Michelle Merceri, V. State Of Wa Dept. Of Transportation ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHELLE MERCERI,
No. 85865-3-I (linked with
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF
TRANSPORTATION,
Respondent,
DEUTSCHE BANK AG a/k/a
DEUTSCHE BANK, doing business in
the United States as DEUTSCHE
BANK USA, and as DEUTSCHE BANK
NATIONAL TRUST COMPANY, a
national banking association, as
trustee for holders of the BCAP LLC
Trust 2007-AA2; and SHAWN CASEY
JONES,
Defendants.
MICHELLE MERCERI, No. 85690-1-I)
Appellant,
v.
STATE OF WASHINGTON,
DEPARTMENT OF
TRANSPORTATION, DEUTSCHE
BANK AG a/k/a DEUTSCHE BANK,
doing business in the United States as
DEUTSCHE BANK USA, and as
DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking
No. 85865-3-I (linked with No. 85690-1-I)/2
association, as trustee for holders of
the BCAP LLC Trust 2007-AA2,
Respondents,
SHAWN CASEY JONES,
Defendant.
BIRK, J. — In this inverse condemnation action, landowner Michelle Merceri
filed an action against the State of Washington, in which she joined as defendants
a fellow putative owner and a lender holding a deed of trust, seeking compensation
for a state highway expansion’s taking of restrictive covenant rights benefiting her
property. The superior court bifurcated trial, entered judgment determining the
amount of compensation and interest due because of the taking, and denied
Merceri an award of attorney fees, but has not yet determined the allocation of the
recovery among Merceri, the putative other owner, and the lender. Merceri filed a
notice of appeal from the judgment challenging the award of interest and denial of
attorney fees. While the first notice of appeal was pending, Merceri unsuccessfully
sought to enforce an attorney lien against the compensation recovery and
separately filed a notice of appeal from the denial of that motion. We affirm the
superior court’s rulings denying Merceri’s motions for attorney fees and compound
interest, we conclude the denial of Merceri’s motion to enforce an attorney lien is
not appealable and so we do not review it, and we remand.
I
In a complaint filed August 6, 2021, Merceri alleged ownership of a lot in the
Fairweather Basin subdivision in Hunts Point, Washington, which was subject to
2
No. 85865-3-I (linked with No. 85690-1-I)/3
protective restrictions and covenants. She alleged the State effected a taking by
condemning two neighboring lots for a highway project and putting them to use in
violation of the covenants. Merceri joined as parties Shawn Jones, who is on the
title to Merceri’s property but according to her has disclaimed any interest in the
claim for just compensation, and Deutsche Bank National Trust Company, which
purports to be the beneficiary of a 2006 deed of trust encumbering the property.
As memorialized in a partial summary judgment order dated April 15, 2022, the
State agreed its construction on the two lots violated one of the covenants, the
superior court granted Merceri summary judgment on that issue, and the court
reserved the amount of damages for trial. By summary judgment order dated
September 6, 2022, the court limited certain of Merceri’s damages claims, but
otherwise ruled there was evidence requiring a jury determination of the diminution
in value of Merceri’s property. On September 9, 2022, the court entered an order
directing that trial proceed in three phases: “(1) determination on the amount of
compensation on Plaintiff’s inverse condemnation claim as against [the State], (2)
determination of interest on any award to Plaintiff and attorneys’ fees, and (3)
Deutsche Bank’s entitlement to and recovery from any such award to Plaintiff.”
On October 4, 2022, Merceri filed a notice of settlement between herself
and the State, reflecting that Merceri had accepted the State’s pretrial offer under
RCW 8.25.070. The State presented a proposed judgment for the agreed amount
of just compensation plus statutory interest of 12 percent from the date of taking
on May 11, 2011. Merceri filed an objection to the proposed judgment. Merceri
sought compound interest, citing Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 935
3
No. 85865-3-I (linked with No. 85690-1-I)/4
P.2d 555 (1997), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d
682, 451 P.2d 694 (2019). Following a presentation of judgment hearing, on
November 4, 2022, the court entered its judgment and decree of appropriation for
the agreed amount of just compensation and statutory interest of 12 percent.
Statutory 12 percent simple interest on $205,000.00 from 2011 to 2022 amounted
to $282,664.11. Merceri filed motions to amend the judgment and for an award of
litigation costs including attorney fees incurred to obtain just compensation. By
orders dated November 29, 2022, the court denied both motions. On December
1, 2022, Merceri filed a notice of appeal directed to the Supreme Court designating
the judgment and these orders.
