Opinion
67068-9-I
04-02-2012
IN THE MATTER OF THE PETITION THE CITY OF WOODINVILLE, a Washington optional code, non-charter municipal corporation, TO ACQUIRE BY CONDEMNATION CERTAIN REAL PROPERTY FOR PUBLIC USE AS AUTHORIZED BY ORDINANCE NO. 449 OF SAID CITY, Respondent, v. HOLLYWOOD VINEYARDS LIMITED PARTNERSHIP, a Washington Limited Partnership, Appellant.
UNPUBLISHED OPINION
Ellington, J.
Under RCW 8.25.070(1)(a), the condemnee in an eminent domain action may recover attorney fees if the condemnor fails to make a written settlement offer at least 30 days prior to trial. The question here is whether a written offer, made more than 30 days before trial, nevertheless did not satisfy the statute because it did not describe itself as a "30-day" offer and/or because it was conditionally accepted but the condition was never realized. The offer satisfied the statute, and we affirm the trial court's denial of fees to the condemnee.
BACKGROUND
The City of Woodinville (City) condemned a portion of property owned by Hollywood Vineyard Limited Partnership. The parties stipulated to immediate use and possession. Trial to determine just compensation was set for June 28, 2010.
At mediation on October 5, 2009, the City made a written settlement offer of $317,500. Hollywood accepted the offer contingent on obtaining an access easement from an abutting property owner, MJR Development. The parties signed a CR 2A settlement agreement to that effect.
As of March 18, 2010, MJR Development had not agreed to grant the easement, and the City submitted an alternative "optional" settlement offer of $307,000, stating, "This offer is intended as a 30 day pre-trial offer and should be considered as an optional means to settlement in addition to the conditioned settlement reached in mediation." The offer expired as of March 26, 2010. Hollywood did not accept.
Appellant's Br. at 9.
At trial, the jury awarded $215,000 in just compensation. Hollywood moved for an award of attorney fees under RCW 8.25.070(1)(a). The court denied the motion on grounds the requirements of the statute were not met. Hollywood appeals this ruling.
DISCUSSION
We review issues of statutory interpretation de novo, and apply the standard principles therefor. Absent disputed facts, the legal effect of a contract is a question law, also reviewed de novo. Attorney fee decisions are reviewable separately from just compensation awards.
State v. Costich, 152 Wn.2d 463, 470, 98 P.3d 795 (2004). We first look to the plain language of the statute. "Recalling our primary goal is to give effect to the legislature's intent, we derive such intent by construing the language as a whole, giving effect to every provision. If the language is unambiguous, we give effect to that language and that language alone because we presume the legislature says what it means and means what it says." Id. (citations omitted).
Keystone Masonry, Inc. v. Garco Constr., Inc., 135 Wn.App. 927, 932, 147 P.3d 610 (2006); see also Berg v. Hudesman, 115 Wn.2d 657, 668, 801 P.2d 222 (1990).
See State v. Trask, 91 Wn.App. 253, 263-64, 957 P.2d 781 (1998).
RCW 8.25.070(1)(a) provides for an award of attorney fees to the condemnee in an eminent domain proceeding if certain circumstances exist:
[I]f a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned, the court shall award the condemnee reasonable attorney's fees and reasonable expert witness fees in the event of any of the following:
(a) If condemnor fails to make any written offer in settlement to condemnee at least thirty days prior to commencement of said trial.
The statute is designed to ensure that each side makes a good faith effort to settle and to achieve fairness in compensation by recognizing not only the taking of the land, but also litigation costs incurred in obtaining just compensation.
State v. Roth, 78 Wn.2d 711, 712-13, 479 P.2d 55 (1971).
Hollywood contends the October 5, 2009 settlement offer did not qualify under the statute because (1) the City did not indicate it was intended as a qualifying 30-day offer under the statute; and (2) Hollywood's acceptance of the offer was conditioned upon the cooperation of a third party.
We reject the first argument. The statute contains no express requirement that a settlement offer be identified as a "qualifying" offer. Rather, it requires only that the offer be in writing. This court will not add language to an unambiguous statute. As acknowledged by Hollywood, "an offer consists of a promise to render a stated performance in exchange for a return promise being given." The City's October 5, 2009 offer was a written promise to pay Hollywood $317,500 in just compensation. It was clearly an offer, and it contained no expiration date.
Costich, 152 Wn.2d at 477 (citing Kilian v. Atkinson, 147 Wn.2d 16, 20, 50 P.3d 638 (2002)).
Pacific Cascade Corp. v. Nimmer, 25 Wn.App. 552, 556, 608 P.2d 266 (1980); see also Appellant's Br. at 30-31.
Hollywood asserts the City was required to identify its October 5, 2009 offer as a 30-day offer by the due process clauses of the state and federal constitutions.Due process requires, at a minimum, notice and an opportunity for a hearing before a deprivation of property takes effect. But Hollywood was afforded a trial on just compensation. Attorney fees are not a constitutional right, and in any event, Hollywood offers no authority supporting its claim that due process requires more than the statute does.
U.S. Const. amend. XIV; Wash. Const. art. I, § 3.
Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wn.2d 418, 422-23, 428-29, 511 P.2d 1002 (1971).
See Peterson v. Port of Seattle, 94 Wn.2d 479, 486-87, 618 P.2d 67 (1980) (statutory fees in condemnation case not constitutionally based). Hollywood also seems to argue that it was deprived of notice and opportunity because it was "left to guess" whether the City's October 5, 2009 offer was a qualifying offer under the statute. Appellant's Br. at 38. But, as mentioned above, the City's offer fit squarely into the standard definition of an offer, and was in writing as required by the statute.
Hollywood next argues that the October 5, 2009 offer does not satisfy RCW 8.25.070(1)(a) because the resulting conditional settlement agreement required the cooperation of a third party. Again we disagree. The statute requires an offer, not fulfillment of an agreement. The City made an unconditional offer with no expiration date. The fact that Hollywood's acceptance was conditioned on occurrence of a future event does not change the fact that the offer was made and never withdrawn. Hollywood cites a number of references for the proposition that, where a condition precedent fails, a binding contract does not arise. But enforceability of the CR 2A agreement is not the issue. Rather, the question is whether the City made a written offer to settle, which it unmistakably did.
The City's offer was conditioned only upon city council approval, which was granted that same day.
See Appellant's Br. at 34-36.
Hollywood claims it did not have the power to accept the City's offer because it was reliant on the cooperation of MRJ Development to fulfill the condition precedent. But Hollywood did accept the City's offer, and fails to explain why it did not have the power to waive the condition and accept unconditionally.
Hollywood again asserts its due process rights were violated because of its reliance on a third party to fulfill the conditional agreement. It fails to flesh out this argument.
Ostensibly attempting to make a public policy argument in support of its position, Hollywood points to various cases and commentators that opine as to the unfairness of the just compensation system in Washington. These policy debates are for the legislature to resolve, not the courts.
See Costich, 152 Wn.2d at 479.
We affirm. Because the court properly denied Hollywood attorney fees below, we deny fees on appeal.