State v. Roth

• Decision Date: 07 January 1971
• Docket Number: No. 41097,41097
• Citation: 78 Wn.2d 711,479 P.2d 55
• Parties: The STATE of Washington, Respondent, v. Rosa ROTH, a widow, John A. Walz and Helen P. Walz, his wife, John D. Roth, Arthur B. Roth, Elma R. Lawhead, Elmer R. Roth, Katherine L. Wells, Sidney D. Roth, Albert W. Roth, an incompetent, Appellants.
• Court: Washington Supreme Court

Page 711

78 Wn.2d 711

479 P.2d 55

The STATE of Washington, Respondent, v. Rosa ROTH, a widow, John A. Walz and Helen P. Walz, his wife, John D. Roth, Arthur B. Roth, Elma R. Lawhead, Elmer R. Roth, Katherine L. Wells, Sidney D. Roth, Albert W. Roth an incompetent, Appellants.

No. 41097.

Supreme Court of Washington, En Banc.

Jan. 7, 1971.

Rehearing Denied Feb. 25, 1971.

Ned Hall, Vancouver, for appellants.

Slade Gorton, Atty. Gen., James R. Cunningham, James F. Huey, Asst. Attys. Gen., Olympia, for respondent.

STAFFORD, Associate Justice.

This is an action in eminent domain. The property owners appeal from a judgment which failed to include an award for attorney and expert witness fees.

Article I, section 16 of the Washington State Constitution, as amended by amendment 9, provides that private property shall not be taken or damaged for public use without 'just compensation' having first been made. Originally the determination of 'just compensation' was limited to an inquiry of the fair cash market value of the property involved. In re Medina, 69 Wash.2d 574, 418 P.2d 1020 (1966); In re Issaquah, 31 Wash.2d 556, 197 P.2d 1018 (1948).

Experience in the field of eminent domain made it evident, however, that while gross compensation awarded property owners may have been Just in terms of the fair cash market value of the property involved, it was Unfair in terms of the net compensation actually received by litigating property owners. The gross award often was drastically reduced by legitimate costs of litigation to the point that property owners found it an expensive luxury to defend, or even to prepare to defend, a legitimate dispute. The necessary expense of litigation often forced property owners to accept the condemnor's offer even though they felt it was not just compensation.

The 1965 legislature enacted several statutory changes to rectify the situation. The first was designed to prevent meaningless offers and thus avoid, for both sides, unnecessary costs of litigation. RCW 8.25.010 provides that at least 30 days prior to the date set for trial the condemnor is required to serve on the condemnee a written statement showing the amount of total compensation for which it is willing to settle. Second, the condemnor is required to award, in addition to the fair market value of the property, a sum not to exceed $200 to cover actual and reasonable expenditures incurred by the condemnee in the process of evaluating the condemnor's offer. RCW 8.25.020. Third, the condemnor is required to pay a limited amount for the actual reasonable expenses necessarily incurred by the condemnee in removing his personalty from the appropriated property. RCW 8.25.040. Finally, in the event the condemnor abandons the proceedings after entry of an order of public use and necessity, the trial court is given discretion to award to the condemnee a reasonable sum as attorney and expert witness fees. RCW 8.25.030.

In 1967, the legislature took further steps to attain a measure of equality between 'just compensation' and the condemnee's net compensation. It passed RCW 8.25.070 which provides in part:

If a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned and if the condemnee has offered to stipulate to an order of immediate possession of the property being condemned, the court may award the condemnee reasonable attorney's fees and reasonable expert witness fees actually incurred in the event of any of the following:

(1) If condemnor fails to make any written offer in settlement to condemnee at least thirty court days prior to commencement of said trial; or

(2) If the judgment awarded as a result of the trial exceeds by ten percent or more the highest written offer in settlement submitted to those condemnees appearing in the action by condemnor at least thirty days prior to commencement of said trial; or

(3) If, in the opinion of the trial court, condemnor has shown bad faith in its dealings with condemnee relative to the property condemned.

On January 25, 1968, the Washington State Highway Commission filed the instant proceeding to acquire a strip of land for construction of a secondary state highway. On the same day the condemnees were given a written offer of $1,570 for the 25.13 acres of their property which was to be acquired. An order adjudicating public use and necessity was entered February 16, 1968 and the case was set for trial. The state made no further written offers although 10 days prior to the trial in October 1968, a state appraiser Orally offered the condemnees $6,280.