Separately, on May 16, 2023, Merceri filed in the superior court a “Motion
to Enforce Attorney Lien Claim on Judgment.” In that motion, Merceri sought
disbursal of funds from the court registry to satisfy a claim of lien for attorney fees
asserted by her counsel. The superior court denied this motion, and on July 14,
2023, denied reconsideration. On July 31, 2023, Merceri filed a notice of appeal
directed to this court designating these orders.
This court’s clerk’s office docketed Merceri’s July 31, 2023 notice of appeal
under matter number 85690-1-I. By order dated October 3, 2023, the Supreme
Court transferred Merceri’s December 1, 2022 appeal to this court. The clerk’s
office docketed this appeal under matter number 85865-3-I. By letter, the court
advised the parties that the matters would be linked for purposes of argument and
disposition.
4
No. 85865-3-I (linked with No. 85690-1-I)/5
II
In advance of oral argument, the court advised the parties of its notation
ruling stating, “[T]he parties are directed to be prepared at oral argument to
address whether there is an appealable final judgment before the court within the
meaning of RAP 2.2.” The November 4, 2022 judgment states, “There is no just
reason to delay entry of this Judgment and Decree of Appropriation as to the just
compensation arising from the State’s condemnation of the Covenant, this is a final
judgment at the express direction of the Court.” However, the judgment does not
include findings supporting that statement, as required by RAP 2.2(d). In the
absence of such findings, such a judgment is generally not appealable. Pepper v.
King County, 61 Wn. App. 339, 349, 810 P.2d 527 (1991).
RAP 2.2(a) provides that “[u]nless otherwise prohibited or provided by
statute or court rule,” a party may appeal from only designated superior court
decisions. A judgment adjudicating less than all the claims or counts, or the rights
and liabilities of less than all the parties, is generally subject only to discretionary
review until the entry of a final judgment adjudicating all the claims, counts, rights,
and liabilities of all the parties. RAP 2.2(d). Generally, when a judgment is not
appealable because RAP 2.2(d) is not satisfied, the appellate court must dismiss
an appeal. Schiffman v. Hanson Excavating Co., Inc., 82 Wn.2d 681, 687-88, 513
P.2d 29 (1973); Pepper, 61 Wn. App. at 346 & n.4. Despite the court’s direction in
advance of argument, no party identified a statute or court rule making the
5
No. 85865-3-I (linked with No. 85690-1-I)/6
November 4, 2022 judgment appealable as a matter of right.1 The court’s
additional research has identified RCW 8.04.150, which states,
Either party may seek appellate review of the judgment for damages
entered in the superior court within thirty days after the entry of
judgment as aforesaid, and such review shall bring before the
supreme court or the court of appeals the propriety and justness of
the amount of damages in respect to the parties to the review:
PROVIDED HOWEVER, That upon such review no bond shall be
required: AND PROVIDED FURTHER, That if the owner of land, the
real estate or premises accepts the sum awarded by the jury, the
court or the judge thereof, he or she shall be deemed thereby to have
waived conclusively appellate review, and final judgment by default
may be rendered in the superior court as in other cases: PROVIDED
FURTHER, That no review shall operate so as to prevent the said
state of Washington from taking possession of such property
pending review after the amount of said award shall have been paid
into court.
State v. Scheel held that when determining the allocation of a condemnation
award, the trial court had no authority to alter the judgment for just compensation
because it had not been appealed. 74 Wn.2d 137, 137, 140, 443 P.2d 658 (1968).
The court said, “Having failed to give notice of appeal within 30 days according to
law and rule, [the appellants] cannot now reopen the matter in a subsequent trial
for equitable distribution.” Id. at 140. In State v. Wachsmith, the court held the
portion of a condemnation judgment awarding attorney and expert witness fees is
appealable under RCW 8.04.150. 4 Wn. App. 91, 96, 479 P.2d 943 (1971). In a
1
Merceri sought to rely on the superior court’s CR 54(b) direction, despite
its lack of the required findings, or alternatively discretionary review under RAP
2.3(b). Wash. Court of Appeals oral argument, Merceri v. Dep’t of Transp., No.
85865-3-I (Feb. 28, 2024), at 1 min., 49 sec. to 2 min., 02 sec. and 2 min., 52 sec.
to 3 min., 36 sec, https://tvw.org/video/division-1-court-of-appeals-2024021466/.
The State sought to rely on RCW 8.04.110 and .130, but those statutes do not
address appealability. Id. at 11 min., 38 sec. to 12 min., 12 sec. and 19 min., 04
sec. to 19 min., 31 sec.
6
No. 85865-3-I (linked with No. 85690-1-I)/7
motion to dismiss the appeal, Wachsmith argued the portion of the judgment
awarding such fees was not appealable because they did not qualify as “the
propriety and justness of the amount of damage.” Id. at 92, 96. We disagreed,
noting the enactment of RCW 8.25.070 permitted a trial court to award attorney
fees in the judgment for damages in an eminent domain proceeding, the trial court
made such an award and included it in the judgment for damages, and this award
merged in the total judgment for damages. Id. at 96. Accordingly, the “remedy of
review by appeal is proper.” Id. (citing RCW 8.04.150). These decisions satisfy
us that the November 4, 2022 judgment is appealable under RCW 8.04.150.
The same is not true of the superior court’s later orders denying Merceri’s
motion to enforce an attorney lien. RCW 8.25.070 speaks to the condemnor’s
liability for attorney fees as part of the gross award of just compensation, and RCW
8.04.150 contemplates appeal of the amount of just compensation separate from
subsequent proceedings to determine the allocation among claimants. The July
2023 superior court orders lack any CR 54(b) certification, as well as the
supporting findings required under RAP 2.2(d). The parties have identified, and
the court has located, no statute or court rule making the July 2023 orders denying
enforcement of an attorney lien appealable as a matter of right.
In the absence of an appealable final judgment, a party seeking review is
limited to discretionary review. RAP 5.1(c) states that “[a] notice of appeal of a
decision which is not appealable will be given the same effect as a notice for
discretionary review.” Thus, when CR 54(b) and RAP 2.2(d) are not met, an
appellate court may still accept review if the criteria for discretionary review under
7
No. 85865-3-I (linked with No. 85690-1-I)/8
RAP 2.3(b) are met. Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban
Lines Ass’n, 156 Wn.2d 253, 257, 261 n.4, 126 P.3d 16 (2006); Glass v. Stahl
Specialty Co., 97 Wn.2d 880, 883, 652 P.2d 948 (1982). Here, they are not.
Regardless of whether the superior court’s rulings denying current enforcement of
an attorney lien are error, which we do not decide, they are not “obvious” or
“probable” error, and even more plainly they do not “render further proceedings
useless” or “substantially alter[] the status quo or substantially limit[] the freedom
of a party to act.” RAP 2.3(b)(1)-(2). To the contrary, they expressly contemplate
that further proceedings must occur.
As to Merceri’s July 31, 2023 notice of appeal, matter number 85690-1-I,
review is dismissed. Because neither Merceri nor Deustche Bank has prevailed
on review, we direct that no party is awarded attorney fees or costs at this time,
but this direction is without prejudice to any party’s establishing an entitlement to
attorney fees or costs in subsequent proceedings.
III
Merceri argues the superior court erred by failing to award compound
interest.2 We disagree.
The state constitution requires that “just compensation” be paid in case of
a governmental taking of private property. WASH. CONST. art. I, § 16. An inverse
condemnation claim seeks to recover the value of property that the government
2
The State argues Merceri’s alleged error concerning interest cannot be
reviewed, because she did not supply a report of proceedings from a November 3,
2022 presentation hearing. The parties presented their arguments to the superior
court in the form of proposed judgments and their respective written objections to
each other’s proposed judgments. The record affords a basis for review.
8
No. 85865-3-I (linked with No. 85690-1-I)/9
appropriated without a formal exercise of its eminent domain powers. Jackass Mt.
