Thomas Erickson, V. Retail Opportunity Investments Corp. ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
November 21, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
THOMAS G. ERICKSON dba ENERGY No. 58908-7-II
TECHNOLOGY COMPANY,
Appellant,
v.
RETAIL OPPORTUNITY INVESTMENTS UNPUBLISHED OPINION
CORP. AND ITS GOVERNORS/BOARD
DIRECTIORS:LAURA H. POMERANTZ,
ERICK S. ZORN, MICHAEL J. INDIVERI,
MICHAEL HAINES, STUART A. TANZ, LEE
S. NEIBART, RICHARD BAKER, RICHARD
SCHOEBEL, ADRIENE BANKS PITTS,
ANGELA HO, AND ZABRINA M. JENKINS;
RETAIL OPPORTUNITY INVESTMENTS
PARTNERSHIP, LP; AND RETAIL
OPPORTUNITY INVESTMENTS GP, LLC,
Defendants,
ROIC WASHINGTON LLC,
Respondent.
GLASGOW, J.—Thomas G. Erickson did electrical work on a restaurant. Erickson then sued
Retail Opportunity Investments Corp., ROIC Washington LLC, Retail Opportunity Investments
Partnership LP, Retail Opportunity Investments GP LLC, and several stockholders of ROIC
(collectively ROIC) under quantum meruit and civil conspiracy theories. Erickson sought payment
for his work, punitive damages, and “exemplary damages.” Erickson also sought “pro se litigation
fees,” the equivalent of attorney fees but for prevailing nonlawyers to compensate for their time
spent on their litigation. The trial court dismissed Erickson’s complaint with prejudice and denied
No. 58908-7-II
his motion for pro se litigation fees. Erickson appeals only the superior court’s denial of pro se
litigation fees.
Erickson did not prevail below, making him ineligible to collect fees even under his own
theory, and thus, we affirm the superior court. Because Erickson’s appeal is frivolous, we also
award attorney fees on appeal to ROIC.
FACTS
Erickson is a Washington and Oregon licensed electrical contractor and the sole proprietor
of Energy Technology Company. ROIC’s tenant contracted with a general contractor, Barron
Builders LLC, to renovate a bar and grill. Barron hired Erickson’s company to complete electrical
work on the restaurant renovation.
Erickson claimed that he was not fully paid for his work on the restaurant’s renovation and
that he was owed an amount less than $10,000. Erickson filed a complaint against ROIC but not
Barron. In the complaint, Erickson sought recovery from all ROIC defendants under quantum
meruit and civil conspiracy theories. He sought payment for his work (less than $10,000), punitive
damages (over $113,000), and exemplary damages ($2,250,000). Relevant to this appeal, Erickson
also requested payment of pro se litigation fees “for fair compensation to Mr. Erickson for his
drafting this lawsuit” in the amount of $18,000. Clerk’s Papers at 16. Erickson argued he was
entitled to these pro se litigation fees, claiming the 120 hours he spent developing the complaint
should be compensated at $150 per hour because this work was ultimately necessary to obtain
recovery.
The trial court dismissed the complaint under CR 12(b)(6) with prejudice for failure to state
a claim for quantum meruit; for civil conspiracy; and for recovery of punitive damages, exemplary
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No. 58908-7-II
damages, or damages to compensate Erickson for preparing the complaint. Further, the trial court
dismissed the complaint with prejudice as a sanction against Erickson for filing the complaint for
an improper purpose under CR 11. The trial court awarded approximately $1,700 in attorney fees
and costs to ROIC, even though ROIC requested over $43,000.
Erickson does not appeal the dismissal of his quantum meruit, civil conspiracy, or punitive
damages claims, nor does he appeal dismissal as a sanction under CR 11. In his notice of appeal,
he seeks only the following relief: “Erickson seeks PRO SE litigation AWARDS for litigation
‘time spen[t] and expenses’ in FUTURE, not current case, state of Washington court cases, except
Small Claims, to be AWAR[D]ED to ALL PRO SE litigants if he/she is the PREVAILING
PARTY.” Notice of Appeal at 2. See also id. at 7 (“The state of Washington has denied
ERICKSON his ability to be paid for his Pro Se litigation efforts to be paid fairly for ETC’s
services provided to ROIC.”) Thus, Erickson asks this court to establish a new legal principle that
would award prevailing self-represented litigants compensation for time spent representing
themselves in a litigation, and he seeks fees in this case even though he did not prevail on the
merits.
ANALYSIS
I. PREVAILING PRO SE LITIGATION FEES
While acknowledging that no state or federal law supports awarding “pro se litigation
fees,” Erickson asks this court to establish a new legal principle granting prevailing pro se litigants
compensation for their time spent litigating cases. Erickson acknowledges that only prevailing
parties should be awarded their proposed fees.
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No. 58908-7-II
Erickson also acknowledges that this case was dismissed with prejudice and he does not
claim to have prevailed on the merits below. For example, Erickson seeks pro se litigation fees “in
FUTURE, not current case[s],” to be awarded to pro se litigants if they are the “PREVAILING
PARTY.” Id. at 2. Additionally, Erickson “prays that this court . . . award[] [pro se litigants] their
litigation fees (honorarium) equal to attorney fees if victorious.” Appellant’s Br. at 57 (emphasis
added).
We do not issue advisory opinions on issues that are abstract, speculative, or not based on
actual facts established below. See Commonwealth Ins. Co. of Am. v. Grays Harbor County, 120
Wn. App. 232, 245, 84 P.3d 304 (2004). See also Wash. Educ. Ass’n v. Pub. Disclosure Comm’n,
150 Wn.2d 612, 623, 80 P.3d 608 (2003); Wash. Beauty Coll., Inc. v. Huse, 195 Wash. 160, 164,
80 P.2d 403 (1938).
In his complaint filed at the trial court, Erickson requested payment of pro se litigation
fees. However, Erickson did not prevail in the trial court; his complaint was dismissed with
prejudice on all counts and he is not contesting the dismissal on the merits. Erickson instead asks
us to address his request for a new rule that might entitle him and other parties to recover
compensation in future cases, but this request is only hypothetical and speculative, not an actual,
present dispute. Even if this court were to adopt Erickson’s proposed legal principle of awarding
litigation fees to a prevailing pro se litigant, Erickson would not be entitled to such fees in this
case because he is not a prevailing party. Thus, addressing this issue would amount to an advisory
opinion.
Moreover, to the extent that Erickson is asking us to treat pro se litigants the same as
litigants who are represented by counsel, “‘Washington generally follows the ‘American rule’ on
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No. 58908-7-II
attorney fees, which provides that attorney fees are not recoverable by the prevailing party as costs
of litigation unless the recovery is permitted by contract, statute, or some recognized ground of
equity.”’ N.Y. Life Ins. Co. v. Mitchell, 1 Wn.3d 545, 570, 528 P.3d 1269 (2023) (emphasis added)
(quoting Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 143, 930 P.2d 288 (1997)).
Apart from some rare exceptions not applicable here, attorney fees are generally awarded only in
connection with a prevailing claim. See Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d
36, 56, 534 P.3d 339 (2023).
Finally, we do not address the constitutional claims that Erickson raises on appeal because
we have resolved his assignments of error on nonconstitutional grounds. Wash. Fed’n of State
Emps., Council 28 v. State, 2 Wn.3d 1, 25, 534 P.3d 320 (2023) (citing Tunstall v. Bergeson, 141
Wn.2d 201, 210, 5 P.3d 691 (2000)).
In sum, we decline to address Erickson’s arguments regarding the extension of litigation
fees to prevailing pro se litigants, and we affirm the trial court’s decision denying Erickson such
fees.1
1
Erickson filed a motion on October 17, 2024, asking this court to consider additional evidence
not included in the record in this case. The motion failed to address or satisfy the factors in RAP
9.11. We deny that motion. On October 21, 2024, Erickson also filed a financial declaration, but
it is unrelated to the determinative issue in this case, so we need not take any action with regard to
that filing. On November 1, 2024, Erickson filed a motion for production of the court record. This
court has provided the record to Erickson by e-mail and we do not need to take any further action
on this motion. Finally, on November 4, 2024, Erickson filed a motion to file an overlength motion
for sanctions, which he entitled “Motion for Permission to Modify Format of Motion for
Sanctions.” We deny that motion. See RAP 17.6(b).
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No. 58908-7-II
II. ATTORNEY FEES ON APPEAL
ROIC requests an award of attorney fees on appeal under RAP 18.1, arguing that
Erickson’s appeal is frivolous.
Under RAP 18.1(a), a party on appeal is entitled to attorney fees if applicable law
authorizes the award. RAP 18.9(a) authorizes this court to award sanctions, terms, or compensatory
damages when a party files a frivolous appeal. Advocs. for Responsible Dev. v. W. Wash. Growth
Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). “An appeal is frivolous if,
considering the entire record, the court is convinced that the appeal presents no debatable issues
upon which reasonable minds might differ, and that the appeal is so devoid of merit that there is
no possibility of reversal.” Id. “All doubts as to whether the appeal is frivolous should be resolved
in favor of the appellant.” Id.In Stiles v. Kearney, the court held that the appeal was frivolous because none of the
appellant’s arguments could possibly have resulted in reversal, because they either lacked merit,
relied on misunderstanding of the record, required consideration of evidence outside the record, or
were not adequately briefed. 168 Wn. App. 250, 268, 277 P.3d 9 (2012). Like in Stiles, all of
Erickson’s arguments lack merit and could not possibly have resulted in reversal. The trial court
pointed out below that Erickson’s arguments did not meet the minimal standard under CR 11 and
dismissed the lawsuit as a sanction. To the extent that Erickson was unaware that his arguments
lacked any merit, the trial court’s CR 11 dismissal put him on notice that a court could find these
arguments frivolous. Erickson has not presented any arguments on appeal that create a debatable
issue. We therefore award fees to ROIC for having to defend against a frivolous appeal.
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No. 58908-7-II
CONCLUSION
We affirm. We award attorney fees on appeal to ROIC in an amount to be determined by
a commissioner of this court.
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.
GLASGOW, J.
We concur:
LEE, P.J.
CHE, J.
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