Southwest Suburban Sewer District, V. Brett L. Fish ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SOUTHWEST SUBURBAN
SEWER DISTRICT, No. 80479-1-I
a Washington Municipal Corporation,
DIVISION ONE
Respondent,
PUBLISHED OPINION
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.
COBURN, J. — 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)
Citations and pin cites are based on the Westlaw online version of the cited material.
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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
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).
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.
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
We refer to individuals by their first names for clarity when family
1
members share the same last name.
2
No. 80479-1-I/3
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.
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.
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.”
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.
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No. 80479-1-I/4
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.
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.”
Brett appeals.
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No. 80479-1-I/5
DISCUSSION
Waiver
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
“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 Wn.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 Wn. 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. 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 Wn. App. 644, 657, 312 P.3d. 745 (2013). “A
discretionary decision rests on ‘untenable grounds’ or is based on ‘untenable
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No. 80479-1-I/6
reasons’ if the trial court relies on unsupported facts or applies the wrong legal
standard.” Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132, P.3d 115 (3006).
Prescriptive Easement Attorney Fees
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 Wn. App. 2d 88, 91, 429 P.3d 1113, 1115 (2018). We agree.
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.
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 Wn. App. at 92-93.
There, McColl requested a declaration establishing a prescriptive easement to
cross Anderson’s property. Id. at 90. 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.
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No. 80479-1-I/7
A few weeks after Division Two published McColl, Division One published
Workman, 6 Wn. App. 2d 291. Workman filed a complaint for adverse
possession and related claims. Id. at 295, 305. The Klinkenbergs moved for
summary judgment. Id. at 296. Then, Workman amended their complaint by
adding claims for prescriptive easement and easement by estoppel. Id. at 295.
Except for the adverse possession and easement claims, the trial court
dismissed all the claims on summary judgment. Id. at 295-96. 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. The trial court
granted the Klinkenbergs’ motion and awarded them attorney fees and
expenses. Id. at 296-97.
On appeal, Workman argued that the amount of fees awarded was not
reasonable. Id. at 308. 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. 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 these doctrines “are often treated as
equivalent[s]” and the elements required to establish adverse
possession and prescriptive easements are the same, this statute
allows recovery for fees incurred on prescriptive easement
claims.[2]
2The Workman court cited Kunkel v. Fisher, 106 Wn. App. 599, 602-03,
23 P.3d 1128 (2001) and 17 W ILLIAM B. STOEBUCK & JOHN W. W EAVER,
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 2.7, at 99 (2d ed. 2004).
6 Wn. App. 2d at 306. Neither Kunkel nor the treatise discuss RCW 7.28.083(3),
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No. 80479-1-I/8
Id. at 305-06. Workman did not mention McColl.
Brett suggests we limit the holding in Workman to the facts of that case—
when claims involving prescriptive easement also involve claims of adverse
possession. We agree. We determine the language in Workman suggesting that
a party who only asserts a prescriptive easement claim is entitled to attorney fees
under RCW 7.28.083(3) is dicta. 3
As the McColl court explained:
An easement is an interest in real property[, but] that interest
involves the use of property and does not grant title to the property.
Similarly, an easement represents a burden on the property subject
to the easement[, b]ut . . . that burden does not provide title to the
property. Unlike adverse possession, a prescriptive easement does
not quiet title to land.
6 Wn. App. 2d at 92 (citations omitted). The plain language of RCW 7.28.083(3)
expressly states that a party to “an action asserting title to real property by
adverse possession may request the court to award costs and reasonable
but they do discuss how the elements for adverse possession and prescriptive
easements are the same while recognizing their differences. As the Kunkel court
explained:
Although adverse possession and easements by prescription are
often treated as equivalent doctrines, they have different histories
and arise for different reasons. Adverse possession promotes the
maximum use of the land, encourages the rejection of stale claims
to land and, most importantly, quiets title in land. Easements by
prescription do not necessarily further those same goals.
106 Wn. App. at 603 (citations omitted).
3 Dicta is “an observation or remark made by a judge in pronouncing an
opinion upon a cause, concerning some rule, principle, or application of law, or
the solution of a question suggested by the case at bar, but not necessarily
involved in the case or essential to its determination; any statement of the law
enunciated by the court merely by way of illustration, argument, analogy, or
suggestion.” State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464, 468
(1954).
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No. 80479-1-I/9
attorneys’ fees.” In the instant case, neither party asserted title to real property
by adverse possession.
Here, given the language in Workman, it is understandable why the trial
court awarded attorney fees for the prescriptive easement claim. 4 However, that
decision was a misapplication of the law. Thus, we reverse the trial court’s
award of attorney fees for the prescriptive easement claim.
Partition Attorney Fees
The trial court determined that under RCW 7.52.480 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.” Brett argues the trial
court manifestly abused its discretion in awarding attorney fees and costs for the
partition action because RCW 7.52.480 does not authorize the award. The
District relies on Kelsey v. Kelsey where the court determined the trial court
properly calculated the attorney fees in a partition action by equalizing the
amount each party expended. 179 Wn. App. 360, 367, 317 P.3d 1096 (2014).
