Brian Green & Brian Cortland. V Lewis County

• Court: Court of Appeals of Washington
• Decided: July 21, 2020
• Docket: 52999-8
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

July 21, 2020

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II BRIAN CORTLAND and BRIAN GREEN, No. 52999-8-II

Appellants,

v.

LEWIS COUNTY, a Municipal Corporation, UNPUBLISHED OPINION

Respondent.

SUTTON, A.C.J. — After prevailing on the merits in his Public Records Act (PRA)1 suit

against Lewis County, Brian Green appeals the superior court’s order denying him $255 in costs

for the penalty hearing transcript he purchased. The court ruled that Green was entitled to

reasonable attorney fees and costs and set that amount. The court adopted Green’s proposed order

on fees and costs, which did not make specific findings as to why the court did not award Green

the requested $255 for the penalty hearing transcript. Green appeals the superior court’s penalty

order, specifically, the portion denying him an award of $255 for the penalty hearing transcript.

Green argues that the superior court erred by failing to enter findings in its order denying

him $255—the cost of the penalty hearing transcript he purchased—when he is entitled to an award

of “all costs” under RCW 42.56.550(4) as the prevailing party on the merits. Green requests that

we award him $255 in additional costs, as well as reasonable appellate attorney fees and costs, or

remand for the superior court to make appropriate findings of fact as to why it denied this cost.

1 Ch. 42.56 RCW. No. 52999-8-II

We hold that Green failed to provide us with an adequate record on appeal, and thus, we decline

to reach the merits of his appeal. We affirm the superior court’s order on attorney fees and costs

and deny Green’s request for an award of appellate attorney fees and costs.

FACTS

Green and Brian Cortland jointly prevailed in a PRA suit against Lewis County. Following

the hearing on penalties, both parties submitted proposed orders to the court. Green and Cortland

believed that Lewis County’s proposed order misapplied the superior court’s oral ruling, so they

purchased the penalty hearing transcript and attached it as an exhibit to their motion for

presentation. The superior court adopted Lewis County’s proposed order on penalties and

proposed daily penalty of $0.25 per day per record.

Following the order on penalties, Green and Cortland filed a motion for an award of

attorney fees and costs under the PRA. Green and Cortland sought the following relevant cost:

$255—the purchase cost of the penalty hearing transcript.2 Lewis County argued that Green and

Cortland were not entitled to be compensated for the purchase of the penalty hearing transcript.

Green and Cortland provided the court with a proposed order which did not contain specific

findings of fact related to the $255 penalty transcript cost. The court adopted their proposed order

and entered findings stating that Green and Cortland were the prevailing parties in their PRA

lawsuit, and thus, they were entitled to an award of reasonable attorney fees and costs. The court

ordered Lewis County pay a total of $39,450 in attorney fees and $390 in costs. The court’s order

2 The other costs requested are not at issue on appeal.

2 No. 52999-8-II

stated that it “[did] not find any other costs to be properly compensable.” Clerk’s Papers at 184.

Green moved for reconsideration, which motion the court denied.

Green appeals the superior court’s penalty order, specifically, the portion denying him an

award of $255 for the penalty hearing transcript.

ANALYSIS

If the record is insufficient to determine an issue, we can decline to consider the issue. See

Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012). The failure to provide an adequate

record precludes appellate review. Stiles, 168 Wn. App. at 259. Where written findings of fact

are insufficient or unclear, we may construe the court’s order by reviewing its oral ruling. See

Francis v. Dep’t of Corrections, 178 Wn. App. 42, 52, 313 P.3d 457 (2013). “A party should

arrange for the transcription of all those portions of the verbatim report of proceedings necessary

to present the issues on review.” RAP 9.2(b).

Green drafted the proposed order on attorney costs and fees, which the court ultimately

adopted and signed. Green now argues that this order lacks sufficient findings as to why the court

denied him the $255 he spent purchasing the penalty hearing transcript. However, he proposed

the order without the findings he now complains are lacking. Moreover, he also failed to provide

us the transcript of the court’s oral ruling on attorney fees and costs. Because Green presents the

issue for appeal, he has the burden of providing the record of the hearing on attorney costs and

fees. RAP 9.2(b). Without that record, we cannot adequately review the issues, and therefore, we

decline to reach the merits of Green’s argument. Stiles, 168 Wn. App. at 259.3

3 “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review . . . the party must request the fees or expenses as provided in this rule.” RAP 18.1(a).

3 No. 52999-8-II

CONCLUSION

We affirm the superior court’s order on attorney fees and costs and deny Green’s request

for an award of appellate attorney fees and costs.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

SUTTON, A.C.J. We concur:

MELNICK, J.

CRUSER, J.

RCW 42.56.550(4) provides that any person who prevails in a PRA suit is entitled to reasonable attorney fees and costs. Green has not prevailed on appeal. Therefore, we deny Green’s request for an award of appellant attorney fees and costs.