Dolphus Mcgill v. James Beardon ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES BEARDEN, No. 72926-8-
Respondent, ) DIVISION ONE
v.
PUBLISHED OPINION
DOLPHUS MCGILL-i /
Appellant, )
NELLIE KNOX MCGILL, )
FILED: April 11,2016
Defendant. )
Leach, J. — MAR 7.3 and RCW 7.06.060(1 )1 require that the superior
court assess costs and reasonable attorney fees against a party who asks for a
trial de novo and does not improve his or her position at trial. Here, the parties
disagree about how to determine if Dolphus McGill improved his position at a trial
de novo.
James Bearden sued McGill for damages caused by an auto accident. An
arbitrator awarded Bearden $44,000.00 in compensatory damages and
$1,187.00 in statutory costs, for a total arbitration award of $45,187.00. McGill
requested a trial de novo. The jury awarded Bearden less in compensatory
1 Because the rule and statute are substantively identical, we refer to them
together as MAR 7.3.
NO. 72926-8-1 / 2
damages, $42,500.00. But the trial court awarded more in costs, $3,296.39, for a
total judgment against McGill of $45,796.39. Bearden then asked for an award of
reasonable attorney fees. By comparing the total arbitration award with the total
trial judgment, including all statutory costs, the trial court decided that McGill
failed to improve his position at trial; the total judgment exceeded the total
arbitration award. It awarded Bearden $71,800.00 in attorney fees. McGill
appeals.
We hold that a court determines if a party improved its position at a trial de
novo by comparing every element of monetary relief the arbitrator considered
with the trial court's award for those same elements. Here, this means the
damages and statutory costs that both the arbitrator and trial court considered. It
excludes those statutory costs requested only from the trial court. This
comparison shows that McGill improved his position at a trial de novo. Thus, the
trial court erred in awarding Bearden MAR 7.3 attorney fees. We reverse that
award. Because McGill does not show that the trial court abused its discretion in
awarding Bearden certain challenged costs, we affirm the award of those costs.
FACTS
Dolphus McGill injured James Bearden in a January 2011 automobile
accident. After Bearden sued, the parties took part in mandatory arbitration. The
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arbitrator awarded Bearden $44,000 in compensatory damages and $1,187 in
fees and costs, for an arbitration award of $45,187.
McGill requested a trial de novo. The jury awarded Bearden $42,500.00
in damages. The trial court then awarded Bearden $3,296.39 in costs. These
included costs incurred after the arbitration. The total judgment against McGill
was thus $45,796.39.2
Bearden then asked for attorney fees under MAR 7.3, arguing that McGill
failed to improve his position by appealing the arbitration award. Bearden
pointed out that the $45,796.39 trial court judgment against McGill exceeded the
$45,187.00 arbitration award. McGill responded that costs should not factor into
the analysis: he improved his position from a $44,000.00 damages award after
arbitration to a $42,500.00 damages award after trial. McGill also argued that
Bearden's claimed fees were excessive.
The trial court compared the total amounts after arbitration and trial,
including costs, to see if McGill improved his position by going to trial. The court
ruled McGill did not improve his position, so MAR 7.3 entitled Bearden to
$71,800 in attorney fees. McGill appeals.
2 The trial court judge filled in the judgment form erroneously, writing that
Bearden was awarded a total judgment of $42,500.00 rather than the correct
sum, $45,796.39. McGill points this error out but does not contend that it makes
$42,500.00 the true judgment.
