Beckman v. Wilcox, 23513-7-II

• Decision Date: 02 July 1999
• Docket Number: No. 23513-7-II,23513-7-II
• Parties: Richard L. BECKMAN, a single man, and Richard J. Beckman, a single man, Appellants, v. Monte WILCOX and Jeanette Wilcox, husband and wife; Wesley J. Randall and Karen Randall, husband and wife; David Suther and Kasandra Edgemon-Suther, husband and wife; Wells Fargo And Company, a California corporation; and PHH Mortgage Services Corporation, a New Jersey corporation, Respondents.
• Court: Washington Court of Appeals

Page 890

96 Wn.App. 355

979 P.2d 890

Richard L. BECKMAN, a single man, and Richard J. Beckman, a single man, Appellants, v. Monte WILCOX and Jeanette Wilcox, husband and wife; Wesley J. Randall and Karen Randall, husband and wife; David Suther and Kasandra Edgemon-Suther, husband and wife; Wells Fargo And Company, a California corporation; and PHH Mortgage Services Corporation, a New Jersey corporation, Respondents.

No. 23513-7-II.

Court of Appeals of Washington Division 2.

July 2, 1999.

James J. Mason, Eisenhower & Carlson, Tacoma, for Appellants.

Margaret Yvonne Archer, Gordon, Thomas, Honeywell, Etc., Tacoma, for Respondents.

SEINFELD, J.

A private way of necessity condemnor appeals an award of attorney fees to his condemnee. The trial court awarded the fees

shortly after it dismissed the condemnation action pursuant to the condemnor's motion. The question before us is whether the trial court retained jurisdiction to award attorney fees. Holding that it did, we affirm.

FACTS

The condemnors, Richard L. and Richard J. Beckman (Beckman), filed a petition for a private way of necessity. They sought to condemn a private road owned by Monte and Jeanette Wilcox, Wesley and Karen Randall, and David and Kasandra Edgemon Suther (Wilcox). Wilcox's answer included a request for costs and attorney fees pursuant to RCW 8.24.030.

The trial court issued a memorandum opinion stating that it would grant the private way of necessity upon the condemnor's payment of compensation in an amount to be established at trial and that Wilcox "shall have their reasonable attorney's fees and expert witness costs as permitted by RCW 8.24.050." ¹ The subsequent private way of necessity decree stated that it was subject to Beckman's payment of compensation "and such other atty's fees and other costs as may be allowed by statute and the court."

Because of court congestion, the trial was set and then continued three times; ultimately, it was delayed for more than a year. At one point, Wilcox moved for reimbursement of attorney fees thus far incurred. The trial court continued the motion "until the conclusion of trial."

Finally, on the morning of trial, Beckman moved for voluntary dismissal pursuant to CR 41(a)(1)(B). Wilcox advised the court that it would move again for fees. The trial court then dismissed the suit without prejudice.

About a week later, Wilcox filed a motion for costs and attorney fees. The trial court granted the motion and awarded Wilcox $20,000 in attorney fees and $4,800 in expert witness fees.

Beckman appeals, arguing that the trial court lost jurisdiction to award fees after it dismissed the case. Alternatively, Beckman contends that RCW 8.24.030 does not authorize an award of fees when the condemnee's property is not taken. Beckman also challenges the reasonableness of the fee award.

JURISDICTION AND CR 41

VOLUNTARY DISMISSAL

CR 41(a) provides for the voluntary dismissal of a case upon the plaintiff's motion. CR 41(a)(1) states, in relevant part, as follows: "[A]ny action shall be dismissed by the court ... (B) [u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case." CR 41(a)(4) states: "Unless otherwise stated in the order of dismissal, the dismissal is without prejudice[.]"

Because CR 41(a) follows the federal rule, FED. R. CIV. P. 41(a), we look to decisions and analysis of the federal rule for guidance, but "we are by no means bound by those decisions." Darling v. Champion Home Builders Co., 96 Wash.2d 701, 706, 638 P.2d 1249 (1982) (citing American Discount Corp. v. Saratoga West, 81 Wash.2d 34, 37, 499 P.2d 869 (1972)). Under FED. R. CIV. P. 41, the effect of a voluntary dismissal " 'is to render the proceedings a nullity and leave the parties as if the action had never been brought.' " Bonneville Assoc., Ltd. Partnership v. Barram, 165 F.3d 1360, 1364 (Fed.Cir.1999) (quoting Williams v. Clarke, 82 F.3d 270, 273 (8th Cir.1996) and Smith v. Dowden, 47 F.3d 940, 943 (8th Cir.1995)). ²

Beckman, citing Barr Lab., Inc. v. Abbott Lab., 867 F.2d 743, 747 (2nd Cir.1989), asserts that under federal case law a voluntary dismissal terminates a trial court's jurisdiction over the action in all respects, including its authority to impose sanctions. The United States Supreme Court has concluded otherwise. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (trial court's jurisdiction to impose Rule 11 sanctions survives a notice of voluntary dismissal).

The Cooter & Gell court noted that a "federal court may consider collateral issues after an action is no longer pending." 496 U.S. at 395. The court explained: "This Court has indicated that motions for costs or attorney's fees are 'independent proceeding[s] supplemental to the original proceeding and not a request for a modification of the original decree.' " Cooter & Gell, 496 U.S. at 395, 110 S.Ct. 2447 (quoting Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 170, 59 S.Ct. 777, 83 L.Ed. 1184 (1939)).

Although federal courts have denied motions for statutory attorney fees after voluntary dismissal, they have done so because the relevant statutes authorizing the fees did not provide for fees after the dismissal. For example, in Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1076 (7th Cir.1987), the Seventh Circuit held that 42 U.S.C. § 1988 disallowed fees after voluntary dismissal because the statute authorized payment to the "prevailing party" only. The Seventh Circuit reasoned that because a dismissal under FED. R. CIV. P. 41(a)(1)(i) is without prejudice, the defendant did not prevail. Szabo Food Serv., 823 F.2d at 1077. But the Seventh Circuit went on to approve the imposition of Rule 11 sanctions, reasoning that "[n]either 'prevailing' on the merits nor an entitlement to 'costs' is a necessary condition of a Rule 11 award." Szabo Food Serv., 823 F.2d at 1077.

Beckman, citing Cork Insulation Sales Co. v. Torgeson, 54 Wash.App. 702, 705, 775 P.2d 970 (1989) and Thurston County v. Scammel, 7 Wash. 94, 34 P. 470 (1893), argues that Washington case law also supports his position. But in both of those cases, like the federal cases, the statutes authorizing attorney fees did not apply after voluntary dismissal.

In Scammel, the trial court dismissed an action because the Legislature had repealed the statute authorizing the action, thus depriving the court of its underlying jurisdiction before the start of trial. 7 Wash. at 95, 34 P. 470. Nonetheless, the trial court awarded judgment in favor of the defendant for costs and fees. Scammel, 7 Wash. at 96-97, 34 P. 470. The Supreme Court reversed, reasoning that because the trial court had lost jurisdiction, it had "no more authority to render judgment for costs than for relief." Scammel, 7 Wash. at 95, 34 P. 470. Thus, we must view the Scammel court's broad statement, "where an action is dismissed for want of jurisdiction, no costs can be awarded to either party unless expressly authorized by statute," in that limited context. Scammel, 7 Wash. at 95, 34 P. 470.

In Cork Insulation, a Division Three decision, the court concluded that there could be no award after plaintiff's voluntary dismissal. ³ But its reasoning turned on the particular statute under consideration there. Further, the language from Cork Insulation quoted by Beckman - that upon voluntary dismissal "the court lost jurisdiction of the matter" - does not refer to an award of statutorily authorized attorney fees. 54 Wash.App. at 705, 775 P.2d 970. Rather, the Cork Insulation court was discussing the trial court's assessment of terms against the defendant after the plaintiff obtained a voluntary nonsuit. 54 Wash.App. at 703-05, 775 P.2d 970 (plaintiff should have reduced the award of terms to judgment before or at the same time it moved for voluntary dismissal).

The attorney fee statute in Cork Insulation, RCW 4.84.250, provided for attorney fees to the "prevailing party." 54 Wash.App. at 704, 775 P.2d 970. Because there can be no "prevailing party" as that term is used in RCW 4.84.250 and .270 until after entry of judgment, a pretrial voluntary dismissal makes the attorney fee provision inapplicable. See RCW 4.84.270 (a defendant is the "prevailing party," if the plaintiff recovers no more than "the amount offered in settlement by the defendant") and RCW 4.84.250 ("a judgment must be entered before the offer of settlement is opened"). By contrast, the statute at issue here, RCW 8.24.030, does not predicate attorney fees upon entry of judgment.

Where a party seeking fees meets the conditions of the statute allowing for fees, the trial court may award fees even after a voluntary dismissal. Andersen v. Gold Seal Vineyards, Inc., 81 Wash.2d 863, 867-68, 505 P.2d 790 (1973). In Gold Seal, certain parties sought attorney fees under the fee provision in the long-arm statute, RCW 4.28.185(5). 81 Wash.2d at 864, 505 P.2d 790. That statute allowed fees to a defendant who is sued outside the state and who prevails. RCW 4.28.185(5).

Defendant Gold Seal brought a third party complaint against Sparkletop, who then brought a third party complaint against Napco. Gold Seal, 81 Wash.2d at 864, 505 P.2d 790. During trial, Gold Seal voluntarily dismissed its action against Sparkletop, who then voluntarily dismissed its action against Napco. Gold Seal, 81 Wash.2d at 864-65, 505 P.2d 790. The trial continued with Gold Seal as the only defendant and resulted in a judgment in favor of the plaintiff. Gold Seal, 81 Wash.2d at 865, 505 P.2d 790. The trial court then ordered Gold Seal to pay both Sparkletop's and Napco's costs and fees. Gold Seal, 81 Wash.2d at 865, 505 P.2d 790. The Supreme Court affirmed the fee award, reasoning that because at the end of the proceeding, Sparkletop and Napco had avoided liability, they satisfied the long arm statute's requirement that they be "prevailing parties." ⁴ Gold Seal, 81 Wash.2d at 868, 505 P.2d 790.

Thus, in the Washington...