Southwest Suburban Sewer District, V. Brett L. Fish

• Court: Court of Appeals of Washington
• Decided: June 7, 2021
• Docket: 80479-1
• Status: Published

Opinion

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. No. 80479-1-I/2

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.

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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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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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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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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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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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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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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).

9 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)).

10 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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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: