216 P.3d 1007 (Wash. 2009), 80873-2, Noble v. Safe Harbor Family Preservation Trust
| Citation | 216 P.3d 1007, 167 Wn.2d 11 |
| Opinion Judge | C. JOHNSON, J. |
| Party Name | Fred NOBLE and Faith Noble, husband and wife, Respondents, v. SAFE HARBOR FAMILY PRESERVATION TRUST, a Washington Trust, Petitioner, and Tillicum Beach, Inc., et al., Additional Respondents. |
| Attorney | Michael Wayne Johns, Davis Roberts & Johns PLLC, Gig Harbor, WA, for Petitioner. Robert Lyndon Beale, McGavick Graves PS, Tacoma, WA, Robert Dryden Wilson-Hoss, Attorney at Law, Shelton, WA, for Respondents. |
| Judge Panel | WE CONCUR: MADSEN, SANDERS, OWENS, and J. JOHNSON, JJ. ALEXANDER, C.J. (concurring/dissenting). FAIRHURST, J., concurs. CHAMBERS, J. (dissenting). STEPHENS, J., concurs. |
| Case Date | September 24, 2009 |
| Court | Washington Supreme Court |
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Argued March 12, 2009.
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[167 Wn.2d 13] ¶ 1 This case arises out of a condemnation action for a way of private necessity. It asks us to determine whether, under RCW 8.24.030, the trial court had the discretion to require the original condemnee to pay an alternative condemnee's attorney fees and to reduce the original condemnee's award of attorney fees due to the alternative condemnee's involvement in the action. Fred and Faith Noble (Nobles) filed a petition to condemn a way of private necessity across Safe Harbor Family Preservation Trust's (Safe Harbor) property to gain access to the Nobles' property. Safe Harbor (condemnee) defended by alleging that the Nobles had a feasible alternative route. The Nobles then added Tillicum Beach, Inc. (Tillicum), another adjoining lot owner, as an alternative condemnee. The trial court granted the easement over Safe Harbor's property, found Safe Harbor responsible for Tillicum's involvement, [167 Wn.2d 14] ordered it to pay Tillicum's attorney fees, and awarded Safe Harbor reduced attorney fees against the Nobles. Safe Harbor appealed on both attorney fee issues. In a split decision, the Court of Appeals, Division Two, affirmed the trial court's ruling. Noble v. Safe Harbor Family Preserv. Trust, 141 Wash.App. 168, 169 P.3d 45 (2007). We reverse in part and affirm in part.
FACTS AND PROCEDURAL HISTORY
¶ 2 In 1972, Paul and Agnes Stokes (Stokeses), the trustees of Safe Harbor, purchased the Safe Harbor property. The Stokeses created Safe Harbor and deeded the property to the trust for the benefit of their children. The Nobles own adjoining property and have a recorded easement across Safe Harbor's property, but the easement cannot be used. In an earlier case, Safe Harbor and the Nobles litigated various issues involving the easement. In that case, the Court of Appeals ruled in an unpublished decision that since the Nobles' recorded easement could not be developed, they would have to condemn an easement to their property under chapter 8.24 RCW.1
¶ 3 In March 2005, the Nobles filed their petition to condemn a private way of necessity over Safe Harbor's property. In its answer, Safe Harbor raised the following defense: " [t]here is a feasible alternative route available to the Petitioners." Clerk's Papers (CP) at 178. Safe Harbor did not name an alternative condemnee in its answer. Nor did it assert any claim against a third party.
¶ 4 In July 2005, the Nobles filed a motion for leave to amend their petition and add a claim against another adjoining property owner, Tillicum, as an alternate condemnee. To support their motion, the Nobles filed the declaration of their counsel, who stated in relevant part that
[167 Wn.2d 15] [r]espondents are taking the position that a way of necessity should be granted across property owned by Tillicum Beach, Inc. rather than property owned by original Respondents. In order to prevent two
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trials and to assure that there is not an inconsistent result, it is imperative that Tillicum Beach, Inc. and all owners of lots within the plat of Tillicum Beach be joined as additional parties' defendant.
CP at 163.
¶ 5 Tillicum is located directly to the south and adjacent to the Nobles' property. Fred Noble's parents own a house within Tillicum that abuts the Nobles' property. After Safe Harbor prevented the Nobles from using their property, the Nobles used Tillicum's property to access Mr. Noble's parents' lot, from which they would access their property.2 Report of Proceedings (RP) (June 1, 2006) at 11-12, 20-21.
¶ 6 At trial, Tillicum and Safe Harbor litigated between themselves as to who should bear the burden of providing access to the Nobles' property. The trial court concluded that it would be less burdensome to grant a way of necessity over Safe Harbor's property. Tillicum then brought a motion for an award of its attorney fees and costs against Safe Harbor, asserting that Safe Harbor was " responsible" for it being a party to the litigation. The trial court awarded Tillicum fees against Safe Harbor and reduced the attorney fees and costs it awarded Safe Harbor against the Nobles by 70 percent, finding that most of the attorney fees Safe Harbor incurred resulted from Safe Harbor's actions and Tillicum's involvement in the case.