As an initial matter, the District argues the doctrine of judicial estoppel
should preclude review of Brett’s argument on this issue because Brett
4 We recognize that Erbeck v. Springer, No. 72568-8-I, slip op. at *8-9
(Wash. Ct. App. Dec. 21, 2015) (unpublished),
http://www.courts.wa.gov/opinions/pdf/725688.pdf, held that courts may award
attorney fees under RCW 7.28.083(3) for prescriptive easement claims based on
the same authority cited in Workman. No. 72568-8-I at *8-9. Erbeck is an
unpublished opinion, has no precedential value and is not binding on any court.
GR 14.1(a).
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No. 80479-1-I/10
previously recognized, “Under Kelsey, an award [of] attorney fees may be
allowed to equalize the payments made by all of the parties to a contested
partition action.” 5 The District mischaracterizes Brett’s argument below. Brett
initially and primarily argued that RCW 7.52.480 “does not authorize the parties
to a contested partition action to recoup their own attorney fees, because those
fees are not ‘costs of [the] partition.’ ” Then, Brett argued in the alternative that
the trial court should allow “both parties to offset their attorney fees in this
contested partition action.” An argument in the alternative is not inconsistent and
does not warrant judicial estoppel.
RCW 7.52.480 provides, in relevant part,
The cost of partition, including fees of referees and other
disbursements including reasonable attorney fees to be fixed by the
court and in case the land is ordered sold, costs of an abstract of
title, shall be paid by the parties respectively entitled to share in the
lands divided, in proportion to their respective interests therein, and
may be included and specified in the decree.
In Hamilton v. Huggins, this court determined RCW 7.52.480 “is not a
‘prevailing party’ statute” and “does no more than codify the common benefit
rule.” 70 Wn. App. 842, 852, 855 P.2d 1216 (1993). The common benefit rule
provides “that counsel fees should be allowed as part of the costs, or that such
an allowance may be made, in partition suits where all of the parties have
actually benefited therefrom, at least where, and to the extent that, the
5 “The doctrine of ‘[j]udicial estoppel is an equitable doctrine that precludes
a party from asserting one position in a court proceeding and later seeking an
advantage by taking a clearly inconsistent position.’ ” Miller v. Campbell, 164
Wn.2d 529, 539, 192 P.3d 352 (2008) (quoting Arkison v. Ethan Allen, Inc., 160
Wn.2d 535, 538, 160 P.3d 13 (2007)).
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No. 80479-1-I/11
proceedings have been amicable or friendly.” Id. at 850 (citation omitted). The
common benefit rule did not apply in Hamilton because the partition proceedings
were adversarial, not “amicable or friendly.” Id. at 850. Here, Brett argues that
under Hamilton, RCW 7.52.480 does not apply because the proceedings were
adversarial, so neither Brett nor the District was entitled to partition attorney fees
and costs. Here, because the proceedings were adversarial, we agree.
The District argues Hamilton does not preclude the trial court from
equalizing the fees as the court did in Kelsey. We disagree. In Kelsey, neither
party objected to equalizing the fees. The only dispute regarding partition fees
was whether one party could recover the cost of surveying part of the property.
179 Wn. App. at 367. Because the survey was limited to property that the party
requesting the cost received in the partition, the fees were not for the common
benefit of the parties and could not be included in the equalization. Id. at 367.
Because the parties in Kelsey were “amicable and friendly,” the court did not
need to reach the issue raised in Hamilton. Unlike the parties in Kelsey, the
District and Fish in the instant case were in an adversarial dispute.
The District also argues Hamilton applies only where the parties acted in
good faith. The District argues that because Brett did not act in good faith,
Hamilton does not apply. Without citation to the record, the District asserts the
trial court concluded Brett’s actions were not in good faith. The District’s claim is
unsupported. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118
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No. 80479-1-I/12
Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments unsupported by reference to
the record or citation to authority will not be considered).
In the alternative, the District argues this court should reconsider Hamilton
because partition is an equitable action and trial courts have the discretion to
award attorney fees in equity. Here, the trial court awarded the District fees in
equity when it found, “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.” However, as discussed, the equity goal under RCW 7.52.480
recognizes the common benefit rule when friendly parties attempt to partition real
property amicably. As discussed above, the dispute between the District and
Fish was not amicable. Thus, the trial court abused its discretion by basing its
decision on untenable grounds. 6
CONCLUSION
The trial court erred in awarding attorney fees and costs based on
RCW 7.28.083(3) because that statute only allows attorney fees and costs to the
prevailing party in an action asserting title to real property by adverse
possession. Adverse possession of real property was not at issue in this case.
The trial court also erred in awarding attorney fees related to the partition action
because that action was adversarial and did not support the award of attorney
fees under the common benefit rule.
6Because we reverse the trial court’s award of partition fees, we do not
reach Brett’s alternative claim that the trial court abused its discretion as to the
amount of partition fees by failing to determine if the fees were reasonable.
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Because neither party is entitled to an award of attorney fees under
RCW 7.52.480 or RCW 7.28.083(3), neither party is entitled to attorney fees on
appeal. Accordingly, we reverse and deny both parties’ request for attorney fees
on appeal.
WE CONCUR:
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