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STANDARD OF REVIEW
This court reviews de novo whether a statute authorizes an award of
attorney fees.3 The application of a court rule is also a question of law we review
de novo.4 This court upholds attorney fee and cost awards unless it finds the trial
court manifestly abused its discretion.5
ANALYSIS
MAR 7.3 Attorney Fees
Washington generally follows the "American rule," where each party in a
civil action pays its own attorney fees and costs.6 But a party may recover
attorney fees when authorized by statute, a recognized ground of equity, or party
agreement.7 Bearden asserts a right to recover fees under MAR 7.3 and RCW
7.06.060(1). McGill disagrees, claiming that Bearden does not meet the
requirements of the rule and statute. He contends that the trial court should not
have compared the total arbitration award with the total trial court judgment to
decide if McGill improved his position for purposes of applying MAR 7.3. He
3 Niccum v. Enquist, 175 Wash. 2d 441, 446, 286 P.3d 966 (2012).
4 Niccum, 175 Wash. 2d at 446.
s In re Disciplinary Proceeding Against VanDerbeek, 153 Wash. 2d 64, 99,
101 P.3d 88 (2004).
e Cosmo. Enq'a Grp.. Inc. v. Ondeo Deoremont. Inc., 159 Wash. 2d 292, 296,
149 P.3d 666 (2006).
7 Niccum, 175 Wash. 2d at 446.
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NO. 72926-8-1 / 5
argues that he improved his position using the proper comparison, the arbitrator's
damages award to the jury's damages award.
To resolve this case, we follow several principles of statutory construction.
A court accepts, without interpretation, the plain meaning of a clearly worded
statute.8 A court will deem a statute ambiguous if it has more than one
reasonable interpretation.9 A court will interpret an ambiguous statute in the way
that best fulfills the legislature's intent.10
MAR 7.3 imposes on a party who appeals an arbitration award an
obligation to pay costs and reasonable attorney fees incurred after the filing of a
request for a trial de novo when that party "fails to improve the party's position on
the trial de novo."11 Like all mandatory arbitration rules, we interpret this rule as if
the legislature drafted it.12 The legislature intended this provision to encourage
settlement and discourage meritless appeals.13
This court has consistently held that to decide if a party improved its
position, the trial court may compare only the claims the party actually arbitrated
with those it tried in superior court. We first applied this rule in Christie-Lambert
8 Biggs v. Vail, 119Wn.2d 129, 134, 830 P.2d 350 (1992).
9 In re Marriage of Kovacs, 121 Wash. 2d 795, 804, 854 P.2d 629 (1993).
10 Kovacs, 121 Wash. 2d at 804.
11 MAR 7.3; RCW 7.06.060(1).
12 Wiley v. Rehak, 143 Wash. 2d 339, 343, 20 P.3d 404 (2001).
13 Niccum, 175 Wash. 2d at 451.
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Van & Storage Co. v. McLeod.14 There, Christie-Lambert arbitrated its claims
against McLeod and Nolan. McLeod did not arbitrate his crossclaim against
Nolan because he had not served her. The arbitrator made an award in favor of
Christie-Lambert. McLeod requested a trial de novo. He did not improve his
position on the issues arbitrated with Christie-Lambert but, having served Nolan,
received a judgment against her. The trial court denied Christie-Lambert's fee
request because McLeod had improved his overall position due to his recovery
from Nolan.15 We reversed and awarded Christie-Lambert fees because McLeod
had not improved his position on the arbitrated claim.16 To reach this result, we
compared the disposition of claims actually litigated between the parties both at
arbitration and trial.
In Sultani v. Leuthv,17 Sultani sued four defendants for injuries he suffered
in two separate car accidents. An arbitrator awarded damages against the four
defendants jointly and severally. At a trial de novo, requested by a defendant, a
jury awarded Sultani a higher amount of damages but apportioned the total
award among the defendants based on a percentage of fault. This meant that
Sultani recovered a lesser damages award from each individual defendant at trial
than he recovered in arbitration. Because Sultani had improved his overall
14 39 Wash. App. 298, 303, 693 P.2d 161 (1984).
15 Christie-Lambert, 39 Wash. App. at 300-01.
16 Christie-Lambert, 39 Wash. App. at 305-06.
17 86 Wash. App. 753, 755, 943 P.2d 1122 (1997).
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NO. 72926-8-1 / 7
award, the trial court awarded him MAR 7.3 fees.18 We reversed, holding that
the court should have compared the result at arbitration and trial for the claim
litigated between Sultani and each individual defendant. Because Sultani
recovered a lesser amount at trial from each individual defendant, each had
improved its position.19
In Yoon v. Keeling,20 Division Two followed Christie-Lambert and Sultani.