Ranch, Inc. v. S. Columbia Basin Irrig. Dist., 175 Wn. App. 374, 388, 305 P.3d
1108 (2013). “Just compensation requires that the property owner be put in the
same position monetarily as he or she would have occupied had the property not
been taken. It consists of the full equivalent of the value of the property paid
contemporaneously with the taking.” Sintra, 131 Wn.2d at 655-56. In an inverse
condemnation action, interest is necessary to compensate the property owner for
the loss of the use of the monetary value of the taking or damage from the time of
the taking until just compensation is paid. Id. at 656. Interest in this context is a
measure of the rate of return on the property owner’s money had there been no
delay in payment. Id.RCW 8.28.040 requires a court in an eminent domain proceeding tried to
verdict by the jury or the court to impose postverdict interest as part of the
compensation for the taken or damaged property. The interest must be set at the
maximum interest rate permitted at that time under RCW 19.52.020 from the date
of entry of the verdict to the date of the payment. RCW 8.28.040. The maximum
interest rate allowable under that statute is 12 percent. RCW 19.52.020(1)(a).
In Sintra, the court held that awarding compound prejudgment interest
instead of simple interest constituted error. 131 Wn.2d at 660. The trial court
awarded 12 percent interest on the compensation award compounded annually.
Id. at 651. The Supreme Court reversed, noting RCW 8.28.040 guides the trial
court’s determination of a prejudgment interest award as part of the award of just
compensation. Sintra, 131 Wn.2d at 660. Because RCW 19.52.020 “does not
9
No. 85865-3-I (linked with No. 85690-1-I)/10
specifically provide for the compounding of interest, only simply interest is
allowed.” Sintra, 131 Wn.2d at 660. However, if a party proves by presenting
evidence that statutory simple interest does not afford just compensation, the trial
court has discretion to award compound interest. Id. Absent such proof, “a
property owner in a temporary regulatory takings case is entitled only to simple
interest under RCW 8.28.040 as part of just compensation.” Sintra, 131 Wn.2d at
660-61. We review the superior court’s decision to allow simple interest and not
compound interest for an abuse of discretion. See id. at 660. A trial court abuses
its discretion when its decision is manifestly unreasonable, based on untenable
grounds, or based on untenable reasons. Gildon v. Simon Prop. Grp., Inc., 158
Wn.2d 483, 494, 145 P.3d 1196 (2006).
Merceri submitted several declarations in support of her request for daily
compound interest instead of simple interest to fully compensate her. University
of Washington Accounting Associate Professor Ed deHaan stated compound
interest is “fundamental in modern finance . . . for standard financial products such
as savings accounts or loans,” “is what the financial world earns and pays in
everyday transactions,” and “daily compounded interest is relatively easy to
calculate on[e]self.” Vickie Reynolds, a businesswoman and investor residing in
King County, stated she expected financial institutions would pay daily compound
interest and she would “never accept simple interest because simple interest is not
the standard for the payment of interest on savings accounts in Washington.”
Merceri filed her own declaration stating, “Paying me less than interest
compounded daily would not provide just compensation and would not make me
10
No. 85865-3-I (linked with No. 85690-1-I)/11
whole.” She claims, “No reasonably prudent investor or involuntary creditor, which
I am, would accept less than interest compounded daily” and repeats that she is
entitled to full just compensation, which means interest compounded daily.
Merceri does not show based on this evidence that it was an abuse of
discretion by the superior court to award statutory 12 percent simple interest on
$205,000 from 2011 to 2022, amounting to $282,664.11. Merceri relies on
primarily federal case law supporting compound interest. But her argument, and
the above evidence, ignores the rates at which federal authorities have allowed
compound interest. Merceri’s authorities, discussed below, use commercial
interest rates, in contrast to Washington’s statutory rate.
The rule allowing compound interest in takings cases is based on the
constitutional intent to provide just compensation. See Sintra, 131 Wn.2d at 660.
The purpose of allowing interest in cases where the property owner is not paid at
the time of the taking is to ensure the owner “is placed in as good a position
pecuniarily as [the owner] would have occupied if the payment had coincided with
the appropriation.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 10-11,
104 S. Ct. 2187, 2194, 81 L. Ed. 2d 1 (1984). In Whitney Benefits, Inc. v. United
States, the court held just compensation required awarding compound interest in
that case because of the government’s delay in payment, the taken property’s
characterization as commercial and income-producing, consistency where the
discount rate used at trial for future earnings adopted a compound interest rate,
and consistency where Congress’s recent amendment to the Declaration of Taking
Act, 40 U.S.C. § 258e-1 (1988), provided that compound interest would be
11
No. 85865-3-I (linked with No. 85690-1-I)/12
awarded where the government exercised its eminent domain authority. 30 Fed.
Cl. 411, 414-16 (1994). While there was delay in this case, for reasons the parties
dispute, the other factors relied on in Whitney Benefits are absent.
In Brunswick Corp. v. United States, a patent infringement case, the court
imposed interest rates compounded annually “since no prudent commercially
reasonable investor would invest at simple interest. Compounding interest
annually, therefore, is more likely to place the patentee in the same financial
position it otherwise would have held had royalties been timely paid.” 36 Fed. Cl.
204, 219 (1996). The court ordered compound interest “commensurate with the
prime rate.” Id. at 207. Noting that determining the appropriate rate of interest in
Court of Claims takings cases is a question of fact, the court rejected the
condemnee’s own after-tax weighted average cost of capital as the measure of
just compensation, which the condemnee asserted ranged from 8.76 percent to
12.5 percent. Id. at 219. Another case allowed compound interest at a federal
statutory rate requiring use of “ ‘the weekly average one-year constant maturity
Treasury yield.’ ” Vaizburd v. United States, 67 Fed. Cl. 499, 504 (2005) (quoting
40 U.S.C. § 3116). Another used “the seven-year Treasury STRIPS [Separate
Trading of Registered Interest and Principal of Securities] rate” as the measure of
just compensation. Nat’l Food & Beverage Co., Inc. v. United States, 105 Fed. Cl.
679, 704 (2012) (footnote omitted). These cases look to what “ ‘a reasonably
prudent person investing funds so as to produce a reasonable return while
maintaining safety of principal’ ” would receive. Schneider v. Cnty. of San Diego,
285 F.3d 784, 792 (9th Cir. 2002) (quoting United States v. 50.50 Acres of Land,
12
No. 85865-3-I (linked with No. 85690-1-I)/13
931 F.2d 1349, 1355 (9th Cir. 1991)). Merceri cites United States v. N. Pac. Ry.
Co., 51 F. Supp. 749, 749-50 (E.D. Wash. 1943), in which the court allowed
compound interest at 6 percent, but the court did not explain the reason for its
selection of that rate, and it is no longer consistent with Court of Claims decisions.
The combination of Merceri’s evidence not addressing rates and these
decisions using commercial rates does not support that statutory 12 percent simple
interest for the delay from 2011 to 2022 was inadequate to place Merceri “in as
good a position pecuniarily as [she] would have occupied,” Kirby Forest, 467 U.S.
at 10, based on a reasonable return while maintaining safety of principal, if
payment had been made in 2011. The superior court was within its discretion to
decline to compound interest.
Merceri argues the Washington legislature has changed eminent domain
law to conform with federal law, but the changes made do not include amending
RCW 19.52.020 to mandate interest be compounded. Merceri points to provisions
of Washington law enacted to match the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655, and its
corresponding regulations under 49 C.F.R. §§ 24.1-24.306. Chapter 8.26 RCW
and its corresponding regulations in chapter 468-100 WAC contain substantially
the same provisions. Both these federal and state statutes indicate that their
primary purpose is to minimize the hardship of displacement for individuals and
businesses affected by public projects by providing uniform procedures for
providing relocation assistance. 42 U.S.C. § 4621(b); RCW 8.26.010(1)(a). They
do not address interest on takings.
13
No. 85865-3-I (linked with No. 85690-1-I)/14
IV
Merceri argues she was entitled to attorney fees under RCW 8.25.075. We
disagree.
Reasonable attorney fees incurred in an inverse condemnation action are
not available unless provided in contract, statute, or recognized equitable
principles. State v. Costich, 152 Wn.2d 463, 469-70, 98 P.3d 795 (2004). RCW
8.25.075(2) authorizes an acquiring government agency’s attorney to include in
the settlement amount reasonable attorney fees, when appropriate, where a claim
is settled in an inverse condemnation action. Daviscourt v. Peistrup, 40 Wn. App.
433, 442 n.9, 698 P.2d 1093 (1985). RCW 8.25.075(3) provides that in an inverse
condemnation action, a plaintiff is entitled to attorney fees “but only if the judgment
awarded to the plaintiff as a result of trial exceeds by ten percent or more the
highest written offer of settlement submitted by the acquiring agency to the plaintiff
at least thirty days prior to trial.”
Merceri does not dispute that the amount of just compensation in her case
was established by settlement after the jury was selected but before it was sworn.
She relies on Petersen v. Port of Seattle, where the court reversed the trial court’s
denial of an award for attorney and expert witness fees in an inverse condemnation
case. 94 Wn.2d 479, 481-82, 489, 618 P.2d 67 (1980). The plaintiffs sought
recovery of the diminished value of their property resulting from the Port of
Seattle’s operation of Sea-Tac Airport. Id. at 481. A proceeding began in superior
court to test the validity of defenses asserted by the Port. Id. Several days of
hearings followed where several witnesses were called and subjected to direct and
14
No. 85865-3-I (linked with No. 85690-1-I)/15
cross-examination and closing arguments were made to the court. Id. at 481, 488.
The court rejected the defenses. Id. at 481. The trial to determine the amount of
compensation due to the plaintiffs was never held because the superior court
entered a judgment on agreed facts. Id. at 481-82. The Petersen court viewed
the series of hearings to test the Port’s defenses as the first portion of a bifurcated
trial. Id. at 488. The Port was held liable for attorney and expert witness fees
under RCW 8.25.075 because its written settlement offer was not made 30 days
before the start of those series of hearings. Id. “This is in keeping with the
legislative encouragement to avoid trials.” Id. “In light of the legislative objective
of settling rather than trying matters such as this, it seems anomalous to contend
that the evaluation of defenses requiring the taking of testimony for several days
is not at least a portion of a trial.” Id. at 488-89.
Petersen is distinguishable. In Petersen, while there was not a full trial, the
obligation to pay just compensation was established through a contested
adjudication of the Port’s defenses. Here, the amount of just compensation and
the State’s undisputed payment of statutory interest followed as a result of
settlement. The statute makes an award of attorney fees available in cases where
the amount of compensation was determined as a result of trial. In this case, the
amount was determined by settlement in advance of trial.
Merceri also cites City of Snohomish v. Joslin, 9 Wn. App. 495, 500, 513
P.2d 293 (1973). There, we remanded for an award of attorney fees, explaining
that RCW 8.25.075 was not limited to condemnation actions. Id. at 498-99, 500.
We said RCW 8.25.075 “clearly manifests a legislative intent that if a condemnor
15
No. 85865-3-I (linked with No. 85690-1-I)/16
chooses to take property without instituting condemnation proceedings, the owner
shall be reimbursed for his costs of litigation in obtaining his constitutionally
guaranteed just compensation.” Id. at 500. But Joslin is not applicable, because
it was decided before the 1977 amendment to RCW 8.25.075 limiting the
availability of attorney fees to only cases determined “as a result of trial.” See
LAWS OF 1977, Ex. Sess., ch. 72, § 1, at 296. Because the amount of just
compensation and the admitted statutory 12 percent interest were not determined
to be owed “as a result of trial,” the superior court did not err by denying Merceri’s
motion for attorney fees.
Pointing to the language of RCW 8.25.075(2) making it discretionary for the
agency whether to include an attorney fee award in a settlement offer, Merceri
argues the legislature set no standards guiding the agency’s discretion. Merceri
does not cite authority that a legislative grant of discretionary authority to an
executive branch official fails simply because of the possibility of arbitrary
implementation, she does not point to circumstances indicating that the attorney
general’s decision not to offer compensation for attorney fees in her case was
arbitrary, and she does not suggest to the court any construction of the statute to
provide the guidance she says is required. Cf. People’s Org. for Wash. Energy
Res. v. Wash. Utils. & Transp. Comm’n, 104 Wn.2d 798, 808, 711 P.2d 319 (1985)
(deference accorded to regulatory agency where the statute “in very broad terms,
basically just direct[ed] them to set [utility rates] which the agencies determine to
be just and reasonable.”).
16
No. 85865-3-I (linked with No. 85690-1-I)/17
Merceri seeks attorney fees on appeal, but because she does not prevail
we decline to award them.
V
In matter number 85690-1-I, review is dismissed and no party is awarded
attorney fees or costs at this time, without prejudice to any party subsequently
establishing such an entitlement in future proceedings. In matter number 85865-
3-I, we affirm the superior court’s November 4, 2022 judgment, and its rulings
denying compound interest and denying attorney fees under RCW 8.25.075. We
direct that this opinion shall be filed in both matter number 85690-1-I and matter
number 85865-3-I. We remand for proceedings consistent with this opinion.
WE CONCUR:
17