¶ 7 In a split, published decision, the Court of Appeals affirmed the trial court's ruling finding it has broad discretion in awarding attorney fees under RCW 8.24.030,3 and it [167 Wn.2d 16] granted Tillicum attorney fees against Safe Harbor on appeal. The Court of Appeals majority reasoned that Safe Harbor was responsible for Tillicum's presence in the lawsuit, and the trial court did not err in " looking beyond the mechanical process of joinder" to decide who is responsible for the cost of litigating the claimed alternative route. Noble, 141 Wash.App. at 175, 169 P.3d 45.
¶ 8 Safe Harbor petitioned this court for review. It argues that the trial court erred in holding it responsible for Tillicum's attorney fees and that the Nobles, as condemnors, should be responsible for those fees. Safe Harbor also contends that the trial court abused its discretion in reducing its award of attorney fees against the Nobles. Accordingly, Safe Harbor asks us to award it reasonable attorney fees incurred in this matter, including those it incurred as a result of the Nobles' decision to sue Tillicum and the attorney fees and costs Safe Harbor incurred as a result of its appeals. Tillicum, on the other hand, asks this court to affirm the award of attorney fees to them against Safe Harbor, including those Tillicum has incurred as a result of this appeal. 4 The Nobles did not submit a brief to this court, but they appeared before us at oral argument.
ISSUES
(1) Under RCW 8.24.030, does the trial court have the discretion to order Safe Harbor to pay Tillicum's attorney fees?
(2) Under RCW 8.24.030, did the trial court abuse its discretion by reducing Safe Harbor's attorney fees against the Nobles?
[167 Wn.2d 17] ANALYSIS
¶ 9 Chapter 8.24 RCW governs condemnation proceedings for a private way of necessity. In such proceedings, the condemnor has the burden of proving the reasonable necessity for a private way of necessity, including the absence of alternatives. State ex rel. Carlson v. Superior Court, 107 Wash. 228, 234, 181 P. 689 (1919). Under
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RCW 8.24.025, the trial court must consider alternative routes, according to the list of criteria provided in that statute.5
¶ 10 In a condemnation action for a private way of necessity, RCW 8.24.030 permits, but does not require, a trial court to grant a condemnee attorney fees. It provides:
In any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys' fees and expert witness costs may be allowed by the court to reimburse the condemnee.
RCW 8.24.030.
¶ 11 In order to reverse an attorney fee award made pursuant to a statute or contract, an appellate court must find the trial court manifestly abused its discretion. A trial court abuses its discretion when its decision or order is manifestly unreasonable, exercised on untenable grounds, or exercised for untenable reasons. Untenable reasons include errors of law.
¶ 12 Here, the Court of Appeals majority, reasoning that RCW 8.24.030 grants a trial court " broad discretion" in [167 Wn.2d 18] awarding attorney fees, found the trial court properly held Safe Harbor " responsible" for Tillicum's involvement in the lawsuit and liable for Tillicum's attorney fees. Noble, 141 Wash.App. at 175, 169 P.3d 45. The majority rested its decision in part on its interpretation of Kennedy v. Martin, 115 Wash.App. 866, 870-73, 63 P.3d 866 (2003). The majority cited Kennedy for the proposition that " nothing in the language of RCW 8.24.030 or in the case law ... prevents a court from requiring the party responsible for involving the party seeking reimbursement of his attorney fees to pay those fees." Noble, 141 Wash.App. at 175, 169 P.3d 45. The majority's conclusion that Safe Harbor is " responsible" for Tillicum's involvement is based on the facts that Safe Harbor raised the defense of " a feasible alternative route," and then, after the Nobles joined Tillicum, Safe Harbor defended itself using the testimony of Paul Stokes, who the trial court determined was not a credible witness. Noble, 141 Wash.App. at 177, 169 P.3d 45.
¶ 13 In its briefing to this court, Tillicum echoes the Court of Appeals majority. Tillicum argues that Safe Harbor's strategic decision not to join Tillicum after Safe Harbor raised the defense of a feasible alternative route " does not immunize it from responsibility for [its] attorney fees under RCW 8.24.030." Answer to Pet. at 9. Tillicum contends that Kennedy supports its position because the Court of Appeals in that case required the original condemnee to pay the attorney fees of the alternative condemnee, who it had named and joined in the suit. Tillicum reasons that the case before us would have been the same as Kennedy, if Safe Harbor had actually named and joined Tillicum, instead of simply raising the defense of an alternative route. Answer to Pet. at 8-10. Here, Tillicum essentially argues that for the purposes of attorney fees, there should be no difference between an original condemnee who asserts the defense of a...
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