Maple Valley Park Place, Respondent V. Michael Ross, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 71998-0-1
DIVISION ONE
MAPLE VALLEY PARK PLACE, LLC,
Respondent,
v.
MICHAEL ROSS and TAMARA ROSS,
individually and as a marital community
d/b/a METROPOLITAN MORTGAGE,
Appellants.
~o 	O -.-
UNPUBLISHED OPINION 	o
Wpl-
en
FILED: April 20, 2015
Trickey, J. —We review the reasonableness of an attorney fee award for abuse
of discretion. 	Because Michael and Tamara Ross fail to demonstrate the trial court
abused its discretion in awarding only a portion of the attorney fees they requested, we
affirm.
FACTS
In 2008, the Rosses leased commercial premises from Maple Valley Park Place,
LLC. 	In 	2009, 	the 	Rosses filed 	a chapter 7 bankruptcy 	petition 	and 	obtained 	a
discharge.
It is undisputed that the Rosses failed to make payments under the lease, and in
2012, 	Maple Valley sued the Rosses for breach of the lease. 	In their answer, the
Rosses asserted the bankruptcy discharge as an affirmative defense. 	Maple Valley
moved for summary judgment. 	The Rosses filed a response arguing that there was a
genuine issue of material fact as to whether they were individually liable because the
premises were leased 	under a business name. 	They simultaneously filed 	a cross

No. 71998-0-1/2
motion for summary judgment contending that any claim arising from the lease was
barred by the bankruptcy discharge.
The 	Rosses then 	sought a finding 	of contempt against Maple Valley 	in the
bankruptcy proceeding for violating the discharge. 	Though none of the bankruptcy
court's orders are in the record before this court, the parties represented to the superior
court that the 	bankruptcy court 	found 	Maple Valley in contempt and 	awarded the
Rosses $5,000 in emotional distress damages and $16,556.25 in attorney fees.1
Maple Valley ultimately dismissed the action. 	On January 17, 2014, the Rosses
moved for an award of attorney fees as the prevailing party, citing the attorney fee
provision in the lease. 	The Rosses sought a total of $51,262.50 in attorney fees which
was based upon a total of 169.4 hours worked at a rate of $300 per hour. The Rosses
itemized the hours as follows: 	(1) 26.2 hours for time spent filing an answer and in
discovery; (2) 23 hours for time spent on the summary judgment motions and opposing
the taking of their depositions; (3) 103.8 hours related to the contempt proceeding in
bankruptcy court; (4) 7.4 hours related to settlement negotiations in the superior court
action following the bankruptcy court's finding of contempt; and (5) 9 hours related to
the attorney fee motion.
On February 5, the trial court found that the Rosses were the prevailing party and
"entitled to recover reasonable costs and fees for defending this case."2 	However, the
trial court 	denied 	the 	motion for fees 	without 	prejudice, 	finding 	that 	the 	Rosses'
1 The record is unclear as to the amount of attorney fees that the Rosses requested in the
bankruptcy proceeding. 	The amount referenced in pleadings in the superior court varies from
$31,370.00 to $35,902.50. 	In any case, the bankruptcy court did not award the Rosses the full
amount that they sought, finding the amount "should have been mitigated, was unreasonable, or
both." Clerk's Papers (CP) at 123.
2 CP at 138.

No. 71998-0-1/3
declaration did not sufficiently itemize the hours worked. 	The trial court also noted it
would "not grant fees for the cost of proceedings in the bankruptcy court, which has
already assessed sanctions."3 	The trial court directed the parties to provide additional
briefing and documentation regarding the number of hours spent.
On February 19, the Rosses filed a revised declaration seeking a total of $27,270
in attorney fees which was based upon a total of 90.9 hours worked at a rate of $300
per 	hour. 	The 	Rosses 	itemized 	the 	hours 	as 	follows: 	(1) 	7.7 	hours 	for 	"time
investigating 	[Maple Valley's] claim, researching the law, trying to persuade [Maple
Valley] that its claim was futile (one reason was the bankruptcy discharge), and when
that failed, filing an answer";4 (2) 28.7 hours for discovery; (3) 33 hours for "the time
spent opposing [Maple Valley's] summary judgment motion and preparing [the Rosses']
cross-motion for summary judgment, all of which involved researching legal issues,
including bankruptcy issues, drafting briefs and declarations, communicating with the
court and opposing counsel re: scheduling, and even attempting to settle the dispute
with [Maple Valley] prior to taking the matter to the bankruptcy court";5 (4) 17 hours after
entry of the contempt judgment in bankruptcy court, including discussing dismissal with
Maple Valley and preparing the attorney fee request;6 and (5) 4.5 hours that the Rosses
"expect[ed] to work . . . preparing this supplemental declaration requested by the court,
and responding to [Maple Valley's] opposition."7 	In accordance with the trial court's
3 CP at 138.
4 CP at 151.
«CPat151.
6 CP at 151-52.
7 CP at 152.

