Opinion
No. 19413-2-III.
Filed: June 12, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 98-2-04575-7, Hon. Michael E. Donohue, May 30, 2000, Judgment or order under review.
Counsel for Appellant(s), Aaron L. Lowe, 1708 W Mission Ave, Spokane, WA 99201-2759.
Counsel for Respondent(s), George R. Guinn, Hawkins Guinn, Fl 1, 225 W Main, Spokane, WA 99201.
Richard and Kimberley Spies appeal orders dismissing their suit for a private way of necessity and granting attorney fees and costs to the Foothills Recreation Site Land Owners Association, Douglas Dial, and Jane Doe Dial (collectively Association). We affirm, deciding the trial court did not err by misapplying the law, refusing to view the property, refusing to take testimony, or granting fees and costs.
FACTS
The Spieses own approximately 25 acres adjacent to property owned by Association members. Most of the Spieses' property is steep and rocky. Two routes access their property: (1) Cooper Road, near the lower portion of the Spieses' land, and (2) Timberlane Circle (Association owned) and across a small portion of the Dials' property. The Dials are Association members.
The Spieses retained a 65-foot easement for ingress and egress from Cooper Road North into their property. From this easement, a logging road runs from the lower portion of the Spieses' land to the upper portion. Mr. Spies argues it is too steep and rocky for standard vehicular access. An equipment operator estimated the cost to construct a road from Cooper Road to the upper portion of the Spieses' property to be $52,000. The 1999 accessed value of the property was $50,300.
The Spieses contend the conditions limit their ability to build at the uppermost portion of the property, limiting the best view. The Spieses unsuccessfully requested an easement from the Association for access from Timberlane Circle through the Dials' property. The Spieses sued for a private way of necessity under RCW 8.24.010, relying mainly on Beeson v. Phillips, 41 Wn. App. 183, 702 P.2d 1244 (1985).
Michael C. Phillips surveyed the Spieses' property concluding `[t]he slope of the ground from the north end of the property and from the south end is in the range of eighteen (18) to twenty (20) percent.' Clerk's Papers (CP) at 14. He opined that most of the Spieses' property was accessible from the logging road and concluded `[t]o construct a driveway to a house within the subject property, the existing slope would be fairly steep whether approaching from the south [Cooper Road] or from the north [Timberlane Circle].' CP at 248.
The court decided against viewing the property, reasoning `[t]o do so would invite the court to find facts or to draw conclusions more appropriate to a road construction expert.' CP at 74. In May 2000, the trial court rejected the private way of necessity without testimony per the procedure specified in its July 1999 discovery order. The court's unnumbered findings of fact partly provide:
The question in these cases is always what is necessary? Acknowledging that access on Timberline [sic] Circle and across Dial's [sic] land is convenient, is it truly necessary. Black's Law Dictionary is of some help. `In eminent domain proceedings, [necessary] means land reasonable [sic] requisite and proper for accomplishment of the end in view, not absolute necessity of particular location.' State v. Whitcomb, 94 Mont. 415, 22 P.2d 823 [826] (1933).
. . . .
Beeson's facts included a 60-degree bluff. A road up that bluff was virtually impossible. In our case, the grade is 18 to 20-percent. Simpson Engineers indicates [sic] in our case that access from Cooper Road on the South [sic] is steep, but possible. They to [sic] on to point out that if access were permitted from the north, as Plaintiffs request, that such a road would be about as steep.
. . . .
Plaintiffs rely on the Beeson case. That case held that necessity need not be absolute, but reasonable.
CP at 196-97.
The Association was awarded over $8,000 in attorney fees and costs, reduced from a request of over $15,000 based partly on RCW 8.24.030. The Spieses filed this appeal.
ISSUES
In order, we discuss whether the trial court erred by (A) misapplying Beeson, (B) deciding the facts did not support necessity, (C) declining to view the property, (D) foregoing testimony, or (E) awarding attorney fees and costs.
ANALYSIS A. Application of Beeson v. Phillips
While the Spieses fail to assign error to the trial court's findings in accordance with RAP 10.3(g), we will nonetheless address the issue. See State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995) (Rules of Appellate Procedure need not preclude reaching merits `where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced').
An appellate court reviews a trial court's findings of fact and conclusions of law separately. First, the court decides whether substantial evidence in the record supports the findings of fact. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). Substantial evidence is evidence which, viewed in the light most favorable to the party prevailing below, would `persuade a fair-minded, rational person of the truth of the finding.' State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Where substantial evidence supports the findings, they are verities on appeal. Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wn.2d 623, 632-33, 989 P.2d 524 (1999). Next, we decide if the findings of fact, in turn, support the conclusions of law. Greene, 97 Wn. App. at 714.
