Opinion
No. 55929-0-I.
Filed: April 24, 2006.
Appeal from Superior Court of King County. Docket No. 01-2-05428-7. Judgment or order under review. Date filed: 02/23/2005. Judge signing: Hon. Suzanne M. Barnett.
Counsel for Appellant(s), Shaunta M. Knibb, Smyth Mason, 701 5th Ave Ste 7100, Seattle, WA 98104-7044.
Jeffrey Alan Smyth, Attorney at Law, 701 5th Ave Ste 7100, Seattle, WA 98104-7044.
Counsel for Respondent(s), Michael Allen Claxton, Attorney at Law, 1000 12th Ave Ste 2, PO Box 1549, Longview, WA 98632-7934.
Odine Harris Husemoen, Attorney at Law, PO Box 1549, Longview, WA 98632-7934
UNPUBLISHED OPINION
Business Finance Corporation disputes the trial court's award of attorney fees to Marvin Cole General Contractor, Inc., arguing both that the award was unreasonable and that the court failed to provide a sufficient record of its calculations to allow for appellate review. Because we find the fee award to be reasonable and the record adequate for review, we affirm.
FACTS
Business Finance Corporation (BFC) is an accounts receivables lender. Marvin Cole General Contractor, Inc. (Cole) is a general contractor. Cole hired Arthur Harding Mason Contractors (Harding) as a subcontractor on a public works project. Harding assigned three of its invoices for the project, totaling approximately $92,673.00, to BFC.
BFC prepared three notification agreements referencing the invoices and sent them to Cole for payment. Each notification agreement contained an attorney fees clause.
In April 2000, BFC factored the first of the three Harding invoices for work on the Cole project and sent it to Cole. Cole issued a joint check for the first invoice for $38,000 (the full invoice amount minus a retainage fee) to Harding and BFC.
Later in April 2000, BFC sent the second of Harding's factored invoices to Cole. BFC advanced funds to Harding based on the invoice. In May 2000, BFC sent the third of the Harding invoices to Cole.
In June 2000, Cole terminated Harding's contract, having paid only $38,000 of the approximately $92,673.00.
In February 2001, BFC filed a complaint against Cole and others in King County Superior Court. A jury denied BFC's promissory estoppel and negligent misrepresentation claims against Cole. Cole sought an award of attorney fees and costs against BFC, which the trial court denied. On June 21, 2004, in an unpublished opinion, this court reversed the trial court's denial of attorney fees and costs to Cole and remanded for an award of same. Bus. Fin. Corp. v. Harding, noted at 122 Wn. App. 1003 (2004), 2004 Wash. App. LEXIS 2039.
This court determined that BFC's suit against Cole was on a contract, despite the fact that BFC sued in tort, stating:
That BFC sued in tort, however, is not determinative of whether BFC sued Cole under a contract theory. "An action is 'on a contract' if (a) the action arose out of the contract; and (b) if the contract is central to the dispute."
Notwithstanding the absence of an express claim for breach of contract in BFC's pleadings, its action was "on [the] contract" because it arose out of the notification agreements and they were central to the dispute. Bus. Fin. Corp., 2004 Wash. App. LEXIS 2039 at **11-12 (citations omitted). This court concluded:
The record supports a conclusion that the action in this case arose out of the notification agreements and that they were central to the dispute. [T]he action was therefore "on [the] contract." Because the three notification agreements in dispute contained an attorney fees and costs clause, RCW 4.84.330 applies. Cole, as the prevailing party on BFC's claim based on the notification agreements, is thus entitled to reasonable fees and costs. Accordingly, the trial court abused its discretion when it dismissed Cole's request for attorney fees and costs.
Business Fin. Corp., 2004 Wash. App. LEXIS 2039 at **15-16 (citation omitted).
On remand to the trial court, Cole moved for attorney fees of $121,867.16, costs of $4,893.23, and prejudgment interest on attorney fees and costs, all related to defense of BFC's action in the superior court. Cole also requested $7,069.22 in attorney fees and $891 in costs related to Cole's successful appeal. Cole submitted declarations documenting the requested attorney fees and costs, accompanied by billing invoices and summaries of the fee requests.
BFC raised numerous objections to Cole's requests.
The trial court reduced the amount of attorney fees and costs awarded to Cole by substantially the same amount represented by BFC's objections. The trial court specifically found that: (1) Cole was not entitled to receive an award of fees for administrative work by non-attorneys; (2) Cole had an entitlement to attorney's fees "based upon the court's review of the evidence to support an award of reasonable attorney's fees, and BFC's cogent response thereto";
(3) Cole did not file a cost bill and thereby waived its right to an award of costs; and (4) Cole "failed to provide sufficient evidence" to support an award of pro rata costs of depositions submitted into evidence. The court denied deposition costs "without prejudice."
