WA Legal Roundup: Division II
Be nice to thy neighbor. The Thompsons appeal the trial court’s award of appellate fees and costs after their appeal was dismissed for failure to file an opening brief. The case began after The Thompsons sold property across from their house to their neighbors the Lennoxs. In the deed was a written height agreement stating that the property could not exceed 25 feet in order to keep their view.
After construction began, the Thompsons felt their neighbors were in violation of the agreement, filed suit and lost. The trial court held that the language was ambiguous and the Lenox’s interpretation that the measurement be from the eastern most point was reasonable. The trial court ordered the Thompson’s to pay attorneys fees and costs. Meanwhile the Thompson’s filed an appeal but failed to file opening briefs and the appeal was dismissed and sent to the trial court for further proceedings in accordance with the dismissal. The trial court further ordered additional fees and costs against the Thompson’s for the commenced appeal.
The Thompson’s argue that the trial court did not have authority to award appellate attorney fees for the abandoned appeal. This Court agrees. The court reasoned that RAP 18.1 requires that the party seeking attorneys fees request the same in their opening brief in front of the appeals court. Moreover, RAP 18.1(d) requires a party to serve and file in the appeals court an affidavit detailing the expenses. RAP 18.1(f) allows for the commissioner or clerk to determine the amount of fees without a hearing. If the parties object to the amount they file a motion under RAP 17.7. Therefore the court held that, read together, RAP 18.1 “makes clear that a party seeking fees on appeal must clearly set forth the request and the basis for same before the appellate court.” The court also rules that appellate jurisdiction was triggered in this case when the Thompson’s filed their notice of appeal, therefore the appropriate authority for a request for appellate fees and costs would have been the appellate court.
The Respondents relied on some general rules from three cases, which this Court distinguished and basically shot down. The Respondents also relied on the mandate written by a clerk of the appellate court notifying the parties that the court was dismissing the case and retaining no jurisdiction to issue orders and that the Superior Court “now has jurisdiction to take all actions consistent with the mandate” to which the Court ruled that a mandate becomes binding on the parties and would have included an award for attorneys fees, which the trial court would have authority to enforce. In this case, however, there was no award of fees and costs included in the mandate for the trial court to enforce because any such award should have been requested and been ruled on by the appellate court.