Yoon sued Fernau and Keeling for injuries he suffered in a car accident. An
arbitrator awarded Yoon $10,769.00 and apportioned fault 25 percent to Fernau
and 75 percent to Keeling. Fernau requested a trial de novo. Before trial, Yoon
settled with Fernau and Keeling for $8,000.00, leaving only the issue of
apportionment of liability for trial. A jury allocated this liability 32 percent to
Fernau and 68 percent to Keeling. This resulted in Fernau owing Yoon $132.25
less than she owed under the arbitration award.21
The trial court awarded Keeling MAR 7.3 fees against Fernau. Fernau
appealed, claiming she improved her position because she had reduced the
amount she owed Yoon.22 Division Two affirmed the trial court, holding that
because Fernau had not improved her position on the only issue litigated at both
18 Sultani, 86 Wash. App. at 755-56.
19 Sultani, 86 Wash. App. at 761.
20 91 Wash. App. 302, 305-06, 956 P.2d 1116 (1998).
21 Yoon, 91 Wash. App. at 304.
22 Yoon, 91 Wash. App. at 304.
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arbitration and trial between Fernau and Keeling, apportionment of fault, MAR
7.3 entitled Keeling to fees.23
In Mei Tran v. Yue Han Yu,24 this court considered facts analogous to
those in this case. In mandatory arbitration with Yu, Tran recovered $14,675.00
in damages. Yu requested a trial de novo. At trial, Tran recovered $13,375.00.
Posttrial, Tran requested and received statutory costs of $955.80 and $3,205.00
in attorney fees under CR 37(c) for proving in superior court matters that Yu
denied in requests for admission. This resulted in a total judgment of
$17,535.80. Because this total exceeded the arbitration award, Tran asked for
MAR 7.3 attorney fees.25 The trial court denied the request, and Tran
appealed.26 We affirmed, holding that only the disposition of claims litigated at
both the arbitration and trial should be compared to decide if Yu improved her
position.27
Most recently, in Miller v. Paul M. Wolff Co.,28 Division Three approved a
similar approach.29 Miller sued Wolff for unpaid commissions. An arbitrator
23 Yoon, 91 Wash. App. at 306.
24 118 Wash. App. 607, 75 P.3d 970 (2003).
25 Mei Tran, 118 Wash. App. at 609-10.
26 Mei Tran, 118 Wn. App. at611.
27 Mei Tran, 118 Wash. App. at 616-17.
28 178 Wash. App. 957, 316 P.3d 1113 (2014).
29 we view this recent decision, rather than the older Wilkerson v. United
Investment, Inc., 62 Wash. App. 712, 815 P.2d 293 (1991), as representing Division
Three's current jurisprudence on the issue.
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NO. 72926-8-1 / 9
awarded Miller $22,802.84 but denied his request for attorney fees under RCW
49.48.030. Miller requested a trial de novo. The trial court awarded damages of
$21,628.97 plus $74,662.00 in attorney fees under RCW 49.48.030.30 Wolff
appealed, claiming in part that MAR 7.3 entitled it to a fee award because Miller
had not improved his position at trial because he received a smaller damages
award.31 Division Three affirmed the trial court. It concluded that a court should
compare the success of aggregate claims litigated in both the arbitration and trial
to decide if Miller improved his position at trial. Because the parties litigated the
attorney fee claim at both, it should be considered.32
Thus, all three divisions of the Washington Court of Appeals agree that to
determine if a party improved its position at a trial de novo, the superior court
should compare the aggregate success on claims actually litigated between the
parties at both the arbitration and the trial de novo—whether those claims were
for damages,33 statutory fees,34 costs, or sanctions.35
The Supreme Court has neither adopted nor rejected the "compare
comparables" rule.36 In Halev v. Highland,37 the Supreme Court "generally
30 Miller. 178 Wash. App. at 962.
31 Miller, 178 Wash. App. at 966.
32 Miller, 178 Wash. App. at 967-68.
33 Christie-Lambert, 39 Wash. App. at 303-06.
34 Miller, 178 Wash. App. at 967-68.
35 Mei Tran, 118 Wash. App. at 616-17.
36 Niccum, 175 Wash. 2d at 448; Halev v. Highland, 142 Wash. 2d 135, 154, 12
P.3d 119 (2000); see Miller, 178 Wash. App. at 967.
