parties' agreement that the Pratts would pay the full amount requested in the complaint, and issues still to be determined were the amount of costs and reasonable attorney fees through June 25, 2009, plus the question of sanctions.
On August 5, 2009, the court entered judgment entitling Feiger to the full amount requested in her complaint, totaling $4,916.76, and noting Feiger would "seek an award of attorney fees, costs, and sanctions in an amount to be determined by the court" and "a separate judgment will be entered after the attorneys [sic] fee motion is brought."
CP at 88.
That same day, the court heard and took under advisement Feiger's motion to determine the reasonableness of her attorney's rate of $230 per hour. Nineteen days later, on August 24, 2009, the court entered an order finding Feiger's fees reasonable. The court mailed the order to both parties on August 25, 2009.
On September 8, 2009, 15 days after entry of the order finding Feiger's attorney fees reasonable, the Pratts filed a motion for an order directing the clerk to tax costs and disbursements pursuant to CR 54(d)(1). The Pratts' motion asserted that Feiger had forfeited her right to attorney fees and costs by failing to file a motion within 10 days of entry of judgment as required by CR 54(d)(2). The same day, Feiger filed her motion for fees and costs.
The court denied the Pratts' motion and granted Feiger's, awarding attorney fees totaling $21,282 and costs totaling $1,621.85. These included Feiger's fees and costs up to the date of entry of judgment, August 5, 2009.
This matter was somewhat complicated by transfer of the proceedings between Snohomish and Skagit counties. Those details are not relevant to our determination and are not enumerated here.
The Pratts appeal the fees award, arguing that the court should have ordered the clerk to tax statutory costs and disbursements and should have denied Feiger's motion because it was not filed within 10 days of entry of judgment. Finally, the Pratts contend that even if an award of fees was proper, the court erred by awarding fees incurred after June 25, 2009, which was the last date for fees as agreed by the parties.
The Pratts also ask us to strike Feiger's brief under RAP 10.7. Feiger requests permission to submit additional evidence. Both parties seek fees on appeal.
DISCUSSION
"Application of a court rule to a particular set of facts is a question of law reviewed de novo." We interpret court rules using the rules of statutory construction. If the meaning is plain, we follow that plain meaning. If the language has more than one reasonable interpretation, it is ambiguous and we employ various rules of statutory interpretation to discern the drafters' intent. We construe a rule so as to effectuate that intent, avoiding a literal reading if it would result in unlikely, absurd, or strained consequences.
Corey v. Pierce Cnty., 154 Wn. App. 752, 773, 225 P.3d 367, review denied, 245 P.3d 775 (2010).
Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001).
Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005).
Whatcom Cnty. v. Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
Id.
CR 68 provides that a party accepts an offer of judgment by communicating acceptance in writing within 10 days of receipt of the offer. That did not occur here. Rather, the parties entered into a stipulation in open court. Such stipulations are binding under CR 2A. The agreement was summarized by the court as follows:
Under the federal rules of civil procedure, when a defendant offers to satisfy the plaintiff's entire demand under CR 68, a plaintiff may no longer pursue litigation of the matter. Wilner v. OSI Collection Servs., Inc., 198 F.R.D. 393, 394-95 (S.D.N.Y. 2001). The Pratts ask us to adopt the federal interpretation. Because Feiger voluntarily agreed to settle, we do not address this issue.
Well, let's put that on the record then[,] . . . settle this in the amount of $3,750 . . . [p]lus . . . $41.67 per day thereafter until the premises was vacated. . . . The issues that are still on the table . . . are court costs, reasonable attorney's fees incurred in this action to the date of the offer which is June 25th, and the issue of sanctions. . . . [I]s that what we're agreeing on?
CP at 168.
The judgment entered August 5 reiterates those terms.
The basis for the fees award was the agreement, which clearly called for reimbursement of Feiger's fees through June 25, 2009. Thus the court erred when it awarded fees for services thereafter.
The Pratts contend, however, that the entire award was error because the fees motion was untimely. They contend Feiger forfeited any claim for costs and fees by failing to file a cost bill or motion for attorney fees within 10 days, by August 17. Alternatively, they argue that even if the 10 day time limit began to run on August 24 when the court ruled on Feiger's reasonableness motion, Feiger still failed to file a motion for attorney fees within 10 days, by September 3.
If the last day of a prescribed period of time falls on a Saturday, Sunday, or legal holiday, that period extends to the next workday. CR 6(a).
CR 54(d) provides rules for requesting costs, disbursements, and attorney fees and expenses:
(1) Costs and Disbursements. Costs and disbursements shall be fixed and allowed as provided in RCW 4.84 or by any other applicable statute. If the party to whom costs are awarded does not file a cost bill or an affidavit detailing disbursements within 10 days after the entry of the judgment, the clerk shall tax costs and disbursements pursuant to CR 78(e);
(2) Attorneys' Fees and Expenses. Claims for attorneys' fees and expenses, other than costs and disbursements, shall be made by motion unless the substantive law governing the action provides for the recovery of such fees and expenses as an element of damages to be proved at trial. Unless otherwise provided by statute or order of the court, the motion must be filed no later than 10 days after entry of judgment.
Thus entry of judgment triggers a 10 day time limit for a motion to recover attorney fees and expenses. Feiger did not file her motion within 10 days after entry of judgment. Nevertheless, we hold the trial court properly exercised its discretion when it granted Feiger's motion.
Under CR 78(e), costs and disbursements are the statutory attorney fees, clerk's fee, and sheriff's fee.
First, CR 54(d)(2) gives the court discretion to enlarge the 10 day time limit. The deadline applies "[u]nless otherwise provided by . . . order of the court." CR 6(b), which addresses the court's discretion to extend deadlines, lists rules for which the court may not enlarge a period of time. CR 54(d) is not among them. Implicit in the court's ruling here is an extension of time to the extent required.
Second, the 10 day time limit under CR 54(d)(2) is "intended to prevent parties from raising trial-level attorney fee issues very late in the appellate process, sometimes after one or all appellate briefs have been submitted." It is unlikely the Supreme Court contemplated the 10 day time limit as a means of denying the prevailing party the remedy to which she is entitled.
4 Karl B. Tegland, Washington Practice: Rules Practice § 54, Supp. 40 (5th ed. 2006 Supp. 2010) (drafters' comment on 2007 amendment to CR 54(d)(2)). The drafters also note intent to harmonize the language of the applicable civil rules with each other and with the relevant statutes (particularly RCW 4.84.010, .030, .090). Id.
See Mitchell v. Wash. State Inst. of Public Policy, 153 Wn. App. 803, 823, 225 P.3d 280 (2009) (discussing CR 78(e)) (absent clear language to the contrary, court would not apply rule mechanically to deprive a litigant of costs to which he is justly entitled or to enrich a litigant with costs he has unjustly secured), review denied, 169 Wn.2d 1012 (2010).
Additionally, starting the process with a motion to determine the reasonableness of hourly rates was logical here given the litigation history. The Pratts had repeatedly contested the reasonableness of Feiger's attorney's rates, and Feiger reasonably anticipated this would continue. Feiger could have combined the two motions, but the trial court entertained and ruled upon Feiger's preliminary reasonableness motion, which it surely would not have done if it believed the CR 54(d)(2) 10 day time limit would render its order moot.
The Pratts deny contesting the reasonableness of Feiger's fees. The record shows otherwise. See Report of Proceedings (May 7, 2009) at 33 (Pratts suggest the court impute Feiger's attorney's rates at $175 per hour, or conduct a reasonableness analysis of $230 per hour); CP at 372-74 (6/23/09: Pratts insist Feiger comply with Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632 (1998) (providing test for reasonableness of attorney fees)); CP at 313 (7/13/09: Pratts attack declarations in support of Feiger's reasonableness motion); CP at 262, 268-69 (8/3/09: Pratts point out Feiger's alleged failure to comply with Mahler and suggest the court impute a $200 per hour rate).
Finally, a fees award was explicitly agreed to by the parties. The Pratts' interpretation of the rule would result in failure of the settlement agreement. They seek only to avoid paying fees they agreed to pay, not to return the parties to the status quo before the settlement. CR 54 was not intended to enable such an inequitable result.
Feiger filed her motion for costs and attorney fees 15 days after the order regarding attorney rates and the court ruled the motion timely. This neither evaded the intent of the rule nor prejudiced the Pratts in any way. There was no error.
The motion was either 5 days late if the 10 day time period started on entry of the order regarding reasonableness of attorney rates, or 24 days late if the 10 day time period started on entry of judgment. Findings about this particular issue are not necessary for a resolution in this case.
Other Issues
Feiger filed with this court a document entitled "Trickler Declaration on Motion to Court of Appeals." It was not a part of the record below. Feiger cites to the declaration throughout respondent's brief, and now asks this court to receive it as additional evidence under RAP 9.11. We decline to do so. The document does not satisfy the requirements of RAP 9.11(a), and it is highly unlikely the declaration, if considered, would have any bearing on the issues before this court, which can be resolved without reference to it.
In part because of Feiger's references to the declaration in her brief, the Pratts ask this court to strike her brief for noncompliance with RAP 10.3 and 10.4. RAP 10.3(a)(5) requires a reference to the record for each factual statement. RAP 10.4(f) suggests references to the record designate the page and part of the record. A brief may be improper if it does not conform to the rules governing content, preparation, and filing of a brief under RAP 10.3 or 10.4. We may (1) order an improper brief returned for correction or replacement within a specified time; (2) order an improper brief stricken from the files with leave to file a new brief within a specified time; or (3) accept the brief. We are not obliged to strike an improper brief, and we decline to do so here.
See, e.g., Nelson v. McGoldrick, 127 Wn.2d 124, 141, 896 P.2d 1258 (1995) (court struck portions of a brief for failure to support factual assertions with citations to court record).
RAP 10.7.
See State v. Hensler, 109 Wn.2d 357, 359, 745 P.2d 34 (1987) (court criticized counsel for failing to cite to the record but nonetheless reviewed the entire record to reach the merits).
Feiger's citations to the record, while not in perfect conformance with RAP 10.3(a)(5) and 10.4(f), are sufficient to verify each relevant factual statement. Feiger's references to the declaration, while improper, are irrelevant to the resolution of the issues before us. Striking the entire brief would be a disproportionate sanction and would hamper our determination of the case.
Feiger cites to "Trickler Declaration on Motion to Court of Appeals" 10 times in the respondent's brief (on pages 6, 8, 9 (twice), 11, 14, 15, 20, and 23 (twice)).
Attorney Fees
The Pratts request attorney fees under RCW 4.84.330 as the prevailing party on appeal. When both parties prevail on a major issue, neither is a prevailing party entitled to attorney fees. Because the Pratts prevail on only one issue (attorney fees should have been awarded only through June 25, 2009), they are not "the prevailing party."
The record includes an addendum to the parties' lease agreement that provides the Pratts will pay all legal costs associated with vacating eviction (signed only by the Pratts). See CP at 118. The Pratts included this addendum in the appendix of appellant's brief. Feiger moves this court to strike that portion of appellant's brief. For reasons unknown, both parties believe this document is not part of the record. See Resp't Br. at 42; Reply Br. of Appellant at 18; see also January 29, 2010 entry by Commissioner Ellis denying appellant's motion to supplement the record. However, it was included with a document designated on appeal.
Hertz v. Riebe, 86 Wn. App. 102, 105, 936 P.2d 24 (1997).
Feiger asks this court to award attorney fees for a frivolous appeal. An appeal is frivolous if, considering the entire record, the court is convinced the appeal presents no debatable issues upon which reasonable minds might differ, and the appeal is so devoid of merit that there is no possibility of reversal. All doubts as to whether an appeal is frivolous should be resolved in favor of the appellant. The Pratts prevail on one issue and their appeal is clearly not frivolous.
See RAP 18.9(c)(2); see also Reid v. Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004).
Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005).
Id.
We remand for an award of attorney fees to Feiger consistent with the parties' settlement agreement, and otherwise affirm.
WE CONCUR: