Brian Green & Brian Cortland. V Lewis County ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
July 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BRIAN CORTLAND and BRIAN GREEN, No. 52999-8-II
Appellants,
v.
LEWIS COUNTY, a Municipal Corporation, UNPUBLISHED OPINION
Respondent.
SUTTON, A.C.J. — After prevailing on the merits in his Public Records Act (PRA)1 suit
against Lewis County, Brian Green appeals the superior court’s order denying him $255 in costs
for the penalty hearing transcript he purchased. The court ruled that Green was entitled to
reasonable attorney fees and costs and set that amount. The court adopted Green’s proposed order
on fees and costs, which did not make specific findings as to why the court did not award Green
the requested $255 for the penalty hearing transcript. Green appeals the superior court’s penalty
order, specifically, the portion denying him an award of $255 for the penalty hearing transcript.
Green argues that the superior court erred by failing to enter findings in its order denying
him $255—the cost of the penalty hearing transcript he purchased—when he is entitled to an award
of “all costs” under RCW 42.56.550(4) as the prevailing party on the merits. Green requests that
we award him $255 in additional costs, as well as reasonable appellate attorney fees and costs, or
remand for the superior court to make appropriate findings of fact as to why it denied this cost.
1
Ch. 42.56 RCW.
No. 52999-8-II
We hold that Green failed to provide us with an adequate record on appeal, and thus, we decline
to reach the merits of his appeal. We affirm the superior court’s order on attorney fees and costs
and deny Green’s request for an award of appellate attorney fees and costs.
FACTS
Green and Brian Cortland jointly prevailed in a PRA suit against Lewis County. Following
the hearing on penalties, both parties submitted proposed orders to the court. Green and Cortland
believed that Lewis County’s proposed order misapplied the superior court’s oral ruling, so they
purchased the penalty hearing transcript and attached it as an exhibit to their motion for
presentation. The superior court adopted Lewis County’s proposed order on penalties and
proposed daily penalty of $0.25 per day per record.
Following the order on penalties, Green and Cortland filed a motion for an award of
attorney fees and costs under the PRA. Green and Cortland sought the following relevant cost:
$255—the purchase cost of the penalty hearing transcript.2 Lewis County argued that Green and
Cortland were not entitled to be compensated for the purchase of the penalty hearing transcript.
Green and Cortland provided the court with a proposed order which did not contain specific
findings of fact related to the $255 penalty transcript cost. The court adopted their proposed order
and entered findings stating that Green and Cortland were the prevailing parties in their PRA
lawsuit, and thus, they were entitled to an award of reasonable attorney fees and costs. The court
ordered Lewis County pay a total of $39,450 in attorney fees and $390 in costs. The court’s order
2
The other costs requested are not at issue on appeal.
2
No. 52999-8-II
stated that it “[did] not find any other costs to be properly compensable.” Clerk’s Papers at 184.
Green moved for reconsideration, which motion the court denied.
Green appeals the superior court’s penalty order, specifically, the portion denying him an
award of $255 for the penalty hearing transcript.
ANALYSIS
If the record is insufficient to determine an issue, we can decline to consider the issue. See
Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012). The failure to provide an adequate
record precludes appellate review. Stiles, 168 Wn. App. at 259. Where written findings of fact
are insufficient or unclear, we may construe the court’s order by reviewing its oral ruling. See
Francis v. Dep’t of Corrections, 178 Wn. App. 42, 52, 313 P.3d 457 (2013). “A party should
arrange for the transcription of all those portions of the verbatim report of proceedings necessary
to present the issues on review.” RAP 9.2(b).
Green drafted the proposed order on attorney costs and fees, which the court ultimately
adopted and signed. Green now argues that this order lacks sufficient findings as to why the court
denied him the $255 he spent purchasing the penalty hearing transcript. However, he proposed
the order without the findings he now complains are lacking. Moreover, he also failed to provide
us the transcript of the court’s oral ruling on attorney fees and costs. Because Green presents the
issue for appeal, he has the burden of providing the record of the hearing on attorney costs and
fees. RAP 9.2(b). Without that record, we cannot adequately review the issues, and therefore, we
decline to reach the merits of Green’s argument. Stiles, 168 Wn. App. at 259.3
3
“If applicable law grants to a party the right to recover reasonable attorney fees or expenses on
review . . . the party must request the fees or expenses as provided in this rule.” RAP 18.1(a).
3
No. 52999-8-II
CONCLUSION
We affirm the superior court’s order on attorney fees and costs and deny Green’s request
for an award of appellate attorney fees and costs.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, A.C.J.
We concur:
MELNICK, J.
CRUSER, J.
RCW 42.56.550(4) provides that any person who prevails in a PRA suit is entitled to reasonable
attorney fees and costs. Green has not prevailed on appeal. Therefore, we deny Green’s request
for an award of appellant attorney fees and costs.
4