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UNPUBLISHED OPINION o

Wplen

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 ofthe 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 courtfound 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 attorneyfee 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 dealtwith 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 postbankruptcy 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 Courtfinds 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 ofwork on the summary judgmentmotions. 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 CrossMotion 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.

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WE CONCUR: