Attorney Fees 1 on Appeal

Transcription

1 Attorney Fees 1 on Appeal When and how to get them Judge Laurel Siddoway Spokane County Bar Association Appellate Law Practice CLE June 1, Which is it? [Attorney s fees] now appears to be prevalent... the plural possessive attorneys fees is just as good... Attorney fees is inelegant but increasingly common. GARNER S DICTIONARY OF LEGAL USAGE (3d ed at 94. (4 SPELLING (a Write:... attorneys fees... STATUTE LAW COMM., OFFICE OF THE CODE REVISER, BILL DRAFTING GUIDE 2017 Nonetheless, attorney fees is the preferred usage in Washington appellate decisions, likely because it is the term used in the Rules on Appeal. See RAP 18.1.

2 SECTION 1: REQUESTS FOR COSTS AND ATTORNEY FEES ON APPEAL Two categories of expenses are potentially recoverable in an appeal. In family law and estate litigation, expenses can be recovered even by a losing party whose position on appeal was reasonable. But no expenses can be recovered without timely requests, in a form that complies with the Rules on Appeal (RAPs. The purpose of this section of the materials is to provide you with a timeline on when and how requests need to be made. We start with an important distinction. In every appeal other than those involving criminal offenders who are indigent or otherwise unable to pay, 2 the substantially prevailing party has a right to recover costs, which will include a modest statutory attorney fee (presently $200 3 and some standard out-of-pocket costs of the appeal. What the RAPs term costs are addressed by RAP 14. As long as a timely cost bill is filed and the costs requested are proper under the rule, their award should be automatic In some cases, there can be a right to recover what the RAPs term reasonable attorney fees or expenses, meaning the actual and more substantial attorney fees your client has incurred on appeal that the court commissioner determines are reasonable in amount. They are addressed by RAP 18.1, and can include additional expenses, not recoverable as costs, that will vary case by case. Essentials in an opening brief: any request for reasonable attorney fees. Costs, including the modest statutory attorney fee, need not be addressed in a party s opening brief. If reasonable attorney fees are recoverable, they must be requested in the opening brief. RAP 18.1(b provides that a party must devote a section 4 of its opening brief to the request for the fees or expenses. Citation to RAP 18.1 is not sufficient. Under the American Rule, parties bear their own attorney fees. So it is essential to identify the contract provision, statute, or 2 See RAP 14.2 for special rules applicable to indigent offenders. 3 RCW For an unpublished decision discussing how separate the section of the brief must be, see Berschauer v. Dep t of Enter. Servs., No III, slip op. at 5 (Wash. Ct. App. Dec. 12, 2017, Being unpublished, the decision has no precedential value, is not binding on any court, and is cited only for such persuasive value as the reader deems appropriate. See GR

3 recognized ground in equity that creates an exception to the American Rule (more on this in Section 2. Osborne v. Seymour, a 2011 case, illustrates the consequence of failing to comply. The prevailing party had filed an opening brief that addressed fees by simply stating: The decision should be affirmed and respondent should be awarded fees on appeal. The court responded: Osborne requests attorney fees on appeal, but she fails to devote a section of [her] brief to the request for fees and expenses and she fails to cite authority, contrary to RAP 18.1(b. RAP 18.1(b requires the argument and citation to authority to advise us of the appropriate grounds for an award of attorney fees and costs. *** This requirement is mandatory. *** This requirement also demands more than a bald request for attorney fees on appeal. *** Thus, we deny Osborne s request for attorney fees on appeal based on her failure to comply with the RAP. 164 Wn. App. 820, 866, 265 P.3d 917 (2011(internal citations omitted. In some cases, an award of reasonable attorney fees and expenses to the party that prevails on appeal is automatic while in others it is discretionary with the court. In mandatory entitlement situations the argument need not be extensive. Similarly, where fees are requested for a frivolous appeal, little argument is needed (the court knows frivolous when it sees it. In other discretionary cases, the attorney may want to provide further argument. Financial affidavits due 10 days before the case is set for oral argument or decision. Approximately eight weeks before an argument week, the clerk s office sends a setting letter to the lawyers advising them of the date on which the Court will hear oral argument or decide the case without oral argument. In actions where applicable law requires the Court to consider the financial resources of a party or parties in making an award, the parties must file and serve the other party with a financial affidavit no later than 10 days prior to the date the case is set for oral argument or consideration on the merits. An answer to an affidavit of financial need must be filed and served within 7 days after service of the affidavit. RAP 18.1 (c. No form of affidavit is provided by the rule, but parties frequently submit the mandatory family law form used in superior court. See FL All Family 131 (09/2016, available at 2

4 Deadlines for documenting costs or reasonable attorney fees following the Court s decision. A strict 10-day deadline applies to the initial documentation of recoverable costs or reasonable attorney fees and begins to run on the day the Court s decision is filed. RAP 14.4, 18.1(d. If additional costs are incurred thereafter, the request may be supplemented, but the initial cost bill must be timely filed. Cost bill. Recoverable costs are documented by a cost bill, a sample of which is included as Form 10 to the RAPs and is included in the appendix. RCW and RAP 14.3(a identify the type of fees and expenses recoverable as costs if they were actually incurred and reasonably necessary for review. The form cost bill attached includes the most commonly recoverable costs and is a good checklist for keeping track of expenses being incurred in a case that may be recoverable. The recoverable cost of preparing a brief or other original document is $2.00 per page pursuant to a Supreme Court General Order entered in RAP 14.3(b. By statute, county clerks charge fifty cents a page for copying records without a seal. RCW (4. In Division Three, the largest item of expense is usually the verbatim report of proceedings. Large designations of clerk s papers can be costly. In personal restraint petitions, where relevant records are appendices to the brief rather than designated as clerk s papers, the $2.00 page cost for brief preparation can result in a substantial cost. Objection to a cost bill. A sample objection to a cost bill is included as Form 11 to the RAPs and is included in the appendix. Decisions on cost bills and reasonable attorney fees. Determining the substantially prevailing party for purposes of costs. A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise... RAP 14.2 (emphasis added. It is generally said that the prevailing party is that party who has an affirmative judgment rendered in his or her favor at the conclusion of the entire case. Marassi v. Lau, 71 Wn. App. 912, 915, 859 P.2d 605 (1993 (abrogated on other grounds by Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009 (the net affirmative judgment rule. Where both parties prevail on some issues, neither party has 5 Available at /genorders/perpageamountfororiginaldocuments.pdf 3

5 substantially prevailed, and the parties must bear their own costs. McClarty v. Totem Elec., 157 Wn.2d 214, 231, 137 P.3d 844, 853 (2006. Costs that are to abide a final result. RAP 14.4(b and (c address procedure followed when costs on review are to abide the final result. Determining the prevailing party for purposes of awarding reasonable attorney fees. Where a lawsuit involves distinct and severable claims, a proportionality approach is applied, under which attorney fees are determined for the claims on which each party prevails, and they are then offset. Marassi, 71 Wn. App. at 917. Determining the amount of reasonable attorney fees. Washington courts calculate fees by using the lodestar amount which is arrived at by first multiplying a reasonable hourly rate by the number of hours reasonably expended. The total hours an attorney has recorded for work in a case is to be discounted for hours spent on unsuccessful claims, duplicated effort, or otherwise unproductive time. Berryman v. Metcalf, 177 Wn. App. 644, 662, 312 P.3d 745 (2013 (citing Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193(1983. Fee awards must sometimes abide further proceedings in the trial court. When considering a fee request under a statute that authorizes an award of attorney fees to a prevailing party and further proceedings are necessary in the trial court to determine who will finally prevail, the appellate court will often remand the request to the trial court and let the request abide the result there. E.g. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 153, 94 P.3d 930 (2004 ( Where a party has succeeded on appeal but has not yet prevailed on the merits, the court should defer to the trial court to award attorney fees.. Clerk vs. commissioner decision making. In Division Three, the clerk determines costs if there is no objection or an objection is clearly without merit. Where there is a colorable objection, the decision on costs is referred to a commissioner. Reasonable attorney fees and expenses are awarded by a commissioner. As with all decisions of the clerk and a commissioner, a party can file a motion to modify under RAP

