Opinion
No. 34016-0-II.
May 16, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 00-2-07257-5, Salvatore F. Cozza, J., entered May 24, 2004.
Counsel for Appellant(s), Dennis W. Clayton, Paulsen Professional Center, 421 W Riverside Ave Ste 911, Spokane, WA 99201-0410.
Counsel for Respondent/Cross-Appellant, Frank Conklin, Attorney at Law, 818 W Riverside Ave Ste 640, Spokane, WA 99201-0910.
Daniel Thomas Maggs, Attorney at Law, PO Box 540, Cheney, WA 99004-0540.
Affirmed by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall, C.J., and Van Deren, J.
Thomas Myers appeals an attorney fee award to the City of Cheney (the City) following protracted land use litigation. He argues that the trial court erred in (1) denying his motion to continue; (2) denying his motion for an evidentiary hearing; and (3) approving an unreasonably high award of attorney fees at a rate of $225 per hour, for 488.8 hours of work, when Myers actually charged the City $90 per hour. On cross appeal, the City challenges the trial court's denial of its motion to strike a portion of an expert's declaration concerning reasonable appellate attorney fee awards, which the City contends contains inadmissible legal opinions and conclusions.
Finding no abuse of trial court discretion, we affirm.
FACTS
After several years of contentious land use litigation between Thomas Myers and the City, the City prevailed in Spokane County Superior Court and in the Court of Appeals, Division III.
I. Attorney Fee Award in Court of Appeals
In August 2002, the City filed 'Declarations in Support of Award of Costs and Attorney Fees' signed by the City's private attorney, Frank Conklin. Conklin's declaration provided a summary of 389.8 hours he had worked on the case multiplied by his $225 hourly rate, plus $49.85 in costs, for a total of $87,754.85. Two additional declarations from local attorneys, Dan Keefe and Robert Dunn, contained the following, identical language: (1) 'I have had extensive experience dealings with land use issues and constitutional litigation'; (2) 'It is my opinion that the charge of $225.00 per hour is a reasonable charge'; and (3) '[I]t is my opinion that the 389.8 hours worked by Frank Conklin were reasonable and necessary in order to achieve the results in this case.' Clerk's Papers (CP) at 33-35.
Conklin's declaration stated under 'penalty of perjury' that (1) '[t]he attached record of time spent on this appeal has been taken from my business records and accurately reflects the time spent in the appeal of this case,' (2) '[t]he hourly rate for my services as an attorney is $225.00,' and (3) the 'City of Cheney has paid for these hours which were billed upon a monthly basis.' Clerk's Papers (CP) at 30-32.
Myers objected to the City's request for attorney fees, relying on a declaration from appellate attorney (and former Supreme Court Justice) Philip Talmadge. In his declaration, Talmadge asserted that the City's request for attorney fees did not meet the case-law-approved lodestar criteria and that the amount of attorney time claimed was excessive for appellate practice.
In July 2003, the City filed a supplemental declaration requesting an additional $11,211.75 for 49.83 hours at $225 per hour for responding to Myers' motion for reconsideration. Myers filed an amended objection to the City's request for attorney fees.
The record on appeal does not explain what occurred during this intervening year and apparently it is not pertinent to this appeal.
Attached to Myers' objection was a copy of a 1999 fee agreement between the City and Conklin listing a $90 hourly rate for attorney fees, $45 for paralegal services, and a $2,400 monthly retainer. Although Myers has appended this fee agreement to his Brief of Appellant, and has not included it as part of the record on appeal, both parties, as well as the trial court, appear to have accepted this fee agreement as part of the record below.
II. Motion to Modify and Remand
In response to Myers' objection, a Division III Commissioner reduced the City attorney's hourly rate to $90 and the number of billed hours to 300. The City moved to modify this ruling. A panel of Division III judges granted the City's motion to modify and remanded to the trial court for 'appropriate fact finding' and entry of an order awarding the City attorney fees on appeal.
Similarly, this ruling does not appear in the record before us on appeal, although, again, Myers has appended it to his brief.
This motion does not appear in the record but it may be found in the Appendix to Appellant's Brief at 9-17.
This order does not appear in the record but may be found in the Appendix to Appellant's Br. at 40-41.
In the superior court, on April 15, 2004, the City filed a note for hearing, with supporting declarations, requesting $109,998 in attorney fees on appeal. The hearing was scheduled for April 23, 2004, eight days after the notification. Myers moved to continue the April 23 hearing on shortened notice and requested an evidentiary hearing to present testimony and documentation relevant to the City's attorney fee claim. The City moved to strike portions of Talmadge's declarations questioning the City's computation of attorney fees, arguing that these declarations contained inadmissible legal conclusions, and opposed Myers' motion to continue, arguing, '[The] records have been in Mr. Clayton's (counsel for Myers) hands for some time.' CP at 165.
The final supplemental declaration included an additional 41.25 hours for work performed December 2003 through March 2004. Cheney's declaration details 488.88 total hours multiplied by an hourly rate of $225.00 for a total of $109,998. But Cheney's hours enumerated in the final declaration total 479.88, which would render a total fee amount of $107,973. Neither party explained this 10-hour discrepancy in the briefs or at oral argument.
The superior court denied (1) Myers' motion to continue, noting, '[I]n fairness, this is something that, certainly, plaintiff's counsel had to have some basis to anticipate that this would be coming up,' CP at 167; (2) Myers' motion for an evidentiary hearing, because there was no need for oral testimony; and (3) the City's motion to strike portions of Talmadge's declaration. The superior court also entered the following, pertinent, paraphrased oral findings of fact and conclusions of law approving the City's request for attorney fees: (1) The case involved protracted litigation with record intensive work; (2) counsel who practice appellate work typically charge more than counsel who practice trial work; (3) the prevailing rule in case law supports an objective value for legal work 'regardless of a particular negotiation underlying the attorney and the client'; (4) land use work is exceedingly difficult and complex; (5) legal work is expensive, an hourly rate of $225 is not 'particularly shocking,' and it is 'a reasonable fee for appellate work in this area'; (6) the City's attorney, Conklin, 'has a very strong academic and professional reputation in this community' and is 'one of the better attorneys that practices in this field, which is, by its nature, a fairly small group of lawyers to begin with'; and (7) the number of hours were not shocking but 'reflect a very complex case which is part of protracted litigation which has been going on for several years which has involved multiple hearings before this court and on to the reviewing court.' Concluding that 'the multiplier, the hours expended and the rate which is charged appear to be reasonable,' the trial court awarded the City $109,998 in attorney fees. CP at 186-92.
Myers appeals the trial court's attorney fee award. The City cross appeals the trial court's failure to strike portions of Talmadge's declaration. By agreement of the Chief Judges, Division III transferred this appeal to Division II pursuant to CAR 21(a) and RAP 4.4.
ANALYSIS I. Rulings on Discretionary Motions
Myers argues that the trial court abused its discretion by denying his motion to continue and declining to hold an evidentiary hearing. We disagree.
A. Motion for Continuance
Myers argues that the trial court erred in scheduling the attorney fee hearing only eight days after the City noted the hearing because this short notice violated Spokane County Superior Court Local Civil Rule (LCR) 408 and deprived him of a meaningful opportunity to obtain expert testimony and to 'prepare and present his objection' to the City's request for attorney fees. Br. of Appellant at 46. We note at the outset that Myers did not specifically object below based on the City's failure to comply with the time limits of LCR 40.
We review the trial court's denial of a continuance for manifest abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). Abuse occurs when the trial court's discretion is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Myers bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wn.2d 53 (1983). He fails to carry that burden here.
LCR 40(10) requires that the notice for hearing be served no later than 12 days before the hearing.
Myers is correct that scheduling the hearing on attorney fees with only eight days notice violates LCR 40(10) requiring 12 days notice. But, as he acknowledged during oral argument, he did not raise this specific defect below. Therefore, he has waived this objection and cannot raise it for the first time on appeal. RAP 2.5(a).
Moreover, even were we to consider this violation of LCR 40, Myers' argument would fail because he cannot demonstrate prejudice. The trial court may overlook the moving party's failure to observe the notice requirement of CR 6(d) (or a local rule). Such failure will rarely result in appellate reversal unless the non-moving party, here, Myers, can demonstrate prejudice. See Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 364, 617 P.2d 704 (1980). 'To establish prejudice, the party making the challenge must show a lack of actual notice, a lack of time to prepare for the motion, and no opportunity to provide countervailing oral argument and submit case authority.' Zimny v. Lovric, 59 Wn. App. 737, 740, 801 P.2d 259 (1990).
In denying Myers' motion to continue, the superior court questioned his stated need for a continuance and the 'usefulness of counsel from Seattle offering an opinion regarding the reasonableness of attorney's [sic] fees.' CP at 167. The superior court further noted that former Justice Talmadge's comments were already before the court on Myers' behalf and 'in fairness, this is something that, certainly, plaintiff's counsel had to have some basis to anticipate that this would be coming up.' CP at 167.
The City filed its initial and principal declaration requesting attorney fees on August 5, 2002, giving Myers 18 months in which to obtain additional expert opinions. Br. of Resp't at 28. Thus, Myers could not reasonably contend that he lacked time to prepare to contest the City's attorney fee request or that he had 'no opportunity to provide countervailing oral argument and submit case authority.' Zimny, 59 Wn. App. at 740. Because Myers fails to demonstrate prejudice, he cannot show that the trial court abused its discretion in denying his motion to continue.
B. Motion for Evidentiary Hearing with Oral Testimony
Myers further argues that the trial court abused its discretion in denying his request for an evidentiary hearing with oral testimony in order to inquire into Conklin's duplicated and wasteful work and his actual billing rate.
It is within the trial court's discretion to determine whether there are factual and credibility issues requiring a testimonial hearing. City of Blaine v. Feldstein, 129 Wn. App. 73, 76, 117 P.3d 1169 (2005). 'If there are no relevant factual disputes or credibility issues and the record is sufficient to fully inform the court, the case may be properly resolved without a testimonial hearing.' Feldstein, 129 Wn. App. at 76.
In denying Myers' request for a hearing with oral testimony, the trial court noted:
Well, I think it is the custom of this court and I think the general practice in most of the departments of this court when issues of attorney's [sic] fees come up, these are, in my experience, not normally matters that the court takes live testimony on. . . . Typically, the evidence that is considered by the court is in [the] form of affidavits and certificates. I think the nature of the analysis of these matters is not one that, at least in my view, live oral testimony adds a great deal as opposed to simply consideration of documentation.
I think the standards that the court applies in these kinds of cases, at least in my mind, they are fairly clear. They involve a matter of judgment on the part of the trial court in weighing the reasonableness of the various entries. It is simply, in my mind, not something that I think live testimony is really that helpful in this kind of case.
CP at 166-67.
Review of the record supports the superior court's exercise of its discretion. The City had provided declarations detailing the number of attorney hours spent and the reasonable hourly rate for this type of appellate work. Myers had previously presented Talmadge's declaration questioning the City's computation of total hours from the standpoint of an experienced appellate practitioner and the City's deviation from the standard lodestar method of determining reasonable attorney fees. Myers did not demonstrate to the superior court, nor does he demonstrate to us now, what live testimony would have significantly been able to add to the materials already before the superior court.
Accordingly, we hold that the trial court did not abuse its discretion in denying Myers' request for an evidentiary hearing with oral testimony.
C. Motion to Strike Portions of Talmadge's Declaration
In its cross appeal, the City argues the superior court erred in denying its motion to strike inadmissible portions of Talmadge's declaration. We disagree.
Erroneous admission of evidence is not reversible in the absence of prejudice. Floyd v. Myers, 53 Wn.2d 351, 355, 333 P.2d 654 (1959). Because the City received all its requested attorney fees, the Talmadge declaration did not materially affect the trial court's decision. Accordingly, the City has failed to show prejudice.
II. Attorney Fees
Myers argues that the superior court (1) abused its discretion in awarding the City $109,998 in attorney fees because the $225 attorney hourly rate did not reflect the actual $90 rate the City paid Conklin; and (2) improperly applied the lodestar method in finding reasonable Conklin's declared number of hours worked. These arguments also fail.
A. Standard of Review
The trial court's award of attorney fees under a statute or contract is a matter of discretion, which we will not disturb absent a clear showing of abuse of discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987). An award of attorney fees should be guided by the lodestar method, in which the court determines the reasonable number of hours spent in securing a successful recovery, excluding wasteful or duplicative hours. Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). The court then determines the reasonableness of counsel's hourly rate at the time he rendered services. Mahler, 135 Wn.2d at 434. The lodestar fee is 'calculated by multiplying the reasonable hourly rate by the reasonable number of hours incurred in obtaining the successful result.' Mahler, 135 Wn.2d at 434.
B. Reasonable Hourly Rate
Myers relies extensively on In re Discipline of Dynan, 152 Wn.2d 601, 98 P.3d 444 (2004), in advancing his argument that the $225 hourly attorney fee rate awarded to the City was inappropriate. In Dynan, our Supreme Court addressed whether disciplinary sanctions were appropriate against an attorney who had submitted attorney fee declarations to the court containing copies of actual bills to the client with the original, discounted, billing rate whited out and a greater, 'reasonable attorney fee' amount typed it its place. Dynan, 152 Wn.2d at 609-10. Dynan argued that 'an attorney does not have to provide documentation of his actual fee rate . . . because the actual rate may not be the reasonable rate.' Dynan, 152 Wn.2d at 613. Our Supreme Court disagreed, holding:
Dynan, in his official capacity, violated practice norms by not providing the court with his actual rate. Further, even if the submitted rate was reasonable, Dynan's misrepresentations prejudiced the administration of justice by preventing the court from determining an attorney fee award based on true evidence.
Dynan, 152 Wn.2d at 617.
Dynan is distinguishable. First, the case before us here does not involve an attorney discipline proceeding. Second, although the parties assume an hourly rate of $90, the record before us does not clearly indicate what rate Conklin actually billed the City during the years at issue here. Although Conklin never declared that he actually billed the City $225 per hour, on the record before us, his declaration is uncontroverted that '[t]he hourly rate for [his] services as an attorney is $225.00.' CP at 31. The City also provided affidavits from two other attorneys practicing in the same, Spokane area opining that $225 is a reasonable rate based on Conklin's experience and their review of the work performed.
Moreover, the superior court considered Myers' argument that the awarded reasonable attorney fee rate should be the actually billed rate of $90 per hour, and then awarded reasonable fees at a rate of $225 per hour, based on the prevailing market hourly rate. In addition to paying Conklin an hourly attorney fee, the City incurred additional attorney-related overhead expenses for the City attorney's office space in the municipal building, support staff salary, and other office expenses. The superior court's use here of the prevailing $225 market rate comports with well-settled law. In addition, RPC 1.5(a)(3) specifically lists '[t]he fee customarily charged in the locality for similar legal services' as a factor to consider in determining a reasonable fee.
See the declaration of Cheney City Administrator, Paul Schmidt contained in the Appendix to Appellant's Br. at 8. Although not included in the record on appeal, the parties discussed this information during oral argument.
See Blum v. Stemson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984) (reasonable fees may be calculated according to the prevailing market rates in the relevant community whether representation is by private or non-profit counsel); Dep't of Labor Indus. v. Overnite Transp. Co., 67 Wn. App 24, 40, 834 P.2d 638 (1992) (rejecting appellant's argument that fee awards must be cost related and upholding an attorney fee award on behalf of a state agency based on a reasonable market rate), review denied; 120 Wn.2d 1030 (1993), Martinez v. City of Tacoma, 81 Wn. App. 228, 237, 914 P.2d 86 ('the court should award reasonable attorney fees based on market rates regardless of the terms of the private compensation arrangements between plaintiff and counsel.'), review denied, 130 Wn.2d 1010 (1996).
The trial court extensively relied on the reasonableness factors enumerated in RPC 1.5 in analyzing Cheney's fee award.
Accordingly, we hold that the superior court did not abuse its discretion in setting a reasonable attorney fee rate of $225 per hour.
C. Reasonableness of Number of Hours Worked
We turn next to the reasonableness of the hours Conklin worked, which the superior court used in computing the attorney fee award it ordered Myers to pay. Conklin's declaration supplied a detailed summary of the tasks performed and the hours he spent on individual tasks, taken from his business records. This declaration satisfies the Mahler requirement that 'counsel must provide contemporaneous records documenting the hours worked.' 135 Wn.2d at 434. The superior court reviewed Conklin's documentation and determined that the hours he spent 'reflect a very complex case which is part of protracted litigation which has been going on for several years which has involved multiple hearings before this court and on to the reviewing court.' CP at 192. Based on the record before us, we hold that the superior court properly applied the lodestar method, and it did not abuse its discretion in determining a reasonable number of hours worked on which it based its attorney fee award attorney to the City.
During oral argument, we asked whether there was a mathematical error in determining the number of hours worked, 488.88 hours, as represented, or 479.88 by our calculation. We leave that for the parties to resolve with the trial court. See n. 7.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, C.J. and VAN DEREN, J., concur.