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agree[d] with the Court of Appeals' view that only comparables are to be
compared." But it declined to consider if attorney fees have any place in an MAR
7.3 determination because the party seeking to include fees in the comparison
could have requested them at arbitration but did not.38 The Supreme Court held
this precluded inclusion of those fees in the MAR 7.3 comparison.39 In Niccum v.
Enguist,40 the Supreme Court held that trial courts should not subtract purported
"costs" from offers of compromise when comparing those offers to jury awards.
The court reasoned that "a party is not entitled to costs in connection with an
offer of compromise," so there is no amount to deduct.41 The court distinguished
Mei Tran and other cases where—as in this case—courts "were simply asked to
compare a party's position after arbitration to its position after trial de novo."42
Here, the trial court attempted to distinguish Mei Tran, explaining, "There,
the arbitrator had not considered costs, so there were no arbitration costs to
compare to costs following a trial de novo." The trial court then included all the
fees and costs it had awarded Bearden in comparing the total trial judgment to
37 142 Wash. 2d 135, 154, 12 P.3d 119 (2000).
38 Halev, 142 Wash. 2d at 154-55.
39 Halev, 142 Wash. 2d at 154-55.
40 175 Wash. 2d 441, 446, 450, 286 P.3d 966 (2012).
41 Niccum, 175 Wash. 2d at 448.
42 Niccum, 175 Wash. 2d at 448. In light of Niccum, this court reversed its
decision in Stedman v. Cooper on reconsideration, holding that the trial court
erred in subtracting "costs" from an offer of compromise before comparing it to a
jury verdict. 172 Wash. App. 9, 23, 292 P.3d 764 (2012).
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NO. 72926-8-1 /11
the total arbitration award. In support of this ruling, Bearden contends that
"where statutory fees or costs are placed 'at issue' at arbitration and at trial, the
trial court should include [those fees and costs] in determining whether the
appealing party improved its position." Bearden distinguishes Mei Tran on that
basis and contends that Miller required the trial court include all the costs at both
stages. McGill responds that Mei Tran mandates the trial court compare only the
damages the arbitrator awarded to those the trial court awarded.
Contrary to both parties' assertions, Mei Tran and Miller are consistent.
Miller held that a trial court may consider certain fees and costs to determine
whether a party improved its position under MAR 7.3. Division Three considered
attorney fees where "the arbitrator denied attorney fees based on the exact
argument that was successful at trial."43 That argument was that RCW 49.48.030
entitled the plaintiff to attorney fees in his action on wages.44 In contrast, here,
the trial court awarded Bearden fees and costs not requested from the
arbitrator.45 Neither Mei Tran nor Miller allows a trial court to include in its
comparison costs and fees the arbitrator was not asked to consider.
43 Miller, 178 Wash. App. at 967-68.
44 Miller, 178 Wash. App. at 968-69.
45 These included $103.84 in witness fees, $1,752.05 in deposition costs,
$400.00 for Dr. Gaddis's report, $9.50 for a police report, and part of the $498.00
in filing fees. Of course, Bearden did not submit these costs to the arbitrator
because he incurred them only in preparing for trial.
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NO. 72926-8-1/12
The arbitrator in this case awarded Bearden the filing fee, costs of service
of process and records and reports, and statutory attorney fees totaling
$1,187.00, all under RCW 4.84.010. After trial, the court considered all of these
fees and costs and others that Bearden incurred after arbitration for trial. Of the
fees and costs that Bearden presented to the arbitrator, the trial court awarded
Bearden only $765.49.46 Thus, among the fees and costs the arbitrator had
considered, the trial court awarded Bearden $421.51 less. Combined with the
$1,500.00 less that Bearden recovered in damages, McGill thus improved his
position by $1,921.51 when comparing those fees, costs, and damages that both
the arbitrator and trial court considered. McGill improved his position at trial.
