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Cooke v. Twu

Court of Appeals of Washington, Division 2

September 4, 2019

DAVID COOKE and KELLY RATZMAN-COOKE, a married couple, Respondents/Cross Appellants,
v.
CHU-YUN TWU, an individual, Appellant/Cross Respondent.

          OPINION

          Glasgow, J.

         David Cooke and Kelly Ratzman-Cooke sued their neighbor, Chu-Yun Twu, for interference with their view easement and to enforce the height restrictions of their view easement. Twu brought a counterclaim for timber trespass because the Cookes had cut down one of the cherry trees on Twu's property that the Cookes believed was violating the easement.

         The trial court ruled in favor of the Cookes regarding the proper baseline for the view easement's height restrictions but declined to issue an injunction to enforce the easement because there were no ongoing violations. The court also found that Twu's cherry trees were exempt from the easement and that the Cookes had acted willfully when they removed the tree. The court accordingly awarded treble damages to Twu for her timber trespass claim. The court declined to award attorney fees and costs to Twu because it determined that neither party was the prevailing party.

         Twu appeals the trial court's denial of her request for attorney fees and costs. The Cookes cross-appeal, arguing the court's findings regarding the cherry trees were not supported by substantial evidence and the court erred when it declined to issue an injunction.

         In the published portion of this opinion, we affirm the denial of attorney fees and costs for Twu's timber trespass claim. In the unpublished portion of this opinion, we uphold the trial court's factual findings and affirm its conclusions of law and decision not to issue an injunction. We reverse the trial court's denial of attorney fees and costs to Twu for her defense of the interference claim. Consequently, we remand for the trial court to calculate Twu's award for attorney fees and costs for her defense of the view easement interference claim at trial. We also award Twu attorney fees on appeal regarding the Cookes' interference claim, and we deny the Cookes' request for attorney fees on appeal.

         FACTS

         This case arose out of a dispute over a view easement governing two neighboring properties in Camas, Washington. The properties sit on a hill above the Columbia River, with views of the Columbia River Gorge and Mount Hood. There is vegetation on the hillside between the two properties, including several cherry trees on Twu's property.

         The parties negotiated a view easement aimed at protecting the Cookes' view of the Columbia River Gorge over Twu's downhill property. The Cookes later cut down one of the cherry trees on Twu's property that they claimed was violating the view easement. This led to a dispute between the neighbors over interpretation and application of the view easement, culminating in the Cookes filing suit in 2016. The Cookes claimed that Twu was interfering with their rights under the view easement and requested a declaratory judgment that the height restrictions must be measured from the lowest point of Twu's foundation. They claimed damages not exceeding $10, 000 for Twu's interference with their view. They also sought an injunction to enforce the easement height restriction. Twu brought a counterclaim, seeking a declaratory judgment that the height restriction should be measured from a higher point, as well as damages for timber trespass.

Before trial, the Cookes made the following settlement offer:
Pursuant to RCW 4.84.250-300, Plaintiffs offer to settle Defendant's Second Cause of Action for Timber Trespass as follows: Plaintiffs agree to pay Defendant $2, 005.00 in exchange for a dismissal with prejudice of Defendant's Second Cause of Action for Timber Trespass with each side to pay its own costs and attorneys' fees with respect to the dismissed claim.

Clerk's Papers (CP) at 38. Twu countered with the following:

[Y]our offer is ineffective because it does not resolve the entire action.
Ms. Twu will accept payment in the amount of $2, 002.76 to resolve all claims, including claims related to the view easement and timber trespass. Thus, in exchange for the Cookes' (1) payment to Ms. Twu in the amount of $2, 002.76, (2) agreement to only enforce the view easement at or above the elevation of 335.32 feet above sea level, and (3) dismissal of their claims with prejudice, Ms. Twu will agree to dismiss her claims with prejudice.

CP at 39. The Cookes rejected this offer, and the case proceeded to a bench trial.

         The trial court ultimately decided in favor of the Cookes on the issue of the proper baseline from which to measure the easement's height restriction, but the court ruled in favor of Twu on the other claims, including Twu's timber trespass claim. The court awarded Twu $5, 364 for that claim. The court awarded treble damages based on its findings that the Cookes knew the tree was not on their property, Twu had not agreed to removal of the tree, and thus, the Cookes acted willfully when they cut it down.

         The court denied both parties' requests for attorney fees and costs because neither was the prevailing party, reasoning that although Twu prevailed on the Cookes' interference claim and her own timber trespass claim, the Cookes had prevailed on the easement's height restriction.

         Twu appeals the trial court's denial of her request for attorney fees and costs associated with her timber trespass claim.[1]

         ANALYSIS

         Attorney Fees and Costs For Twu's Timber Trespass Claim

         Twu argues the court erred when it declined to award her attorney fees for her successful prosecution of her timber trespass claim. We hold that the trial court properly denied Twu attorney fees and costs with respect to Twu's claim for timber trespass.

         Attorney fees may be recovered only when authorized by statute, a recognized ground of equity, or agreement of the parties. Niccum v. Enquist, 175 Wn.2d 441, 446, 286 P.3d 966 (2012). Whether a statute authorizes an award of attorney fees is a question of law reviewed de novo. Id.

         RCW 4.84.250 through .290 authorize a trial court to award attorney fees and costs to the prevailing party in damage actions where, as here, the party seeking relief requests $10, 000 or less. Under RCW 4.84.260, the plaintiff is the prevailing party when their recovery, excluding costs, "is as much as or more than the amount" they offered to accept in settlement.

         Twu argues that she is entitled to attorney fees on this claim because she recovered more money than she had offered to accept in settlement negotiations. The Cookes argue that Twu did not beat her pretrial settlement offer because her offer was contingent on the Cookes settling another nonmonetary claim in Twu's favor. We agree with the Cookes.

         Chapter 4.84 RCW's attorney fee provisions "encourage[] out-of-court settlements, penalize[] parties who unjustifiably bring or resist small claims, and enable[] parties to pursue meritorious small claims without seeing the award swallowed up by the expense of paying an attorney." McKillop v. Pers. Representative of Estate of Carpine, 192 Wn.App. 541, 545, 369 P.3d 161 (2016). RCW 4.84.260 provides that a party shall be deemed the prevailing party when their recovery "is as much as or more than the amount offered in settlement."

         In McKillop, the plaintiff offered to settle for $5, 000 in general and special damages and $10, 392 in attorney fees, or $15, 392 total. 192 Wn.App. at 546. The jury ultimately awarded her $8, 500 in damages. Id. at 547. Because this amount was more than the $5, 000 settlement offer for damages, the plaintiff argued that she was the prevailing party. Id. Division One of this court held that the trial court erred in awarding attorney fees because it divided the overall settlement offer between the plaintiff's attorney fees and her special and general damages before comparing the damages claim against the amount ultimately awarded by the jury, $8, 500. Id. at 548-49. Instead, the trial court should have treated the entire settlement offer as a single lump sum offer. Id. Because the $8, 500 award was less than the total $15, 392 offer, McKillop was not entitled to fees under RCW 4.84.260. Id.

         The McKillop court relied on Niccum, where our Supreme Court held that the trial court should compare the total amount of the settlement offer with the jury award, and costs should not be subtracted before making the comparison. Niccum, 175 Wn.2d at 450-51. The court in Niccum reasoned that there was no statutory authority for segregating a settlement offer into separate amounts corresponding to damages and costs. Id. at 450.

         Neither McKillop nor Niccum addressed the issue of whether other forms of nonmonetary relief, such as declaratory relief on the proper interpretation of an easement, may be segregated from the monetary award for the purposes of determining the prevailing party under RCW 4.84.260. Nevertheless, the logic of McKillop and Niccum apply under the facts of this case.

         Twu argues that the term "amount" in RCW 4.84.260 suggests that the statute applies only to monetary claims and so we should confine our analysis only to comparing the dollar amounts conveyed in each party's settlement offer, ignoring Twu's ...


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