Jinru Bian, V. Olga Smirnova And John Doe Smirnova ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JINRU BIAN, a single man, No. 84801-1-I
Appellant, DIVISION ONE
v.
OLGA SMIRNOVA and JOHN DOE UNPUBLISHED OPINION
SMIRNOVA, a married man and
woman and their marital community,
Respondents.
BOWMAN, J. — Olga Smirnova successfully defended against Jinru Bian’s
adverse possession claim, and the trial court issued an order awarding her
reasonable attorney fees and costs. We affirmed the trial court’s dismissal of the
adverse possession claim but reversed and remanded its award of attorney fees.
On remand, the trial court again awarded Smirnova her attorney fees and costs
and ordered interest to accrue from the original judgment date. Bian appeals the
trial court’s new order. We affirm the attorney fee award but remand for the trial
court to amend the new money judgment to accrue interest from only the date of
its execution.
FACTS
Bian and Smirnova are neighbors, residing in Bellingham. On September
18, 2018, Bian sued Smirnova in Whatcom County Superior Court, alleging
adverse possession to a piece of Smirnova’s abutting property. The parties
engaged in discovery for the next two years, but in January 2020, the court
dismissed the case for lack of prosecution.
No. 84801-1-I/2
On February 6, 2020, Bian refiled the same complaint. The parties cross
moved for summary judgment, and in August 2020, the trial court granted
Smirnova’s motion to dismiss Bian’s adverse possession claim. In October 2020,
Bian appealed the summary judgment ruling. Then, on February 26, 2021, the
trial court entered an order awarding Smirnova attorney fees and costs. And on
March 19, 2021, the court entered a judgment for $39,378.89 in favor of
Smirnova. That same day, Bian amended his notice of appeal to include the
award of attorney fees.
On October 18, 2021, we affirmed the dismissal of Bian’s adverse
possession claim but reversed the award of attorney fees and remanded for the
trial court to determine whether the amount Smirnova requested was “equitable
and just” under RCW 7.28.083(3). Bian v. Smirnova, No. 81937-2-I, slip op. at
17 (Wash. Ct. App. Oct. 18, 2021) (unpublished), https://www.courts.wa.gov/
opinions/pdf/819372.pdf. Bian then petitioned for review in the Supreme Court.
The court denied review and awarded Smirnova reasonable attorney fees and
costs “incurred in filing an answer to the petition for review as well as answers to
the motions filed in the Supreme Court.” Bian v. Smirnova, 199 Wn.2d 1008, 506
P.3d 642 (2022). On May 17, 2022, the Supreme Court entered a judgment
awarding Smirnova $10,700 in attorney fees.
On remand to the superior court, Smirnova presented a proposed order
and judgment awarding her $50,078.89 in attorney fees, costs, and interest.1 On
October 28, 2022, the trial court entered an “Order Granting Defendants’ Motion
1
The amount included the May 2022 Supreme Court judgment.
2
No. 84801-1-I/3
for Entry of Judgment and for Award of Attorneys’ Fees and Costs.” The
language of the order was nearly identical to the original February 26, 2021 order
but added the subsequent history of the case and the language that “the Court
has determined that such an award is equitable and just as required under RCW
7.28.083(3), and in accordance with the Opinion of the Court of Appeals.”
On November 4, 2022, Bian moved for reconsideration and set a hearing
date of December 2, 2022 without oral argument. But on November 17, the trial
court entered an amended judgment for Smirnova for $50,078.89. Bian timely
appealed that judgment on December 9, mentioning his pending motion for
reconsideration. Then, on December 15, 2022, the trial court granted Bian’s
motion for reconsideration, ordering “a hearing on the record for all issues related
to the reasonableness of the Court’s award of any attorney fees and costs,
including whether such fees and costs are just and equitable.”2
On March 29, 2023, the trial court held that hearing. At the end of the
hearing, the court granted Smirnova her reasonable attorney fees and costs as
the prevailing party under RCW 7.28.083(3). It concluded the award was
equitable and just and incorporated its “oral rulings as captured in the court
transcript” as binding on the final judgment. The court set a hearing for April for
entry of the judgment.
On April 14, 2023, the trial court entered a “Second Amended Judgment”
for Smirnova for $34,674.84, which included interest accrued from the date of the
2
On February 24, 2023, a commissioner of this court granted Bian’s request for
the superior court to hear his postjudgment motion for reconsideration.
3
No. 84801-1-I/4
original March 19, 2021 judgment.3 Bian appeals.
ANALYSIS
Bian argues that the record does not support the trial court’s determination
that the amount of its fee award is equitable and just. We disagree.
“The general rule in Washington is that attorney fees will not be awarded
for costs of litigation unless authorized by contract, statute, or recognized ground
of equity.” Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).
Whether a trial court is authorized to award attorney fees is a question of law we
review de novo. Workman v. Klinkenberg, 6 Wn. App. 2d 291, 305, 430 P.3d
716 (2018). When authorized, we will uphold an attorney fee award unless the
trial court manifestly abused its discretion. Id. A trial court abuses its discretion
when its decision is manifestly unreasonable or based on untenable grounds or
untenable reasons. Id.Under RCW 7.28.083(3),
[t]he prevailing party in an action asserting title to real property by
adverse possession may request the court to award costs and
reasonable attorneys’ fees. The court may award all or a portion of
costs and reasonable attorneys’ fees to the prevailing party if, after
considering all the facts, the court determines such an award is
equitable and just.
A determination of reasonable attorney fees begins with calculating the
“lodestar,” which is “the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Berryman v. Metcalf, 177 Wn. App. 644,
3
The court amended the November 17, 2022 judgment awarding Smirnova a
total attorney fee award of $50,078.89 to credit Bian for $25,000.00 he paid in December
2022. The April 14, 2023 award of $34,674.84 included the remaining balance owed for
attorney fees ($25,078.89), costs ($188.39), and interest ($9,407.56).
