Black Diamond Development Co, Apps/x-res v. Union Bank N.a., Resp/x-app ( 2018 )

FILED
COURT OF APPEALS ON I
:STATE OF WASHINGTON
2018 JUN -4 AM 8: 45
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BLACK DIAMOND DEVELOPMENT ) No. 76079-3-1
COMPANY, LLC, a Washington )
Limited Liability Corporation; LEE ) DIVISION ONE
WITTENBERG, individually and on )
behalf of his marital community; )
WAYNE COURTNEY, individually )
and on behalf of his marital community, ) UNPUBLISHED OPINION
)
Appellants, )
)
v. )
)
UNION BANK, N.A., )
)
Respondent. ) FILED: June 4, 2018
)
LEACH, J. — Black Diamond Development Company LLC appeals the trial
court's summary dismissal of its claims against Union Bank N.A. and its attorney
fee award to Union Bank. Union Bank also challenges this attorney fee award.
We affirm the trial court's dismissal of Black Diamond's claims against Union
Bank. But we reverse the trial court's award of fees. The trial court abused its
discretion in two ways: by awarding Union Bank fees incurred litigating an issue
on which Black Diamond ultimately prevailed and by reducing the reasonable
hourly rate for Union Bank's attorney without providing an adequate reason. We
remand for the trial court to reconsider its fee award.
No. 76079-3-1 /2
FACTS
In November 2005, Frontier Bank loaned Black Diamond about $4 million.
The original loan was set to mature on May 28, 2007. The parties extended the
maturity date to September 25, 2010.
On April 30, 2010, Frontier Bank failed, and Union Bank acquired the loan.
The loan matured on September 25, 2010. Black Diamond tried to renew or
refinance the loan and sought permanent financing. In connection with these
requests, Union Bank had the property appraised and an environmental survey
conducted. Union Bank determined that Black Diamond did not meet its criteria
for permanent financing.
After the loan matured, Union Bank notified Black Diamond that it was in
default and the principal and interest were due in full. But Black Diamond
continued to make monthly payments of $23,360, the same amount it had been
paying before the loan matured.
In January 2012, Union Bank notified Black Diamond that if Black
Diamond did not pay the loan in full, Union Bank would start charging default
interest on February 4, 2012. Yet Black Diamond continued to make monthly
payments in the same amount as before it defaulted.
On April 11, 2012, and again on May 14, 2012, Union Bank notified Black
Diamond that it considered Black Diamond's payments to be partial payments
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No. 76079-3-1/ 3
that did not change the default status of the loan. In July 2012, Union Bank
stopped accepting Black Diamond's payments altogether. Union Bank returned
Black Diamond's July, August, September, and October payments.
On August 9, 2012, Black Diamond sued Union Bank. It alleged Union
Bank had breached its contract by not providing permanent financing. It asked
the court to require that Union Bank provide permanent financing and to prevent
Union Bank from foreclosing on its property.
In October 2012, Black Diamond asked Union Bank to prepare a payoff
demand. Union Bank provided a payoff demand that included the amount'owed
for principal, interest, default interest, and certain fees. To avoid foreclosure,
Black Diamond obtained alternative financing from a third party and paid the
amount requested.
In August 2013, the superior court granted Union Bank's summary
judgment motion and dismissed Black Diamond's breach of contract and
estoppel claims. The trial court also granted Union Bank's request for attorney
fees, which Black Diamond paid.
On appeal, we affirmed the trial court's dismissal of the breach of contract
and equitable estoppel cIaims.1 We decided, however, that the trial court had
1 Black Diamond Dev. Co. v. Union Bank, N.A., No. 71114-8-1, slip op. at
9-14 (Wash. Ct. App. Mar. 30, 2015) (unpublished),
http://www.courts.wa.gov/apinions/pdf/711148.pdf.
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No. 76079-3-1/4
improperly failed to address Black Diamond's allegation of improper accounting.2
We reversed so the trial court could consider the claim.3 We also reversed the
attorney fee award because neither party had prevailed yet.4
In August 2016, Black Diamond filed a new complaint. The complaint
clarified the improper accounting claim and alleged new claims, including a claim
for interest paid on the reversed attorney fee award.
Union Bank reviewed its records again and found that its payoff demand
had overestimated certain fees by $62 and included a $5,000 appraisal fee that
Union Bank had agreed not to charge to Black Diamond. Union Bank paid these
amounts to Black Diamond with interest. Union Bank also paid 4.02 percent
interest on the reversed attorney fee award, the parties' contractually agreed
upon interest rate for the loan.
The trial court granted Union Bank's motion for summary judgment,
dismissing the remaining claims. The court awarded attorney fees to Union
Bank. The award included the attorney fees and costs previously granted in the
first summary judgment motion. The trial court awarded fees at a reduced rate
for Union Bank's attorney fees incurred after remand.
Both Black Diamond and Union Bank appeal.
2 Black Diamond, slip op. at 18.
3 Black Diamond, slip op. at 18.
4 Black Diamond, slip op. at 23.
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No. 76079-3-1 / 5
ANALYSIS
Black Diamond appeals the summary judgment dismissal of its claims
against Union Bank and the attorney fee award. Union Bank cross appeals the
amount of the fee award. The trial court properly dismissed Black Diamond's
improper accounting claim and claim for interest on returned attorney fees. But
the trial court abused its discretion in calculating the attorney fee award.
Improper Accounting
First, Black Diamond challenges the trial court's dismissal of its improper
accounting claim. We review a summary judgment order de novo.5 We review
the facts and all reasonable inferences in the light most favorable to the
nonmoving party.6 A court properly grants summary judgment if no genuine
issue of material fact exists and the moving party is entitled to a judgment as a
matter of law.7 Mere allegations or conclusory statements of fact unsupported by
evidence are not sufficient to establish a genuine issue of material fact.5
Black Diamond claims questions of fact remain as to whether Union Bank
included any improper charges in its payoff demand. Black Diamond specifically
argues that several of Union Bank's improper actions caused charges to accrue.
5 Snohomish County v. Rugg, 115 Wash. App. 218, 224, 61 P.3d 1184
(2002).
6Lvbbert v. Grant County, 141 Wash. 2d 29, 34, 1 P.3d 1124 (2000).
7 CR56(c).
8 Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash. 2d 127, 132,
769 P.2d 298 (1989).
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No. 76079-3-1/6
"The rights and obligations of the parties to a credit agreement shall be
determined solely from the written agreement."9 Thus, we look to the agreement
to decide whether Union Bank breached any duty it owed to Black Diamond
when it calculated the payoff amount. As we explain below, it did not. Thus,
Black Diamond fails to show any issue of fact exists about the improper
accounting claim.
1. Terminating Automatic Payments
First, Black Diamond claims that Union Bank improperly canceled Black
Diamond's ability to make automatic payments. Before May 2011, Black
Diamond had made monthly payments automatically. In May 2011, Union Bank
terminated Black Diamond's ability to make automatic payments. Black Diamond
contends that this obliged Black Diamond to deliver each payment check by
hand, causing delay and resulting in additional interest.
But Black Diamond does not show that it had any right to make automatic
payments. Neither the construction loan agreement nor the later change-in-
terms agreements provide any right to make automatic payments. Further, when
Union Bank terminated Black Diamond's ability to make automatic payments,
Union Bank was not required to accept any installment payment from Black
Diamond because it was in default. Union Bank had no obligation to accept less
9 RCW 19.36.110.
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No. 76079-3-1/ 7
than the full amount owed. Because Union Bank had the right to refuse
automatic payments, Black Diamond cannot identify any issue of fact about any
interest that accrued as a result.
2. Default Interest
Next, Black Diamond claims that Union Bank improperly charged default
interest. Union Bank first notified Black Diamond that it would begin charging
default interest in its January 2012 default letter. The letter stated, "Bank hereby
demands payment of these amounts by February 3, 2012." The letter also
stated,
In accordance with the Note, Bank is further exercising its right to
invoke the default rate of interest provided for therein.
