Opinion
No. 51547-1-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-2-05033-4. Judgment or order under review. Date filed: 11/18/2002. Judge signing: Hon. David F Hulbert.
Counsel for Appellant(s), Catherine Wright Smith Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent(s), Elizabeth Evelyn Ehrhart, Attorney at Law, 1420 5th Ave Ste 3400, Seattle, WA 98101-4010.
Rachel W. McCall, Dorsey Whitney LLP, 1420 5th Ave Ste 3400, Seattle, WA 98101-4010.
Randall Robert Steichen, Dorsey Whitney LLP, Us Bank Bldg Center, 1420 5th Ave Ste 4200, Seattle, WA 98101-2375.
Cedar Plaza brought an unlawful detainer action against Quality Food Centers, Inc. (QFC). The trial court ruled in favor of QFC and, pursuant to a provision in the parties' lease, awarded QFC attorney fees and costs. Cedar Plaza argues on appeal that the court's award of attorney fees and costs to QFC should have been discounted. We affirm in part and reverse in part.
FACTS
Cedar Plaza, LLC (Cedar Plaza) and Quality Food Centers, Inc. (QFC) are parties to a 1979 lease agreement between their predecessors whereby QFC operates a grocery store at the Cedar Plaza Shopping Center in Mountlake Terrace. Under the terms of the lease, QFC pays Cedar Plaza $16,771.25 monthly in rent. The lease was in its 23rd year of an original 30-year term at the time this dispute arose. It provides QFC with the option of renewing the lease for five additional periods of five years each at the end of the 30-year term. Paragraph 24.1 of the lease states: In the event of any controversy, claim or dispute arising out of or relating to this Lease, or the method and manner of performance thereof, or the breach thereof, said controversy, claim or dispute shall be resolved in the Superior Court of the State of Washington for King County. The prevailing party in the controversy, claim or dispute shall be awarded by the court, in addition to any other relief, a reasonable sum as attorney's fees and costs. In determining what is a reasonable sum as attorney's fees and costs, the actual amount of the attorney's fees and costs the prevailing party is obligated to pay to his attorney or attorneys shall be presumed to be reasonable, which presumption shall be rebuttable. In the event neither party wholly prevails, the court shall award to the party whose position is determined to be comparatively correct an equitable portion of the attorney's fees and costs to which the party would have otherwise been entitled had the party wholly prevailed. (Emphasis added).
The 1979 lease has been assigned several times. Cedar Plaza became the landlord, and QFC the tenant of the premises, in 1996 and in 2000, respectively.
Article 8 of the lease governs "adjustments," and includes a provision under which QFC is to pay Cedar Plaza variable common area maintenance (CAM) charges. An increase in the CAM charges that Cedar Plaza assessed QFC in 2000 were in dispute in the underlying action. In May 2001, QFC received its 2000 CAM reconciliation statement and questioned the CAM charges for the following reasons: (1) the 2000 CAM charges were 50 percent higher than the previous year's charges; (2) the charges were more than double the CAM charges for any of its other stores in Snohomish County; and (3) the increased CAM charges coincided with Cedar Plaza's construction work on Cedar Plaza.
In its trial brief, QFC states that it paid an average of $51,000 in CAM charges for its Cedar Plaza store "[f]or the past 5 years, or $1.37 per square foot." In contrast, 2000 CAM charges for QFC's Cedar Plaza store amounted to $2.41 per square foot. By comparison, QFC paid an average of $1 per square foot in CAM charges for its 10 other Snohomish county stores, with the highest average for other stores at $1.33 per square foot. QFC's accounting expert, Alan Jacobson, estimated that the 2000 CAM charges should have been $48,415. At the time of litigation, QFC had paid $57,537.12 in 2000 CAM charges, and deposited an additional $38,982.74 in disputed charges into the Court Registry.
The parties made abortive attempts to settle their dispute over the next six months. These culminated when, in November 2001, Cedar Plaza provided QFC with some receipts and other documentation supplementing the 2000 CAM charges. Three days later, Cedar Plaza served QFC with a "pay rent or quit premises" letter, and filed an unlawful detainer action, requesting that the court either order QFC to pay the increased CAM charges, or evict QFC. At a March 6, 2002 show cause hearing, the court found that issues of fact precluded an immediate finding of unlawful detainer and set the case for trial. Also on March 6, QFC voluntarily paid $38,982.74, the amount of disputed 2000 CAM charges, into the court registry.
The court also denied QFC's motion to dismiss. The motion was based on the forum-selection provision of the parties' lease, which stated that the venue for any lawsuits between the parties was King County Superior Court. QFC does not cross-appeal the trial court's denial of its motion to dismiss on appeal.
Following a non-jury trial in May 2002, the court issued a memorandum decision on June 12, 2002, that stated in part:
The lease is the central document and controls the respective duties of the parties. The Plaintiff, Cedar Plaza has sought eviction and multiple forms of economic damages as a result of what the Plaintiff characterizes as unlawful detainer and breach of the lease.
This Court is unable to determine from the evidence whether or not QFC violated the lease and/or was unlawfully in possession of the subject premises. The records of Cedar Plaza are inadequate, inconsistent, and, at times, indecipherable. Furthermore, on those occasions when the records may appear to be helpful they fail to support the claims of the Plaintiff by a preponderance of the evidence.
As the Defendant's closing statement indicates, quite often the financial records of the Plaintiff raised more questions than they answered. The bookkeeping system is based upon unreliable accounting/bookkeeping practices and do not serve to establish a basis for the Plaintiff's claims.
In addition, as alluded to above on two occasions where the Court was able to decipher the records and business practices of the Plaintiff, it appears to this Court that many of the claimed CAM charges were improperly assessed or were excessive.
The deferred maintenance theory advanced by the Plaintiff does not explain the discrepancies discussed above. Furthermore, the timing of the new renovation and construction project coinciding with the increased CAM charges is troublesome and again is not clarified or sufficiently explained by the evidence produced in Court.
The Court further finds that the actions of QFC in seeking further information on the new CAM was prudent and not in violation of any fair reading of the lease.
Evidence in this case which initially suggested that the parties had indeed reached an agreement on the CAM charges was rebutted successfully by the Defendant. Initial payments of the CAM charges were a good faith gesture by the Defendant undertaken at a time when the Defendant reasonably anticipated receipt of final accounting documents in support of the Plaintiff's claims. The evidence in this case is clear that those documents were either never received or were prepared in a form which does not meet basic bookkeeping standards.
In conclusion, the Plaintiff has failed to meet its burden of proof and its claims are denied. The tenancy of QFC continues and the Defendant is entitled to judgment as follows:
QFC owes no additional CAM charges for 2000. QFC is entitled to a refund of $4640.27 for 2001 CAM charges along with Defendants' reasonable attorney's fees and costs.
(Emphasis in original). The trial court also released to QFC its funds in the court registry.
QFC filed a memorandum in support of attorney fees and costs and release of money deposited into the court registry on June 21, 2002. It requested that the trial court enter an order that QFC was entitled to the following fees and costs:
Attorney [time]: $138,868.00 +Paralegal fees: $13,260.00 [Subtotal:] $152,128.00
Most of this time was charged by Rachel McCall, a senior associate with eight years of litigation experience. McCall's rate was $260 per hour. A senior partner billed hours at $390 per hour. An associate's rate was $180 per hour. The paralegal's rate was $130 per hour.
[Fees Costs]: Fax Charges: $195.02 [LD Phone] Charges: $27.24 Copy Charges: $5,562.50 Westlaw Charges: $203.24 Filing Fee: $110.00 Messenger Charges: $337.00 Supply Charges: $465.20 Postage Charges: $93.62 [Meal] Charges: $158.96 [Ct.] Reporter Charges: $3069.80 Travel Charges: $25.44 Exp. Witness [Fees]: $8,215.00 [Subtotal:] $18,463.02
Alan Jacobson, Certified Public Accountant, hired by QFC to determine what a fair amount for 2000 CAM charges would total, charged this amount for his services and expenses.
[Total:] $170,591.02 [$152.128.00 + $18.463.02]
A hearing on fees and costs was scheduled for September 2002. Cedar Plaza does not dispute QFC's allegation that the hearing was rescheduled for November 15, 2002, at Cedar Plaza's request. On November 8, 2002, QFC filed a supplemental declaration requesting $8,703.50 in additional fees and $6,011.13 in additional costs incurred subsequent to the trial court's decision.
The record contains no documents establishing that the hearing was rescheduled for November 15, 2002.
On November 6, 2002, Cedar Plaza filed an objection to the trial court's findings of fact, conclusions of law, and to the amount of QFC's requested costs and fees. Cedar Plaza's objection to QFC's request included the following grounds: (1) QFC's proposed fees and costs were almost five times the monetary amount at stake and almost four times the amount of fees and costs incurred by plaintiff's counsel; (2) QFC's requests were for duplicative work performing "relatively simple tasks; and (3) QFC included costs for charges relevant in a pending action between the parties in King County Superior Court. Cedar Plaza contends that QFC's reasonable fees should not exceed $38,982.74, and costs should not exceed $3,516.80.
Cedar Plaza appears to agree to this amount in fees based on statutory recognition that as the prevailing party QFC is entitled to court reporter fees. See, e.g., RCW 30.60.60.
On November 13, 2002, QFC filed a reply in support of request for attorney fees. QFC agreed to withdraw its request for $6,519.00 of its fees and costs associated with its pending King County action and its March 2002 motion to dismiss. The trial court struck QFC's reply as untimely. The attorney fee and costs hearing, originally scheduled for September 2002, was held on November 15, 2002. At that presentation hearing, the court heard the parties' arguments regarding the underlying detainer action and the amount of fees and costs to which QFC was entitled. Following the November 15 hearing, the trial court entered the following findings of fact and conclusions of law on the issue of fees and costs:
The trial court's findings of fact and conclusions of law are the only documentation of the November 15, 2002 presentation hearing included in the record on appeal.
I. FINDINGS OF FACT
. . . .
3. Cedar Plaza brought this unlawful detainer action requesting the Court to either order QFC to pay [CAM] charges or to evict QFC from the Shopping Center. The lease agreement dated June 18, 1979, governs and controls the respective duties of the parties.
4. The records of Cedar Plaza are inadequate, inconsistent, and at times, indecipherable. On those occasions when the records may appear to be helpful, they fail to support the claims of Cedar Plaza by a preponderance of the evidence. Often Cedar Plaza's financial records raise more questions than they answer.
5. QFC was prudent and not in violation of any fair reading of the Lease in seeking further information on the CAM charges.
6. Initial installment payments of the additional CAM charges were a good faith gesture by QFC. At the time the initial payments were made, QFC reasonably anticipated receipt of final accounting documents from Cedar Plaza that would fully support the additional CAM charges. The final accounting documents were either never received by QFC or were prepared in a form which does not meet basic bookkeeping standards.
7. QFC and Cedar Plaza did not reach an agreement on the CAM charges.
8. At the Show Cause Hearing on March 6, 2002, QFC voluntarily paid the entire amount in dispute into the Court Registry.
9. Cedar Plaza has failed to meet its burden of proof and its claims are denied.
II. CONCLUSIONS OF LAW
. . . .
2. In an action for unlawful detainer, the burden is upon the plaintiff to prove, by a preponderance of the evidence, his/her right to possession. Duprey v. Donahoe, 52 Wn.2d 129, 135 (1958). When the possession of the tenant is originally lawful, it is so presumed until the contrary is shown. Id. Cedar Plaza has failed to meet its burden of proof.
3. QFC is not in unlawful detainer.
4. QFC is entitled to a continuation of its tenancy.
5. Cedar Plaza is not entitled to additional CAM charges for the year 2000.
6. QFC is entitled to a refund of $4,640.27 for 2001 CAM charges.
7. QFC is entitled to reasonable attorneys' fees and costs.
8. QFC is entitled to a refund of the $38,982.74 it deposited into the Court Registry at the Show Cause Hearing.
9. Cedar Plaza's Complaint is dismissed, with prejudice.
On November 18, 2002, the trial court entered an order stating that QFC was entitled to $154,312.50 in attorney fees and $24,364.15 ($178.676.65 total). The order also stated that Cedar Plaza was to pay QFC interest on the total award at the rate of 12 percent annually, from June 12, 2002, the date of the memorandum decision. The court entered final judgment on December 3, 2002. On appeal, Cedar Plaza does not contest that QFC prevailed in the underlying CAM charges action. Nor does it dispute that, pursuant to the parties' lease, QFC is entitled to reasonable attorney fees. Rather, at trial and here, Cedar Plaza argues that QFC's requested fees and costs are unreasonable.