This result comports with cases from the three divisions of this court and
the Supreme Court. Consistent with our observation that "[a] trial is almost
always more expensive than arbitration," this result does not consider those fees
and costs that arise only for trial.47 In Halev, the Supreme Court "generally
agree[d] with" this court's compare comparables rule but found it unnecessary to
adopt a bright-line rule that "attorney fee awards have no place in making an
46 This includes $232.49 in filing fees, $200.00 in statutory attorney fees,
and $333.00 for serving McGill, all of which the arbitrator had awarded Bearden.
But the trial court declined to award two more costs the arbitrator awarded:
$276.00 for medical records and $195.00 for serving Nellie Knox McGill.
47 Mei Tran, 118 Wash. App. at 612; Haley. 142 Wash. 2d at 159 (Talmadge, J.,
concurring).
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MAR 7.3 determination."48 This rule compares comparables while allowing that
courts may in some cases consider fee awards in making MAR 7.3 decisions.
And in Niccum, the Supreme Court excluded fees and costs from its comparison
because a party making an offer of compromise is not yet entitled to fees and
costs.49 Unlike an offer of compromise, an arbitrator's award can include fees
and costs, so Niccum does not preclude their inclusion here.
Bearden also asserts that the 2011 amendments to the MAR support the
trial court's inclusion of costs in comparing awards. Those amendments clarified
"the authority of the arbitrator to award costs and attorney fees."50 They did not
address if, for application of MAR 7.3, a party "fails to improve [its] position on the
trial de novo" where the total judgment is greater than the arbitration award. We
presume the Supreme Court knew about the Court of Appeals' decisions we
have discussed above and could have changed the rule to require a different
result if it disagreed.
Finally, Bearden contends that the policies of the mandatory arbitration
system support his position. Bearden correctly notes that the legislature
intended mandatory arbitration to relieve court congestion and provide a speedy
48 Halev, 142Wn.2dat154.
49 Niccum. 175 Wash. 2d at 450.
50 Purpose statement to proposed amendment to MAR 3.2(a), Wash. St.
Reg. 11-01-023 (Dec. 2, 2010).
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NO. 72926-8-1 /14
and inexpensive method for resolving claims of $50,000 or less.51 But an
interpretation of MAR 7.3 that discourages meritorious appeals would also
frustrate the purposes of the mandatory arbitration system.52
Because McGill improved his position at trial, MAR 7.3 did not entitle
Bearden to attorney fees, and the trial court erred in awarding him those fees.
We reverse that award.53
The Trial Court's Cost Awards
Dr. Gaddis's Report
McGill contends the trial court erred in awarding Bearden $400.00 for Dr.
Gaddis's report. RCW 4.84.010(5) allows for reasonable expenses "incurred in
obtaining reports and records[ ] which are admitted into evidence." Although
McGill improved his position at trial, Bearden was the prevailing party at both
arbitration and trial. RCW 7.06.060(3) "does not preclude the prevailing party
from recovering those costs and disbursements otherwise allowed under chapter
4.84 RCW, for both actions."
McGill makes three challenges to the award of report costs under RCW
4.84.010(5). All three lack merit.
51 Christie-Lambert, 39 Wash. App. at 302-03.
52 See Hutson v. Costco Wholesale Corp., 119 Wash. App. 332, 338, 80
P.3d 615 (2003); Niccum, 175 Wash. 2d at 452.
53 See Stedman. 172 Wash. App. at 25.
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NO. 72926-8-1/15
First, McGill argues the trial court erred in awarding costs for the report
because the trial court did not admit the report into evidence. But this court has
held that RCW 4.84.010(5) "plainly allows costs for medical records so long as
they are admitted into evidence, either in mandatory arbitration or at trial."54 The
same rule applies to reports under the same provision. Since the arbitrator
admitted Gaddis's report, the trial court did not need to admit it to award its cost.
Second, McGill contends the Gaddis report did not qualify under RCW
4.84.010(5) because that statute covers only costs of "obtaining" preexisting
documents, not producing new ones for litigation. McGill cites no authority for
this restrictive reading of the statute. This proposed interpretation would require
this court to add language to the statute that the legislature did not include.
Third, McGill contends the report was an expert expense and therefore not
permitted under RCW 4.84.010. "[C]osts under the Mandatory Arbitration Rules
are limited to those items set forth in RCW 4.84.010."55 "'Where an expert is
employed and is acting for one of the parties, it is not proper to charge the
allowance of fees for such expert.'"56 "The party presenting an issue for review
54 Stedman, 172 Wash. App. at 23 (holding RCW 4.84.010(5) entitled injured
motorist to costs for medical records admitted during mandatory arbitration but
not during trial de novo).
55 Colarusso v. Petersen, 61 Wash. App. 767, 771, 812 P.2d 862 (1991).
56 Wagner v. Foote, 128 Wash. 2d 408, 417-18, 908 P.2d 884 (1996) (quoting
Fiorito v. Goerig, 27 Wash. 2d 615, 620, 179 P.2d 316 (1947)).
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has the burden of providing an adequate record to establish such error and
should seek to supplement the record when necessary."57
McGill contends that Gaddis acted as Bearden's expert in preparing his
report, even though Gaddis also treated Bearden. McGill acknowledges that
Gaddis's report is not part of the appellate record and Bearden's trial court
briefing provides the only description of it. That brief states the arbitrator
admitted the report in lieu of a perpetuation deposition to help "establish the
reasonableness and necessity of the chiropractic and massage therapy
billings"—not, as McGill contends, as an opinion on the cause of Bearden's
injuries. This purpose is consistent with the report's cost being a "[reasonable
expense[ ]. .. incurred in obtaining reports and records" from a treating
physician, rather than a cost for an expert witness.58 This court cannot say on
this record that the trial court erred in awarding Bearden the cost of Gaddis's
report under RCW 4.84.010(5). We affirm that cost.
Dr. Murphy's Deposition
McGill also contends that the trial court abused its discretion in awarding
Bearden 50 percent of the cost of Dr. Murphy's discovery deposition. Bearden's
attorney used Murphy's discovery deposition in cross-examining Murphy during
57 State v. Sisouvanh, 175 Wash. 2d 607, 619, 290 P.3d 942 (2012) (citations
omitted); RAP 9.2(b), 9.6, 9.10.
58 RCW 4.84.010(5).
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NO. 72926-8-1/17
Murphy's perpetuation deposition. The parties recorded and played the
perpetuation deposition at trial in lieu of Murphy's live testimony.
RCW 4.84.010(7) allows cost awards for depositions "on a pro rata basis
for those portions of the depositions introduced into evidence or used
for. .. impeachment." Neither party introduced Murphy's discovery deposition
into evidence, but Bearden used part of it to impeach Murphy. The question is
thus what constitutes a permissible "pro rata basis" for the portions Bearden used
to impeach Murphy in cross-examination.
Bearden argued successfully that he should receive 50 percent of the cost
of Dr. Murphy's discovery deposition because his "cross-examination outline was
drawn from, and thus 'used,' Dr. Murphy's discovery deposition testimony."
McGill asserts that RCW 4.84.010 does not allow for such a broad definition of
"used for. .. impeachment." He contends the proper basis is closer to 2 percent
than 50 percent because Bearden's counsel directly cited only two pages during
cross-examination.59
The appellate record does not contain Murphy's discovery deposition.
Although Bearden's attorney cited directly to the transcript only twice during the
perpetuation deposition, she impeached Murphy throughout using his history of
work as a defense witness and his incomplete basis for his opinions. This court
59 This would make the proper pro rata amount $10.45 rather than
$261.25.
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cannot say on this record that the trial court abused its discretion in deciding that
Bearden "used" 50 percent of Murphy's discovery deposition for impeachment.