4
No. 84801-1-I/5
660, 312 P.3d 745 (2013). The court must then discount hours spent on
“ ‘unsuccessful claims, duplicated effort, or otherwise unproductive time.’ ” Id. at
662 (quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675
P.2d 193 (1983)).
Trial courts must articulate the grounds for a fee award, making a record
sufficient to permit meaningful review. White v. Clark County, 188 Wn. App. 622,
639, 354 P.3d 38 (2015). This generally means supplying findings of fact and
conclusions of law sufficient to permit a reviewing court to determine why the trial
court awarded the amount in question. Id. A trial court’s oral ruling becomes
binding when, as here, it formally incorporates its oral ruling into the findings,
conclusions, and judgment. In re Det. of B.M., 7 Wn. App. 2d 70, 84, 432 P.3d
459 (2019).
Here, the trial court determined that it was equitable and just to award
Smirnova all her reasonable attorney fees and costs. In its oral ruling on March
29, 2023, the court found that Bian’s boundary dispute “was over a very small
footprint of land,” yet the lawsuit gave rise to several years of litigation and many
court hearings. The court also found it concerning that Bian filed the lawsuit in
2018, allowed the lawsuit to fail for want of prosecution, and then “almost
immediately” refiled the same lawsuit. The court characterized Bian’s conduct as
bordering on “vexatious litigation.” The record supports the trial court’s
determination that it was equitable and just to award Smirnova all her reasonable
attorney fees.
The court then calculated Smirnova’s reasonable attorney fees using the
lodestar method. It reviewed more than 25 pages of billing records documenting
5
No. 84801-1-I/6
the hours Smirnova’s attorney spent defending the lawsuit from 2018 until its
conclusion. The court concluded that counsel’s hourly rates were reasonable
because they were “substantially less than . . . would be charged [for] an attorney
practicing in King County.” It also determined that the attorney hours were
reasonable considering the four years of litigation, noting that the total cost of
representation was “not as substantial” as similar cases before the court. The
court did not abuse its discretion in calculating Smirnova’s reasonable attorney
fees and costs.
Bian argues the award is not equitable and just because it includes
attorney fees incurred defending the 2018 lawsuit. According to Bian, those fees
should not be included because the case was “closed” and not sufficiently related
to Smirnova’s successful disposition in 2023 to warrant an award of fees. But the
record shows that Smirnova incurred significant attorney fees defending against
Bian’s allegations in the 2018 lawsuit. The parties engaged in discovery and
litigated the claims for two years before the court dismissed it for Bian’s inaction.
And the fruits of those efforts were clearly relevant to defending against Bian’s
identical refiled allegations.
Bian also argues the award is not equitable and just because it includes
attorney fees incurred developing Smirnova’s “counterclaim” of merger, which he
describes as “unsuccessful.” But Smirnova did not bring a counterclaim of
merger. Instead, she pleaded merger of title as an affirmative defense to Bian’s
allegation of adverse possession. And Bian cites no authority that a party cannot
recover attorney fees for time spent developing an affirmative defense to a
plaintiff’s allegations. When a party cites no authorities in support of a
6
No. 84801-1-I/7
proposition, we need not search out authorities, but may assume that the party,
after diligent search, found none. Fox v. Skagit County, 193 Wn. App. 254, 277-
78, 372 P.3d 784 (2016) (citing DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d
122, 126, 372 P.2d 193 (1962)).
Finally, Bian argues that the trial court erred by awarding interest on the
attorney fee award dating back to the original March 2021 judgment. We agree.
Interest on a judgment is governed by statute. Fulle v. Boulevard
Excavating, Inc., 25 Wn. App. 520, 522, 610 P.2d 387 (1980) (citing RCW
4.56.110). Under RCW 4.56.110(3)(a), when
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 judgment affirmed shall date back to and shall accrue from the
date the verdict was rendered.
However, “[a]wards reversed on review do not bear interest.” Fisher Props., Inc.
v. Arden-Mayfair, Inc., 115 Wn.2d 364, 373, 798 P.2d 799 (1990). So, when an
appellate court decision “ ‘merely modifies the trial court award and the only
action necessary in the trial court is compliance with the mandate,’ ” interest will
accrue from the date of the original judgment. Id. (quoting Fulle, 25 Wn. App. at
522). But interest runs from only the new judgment date when the appellate
court “ ‘has reversed the trial court judgment and directed that a new money
judgment be entered.’ ” Id. (quoting Fulle, 25 Wn. App. at 522).
Here, we “reverse[ed] the award of attorney fees [to Smirnova] and
remand[ed] to the trial court to independently determine if the amount Smirnova
requested was equitable and just.” Bian, No. 81937-2-I, slip op. at 17. In doing
so, we did not modify the fee award and remand for the trial court to simply follow
7
No. 84801-1-I/8
our mandate. Instead, we authorized the trial court to exercise its discretion and
determine what amount of Smirnova’s fee request was equitable and just. As a
result, interest should accrue from the date of the new money judgment.
Smirnova asks for attorney fees on appeal under RCW 7.28.083(3) as the
“prevailing party in an action asserting title to real property by adverse
possession.” When a statute authorizes fees in the trial court, those fees are
also available on appeal. SEIU Healthcare Nw. Training P’ship v. Evergreen
Freedom Found., 5 Wn. App. 2d 496, 515, 427 P.3d 688 (2018). Because both
parties prevailed on appeal in part, we decline to award Smirnova attorney fees.
We affirm the trial court’s award of attorney fees as equitable and just but
remand for the court to modify the April 14, 2023 money judgment to accrue
interest from the date of its execution.
WE CONCUR:
8