RCW 8.24.010 gives a landowner a limited power to condemn a private way of necessity over the land of another. The statute provides:
An owner . . . of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity . . . over or through the land of such other . . . may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity. . . .
The term `private way of necessity' . . . shall mean and include a right of way on, across, over or through the land of another for means of ingress and egress. . . .
In Beeson, the trial court found the upper portion of the Beesons' property was available for use; it was bounded `by a steep bluff, with an average slope close to 60 degrees, that is between 125 and 175 feet high.' Beeson, 41 Wn. App. at 184-85. Division One agreed with the trial court that `the Beesons had satisfactorily shown a reasonable necessity for top of the bluff access to the usable portion of their property.' Here, according to a land surveyor most of the Spieses' property was accessible from a logging road, and the slope of the Spieses' property `from the north end of the property and from the south end is in the range of eighteen (18) to twenty (20) percent.' CP at 14. Further, `[t]o construct a driveway to a house within the subject property, the existing slope would be fairly steep whether approaching from the south [Cooper Road] or from the north [Timberlane Circle]. CP at 248. A general contractor concluded, `[t]here are many potential building sites on the Spies' [sic] property. It is more expensive to build on a hillside than on flat land, but the higher up the hill, the better the view.' CP at 17. Thus, considering the slope differences and multiple building sites, Beeson is distinguishable. The trial court did not err by misapplying Beeson.
In their reply brief, the Spieses appear to assign error to the trial court's finding that `[e]ither route, north or south, would be costly to build and would be steep enough that winter weather would be a concern.' CP at 198. While vaguely addressing cost in their opening brief, they do not specifically assign error to the trial court's finding of fact in the `assignment of error' section of their brief. Moreover, an appellate court will not consider an assignment of error that is raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (citing In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990)).
B. Necessity
The trial court mentioned the definition of `necessary' given in BLACK'S LAW DICTIONARY 1029 (6th ed. 1990), which cites to State v. Whitcomb, 94 Mont. 415, 22 P.2d 823, 826 (1933). While Montana law may differ from Washington law, the record supports the trial court's finding, thus an alternative rationale exists to affirm. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). Before a condemnor may condemn a private way, he or she must show more than inconvenience, see Dreger v. Sullivan, 46 Wn.2d 36, 39-40, 278 P.2d 647 (1955), and `no other practicable or feasible' way out of the property should exist. State ex rel. Schleif v. Superior Court, 119 Wn. 372, 374, 205 P. 1046 (1922). This is the `landlocked nature' of the condemnor's property. Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 145, 18 P.3d 540 (2001). But, because RCW 8.24.010 uses the language `proper use and enjoyment,' the condemnor `need not show that his land is totally landlocked' but rather a "reasonable' necessity to condemn' a private way. 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 2.5, at 95 (1995) (citing State ex rel. Huntoon v. Superior Court, 145 Wn. 307, 260 P. 527 (1927)).
The condemnor bears the burden of showing reasonable necessity for a private way, Sorenson v. Czinger, 70 Wn. App. 270, 276, 852 P.2d 1124 (1993), and the courts determine whether `reasonable necessity' exists by considering the entire situation. State ex rel. St. Paul Tacoma Logging Co. v. Superior Court, 82 Wn. 503, 508, 144 P. 722 (1914).
Here, substantial evidence supports the trial court's critical findings. A logging road exists from the lower to the upper portion of the Spieses' property. The grade of the Spieses' property is 18 to 20 percent, considerably less steep than the 60 percent slope in Beeson. The road from the lower portion to the upper portion of the Spieses' property is a `possible, adequate, and practical solution to the problem of access.' CP at 198. These findings support the court's conclusion that `[t]he facts do not support the claim of necessity.' CP at 198. Accordingly, the trial court did not err.
C. View
Whether to view real property rests within the sound discretion of the trial court. O'Sullivan v. Scott, 25 Wn. App. 430, 432, 607 P.2d 1246 (1980). Discretion is abused when the court's decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587, 71 A.L.R.5th 705 (1997). While a view of property to clarify and harmonize testimony and as an aid in understanding the evidence is proper, it is error for a trial court to view property to verify its own theory or to obtain extrinsic evidence not included in the record. O'Sullivan, 25 Wn. App. at 432.
The trial court gave a tenable reason for denying a view, it `would invite the court to find facts or to draw conclusions more appropriate to a road construction expert.' CP at 74. Further, the trial court determined that it did not need to visit the site to harmonize testimony or to aid in understanding the evidence. Additional arguments raised for the first time in the reply brief relating to specific findings need not be addressed. Cowiche Canyon Conservancy, 118 Wn.2d at 809 (citing In re Marriage of Sacco, 114 Wn.2d at 5). Given the above, we cannot say the trial court abused its discretion.