6 SECTION 2: EXCEPTIONS TO AMERICAN RULE Under the American rule, a court may award fees only when doing so is authorized by a contract provision, a statute, or a recognized ground in equity. Hamm v. State Farm Mut. Auto. Ins. Co., 151 Wn.2d 303, 325, 88 P.3d 395 (2004. CONTRACT PROVISION A contract that provides for an award of attorney fees at trial also supports an award of attorney fees on appeal. Barber v. Peringer, 75 Wn. App. 248, 255, 877 P.2d 223 (1994. STATUTE Statutory bilateral operation of one-sided attorney fee provision. RCW entitles either party to a contract or lease to reasonable attorney fees if the agreement provides for a fee award to one of the parties. Arbitration award challenges or confirmation actions. RCW 7.04A.250(3 authorizes the court in its discretion to award reasonable attorney fees to the party that prevails in a judicial proceeding to confirm, vacate without directing a rehearing, modify, or correct an arbitration award. Civil forfeiture. Under RCW (6, a claimant who substantially prevails is entitled to reasonable attorney fees. See Guillen v. Contreras, 169 Wn.2d 769, 772, 238 P.3d 1168 (2010 (because the civil forfeiture provision is not a prevailing party provision, claimant is entitled to recover reasonable fees and costs associated with recovery of any of the property whose forfeiture is challenged. Civil contempt, general. RCW (3 authorizes the court in its discretion to order a party found in contempt to pay a party injured by the contempt for any loss or cost, including reasonable attorney fees. Contempt for failure to comply with residential provisions for children. RCW (2 requires an award of reasonable attorney fees, costs, and any expenses incurred in locating a child against a parent found to be in contempt for failure to comply with an order establishing residential provisions for a child. Consumer Protection Act. RCW creates the civil action in which an injured person s remedies include costs of the suit, including a reasonable attorney fee. Dissolution proceedings. RCW , authorizes an award of the cost of maintaining or defending any proceeding under chapter RCW. The court may 5

7 order that the attorneys fees be paid directly to the attorney who may enforce the order in his or her name. Id. The overriding considerations [in awarding fees in a dissolution action] are the need of the party requesting the fees, the ability to pay of the party against whom the fee is being requested, and the general equity of the fee given the disposition of the marital property. Matter of Marriage of Van Camp, 82 Wn. App. 339, 342, 918 P.2d 509 (1996. Domestic violence protection. RCW (1(g authorizes the court in its discretion to require the respondent to pay costs, including reasonable attorney fees. Equal Access to Justice Act. RCW authorizes an award of up to $25,000 in reasonable attorney fees and other expenses to a qualified party that prevails in a judicial review of an agency action. And see Costanich v. Washington State Dep't of Soc. & Health Servs., 164 Wn.2d 925, 194 P.3d 988 (2008 (cap on attorney fees in EAJA applied to each level of judicial review of DSHS's action. Franchise Investment Protection Act. RCW (3 authorizes the court in its discretion to award the prevailing party the costs of the action, including a reasonable attorney fee. Frivolous appeal. 6 RAP 18.9(a authorizes the Court of Appeals to sanction a party who uses the rules for the purpose of delay, files a frivolous appeal, or fails to comply with the rules, including by ordering compensatory damages paid to the party harmed. Land Use Decision Appeals. RCW requires an award of reasonable attorney fees on appeal to the prevailing party in the appeal of a land use decision if that party also prevailed before the local government and in the trial court. 6 Parties occasionally cite CR 11 as a basis for an award of fees on appeal, but as pointed out in an unpublished decision of this court: [T]he Civil Rules do not apply to the appellate courts unless expressly referenced by the Rules of Appellate Procedure. At one point CR 11 applied to the appellate courts due to express reference in former RAP 18.7 (1984, but that reference was removed in See Amendment to RAP 18.7, 124 Wn.2d 1101, 1141 (1994. Raun v. Caudill, No III, slip op. at 13 n.9 (Wash. Ct. App. Apr. 19, 2016, Being unpublished, the decision has no precedential value, is not binding on any court, and is cited only for such persuasive value as the reader deems appropriate. See GR

8 Law Against Discrimination. RCW (2 creates a statutory claim and remedies, including reasonable attorney fees. And see Blair v. Wash. State Univ., 108 Wn.2d 558, 740 P.2d 1379 (1987 (adopting federal rule allowing more liberal recovery of costs to the prevailing party in civil rights litigation including, e.g., travel, copying, telephone, and depositions which were reasonable and necessary expenditures in preparation and trial of case. Lien challenges. RCW (4 provides for an award of reasonable attorney fees to the prevailing party in an action challenging a lien as frivolous or clearly excessive. Lien enforcement/priority. RCW (3 authorizes the court in its discretion to award reasonable attorney fees to the prevailing party. Open Public Meetings and Public Records Acts. RCW (4 and RCW (4 provide, respectively, that persons who prevail against an agency for a violation of Open Public Meetings Act or the Public Records Act shall be awarded all costs, including reasonable attorney fees. Real estate contract forfeiture; refusal to surrender. RCW (3 authorizes recovery of reasonable attorney fees incurred by seller if forfeiting buyer fails to surrender possession by ten days after recording of a sworn declaration of forfeiture. Support or maintenance enforcement. RCW authorizes an award of reasonable attorney fees to a prevailing obligee, or to a prevailing obligor if the obligee acted in bad faith in connection with the proceeding. Title 11 matters (including trusts, estates and guardianships. RCW 11.96A.150 authorizes awards of reasonable attorney fees in all proceedings governed by Title 11 to any party, from any party or asset subject to the proceeding. [T]he court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need no include whether the litigation benefits the estate or trust involved. Id. Trespass (injurious. RCW , authorizing recovery of reasonable attorney fees in action for wrongful (1 removal of valuable property from land, (2 waste or injury to land, or (3 injuring personal property or real estate improvements on land. Unemployment compensation appeals. RCW requires payment from the state unemployment compensation administration fund of a reasonable attorney fee fixed by the trial court when it is determined that the commissioner erroneously denied unemployment benefits. See In re Griswold, 102 Wn. App. 29, 47, 15 P.3d 153 (2000 (observing that [t]he language of the statute is not a model of clarity. 7

9 Unlawful detainer actions (residential. RCW authorizes an award of reasonable attorney fees to the prevailing party where, without obtaining a court order, a landlord removes or excludes a tenant, or a tenant holds over. In actions arising under the Manufactured/Mobile Home Landlord-Tenant Act, RCW requires an award of reasonable attorney fees and costs to the prevailing party. Vulnerable adult protection proceedings. RCW (7, authorizing an award of reasonable attorney fees against a respondent. Wage claim, RCW , reasonable attorney s fees... shall be assessed against the employer in an action in which a person is successful in recovering judgment for wages or salary. Will contests, RCW , authorizing an award of reasonable attorney fees when a will is sustained against a challenge unless it appears that the contestant acted with probable cause and in good faith. Workers compensation. RCW provides for an award of attorney fees to a worker who obtains a reversal or modification of a decision of the Industrial Insurance Board along with additional relief, or who successfully defends against another party s appeal challenging the worker s right to relief. RECOGNIZED GROUND IN EQUITY ABC rule or equitable indemnity. The ABC Rule is an equitable rule under which attorney fees are compensable as consequential damages in certain situations. It has three elements: (1 a wrongful act or omission by A toward B; (2 such act or omission exposes or involves B in litigation with C; and (3 C was not connected with the initial transaction or event, viz., the wrongful act or omission of A toward B. LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 117, 123, 330 P.3d 190 (2014. Common fund. The common fund or common benefit theories of attorney fee entitlement each authorizes attorney fee recovery only when a litigant or litigants preserve or create a common fund for the benefit of others as well as themselves. Bowles v. Dep t of Ret. Sys., 121 Wn.2d 52, 70-71, 847 P.2d 440 (1993. The fees are recovered from the parties benefitted, not the losing party. Olympic Steamship. [A]n award of fees is required in any legal action where [an] insurer compels the insured to assume the burden of legal action, to obtain the full benefit of his insurance contract. Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 53, 811 P.2d 673 (

10 An award of attorney fees under Olympic Steamship is restricted to disputes where the insurer forces the insured to litigate coverage and then loses. King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 630, 398 P.3d 1093 (2017 (citing cases. Coverage questions focus on such questions as whether there is a contractual duty to pay, who is insured, the type of risk insured against, or whether an insurance contract exists at all. Solnicka v. Safeco Ins. Co., 93 Wn. App. 531, 534, 969 P.2d 124 (1999. In contrast, a claims dispute involves factual questions as to the extent of damages. Id. Wrongful injunction. On equitable grounds, a party may recover attorneys' fees reasonably incurred in dissolving a wrongfully issued injunction or restraining order. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 143, 937 P.2d 154 (1997 A temporary restraining order is wrongful if it is dissolved at the conclusion of a full hearing. Id. 9

11 SECTION 3: ETHICAL ISSUES Consequences to attorney for failure to preserve a client s right to an award of fees: (1 Discipline. RPC 1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (2 Malpractice. Elements of legal malpractice action are: (1 attorney-client relationship giving rise to a duty of care; (2 act or omission of attorney in breach of duty of care; (3 damage to the client; and (4 proximate causation between breach and damages. Hizey v. Carpenter, 119 Wn.2d 251, , 830 P.2d 646 (1992. However, breach of RPC does not give rise to an independent cause of action against attorney and RPC cannot be a basis for jury instruction or testimony. Id. at (3 RPC 1.3: A lawyer shall act with reasonable diligence and promptness in representing a client. 10

12 APPENDIX 11

13 FORM 10. COST BILL COURT OF APPEALS, DIVISION THREE, OF THE STATE OF WASHINGTON (Title of trial court proceeding with parties designated as in rule 3.4 No. (appellate court COST BILL (Name of party asking for costs, (appellant, petitioner, or respondent, asks that the following costs be awarded: 1. Statutory attorney's fees $ 2. Preparation of original and one copy of report of proceedings $ 3. Copies of clerk's papers $ 4. Transmittal of record on review $ 5. Expenses incurred in superseding the decision of the trial court (Identify $ 6. Charges of appellate court clerk for reproduction of briefs, petitions, and motions (Identify and separately state the charge for each. $ 7. Preparing 50 pages of original documents $ 8. Filing Fee $ Total $ The above items are expenses allowed as costs by rule 14.3, reasonable expenses actually incurred, and reasonably necessary for review. (Name of party should pay the costs. (Date Signature Attorney for (Appellant, Respondent, or Petitioner (Name, address, telephone number, and Washington State Bar Association membership number of attorney 12

14 FORM 11. OBJECTIONS TO COST BILL COURT OF APPEALS, DIVISION THREE, OF THE STATE OF WASHINGTON (Title of trial court proceeding with parties designated as in rule 3.4 No. (appellate court OBJECTIONS TO COST BILL (Name of party objecting, (appellant, petitioner or respondent, objects to the award of any costs to (name of party because: Alternate Form (Here state reasons. See rule (Name of party objecting, (appellant, petitioner, or respondent, objects to the following expenses listed on the Cost Bill of (name of party: (Date (List the items on the cost bill which are objectionable, by number of item on the cost bill with a description of the item and the amount claimed. State the objection after each item. For example: 2. Report of Proceedings $ Objection: The amount claimed is unreasonable. See RAP (a. The report of proceedings is double spaced and is pages. The usual charge per page is $. Computed on the usual basis, the total charge should be $ Bond $10.00 Objection: The charge is for the premium on a cost bond. A cost bond is not required under the new rules. The charge was not reasonably necessary for review. See RAP 14.3(a. Signature Attorney for (Appellant, Respondent, or Petitioner (Name, address, telephone number, and Washington State Bar Association membership number of attorney 13