Opinion
No. 59537-7-I.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-08245-3, Richard A. Jones, J., entered January 24, 2007.
Reversed by unpublished opinion per Dwyer, J., concurred in by Schindler, C.J., and Becker, J.
Marcia Magee arrived at the office of Dr. David Allen, her psychiatrist of 16 years, for a therapy session associated with an ongoing sexual assault lawsuit against her former employer. The session never took place. Allen had obtained a protection order against Magee following an episode in which Magee threw things and screamed threats at him. Following service of the protection order by the police, Magee refused to voluntarily leave Allen's office. Magee then assaulted a police officer and was arrested.
Subsequently, Magee brought this malpractice action against Allen alleging, among other claims, that he "violated his duty to the plaintiff by arranging to have her arrested in his office." In his answer, Allen asserted the statutory affirmative defense set forth in RCW 4.24.510, which provides that a person may not be held liable for communicating to a government agency matters within that agency's jurisdiction. A party "prevailing on the defense" set forth in RCW 4.24.510 is entitled to an award of reasonable attorney fees and $10,000 in statutory damages. The trial court subsequently granted Magee's motion for dismissal without prejudice. The court nonetheless later entered an order requiring Magee to pay to Allen $10,000 in statutory damages and $740.10 in attorney fees pursuant to RCW 4.24.510.
The sole issue before us is whether a defendant has prevailed on the affirmative defense set forth in RCW 4.24.510, thus allowing for an award of attorney fees and statutory damages, where the plaintiff has voluntarily dismissed all of the plaintiff's claims without prejudice and there is no adjudication of the merits of the asserted defense. We answer this question in the negative. Accordingly, we reverse.
Standard of Review
Whether statutory damages were properly awarded pursuant to RCW 4.24.510 is reviewed de novo on appeal. Skimming v. Boxer, 119 Wn. App. 748, 757, 82 P.3d 707 (2004). While the trial court's determination of the amount of attorney fees to be awarded is discretionary, Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987), the trial court must create an adequate record for review of fee awards, including findings of fact and conclusions of law. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). A trial court abuses its discretion in awarding attorney fees if its award "is manifestly unreasonable or based upon untenable grounds or reasons." Zink v. City of Mesa, 137 Wn. App. 271, 277, 152 P.3d 1044 (2007). "Untenable reasons include errors of law." Council House Inc. v. Hawk 136 Wn. App. 153, 159, 147 P.3d 1305 (2006).
Analysis
RCW 4.24.510 provides immunity from civil liability to any person who communicates or complains to his or her government concerning issues of public interest or social significance, if the communication is to a public officer who is authorized to act upon it. Right-Price Recreation, L.L.C. v. Connells Prairie Cmty. Council 146 Wn.2d 370, 383, 46 P.3d 789 (2002). The intent of the statute is to encourage citizens to report potential wrongdoing by providing immunity from the deterrent threat of a civil action brought in response to the report. RCW 4.24.500; Kauzlarich v. Yarbrough, 105 Wn. App. 632, 650-51, 20 P.3d 946 (2001).
The cost of defending against a civil suit based on a protected communication can be "severely burdensome." RCW 4.24.500. As a result, RCW 4.24.510 provides for an award of attorney fees and statutory damages to parties who successfully defend such suits:
A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars. Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.
RCW 4.24.510. The statute applies when communication to a government official, intended to influence governmental action, results "`in (a) a civil complaint or counterclaim (b) filed against nongovernment individuals or organizations . . . on (c) a substantive issue of some public interest or social significance.'" D.W. Close Co. v. Dep't. of Labor Indus., Wn. App., 177 P.3d 143, 153 (2008) (quoting Right-Price Recreation 146 Wn.2d at 382).
