Guillen v. Contreras

• Decision Date: 04 November 2008
• Docket Number: No. 26432-7-III.,26432-7-III.
• Citation: 195 P.3d 90,147 Wn. App. 326
• Parties: Jose GUILLEN, City of Sunnyside, Respondents, v. Lorena CONTRERAS, guardian of Jesus Jaime Torres, Jr., Appellants.
• Court: Washington Court of Appeals

195 P.3d 90

147 Wn. App. 326

Jose GUILLEN, City of Sunnyside, Respondents, v. Lorena CONTRERAS, guardian of Jesus Jaime Torres, Jr., Appellants.

No. 26432-7-III.

Court of Appeals of Washington, Division 3.

November 4, 2008.

Todd V. Harms, Attorney at Law, Richland, WA, for Appellants.

Mark Allen Kunkler, Attorney at Law, Sunnyside, WA, for Respondents.

KORSMO., J.

¶ 1 This is an appeal about attorney fees. Claimants prevailed on some of the issues they raised in a forfeiture proceeding, but recovered only a small portion of the value they sought to gain. The trial court declined to award attorney fees to the claimants. Believing that the phrase "substantially prevails" should not have two different meanings in the same context, we affirm the trial court's ruling.

FACTS

¶ 2 The relevant facts relate largely to procedural matters and are not disputed. In the course of investigating a drug-related shooting on June 28, 2005, the Sunnyside Police Department seized $9,342 in cash found on deceased Jesus Jaime Torres's person, $57,990 in cash found in a package on a loveseat in the living room where the drug transaction occurred, and a 1997 BMW automobile that Mr. Torres drove to the transaction scene. Mr. Torres's family filed a claim with the department for the return of the property.¹ See RCW 69.50.505(5). The municipal court decided that the vehicle and all of the money would be forfeited to the department.

¶ 3 The family filed an appeal with the Yakima County Superior Court. The family advanced four theories for the return of three articles of property. The primary theory was that the innocent owner defense applied to all property seized. Second, the family asserted that the department had not met its burden of proof that the $9,342 was forfeitable under RCW 69.50.505. The third theory was that seizure and forfeiture of the $57,990 was the result of an unlawful search. Lastly, the family contended that forfeiture of the $57,990 was flawed due to lack of proper notice or due process.

¶ 4 The superior court held in favor of the family on two issues: (1) the department did not meet its burden of proof as to the $9,342 and (2) the family was an innocent owner of the BMW. It therefore ordered the return of the $9,342 and the 1997 BMW automobile to the family. The superior court held that the family failed in their claim for the $57,990 because any right to the cash had been relinquished to another prior to death. The superior court reserved the issue of attorney fees for further briefing.

¶ 5 The family submitted a demand for attorney fees under RCW 69.50.505(6). The department expressly indicated that it had no objection to the amount of attorney fees. Counsel argued that the recovery of the car and the $9,342 in cash constituted relief on a significant issue. In denying attorney fees, the court struggled with the meaning of the statute's language that permits the recovery of attorney fees "where the claimant substantially prevails." RCW 69.50.505(6). The court ruled: "I'm looking at the totality of the circumstances, the overall picture, and saying that you haven't shown that he's substantially prevailed, whatever that means." (Emphasis added.) Reconsideration was also denied.

¶ 6 The family petitioned to this court for discretionary review on the substantive forfeiture issues. That petition was denied. The family then petitioned on the attorney fee issue, which was granted by our Commissioner under RAP 2.3(d)(3), as it raises an issue involving the public interest and it is also one of first impression with regard to interpretation of the language in RCW 69.50.505(6).

DISCUSSION

¶ 7 The determination of whether a statute provides for an award of fees "is a question of law and is reviewed de novo." Lindsay v. Pac. Topsoils, Inc., 129 Wash. App. 672, 684, 120 P.3d 102 (2005), review denied, 157 Wash.2d 1011, 139 P.3d 349 (2006); see also Cosmopolitan Eng'g Group, Inc. v. Ondeo Degremont, Inc., 159 Wash.2d 292, 298, 149 P.3d 666 (2006) ("Statutory interpretation is a question of law, subject to de novo review."); State v. Dearbone, 125 Wash.2d 173, 178-179, 883 P.2d 303 (1994) (holding that whether a statute applies to a particular set of facts is a question of law that we review de novo). Washington follows the "American Rule" that a prevailing party does not generally recover its attorney fees unless expressly authorized by statute, by agreement of the parties, or upon a recognized equitable ground. Panorama Vill. Condo. Owners Ass'n Bd. v. Allstate Ins. Co., 144 Wash.2d 130, 143, 26 P.3d 910 (2001). "Statutory fee-shifting provisions have been enacted by the Legislature in numerous instances to encourage enforcement of public policy goals.... Attorney fee awards are essential to encouraging private enforcement of key social policies." PHILIP A. TALMADGE AND MARK V. JORDAN, ATTORNEY FEES IN WASHINGTON, at 35 (2007). One such public policy goal is to award fees to a claimant seeking the return of property wrongfully seized by a law enforcement agency pursuant to RCW 69.50.505, the seizure and forfeiture provision of the Uniform Controlled Substances Act. Moen v. Spokane City Police Dep't, 110 Wash.App. 714, 718-721, 42 P.3d 456 (2002).

¶ 8 The family sought fees under RCW 69.50.505(6), which provides:

In any proceeding to forfeit property under this title, where the claimant substantially prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred by the claimant. In addition, in a court hearing between two or more claimants to the article or articles involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys' fees.

The term "claimants" in the second sentence of this statute does not pertain to the seizing law enforcement agency. Deeter v. Smith, 106 Wash.2d 376, 380, 721 P.2d 519 (1986); Irwin v. Mount, 47 Wash.App. 749, 754, 737 P.2d 277, review denied, 108 Wash.2d 1031 (1987). The department may not, therefore, recover attorney fees as a prevailing party when a claimant is unsuccessful in the recovery of seized property. Irwin, 47 Wash.App. at 754, 737 P.2d 277. But the family in this case is a claimant under the statute.

¶ 9 As this court has held, a statute that makes a party "entitled" to attorney fees is mandatory rather than discretionary as to whether fees should be allowed. Farm Credit Bank v. Tucker, 62 Wash.App. 196, 207, 813 P.2d 619, review denied, 118 Wash.2d 1001, 822 P.2d 287 (1991). "The only discretion is to the amount." Id. (citing Singleton v. Frost, 108 Wash.2d 723, 729-730, 742 P.2d 1224 (1987)). The family must be awarded fees, therefore, if they substantially prevailed in the action. We next must decide what "substantially prevails" means.

¶ 10 The family, citing out-of-state authority and the policy of our statute, contends a claimant who obtains some relief in a forfeiture proceeding is a substantially prevailing party. This argument, however, ignores extensive Washington precedent to the contrary. We do not believe that the Legislature intended that the phrase "substantially prevailing party" would have one meaning for attorney fee awards under the forfeiture statute and a different meaning in other attorney fee awards statutes. Indeed, we believe that in using a phrase that has already been interpreted by the courts, the Legislature intended it to have the same meaning. State v. Rice, 116 Wash.App. 96, 104-105, 64 P.3d 651 (2003); compare Yakima Valley Bank & Trust Co. v. Yakima County, 149 Wash. 552, 556-557, 271 P. 820 (1928) (when Legislature reenacted statute that had already been construed by Washington Supreme Court, it intended the same construction to apply).

¶ 11 RAP 14.2 uses the same language:

A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party.

This language has been the subject of several prior decisions.

¶ 12 When the question is one of money damages, the decision about which party prevails or substantially prevails is easy. The party that receives judgment is the prevailing party. Blair v. Wash. State Univ., 108 Wash.2d 558, 571, 740 P.2d 1379 (1987). The question becomes much more complicated when a monetary judgment is not the sole issue. Typically in such cases, if both parties to litigation prevail to some significant degree, neither is a prevailing party under the rule. For instance, in Northwest Television Club, Inc. v. Gross Seattle, Inc., 96 Wash.2d 973, 634 P.2d 837, 640 P.2d 710 (1981), the court concluded its discussion of the RAP 14.2 issue by summarizing the procedural history of the case:

It is clear, however, that each party partially prevailed in the Court of Appeals, and that in those circumstances the court commissioner was correct under the rule and the case law to deny costs. Here, however, lessee has prevailed on both major issues, and we hold it is therefore entitled to its costs on appeal.

Id. at 985-986. Similarly, in Goedecke v. Viking Investment Corporation, 70 Wash.2d 504, 513, 424 P.2d 307 (1967), the court concluded its opinion: "Since neither party has completely prevailed, each will bear his own costs." Many other cases are similar—if both parties prevail in part, then neither is a "substantially prevailing party." E.g., Ennis v. Ring, 56 Wash.2d 465, 473, 341 P.2d 885, 353 P.2d 950 (1959). However, where one party prevails on only a marginal issue, it is not a prevailing party. S. Kitsap Family Worship Ctr. v. Weir, 135 Wash.App. 900, 915, 146 P.3d 935 (2006) (party that won on claim of property ownership was substantially prevailing party even though opposing party won on claim that a contractual attorney fee provision did not apply to case).

¶ 13 The rule is similar under chapter 4.84 RCW. At...