D. Testimony
Generally, review is limited to issues the appellant raised in the trial court. RAP 2.5(a). The purpose of this rule is to allow the trial court the opportunity to consider all issues and arguments and correct any errors. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). The Spieses citing Flory v. Dep't of Motor Vehicles, 84 Wn.2d 568, 527 P.2d 1318 (1974) assert the court's decision to exclude live testimony is a manifest error affecting a constitutional right and therefore may be raised for the first time on appeal under RAP 2.5(a). We disagree. Flory involves the revocation of an individual's driver's license. A revocation hearing is distinguishable from the type of hearing in this case. The rights at stake differ. And, the Spieses were afforded the opportunity to confront witnesses at the depositions. Most important, the Spieses failed to object to the procedures selected below in July 1999 until after the adverse decision in May 2000. Accordingly, it is unnecessary to discuss in detail the Association's arguments that certain depositions should be stricken from our consideration. Here, all the depositions were filed, albeit after the court filed its memorandum opinion. Further, the trial court refers to at least one of the depositions during the hearing, stating that `[t]he entire deposition got filed.' Report of Proceedings at 9. Therefore, we consider the depositions to the same extent as the trial court.
E. Attorney Fees and Costs
RCW 8.24.030 provides that `[i]n any action . . . for the condemnation of land for a private way of necessity, reasonable attorneys' fees and expert witness costs may be allowed by the court to reimburse the condemnee.' Under this statute, the trial court may award fees and costs at its discretion, regardless of which party prevailed. Shields v. Garrison, 91 Wn. App. 381, 388-89, 957 P.2d 805 (1998). We review the trial court's ruling on attorney fees under an abuse of discretion standard. Shields, 91 Wn. App. at 389. Since RCW 8.24.030 permits fees and costs, the court had the discretion to grant an award. Next, we discuss whether the award was excessive.
`The trial court must exercise its discretion in light of the particular circumstances of each case.' Beckman v. Wilcox, 96 Wn. App. 355, 367, 979 P.2d 890 (1999), review denied, 139 Wn.2d 1017 (2000) (citing Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990)). An award of attorney fees will be reversed when it is `manifestly unreasonable or based upon untenable grounds or reasons.' Progressive Animal Welfare Soc'y v. Univ. of Wash., 114 Wn.2d 677, 688-89, 790 P.2d 604 (1990).
The starting point for determining if an award of attorney fees is reasonable is to multiply the hourly rate by the number of hours expended (i.e., the `lodestar' method). Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 149, 859 P.2d 1210 (1993). This approach focuses primarily on the market value of the attorney's services. Scott Fetzer, 122 Wn.2d at 150. The lodestar method is `generally preferred' when awarding statutory attorney fees. Bowles v. Dep't of Ret. Sys., 121 Wn.2d 52, 72, 847 P.2d 440 (1993). This methodology may be supplemented by an analysis of the factors set forth in RPC 1.5(a), which guide members of the Bar as to the reasonableness of a fee. Allard v. First Interstate Bank of Wash., 112 Wn.2d 145, 149, 768 P.2d 998, 773 P.2d 420 (1989).
The attorney requesting the fees bears the burden of proving reasonableness. Scott Fetzer, 122 Wn.2d at 151. The requesting attorney shall "provide reasonable documentation of the work performed." Beckman, 96 Wn. App. at 368 (quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). The court must discount hours spent on `unsuccessful claims, duplicated effort, or otherwise unproductive time.' Bowers, 100 Wn.2d at 597. This documentation need not be detailed, but it must inform the court, in addition to the number of hours worked, of the type of work performed and the category of attorney who performed the work (i.e., partner, associate, etc.). Id. This record is adequate for review. We have the transcript from the hearing regarding attorney fees where the trial court indicates the information it relied on to set the award. The record includes an invoice provided by the Association's attorney with a specific accounting of time spent on specific tasks and listing who performed those tasks along with their hourly rates. The trial court reviewed the Association's request and the Spieses' attorney's affidavit of fees. The court properly exercised its discretion to reduce the Association's initial request by approximately $7,000.
The Association asks for attorney fees on appeal pursuant to RAP 18.1(a). Contrary to the Spieses' contention, the Association's request complies with RAP 18.1(b). RCW 8.24.030 authorizes an award of attorney fees on appeal. See Shields, 91 Wn. App. at 389. Similar reasons for granting the Association fees and costs at trial exist here. Therefore, upon compliance with RAP 18.1(d), the Association's request is granted.
CONCLUSION
The trial court did not err in any of the ways assigned by the Spieses. Accordingly, we affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KATO, J.