State v. Trask

• Court: Washington Court of Appeals
• Writing for the Court: MORGAN
• Citation: State v. Trask, 957 P.2d 781, 91 Wn.App. 253 (Wash. App. 1998)
• Decision Date: 29 May 1998
• Docket Number: No. 20325-1-II
• Parties: STATE of Washington, Respondent, v. Russell J. TRASK and Jane Doe Trask, husband and wife; Bainbridge Marine Services, Inc., a Washington corporation; Mark A. Julian and Jane Doe Julian, husband and wife; Eagle Harbor Boatyard, a Washington corporation, Appellants.

Page 253

91 Wn.App. 253

957 P.2d 781

STATE of Washington, Respondent, v. Russell J. TRASK and Jane Doe Trask, husband and wife Bainbridge Marine Services, Inc., a Washington corporation Mark A. Julian and Jane Doe Julian, husband and wife; Eagle Harbor Boatyard, a Washington corporation, Appellants.

No. 20325-1-II.

Court of Appeals of Washington Division 2.

May 29, 1998.

As Amended on Denial of Reconsideration Aug. 21, 1998.

David C. Lundsgaard and Larry J. Smith of Graham & Dunn, P.C.; and Romney R. Brain, Michaelanne Ehrenberg, and Kenneth F. Hobbs of Stafford Frey Cooper, for Appellants.

Christine O. Gregoire, Attorney General, and Anne L. Spangler and John T. Hurley, Assistants, for respondent.

MORGAN, Judge.

The State took leased land for public use. The value of the land was established at a jury trial. The lessor and lessee then moved for pre-judgment interest, reasonable attorney fees, and reasonable expert fees (for convenience, pre-judgment interest is hereafter referred to simply as "interest," and reasonable attorney fees and reasonable expert witness fees are hereafter referred to simply as "fees"). The trial court denied their motions. We affirm in part, reverse in part, and remand in part.

For many years, Russell Trask owned waterfront land at Eagle Harbor. ¹ He operated a boat repair business on part of it, and leased another part of it to Mark Julian. ²

In January 1994, the State of Washington sued to take Trask's land for an expansion of its ferry maintenance facility at Eagle Harbor. It also asked Trask and Julian to stipulate to an order of immediate possession and use. ³ They agreed, and the resulting order was entered on April 1, 1994. The order stated that Trask would vacate a specified part of the land no later than August 1, 1994, and the rest no later than August 1, 1995. Julian would remain while he and the State negotiated a new rental agreement that was expected to run for about two more years. The land would be valued as of October 15, 1994, "as though the environmental contamination ... has been cleaned up." ⁴ The State would pay $1.5 million on April 15, 1994, and another $1 million on April 15, 1995. If a trier of fact should later award more than $2.5 million in just compensation, the State would pay interest on the excess from October 15, 1994. The State would "provide and expedite" relocation benefits in accordance with RCW 8.26, and "reimbursement of attorneys' fees or witness fees [would] be determined by RCW 8.25.070." ⁵ If Trask failed to deliver possession as agreed, the State could remove his remaining property at his expense.

On April 1, 1994, the State paid $1.5 million into court. Trask withdrew the money that same day.

Between April and December 1994, Trask used his own employees to gradually move some of his belongings off the property. Through August 1994, he claimed relocation expenses of about $66,000, which the State paid. Near the end of August, he claimed an additional $80,000 to construct a storage building on the land to which he was moving. Doubting the reasonableness of this claim, the State ordered him not to incur further moving expenses until it could obtain bids from commercial movers. The order was issued on August 29, 1994, and rescinded on September 20, 1994. By then, the State had obtained bids, and it offered to have Trask's belongings moved commercially. It also indicated it would not reimburse Trask for more than a specified amount of moving expenses. Trask sought to bring an administrative appeal, but the State required him to wait until he had finished moving, apparently so that it could deal with all moving expenses at once.

Trask did not deliver possession on August 1, 1994. He received an extension to September 1, 1994, but he did not deliver possession on that date either. Julian and the State did not negotiate a rental agreement, and the record does not show when, if ever, Julian delivered possession.

In November 1994, the State moved for an order ejecting Trask from the land that was to have been surrendered on August 1, 1994. Trask resisted, arguing that the State had failed to find him a place to which he could move, and that he himself had been unable to find such a place. On December 5, 1994, the trial court issued the requested order, and two days later Trask delivered possession of the land affected by the order.

On April 1, 1995, the State timely paid another $1 million into court. Trask withdrew all but $300,000, which the court retained for reasons not pertinent to this appeal.

A jury trial commenced in mid-May 1995. On June 13, the jury determined that the State should pay $4.1 million as just compensation. The jury also found that Julian's share of that amount was $394,000. ⁶ Apparently on June 22, 1995, Trask paid $394,000 to Julian. ⁷

On July 12, 1995, the court entered a partial judgment and decree of appropriation. It credited the State with $2.5 million already paid and ordered it to pay another $1.6 million. It ordered that Julian receive $394,000, "which has already been distributed ... from funds previously deposited with the court." ⁸ It provided "that the entry of this partial judgment is without prejudice to the parties['] pursuit of claims and counterclaims for attorneys fees, interest and rent," and that "any ... supplemental judgment relating to such matters shall be separately appealable with the time for such appeal not commencing to run until the entry of such ... supplemental judgment." ⁹

On July 26, 1995, the State paid another $1.6 million into court. Trask withdrew the money two days later.

On August 1, 1995, Trask failed to vacate the remainder of the land he was occupying. In September, nonetheless, he and Julian moved for interest and fees. Trask denied that he had been obligated to deliver possession by September 1, 1994 and August 1, 1995, respectively, arguing instead that he was obligated only to obey an order of ejectment, if and when the State opted to obtain one. Trask also asserted that even if he had been obligated to deliver possession by September 1, 1994 and August 1, 1995, respectively, he had been excused from that obligation when the State failed to "provide and expedite" relocation benefits.

On October 10, 1995, the trial court took evidence "on the issue of whether the State failed to perform its obligations under the [order of immediate possession and use], resulting in Trask not being able to perform his obligation to deliver possession of the property as required ... to qualify for a fee award." ¹⁰ On October 11, the trial court filed a written memorandum opinion finding, among other things, "that Trask did not deliver possession to the State ... as agreed to in the [order granting immediate possession and use]"; that Trask's delivery of possession on the dates agreed to in the order was "a condition precedent to an award of fees"; and that fulfillment of this condition had not been excused, even assuming the State had breached its agreement to provide and expedite relocation benefits. ¹¹

On November 1, 1995, the court filed another memorandum opinion in which it dealt with Julian's right to fees and interest. The court ruled that because "Julian was not a condemnee under the statute," he "was not entitled to an award of fees or interest." ¹²

In January 1996, the court entered findings of fact and a final order. Trask and Julian then filed this appeal.

The issues on appeal are whether Trask and Julian are entitled to interest; whether Trask is entitled to fees; and whether Julian is entitled to fees. Before reaching these issues, however, we must consider certain procedural arguments raised by the State.

I.

The State makes two procedural arguments. Either, if correct, precludes the entire appeal.

A.

The State first argues that neither Trask nor Julian may now appeal because Trask, after the jury verdict, withdrew the $1.6 million excess that the State paid into court. The State bases this argument on RCW 8.04.130 and RCW 8.04.150. ¹³ RCW 8.04.130 provides:

Upon the entry of judgment upon the verdict of the jury or the decision of the court awarding damages, the state may make payment of the damages and the costs of the proceedings by depositing them with the clerk of the court....

In the event appellate review is sought by any party in the proceedings, the moneys paid into the superior court by the state pursuant to this section shall remain in the custody of the court until the final determination of the proceedings by the supreme court or the court of appeals.

RCW 8.04.150 provides:

Either party may seek appellate review of the judgment for damages entered in the superior court within thirty days after the entry of judgment as aforesaid, and such review shall bring before the supreme court or the court of appeals the propriety and justness of the amount of damages in respect to the parties to the review: ... And provided further, that if the owner of land ... accepts the sum awarded by the jury, the court or the judge thereof, he shall be deemed thereby to have waived conclusively appellate review....

Manifestly, the Legislature's purpose in enacting RCW 8.04.130 and RCW 8.04.150 was to insure that if and when a "judgment for damages" (i.e., a judgment setting just compensation) is later reversed on appeal, the State will be able to retrieve its money. This is a concern when the judgment for damages is being attacked on appeal; it is not a concern when the judgment for damages is not being attacked on appeal. Here, the judgment for damages is not being attacked, for no one assigns error to it and the only issues are interest and fees. Accordingly, we hold that the present appeal is not barred by RCW 8.04.130 or RCW 8.04.150, even though Trask previously withdrew the money paid into court. ¹⁴

B.

The State further argues that Trask may not bring the present appeal because he failed to appeal the December 1994 order ejecting him from...