City of Seattle v. McCoy

48 P.3d 993, 112 Wash. App. 26
CourtCourt of Appeals of Washington
DecidedApril 1, 2002
DocketNo. 48578-4-I
StatusPublished
Cited by4 cases

This text of 48 P.3d 993 (City of Seattle v. McCoy) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Seattle v. McCoy, 48 P.3d 993, 112 Wash. App. 26 (Wash. Ct. App. 2002).

Opinion

Agid, C.J.

The City of Seattle appeals from an order granting attorney fees and costs to Wilmer Morgan and Gwen Dixon.1 The trial court granted respondents’ motion for attorney fees and costs under Washington’s eminent domain statute, RCW 8.25.075, following this court’s decision in City of Seattle v. McCoy (McCoy I).2 McCoy I involved a drug nuisance abatement action the City filed against Oscar and Barbara McCoy, Morgan and Dixon, and real property owned by Morgan and Dixon. This court held that application of the drug nuisance statute to the McCoys “constitute [d] a taking of property without compensation and without due process of law.”3 We agree with the City’s contention that the attorney fees provision of the eminent domain statute does not apply to drug abatement actions. Therefore, we reverse the trial court’s fee award.

FACTS

In November 1997, the City filed a complaint against Oscar and Barbara McCoy, Morgan and Dixon, and real property owned by Morgan and Dixon, under Washington’s drug nuisance abatement statute, chapter 7.43 RCW. The complaint alleged that illegal drug activity occurring at Oscar’s II, a restaurant and lounge owned and operated by the McCoys, made the property a drug nuisance. The McCoys leased the space for Oscar’s from Morgan and Dixon. Among other things, the complaint asked the court to enter a final order of abatement “[providing for the immediate closure of the Subject Property and prohibiting [29]*29use for any purpose for a period of one (1) year or until further order of the Court; and . . . [s] fating that the Subject Property shall remain in the custody and control of the court while the order of abatement is in effect.”

After contested hearings, the trial court found that Oscar’s was “a drug nuisance pursuant to Chapter 7.43 RCW,” and ordered that it be abated and closed to further operation “by and through the Defendants’ [sic] McCoy’ for one year. The effect of the abatement order was to place the property in the custody of the court.4 However, the abatement order was never enforced because the McCoys obtained a stay of the order pending their appeal.

On appeal, we held that the abatement order was an unconstitutional taking under the Fifth Amendment.5 6The court stated:

[C]hapter 7.43 RCW as applied to the McCoys violates the Fifth and Fourteenth Amendments to the United States Constitution. The application of the statute on these facts constitutes a taking of property without compensation and without due process of law. State nuisance and property common law is not an exception to a taking under these facts.[6]

The court did not award the McCoys attorney fees and costs, stating that although amicus for Northwest Legal Foundation urged such an award, “[t]he McCoys ha[d] not cited the takings fee statute or otherwise requested attorney fees as required under RAP 18.1.”7

After the appeal, Morgan and Dixon filed a motion for attorney fees under RCW 8.25.075(1). That provision authorizes the superior court to award a “condemnee” reason[30]*30able attorney fees and costs in “a proceeding instituted by a condemnor to acquire real property” if there is a “final adjudication that the condemnor cannot acquire the real property by condemnation” or if the “proceeding is abandoned by the condemnor.”8 The trial court granted their motion, awarding Morgan and Dixon $7,820.51. The City now appeals the order.

DISCUSSION

The issue is whether the attorney fee provision set forth in RCW 8.25.075(1) applies in the context of drug nuisance abatement proceedings brought under chapter 7.43 RCW. The proper construction of the statute is a question of law that we review de novo.9

Under Washington law, “a court has no power to award attorney fees as a cost of litigation in the absence of contract, statute, or recognized ground of equity providing for fee recovery.”10 The trial court awarded Morgan and Dixon attorney fees and costs under the attorney fee provision contained in Washington’s eminent domain statute. The provision, entitled “Costs — Award to condemnee or plaintiff — Conditions,” provides:

(1) A superior court having jurisdiction of a proceeding instituted by a condemnor to acquire real property shall award the condemnee costs including reasonable attorney fees and reasonable expert witness fees if:
(a) There is a final adjudication that the condemnor cannot acquire the real property by condemnation; or
(b) The proceeding is abandoned by the condemnor.[11]

We apply general principles of statutory construction in determining the meaning of this provision. If the language [31]*31of a statute is plain and unambiguous, we derive its meaning from the statutory language itself.12 However, if the language of the statute is susceptible to more than one reasonable interpretation, an ambiguity exists and we attempt to give effect to the intent and purpose of the Legislature.13 To discern the Legislature’s intent, we may look to the legislative history of the statute as well as to other statutes dealing with the same subject matter.14

We must first decide whether this is a “proceeding instituted by a condemnor to acquire real property.”15 The City argues that the plain language of the provision restricts its application to “proceedings instituted in a formal exercise of the eminent domain power pursuant to RCW 8.12 et seq.” Morgan and Dixon counter that the proceeding instituted by the City “was in effect a condemnation proceeding” because the City was seeking to close the property, to prohibit its use for any purpose for one year, and to give custody and control of the property to the court. We agree with the City.

We hold that drug nuisance abatement proceedings are not proceedings “to acquire real property” within the meaning of RCW 8.25.075(1). Even assuming the City was acting as a “condemnor” in these proceedings, RCW 8.25.075(1) does not apply here because, in initiating the abatement action, the City was not attempting to acquire Morgan and Dixon’s property.16 “Acquisition” is defined as the “gaining of possession or control over something.”17 Unlike eminent domain proceedings, the entry of a final order of abatement under RCW 7.43.090

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Related

Kennedy v. Martin
63 P.3d 866 (Court of Appeals of Washington, 2003)
City of Seattle v. McCoy
48 P.3d 993 (Court of Appeals of Washington, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
48 P.3d 993, 112 Wash. App. 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-seattle-v-mccoy-washctapp-2002.