Cyma Tupas v. Department Of Ecology ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CYMA G. TUPAS, a.k.a. CYMA G.
GREGORIOS, No. 72259-0-1
Appellant,
DIVISION ONE
STATE OF WASHINGTON UNPUBLISHED OPINION
DEPARTMENT OF ECOLOGY,
Respondent,
KEVIN FITZPATRICK; GERALD
SHERVEY; AND WENDY HOLTON,
Defendants.
FILED: December 7, 2015
Lau, J. — This case involves an attorney fees and cost dispute under the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. The jury
awarded Cyma Tupas $329,580 in damages against her former employer, the
Washington State Department of Ecology (the Department), on her failure to
accommodate disability claim. It found no liability and awarded no damages on her
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discrimination and retaliation claims. The trial court declined to apply a 1.5 multiplier
and reduced Tupas' request for fees and costs by 25 percent. Tupas contends (1) the
court's findings are insufficient to permit meaningful appellate review of its award for
attorney fees and costs, (2) the court improperly relied on a risk factor in declining the
multiplier, and (3) the court erred by declining to award prejudgment interest on the
back pay award. Because our review of the reasonableness of fees and cost award is
hampered by the trial court's inadequate findings of fact and conclusions of law, and the
trial court relied on an erroneous view of the law when it denied the multiplier, we
reverse the fees and cost award and remand for further proceedings on the existing
record and consistent with this opinion. But because the court properly denied Tupas'
request for prejudgment interest on the back pay award on nonwaiver of sovereign
immunity grounds, we affirm the denial of prejudgment interest. We reverse and
remand, in part, and affirm, in part.
FACTS
Cyma Tupas worked in technical and scientific positions for the Department from
1987 until her involuntary disability separation in October 2012.
In November 2012, Tupas filed a lawsuit against the Department and three
supervisors alleging national origin discrimination and retaliation.1 She alleged that,
beginning in 2007, less qualified Caucasian workers were selected for promotion over
her and the Department retaliated when she complained.
1 At oral argument, Tupas claimed her retaliation claim was based on her
disability. Her amended complaint and the jury instructions make clear that her
retaliation claim related to reporting national origin discrimination.
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In October 2013, Tupas filed an amended complaint abandoning her claim for
national origin discrimination. She realleged her national origin retaliation claim2 and
also alleged two new claims for disability discrimination and failure to accommodate a
disability. She alleged that her supervisors failed to accommodate ongoing medical
conditions and discriminated against her because of those conditions.
After 10 days of trial, the jury found the Department liable on the failure to
accommodate disability claim and awarded damages for back pay, front pay, and
emotional distress totaling $329,580.3 It found no liability on her remaining claims.
On April 30, 2014, Tupas filed motions seeking an award of attorney fees, costs,
and prejudgment interest on her past wages in the total amount of $543,690. She also
requested a contingency multiplier of 1.5 to account for the risk factor inherent in a
contingency fee case. The multiplier would have increased the fees award by
$271,847.50. The trial court entered 15 findings of fact and conclusions of law to
support its fees and cost award. It declined to grant the multiplier, reduced the fees and
costs requested by 25 percent and declined to award prejudgment interest.4
Tupas appeals the trial court's order on attorney fees, costs, and prejudgment
interest.5
2 Tupas is Filipina.
3 The jury awarded $96,580 for lost wages and benefits, $225,000 for lost future
wages and benefits and $8,000 for emotional distress damages.
4 Tupas contends the trial court should have allowed the entire fees amount
requested or applied the contingent multiplier.
5 Our record contains no transcript of the hearing on attorney fees and costs.
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ANALYSIS
Tupas contends that the trial court's findings and conclusions supporting its 25
percent reduction of the lodestar award are insufficient to permit meaningful appellate
review.6 We agree.
For claims arising under Washington's Law Against Discrimination (WLAD),
courts use the lodestar method to calculate reasonable attorney fees. Martinez v. City
of Tacoma. 81 Wash. App. 228, 239, 914 P.2d 86 (1996). Under this method the trial
court must determine the number of hours an attorney reasonably expended in pursuit
of the litigation and then multiply that by the attorneys' reasonable hourly rates. Bowers
v. Transamerica Title Ins. Co.. 100 Wash. 2d 581, 593-94, 675 P.2d 193 (1983). The
lodestar functions as the presumptive reasonable fee. Chuong Van Pham v. Seattle
Citv Light. 159 Wash. 2d 527, 542, 151 P.3d 976 (2007).
The hours "reasonably expended" for the purposes of the lodestar calculation
must be spent on claims with a "common core" of facts and related legal theories to the
successful claims. Pham. 159 Wash. 2d at 538. A court should discount hours spent on
unsuccessful claims, duplicate or wasted effort, or otherwise unproductive time. Pham.
159 Wash. 2d at 538. But if efforts to segregate successful and unsuccessful claims are
unavailing, a trial court does not abuse its discretion by including related claims in a fee
award without reduction. Brovles v. Thurston Cntv.. 147 Wash. App. 409, 450,195 P.3d
985 (2008).
6There is no dispute on the court's findings of reasonableness associated with
the attorneys' hourly rates.
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When determining an award of attorney fees, the court must enter findings of fact
and conclusions of law. Berrvman v. Metcalf. 177 Wash. App. 644, 657-58, 312 P.3d 745
(2013). These "findings must show how the court resolved disputed issues of fact and
the conclusions must explain the court's analysis." Berrvman. 177 Wash. App. at 658. An
explicit hour-by-hour analysis of each lawyer's time sheet is not required if the award is
made with consideration of the relevant factors and the reasons provided for the amount
awarded are sufficient to permit review. Absher Const. Co. v. Kent School Dist. No.
415. 79 Wash. App. 841, 848, 917 P.2d 1086 (1995).
"Trial courts must independently decide what represents a reasonable amount of
attorney fees; they may not merely rely on the billing records of the prevailing party's
attorney." Maver v. Citv of Seattle. 102 Wash. App. 66, 79,10 P.3d 408 (2000) (citations
omitted). We review a trial court's award of attorney fees for a manifest abuse of
discretion. Pham. 159 Wash. 2d at 538. A court abuses its discretion when it exercises it
in a manifestly unreasonable manner or bases it upon untenable grounds or reasons.
State v. Stenson. 132 Wash. 2d 668, 701, 940 P.2d 1239 (1997). But where the trial court
has not provided sufficient analysis to permit meaningful appellate review, remand is the
appropriate remedy. Brand v. Dep't of Labor Indus.. 139 Wash. 2d 659, 67-75, 989 P.2d
1111 (1999).
The trial court entered findings of fact 10 and 11 supporting its 25 percent
reduction of the fees requested:
It is challenging to determine precisely how much time spent [sic] plaintiff's
counsel spent preparing and presenting evidence on the successful, as opposed,
to non-successful claims. Certainly, some background as to Ms. Tupas's
employment history at the Department of Ecology would have been relevant
background for evaluating the successful failure to accommodate claim. In
addition, both parties were entitled to present lay testimony as to incidents that
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ultimately resulted in Ms. Tupas's disability separation. The court finds and
concludes that a 25% reduction in the hours of preparation and trial is
appropriate to account for time spent on the unsuccessful claims that do not
encompass a "common core of facts and related legal theories" as the failure to
accommodate claim. See Steel v. Lundoreen. [96 Wash. App. 773, 982 P.2d 619]
(1999). Accord, Pham v. Citv Light. [159 Wash. 2d 527,151 P.3d 976] (2007). This
would result in an adjusted lodestar of $407,771.
Clerk's Papers (CP) at 691.
Because of the approach taken by the court, the issue of "block billing" raised by
the Department is unnecessary to address. In addition, the court notes that
many of the examples raised by the Department as examples of "block billing"
are fairly specific.
CP at 692.
These findings show that the trial court did not resolve the "block billing" objection
by the Department and reduced the fees award by 25 percent to take into account time
expended on "unsuccessful claims" not involving "common core of facts and related
legal theories."
Washington courts frequently rely on federal authority involving attorney fees
issues when interpreting the WLAD on fee issues. Blair v. Wash. State Univ.. 108
Wash. 2d 558, 570, 740 P.2d 1379 (1987). Our state cases have consistently relied on
Henslev v. Eckerhart. 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), a case
involving the Federal Civil Rights Attorney's Fees Awards Act.
In Bright v. Frank Russell Investments. No. 72663-3-I, 2015 WL 6681033 (Wn.
App. Nov. 2015), we recently addressed a WLAD fees dispute where the plaintiff, like
Tupas, prevailed on some but not all of her claims. We relied principally on Henslev's
analysis of the proper relationship between the results obtained to an award of attorney
fees to determine whether the reasonably expended hours portion of the lodestar
calculation was proper.
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The Court stated:
"It may well be that cases involving [] unrelated claims
are unlikely to arise with great frequency. Many civil rights
cases will present only a single claim. In other cases the
plaintiff's claims for relief will involve a common core of facts
or will be based on related legal theories. Much of counsel's
time will be devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a claim-
by-claim basis. Such a lawsuit cannot be viewed as a series
of discrete claims. Instead the [1 court should focus on the
significance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litigation."
The Supreme Court went on to state:
"Where a plaintiff has obtained excellent results,!71 his
attorney should recover a fully compensatory fee. Normally
this will encompass all hours reasonably expended on the
litigation, and indeed in some cases of exceptional success
an enhanced award may be justified. In these
circumstances the fee award should not be reduced simply
because the plaintiff failed to prevail on every contention
raised in the lawsuit. Litigants in good faith may raise
alternative legal grounds for a desired outcome, and the
court's rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee. The result is what
matters."
Notably, the Supreme Court made the following observation while rejecting an
argument very similar to the one Frank Russell now makes:
"We agree with the District Court's rejection of "a
mathematical approach comparing the total number of
issues in the case with those actually prevailed upon." Such
a ratio provides little aid in determining what is a reasonable
fee in light of all the relevant factors. Nor is it necessarily
significant that a prevailing plaintiff did not receive all the
relief requested. For example, a plaintiff who failed to
recover damages but obtained injunctive relief, or vice versa,
may recover a fee award based on all hours reasonably
expended if the relief obtained justified that expenditure of
attorney time."
7 Finding of fact 9 states, "The quality of Plaintiff's attorneys on this case was
excellent." CPat691.
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Bright. 2015 WL 6681033 at *3 (footnotes omitted) (quoting Henslev. 461 U.S. at 435-
36) (emphasis in original).
In affirming the trial court's fees award for Bright's successful and unsuccessful
claims, we explained that "[l]itigants in good faith may raise alternative legal grounds for
a desired outcome" and "courts should treat claims as separate lawsuits when they are
based on different facts and legal theories." Bright. 2015 WL 6681033 at *4 (emphasis
in original).
Thus, courts should treat claims as separate lawsuits when they are both
factually and legally unrelated. Conversely, when a plaintiff prevails and
the claims "involve a common core of facts or... related legal theories,"
the court should not view the lawsuit "as a series of discrete claims."
Bright. 2015 WL 6681033 at *4 (quoting Henslev. 461 U.S. at 435) (emphasis in
original).
It appears that the trial court did not weigh the considerations discussed in
Henslev when it reduced the lodestar amount by a fixed percentage. Our review of this
issue is also hampered by the inadequate findings of fact. The findings of fact on this
question are conclusory. For example, the trial court made no findings that explain how
it arrived at the specific percentage reduction and why the unsuccessful claims do not
encompass a common core of facts and related legal theories. While we acknowledge
that assessing proper fees awards can be challenging, "it is the judge who has watched
the case unfold and who is in the best position to determine which hours should be
included in the lodestar calculation." Henslev. 461 U.S. at 437. "That is why the law
requires us to defer to the trial court's judgment." Pham. 159 Wash. 2d at 540. But that
judgment must be reduced to adequate written findings of fact and conclusions of law
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that inform an appellate court on how the court resolved disputed factual issues and the
conclusions must explain the court's analysis. Here the court entered two conclusory
findings to support its fees reduction and did not resolve the objections raised by the
Department.8
In Henslev. the court emphasized that "the most critical factor is the degree of
success obtained." 461 U.S. at 436.
Application of this principle is particularly important in complex civil rights
litigation involving numerous challenges to institutional practices or
conditions. This type of litigation is lengthy and demands many hours of
lawyers' services. Although the plaintiff often may succeed in identifying
some unlawful practices or conditions, the range of possible success is
vast. That the plaintiff is a "prevailing party" therefore may say little about
whether the expenditure of counsel's time was reasonable in relation to
the success achieved.
There is no precise rule or formula for making these determinations. The
district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited
success. The court necessarily has discretion in making this equitable
judgment. This discretion, however, must be exercised in light of the
considerations we have identified.
Henslev. 461 U.S. at 436.
Regardless of the how the court exercises its discretion, it must enter findings
and conclusions:
It remains important, however, for the district court to provide a concise
but clear explanation of its reasons for the fee award. When an
adjustment is requested on the basis of either the exceptional or limited
nature of the relief obtained by the plaintiff, the district court should make
clear that it has considered the relationship between the amount of the fee
awarded and the results obtained.
Henslev. 461 U.S. at 437.
8 See. Defendant's Objection to Plaintiff's Motion for Award of Attorney Fees and
Cost Bill. CPat547.
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Tupas argues that under Henslev. no reduction was necessary where the trial
court found it "challenging to determine precisely how much time" Tupas "spent
preparing and presenting evidence on the successful, as opposed, to non-successful
claims." CP at 691. The Department argues that Henslev stands for the proposition that
where a court is unable to identify specific attorney hours that should be eliminated, "it
may simply reduce the award." Henslev. 461 U.S. at 436-37. On this limited record,
neither party is correct.
Henslev does not grant a trial court unlimited discretion to reduce a fee award as
discussed above.
Cases after Henslev indicate that even greater scrutiny will be applied when a
trial court imposes a significant reduction to a fee award. In Gates v. Deukmeiian. 987
F.2d 1392 (9th Cir. 1992), the court explained that the "meat-axe approach" utilized by
the district court when it applied an across the board percentage reduction in an
attorney fee award did not excuse it from entering findings. Instead, the court explained
that large reductions to a fee award will be examined more closely:
Thus, percentages indeed are acceptable, and perhaps necessary, tools
for district courts fashioning reasonable fee awards. However, decisions
of district courts employing percentages in cases involving large fee
requests are subject to heightened scrutiny and the use of percentages, in
any case, neither discharges the district court from its responsibility to set
forth a "concise but clear" explanation of its reasons for choosing a given
percentage reduction nor from its duty to independently review the
applicant's fee request.
Gates, 987 F.2d at 1400.
Nor is it enough for a trial court to merely identify the correct legal rules or factors
implicated by a fees award. In Padgett v. Loventhal. 706 F.3d 1205, 1208 (9th Cir.
2013), the court reasoned, "identifying the legal rules that guide the calculation of fees,
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and then producing a number that is purportedly a result of that calculation, does not
allow us to review the decision for an abuse of discretion." Padgett. 706 F.3d at 1208.
Indeed, "the mandate that district courts show their work is all the more important in
cases where, as here, there are many overlapping claims and a very mixed result."
Padgett. 706 F.3d at 1209.
In sum, under Berrvman, meaningful findings and conclusions must be entered
that explain an award of attorney fees and the considerations for awarding fees
discussed in Henslev apply here.9
Cost Award
Tupas argues that the trial court abused its discretion by reducing her cost award
by 25 percent, in the same proportion as the reduced attorney fees awarded.10
Under the WLAD, an aggrieved party may recover the costs of the suit and any
other remedy authorized by the United States Civil Rights Act. RCW 49.60.030(2); Blair
v. Wash. State Univ.. 108 Wash. 2d 558, 572-73, 740 P.2d 1379 (1987). The WLAD
provides no direct limitation on the costs recoverable in a discrimination action under
chapter 49.60 RCW:
Any person deeming himself or herself injured by any act in violation of
this chapter shall have a civil action in a court of competent jurisdiction to
enjoin further violations, or to recover the actual damages sustained by
the person, or both, together with the cost of suit including reasonable
attorneys' fees or any other appropriate remedy authorized by this chapter
or the United States Civil Rights Act of 1964 as amended, or the Federal
Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
9 As noted above, a trial court may properly reduce a fee award by a fixed
percentage provided it enters findings of fact to support the reduction and explains its
analysis.
10 Tupas submitted adequate documentation of her costs expended in this action.
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RCW 49.60.030(2) (emphasis added).
In Blair, the Supreme Court adopted "the federal rule allowing more liberal
recovery of costs ... in order to further the public policies underlying civil rights
statutes." Blair. 108 Wash. 2d at 573. Those policies include:
to make it financially feasible to litigate civil rights violations, to enable
vigorous enforcement of modern civil rights legislation ... to compensate
fully attorneys whose service has benefitted the public interest, and to
encourage them to accept these cases where the litigants are often poor
and the nonjudicial remedies are often nonmonetary.
Blair. 108 Wash. 2d at 573. Recovery should include expenses that are "reasonable and
necessary in the preparation and trial of the case." Blair. 108 Wash. 2d at 573-74. This
may include "out-of-pocket expenses for transportation, lodging, parking, food and
telephone expenses, photocopying, and paralegal expenses." Martinez. 81 Wash. App. at
245. Statistician, computer expenses, supplies, equipment and depositions are all
allowable costs for civil rights actions. Blair. 108 Wash. 2d at 574. Expert witnesses are
allowable costs. Johnson. 177 Wash. App. 684, 700, 313 P.3d 1198 (2013).
Tupas submitted written documentation of costs and expenses totaling $18,573.
She also submitted her attorney's declaration attesting to the accuracy of the costs and
expenses incurred by the law firm on behalf of Tupas. The court's sole finding of fact
and conclusion of law on costs states "[plaintiff's costs are reasonable and fully
recoverable, in the same proportion as the attorney fees." CP at 692.
The Department's brief devotes no discussion or analysis to the cost issue. We
conclude the trial court improperly reduced the total costs by 25 percent without
considering the rule allowing for liberal cost recovery in civil rights actions and whether
the costs were reasonable and necessary expenditures in the preparation and trial of
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this litigation. While a fixed percent reduction may be appropriate in the attorney fees
award context, the standards governing award of costs is different for award of attorney
fees.
The trial court based its cost award on an erroneous view of the law. We reverse
the cost award. On remand the court should determine the proper amount of costs in
light of the considerations discussed above and make sufficient findings of fact and
conclusions of law to support any award of costs.
Contingency Multiplier
Tupas challenges the trial court's disallowance of a 50 percent (1.5) contingency
multiplier on two grounds. First, she argues the court placed undue emphasis on the
risk of litigation to the exclusion of other relevant factors. Second, she contends the
court failed to consider the risk from the outset of litigation.11
In declining the multiplier, the court concluded that this was a low risk case, due
in part, to the Department's factual concessions.
In determining that a multiplier is not warranted, the court considered, among
other factors, the Department's concession that Ms. Tupas was disabled. It was
also conceded that Ms. Tupas was terminated because of her disability and
because the Department concluded it would be unable to accommodate her.
This was not a particularly high risk claim for plaintiff's counsel to take on. Some
of the other factors considered by the court are briefly summarized in Footnote 2
to this order.'121
11 Tupas contends the court should have awarded her the entire lodestar amount
or applied a multiplier.
12 Footnote 2 states as follows:
Because of the court's approach to the amount of fees (See Finding 10),
the court did not reduce the award by arguably redundant billing, such as
having two lawyers attend some depositions or the conferences that
occurred among the three lawyers handling this case.
CP at 691.
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CP at 692.
The court may consider adjusting the award to reflecfadditional factors once the
lodestar has been calculated. Pham. 156 Wash. 2d at 540.
A party seeking a deviation from the lodestar amount bears the burden of
justifying the deviation. Wash. State Phvsicians Ins. Exch. & Ass'n v. Fisons Corp.. 122
Wash. 2d 299, 334, 858 P.2d 1054 (1993). Generally, "adjustments of the lodestar are
discretionary and rare." Sanders v. State. 169 Wash. 2d 827, 869, 240 P.2d 827 (2010).
Adjustments to the lodestar fall into two general categories: the contingent nature
of success and the quality of the work performed. Pham. 159 Wash. 2d at 541. The
contingency adjustment is based on the principle that attorneys will refuse high risk
contingency cases unless they receive a premium for the risk of receiving no recovery
at all. Pham. 159 Wash. 2d at 541. A contingency adjustment should not include the
difficulty in establishing the merits of the case, since this will be reflected in the number
of hours an attorney spends on a case and the level of skill that an attorney must have
to prevail. Pham. 159 Wash. 2d at 541. Furthermore, a contingency multiplier should be
denied where the attorney's hourly rate "comprehends an allowance for the contingent
nature of the availability of fees." Bowers. 100 Wash. 2d at 599.
Despite a presumption that the lodestar represents a reasonable fee, an
exception to the presumption exists in antidiscrimination cases because the law "places
a premium on encouraging private enforcement and ... the possibility of a multiplier
works to encourage civil rights attorneys to accept difficult cases." Berrvman v. Metcalf.
177 Wash. App. 644, 666, 312 P.3d 745 (2013) (quoting Pham. 156 Wash. 2d at 542). In this
type of case, "it is possible the lodestar figure does not adequately account for the high
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risk nature of a case." Berrvman. 177 Wash. App. at 666. Citing Pham. we noted in
Berrvman. "Most of the [Washington] cases in which multipliers have been considered
were brought under [liberally construed] remedial statutes with fee-shifting provisions
designed to further the statutory purposes." Berrvman. 177 Wash. App. at 682 (listing
cases where plaintiffs ended up with a multiplier).
Although the determination of whether a lodestar multiplier is warranted is largely
a question left to the discretion of the trial court, in reaching its conclusion the court
must consider the risk faced by plaintiff's attorneys at the outset of the litigation:
In adjusting the lodestar to account for this risk factor, the trial court must
assess the likelihood of success at the outset of the litigation. This is
necessarily an imprecise calculation and must largely be a matter of the
trial court's discretion. Nevertheless certain guiding principles should be
followed [T]o the extent, if any, that the hourly rate underlying the lodestar
fee comprehends an allowance for the contingent nature of the availability
of fees, no further adjustment duplicating that allowance should be made.
Pham. 159 Wash. 2d at 542 (quoting Bowers. 100 Wash. 2d at 598-99) (emphasis added).
In considering the propriety of a contingency adjustment, we have held that the
trial court abuses its discretion when it takes irrelevant factors into account.
Tupas claims the court failed to consider the contingent nature of success,13 the
Department's "nuisance value" offer to settle the case, the Department's stance that
Tupas' disability disqualified her for work in her profession, Tupas speaks English as a
second language, and the quality of representation.
The Department contends the court considered these factors in its lodestar
calculation. In particular, the Department argues that a discrimination suit's complexity
and the quality of the legal services are already factored in the lodestar calculation.
13 Tupas' attorneys represented her in this case on a contingency fee basis.
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See Bowers. 100 Wash. 2d at 593-94, 598-99. The Department also argues that the
court's findings of fact 12 properly considered the risk of a contingency fee case.
As noted above, the rule is well settled. When assessing whether a contingency
multiplier is warranted, the trial court must assess the likelihood of success at the outset
of litigation. Bowers. 100 Wash. 2d at 598 (citing Samuel R. Berger, Court Awarded
Attorneys' Fees: What is "Reasonable"?, 126 U. Pa. L. Rev. 281, 324-25, on the
purpose of the contingency adjustment).
The trial court's findings of fact 12 are inadequate to determine whether it
assessed the chances of success at the outset of the litigation. The findings mention
the court considered "other factors" and also referenced footnote 2. The findings of fact
fail to state what those "other factors" are in denying the multiplier. Footnote 2 merely
recites that the court did not reduce the award for redundant billing because of its fixed
25 percent reduction approach.
It appears the trial court may have disallowed the multiplier based on an
improper grounds. Instead of relying on either an assessment of the risk factor or the
quality of work, the court relied on an irrelevant factor—its 25 percent fee reduction
approach. "In considering the propriety of a contingency adjustment, we have held that
the trial court abuses its discretion when it takes irrelevant factors into account." Pham.
159Wn.2dat543.
We do not know if the trial court considered Tupas' arguments in support of the
multiplier. The court's resolution of this issue lacks necessary findings to show how the
court resolved disputed issues of fact and the conclusions must explain the court's
analysis.
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Given the inadequate findings and questionable conclusions, we remand to the
trial court to reconsider the contingency multiplier request and for the entry of proper
findings of fact and conclusions of law that explain the basis for the court's decision.14
Prejudgment Interest
Tupas contends that she was entitled to prejudgment interest under chapter
49.60 RCW to the same extent as if she prevailed against a private employer. She
asserts that RCW 40.60.040(11)'s definition of "employer" includes the Department,
indicating the legislature's intent to impose liability on the Department to the same
extent as a private employer.
The trial court denied Tupas' request for prejudgment interest on the liquidated
portion of her damages.
The parties do not dispute that in promulgating the WLAD, Washington waived its
sovereign immunity and allowed employees to recover damages under the WLAD
against the state. The dispute here involves whether this waiver applies to prejudgment
interest.
This question is controlled by Norris v. State. 46 Wash. App. 822, 733 P.2d 231
(1987). A jury awarded the plaintiff substantial damages in his personal injury
negligence lawsuit against the state. In Norris. the court held that when the legislature
enacted RCW 4.56.115,15 it waived sovereign immunity for post judgment interest on
14 We express no opinion on the decision to award or not award a multiplier in
this case. That decision remains within the trial's discretion on remand.
15 RCW 4.56.115 currently provides in relevant part:
In any case where a court is directed on review to enter judgment on a
verdict or in any case where a judgment entered on a verdict is wholly or
partly affirmed on review, interest on the judgment or on that portion of the
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tort claims. Citing the principle of statutory construction "[ejxpressio unius est exclusio
alterius"—specific inclusions exclude implication—the court held that because the
statute waived liability for post judgment interest, but did not mention prejudgment
interest, the state's sovereign immunity remained intact. "The State has not consented
to prejudgment interest on tort claims against it." Norris. 46 Wash. App. at 825. Tupas
fails to address Norris.
In Foster v. Wash. Dep't of Transp.. 128 Wash. App. 275, 115 P.3d 1029 (2005),
the court reaffirmed its holding in Norris.
We held that when the legislature enacted RCW 4.56.115, it had expressly
waived sovereign immunity from post judgment interest on tort claims,
while at the same time, by necessary implication, not waiving sovereign
immunity from p_re judgement interest on tort claims. Since 1987, the
legislature has met many times without abrogating or altering Norris.
Foster. 128 Wash. App. at 279.
The trial court properly declined to award prejudgment interest.
Attorney Fees and Costs on Appeal
Tupas requests an award of reasonable attorney fees and costs on appeal.
Under RCW 49.60.030(2), a successful plaintiff who also prevails on appeal is entitled
to an award of reasonable attorney fees and costs on appeal. Martini v. Boeing Co..
137 Wash. 2d 357, 377, 971 P.2d 45 (1999). Because Tupas prevails on appeal, she is
entitled to an award of attorney fees subject to compliance with RAP 18.1. She is also
entitled to an award of costs on appeal.
judgment affirmed shall date back to and shall accrue from the date the
verdict was rendered,
(emphasis added).
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No. 72259-0-1/19
CONCLUSION
For the reasons discussed above, we reverse the award of attorney fees and
costs and remand for reconsideration of a multiplier and fees and costs on the existing
record and for entry of necessary findings of fact and conclusions of law consistent with
this opinion. The findings must indicate how the court resolved issues of fact and the
conclusions must explain the court's analysis in sufficient detail. We affirm the trial
court's denial of prejudgment interest under Norris. We award reasonable attorney fees
and costs conditioned on compliance with RAP 18.1.
WE CONCUR:
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•19-