ANALYSIS I. Calculation of Award
The parties do not dispute that this suit is an action based on their lease agreement or that QFC is entitled to reasonable attorney fees and expenses under the agreement. See, e.g., Sea-First v. Insurance Guar. Ass'n, 116 Wn.2d 398, 411, 804 P.2d 1263 (1991). Rather, Cedar Plaza asserts that QFC's attorney fees and costs request was unreasonable and should be discounted.
Cedar Plaza argues that QFC's award should have been discounted for the following reasons: (1) the underlying unlawful detainer action was a "garden-variety" suit and did not require the amount of legal expertise QFC's firm devoted to it; (2) there was needless duplication of effort; (3) QFC's success was limited, and related to another suit between the parties; (4) QFC's counsel charged substantially higher rates, and substantially more hours, than did Cedar Plaza's counsel; and (5) to date, QFC has paid only a small portion of its bill to its counsel. Cedar Plaza's delineation of how QFC's request was unreasonable, and should thus be discounted, is illustrative of the list of factors Washington courts have used to guide its determinations of what constitutes reasonable attorney fees and costs.
This court reviews the reasonableness of attorney fees awards under an abuse of discretion standard. . . . A trial court does not abuse its discretion unless the exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons. . . . This court has overturned attorney fees awards when it has disapproved of the basis or method used by the trial court, or when the record fails to state a basis supporting the award. Brand v. Dep't of Labor Indus., 139 Wn.2d 659, 665, 989 P.2d 1111 (citations omitted).
Washington courts have adopted the lodestar approach to determine attorney fee and cost awards. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 587-98, 675 P.2d 193 (1983). "The purpose of the lodestar is to provide an objective basis for assessing a reasonable fee." Bowers, 100 Wn.2d at 599. "Under this method, there are two principal steps to computing an award of fees. First, a `lodestar' fee is determined by multiplying a reasonable hourly rate by the number of hours reasonably expended on the lawsuit. Second, the "lodestar" is adjusted up or down to reflect factors, such as the contingent nature of success in the lawsuit or the quality of legal representation, which have not already been taken into account in computing the `lodestar' and which are shown to warrant the adjustment by the party proposing it." Bowers, 100 Wn.2d at 593-94 (quoting Miles v. Sampson, 675 F.2d 5, 8 (1st Cir. 1982) (emphasis omitted)).
A. Reasonableness of Attorney Fees
In this case, QFC submitted to the trial court invoices from its law firm in which it detailed the hours worked, the type of work performed, the category of the attorney who performed the work, and fees for non-lawyer services. QFC presented to the trial court a projection of the high financial stakes inherent in the outcome of the case. Based on its counsel's hours and expenses, QFC calculated a total for attorney fees and a total for costs. From this sum, QFC deducted $6,519.00 as the amount of attorney time spent on a separate legal matter in King County. The final amount of fees and costs QFC sought was $178,676.65. Rejecting Cedar Plaza's assertions that QFC's request was unreasonable, the trial court granted QFC the entire amount it requested less the amount that QFC indicated was duplicative of its King County claim. It thus is implicit that the trial court concluded that QFC was entitled to reasonable attorney fees and costs.
Cedar Plaza asserts that to support the trial court's award, QFC, in the body of its brief on appeal, improperly relies upon stricken materials and unpublished cases. QFC's reliance upon stricken materials was solely to illustrate that the trial court's order reflected that $6,519.00, the sum of its attorney fees for its King County action, was excluded from the trial court's final award determination. We note that the language of RAP 10.4(h) expressly prohibits citation as authority to unpublished opinions of the Court of Appeals. Unpublished materials are excluded under RAP 10.3(a)(7). RAP 10.3(a)(7) restricts the inclusion of materials not contained in the record on review to an appendix, and then, only with "permission from the appellate court, except as provided in rule 10.4(c)." RAP 10.3(a)(7). Cedar Plaza's point is well-taken, but in this case, is moot.
Absent from the trial court's findings of fact and conclusions, however, are its reasons underlying its award. Our courts have stated that "[t]o facilitate review, the trial court ought to state the reasons underlying the amount of the award." Key v. Cascade Packing, 19 Wn. App. 579, 585, 576 P.2d 929 (1978). Although fee decisions are entrusted to the discretion of the trial court, "we will exercise our supervisory role to ensure that discretion is exercised on articulable grounds." Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). Without such information, this court is "unable to determine whether the exercise of the trial court's discretion was `manifestly unreasonable or based upon untenable grounds or reasons.' . . . [It is], therefore, unable to judge whether the trial court abused its discretion." Brand, 139 Wn.2d at 674 (quoting Progressive Animal Welfare Soc'y v. University of Wash., 114 Wn.2d 677, 689, 790 P.2d 604 (1990)).
In this case, notwithstanding QFC's high financial stakes, the disparity in the number of attorney hours devoted to the case by QFC counsel and Cedar Plaza counsel raises particular concerns. QFC's counsel appears to have logged over 600 hours, at rates between $180 and $390 per hour, and several hours in paralegal fees, totaling $154,312.50, on the underlying case. In contrast, Cedar Plaza's counsel logged a total of 174.6 hours, at approximately $250 per hour, for a total of $44,380.81 on the case. Our concern is not QFC's use of different attorneys for different functions, but rather, the redundance of multiple attorneys present at the same proceedings in light of Cedar Plaza's apparent need for a single attorney for the same proceedings. The record shows, for example, that QFC's fee request included charges for three attorneys to meet to discuss the case on April 11; two attorneys to visit the shopping center on April 18; two attorneys to depose a witness; and four attorneys to attend the trial. We are not rejecting the amount of the trial court's award to QFC per se. However, the record contains facts sufficient to rebut the contractual provision that fees incurred shall be presumed to be reasonable. Accordingly, the trial court must undertake a reasonableness determination and enter findings to justify its award.
Neither party in this case or before the trial court, provides the precise number of hours for which QFC charged $154,312.50. The record does not permit us to perform precise arithmetical calculations, but we have established that Dorsey Whitney, QFC's counsel, submitted invoices to QFC for a total of 674.3 attorney hours between January 2002 and August 2002. We are unable to ascertain from the record precisely what number of hours of this total was deducted from QFC's final attorney request following its deductions for its King County action.
Our Supreme Court has stated that "[w]hile [a party's] documentation forms the starting point under the lodestar method, it is not dispositive on the issue of the reasonableness of the hours. . . . `[T]he trial court, instead of merely relying on the billing records of the plaintiff's attorney, should make an independent decision as to what represents a reasonable amount for attorney fees.'" Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 859 P.2d 1210 (1993) (quoting Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987)). "Courts must take an active role in assessing the reasonableness of fee awards, rather than treating cost decisions as a litigation afterthought. [They] should not simply accept unquestioningly fee affidavits from counsel." Mahler, 135 Wn.2d at 434-35 (citing Nordstrom, Inc., 107 Wn.2d at 744) (emphasis omitted). On remand, the trial court's findings should provide its rationale for arriving at its decision.
QFC asserts that the proper remedy is not remand, but for this court on appeal to determine whether the trial court's award was reasonable. The trial court's silence might allow this court to infer that the trial judge determined QFC's requested rates and hours as reasonable. Its silence, however, does not allow us to determine on review whether its reasoning in arriving at its conclusion was sound. The trial court is in a better position than we are to assess whether counsel's hours were duplicative or wasteful.
The trial court abused its discretion in failing to enter adequate findings of fact and conclusions of law. We vacate the fee award and remand for entry of findings of fact and conclusions of law and an appropriate award of fees.
B. Costs
Cedar Plaza also asserts that the trial court erred in awarding QFC general litigation expenses. Specifically, Cedar Plaza objects to the trial court's award of "expert fees" and other of QFC's costs, asserting that those costs were neither contemplated in the parties' lease, nor inclusive under RCW 4.84.010.
The parties' lease states that the prevailing party in a legal dispute is to receive "reasonable attorney fees and costs." In Ernst Home Cntr., Inc. v. Sato, 80 Wn. App. 473, 910 P.2d 486 (1996), we stated: The right to costs, generally, is statutory. See Gerken v. Mutual of Enumclaw Ins. Co., 74 Wn. App. 220, 231, 872 P.2d 1108, rev. denied, 125 Wn.2d 1005, 886 P.2d 1134 (1994). However, this is true only in the absence of an agreement concerning costs between the parties. See Washington Asphalt Co. v. Boyd, 63 Wn.2d 690, 388 P.2d 965 (1964). Thus, where the parties have entered into an agreement regarding costs, the costs are "otherwise authorized by law." RCW 4.84.010. Ernst Home Cntr., 80 Wn. App. at 491.
RCW 4.84.010 states in relevant part:
The measure and mode of compensation of attorneys and counselors, shall be left to the agreement . . . of the parties, but there shall be allowed to the prevailing party . . . certain sums by way of indemnity for the prevailing party's expenses in the action, which allowances are termed costs, including, in addition to costs otherwise authorized by law, the following expenses:
(1) Filing fees;
(2) Fees for the service of process by a public officer, registered process server, or other means, as follows:
(a) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.
(b) If service is by a process server registered pursuant to chapter 18.180 RCW or a person exempt from registration, the recoverable cost is the amount reasonably incurred in effecting service;
(3) Fees for service by publication;
(4) Notary fees, but only to the extent the fees are for services that are expressly required by law and only to the extent they represent actual costs incurred by the prevailing party;
(5) Reasonable expenses, exclusive of attorneys' fees, incurred in obtaining reports and records, which are admitted into evidence at trial or in mandatory arbitration in superior or district court, including but not limited to medical records, tax records, personnel records, insurance reports, employment and wage records, police reports, school records, bank records, and legal files;
(6) Statutory attorney and witness fees; and
(7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment.
In this case, the parties bargained for a provision in their agreement stating that the prevailing party in a legal dispute was entitled to "reasonable attorney fees and costs." As this court stated in Ernst Home Cntr., such a "proviso would be superfluous if interpreted to mean the equivalent of statutory costs." Ernst Home Cntr., 80 Wn. App. at 491. The trial court did not abuse its discretion in awarding costs.
C. Prejudgment Interest
Cedar Plaza also maintains that the trial court erred when it awarded prejudgment interest on the award of attorney fees to QFC.
This court reviews an award of prejudgment interest for an abuse of discretion. Mehlenbacher v. DeMont, 103 Wn. App. 240, 250, 11 P.3d 871 (2000).
The trial court directed that 12 percent interest on QFC's fee award run from June 12, 2002.
An award of prejudgment interest is proper where the damages resulting from the underlying claim are liquidated. Public Util. Dist. 1 v. International Ins. Co., 124 Wn.2d 789, 810, 881 P.2d 1020 (1994). Damages are liquidated if they are readily determinable and susceptible to exact determination without reliance on opinion or discretion. PUD 1, 124 Wn.2d at 810. Prejudgment interest awards rest on the principle that a defendant retaining money which ought to be paid to the plaintiff should pay interest on the money, because the plaintiff loses the `use value' of the money. Hansen v. Rothaus, 107 Wn.2d 468, 473, 730 P.2d 662 (1986).
Ernst Home Cntr., 80 Wn. App. at 488. The Supreme Court stated in Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 15 P.3d 115 (2000) that prejudgment interest on attorney fees is not available in the state of Washington. Weyerhaeuser, 142 Wn.2d at 687-88. This applies to costs, which are part of such an award. Accordingly, the trial court abused its discretion when it awarded QFC prejudgment interest on fees.
II. Attorney Fees on Appeal
"A contractual attorney fee provision authorizes an award of fees to the prevailing party on appeal." Kenneth W. Brooks Trust A.V. Pacific Media LLC, 111 Wn. App. 393, 401, 44 P.3d 938 (2002). The parties' agreement provides for an award of fees to the prevailing party. Cedar Plaza as the prevailing party on appeal is entitled to an award of fees, except as to the issue of cost.
CONCLUSION
We affirm the trial court's award of costs, but reverse its award of prejudgment interest on attorney fees and costs. We remand to the trial court for entry of findings of fact and conclusions of law regarding fees and for modification of the judgment consistent with this opinion.
COLEMAN and BAKER, JJ., concur.