* State of Washington v. Thomas Madison Carey

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
THOMAS MADISON CAREY,
Appellant.
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No. 37385-1-III
PUBLISHED OPINION
PENNELL, C.J. — Thomas Carey appeals the trial court’s limitation of legal fees
awarded him after a jury found he was not guilty of second degree assault by reason of
self-defense. Mr. Carey’s sole argument is that the “lodestar” method for calculating legal
fees does not apply to the self-defense reimbursement statute. We disagree with this
legal claim and therefore affirm.
FILED
DECEMBER 31, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 37385-1-III
State v. Carey
2
FACTS
The trial court ordered the State to reimburse Thomas Carey $122,431.31 in legal
fees and costs under RCW 9A.16.110 after he was acquitted of second degree assault on
the basis of self-defense. Mr. Carey had sought $278,879.84.
A breakdown of Mr. Carey’s request for fees and costs, and the trial court’s award,
is set forth below:
Fee / Cost 	Amount Sought 	Amount Awarded
Partovi Law, P.S.
(Legal Fees)
Flat Fee Pretrial Retainer
$10,000.00
Flat Fee Trial Retainer
$250,000.00
Subtotal: $260,000.00
Attorney Fees
($300.00/hr. x 397.6 hrs.):
$119,280.00
Paralegal / Office Staff Fees
($125.00/hr. x 22.4 hrs.):
$2,800.00
Subtotal: $122,080.00
Pulver Investigations 	$2,000.00 	$0.00
Law Office of Jeffrey R.
Chapdelaine P.C.
(Consulting Fees) 	$10,000.00 	$0.00
G/T Investigations, Inc.
(Service of Subpoena) 	$50.00 	$50.00
Bos Investigations 	$150.00 	$150.00
Spokane County Sheriff
(Public Disclosure Request) 	$1.31 	$1.31
Behind the Gavel, LLC
(Litigation Support) 	$150.00 	$150.00
Closing Costs
to Refinance House 	$6,528.53 	$0.00
Totals: 	$278.879.84 	$122,431.31
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No. 37385-1-III
State v. Carey
3
The most significant difference between Mr. Carey’s request and the trial court’s
award is that the court refused to fully reimburse Mr. Carey $250,000 for the flat fee trial
retainer agreement he entered into with his defense counsel. Instead, the court calculated
a reasonable legal fee using the lodestar method. Although Mr. Carey’s attorney requested
any hourly rate calculation of his fees be at $500, the court used a $300 hourly rate for
attorney time and a $125 hourly rate for paralegal and staff time. With these rates, the
court compensated the office of Mr. Carey’s attorney for all hours spent on Mr. Carey’s
case. The court denied Mr. Carey’s requests for some investigative fees, consulting fees
and refinancing costs because Mr. Carey had not supplied adequate documentation.
Mr. Carey timely appeals the trial court’s order on legal fees and costs.
ANALYSIS
Mr. Carey contends the trial court improperly limited his legal fee award.
He argues the lodestar method is not the baseline for assessing fees under
RCW 9A.16.110. Instead, he argues the court is required to award all fees actually
incurred unless they are deemed unreasonable. Here, the trial court never made a
finding that the $250,000 flat fee trial retainer agreement was unreasonable. Given
this circumstance, Mr. Carey argues the court was required to reimburse his entire
request for $278.879.84 in legal fees.
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No. 37385-1-III
State v. Carey
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Mr. Carey’s argument is rooted in a claim of legal error. Our review is therefore
de novo. TracFone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810
(2010).
The self-defense reimbursement statute provides as follows:
When a person charged with [a violent crime] is found not guilty by
reason of self-defense, the state of Washington shall reimburse the defendant
for all reasonable costs, including loss of time, legal fees incurred, and other
expenses involved in his or her defense. This reimbursement is not an independent
cause of action. To award these reasonable costs the trier of fact must find that
the defendant’s claim of self-defense was sustained by a preponderance of the
evidence. If the trier of fact makes a determination of self-defense, the judge shall
determine the amount of the award.
RCW 9A.16.110(2).
The statute states that it is the trial judge, not the jury or defense counsel, who
determines the reasonable amount of a fee award. However, no specific guidance is
provided in the statute as to how the award should be calculated. When it comes to legal
fees, the statute merely requires the fees be actually incurred and that they are reasonable.
The question of how to interpret statutory authorization to award reasonable legal
fees is not new. Numerous statutes permit courts to award reasonable costs, including
legal fees, to prevailing parties.1 Most, if not all, of the statutes are silent as to how fees
1 See, e.g., chapter 4.84 RCW (defining variety of costs available in different
actions).
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No. 37385-1-III
State v. Carey
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are to be calculated. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 594,
675 P.2d 193 (1983).
Our courts have addressed legislative silence on the methodology for legal fee
awards by designating the lodestar principle as the default rule. Id. at 597. The first step
under the lodestar approach is to calculate a fee by multiplying the number of hours
reasonably expended by a reasonable rate of compensation. Id. This initial calculation
does not necessarily constitute a reasonable fee. Scott Fetzer Co. v. Weeks, 122 Wn.2d
141, 151, 859 P.2d 1210 (1993). But the “burden of justifying any deviation” from the
initial calculation rests with “the party proposing the deviation.” Bowers, 100 Wn.2d at
598 (quoting Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980)).
RCW 9A.16.110 has been significantly amended twice since 1983 when Bowers
identified the lodestar method as the default rule in Washington for legal fee calculations.
L AWS OF 1989, ch. 94, § 1; L AWS OF 1995, ch. 44, § 1. Nothing in the wording of this
statute is inconsistent with utilizing a lodestar approach. We assume the legislature is
aware of our case law when amending statutes. State v. Theilken, 102 Wn.2d 271, 276,
684 P.2d 709 (1984). We therefore interpret RCW 9A.16.110 as contemplating the
standard process of reimbursing reasonable legal fees; this means utilizing the lodestar
methodology. The trial court did not commit legal error in making this determination.
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No. 37385-1-III
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We note the trial court did not depart from the lodestar methodology when it
commented Mr. Carey had yet to pay his attorney the $250,000 flat fee trial retainer.
Regardless of whether Mr. Carey had paid the retainer, the court was still required to
begin its analysis with a lodestar calculation. A finding that Mr. Carey had actually paid
the retainer may have prompted the trial court to adjust its lodestar fee calculation. But
the amount of the retainer agreement was not relevant to the court’s initial calculation.
A trial court’s application of the lodestar methodology is reviewed for abuse of
discretion. Chuong Van Pham v. City of Seattle, 159 Wn.2d 527, 538, 151 P.3d 976
(2007). Mr. Carey never argues the trial court abused its discretion in applying the
lodestar rationale. In fact, his brief lacks a section identifying assignments of error as
required by RAP 10.3(a)(4) and (g). Mr. Carey does briefly complain that the trial court
arbitrarily reduced his attorney’s hourly rate from $500 to $300. However, Mr. Carey
does not argue the trial court’s reduction misapplied the lodestar method or that remand
is required on this point. Given the lack of a clear assignment of error and substantive
briefing, we decline to further address the issue of whether the trial court abused its
discretion in calculating legal fees under the lodestar method. See Bohn v. Cody,
119 Wn.2d 357, 368, 832 P.2d 71 (1992).
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No. 37385-1-III
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CONCLUSION
The order on reimbursement of legal fees and costs is affirmed. The parties shall
bear their own appellate costs.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Korsmo, J.
______________________________
Siddoway, J.
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