The defense of immunity set forth in RCW 4.24.510 is an affirmative defense. As such, the burden of proof is placed on the party asserting it. Olpinski v. Clement, 73 Wn.2d 944, 950, 442 P.2d 260 (1968); Locke v. City of Seattle, 133 Wn. App. 696, 713, 137 P.3d 52 (2006), aff'd, 162 Wn.2d 474, 172 P.3d 705 (2007). Thus, it was incumbent upon Allen to prove that his communication to a government official resulted in a civil complaint filed against him on a substantive issue of public interest or social significance before the trial court could properly rule that RCW 4.24.510 applied, or before the fees or statutory damages allowable under the statute could be awarded. See Trummel v. Mitchell, 156 Wn.2d 653, 676-77, 131 P.3d 305 (2006) (where evidence failed to prove necessary elements allowing for application of RCW 4.24.510, no basis for an award of attorney fees or statutory damages existed). The record herein is void of evidence or analysis concerning whether the statute applied. There is also no indication whatsoever that the basis for Magee's dismissal was Allen's assertion of the affirmative defense set forth in RCW 4.24.510.
Despite the lack of any indication that Allen met his burden of proving the affirmative defense, Allen contends that, because Magee dismissed her claims, he is the "prevailing party" with respect to that affirmative defense. Magee's complaint against Allen alleged that "Dr. Allen further violated his duty to the plaintiff by arranging to have her arrested in his office." It is conceivable that, but for her voluntary dismissal, the statute would have applied under the factual allegations of Magee's complaint. However, Magee correctly contends that the trial court improperly awarded fees and damages pursuant to the statute because, as a result of her voluntary dismissal, there was no adjudication of the merits of the defense. RCW 4.24.510 provides that an award of attorney fees and statutory damages is allowed only to a party who prevails on the particular defense set forth therein following an adjudication on the merits of the defense — not simply to the party who prevails in the action.
As a general rule, a voluntary dismissal will not result in there being any prevailing party to whom costs or attorney fees may be awarded. 14A Karl B. Tegland, Washington Practice: Civil Procedure § 36.8, at 524-25 (1st ed. 2003 Supp. 2007, at 83). However, some recent cases have departed from this rule, holding that the defendant is regarded as having "prevailed" for purposes of an award of attorney fees and costs when the plaintiff takes a voluntary dismissal pursuant to CR 41. Tegland, supra, 2007 Supp. at 83 (citing Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 69 P.3d 895 (2003)). These cases reason that, where the statutory authority for an award of fees or damages is based on a defendant prevailing in the action, such an award may be justified by a plaintiff's voluntary dismissal. See e.g., Andersen v. Gold Seal Vineyards Inc. 81 Wn.2d 863, 865, 505 P.2d 790 (1973); Allahyari v. Carter Subaru, 78 Wn. App. 518, 524, 897 P.2d 413 (1995); Walji v. Candyco, Inc., 57 Wn. App. 284, 287-88, 787 P.2d 946 (1990).
An award of statutory fees and damages must, however, be supported by statutory authority for such an award. Anderson, Allahyari, and Walji do not control the resolution of this case because each statute or fee provision considered in those cases authorized an award of fees to the prevailing party in the action, not an award of fees to a party who has prevailed on the specific defense in question. The significance of the legislature's use of different language in RCW 4.24.510, authorizing a fee award only where a defendant has prevailed on the defense, cannot be ignored. The particular statutory language allowing for an award of fees and damages in each statute must be analyzed to determine whether, given the facts and circumstances presented, such fees should be awarded. See Cork Insulation Sales Co. v. Torgeson, 54 Wn. App. 702, 706, 775 P.2d 970 (1989) (holding that prior cases awarding statutory fees and costs are distinguishable on the basis that they dealt with statutes other than the particular statutory fee provision in question).
The trial court must consider each claim for statutory fees or damages, and the statutory or contractual basis for each claim, to determine whether an award of fees is justified. See Gausvik v. Perez, 396 F. Supp. 2d 1173 (E.D. Wash. 2005). In Gausvik, the plaintiff brought suit against several defendants, alleging violation of his constitutional rights following the filing of charges against him alleging six counts of child molestation and rape of a child, and the subsequent dismissal of those charges. One defendant filed a counterclaim against Gausvik alleging malicious prosecution. In reply, Gausvik alleged immunity pursuant to RCW 4.24.510. The counterclaim was dismissed on summary judgment against the defendant. Following dismissal of the claims against him, Gausvik asserted that he was entitled to an award of attorney fees and statutory damages pursuant to RCW 4.24.510. The federal district court held that because Gausvik did not prevail on the affirmative defense of immunity pursuant to RCW 4.24.510, he was not entitled to award of fees and statutory damages even though he was the prevailing party in the action. Gausvik, 396 F. Supp. 2d at 1177.
The federal district court's ruling in Gausvik was correct. The ruling is consistent with our previous holding that, where several defendants successfully proved immunity from liability pursuant to RCW 4.24.510, the allowable fees and damages under that statute were segregable from fees incurred unsuccessfully defending against other claims. Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 690-91, 82 P.3d 1199 (2004). The court's holding affirms the tenet that the prevailing party in an action is entitled to allowable fees and costs and that each claim for fees must be reviewed to determine whether such fees are allowable given the circumstances of the case. Loeffelholz, 119 Wn. App. at 690.
Similarly, in Gilman v. MacDonald, 74 Wn. App. 733, 875 P.2d 697 (1994), this court examined the propriety of an award of attorney fees and statutory damages pursuant to RCW 4.24.510 where the affirmative defense of immunity was alleged in response to a defamation action. In that case, the defendant's motion for summary judgment, premised upon RCW 4.24.510, was granted as to some claims and not granted as to others. The trial court ruled that the question of the defendant's "good faith" in communicating with the government agency was to be decided pursuant to a "negligence" standard rather than an "actual malice" standard, as urged by the defendant. Applying this negligence standard, the trial court declined to grant summary judgment to the defendant as to several of the communications, reserving "the issue of attorney fees for trial." Gilman, 74 Wn. App. at 736.
After the trial court reserved its decision on the summary judgment motion, the plaintiff "moved for and was granted voluntary nonsuit under CR 41(a)(1)(B) as to the claims that survived MacDonald's motion for summary judgment." Gilman, 74 Wn. App. at 736. MacDonald then brought a motion again seeking an award of attorney fees. From the order denying this motion, MacDonald appealed to this court. We held that the order was appealable, Gilman, 74 Wn. App. at 737, and that the trial court had erred by applying a negligence standard. Gilman, 74 Wn. App. at 738-40. We remanded the matter for an award of fees.
Our decision today is consistent with Gilman. In Gilman, the applicability of RCW 4.24.510 was litigated. We reversed because the trial court applied the wrong legal standard. However, no such litigation took place herein.
The holdings in Gilman and Loeffelholz are also in accord with CR 41(a), which allows a plaintiff to voluntarily dismiss an action. The rule provides that if the plaintiff has previously dismissed any federal or state court action based on the same claim, a notice of dismissal operates as adjudication on the merits. CR 41(a)(4). Otherwise, the dismissal is without prejudice, and is not representative of adjudication on the merits. CR 41(a)(4). Further, CR 41 does not require an allegation by the moving party of the reason or basis for voluntary dismissal. Magee's motion to dismiss her action without prejudice pursuant CR 41(a) was granted by the trial court without a finding as to the basis or reasoning for its order. Thus, there was no basis for the court to infer that, as a result of such dismissal, Allen had prevailed on the defense set forth in RCW 4.24.510. Hence, there was no basis for the trial court to subsequently award fees and statutory damages pursuant to that statute.
Where, as under RCW 4.24.510, an award of attorney fees or statutory damages are allowed to a party that has "prevailed upon the defense," such fees and damages are allowable only upon an adjudication of the merits or upon sufficient evidence to otherwise support a trial court's finding that the defendant prevailed on the particular defense. Here, although Allen is the "prevailing party" in the action as a result of Magee's voluntary dismissal, there is no basis in the record to justify a finding that he prevailed on the defense set forth in RCW 4.24.510. Accordingly, Allen was not entitled to an award of attorney fees and statutory damages pursuant to that statute. Reversed.