Smukalla v. Barth

• Decision Date: 08 March 1994
• Docket Number: No. 15438-2-II,15438-2-II
• Citation: 73 Wn.App. 240,868 P.2d 888
• Court: Washington Court of Appeals
• Parties: Leona SMUKALLA and Ervin Smukalla, wife and husband, Respondents, v. Edward BARTH and "Jane Doe" Barth, husband and wife, Appellants.

Page 240

73 Wn.App. 240

868 P.2d 888

Leona SMUKALLA and Ervin Smukalla, wife and husband, Respondents, v. Edward BARTH and "Jane Doe" Barth, husband and wife, Appellants.

No. 15438-2-II.

Court of Appeals of Washington Division 2.

March 8, 1994.

Harold E. Winther, Harold E. Winther P.S., Puyallup, for appellant.

Ronald E. Thompson, Thompson, Krilich, LaPorte, Tucci & West, P.S., Tacoma, for respondent.

SEINFELD, Acting Chief Judge.

This case involves the procedure for seeking an award of attorney fees following mandatory arbitration. The arbitrator found for defendant Edward Barth and awarded nothing to plaintiff Leona Smukalla. Barth then presented a judgment on the award to the Superior Court for approval and filing. A month after entry of the judgment, Barth moved in Superior Court for attorney fees. The trial court denied the motion. Barth appeals. We affirm.

Leona Smukalla sued Edward Barth ¹ in Pierce County Superior Court; she did not plead any particular amount of damages. Neither party ever made an offer of settlement conforming to RCW 4.84.280. Smukalla noted the case for mandatory arbitration, stating her claim was $35,000 or less. The Superior Court granted partial summary judgment to Barth, dismissing two of Smukalla's five claims before arbitration.

The arbitrator found for Barth and awarded nothing to Smukalla. Barth did not seek an award of attorney fees from the arbitrator on any theory, and the arbitrator did not award attorney fees. Neither party sought trial de novo. Three months after the arbitrator filed his award, Barth obtained entry of judgment on the arbitrator's award pursuant to MAR 6.3. That judgment awarded $125 in costs and no attorney fees.

One month later, Barth moved in Superior Court for attorney fees on two grounds: 1) as a party prevailing against an unfounded and frivolous action or claim under RCW 4.84.185 and CR 11; and 2) as the prevailing party under RCW 4.84.250-.290. Smukalla opposed the motion as untimely and without merit. The Superior Court concluded that the arbitrator no longer had jurisdiction to consider the attorney fee request. It also stated that it could not consider the merits of Barth's motion because it had not tried the case nor heard the testimony. Nor was it willing to require the arbitrator to answer Barth's proposed interrogatories regarding the merits of his attorney fees claim. Neither party cited the Pierce County Local Mandatory Arbitration Rules (PCLMAR) before the Superior Court; consequently, the court did not consider them. The Superior Court denied the request for attorney fees.

We note first that Barth's claim for attorney fees under RCW 4.84.250 is without merit. That statute allows attorney fees for prevailing parties only. Barth is not a prevailing party as defined by RCW 4.84.270. Smukalla did not plead damages of $10,000 or less and Barth did not make an offer of settlement as defined by RCW 4.84.280.

Barth relies most heavily on RCW 4.84.185 ² to support his claim for attorney fees. His appeal assumes that there is no statute or rule establishing the procedure for seeking attorney fees when an arbitrator, not a judge, hears the case. On the other hand, Smukalla argues on appeal that PCLMAR 6.1 governs the award of attorney fees and that Barth failed to comply with that rule, especially its time limits. Smukalla failed to cite this rule to the Superior Court.

PCLMAR 6.1 and other Pierce County local arbitration rules provide that the arbitrator has authority to award attorney fees and that a party seeking fees must meet certain deadlines. We will consider and apply all court rules and statutes that bear on the issues before the Superior Court; such authorities are properly before this court, even if not argued to the lower court. Wolfe v. Legg, 60 Wash.App. 245, 250, 803 P.2d 804 (1991); Batten v. Abrams, 28 Wash.App. 737, 742-43, 626 P.2d 984, review denied, 95 Wash.2d 1033 (1981) (local rule); see Bennett v. Hardy, 113 Wash.2d 912, 918, 784 P.2d 1258 (1990) (statutes); State v. Halsen, 111 Wash.2d 121, 123, 757 P.2d 531 (1988) (statutes); State v. Card, 48 Wash.App. 781, 784, 741 P.2d 65 (1987) (court rule); Wojt v. Chimacum Sch. Dist. 49, 9 Wash.App. 857, 862 n. 4, 516 P.2d 1099 (1973) ("statutes and authorities"). In addition, we may sustain the trial court on any proper ground supported by the record. Hanson v. Snohomish, 121 Wash.2d 552, 557 n. 10, 852 P.2d 295 (1993); Nast v. Michels, 107 Wash.2d 300, 308, 730 P.2d 54 (1986).

The Superior Court Mandatory Arbitration Rules "may be supplemented by local superior court rules". MAR 8.2. Under MAR 3.2(8), "[a]n arbitrator has the authority to ... [p]erform other acts as authorized by ... local rules adopted and filed under rule 8.2." The Pierce County Superior Court has adopted and filed local mandatory arbitration rules. Under the local rules, "[a]n arbitrator has the authority to ... [a]ward attorney fees, as authorized by these rules, by a contract or by law." PCLMAR 3.2(c). "Any motion for actual attorney fees, whether pursuant to contract, statute, or recognized ground in equity, must be presented to the arbitrator...." PCLMAR 6.1(c).

Pierce County's local rules provide detailed procedures governing motions for and awards of attorney fees in mandatory arbitration. The party seeking fees must submit his or her motion to the arbitrator within 7 days of receipt of the award from the arbitrator. PCLMAR 6.1(c)(1). The arbitrator must produce a written decision within 14 days of the motion. PCLMAR 6.1(c)(3). If the arbitrator decides to award attorney fees, the arbitrator must file an amended award; if the arbitrator decides to deny attorney fees, the arbitrator must serve the parties with the decision denying fees. PCLMAR 6.1(c)(4). The arbitrator may choose to hold a hearing on the fee issue. PCLMAR 6.1(c)(5).

Barth did not present his motion for attorney fees to the arbitrator and did not move for attorney fees until more than 4 months after the arbitrator had filed his decision. He did not comply with the applicable local rules and is not entitled to attorney fees.

A recent case involving a Yakima County local mandatory arbitration rule and RCW 4.84.250 supports our decision. See Trusley v. Statler, 69 Wash.App. 462, 849 P.2d 1234 (1993). The Yakima County Superior Court also had adopted a local rule authorizing the arbitrator to award attorney fees "as authorized by these rules[,] by contract[,] or by law." Trusley, 69 Wash.App. at 464 n. 2, 849 P.2d 1234 (quoting PCLMAR 3.2(b); alterations in original). The defendants won at arbitration, and the trial court awarded attorney fees when it entered judgment on the arbitration award. Division Three, in reversing the attorney fee award, said that the superior court had "delegated the authority to award attorney fees in mandatory arbitration hearings to the arbitrator." Trusley, 69 Wash.App. at 464, 849 P.2d 1234.

In Trusley neither party sought de novo review. Thus, the victorious defendants were limited to judgment on the arbitrator's award. Trusley, 69 Wash.App. at 464, 849 P.2d 1234. The Trusley court reasoned:

Since the Statlers [defendants] did not ask the arbitrator to exercise his delegated authority and award them attorney fees under RCW 4.84.250 for the arbitration hearing, fees were not part of the arbitration award. Consequently, they cannot become part of the final judgment. Both parties, by not asking for a trial de novo, accepted the arbitrator's award and may not alter it by requesting action by the Superior Court which would amend that award.

69 Wash.App. at 464, 849 P.2d 1234. The Trusley court's reasoning applies to Barth's motion for attorney fees, as well.

Barth contends that PCLMAR 3.2(c) and 6.1(c) conflict with RCW 4.84.185. He points to the statute's reference to "the court" awarding attorney fees after "the judge" determines the action frivolous. The statute refers to a motion filed after "final judgment" or "other final order" but not filed later than 30 days after the final order. RCW 4.84.185.

We must reconcile or harmonize apparently inconsistent court rules and statutes when possible. ³ State v. Thomas, 121 Wash.2d 504, 511, 851 P.2d 673 (1993); Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 821, 792 P.2d 500 (1990); State v. Ryan, 103 Wash.2d 165, 178, 691 P.2d 197 (1984); Emright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981).

Our task then is to reconcile PCLMAR 3.2(c) and 6.1(c) with RCW 4.84.185. RCW 4.84.185 contemplates that a fact finding judge will enter the findings necessary to support a fee award before awarding attorney fees. However, under Chapter 7.06 RCW and the Superior Court Mandatory Arbitration Rules, an arbitrator sometimes acts as the fact finding "judge" and makes the findings necessary for an attorney fee award. This process is consistent both with PCLMAR 3.2(c) and 6.1(c) and with RCW 4.84.185. Under both RCW 4.84.185 and MAR 6.3, the action returns to the superior court for entry of judgment; if the arbitrator has awarded attorney fees, those fees are part of the judgment entered by the superior court. The superior court thus enters judgment on the fees under both the statute and the rules. The rule and statute are not in conflict.

Further, the arbitration rules do not prevent the parties from disputing the fee award in superior court, as contemplated by RCW 4.84.185. A party aggrieved by the arbitrator's fee award may seek a trial de novo. RCW 7.06.050; MAR 7.1. An aggrieved party could also challenge the arbitrator's award before the superior court by claiming a manifest procedural error, but could not otherwise avoid the arbitrator's award without pursuing a trial de...