One day before trial the Attorney General received from the condemnees a written offer to stipulate to an order of immediate possession of the property involved. The state, however, did not take possession of the property. At the conclusion of the trial the jury returned a verdict of $16,972.75 for the condemnees, a sum substantially in excess of either the written or oral offer made by the state. The trial court ruled that an attorney's fee of $3,500 and expert witness fees of $200 for each of two witnesses were reasonable, but refused to make an award under RCW 8.25.070 because the condemnees' offer to stipulate to immediate possession was deemed to be untimely.

The issue before us is whether an offer to stipulate to an order of immediate possession received by the condemnor one day before trial is sufficient to satisfy RCW 8.25.070.

The express terms of RCW 8.25.070 do not limit the time within which a condemnee may offer to stipulate to immediate possession. Had the legislature intended to impose such a limitation, we presume the statute would have so provided. In addition, the statute is not vague, ambiguous or irrational on its face. Where there is no ambiguity in a statute, there is nothing for this court to interpret. State ex rel. Hagan v. Chinook Hotel, 65 Wash.2d 573, 399 P.2d 8 (1965) and cases cited therein. Even if it could be said that the time limitation must have been omitted inadvertently, it is not the function of this court to inject one. Vannoy v. Pacific Power & Light Co., 59 Wash.2d 623, 369 P.2d 848 (1962). That is purely a legislative problem. Thus, we hold that the offer to stipulate to immediate possession and use was timely made under RCW 8.25.070.

The state contends that even if the condemnees' offer to stipulate was timely, the award of fees authorized by RCW 8.25.070 is discretionary. It is urged that there has been no showing that the trial court abused its discretion. The state argues that this discretion is found in that portion of RCW 8.25.070 which reads:

the court may award the condemnee reasonable attorney's fees and reasonable expert witness fees actually incurred * * *.

It should be noted that RCW 8.25.030, ¹ another section of the statutory scheme which authorizes a trial court to award reasonable attorney and expert witness fees, expressly provides that the authority to make the award is 'discretionary':

the court may In its discretion award to the condemnee a reasonable sum as attorneys' fees and expert witnesses' fees.

(Italics ours.)

Earlier enactments dealing with the same subject matter are presumed to have been considered by the legislature when it amends legislation. Any new provisions of a statute are then deemed adopted in light of and with reference to the earlier act. Where different language is used in the same connection in different parts of a statute, it is presumed that a different meaning was intended. 82 C.J.S. Statutes § 348 (1953). If the legislature had intended the award authorized by RCW 8.25.070 to be 'discretionary' it could have so provided, as it did in RCW 8.25.030. Having failed to do so we can only conclude that the legislative action was intentional.

The fact that RCW 8.25.070 provides that:

the court may award the condemnee reasonable attorney's fees and reasonable expert witness fees actually incurred * * *.

does not mean that the trial court has discretion to withhold an award. To provide that a trial court may award Reasonable fees is quite different from saying a court has discretion to totally withhold a fee. The legislative authorizing of discretion is a grant of power to determine the reasonableness of requested fees, not a grant of power to determine that No fee, even though reasonable, shall be awarded.

Many factors enter into a court's determination of the 'reasonableness' of fees. See Annot., 56 A.L.R.2d 13 (1957); 7 Am.Jur.2d Attorneys at Law § 235 (1963); 7 C.J.S. Attorney and Client § 191 (1937). Consequently a trial judge is given broad powers in making such a decision. The trial court's ruling as to reasonableness of the requested fees in this case, however, will not be disturbed on appeal because the state has not questioned the reasonableness thereof. RCW 8.25.070 provides no additional discretion to deny the award once the trial court has made an unchallenged finding that the fees are reasonable.

The primary consideration, as with any question of statutory construction, is to determine the intent of the legislature. 3 J. Sutherland, Statutory Construction § 5813 at 95 (3rd ed. 1943); State ex rel. Blume v. Yelle, 52 Wash.2d 158, 324 P.2d 247 (1958). As a general proposition, courts will apply the construction which best carries into effect the purpose of the statute under consideration. 3 J. Sutherland, Statutory Construction § 5804 (3rd ed. 1943). Our interpretation is consistent with the above-mentioned statutory trend away from an award of 'just compensation' based strictly upon the market value of property and toward an award that makes the net compensation more nearly equal to the actual loss of a condemnee who justifiably feels he must challenge the state's highest written offer.

The judgment of the trial court is reversed and the case remanded for payment of those attorney and expert witness fees actually incurred, which were...