Scott Fetzer Co. v. Weeks
| Decision Date | 26 August 1993 |
| Docket Number | C-,No. 58870-8,I,58870-8 |
| Parties | The SCOTT FETZER COMPANY, Kirby Company Division, an Ohio corporation, Appellants, v. Carol J. WEEKS, d/b/anc., and Taylor-Edwards Warehouse and Transfer Co. of Spokane, Inc., Defendants, Charles M. McDonald, Respondent/Cross-Appellant. En Banc |
| Court | Washington Supreme Court |
Reed & Giesa, P.S., D. Roger Reed, Spokane, for appellants.
F. Lawrence Taylor, Jr., Spokane, McDonald & Malone, Charles M. McDonald, Waco, TX, of counsel, for respondent.
In 1987, the Scott Fetzer Co. (Fetzer) sued Dwight's Discount Vacuum Cleaner City (Dwight's) over the ownership of 120 vacuum cleaners, valued at $19,000. Dwight's prevailed on a motion to dismiss for lack of jurisdiction, and requested attorneys fees of $180,914. The trial judge granted $116,788. We reversed that award as excessive and remanded the issue for the trial judge to re-evaluate both the hourly rate and the number of hours claimed. On remand, the trial judge reduced the total award of fees and costs to $72,746.38. The sole issue before us is whether the trial court properly calculated those fees. We hold that Fetzer raises two issues: (1) whether the trial court correctly decided the point at which the jurisdictional defense reasonably became available for the purpose of awarding attorneys fees; and (2) whether its decision to award appellate attorneys fees at the rate of $150 per hour was correct. We affirm the court's decision as to the hourly rate for appellate work. However, we conclude that the number of hours awarded for bringing the initial jurisdictional motion exceeded those that were reasonably necessary to prevail on that motion.
it did not, and further reduce the total award of fees and costs to $22,454.28.
Dwight's 1 cross-appeals the trial court's decision: (1) not to award it appellate fees for failure to comply with RAP 18.1, and (2) to adopt the hourly figures proposed by Fetzer's expert for the purpose of determining reasonable appellate fees. We affirm the trial court's adoption of the hourly figures proposed by one of Fetzer's experts for appellate work and remand. We also affirm the trial court's decision to deny part of those fees for failure to comply the appellate rules.
The facts underlying the dispute between Fetzer and Dwight's are adequately detailed in Scott Fetzer Co. v. Weeks, 114 Wash.2d 109, 786 P.2d 265 (1990) (hereinafter Fetzer I ) and for the most part will not be repeated here. See Fetzer I, at 111-12, 786 P.2d 265. Briefly, Fetzer commenced a lawsuit against Dwight's in Spokane County on July 11, 1986. Three days later, Dwight's began a lawsuit against Fetzer based on the same facts in the United States District Court for the Western District of Texas. By letter dated July 17, 1986, Dwight's attorney, Charles McDonald, questioned the jurisdiction of the Washington court. McDonald prepared a motion to dismiss for lack of jurisdiction, as well as a supporting brief and affidavit, in September 1986. These materials were not signed and filed until early The Court of Appeals reversed the award, stating that Dwight's did not prevail on the merits. The appellate court also denied Dwight's request for appellate fees for failure to comply with RAP 18.1. This court accepted review and reversed the Court of Appeals regarding the "prevailed on the merits" issue. We then remanded the case to the trial court for an appropriate award of attorneys fees in accordance with the principles articulated in that opinion. Fetzer I, at 124-25, 786 P.2d 265.
February 1987. 2 Dwight's filed an answer on October 15, 1986 which also raised the jurisdictional issue. On March 6, 1987, Dwight's prevailed on its motion as to lack of jurisdiction. Dwight's was also granted attorney fees pursuant to RCW 4.28.185(5) 3 in the amount of $116,787.54
Following remand, a hearing was held to determine the amount of reasonable attorneys fees. The five attorneys asserting a claim to fees are Charles McDonald (Dwight's' Texas attorney), Russell Van Camp (Dwight's' Spokane attorney), Jacquelyn Golly (an associate of Van Camp's), Dustin Deissner (an associate of Van Camp's) and F. Lawrence Taylor (Dwight's' Spokane attorney).
Dwight's called Robert Henderson, who had been practicing law in the Spokane area since 1970, as its expert witness. Fetzer called two attorneys as expert witnesses: Curtis Shoemaker, who had been practicing in the Spokane area since 1966; and Joseph Delay, who had been practicing law in the Spokane area since 1952. For ease of reference, we have summarized the expert testimony in the following two charts:
The trial court further concluded that the jurisdictional "issue was properly raised after the Answer was filed on October 15, 1986". Clerk's Papers (CP), at 862. The court awarded Dwight's all its claimed attorney fees up to that date. The court determined that Dwight's was additionally entitled to fees for work done "from February 7, 1987, when Mr. McDonald travelled to Spokane for the purpose of discussing the jurisdictional issue with co-counsel in preparation of filing ... until the matter was heard and determined by the trial court [on March 6, 1987]". CP, at 862. The court, after reviewing the time sheets for the trial court work of the various attorneys, awarded fees as follows:
Hours awarded Fee awarded
McDonald 418.24 hours or $52,280.00
Van Camp 18.90 hours or $ 2,362.50
Taylor 26.20 hours or $ 2,620.00
Deissner 18.55 hours or $ 1,576.75
Golly 0.00 hours or $ 0.00
The total awarded for the trial court work was $58,839.25.
Turning to the fees requested for appellate work, the trial judge determined that, inasmuch as Dwight's failed to comply with RAP 18.1 5 in the Court of Appeals, none of its attorneys were entitled to fees for their work at that appellate level. For work at the Supreme Court and on remand, the attorneys claimed the following hours:
The trial judge felt that these hours were unjustified. Instead, the court stated that, in determining reasonable fees for the work done before the Supreme Court and on remand, it "was greatly influenced by the plaintiff's experts, and adopted the high figure that was suggested by Mr. Delay in its determination of reasonable attorney fees". CP, at 864-65. The court then awarded each attorney his pro rata share of the total number of allowable hours suggested by Delay for the Supreme Court level (54 hours) and on remand (42.5 hours). The total award of reasonable attorneys fees and costs amounted to $72,746.38. Both parties appealed the trial court's decision. We consider these challenges below.
Generally, in order to reverse a fee award, it must be shown that the trial court manifestly abused its discretion. Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 65, 738 P.2d 665 (1987). This narrow standard of review has been "Fair play and substantial justice" is unsuitable not only as an expression of the legislative intent underlying the fees award statute, but also as a standard for determining or reviewing awards in particular cases....
applied even when the fee award involved carrying out the mandate of this court. Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wash.2d 364, 375, 798 P.2d 799 (1990). However, the deference given to the trial court's award of fees under the long-arm statute has been curtailed by the Fetzer I decision. In Fetzer I, we pointed out that our former touchstone for awarding fees--"fair play and substantial justice"--gave little guidance to either the trial or appellate courts
... [A]wards of attorney fees under RCW 4.28.185(5) have become all-or-nothing propositions, with trial court decisions accorded unquestioned deference so long as lip service has been paid to the notions of fair play and substantial justice.
Fetzer I, 114 Wash.2d at 118, 786 P.2d 265. Hence, this court abandoned the "fair play and substantial justice" standard for such fees in part because it insulated rulings on fees requests from meaningful review. Fetzer I, at 119, 786 P.2d 265. Although our review is still based on an abuse of discretion standard, the discretion of the trial court is now adjudged against the reasonable fees standard of RCW 4.28.185(5).
Fetzer's argument as to the reasonableness of the fees award is based upon the date it believes the motion to dismiss was finished. Fetzer argues that, because the motion as to lack of jurisdiction and its supporting brief and affidavit were all completely prepared by September 8, 1986, this should be the latest date for which attorneys fees should be granted. Fetzer believes that the trial court erred in choosing to award attorneys fees for work done until the answer was filed (October 15, 1986) rather than using this earlier date.
We agree with Fetzer that the award of fees for prevailing on the jurisdictional motion is excessive. However, we do not limit the award solely to services performed prior to the date on which the motion was prepared. As pointed out in the original Fetzer decision, a CR 12(b)(2) motion raising the jurisdictional defense may be brought even...
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