No. 71998-0-1/4
prior order, the revised fee request did not include any hours related to the bankruptcy
proceeding.
On March 4, the trial court entered an order awarding fees to the Rosses as
follows:
IT IS ORDERED that defendants are the prevailing party in the
action, entitled to an award of their reasonable attorney's fees, costs, and
expenses, as the prevailing party in the action.
Defendant's fee request appears, however, 	excessive. The lease
provision 	only 	allows 	recovery of "reasonable 	costs, 	expenses, 	and
attorneys' fees." (Emphasis added.) This Court is not persuaded, to begin
with, that it is reasonable to award the 7.7 hours billed for the period
before an 	answer was filed, and 	reduces the 	hours awarded to 4. 	In
addition, the court believes that the 28.7 hours billed for discovery is
excessive, particularly since the dispositive issue in this case was the
limited one of whether the bankruptcy discharge precluded this action.
Those hours are reduced to 14. Likewise, since the dispositive issue in
this case was the effect of the bankruptcy discharge, while very little of the
summary judgment briefing dealt with that key issue, the 33.0 hours billed
for summary judgment proceedings is excessive. 	It also includes time
devoted to settlement discussions before taking the matter to bankruptcy
court - these hours were not reasonable for the defense of the case in this
court. The 33.0 hours is reduced to 10. The 17 hours devoted to post-
bankruptcy 	proceedings 	does appear reasonable, 	however. 	Plaintiff's
argument that the amounts involved in the litigation were then small does
not appear to have deterred plaintiff from aggressively pursuing them and
resisting defendants' requests for fees as prevailing party. The Court does
not rule on the reasonableness of requesting more fee hours than were
billed to the client in this case, because it has already reduced claimed
hours as noted above.
In summary, the Court finds 45 hours were reasonable.
The reasonableness of defendant's counsel's hourly billing rate of
$300 and costs is not disputed.

No. 71998-0-1/5
Defendants are awarded reasonable attorneys' fees of $13,500 and
$570.61 in allowable costs.!8'
The 	Rosses 	sought 	reconsideration 	of the award, 	which 	was 	denied. 	The
Rosses appeal.
ANALYSIS
The Rosses contend the trial court erred in not awarding the full amount of their
fee request. 	Because the Rosses fail to show the amount of the award constituted an
abuse of discretion, we disagree.
A trial 	court 	may 	award 	attorney fees 	to 	a 	party 	if a 	statute, 	contract, 	or
recognized ground of equity authorizes the award. 	LK Operating. LLC v. Collection
Grp.. LLC. 181 Wn.2d 117, 123, 330 P.3d 190 (2014). 	"A determination of reasonable
attorney fees begins with a calculation of the 'lodestar,' which is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate." Berrvman
v. Metcalf. 	177 Wn. App. 644, 660, 312 P.3d 745 (2013). 	The 	number of hours
reasonably expended does not include hours spent on "unsuccessful claims, duplicated
or wasted effort, or otherwise unproductive time." Chuono Van Pham v. Citv of Seattle,
Seattle 	Citv Light. 159 	Wn.2d 	527, 	538, 	151 	P.3d 	976 	(2007). 	"The 	burden 	of
demonstrating that a fee is reasonable is upon the fee applicant." 	Berrvman. 177 Wn.
App. 	at 657. However, 	an award 	of substantially less than the amount requested
"should indicate at least approximately how the court arrived at the final numbers, and
explain why discounts were applied." 	Absher Constr. Co. v. Kent Sch. Dist.. 79 Wn.
App. 841, 848, 917 P.2d 1086 (1995).
« CP at 223-24.

No. 71998-0-1/6
"A trial judge is given broad discretion in determining the reasonableness of an
award, 	and 	in order to 	reverse 	that award, 	it must 	be shown 	that the trial court
manifestly abused its discretion." 	Ethridoe v. Hwang. 105 Wn. App. 447, 460, 20 P.3d
958 (2001). 	The trial court abuses its discretion only if its decision is "manifestly
unreasonable or based on untenable grounds or untenable reasons." 	In re Marriage of
Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
The Rosses' primary claim is that the trial court erred in excluding all of the hours
related to work in the bankruptcy court from the fee award in the superior court. 	They
contend they are entitled to these fees because "[a]ll of [the Rosses'] actions in the
bankruptcy court were related to enforcing the discharge, which was an affirmative
defense to [Maple Valley's] claim in the state court."9 	But the Rosses had already
requested and received an award of reasonable attorney fees for this work from the
bankruptcy court. 	Though the Rosses are dissatisfied that the bankruptcy court did not
award all the fees they requested, they provide neither persuasive argument nor legal
authority that they are entitled to a second bite at the apple in superior court. 	The trial
court's decision not to award fees for work in the bankruptcy proceeding was not an
abuse of discretion.
The Rosses next contend that the trial court erred in awarding fees for only 10 of
the 33 claimed hours of work on the summary judgment motions. 	Again, the Rosses do
not meet their burden to show that the award was an abuse of discretion. 	The pleading
entitled "Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Cross-
Motion for Summary Judgment" filed 	by the Rosses totals eight pages, only five of
Appellants' Br. at 13.

No. 71998-0-1/7
which contain argument. 	The trial court was well within its discretion to determine this
would not reasonably take 33 hours to accomplish.
Finally, the Rosses argue the trial court erred when it failed to award fees for 4.5
hours spent revising their fee request in response to the trial court's order. 	In general,
"time spent on establishing entitlement to, and amount of, a court awarded attorney fee
is compensable." 	Fisher Props.. Inc. v. Arden-Mavfair. Inc.. 115 Wn.2d 364, 378, 798
P.2d 799 (1990). 	The trial court awarded the Rosses fees for 17 hours of work that
included time spent preparing their original fee request. 	But the Rosses' documentation
in support of this request was insufficient. 	In light of this fact, it was not an abuse of
discretion for the trial court to discount 4.5 hours as 	"wasted effort" or "otherwise
unproductive time."
Both parties request attorney fees on appeal. 	The Rosses are not entitled to
fees on appeal 	because they are not the prevailing 	party. 	And we decline Maple
Valley's request for attorney fees because the Rosses' appeal was not frivolous.
Affirmed.
|r^^«y 	^1
WE CONCUR: