Jeff & Elaine Mcnabb v. Metropolitan Property & Casualty Ins. Co. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JEFF MCNABB and ELAINE ) No. 77832-3-1
MCNABB, husband and wife, )
and the marital community )
composed thereof, )
)
Appellants, )
)
v. )
)
METROPOLITAN PROPERTY ) UNPUBLISHED OPINION
AND CASUALTY INSURANCE )
COMPANY, an insurance company, ) FILED: May 28, 2019
)
Respondent. )
)
VERELLEN, J. —Jeff and Elaine McNabb sued their insurance provider,
Metropolitan Property and Casualty Insurance Company,for breach of contract,
bad faith, violation of the Consumer Protection Act(CPA)1 and violation of the
Insurance Fair Conduct Act(IFCA).2 The jury returned a verdict in favor of the
McNabbs and awarded over $8 million. But following trial, the court remitted the
entire $1,345,317.24 CPA damages verdict, citing potential duplication concerns.
Washington courts strongly presume the jury verdict is correct. A jury's
damages award must be within the range of substantial evidence in the record.
1 Ch. 19.86 RCW.
2 Ch. 48.30 RCW.
No. 77832-3-1/2
And although mathematical exactness is not required to calculate damages, the
plaintiff must prove damages with reasonable certainty to avoid speculation.
Whether the result of speculation or duplication, on de novo review, the
evidence before us does not support the total amount of economic damages
awarded by the jury. But we arrive at a different number than the trial court on
remittitur. Rather than remittitur of $1,345,317.29, we conclude $875,588.10 of
economic damages is outside the range of the evidence in the limited record
before us. Therefore, we reverse the trial court's order of remittitur and remand
for entry of an amended judgment consistent with this opinion.
FACTS
In 2014, the McNabbs lived in Seattle with their two daughters. The
McNabbs' home was insured with Metropolitan. On June 12, 2014, the McNabbs'
tankless hot water heater flooded the home with hot water.
After receiving Metropolitan's initial offer, the McNabbs objected and
invoked the appraisal provision "[i]n accordance with the terms and provision of
the insurance policy."3 Under the appraisal provision, each party appointed an
appraiser, and the appraisers appointed an umpire.
3 Clerk's Papers(CP)at 2197; Report of Proceedings (RP)(July 17, 2017)
at 72.
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No. 77832-3-1/3
In November 2014, the McNabbs filed this lawsuit against Metropolitan for
breach of contract, bad faith, violation of the CPA, and violation of the IFCA.4
On March 23, 2016, the appraisal panel issued an award. The appraisal
award was divided into three categories:(1) dwelling,(2) contents, and (3) loss of
use. In each category, the appraisal panel provided a claim valuation at date of
loss and a separate claim valuation at date of appraisal. In the award for dwelling
and content, the appraisal panel also provided a replacement cost value and an
actual cash value.
After the three-week trial in July 2017, the jury returned a special verdict for
the McNabbs of $8,371,323.93.6 The award included $1,345,317.24 for CPA
damages. The McNabbs moved to increase the verdict on various grounds. On
September 22, 2017, the trial court granted the McNabbs' motion and entered an
amended judgment for $10,590,169.48.6
Metropolitan moved for remittitur on several grounds and for a new trial. On
November 20, 2017, the trial court denied Metropolitan's motion for a new trial and
granted remittitur only as to the CPA damages verdict.7 The court emphasized
"the main question" regarding economic damages "is whether they are duplicate
4 The McNabbs also sued (1) Allied Restoration, d/b/a Servpro of Central
Seattle,(2) the appraiser, Tim Berglund, and (3) Taylor & Smith, LLC, d/b/a, PWC
Construction. Metropolitan was the only defendant at trial. It appears the other
defendants settled prior to trial. See CP at 94.
5 CP at 739-43.
6 CP at 2012-15.
7 CP at 2379.
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No. 77832-3-1/4
awards."8 "[T]his Court cannot conclude that there is additional evidence of
damages supporting [the CPA award of damages] at least that would not duplicate
other awarded damages."9 The court entered an amended judgment for
$9,219,852.24.1°
Metropolitan appealed on various issues, and the McNabbs cross appealed
on remittitur. Metropolitan decided to pay the November 20, 2017 amended
judgment, and on February 21, 2018, the parties moved for a stipulated dismissal
of Metropolitan's appeal. This court granted the motion, and the McNabbs were
redesignated as the appellants.
ANALYSIS
I. Remittitur
The McNabbs contend the trial court erred in granting remittitur of the jury's
CPA damages verdict.
We review a trial court's decision granting remittitur de novo.11
Even in the context of de novo review, when reviewing a jury's award of
damages, we "'strongly presume the jury's verdict is correct.'"12 Under the
Washington State Constitution article 1, section 21, the right to a trial by jury is
8 CP at 2385.
9 CP at 2387.
10 CP at 2414.
11 Bunch v. King County Dep't of Youth Services, 155 Wash. 2d 165, 176, 116
P.3d 381 (2005).
12 Terrell v. Hamilton, 190 Wash. App. 489, 510, 358 P.3d 453(2015)(quoting
id. at 179).
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No. 77832-3-1/5
"inviolate." "The jury is given the constitutional role to determine questions of fact,
and the amount of damages is a question of fact."13
"'An appellate court will not disturb an award of damages made by a jury
unless it is outside the ranqe of substantial evidence in the record, or shocks the
conscience of the court, or appears to have been arrived at as the result of
passion or prejudice.'"14 When reviewing a trial court's ruling on a motion for
remittitur, we view the evidence in the light most favorable to the nonmoving
party.18
"Compensable injuries under the CPA are limited to 'injury to [the] plaintiff in
his or her business or property."16 The CPA does not allow a plaintiff to recover
for personal injury, "mental distress, embarrassment, and inconvenience," or the
financial consequences of such injuries.17 But the business and property injuries
otherwise compensable are "relatively expansive."18
13 Bunch, 155 Wash. 2d at 179.
14 Id. at 175 (emphasis added)(quoting Binqaman v. Grays Harbor Cmty.
1-losp., 103 Wash. 2d 831, 835, 699 P.2d 1230 (1985)).
15 Collins v. Clark County Fire Dist. No. 5, 155 Wash. App. 48, 82, 231 P.3d
1211 (2010)(citing id. at 179).
16 Frias v. Asset Foreclosure Servs., Inc., 181 Wash. 2d 412, 430, 334 P.3d
529(2014)(alteration in original)(quoting Hangman Ridge Training Stable, Inc. v.
Safeco Title Ins. Co., 105 Wash. 2d 778, 780, 719 P.2d 531 (1986)).
17 Id. at 431 (quoting Panaq v. Farmers Ins. Co. of Wash., 166 Wash. 2d 27,
57, 204 P.3d 885 (2009)).
15 Id.
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No. 77832-3-1/6
In general, although "[m]athematical exactness is not required,"19
"damages must be proved with reasonable certainty.'"20 Reasonable certainty
provides a "reasonable basis for estimating loss and does not subject the trier of
fact to mere speculation or conjecture.'"21
The McNabbs argue the court erred in granting remittitur because
substantial evidence supported the jury's CPA damages award. Metropolitan
contends the jury's CPA damages award is duplicative of the jury's damages
awards under other theories. Washington courts have repeatedly held duplicative
damage awards are void against public policy.22
Here, the jury returned a verdict for the McNabbs and awarded
$8,371,323.93. The special verdict included the following breakdown of damages
on various legal theories:
19 Dexheimer v. CDS, Inc., 104 Wash. App. 464, 476, 17 P.3d 641 (2001)
(citing Erdman v. Lower Yakima Valley B.P.O.E. Lodge No. 2112, 41 Wash. App.
197, 208, 704 P.2d 150 (1985)).
29 Mutual of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wash. App. 702,
715, 315 P.3d 1143(2013)(quoting Lewis River Gold, Inc. v. O.M. Scott & Sons,
120 Wash. 2d 712, 717, 845 P.2d 987 (1993)).
21 Gregg, 178 Wash. App. at 716 (quoting Clayton v. Wilson, 168 Wash. 2d 57,
72, 227 P.3d 278 (2010)).
22 See, e.g., Conrad ex rel. Conrad v. Alderwood Manor, 119 Wash. App. 275,
290, 78 P.3d 177(2003)("a double damage award is contrary to Washington
law"); Eagle Point Condominium Owners Ass'n v. Co',, 102 Wash. App. 697, 702,
9 P.3d 898(2000)("It is a basic principle of damages, both tort and contract, that
there shall be no double recovery for the same injury."); Barney v. Safeco Ins. Co.
of America, 73 Wash. App. 426, 428, 869 P.2d 1093(1994)("Clearly, there is a
'public policy' against 'double' recovery."), overruled on other grounds by Price V.
Farmers Ins. Co. of Wash., 133 Wash. 2d 490, 946 P.2d 388 (1997); Wilson v. Brand
S Corp., 27 Wash. App. 743, 747, 621 P.2d 748(1980)("double recovery. . . is
contrary to the principle of compensatory damages").
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No. 77832-3-1/7
Breach of contract
Repair to the home: $ 1,127,042.98
Repair or replace personal property: $ 591,676.61
Loss of use: $ 241,223.26
Additional damages: $ 474,233.84
Breach of duty of good faith
Economic damages: $ 475,000.00
Noneconomic damages Jeff: $ 1.8 million
Noneconomic damages Elaine: $ 1.84 million
Consumer Protection Act: $ 1,345,317.24
Insurance Fair Conduct Act: $ 476,830.00[23]
To support their argument, the McNabbs compare the total economic
damages awarded by the jury with the total evidence of economic damages
presented at trial. Metropolitan argues this approach is illogical and ignores the
court's instruction concerning CPA damages.
In jury instruction 22, the court instructed the jury on damages across the
various theories. With regard to the CPA, the court instructed:
If your verdict is for the Plaintiffs on their Consumer Protection
Act claim, you may award actual damages proximately caused by
the violation of the CPA, you shall determine the amount of money
that will reasonably and fairly compensate the Plaintiffs for the
injuries to their property proximately caused by the unfair or
deceptive acts of Metropolitan. Injuries to property, if any, include:
financial loss, difficulty in securing a loan or other credit, time away
from work, loss of use of their personal property, and similar actual
23 CP at 2390-92.
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No. 77832-3-1/8
damages. You may not award damages on the CPA claim for
noneconomic damages such as emotional distress.[24]
Metropolitan argues "many of the damages allowed for the other claims
were not included in the four elements of damages listed in the CPA damages
instruction."25 But the term "financial loss" is not narrowly limited by the
subsequent categories of damages, as suggested by Metropolitan at oral
argument. Jury instruction 22 is broad enough to cover all of the categories of
economic loss in dispute.
The McNabbs contend the total economic damages award is within the
range of the evidence of economic damages proven at trial. We disagree.
Whether the result of speculation or duplication, under de novo review, the
evidence before us does not support the total amount of economic damages
awarded by the jury. But we arrive at a different number than the trial court on
remittitur.
The total economic damages awarded by the jury, across the four theories,
exceeds $4.7 million:
Breach of contract—Repair to the home $ 1,127,042.98
Breach of contract—Repair or replace personal $ 591,676.61
property
Breach of contract—Loss of use $ 241,223.26
Breach of contract—Additional damages $ 474,233.84
Breach of duty of good faith—Economic damages $ 475,000.00
Consumer Protection Act $ 1,345,317.24
Insurance Fair Conduct Act $ 476,830.00
Total Economic Damages Awarded by the Jury $4,731,323.93
24 CP at 681 (emphasis added).
25 Resp't's Br. at 14.
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No. 77832-3-1/9
The appraisal award, as of the date of appraisal, for contents, dwelling, and
loss of use, totals $1,959,942.85. It is undisputed the jury awarded the same
amount under breach of contract for repair to the home, to repair or replace
personal property, and for loss of use. This portion of the jury award is within the
range of the evidence.
Outside of the appraisal award, the McNabbs identify three main categories
of economic damages evidence: increased construction costs, loss of use, and
costs associated with the appraisal process. The McNabbs also argue they
presented substantial evidence of increased damages associated with their
personal property, beyond the amount awarded by the jury, and various
miscellaneous damages items.
A major disputed component of economic damages is the amount attributed
to increased construction costs. The McNabbs relied on testimony from their
construction expert, Wes Snowden, to contend construction costs increased
between 8 to 12 percent per quarter.
a. Increased Construction Costs
On direct examination, the McNabbs' counsel asked Snowden,"[VV]ould
you be able to build—rebuild the McNabbs' house today with the amount of money
that was in your [2016] bid?"26 Snowden replied, "No, we wouldn't hold the
estimate right now."27 The McNabbs' counsel asked,"Do you have an opinion as
26 RP (July 19, 2017) at 348.
27 Id.
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No. 77832-3-1/10
to how much the material and labor costs have gone up from then7"28 Snowden
answered:
Yeah, we've been asked this before because, you know, because
generally we only hold bids for 60 days. So 60 days—yes, the
answer to the question is right now that if we're asked to hold
something and if it's more than about three months or so, our opinion
is that the estimate can go up anywhere from 8 to 12 percent.[29]
In November 2015, the estimated cost of reconstruction was close to
$1 million.30 Four months later, in March 2016, the appraisal panel awarded over
$1.2 million to repair the McNabbs' home.31 In response to Metropolitan's
remittitur motion, the McNabbs argued construction costs were increasing by 10
percent per quarter from the date of the appraisal award through trial and a
subsequent 12-month reconstruction period.32
Metropolitan questions whether Snowden's testimony supports an ongoing
percentage increase of 10 percent per quarter. But viewed in the light most
favorable to the McNabbs, Snowden's testimony does support continuing inflation.
There is no specific evidence in the record before us supporting a 12-month
projection for reconstruction. The appraisal award for loss of use refers in passing
to a three-month period for reconstruction.33 But the McNabbs presented
28 Id.
29 Id.
30 Ex. 332.
31 CP at 2197.
32 CP at 2313.
33 CP at 2204 ("3 months reconstruction").
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No. 77832-3-1/11
substantial evidence concerning the scope of reconstruction. The November 2015
estimate illustrates the lengthy list of items to be completed during
reconstruction.34 And there was evidence that reconstruction would cost
upwards of $1 million. This was not a small project.
As a result, we conclude it is within the range of the evidence for the jury to
allow more than three months for reconstruction. Considering all the evidence
before us, a projected 12 months for reconstruction, as argued by the McNabbs in
response to Metropolitan's motion for remittitur, is within the range of evidence.
From the date of appraisal in March 2016 through reconstruction in July
2018 is 28 months; 28 months is 9.3 quarters. Given the original estimate and an
average 10 percent increase in construction costs per quarter for 9.3 quarters,
increased construction costs would total $930,000. We conclude $930,000 for
increased construction costs is within the range of the evidence.
b. Loss of Use
Another major category of debated economic damages is loss of use. The
appraisal award for loss of use covered December 2014 through April 2016.35 The
award for loss of use also included costs associated with a projected three-month
reconstruction.36 The appraisal panel's loss of use award was based on the actual
rental costs incurred by the McNabbs. The McNabbs paid $9,130 a month for the
34 Ex. 332.
35 CP at 2204. The loss occurred in June 2014 and the McNabbs moved
into the rental house in December 2014.
36 Id.
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No. 77832-3-1/12
rental house and $2,500 a month for furniture, for a total monthly cost of
$11,630.37 The jury awarded the McNabbs $241,223.26 for loss of use under their
breach of contract claim, exactly the amount the appraisal panel awarded for loss
of use on the claim summary page of the appraisal award.38
The McNabbs contend the range of evidence of total economic damages
includes a higher monthly amount for a longer period beyond the "Breach of
Contract—Loss of Use" section of the special verdict. The McNabbs cite to the
insurance contract and argue they are entitled to the "fair rental value" of their
home during the period of time their home was not fit to live in. As to the time
period, the record contains evidence of significant damages to their home from the
date of loss. As to the amount, the McNabb's relocation expert, Paul Nickels,
testified the fair rental value of the McNabbs home was $15,000 a month.39 June
2014, when the loss occurred, through July 2018, when the McNabbs' projected
the reconstruction to be completed, is 50 months. $15,000 a month for 50 months
is $750,000. $750,000 less the jury's award for loss of use, $241,223.26, to avoid
duplication, is $508,776.74. We conclude an additional $508,776.74 for loss of
use is within the range of the evidence.
c. Costs Associated with Appraisal
There are numerous economic costs associated with the year and half long
appraisal process. The motion for remittitur referred to an itemized list of damages
37 id.
38 CP at 2390, 2204.
39 RP (July 18, 2017) at 321.
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No. 77832-3-1/13
alleged by the McNabbs as the "Appraisal Associated Costs as of July 2017."4°
We analyze whether the substantive evidence matches or deviates from the
itemized list.
The larger items include:(1) $269,765.73 for the cost of the McNabbs'
appraiser, Roger Howson with ICDR, Inc.,41 (2) $4,797.50 for appraisal services
through Frank Riordan with ARCH Consulting Group, LLC,42 (3) $93,016.67 for
appraisal services through MDE, Inc. and Engineering Systems, Inc.,43
(4)$35,511.23 for appraisal services through Charter Construction, Inc.,44
(5)$2,737.01 for appraisal services through Belfor Property Restoration,45
(6) $14,497.44 for cabinet storage through QA Group,46 (7) $3,950 for relocation
services through NW Relocation Solutions, LLC,47 (8) $657.60 for cabinet storage
through QA Group,48 and (9) $18,998.06 for cabinet refinishing through QA
40 Exhibit 392 is an illustrative exhibit. In the motion for remittitur, the
McNabbs relied on Exhibit 392. See RP (Oct. 27, 2017) at 649-50.
41 Ex. 73_75.
42 Ex. 67 and 68.
43 Ex. 22-39, 41, and 43. Exhibit 40 is also an invoice from MDE, Inc. but it
is a duplicate of Exhibit 37. Exhibits 41 and 43 are invoices from Engineering
Solutions, Inc., but it appears these invoices were included in the figure for MDE,
Inc.
44 Ex. 271.
45 Exs. 70, 71.
46 Ex. 273.
47 Ex. 264.
48 Ex. 389.
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No. 77832-3-1/14
Group." With regard to these items, the evidence is consistent with the amounts
claimed by McNabbs. These items total $443,931.24.
Additionally, the invoices for the McNabbs' portion of the appraisal panel
umpire, retired Judge Steve Scott, with Judicial Dispute Resolution, LLC, total
$13,085.5°
The invoices for services performed by Dibble Engineers, Inc. total
$3,382.25.51 But the same amount, for services performed by Dibble, is included
in the invoice for appraisal services through Charter Construction.52 It would be
duplicative to count this amount twice.
To the extent the McNabbs rely on (1)$2,275.00 for "Schuster-Contract
Services,"(2)$3,573.33 for "Moving expenses,"(3) $1,430.98 for "Storage Fees-
April, May 2017," and (4)$9,529.34 for "Service Master Off-Site Storage for
3/1/16-7/1/17,"53 the McNabbs do not provide, and we cannot find any support for
these services or amounts in the record before us.
In total, we have located invoices and testimony supporting costs
associated with the appraisal process in the amount of $457,016.24. We conclude
$457,016.24 for costs associated with the appraisal process is within the range of
the evidence.
49 Ex. 388.
50 Ex. 55-66.
51 Ex. 69.
52 Ex. 271.
53 Ex. 392.
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No. 77832-3-1/15
d. Contents of the Home—Replacement Value
The McNabbs also suggest they were entitled to a larger amount for the
contents of their home than the amount awarded by the jury. In the special verdict
for breach of contract, "[t]o repair or replace the McNabbs' personal property," the
jury awarded $591,676.61, the actual cash value of the McNabbs' personal
property at the date of appraisa1.54
The jury's award comes from the appraisal award.55 The appraisal award
included the actual cash value and the replacement cost value of the McNabbs'
personal property. The award also included a valuation at the date of loss and a
valuation at the date of appraisal.
In unchallenged jury instruction 8, the court instructed the jury:
You must accept certain values listed in [the appraisal award] as the
measure of damages as explained below. . . .
. . . There are three different Awards in Ex. No. 90: "Appraisal
Award-Dwelling," "Appraisal Award-Contents" and "Appraisal Award-
Loss of Use."
Each of these Awards has a Claim valuation at Date of Loss
and a Claim Valuation at Date of Appraisal. This Court has already
ordered that the value that shall be used is the "Claim Valuation at
the Date of Appraisal" for each of the three Awards.
In considering the page entitled "Appraisal Award-Contents"
you shall accept the Actual Cash Value unless the Plaintiffs can
establish their right to the Replacement Cost Value for any particular
contents under the insurance policy, and you shall determine what, if
any, of those damages Plaintiffs have established were caused by
the water loss on June 12, 2014.[56]
54 CP at 2390.
55 CP at 2199.
56 CP at 662-63(emphasis added).
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No. 77832-3-1/16
The replacement cost value of the McNabbs' personal property at the date
of appraisal was $933,853.60.57 The McNabbs contend the range of evidence
extends to the difference between the jury's award of the actual cash value and
the replacement cost value, $342,176.99. But the McNabbs have not provided
any citations to the record or compelling argument to establish their right to the
replacement cash value for any specific items.
e. Miscellaneous Items
Finally, the McNabbs provide a list of miscellaneous items that they argue
support the jury's total economic damages award:
The McNabbs paid for [laundry room] work themselves, and this was
not included in the appraisal. They hired experts to inspect the roof
. . . . Other items of damage in evidence was other construction work
the McNabbs undertook, engineering services, relocation assistance,
Elaine's lost work during the time sh[e] could not work from home,
funds to repair internet connection so Elaine could resume work,
storage, additional unreimbursed living expenses incurred because
they could not use their home during June to December 2014.[55]
Several of the listed items duplicate costs associated with the appraisal
process, including engineering services, relocation assistance, and storage.
These items are addressed above. And the living expenses incurred between
June and December 2014 are included in the loss of use section above.
The remaining items are not within the range of the evidence. Although
mathematical exactness is not required, the plaintiff must establish damages with
reasonable certainty. The complete lack of support for the remaining items would
57 CP at 2203.
58 Appellant's Br. at 27-28 (citations omitted).
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No. 77832-3-1/17
require the jury to speculate to determine an award of economic damages as to
these items.
For example, the McNabbs contend they both spent considerable time
away from work, consulting with experts, monitoring Metropolitan's adjuster and
contractors, and performing work around the house. Jeff McNabb testified, "I'm a
small business owner. My company is called Autoscan, and we do design and
drafting for engineers and architects."59 Elaine McNabb testified, "1 own my own
business. !manufacture children's craft kits and sell them online."60 But the
record does not provide any basis for the jury to determine the amount of time
either Jeff or Elaine spent away from work or the value of either Jeff or Elaine's
time. The McNabbs argue the jury could reasonably estimate the amount of such
an award. We disagree. If the jury's total economic damages award included
damages for the McNabbs' time away from work, such an award would
necessarily be the result of speculation.
None of the miscellaneous damage items are within the range of the
evidence.
f. Other
The McNabbs also suggest the jury could have awarded economic
damages because they could not switch insurance providers. There is no
evidence in the record before us concerning a projection of the savings the
59 RP (July 17, 2017) at 9.
69 RP (July 24, 2017) at 546.
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No. 77832-3-1/18
McNabbs would have realized through another insurer. Although precision is not
required, on this record, such an award would necessarily be the result of
speculation.
We also note that any suggestion by the McNabbs in opposition to the
motion for remittitur concerning the lost value of their home is not compelling. The
McNabbs cannot recover for both the lost value of their home and the costs of
repair. Because the jury awarded damages to repair the home, an award for the
lost value of their home would be duplicative.
g. Totals
In conclusion, our de novo review of the evidence on remittitur reveals that
the economic damages within the range of the evidence consists of:
Appraisal award $1,959,942.85
Increased construction costs $ 930,000
Loss of use (beyond the jury's award) $ 508,776.74
Costs associated with appraisal $ 457,016.24
Total Evidence of Economic Damages $3,855,735.83
Comparing the total economic damages award, $4,731,323.93, and the
total evidence of economic damages, $3,855,735.83, we conclude $875,588.10 is
outside the range of the evidence presented at trial. We reverse the trial court's
order of remittitur and remand for entry of an amended judgment consistent with
this opinion.
II. Adequacy of the Record for Review
Metropolitan argues we should dismiss the appeal because the McNabbs
have failed to present an adequate record.
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No. 77832-3-1/19
"The party presenting an issue for review has the burden of providing an
adequate record to establish such error."61 This includes "those portions of the
verbatim report of proceedings necessary to present the issues raised on
review."62
Although we do not have the entire verbatim report of proceedings,
Metropolitan does not establish the complete trial transcript is necessary to resolve
remittitur in this setting. We have been able to address whether the partial record
supports the McNabbs' claimed economic damages. We decline to dismiss the
McNabbs' appeal.
III. Fees on Appeal
The McNabbs seek fees on appeal under RCW 19.86.090 and
RAP 18.1(a).
The CPA provides "Any person who is injured in his or her business or
property . . . may bring a civil action in superior court to enjoy further violations, to
recover the actual damages sustained by him or her, or both, together with the
costs of the suit, including a reasonable attorney's fee."63 The statute extends to
fees incurred on appea1.64
61 State v. Sisouvanh, 175 Wash. 2d 607, 619, 290 P.3d 942(2012)(citing
State v. Wade, 138 Wash. 2d 460, 464, 979 P.2d 850(1999); RAP 9.2(b)).
62 RAP 9.2(b).
63 RCW 19.86.090 (emphasis added).
64 Robinson v. McReynolds, 52 Wash. App. 635, 641, 762 P.2d 1166 (1988);
Wilkinson v Smith, 31 Wash. App. 1, 15, 639 P.2d 768 (1982).
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No. 77682-7-1/20
Generally, when a contract or statute authorizes attorney fees to a
prevailing party, "[Qf neither party wholly prevails, then the determination of who is
a prevailing party depends upon who is the substantially prevailing party, and this
question depends upon the extent of the relief afforded the parties."65 This appeal
is limited solely to the order on remittitur. Because we uphold a sizeable portion of
the remittitur, we conclude the McNabbs are not the substantially prevailing party
on appeal. We exercise our discretion and decline to award fees.
WE CONCUR:
..ALtiAtx,v,
9
65 Riss v. Angel, 131 Wash. 2d 612, 633, 934 P.2d 612 (1997).
20