The judgment states that "the requests submitted are reasonable and were necessary in the defense of the action brought by [BFC]."
BFC's proposed finding of fact 3 states:
It is not possible to tell from Cole's evidentiary submissions what fees were incurred as a result of attempts by BFC to enforce the notification agreements. As a result, this court would have to engage in speculation to determine such allocations.
The trial court crossed out this finding in its entirety.
The findings of fact entered by the court included finding of fact 7, which states: "Cole and BFC never formed the intent to contract, and both BFC and Cole argued to the jury that the notification agreements were not contracts between Cole and BFC."
BFC appeals and assigns error to several findings of fact, the order granting fees and costs, and the judgment, asserting that the trial court erred by awarding unreasonable fees to Cole, by providing an insufficient record of its method for determining the fees and costs awarded to allow for review, and by denying Cole's deposition costs "without prejudice."
ANALYSIS I. The fee award was reasonable.
BFC asserts that the trial court awarded unreasonable fees to Cole. A trial judge is given broad discretion in determining the reasonableness of a fee award. An award will be affirmed unless the trial court manifestly abused its discretion. Ethridge v. Hwang, 105 Wn. App. 447, 459-460, 20 P.3d 958 (2001).
As a preliminary matter, we must dispense with BFC's unavailing argument that the fees awarded were unreasonable because the trial court failed to segregate "fees related to the defense of the 'on the contract' claim from BFC's multiple tort claims." Such segregation was not required. This court previously determined that all of BFC's claims against Cole were "on the contract" because BFC's action "arose out of the notification agreements and they were central to the dispute." Bus. Fin. Corp., 2004 Wash. App. LEXIS 2039 at *12.
Moreover, the law of the case doctrine precluded BFC from arguing to the trial court on remand that its claims against Cole were not "on a contract." The law of the case doctrine stands for the proposition that once an appellate holding enunciates a principle of law, that holding will be followed in subsequent stages of the same litigation. Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844(2005). Thus, determinations made by the appellate court are binding on further proceedings in the trial court on remand. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). The doctrine promotes finality and efficiency in the judicial process. Roberson, 156 Wn.2d at 41.
Finding of fact 7, which states that "Cole and BFC never formed the intent to contract," was obviously intended to contravene this court's determination that BFC's claims were "on a contract." This court neither envisioned nor authorized the trial court to revisit the issue of whether BFC's action was "on a contract" on remand. Thus, the trial court was without authority to enter such a finding, and we assign to it no legal significance.
This court's previous opinion directed that, 'We reverse the trial court's denial of attorney fees and costs to Cole on BFC's claim, and remand to the trial court for an award of reasonable attorney fees and costs to Cole.' Bus. Fin. Corp., 2004 Wash. App. LEXIS 2039 at *23.
The trial court was authorized to make its fee award without requiring segregation between Cole's claims, since this court had previously ruled that the entire action was "on a contract."
We also decline to accept BFC's assertion that Cole behaved unreasonably in re-submitting substantially identical fee requests to the trial court on remand to those Cole submitted in its motion for fees immediately following the trial. At that time, BFC argued extensively that Cole was entitled to recover no fees whatsoever (a position adopted by the trial court and reversed by this court) but did not quarrel with the details of Cole's fee request. Cole was not required to assume a different state of affairs on remand.
BFC's 11-page response to Cole's motion for attorney fees devotes approximately ten lines of text to criticism of specific aspects of Cole's fee request, each of which was discounted by the trial court on remand.
While BFC focuses its criticism on Cole's allegedly insufficient submittals to the court, our role is to review the action of the trial court. While we agree that Cole certainly could have done more to assist the trial court, the record supports the conclusion that the trial court believed itself sufficiently informed as to the work performed by Cole's attorneys. First, as noted above, the trial court rejected BFC's proposed finding of fact 3, which stated that the court would have to engage in speculation to determine which fees were incurred by BFC in its attempt to enforce the notification agreements. The trial court manifested its rejection of this proposed finding by crossing it out in its entirety on the findings of fact and order granting Cole its fees. Second, Cole, in its response brief to the trial court, stated:
Should the Court determine there is a need for additional information or a breakdown of evidence or briefing, the preferred procedure should be to request such information and not summarily deny the request for mandated attorney's fees and costs.
The trial court made no such request. It is clear that the trial court believed itself to possess a sufficient quantum of information to effectively exercise its informed judgment.
On remand to the trial court, BFC legitimately objected to many of Cole's fee requests, including: (1) fees incurred for Cole's unsuccessful motions for summary judgment; (2) fees incurred for mediation; (3) fees incurred for Cole's unsuccessful opposition to BFC's motion for attorney fees; (4) fees incurred for Cole's unsuccessful motion for CR 11 sanctions; (5) fees incurred for Cole's voided suit against BFC in Clark County; (6) fees incurred for Cole's defense of claims against a co-defendant; (7) fees incurred for expenses of "unknown applicability" to the lawsuit; (8) fees incurred for Cole's prior appeal, which were previously denied by this court; and (9) fees incurred for administrative work of non-attorneys. The trial court awarded an amount for attorney fees that was less than the amount Cole requested by substantially the same amount represented by BFC's objections.
Although the trial court did not expressly analyze the fees under the lodestar method, the trial court's conclusion that the fees awarded represented a reasonable hourly rate for hours reasonably expended inheres in the findings of fact and order, read in conjunction with the language of the court's judgment.
The lodestar method is the preferred method for evaluating the reasonableness of an attorney fees award in this state. Smith v. Behr Process Corp., 113 Wn. App. 306, 54 P.3d 665 (2002). Lodestar is arrived at by multiplying a reasonable hourly rate by the number of hours reasonably expended. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 149, 859 P.2d 1210 (1993).
The judgment states: 'The Court having reviewed the submissions of [Cole] for attorney fees and costs, FINDS that the requests submitted are reasonable and were necessary in the defense of the action brought by [BFC].'
Accordingly, we are not persuaded by BFC's argument that the trial court's award to Cole was either unreasonable or based on insufficient evidence. The trial court did not abuse its discretion in determining the amount to award Cole for reasonable attorney fees.
II. The record is adequate for review.
BFC next asserts that the trial Court abused its discretion by failing to adequately articulate the basis for its awards of fees and costs to Cole. Appellate courts exercise a supervisory role to ensure that the trial court's discretion is exercised on articulable grounds. Mahler v. Szucs, 135 Wn.2d 398, 433-35, 957 P.2d 632 (1998). Therefore, an attorney fees award must be supported by findings of fact and conclusions of law sufficient to establish a record adequate for review. Mahler, 135 Wn.2d at 433-35; Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 715, 9 P.3d 898 (2000); Absher Constr. Co. v. Kent Sch. Dist. 415, 79 Wn. App. 841, 848, 917 P.2d 1086 (1995).
The determination of the fee award should not be an unduly burdensome proceeding for the court or the parties; an explicit hour-by-hour analysis of each lawyer's time sheets is unnecessary, as long as the award is made with a consideration of the relevant factors and reasons sufficient for review are given for the amount awarded. Absher, 79 Wn. App. 841. The trial court should indicate at least approximately how the court arrived at the final numbers, and explain why discounts were applied. Absher, 79 Wn. App. 841.
BFC argues that the trial court failed to explain how it calculated fees of $78,285.24 for the period billed November 8, 2002, and $2,701.50 for the period billed December 23, 2002. However, the trial court specifically stated that the fees awarded were "based upon the court's review of the evidence and BFC's cogent response thereto." BFC raised multiple objections to Cole's requests and the trial court reduced the amount of attorney fees and costs by substantially the same amount represented by BFC's objections. Therefore, we find that the trial court sufficiently indicated how it arrived at the final numbers.
BFC fails to demonstrate that the trial judge abused her discretion in resolving this issue.
III. Dismissal of deposition cost request.
Finally, BFC argues that the trial court erred by denying Cole deposition costs "without prejudice," rather than "with prejudice."
BFC has cited no authority for its position; we presume it has found none. State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978). BFC has not been prejudiced by the trial court's denial of deposition costs "without prejudice." Cole states that it "is not asking for these costs and they were not made a part of the judgment anyway." Respondent's Brief at 13. Accordingly, even if the trial court erred by denying Cole's request for deposition costs without prejudice, at this time no action is required of this court.
Under the terms of the notification agreements and the prior holding of this court, Cole is entitled to an award of attorney fees as the prevailing party on appeal. See RCW 4.84.330. Cole's request for attorney fees on appeal is therefore granted, subject to compliance with RAP 18.1(d).
Because we find that the trial court properly exercised its discretion in awarding reasonable attorney fees to Cole, and that the trial court provided a record of the method for determining the fee award sufficient for review by this court, we affirm the trial court's fee award to Cole.
Affirmed.
ELLINGTON and SCHINDLER, JJ., concur.