Opinion
No. 30490-2-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-2-06319-2. Judgment or order under review. Date filed: 05/16/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), John S. Barnes, Office of the Attorney General, PO Box 40121, Olympia, WA 98504-0121.
Counsel for Respondent(s), Frederick Parker Smith, Attorney at Law, 112 W Meeker, PO Box 247, Puyallup, WA 98371-0026.
The State appeals the trial court's award of fees and costs to Michael Johnson in a condemnation action, in which the trial court ruled that the parties' stipulation of public use and necessity was invalid. The State argues that the stipulation was valid and that Johnson's subsequent failure to stipulate to immediate possession of his property in a timely manner following the trial court's entry of the order adjudicating public use and necessity precluded the trial court's award of statutory fees and costs under RCW 8.25.070(3). We agree and reverse.
FACTS
The State of Washington condemned a portion of Michael Johnson's property abutting 22nd Avenue Northwest for Highway 16 improvements included in the second Tacoma Narrows Bridge construction project.
I. State's Request for Immediate Possession and Use
On March 13, 2001, the State filed a condemnation action and its request to Johnson for immediate possession and use. Johnson received the request, which warned that failure to agree to the State's immediate possession and use would preclude entitlement to the State's payment of his costs and fees under RCW 8.25.070(3). Johnson refused to stipulate to the State's immediate and possession and use.
II. Oral Stipulation to Public Use and Necessity
On June 15, 2001, the parties orally stipulated to entry of an order adjudicating public use and necessity. Their oral stipulation set forth four actions that the parties agreed to take, designed primarily to assure Johnson's access to his property as the highway construction progressed:
1.) 'A driveway will be constructed for access from 22nd Avenue Northwest. The parties contemplate that the height of the new road, driveway, will be raised to the level of the street and that will be something that will be done at a subsequent time. And, that the height of that new road, the driveway onto the Johnson property will conform to Pierce County standards.'
2.) The legal description for Johnson's access to 22nd Avenue will be changed from 'reasonable access to 22nd Avenue' to 'unrestricted access to 22nd Avenue;' 'contingent upon Pierce County's standards for access to the roads.'
3.) Johnson will provide proof to the State of the proper zoning of the property, after which time, the State will 'reappraise the property and assess it.'
4.) The State's slope easement will terminate completely and title will vest back to Johnson when the property is filled and raised to the level of 22nd Avenue.
As the parties explained to the trial court, [J]ust as kind of clarification of the slope easement, the level of this road, 22nd Avenue, will be raised 12, 13, 14 feet or so and, of course, you can't get access. The state has agreed to build Mr. Johnson a driveway so he can get access to the property. We anticipate that the level of the entire lot will be raised to the level of 22nd Avenue. At that point the slope easement will terminate completely and title will vest. Report of Proceedings (RP) 6/15/01 at 4-5.
Report of Proceedings (RP) 6/15/01 at 3-5.
It is uncontroverted that actions two and three were fulfilled. The State amended the legal description, allowing Johnson 'unlimited access' to 22nd Avenue Northwest; this amendment was attached to the OAPU. In July 2001, Johnson provided the State with proof of his property's commercial zoning and the State subsequently increased the amount of its offer to Johnson. As for actions one and four, some time after entry of the OAPU, the State determined that it was necessary for 22nd Avenue Northwest to have a 12 percent grade, rather than the standard 8 percent grade. Thereafter, the State acquired a variance for the steeper grade. The steeper grade was a point of contention between the parties because Johnson believed that the steeper grade would necessitate more fill, at an additional expense, to bring his property up to the level of the street.
III. Entry of Order Adjudicating Public Use
The parties then signed and stipulated to the trial court's entry of a written Stipulated Order Adjudicating Public Use (OAPU), which the trial court filed on June 22, 2001. This written OAPU, however, did not include the four actions enumerated in the parties' earlier oral stipulation. Moreover, the OAPU did not even refer to the parties' previous oral stipulation.
More than a year later, however, these actions were mentioned in the trial court's March 28, 2003 Findings of Fact signed by Johnson's attorney:
1. A driveway will be constructed from 22nd Avenue NW across the temporary slope easement from the new right of way of 22nd Avenue NW.
2. That, as to the Johnson property and a portion of 22nd Avenue that abuts it, there will be unrestricted access, subject to Pierce County's standards for such road accesses.
3. That the level of the remaining Johnson property will have to be raised to the new level of 22nd Avenue, and at the time the filling of the Johnson lot is completed, the slope easement shall terminate completely and fee title will revest in the abutting landowner Johnson. Clerk's Papers (CP) at 41.
Not only does this stipulated OAPU bear the signature of Johnson's attorney, attesting to the stipulation, but also, Johnson neither challenged nor appealed this order. And Johnson did not stipulate to the State's immediate use and possession of his property within 15 days of the OAPU's entry, as required under RCW 8.25.070(3).
IV. Stipulation to Immediate Possession and Use
On November 8, 2001, the State offered Johnson $330,000 for his property, which Johnson rejected, claiming the amount was too low. Because the parties could not agree on a price, the case was set for trial.
Three days before the scheduled trial date, the parties stipulated, for the first time, to an order authorizing immediate possession and use. This order, however, was not entered until May 3, 2002.
V. Trial and Award of Attorney Fees to Johnson
Following a trial, which focused on the amount of compensation for the land taken, the court entered a Judgment and Decree of Appropriation on April 4, 2003, and an amended judgment on May 16, 2003. The trial court had previously ruled that the parties' oral stipulation to entry of the OAPU was not valid because they did not actually reach an agreement:
[T]he problem there is that everybody now seems to have some dispute as to what we orally stipulated to. . . . So, there appears to be a problem with the meeting of the minds. . . . Obviously, whatever was said in court, apparently now everybody is saying they thought something different.
RP 5/3/02 at 27.
[A]s far as I can see, you do not have a valid settlement agreement in this case
. . . . [Y]ou don't have an OAP agreement at this point because what he was contemplating and what you're now saying they were contemplating are two different things.
RP 8/2/02 at 3-4 (emphasis added). Believing that it was 'unjust . . . to deny Mr. Johnson attorney fees,' the trial court awarded him expert witness fees, attorney fees, and costs. The State appeals.
The parties appear to have disagreed about the final elevation of 22nd Avenue and the amount of fill that would be required to bring Johnson's property up to street level, which, in turn, would affect his total compensation for the taking.
The trial court found that (1) the parties' original stipulation contemplated the level of 22nd Avenue would conform to Pierce County standards and would, therefore, be built at a maximum grade of 8 percent; and (2) consequently, the State's later acquisition of a variance to build 22nd Avenue at a 12 percent grade was not authorized by the oral stipulation. The record does not support this reasoning. The oral stipulation provided that the driveway, not 22nd Avenue, would conform to Pierce County standards.
Without reference to RCW 8.25.070's prerequisites for awarding attorney and expert fees in a condemnation action, the trial court's letter ruling provided:
I am awarding the attorney fees requested. It is clear that the attorney fees were caused in large part [due] to the S[t]ate not having completed plans prior to trial to even determine the amount of the damaged property beyond the property taken. It would be unjust under these facts to deny Mr. Johnson attorney fees when the location of the take as well as the slope created by the road construction was unknown until the time of trial. CP at 37.
ANALYSIS I. Order Adjudicating Public Use and Necessity
The purpose of an OAPU is to establish that (1) a public use is involved; (2) the public interest requires the use; and (3) the property in question is necessary for the public use. RCW 8.04.070; State v. Dawes, 66 Wn.2d 578, 583, 404 P.2d 20 (1965). An OAPU does not determine the amount of compensation; that is an issue for trial. In State ex rel. Union Lumber Co. v. Superior Court for Thurston County, 70 Wn. 540, 543-44, 127 P. 109 (1912).
The attorney fee provision of RCW 8.25.070 is specifically designed to enable the condemnor to obtain possession of land before the determination and payment of just compensation. Port of Chelan County v. Maydole, 4 Wn. App. 129, 131, 479 P.2d 558 (1971). Only by timely stipulating to the government's immediate possession and use of the land does the land owner become entitled to reimbursement for attorney fees and other costs associated with the condemnation. Johnson, however, did not fulfill the statutory prerequisites entitling him to such reimbursement.
II. RCW 8.25.070 Attorney Fees and Costs
To receive an award of attorney fees, expert witness fees, and costs under RCW 8.25.070(3), the condemnee must stipulate to an order of immediate possession and use of his property within the later of two time frames:
Reasonable attorney fees and reasonable expert witness fees authorized by this section shall be awarded only if the condemnee stipulates, if requested to do so in writing by the condemnor, to an order of immediate possession and use of the property being condemned [1] within thirty days after receipt of the written request, or [2] within fifteen days after the entry of an order adjudicating public use whichever is later and thereafter delivers possession of the property to the condemnor upon the deposit in court of a warrant sufficient to pay the amount offered as provided by law. In the event, however, the condemnor does not request the condemnee to stipulate to an order of immediate possession and use prior to trial, the condemnee shall be entitled to an award of reasonable attorney fees and reasonable expert witness fees as authorized by subsections (1) and (2) of this section.
RCW 8.25.070(3) (emphasis added.) Johnson complied with neither time frame.
A. Written Request for Immediate Use and Possession
On March 7, 2001, the condemnor, the State, mailed Johnson a written request for immediate possession and use, which request Johnson received. Johnson rejected the request on May 25, 2001, more than 30 days later after receipt of the request. Thus, he did not meet the first statutory time frame. RCW 8.25.070(3)[1].
Accordingly, we turn to the later time frame 15 days from entry of an order adjudicating public use. RCW 8.25.070(3)[2].
B. Order Adjudicating Public Use and Necessity
The trial court filed the OAPU at issue here on June 22, 2001. Johnson argues that (1) the parties' oral stipulation to entry of the OAPU was invalid; (2) therefore, he was not required to stipulate to immediate possession within 15 days of the written order's filing to preserve his right to costs and fees under RCW 8.25.070(3); (3) even if the OAPU was valid, he was not required to stipulate to immediate possession until the OAPU became effective, which could not occur until all conditions were met; and (4) the OAPU never became effective because the State failed to meet some of the conditions. We disagree.
The parties did not incorporate these four actions, or 'conditions,' into the written stipulated OAPU, which their attorneys signed and the trial court filed based on their written stipulation to its entry. Furthermore, Johnson did not appeal the trial court's entry of the written OAPU, which, therefore, became final five days later on June 27, 2001. RCW 8.04.070.
The trial court's written OAPU, entered on June 21, 2001, recited the parties' uncontested stipulation that the taking of Johnson's property was for a public use and necessity. Under RCW 8.25.070(3)[2], Johnson had 15 days from entry of that order to stipulate to the State's immediate use and possession to become eligible for an award of fees under the statute. When he failed to do so, he became ineligible.
Instead, Johnson did not enter into a stipulated order to grant the State access to his property until May 3, 2002, almost a year later, well past the 15-day period prescribed in RCW 8.25.070(3)[2].
Johnson's later argument that the entered OAPU, to which he had stipulated in writing, was invalidated by the State's failure to fulfill all oral 'conditions precedent' is irrelevant. The statute, by its plain terms, references only 'entry of an order adjudicating public use' as the triggering event for Johnson's duty to stipulate to immediate use and possession. RCW 8.25.070(3)[2]. The statute makes no provision for an award of attorney fees based on some non-memorialized, oral stipulation that purports to condition the written and filed OAPU.
Having failed to meet the requirements of RCW 8.25.070(3), Johnson was not entitled to an award of fees and costs under that statute.
In light of our holding that Johnson did not stipulate to immediate possession and use in a timely manner and, thus, did not trigger eligibility for an award of fees and costs under RCW 8.25.070, we need not reach the issue of when Johnson finally delivered possession of the property, which is irrelevant to our analysis.
We reverse the trial court's award of attorney and expert witness fees and costs, and we deny Johnson's request for attorney fees on appeal. RAP 18.1.
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.
MORGAN, A.C.J., BRIDGEWATER, J., concur.