Brett Hayfield And Kathy Davis-hayfield, V Beatrix And Robert Ruffier ( 2015 )


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  •                                                                                        TIED
    COURT OF APPEALS
    DIVISION II
    2015 MAY 27 AM 9: 31
    STATE OF WASHINGTON
    BY       jC
    OtPb(T Y
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    BRETT       HAYFIELD         and   KATHY     DAVIS-                       No. 45202 -2 -II
    HAYFIELD, husband and wife,
    Respondents /Cross -Appellants,
    v.
    BEATRIX RUFFIER and ROBERT RUFFIER,                                   PUBLISHED OPINION
    husband and wife,
    Appellants /Cross- Respondents.
    LEE, J. —       Brett Hayfield and Kathy Davis -Hayfield appeal the trial court' s denial of their
    request for attorney fees under RCW 19. 122. 040 after the trial court found their neighbors, Beatrix
    and Robert Ruffier, liable for damage caused to the Hayfield home by an excavation on the Ruffier
    property.      Because RCW 19. 122. 040 provides for a mandatory award of attorney fees to the
    prevailing party, we hold that the trial court erred in failing to award attorney fees to the Hayfields.
    Accordingly, we reverse the trial court' s denial of attorney fees incurred at trial and remand for
    determination     of   the Hayfields' attorney   fees below.   We also award the Hayfields attorney fees
    on appeal.
    FACTS
    The Hayfields and the Ruffier live on adjoining high -bank waterfront property in Gig
    Harbor.     In   February 2011,     the Hayfields   noticed water   accumulating in their basement.   The
    No. 45202 -2 -II
    basement had      not   leaked previously      during   their seven -year ownership of the   house. The water
    appeared to be coming from under the washer and dryer, but when the Hayfields inspected the
    units,   they found     no   leaking. They vacuumed up the water and hoped that it was an isolated
    incident.
    At the same time that the water began infiltrating the Hayfield basement, Robert Ruffier
    was using a backhoe to dig out a two -foot diameter tree stump on his property. Ruffier excavated
    a trench around the stump that was about three feet deep, and he used the bucket of the backhoe to
    wiggle    the stump     out of   the ground.    He then backfilled the hole with dirt and compacted it by
    driving   over   the hole    with   the backhoe.    Ruffier made no effort to identify any utilities before
    performing the excavation work and did not provide notice of his work to the Hayfields or anyone
    else. The Hayfields saw Ruffier performing this excavation work.
    Water continued to accumulate in the Hayfields' basement, and they began pumping it out
    of a   basement   window.        Over the next three weeks, the Hayfields contacted a series of plumbers,
    leak detection contractors, and Pierce County officials to investigate the flooding. No one could
    identify the source of the water, and several inches of water remained in the basement.
    In early March, the Hayfields discovered that three feet of water had entered their basement
    overnight and had caused extensive damage. The pumps could not keep up with the water entering
    the basement, and the source of the water was still unknown.
    The Hayfields called another plumber, Tom Bozeman, and his investigation revealed a
    floor drain in the basement that was not taking water. Bozeman suspected that the flooding was
    due to an obstruction in the drain system that was causing water to back up through the floor drain
    and into the basement.
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    No. 45202 -2 -II
    Bozeman confirmed the existence of the Hayfields' foundation drain system and that the
    system connected to an underground drain pipe that runs from the Hayfields' house and across the
    boundary line into the Ruffiers' property.
    When he tried to insert a plumbing snake through the drain pipe, Bozeman encountered an
    obstruction.    He then confirmed that the obstruction was in the same location where Ruffier had
    removed the stump in February.
    Before Bozeman returned for further investigation, Ruffier used his backhoe to dig out a
    large hole   where     he had   removed   the stump.   When he uncovered the Hayfields' crushed drain
    pipe, water immediately entered the hole. After Ruffier cleaned out the pipe, water exited the hole
    and drained out of the Hayfields' basement.
    The Hayfields sued the Ruffiers for the damage caused to their basement, alleging that the
    excavation constituted negligence as well as a violation of chapter 19. 122 RCW, the " Underground
    Utility   Damage Prevention Act."         Following a bench trial, the court concluded that
    8.    Although [ the Ruffiers]       technically violated the terms of RCW
    19. 122. 040, notice to [ the Hayfields] of the excavation and/ or calls to " 811" would
    1'
    not have prevented the damage that occurred.[         Therefore, although [ Ruffier] is
    liable for   common     law   negligence   to [ the Hayfields]      for their damages, [ the
    Hayfields] are not entitled to recover their attorney' s fees per RCW 19. 122. 040(4).
    Clerk' s Papers ( CP) at 31 -32. The trial court entered judgment accordingly.
    The Ruffiers    appealed, and    the Hayfields    cross -appealed   the   denial   of   attorney fees.   We
    granted the Ruffiers' motion to dismiss their appeal and here address only the Hayfields' argument
    that they are entitled to attorney fees under RCW 19. 122. 040( 4).
    1 The reference to an 811 call is to the 811 " dial- before -you -dig" system in Washington.
    Verbatim Report of Proceedings ( May 8, 2013) at 10.
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    No. 45202 -2 -II
    ANALYSIS
    A.        ATTORNEY FEES UNDER RCW 19. 122. 040( 4)
    1.    Standard of Review
    At issue is whether the language in RCW 19. 122. 040( 4) stating that the prevailing party
    is entitled to" attorney fees requires or merely allows an award of fees to the prevailing party.
    We review questions of statutory interpretation de novo. Jametsky v. Olsen, 
    179 Wash. 2d 756
    , 761,
    
    317 P.3d 1003
    ( 2014).        Our objective is to ascertain and carry out the legislature' s intent. 
    Jametsky, 179 Wash. 2d at 762
    . If the plain language of the statute is unambiguous, we enforce it according to
    its   plain     meaning.    Life Care Ctrs.   ofAm.,   Inc.   v.   Dep' t   of Soc. & Health Servs.,   
    162 Wash. App. 370
    , 375, 
    254 P.3d 919
    ( 2011).        The plain meaning of an undefined statutory term can be discerned
    from its      dictionary    definition. Estate of Haselwood        v.   Bremerton Ice Arena, Inc., 
    166 Wash. 2d 489
    ,
    498, 
    210 P.3d 308
    ( 2009).         We also determine the plain meaning of a statutory provision from the
    general context of the statute, related provisions, and the statutory scheme as a whole. Wash. Pub.
    Ports Ass 'n v. Dep' t ofRevenue, 
    148 Wash. 2d 637
    , 645, 
    62 P.3d 462
    ( 2003).
    2. Construing RCW 19. 122. 040( 4)
    The Underground Utility Damage Prevention Act, 2 chapter 19. 122 RCW, sets forth a series
    of obligations for excavators that are intended to protect existing underground facilities and to
    protect the public health and safety from interruption in utility services caused by damage to such
    facilities. Former RCW 19. 122. 010 ( 1984).            Neither party challenges the trial court' s conclusions
    2 The Underground Utility Damage Prevention Act was given this title as part of extensive
    revisions       that took  January 1, 2013. RCW 19. 122. 901. Because the excavation at issue
    effect on
    occurred in 2011, we otherwise cite only the statutory language that was in effect at that time.
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    No. 45202 -2 -II
    that, under the Act, Ruffier was an excavator who performed an excavation that affected an
    3
    underground           facility.       Former RCW 19. 122. 020( 4), ( 6), ( 22) ( 2007).
    The       statute also provides             that: "   In any action brought under this section, the prevailing
    party is      entitled     to   reasonable attorneys'            fees."        RCW 19. 122. 040( 4).       The parties do not dispute
    that the Hayfields are the prevailing party                         under        RCW 19. 122. 040( 4).          See Riss v. Angel, 
    131 Wash. 2d 612
    , 633, 
    934 P.2d 669
    ( 1997) ( prevailing                              party is generally one who receives affirmative
    judgment).           Rather, the parties disagree on whether the language in the statute stating that the
    prevailing party " is entitled to" attorney fees requires or merely allows an award of attorney fees
    to the prevailing party.
    The Ruffiers rely on the dictionary definition of "entitled" in arguing that the language of
    RCW 19. 122. 040( 4) is               permissive.        They    assert    that the legal meaning          of   the term is "[ t] o grant a
    legal   right   to    or   qualify for,"    while the more common meaning is to " furnish with proper grounds
    for seeking      or    claiming something."                Br. of Cross -Resp' t at 12 ( citing BLACK' S LAW DICTIONARY
    612 ( 9th      ed.   2009); WEBSTER'             S   THIRD NEW INT' L DICTIONARY 758 ( 3d                   ed.   1969)).   The Ruffiers
    contend that these definitions show that " entitled" should be read as permissive and that RCW
    19. 122. 020( 4) should be read as allowing the Hayfields to seek fees while not requiring the trial
    court to award them. We disagree with relying on a single word in determining the meaning of a
    phrase.
    The       phrase "    is   entitled       to" is defined       as   meaning " has     a right   to."    Bryan A. Garner, A
    DICTIONARY            OF    MODERN LEGAL USAGE 942 ( 2d                           ed.   1995).    Consistent with this definition,
    Washington courts have interpreted other statutes providing that a party " is entitled to" attorney
    3 An underground facility includes " any item buried or placed below ground for use in connection
    with    the   storage or conveyance of water."                     Former RCW 19. 122. 020( 22) ( 2007).
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    No. 45202 -2 -II
    fees as mandatory. In referring to RCW 4. 24. 510, which provides that the person prevailing on an
    immunity defense " is entitled to" recover attorney fees, we stated that the trial court did not err
    when      it followed this         statute' s   mandatory authority to     award      attorney fees."   Segaline v. Dep 't of
    Labor & Indus., 144 Wn.                App.      312, 327, 
    182 P.3d 480
    ( 2008), rev 'd on other grounds, 
    169 Wash. 2d 467
    , 
    238 P.3d 1107
    ( 2010).               Similarly, the provision in RCW 26. 18. 160 stating that the prevailing
    party " is       entitled    to"    attorney fees      renders   an award       of   fees mandatory.     In re Marriage of
    Cummings, 101 Wn.                  App.   230, 235, 
    6 P.3d 19
    ,    review   denied, 
    141 Wash. 2d 1030
    ,( 2000);          see also
    In   re   Marriage of Nelson, 62 Wn.                 App.   515, 520, 
    814 P.2d 1208
    ( 1991) ( award of fees required
    because terms          of   RCW 26. 18. 160         are not   discretionary); see also Transpac Dev., Inc. v. Oh, 132
    Wn.       App.    212, 217, 
    130 P.3d 892
    ( 2006) (              where lease provided that prevailing party in any
    litigation is      entitled    to attorney fees,       award of    fees   was   mandatory     under   RCW 4. 84. 330).   The
    phrase " is entitled to" makes an award of attorney fees to the prevailing party mandatory rather
    than permissive.
    Ruffier argues that our Supreme Court has described the trial court' s authority to award
    fees as discretionary in two decisions that addressed similar attorney fee provisions in RCW
    69. 50. 505      and   RCW 18. 27. 040. See Guillen v. Contreras, 
    169 Wash. 2d 769
    , 780, 
    238 P.3d 1168
    2010) ( explaining that             claimant " may recover"       fees   under      RCW 69. 50. 505);   Cosmo. Eng' g Grp.
    v.   Ondeo Degremont, Inc., 
    159 Wash. 2d 292
    , 306, 
    149 P.3d 666
    ( 2006) (                               explaining that RCW
    18. 27. 040 "     was   intended to       authorize"    attorney fees to prevailing party). Both RCW 69. 50. 505( 6)
    and RCW 18. 27. 040( 6) state that the prevailing party " is entitled to" fees, but neither Guillen nor
    Cosmopolitan Engineering addressed the issue of whether the phrase is mandatory or permissive.
    The issue in Guillen           was     the meaning      of "substantially prevail[ s,]"      and the issue in Cosmopolitan
    Engineering was whether fees were available in actions against contractors as well as actions
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    No. 45202 -2 -II
    against a contractor' s   
    bond. 169 Wash. 2d at 775
    ; 159 Wn.2d    at   298.   Neither case supports the
    position that Washington courts have interpreted the phrase " is entitled to" as permissive.
    Because the Hayfields prevailed in their action under RCW 19. 122. 040, they were entitled
    town award of attorney fees incurred at trial.
    B.     ATTORNEY FEES ON APPEAL
    Both   parties request an award of appellate             attorney fees.    RAP 18. 1 permits a party to
    recover attorney fees on appeal where authorized by applicable law. Dan 's Trucking, Inc. v. Kerr
    Contractors, Inc., 183 Wn.      App.    133, 143, 
    332 P.3d 1154
    ( 2014).         Because RCW 19. 122. 040( 4)
    authorizes an award of attorney fees to the prevailing party, we grant the Hayfields' request for
    attorney fees on appeal and deny the Ruffiers' request for similar relief.
    We     reverse   the   trial   court' s   denial   of   attorney fees     incurred   at   trial,   remand for
    determination of Hayfields' attorney fees incurred at trial, and award the Hayfields attorney fees
    on appeal.
    Lee, J.
    We concur:
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