We therefore reject McGill's challenge to the award of costs for Murphy's
deposition.
Lack of Contemporaneous Proof of Expenses
Next McGill contends, without citing authority, that the trial court "generally
abused its discretion by not requiring any sort of bills, invoices, or receipts to
justify the claimed expenses."60
A trial judge has broad discretion in determining the reasonableness of an
award. This court will not disturb an award unless the appellant demonstrates
that the trial court manifestly abused its discretion.61 The trial court here relied on
two sworn declarations from Bearden's counsel to support the costs. These
declarations itemized and described each cost for the trial court and provided
additional clarification where McGill challenged the costs. The trial court did not
manifestly abuse its discretion by relying on Bearden's counsel's sworn
declarations to determine costs.62
60 McGill notes that he objected to the lack of documentation in his
objections to plaintiff's proposed judgment.
61 Ethridge v. Hwang, 105 Wash. App. 447, 460, 20 P.3d 958 (2001).
62 McGill's contentions that that lack of documentation led to exorbitant
costs also lack merit. He claims Murphy's perpetuation deposition cost over
$200 more than Murphy's discovery deposition, despite being "likely a shorter
deposition." McGill cannot say for certain the perpetuation deposition was
shorter; the figures are not far apart ($750 to $520); and the factors that go into
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Exclusion of Bearden's Proposed Costs
Bearden contends in his response brief that the trial court abused its
discretion in refusing to award Bearden the costs of serving Nellie Knox McGill
and obtaining Bearden's medical records. The arbitrator had allowed both costs.
This court will grant a respondent affirmative relief of a trial court's
decision "only (1) if the respondent also seeks review of the decision by the
timely filing of a notice of appeal or a notice of discretionary review, or (2) if
demanded by the necessities of the case."63 Because Bearden requests
affirmative relief but did not file a notice of appeal or "independently
demonstrate! ] a basis for relieving [him] of the requirements of RAP 2.4," we
reject his challenges to the trial court's exclusions of costs.64
Attorney Fees and Costs for Appeal
Finally, Bearden argues that RAP 18.1 entitles him to fees on appeal.
RAP 18.1 authorizes appellate courts to award reasonable attorney fees or
expenses where authorized by applicable law. "A party entitled to attorney fees
pricing depositions are not before the court. McGill also claims that because
Bearden did not use Murphy's deposition in his case in chief, Bearden did not
"need" to spend money on Murphy's perpetuation deposition. McGill cites no
authority to support this proposition. Further, McGill did not object before trial to
the perpetuation deposition costs or their lack of documentation.
63 RAP 2.4(a), 2.5(a); Happy Bunch, LLC v. Grandview N., LLC, 142 Wn.
App. 81, 90 n.2, 173 P.3d 959 (2007).
64 See Happy Bunch, 142 Wash. App. at 90 n.2.
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NO. 72926-8-1 / 20
under MAR 7.3 at the trial court level is also entitled to attorney fees on appeal if
the appealing party again fails to improve her position."65
Because we reverse the trial court's award of attorney fees to Bearden,
McGill has improved his position on appeal. We therefore decline to award
Bearden RAP 18.1 fees.
CONCLUSION
Under MAR 7.3 and RCW 7.06.060(1), McGill improved his position by
requesting a trial: Bearden's combined damages, costs, and fees were less after
trial than after arbitration when comparing only those costs and fees litigated
before both the arbitrator and trial court. The trial court thus erred in ruling
otherwise. We reverse the trial court's award of attorney fees to Bearden.
Because the record does not show the trial court abused its discretion in
awarding Bearden the costs of Dr. Gaddis's report or Dr. Murphy's discovery
65 Arment v. Kmart Corp., 79 Wash. App. 694, 700, 902 P.2d 1254 (1995);
Bovd v. Kulczyk, 115 Wn. App. 411,417, 63 P.3d 156 (2003).
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NO. 72926-8-1 / 21
deposition, we affirm those awards. We deny Bearden's request for fees on
appeal.
JL
WE CONCUR:
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