Consequently, Borrower shall pay Bank interest on the aggregate
outstanding principal amount of the Note at a rate per annum equal
to 6 percent(6%) in excess of the Applicable Rate, calculated from
February 4, 2012 until all amounts payable under the Note are paid
in full.
Despite this notice, in February, March, and April, Black Diamond continued to
make monthly payments in the same amount as before.
First, Black Diamond contends that the January 2012 letter did not meet
statutory notice requirements. Black Diamond cites RCW 61.24.030(8) and lists
several claimed defects based on this statute. But this statute is part of the
deeds of trust actl° and defines notices required before a trustee sale may occur.
10 Ch. 61.24 RCW.
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No. 76079-3-1/ 8
It does not define the notice required before default interest may be charged.
Black Diamond cites no authority to show that the default letter Union Bank sent
provided insufficient notice in this context.
Second, Black Diamond contends that the loan agreement does not
permit Union Bank to charge default interest retroactively. Black Diamond claims
that because Union Bank accepted February, March, and April payments that did
not include the default interest, it could not retroactively collect that interest.
Black Diamond does not show how Union Bank's delayed collection harmed it.
Union Bank did not try to collect any more interest than it would have
received had Black Diamond paid the correct amount in February, March, and
April. The agreement allows Union Bank to charge default interest "[u]pon
default, including failure to pay upon final maturity." Union Bank told Black
Diamond when it would begin to charge default interest. Black Diamond does
not show that Union Bank did anything improper by collecting the accumulated
interest in April rather than on a monthly basis beginning in February.
Black Diamond also asserts that Union Bank improperly applied payments
to regular interest and default interest rather than to the principal and regular
interest. Before May 2012, Union Bank applied Black Diamond's monthly
payments to the principal and regular interest. But in May and June 2012, Union
Bank applied Black Diamond's payment to default interest and regular interest.
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No. 76079-3-1/ 9
Black Diamond claims that this conduct caused more interest to accrue on the
principal. But the agreement authorized Union Bank to apply payments to "any
accrued interest," regular or default.11 Thus, it authorized Union Bank's decision
to apply the payment to the interest instead of to the principal.
Black Diamond does not show how any action by Union Bank involving
the default interest breached a duty owed to it. So Black Diamond does not raise
an issue of fact about the default interest charged in the payoff.
3. Appraisal and Environmental Report Fees
Next, Black Diamond contends that Union Bank should not have included
in the payoff demand the appraisal and environmental report fees. Union Bank
ordered an appraisal and environmental report as part of its process for deciding
whether to extend the term of the loan or provide permanent financing. Black
Diamond contends that Union Bank should not have included these fees
because they were not incurred for the foreclosure and, instead, related to the
loan renewal request. But Black Diamond provides no authority for the
proposition that the payoff demand could include only expenses related to the
foreclosure. To the contrary, the construction loan agreement provides that
Black Diamond is responsible for an array of fees:
11 The agreement states that "payments will be applied first to any accrued
unpaid interest; then to principal; then to any unpaid collection costs; and then to
any late charges."
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No. 76079-3-1/ 10
Whether or not the Project shall be consummated, Borrower shall
assume and pay upon demand all out-of-pocket expenses incurred
by lender in connection with the preparation of loan documents and
the making of the Loan, including without limitation the following:
(A) all closing costs, loan fees, and disbursements;(B) all expenses
of Lender's legal counsel; and (C) all title examination fees, title
insurance premiums, appraisal fees, survey costs, required fees,
and filing and recording fees.
The appraisal and environmental fees were related to the loan. More specifically,
they were incurred because Union Bank was evaluating whether to grant Black
Diamond's renewal request. Thus, Union Bank properly included the fees in the
demand.
4. Returned Payments
Next, Black Diamond argues that Union Bank improperly cashed payment
checks and issued refund checks. In July 2012, Black Diamond made its regular
payment. But Union Bank did not apply the payment to the loan. Instead, it sent
a partial payment letter stating that "the Bank will no longer accept partial
payments in an amount less than the full amount required to reinstate the Loan."
With the letter, the bank enclosed a refund check for the payment amount.
Black Diamond contends that Union Bank should have included interest
with the returned amounts. It asserts that it is now entitled to interest for the time
from Union Bank's cashing of its check until the refund. But Union Bank had the
right to decline to accept the partial payments. Union Bank is not required to pay
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No. 76079-3-1 / 11
interest simply because Black Diamond continued to try to make these
payments.
5. Attorney Fees in Payoff
Next, Black Diamond challenges the attorney fees charged in the payoff
demand. The payoff demand included $26,022.40 for attorney fees. Black
Diamond contends that this amount was unreasonable and relies on the trial
court's decision to reduce the hourly rates of Union Bank's counsel, DLA Piper, in
its attorney fee award. But when the trial court awarded Union Bank attorney
fees, it considered the fees charged in the payoff demand and reduced its award
accordingly:
Because plaintiffs paid the full amount of DLA Piper's fees charged
to the Payoff Demand, but this Court finds that in this instance
lower rates are reasonable, Union Bank's total fees award will be
reduced by $7,222.40, which is the difference between the rates
defense counsel actually charged and the rates this Court
previously found to be "reasonable."
Thus, the trial court accounted for all unreasonableness of the attorney fees in
the payoff demand. Black Diamond contends that the trial court's decision about
the reasonableness of these fees somehow shows that summary judgment was
improper. But because the trial court accounted for any unreasonableness of
attorney fees in the payoff demand, Black Diamond does not show how further
developing these facts would show that it is entitled to any more relief.
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No. 76079-3-1 /12
Black Diamond also challenges the fees Union Bank charged for work
performed by Hacker & Willig, the trustee for the foreclosure proceedings.
Specifically, Black Diamond claims that part of the trustee's fees could not have
been connected to the default and should not be charged to Black Diamond.
Again, Black Diamond cites no authority for the proposition that the payoff
demand can include only those fees connected to the default. The construction
loan agreement in fact provides that Black Diamond is required to pay "all of
Lender's costs and expenses, including Lender's attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Agreement."
Black Diamond contends that this provision was superseded by the change-in-
terms agreement, which provides that the borrower will pay any fees incurred in
collecting amounts owed:
ATTORNEY FEES; EXPENSES. Lender may hire or pay someone
else to help collect this Agreement if Borrower does not pay.
Borrower will pay Lender that amount. This includes, subject to any
limits under applicable law, Lender's attorneys' fees and Lender's
legal expenses, whether or not there is a lawsuit.
But this provision is not inconsistent with the provision in the construction loan
agreement. And the change-in-terms agreement states that the agreement
represents a change in the maturity date and that all other terms remain the
same. Thus, the loan agreement permits Union Bank to recover the fees
incurred in connection with assessing the viability of a loan refinance.
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No. 76079-3-1 / 13
Black Diamond also challenges the Hacker & Willig fees on the basis that
it performed work duplicative of work also performed by Assayag Mauss. Trial
courts have discretion to decide attorney fee awards.12 But a calculation of hours
reasonably expended should not include duplicated effort.13 Black Diamond cites
generally to the invoices provided by the two firms and claims that Hacker &
Willig's work on reviewing the default notice prepared by Assayag Mauss was
duplicative. Both firms' invoices indicate that they worked on drafting the notice
of default. But as trustee, Hacker & Willig could properly review the default
notice prepared by Assayag Mauss. On this issue, the trial court could and did
properly use its discretion to decide the amount Union Bank charged for this work
was reasonable and therefore no question of fact existed.
6. Failure To Provide Information
Last, Black Diamond contends that Union Bank failed to provide
accounting information. Black Diamond specifically contends that Union Bank
failed to provide statements showing how charges were assessed and interest
accrued, information that it claims could have allowed Black Diamond to dispute
improper charges. But Black Diamond does not show the relevance of this to the
claim before us. These allegations relate to Black Diamond's claim for
12Mahler v. Szucs, 135 Wash. 2d 398, 435, 957 P.2d 632(1998).
13Bowers v. Transamerica Title Ins. Co., 100 Wash. 2d 581, 597, 675 P.2d
193(1983).
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No. 76079-3-1 / 14
declaratory relief seeking an accounting, not the improper accounting claim.
Black Diamond's complaint about the accounting information it received does not
relate to its improper accounting claim.
Interest Paid on Returned Attorney Fees
Black Diamond also challenges the trial court's dismissal of its claim for
interest on the returned attorney fee award. It contends that Union Bank owes
additional interest on the attorney fees Union Bank returned to it after the first
appeal.
After the trial court granted Union Bank's summary judgment motion the
first time, it awarded attorney fees to Union Bank. On appeal, we determined
that the attorney fee award was premature. Accordingly, Union Bank returned
the fee award but did not include interest on the fees, explaining that "[u]nder the
circumstances, Black Diamond is not entitled to interest." After Black Diamond
added a claim for interest owed on the returned attorney fees to its complaint,
Union Bank paid Black Diamond interest on the attorney fees. Union Bank
calculated the interest using the parties' contractually agreed upon loan interest
rate of 4.02 percent. Union Bank asserted that because it paid the interest, Black
Diamond's claim was now moot. The trial court agreed and dismissed the claim
on summary judgment.
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No. 76079-3-1 /15
Appellate courts review awards of prejudgment interest for abuse of
discretion, unlike awards of postjudgment interest that are reviewed de novo.14
Black Diamond contends that the proper standard of review is de novo because it
challenges the trial court's decision on a summary judgment motion. But the
underlying issue involves the question of the amount of prejudgment interest, on
which trial courts may exercise their discretion.15 Thus, we apply an abuse of
discretion standard to this issue.
Black Diamond argues that the statutory prejudgment interest rate should
apply. Unless otherwise agreed between the parties, RCW 19.52.010 requires
12 percent interest for "[e]very loan or forbearance of money, goods, or thing in
action."16 Here, the contract does not specifically provide for the interest rate on
an award of attorney fees. But because the contract does provide for interest on
the loan, the trial court could determine that the parties had found this rate to be
a reasonable rate. The trial court acted within its discretion when it decided that
14 TJ Landco, LLC v. Harley C. Douglass, Inc., 186 Wash. App. 249, 255-56,
346 P.3d 777(2015).
15 TJ Landco, 186 Wash. App. at 255-56.
16 Black Diamond relies on Humphrey Industries Ltd. v. Clay Street,
Associates, 176 Wash. 2d 662, 295 P.3d 231 (2013), to show that this 12 percent
interest rate should apply here. But Humphrey does not stand for the proposition
that the proper prejudgment interest rate on awards of attorney fees is 12
percent. It holds only that returned attorney fees accrue prejudgment interest,
not postjudgment interest. Humphrey, 176 Wash. 2d at 672-73. Humphrey does
not control our decision on this issue.
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No. 76079-3-1/ 16
the contractual interest rate was proper for the returned attorney fees. And even
if we reviewed this issue de novo, we would reach the same result.
Attorney Fees
Finally, Black Diamond and Union Bank both challenge the court's
attorney fee award. We review whether a party is entitled to attorney fees de
novo.17 In order to reverse the award, the challenging party must show that the
trial court manifestly abused its discretion.18 A trial judge has broad discretion to
determine the reasonableness of an award." We review that decision for an
abuse of discretion. Still, trial courts must exercise that discretion on articulable
grounds 20
To decide a reasonable fee, a court first determines the lodestar amount.21
It calculates the lodestar amount by multiplying the number of hours reasonably
expended by the reasonable hourly rate.22 "The court should discount hours
spent on unsuccessful claims, duplicated or wasted effort, or otherwise
unproductive time."23 But "the fee award should not be reduced simply because
17 N. Coast Elec. Co. v. Selig, 136 Wn.- App. 636, 643, 151 P.3d 211
(2007).
N. Coast, 136 Wash. App. at 643.
18
N. Coast, 136 Wash. App. at 643.
18
28 Mahler, 135 Wash. 2d at 435.
21 Bowers, 100 Wash. 2d at 597.
22 Bowers, 100 Wash. 2d at 597.
23 Chuong Van Pham v. Seattle City Light, 159 Wash. 2d 527, 538, 151 P.3d
976(2007).
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No. 76079-3-1/ 17
the plaintiff failed to prevail on every contention raised in the lawsuit."24 The
result is what matters in deciding which party prevailed.25 Thus, if a party has
limited success, the court should award fees that are reasonable in light of that
result.26 No precise formula exists for determining the extent to which a party
prevails, so "the trial court has discretion in determining the plaintiff's degree of
success."27
Black Diamond
Black Diamond raises several challenges to Union Bank's attorney fee
award. We agree with only one.
First, Black Diamond contends that the fee award to Union Bank was too
big because Union Bank did not prevail on the improper accounting claim. In a
contract dispute, the court awards attorney fees only to a prevailing party.28
113]revailing party' means the party in whose favor final judgment is rendered."29
Black Diamond points out that Union Bank acknowledged an error in accounting
had occurred and the payoff amount was incorrect, albeit only slightly. But after
24 Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 76 L. Ed. 2d
40 (1983).
25 Hensley, 461 U.S. at 435.
28 Chuong Van Pham, 159 Wash. 2d at 540-41 (quoting Hensley, 461 U.S. at
440).
27 Bright v. Frank Russell Invs., 191 Wash. App. 73, 81, 361 P.3d 245(2015)
(citing Hensley, 461 U.S. at 436-37).
28 RCW 4.84.330.
29 RCW 4.84.330.
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No. 76079-3-1/ 18
Union Bank paid Black Diamond back for the error, Black Diamond continued to
pursue its other claims. Union Bank moved for summary judgment, and the trial
court granted that motion. Although Union Bank discovered a minor accounting
error, it still substantially prevailed on the improper accounting claim. Here, the
trial court granted summary judgment unreservedly in favor of Union Bank.
Thus, the trial court acted within its discretion in determining that Union Bank was
the prevailing party even though Union Bank discovered some improper
accounting.
Next, Black Diamond challenges fees incurred on specific parts of the
litigation. We address each challenge in turn.
First, Black Diamond contends that it should not be charged for attorneys
who prepared for and attended oral argument but did not speak at the argument.
Black Diamond contends that this time was unproductive and an award of fees is
therefore unreasonable. We disagree. Attorneys may spend productive time
preparing for oral argument and supporting the attorney who argues without
actually arguing.
Second, Black Diamond challenges the fee award to the extent that it
includes time spent researching the interest on the returned attorney fees. Black
Diamond asserts that Union Bank's attorneys initially erroneously determined
that it was not obligated to pay interest on the attorney fees. Indeed, Union Bank
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No. 76079-3-1 /19
claims that in April 2015, when it repaid the attorney fee award, it did not believe
that it was required to pay interest on that award. But after discovering a more
recent June 2015 decision that suggested otherwise,3° Union Bank paid Black
Diamond interest on the attorney fees. The court did not abuse its discretion by
not reducing the award because Union Bank's attorneys changed their opinion as
the result of a new decision.
Third, Black Diamond contends that Union Bank should not recover fees
for time spent litigating various unsuccessful motions. It specifically challenges
the time spent litigating the timeliness of Black Diamond's appea1,31 Union Bank's
unsuccessful motion to publish, and a motion to strike expert testimony that
Union Bank never filed. But courts need not break down a prevailing party's
success to such a degree.32 The court properly determined that Union Bank was
the prevailing party and did not need to account for these motions.
However, the trial court should have reduced the award to account for the
fees incurred in defending against Black Diamond's motion for reconsideration
before the first appeal. After the trial court granted Union Bank's first summary
judgment motion, Black Diamond moved for clarification and reconsideration,
30 See Arzola v. Name Intelligence, Inc., 188 Wash. App. 588, 592, 595, 355
P.3d 286 (2015) (holding that an award of prejudgment interest on a reversed
award of damages, attorney fees, and costs was appropriate).
31 See Black Diamond, slip op. at 5-8.
32 Hensley, 461 U.S.
at 435.
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No. 76079-3-1 /20
seeking clarification about whether it had also dismissed Black Diamond's
improper accounting claim. The trial court denied the motion. But, on appeal, we
reversed the dismissal of the improper accounting claim.33 Thus, Black Diamond
prevailed on this claim in the first appeal. Black Diamond calculated that Union
Bank incurred $11,360 defending against the motion for reconsideration by
considering Union Bank's attorneys' hourly rates and the time it claims it spent on
the motion. The trial court could have reduced the award based on these facts
and should have done so in light of Black Diamond's success in the first appeal.
Union Bank
Union Bank also challenges the fee award. It contends that the trial court
abused its discretion when it reduced the hourly rates for Union Bank attorneys.
We agree.
In an October 17, 2013, order awarding attorney fees, the trial court found
that a reasonable hourly rate for Union Bank's counsel, Stellman Keehnel, was
$500 per hour. In its later award of fees, however, the trial court found that a
reasonable rate for work performed by Mr. Keehnel in 2014 and 2016 was $395
per hour. The court found that "for the period following the October [17], 2013
fees award until the present, the reasonable rate in this case for defense counsel
Stellman Keehnel and Andrew Escobar is $395 per hour, which is the same rate
33 Black Diamond, slip op. at 18.
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No. 76079-3-1/ 21
charged by plaintiffs' counsel Craig Rusk." Before Union Bank submitted the fee
request, the court indicated in an oral ruling that it would use Rusk's fees, which
were $395 per hour, as the benchmark for reasonableness in the case. Union
Bank submitted a fee request a few days later and included evidence to support
its claim that a $500 hourly fee was reasonable. But the trial court maintained in
its findings of fact that $395 was a reasonable rate.
Union Bank asserts that the trial court's explanation for the reduction is
inadequate. A trial court may consider a number of factors in setting the
reasonable rate.34 Factors include the attorney's usual fee, "the level of skill
required by the litigation, time limitations imposed on the litigation, the amount of
the potential recovery, the attorney's reputation, and the undesirability of the
case."35 Here, the court explained in an addendum, that it based this finding on
the quality of the work performed and the number of years in practice: "This
Court adjusted the hourly rates of Defendant's counsel as same as those
charged by the Plaintiffs' counsels. Based upon the quality of the work
performed, the number of years in practice, the Court finds these hourly rates as
reasonable and appropriate for this matter." The trial court did not explain,
however, why the reasonable hourly rate for work completed after October 17,
2013, was less than the rate for work completed earlier. Black Diamond
34 See Bowers, 100 Wash. 2d at 597.
35 Bowers, 100 Wash. 2d at 597.
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No. 76079-3-I /22
contends that the later period of litigation involved less complex issues than the
earlier litigation. But the trial court made no such finding. We agree with Union
Bank that the trial court abused its discretion in reducing the fee award without
adequately explaining why it decided to adjust the hourly rate downward for the
later litigation.
As Union Bank acknowledged in oral argument, it has not requested fees
on appeal. Thus, we award none.
CONCLUSION
We affirm in part and reverse in part. We affirm the summary judgment for
Union Bank on both the improper accounting claim and the claim for interest on
returned attorney fees. We conclude, however, that the court abused its
discretion in calculating Union Bank's attorney fee award. We remand for further
proceedings consistent with this opinion.
WE CONCUR:
rci
A4W/
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