DAVID COOKE and KELLY RATZMAN-COOKE, a married couple, Respondents/Cross Appellants,
CHU-YUN TWU, an individual, Appellant/Cross Respondent.
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.
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.
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.
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In the unpublished portion of this opinion, we uphold the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.
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.
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
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
Clerk's Papers (CP) at 38. Twu countered with the
[Y]our offer is ineffective because it does not resolve the
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.
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.
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.
appeals the trial court's denial of her request for
attorney fees and costs associated with her timber trespass
Fees and Costs For Twu's Timber Trespass Claim
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
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.
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.
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.
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."
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.
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
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.
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 ...