Sw. Suburban Sewer Dist. v. Fish

• Decision Date: 07 June 2021
• Docket Number: No. 80479-1-I,80479-1-I
• Citation: 488 P.3d 839
• Court: Washington Court of Appeals
• Parties: SOUTHWEST SUBURBAN SEWER DISTRICT, a Washington Municipal Corporation, Respondent, v. Brett L. FISH, Appellant, and Corey Fish; and Also All Other Persons or Parties Unknown Claiming Any Right, Title, Estate, Lien, or Interest in the Real Estate Described in the Complaint Herein, Defendants.

488 P.3d 839

SOUTHWEST SUBURBAN SEWER DISTRICT, a Washington Municipal Corporation, Respondent,

v. Brett L. FISH, Appellant,andCorey Fish; and Also All Other Persons or Parties Unknown Claiming Any Right, Title, Estate, Lien, or Interest in the Real Estate Described in the Complaint Herein, Defendants.

No. 80479-1-I

Court of Appeals of Washington, Division 1.

FILED June 7, 2021

Richard Arthur Poulin, SCOPE Law Firm, PLLC, Po Box 22091, Seattle, WA, 98122-0091, for Appellant.

Eric Clayton Frimodt, Curtis J. Chambers, Inslee Best Doezie & Ryder PS, 10900 Ne 4th St., Ste. 1500, Bellevue, WA, 98004-8345, for Respondent.

Corey Fish, Pro Se.

PUBLISHED OPINION

Coburn, J.

¶ 1 This dispute over attorney fees gives us the opportunity to clarify what appears as conflicting opinions between Division One and Division Two of this court as it relates to prescriptive easements and RCW 7.28.083(3). In the instant case, the trial court awarded Southwest Suburban Sewer District attorney fees and costs for its prescriptive easement claim and partition request. Because the plain language of RCW 7.28.083(3) authorizes attorney fees and costs to the prevailing party in an action asserting title to real property by adverse possession, and neither party asserted title by adverse possession in this case, the trial court erred. Also, because the partition proceedings were adversarial, neither party was entitled to partition related fees. Accordingly, we reverse and deny both parties’ request for attorney fees on appeal.

FACTS

¶ 2 For approximately 80 years, the Fish family has owned 5.64 acres of real property in Normandy Park, Washington. The property contains one dilapidated residence. The property borders a 24.04 acre lot on which Southwest Suburban Sewer District (District) operates its Miller Creek Wastewater Treatment Plant (Plant).

¶ 3 In 1986, the District purchased an easement from Byron and Katherine Fish to build an access road to the Plant. After Byron passed away, Katherine quitclaimed the property to her three children—Brett, Troy, and Corey Fish—as tenants in common.¹ Troy passed away in 2002, and Brett and Corey both claim an interest in Troy's 25 percent interest.

¶ 4 Between 2012 and 2017, Brett complained to the District that it was overburdening the easement, exceeding the authorized scope of use of the easement, and failing to maintain the access road or landscape. The District tried and failed to purchase the entire property from Brett. The District and Brett also entered into a temporary license agreement granting the District use of the access road. But after just two months, Brett revoked the agreement.

¶ 5 In June 2013, the District bought Corey's 25 percent interest in the property and became a tenant in common with Brett and Corey. The District asked Brett to voluntary partition the property or agree to a boundary line adjustment. Brett refused.

¶ 6 Four years later, the District filed a complaint in King County Superior Court seeking to partition the property into two parcels—the "Road Parcel" and the "Remainder Parcel." Put simply, the District sought to segregate the access road from the portion of the property with the residence. The District also sought attorney fees and costs. Brett filed an answer, numerous affirmative defenses, and counterclaims. Relevant here is Brett's counterclaim for inverse condemnation. The District's reply asserted affirmative defenses to Brett's counterclaims including that "[t]he District's use of the access road was under a legal claim to the [p]roperty pursuant to a prescriptive easement."

¶ 7 The District filed a motion for partial summary judgment. The District argued, as a tenant in common with Brett, it had the right to unrestricted use of the access road and the right to partition the property. The District also asserted Brett's counterclaim for inverse condemnation was time barred because the District obtained a prescriptive easement.

¶ 8 The trial court granted the District's motion for partial summary judgment determining the District was entitled to partition the property, and each of Brett's counterclaims were barred by the applicable statute of limitations. The trial court also found the District obtained a prescriptive easement over the access road on the property. The trial court partitioned the 13.7 percent with the access road from the rest of the property with the residence. The District would receive the portion with the access road. The trial court also concluded, "Equity requires that the costs incurred by the District in the partition action, including attorneys’ fees, be apportioned as allowed for in RCW 7.52.480." Brett filed, and the trial court denied without prejudice, a motion to reconsider the order granting the District attorney fees.

¶ 9 The trial court determined a reasonable award was $33,667.70 for prescriptive easement related attorney fees and $36,502.36 for apportioned costs. The trial court considered that the District incurred $128,386.92 and Brett incurred $54,890.00 in partition related attorney fees. It determined the District was entitled "[t]o an award of attorneys’ fees against Brett Fish in an amount equal to one half of the delta between $128,386.92 and Brett Fish's reasonable partition related attorneys’ fees [$54,890.00], which is $36,748.46."

¶ 10 Brett appeals.

DISCUSSION

Waiver

¶ 11 Brett appeals the trial court's orders granting partial summary judgment to the District, denying his motion to reconsider summary judgment, denying his motion to reconsider attorney fees, and awarding attorney fees. He also appeals the trial court's findings of facts and conclusions of law and final partition order. However, Brett's appellate brief assigns error only to the order awarding attorney fees and the findings of facts supporting that award. Therefore, we consider only the issues of attorney fees and costs, and we deem the other issues waived. RAP 10(g).

Standard of Review

¶ 12 "The general rule in Washington is that attorney fees will not be awarded for costs of litigation unless authorized by contract, statute, or recognized ground of equity." Durland v. San Juan County, 182 Wash.2d 55, 76, 340 P.3d 191 (2014). "Whether a trial court is authorized to award attorney fees is a question of law, which we review de novo." Workman v. Klinkenberg, 6 Wash. App. 2d 291, 305, 430 P.3d 716 (2018). "When attorney fees are authorized, we will uphold an attorney fee award unless we find the trial court manifestly abused its discretion." Id. at 305, 430 P.3d 716. The trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds or untenable reasons. Berryman v. Metcalf, 177 Wash. App. 644, 657, 312 P.3d. 745 (2013). "A discretionary decision rests on ‘untenable grounds’ or is based on ‘untenable reasons’ if the trial court relies on unsupported facts or applies the wrong legal standard." Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 684, 132 P.3d 115 (2006).

Prescriptive Easement Attorney Fees

¶ 13 Brett argues the trial court erred in awarding the District $33,667.70 in prescriptive easement attorney fees. Specifically, Brett argues the District did not assert a claim for title to real property by adverse possession, so the District is not entitled to an award of attorney fees under RCW 7.28.083(3) and McColl v. Anderson, 6 Wash. App. 2d 88, 91, 429 P.3d 1113, 1115 (2018). We agree.

¶ 14 RCW 7.28.083(3) provides,

The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys’ fees. The court may award all or a portion of costs and reasonable attorneys’ fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.

¶ 15 In McColl, Division Two of this court held that RCW 7.28.083(3) did not apply to McColl's lawsuit for a prescriptive easement. 6 Wash. App. at 92-93, 492 P.2d 1058. There, McColl requested a declaration establishing a prescriptive easement to cross Anderson's property. Id. at 90, 492 P.2d 1058. Anderson prevailed on summary judgment and the trial court awarded Anderson attorney fees under RCW 7.28.083(3). Id. Division Two reversed, and in vacating the attorney fees under RCW 7.28.083(3) stated, "Unlike adverse possession, a prescriptive easement does not quiet title to land[,]" and "[b]ecause a prescriptive easement claim does not actually assert title to property, RCW 7.28.083(3) does not apply to McColl's prescriptive easement lawsuit." Id. at 92-93, 492 P.2d 1058.

¶ 16 A few weeks after Division Two published McColl, Division One published Workman, 6 Wash. App. 2d 291, 430 P.3d 716. Workman filed a complaint for adverse possession and related claims. Id. at 295, 305, 430 P.3d 716. The Klinkenbergs moved for summary judgment. Id. at 296, 430 P.3d 716. Then, Workman amended their complaint by adding claims for prescriptive easement and easement by estoppel. Id. at 295, 430 P.3d 716. Except for the adverse possession and easement claims, the trial court dismissed all the claims on summary judgment. Id. at 295-96, 430 P.3d 716. The Klinkenbergs moved for summary judgment on the easement claims, and stipulated to Workman's quiet title on a portion of the property. Id. at 296, 430 P.3d 716. The trial court granted the Klinkenbergs’ motion and awarded them attorney fees and expenses. Id. at 296-97, 430 P.3d 716.

¶ 17 On appeal, Workman argued that the amount of fees awarded was not reasonable. Id. at 308, 430 P.3d 716. Workman did not argue that RCW 7.28.083 did not authorize attorney fees for prescriptive easement claims. This court affirmed the summary judgment dismissal and attorney fees, and awarded attorney fees on appeal under RCW 7.28.083(3). Id. at 294, 309, 430 P.3d 716. In doing so, this court stated:

[ RCW 7.28.083(3) ] uses the term "adverse possession," and this case involves both adverse possession and prescriptive easements. Because

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