Opinion
No. 59639-0-I.
December 24, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-2-20972-6, Gregory P. Canova, J., entered March 2, 2007.
Affirmed in part and remanded by unpublished opinion per Ellington, J., concurred in by Coleman and Grosse, JJ.
This is the second appeal in this matter. Juanita Shores Condominium Owner's Association (the Association) succeeded in a claim against Melvin Rubin for unpaid condominium assessments and fees. We affirmed and remanded solely for determination of attorney fees. On remand, the superior court exceeded its authority by increasing the judgment to include unpaid assessments and fees accrued since entry of the judgment. In addition, the superior court improperly awarded attorney fees for services not yet rendered.
We again remand, this time expressly authorizing the court to amend the judgment to reflect unpaid condominium assessments and fees through the date judgment is entered on the second remand, and requiring determination and award of attorney fees actually incurred. We affirm the award of costs. The Association is entitled to its attorney fees for this appeal, also to be determined by the superior court on remand.
BACKGROUND
Rubin filed a claim against the Association alleging it purchased inadequate insurance. The Association counterclaimed for unpaid assessments and dues. The court granted summary judgment to the Association, dismissed Rubin's claim and granted its counterclaim. It entered a judgment for the Association of $14,142.83, of which approximately $5,000 was the principal and the remainder attorney fees. The court denied the Association's request for CR 11 sanctions.
Rubin appealed, and the Association cross-appealed. This court affirmed the judgment, but remanded for reconsideration of the attorney fee award and entry of findings. Rubin v. Juanita Shores Condo . Owner's Ass'n, noted at 130 Wn. App. 1028, 2005 Wash. App. LEXIS 2918, review denied, 157 Wn.2d 1023 (2006).
On remand, the superior court increased the principal judgment by more than $8,000 to include unpaid assessments accruing after the date of the original judgment, and awarded The Association $20,842.55 in attorney fees and $2,280.08 in costs. Rubin again appeals.
ANALYSIS Additional Assessments
A judgment of the superior court appealed to this court and determined upon its merits becomes a judgment of the court of appeals. State ex rel. Seattle v. Superior Court for King County, 1 Wn.2d 630, 633, 96 P.2d 596 (1939). When this court remands a matter to superior court, its mandate is binding and must be strictly followed. Harp v. American Surety Co., 50 Wn.2d 365, 368, 311 P.2d 988 (1957). The superior court does not have the power to vacate or modify a decision of this court except to carry out this court's mandate. Seattle, 1 Wn.2d at 633. The superior court may exercise discretion where the appellate court directs it to do so, though it must adhere to our directives, if any. Harp, 50 Wn.2d at 369.
We remanded the case with the following instructions:
The amount to be awarded as fees on appeal shall be determined by the trial court on remand in conjunction with its determination of the amount of fees to be awarded for the trial court proceedings. Affirmed in part and remanded for reconsideration of the Association's attorney fee request.
Rubin, 2005 Wash. App. LEXIS 2918 at *18-19.
Upon remand, the Association filed a motion for summary judgment seeking attorney fees and "all assessments and late fees accruing after January 2004 [the date of the original judgment] to the date of summary judgment." Clerk's Papers at 45. The Association submitted a declaration and financial records detailing the unpaid assessments and late fees, which totaled $8,457.06. Rubin claims he does not owe additional assessments, but he did not submit any evidence showing that he is excused from paying them or that he has met his obligations.
Rubin asserts in his brief he submitted a declaration stating that he did not owe additional assessments, but the declaration in the record contains no such statement.
The superior court must follow our directions and may exercise its discretion only as we expressly authorize. See Seattle, 1 Wn.2d at 633-35 (court did not have authority to take evidence regarding monies earned by reinstated city employees between date of judgment and date of reinstatement; city could have applied for a specific direction in the remittitur instructing superior court to consider employee earnings after entry of judgment). Rubin is correct that the remand order did not authorize the superior court to increase the principal judgment to include subsequently accruing unpaid assessments and fees. The Association could have requested that we expand the scope of our mandate (a slow and cumbersome approach), or it could have brought a motion for a separate, supplemental judgment. Instead, it asked the court to reopen and increase the original judgment. Although the matter appears a mere technicality in this case, not all cases are so straightforward. The requirement for express authority is a sound one.
Once again, therefore, we remand. But this time we expressly authorize the trial court to amend the judgment to include unpaid assessments, late fees, administrative costs, and any related amounts (including interest, if applicable) through the date of judgment on the second remand. Because Rubin failed to produce any evidence disputing the Association's evidence of additional monies owed, there is no triable issue of fact on unpaid amounts through March 2, 2007, the date of judgment following the first remand. The superior court may take evidence on unpaid amounts accumulating after that date as necessary.
In a motion for summary judgment, "`we consider supporting affidavits and other admissible evidence. . . . A party may not rely on mere allegations, denials, opinions or conclusory statements, but, rather must set forth specifics indicating material facts for trial." Allen v. Asbestos Corp., 138 Wn. App. 564, 569-70, 157 P.3d 406 (2007) (quoting Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004)).
Attorney Fees
Rubin next contends that the court erred in awarding $20,842.25 in attorney fees to the Association. Rubin argues for a de novo standard of review, but we review attorney fee awards for abuse of discretion. Mayer v. City of Sea ttle, 102 Wn. App. 66, 79, 10 P.3d 408 (2000). A trial court abuses its discretion when its decision or order is manifestly unreasonable, or discretion is based on untenable grounds or untenable reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
Courts should use the lodestar method to calculate fees. Mah ler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 (1998). The court must determine that counsel charged a reasonable rate and that counsel expended a reasonable number of hours, excluding hours that were wasteful, duplicative, or related to unsuccessful claims. Id. at 434. In its determination of reasonableness, the court can consider the factors set forth in the Rules of Professional Conduct, such as the difficulty of the issues, time limits, and the lawyers' skill and reputation. Id. The amount of recovery, while a relevant consideration, is not a conclusive factor in determining the reasonableness of fees. Id. n. 20. The court will not overturn a large fee award merely because the amount at stake is small. Id. at 433. In rare instances, the lodestar fee, calculated by multiplying the hourly rate by the number of hours expended, can be adjusted upwards or downwards. Id. at 434. The party seeking fees bears the burden of proving reasonableness. Id.
The fees awarded by the court included $2,750 for the hours the Association's attorney David Tall estimated he would spend drafting the motion for summary judgment on remand, replying, and attending the hearing.
Rubin first argues that Tall's hourly rates were unreasonable because another attorney who worked for the Association charged less. Tall has 20 years of experience and is a principal shareholder in his firm. The court found his rates were reasonable "in light of the prevailing hourly rates in the Seattle/Eastside legal community." Clerk's Papers at 162. The court based its finding on Tall's and Rubin's declarations, its own experience in reviewing fee applications, and consideration of the nature of the work.
The court acted within its discretion. It made specific findings based on the evidence before it. The fact that another attorney charged less does not make Tall's rate unreasonable.
Rubin also argues that the 79.6 hours Tall claimed he spent working on the Association's counterclaim is unreasonable because it included time spent pursuing the Association's unsuccessful claims and correcting mistakes. But Tall attested in his declaration that the fee detail sheet included only hours spent pursuing the Association's counterclaim for unpaid assessments. The court found that, "Plaintiff has extensively litigated this matter, requiring a maximum expenditure of time by defense counsel to develop and diligently pursue Defendant's counterclaim and represent Defendant's interest." Clerk's Papers at 164.
Again, there was no abuse of discretion here. The court made its determination based on the evidence before it and determined that Rubin's dilatory tactics justified the large number of hours.
The court did err, however, in awarding fees for work not yet done. An attorney fee award should generally not include fees to be incurred in the future because the amount is too uncertain and can be easily addressed in a supplemental order. N. Coast Elec. Co. v. Selig, 136 Wn. App. 636, 646, 151 P.3d 211 (2007). On remand, Tall should submit documentation of the hours actually expended addressing the first remand.
Rubin next contends that the fee award should be discounted because it grossly exceeds the amount in controversy. The cases on which Rubin relies, such as Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 859 P.2d 1210 (1993), predate Mahler, which allows for adjusting fees upwards and downwards from the lodestar results only in rare instances. Mahler, 135 Wn.2d at 434. Rubin's strongest argument for discounting the fee award is that a collection action for unpaid condominium fees is not very complicated. But the court allowed a large number of hours because Rubin's conduct made them necessary, not because of the nature of the case. Rubin's argument is unpersuasive.
Finally, Rubin contends he is entitled to an offset because he prevailed on the Association's request for CR 11 sanctions and obtained a remand to reconsider the attorney fee award. Rubin did not raise this issue below, and we decline to address it. RAP 2.5 (appellate court may refuse to review any claim of error not raised in the trial court). Moreover, his argument that fee shifting applies is unconvincing. Fee shifting is a consideration when contracts contain unilateral attorney fee clauses, a situation that does not exist here.
Costs
Rubin contends the court erred by awarding the Association costs of $2,280.08 that fall outside the definition of costs in RCW 4.84.010. The Association alleges that these costs fall within the condominium declaration's definition of costs. Regardless, Rubin did not raise this issue below, and we decline to address it. Id.
Attorney Fees on Appeal
Rubin was correct that amending the judgment on remand was procedural error, but he is not the prevailing party in this appeal. The Association, as the party receiving affirmative relief, prevails. Kyle v. Williams, 139 Wn. App. 348, 356, 161 P.3d 1036 (2007). We award the Association attorney fees for this appeal. The Association requests that we set the award for attorney fees, rather than remand for calculation, but we decline to do so.
We remand for supplementation of the judgment and for determination of attorney fees incurred addressing the first remand and this appeal.