Kelly v. Solano, 83042-2-I

CourtCourt of Appeals of Washington
Writing for the CourtVerellen, J.
PartiesERICA KELLY, Respondent, v. CONSUELO ROSALES SOLANO, Appellant.
Docket Number83042-2-I
Decision Date13 June 2022

ERICA KELLY, Respondent,
v.

CONSUELO ROSALES SOLANO, Appellant.

No. 83042-2-I

Court of Appeals of Washington, Division 1

June 13, 2022


UNPUBLISHED OPINION

Verellen, J.

- Consuela Solano argues that the trial court incorrectly limited her cost recovery under CR 68 to only those costs permitted under RCW 4.84.010, the costs to the prevailing party statute. But because Solano provided no additional statutory or contractual authority allowing recovery of attorney fees, expert witness fees, or other litigation expenses, the court did not abuse its discretion.

We affirm.

FACTS

Between 2015 and 2016, Erica Kelly was in three different motor vehicle accidents.

In December 2016, Kelly sued Milton Nguyen, Consuela Solano, and Joanne Brothers for negligence and negligent infliction of emotional distress, alleging that Nguyen, Solano, and Brothers were jointly and severally liable for her injuries. Kelly

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also sued Nguyen's parents and Hugo Alvarez for negligent entrustment.[1] Kelly and Brothers settled.

On August 21, 2020, Solano and Alvarez served an offer of judgment to Kelly for $15, 000. That September, Solano and Alvarez served another offer of judgment to Kelly for $25, 000. Kelly did not accept either offer. Kelly voluntarily dismissed her claim against Alvarez.

After trial, the jury awarded Kelly $67, 200 in damages and apportioned 80 percent to Nguyen and his parents and 20 percent to Solano. Solano submitted a cost bill under CR 68, arguing that she was entitled to all costs she incurred after she submitted the first offer of judgment. Specifically, Solano requested reimbursement for court filing fees, process service fees, interpreter fees, legal messenger fees, copying fees, court reporter fees, deposition transcript fees, expert witness fees, and attorney fees.

The court found that Solano was only entitled to recover costs under RCW 4.84.010.[2] The court entered judgment against Solano for $13, 340 and awarded Solano $200 in statutory attorney fees and $154 for service of process fees.

Solano appeals.

ANALYSIS

Solano argues that the trial court erred by limiting her cost recovery under CR 68 to only those costs specified in RCW 4.84.010. We review a trial court's

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award of costs for an abuse of discretion.[3] A trial court abuses its discretion when its decision is based upon untenable grounds or reasons.[4]

Under CR 68, "if the judgment finally obtained by the offeree is not more favorable than the offer," CR 68 allows the prevailing party to recover costs as provided in RCW 4.84.010.[5]

RCW 4.84.010, the costs to the prevailing party statute, generally allows the prevailing party to recover costs limited to filing fees, service of process fees, service of publication fees, some notary fees, statutory attorney and witness fees, and reasonable costs of the transcription of depositions used at trial or arbitration proceedings if they are introduced as evidence.[6] In very limited situations, the prevailing party may be entitled to a broader range of costs in addition to the costs specified in RCW 4.84.010 if a specific statutory authority or contractual provision authorizes an expanded cost recovery such as attorney fees, expert witness fees, or other litigation expenses. For example, Washington courts have "found that the prevailing party is entitled to more than statutory costs as provided for in

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RCW 4.84.010, in civil rights actions and under the model toxic control act."[7]

Here, it is undisputed that Solano was the prevailing party under CR 68 and was entitled to recover costs from Kelly. And Solano did not provide any statutory authority or contractual provision authorizing her to recover expanded costs in the form of attorney fees, expert witness fees, or other litigation expenses. Therefore, the trial court did not abuse its discretion in limiting Solano's recovery to the costs specified in RCW 4.84.010.

Solano's arguments advocating for this court to expand CR 68 are not persuasive.

First, Solano argues that the trial court miscalculated her costs by relying on this court's decision in Sims v. KIRO Inc., [8] which, according to Solano, misinterpreted our Supreme Court's decision in Fiorito v. Goerig.[9] Solano's argument is based upon her faulty premise that Fiorito cannot control the outcome here because that case was decided decades before CR 68 was enacted. In interpreting our Supreme Court's decision in Fiorito, this court in Sims held that absent a specific statutory or contractual provision permitting

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recovery...

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