IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

DAVIS WRIGHT TREMAINE LLP, a

limited liability partnership,

Respondent,

V.

FREDERICK PETERSON,

Appellant.

No. 75014-3-1

UNPUBLISHED OPINION

FILED: May 1, 2017

C)

rw-3 Cr)

(=, —1=

• rrl

Cr)

Q —71

• —n

1—

:c> —0 m

▪ Cr: rrl r-ts

7,1>

ci)

1

SCHINDLER, J. — Davis Wright Tremaine LLP (DVVT) filed a lawsuit for unpaid

legal fees against Frederick Peterson. Following a bench trial, the court ruled Peterson

breached the legal services agreement. The court found the majority of the fees were

reasonable, entered a judgment in favor of DVVT, and awarded DVVT attorney fees as

the prevailing party. Peterson appeals the judgment and the award of attorney fees to

DVVT as the prevailing party. We affirm.

Mellinger Lawsuit 

Frederick Peterson is the president of Retaining Walls Northwest Inc. (RWNW).

In July 2010, Trent Meilinger, Larry Westling, and Tower and Cabling Services Inc. filed

a lawsuit against Peterson and Patrick McHugh (the Meilinger lawsuit). The complaint
No. 75014-3-1/2

alleged Peterson breached the agreement "to provide financing of up to $2,000,000" to

Tower and Cabling Services. The lawsuit sought damages and attorney fees.

Peterson discussed the Meilinger lawsuit with his longtime friend Gregory

Hendershott. Hendershott is a partner at Davis Wright Tremaine LLP (DVVT). Peterson

asked DVVT to represent him in the Meilinger lawsuit.

On October 14, 2010, DVVT sent Peterson an "Engagement Letter" and the

"Standard Terms of Engagement for Legal Services" (Legal Services Agreement). The

letter states DVVT would bill Peterson monthly for legal fees based on a number of

factors including the "time and effort required"; the "novelty and complexity of the issues

presented"; the "amount of money or value of property involved and the results

obtained"; and the "experience, reputation and expertise of the lawyers performing the

services." The Engagement Letter states, in pertinent part:

Engagement

At Davis Wright Tremaine LLP we believe it is essential that our clients

and we have the same understanding of the client-attorney relationship.

With this in mind, attached for your review is a copy of our Standard

Terms of Engagement for Legal Services, which describes in greater

detail the basis on which we provide legal services to our clients.

As with most firms, fees for services at Davis Wright are based on a

variety of factors including, for example, the time and effort involved, the

experience of those doing the work, and the complexity of the matter. Of

these and other considerations, the time devoted and the experience of

those providing the services will be given the most weight. For example,

John Theiss's present rate is $435.00 per hour. Rates are subject to

adjustment from time to time. Depending on circumstances that may

arise, other Davis Wright attorneys or paralegals may assist at rates

consistent with their skills and experience. John will advise you before

any attorney besides John does substantial work on this matter. Our

services are billed monthly. Please let me know if you ever have a

question or concern on a bill.

2
No. 75014-3-1/3

The Legal Services Agreement states the client agrees to "make payment within

30 days of receiving our statement," pay the expenses of collecting the debt, and pay

reasonable attorney fees. The Legal Services Agreement states, in pertinent part:

Billing Arrangements and Terms of Payment

We will bill you on a regular basis, normally each month, for both

fees and disbursements. You agree to make payment within 30 days of

receiving our statement. . . .

We will give you prompt notice if your account becomes delinquent,

and you agree to bring the account or the retainer deposit current. If the

delinquency continues and you do not arrange satisfactory payment

terms, you agree that we may withdraw from the representation and

pursue collection of your account. You agree to pay the expenses of

collecting the debt, including court costs, filing fees and a reasonable

attorney's fee.

DVVT partner John Theiss and associate Carly Summers represented Peterson.

Peterson told the attorneys to "act aggressively in the Meilinger Lawsuit." DVVT

investigated a broad range of claims against McHugh, Meilinger, Westling, and the

officers of Tower and Cabling Services. DVVT filed counterclaims alleging breach of

contract, breach of fiduciary duties, securities fraud, fraudulent misrepresentation,

conversion, and unjust enrichment. DVVT also filed a cross claim against McHugh

alleging breach of contract and breach of fiduciary duty and a third-party complaint

against the officers of Tower and Cabling Services.

Between October 2010 and September 2012, DVVT "engaged in considerable

litigation." From October 2010 through September 2012, DVVT billed Peterson

$122,415.90—$119,779.00 for professional services and $2,636.90 for costs and other

expenses. Theiss billed 44.7 hours at an hourly rate of $435.00 in 2010 and $475.00

per hour by 2012. Summers billed 338.1 hours at an hourly rate of $250.00 in 2010 and

3
No. 75014-3-1/4

$290.00 by 2012. Peterson paid DVVT $40,817.27. DVVT "expended considerable effort

in attempting to resolve the unpaid invoices" with Peterson.

In September 2012, DVVT withdrew from representing Peterson in the Meilinger

lawsuit. Peterson retained another law firm and filed a motion for partial summary

judgment.1 The motion relied on evidence obtained by DWT during discovery. The

court granted partial summary judgment in favor of Peterson. The court dismissed the

complaint and ruled in Peterson's favor on the counterclaim against Westling. But the

court denied summary judgment on the counterclaim against Meilinger. On May 17,

2013, the parties stipulated to dismissal of all claims.

DVVT Lawsuit

On January 22, 2014, DVVT filed a lawsuit against Peterson for the unpaid legal

fees. DVVT alleged Peterson incurred $119,779.00 in legal fees and $2,636.90 in costs

and other expenses but paid only $40,817.27. DVVT sought judgment in the amount of

the unpaid balance of $81,630.97.

Peterson asserted a number of affirmative defenses including that DVVT charged

unreasonable fees in violation of RPC 1.5(a) and that the fee agreement violated the

RPCs and is "void as against public policy."

Plaintiff has breached RPC 1.5(a) by charging an unreasonable fee

for its services. Plaintiff cannot collect an unreasonable fee for the

services it may have rendered. Plaintiff's fee request must be

limited to a reasonable fee and all amounts Plaintiff collected in

excess of a reasonable fee must be disgorged to Defendant.

. . The cause of action and fee agreement are void as against public

policy because they violate the Washington Rules of Professional

Conduct.

1 The motion for partial summary judgment did not address Peterson's claims against the officers

of Tower and Cabling Services.

4
No. 75014-3-1/5

DVVT and Peterson presented testimony during the three-day bench trial.

Theiss and Summers testified at length about the legal services and

representation of Peterson in the Meilinger lawsuit. Theiss testified his hourly rates

were "fairly similar to [partners] with the same tenure as me" and the hourly rates for

Summers were the same as other associates at DVITT. Theiss stated DVVT billed

Peterson at its standard hourly rates and the hourly rates were "generally similar" to the

rates charged by other large law firms. Theiss testified the hours billed for Summers

were "comparable" to the hours other associates spent on similar lawsuits and

"reasonable for the tasks she was asked to do."

At the conclusion of DVVT's case, Peterson moved to dismiss. Peterson argued

DINT did not present evidence to show the legal fees incurred were reasonable. DVVT

argued the witnesses testified about the work performed and "the need for the work that

was performed because of [the] complexity of the case." The court denied the motion to

dismiss.

Peterson called attorney David NoId as an expert witness on the reasonableness

of the legal fees. NoId testified the fees were "grossly unreasonable." According to

NoId, DVVT billed "approximately 90 percent" of the hours for the work of an associate

and he had "never seen an associate with. . . one year of experience to whom this

amount of responsibility should have been given." In his opinion, 36 hours for Theiss

and 93 hours for Summers was reasonable. Nold testified a reasonable fee for the work

DVVT performed on the Meilinger lawsuit was $40,455.

The trial court entered extensive findings of fact and conclusions of law. The

court found Peterson breached the Legal Services Agreement. The court found DVVT

5
No. 75014-3-1/6

billed Peterson $119,779.00 in fees and $2,636.90 in costs for the Mellinger lawsuit.

The court found Theiss's testimony "credible on hourly rates being reasonable generally

for himself and Ms. Summers." The court concluded the hours billed were "reasonable

in part." The court found Theiss "spent a reasonable number of hours working on

Peterson's case." However, the court concluded the "hours spent on the matter by the

associate were too high." The court reduced the hours billed for Summers by one-third

from 338.1 to 225.5 for "some duplication (conferences with Mr. Theiss) and

considerable hours wasted because of inexperience, unproductive claims, or lack of

client management."

Using an average hourly rate of $455.00 for the 44.7 hours of work performed by

Theiss, the court found a reasonable fee was $20,338.50. Using an average hourly rate

of $270.00 for Summers, the court concluded a reasonable fee for her work was

$60,885.00. The court concluded the total reasonable legal fees and costs for the

Meilinger lawsuit was $83,860.40—$81,223.50 in attorney fees and $2,636.90 in costs.

After subtracting the $40,817.27 that Peterson had paid, the court awarded DVVT

$43,043.13. The Court found DVVT was "the prevailing party under the Billing

Arrangements and Terms of Payments section of the Engagement Agreement and

[Legal Services Agreement] and is entitled to recover its attorneys' fees and costs"

incurred in the breach of contract lawsuit.

DVVT filed a motion for an award of $130,285.74 in attorney fees and costs as the

prevailing party. Peterson argued DINT was not entitled to an award of attorney fees

and costs as the prevailing party because he proved the fees were unreasonable.

Peterson also claimed that because the court reduced the hours billed, MT violated

6
No. 75014-3-1/7

RPC 1.5(a). In the alternative, Peterson argued the attorney fees DVVT sought as the

prevailing party were unreasonable and should be reduced. The court awarded DVVT

$90,000.00 in attorney fees and costs as the prevailing party.

Breach of the Legal Services Agreement

On appeal, Peterson contends substantial evidence does not support the finding

that he breached the Legal Services Agreement. We review the trial court decision to

determine whether substantial evidence supports the findings of fact and whether those

findings, in turn, support the conclusions of law. Ridgeview Props. v. Starbuck,96

Wn.2d 716, 719, 638 P.2d 1231 (1982). Substantial evidence is the quantum of

evidence "sufficient to persuade a rational fair-minded person the premise is true."

Sunnvside Valley lrrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).

We will not "disturb findings of fact supported by substantial evidence even if

there is conflicting evidence." Merriman v. Cokelev, 168 Wn.2d 627, 631, 230 P.3d 162

(2010). We treat findings of fact labeled as conclusions of law as findings of fact. RileyHordvk v. Bethel Sch. Dist., 187 Wn. App. 748, 759 n.11, 350 P.3d 681 (2015); Willener

v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). We defer to the trial judge on

issues of witness credibility and persuasiveness of the evidence. Boeing Co. v. Heidv,

147 Wn.2d 78, 87, 51 P.3d 793 (2002); City of Univ. Place v. McGuire, 144 Wn.2d 640,

652, 30 P.3d 453 (2001). "Unchallenged conclusions of law become the law of the

case." Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015); King Aircraft

Sales, Inc. v. Lane,68 Wn. App. 706, 716-17, 846 P.2d 550 (1993).

The trial court entered extensive findings of fact and conclusions of law.

Peterson challenges only one finding. Peterson argues substantial evidence does not

7
No. 75014-3-1/8

support the finding that "[i]n October 2010, Mr. Peterson requested that DWT represent

him in his defense of the Meilinger Lawsuit." Substantial evidence supports the finding.

The first invoice from DWT is dated October 5, 2010. DWT filed a notice of appearance

on behalf of Peterson in the Meilinger lawsuit on October 8, 2010. The other

unchallenged findings of fact are verities on appeal. In re Estate of Jones,152 Wn.2d

1, 8, 93 P.3d 147 (2004).

The unchallenged findings support the conclusion that Peterson breached the

terms of the Engagement Letter and Legal Services Agreement. The unchallenged

findings establish the "terms of DVVT's engagement were communicated to Mr.

Peterson" and DWT sent Peterson its Legal Services Agreement that "explained how

fees DWT charged would be set." Under the "Engagement Agreement" and the Legal

Services Agreement, Peterson "was to pay DWT at its normal hourly rates for legal

services performed by DVVT's attorneys and reimburse DWT for out-of-pocket costs

incurred in connection with the Meilinger Lawsuit" within 30 days of receiving a

statement. Although Peterson did not sign the Engagement Agreement, the court

concluded Peterson "contracted with DVVT for legal services under the terms of the

Engagement Agreement and the enclosed [Legal Services Agreement]."

Here, as in JBakke v. Columbia Valley Lumber Co.,49 Wn.2d 165, 169,

298 P.2d 849 (1956)), DWT gave Mr. Peterson and RWNW a letter

describing the terms DWT imposed for representing Mr. Peterson in the

Mellinger Lawsuit. He/it did not contest any of the terms, and Mr.

Peterson agreed to DVVT representing him after having received the

[Legal Services Agreement]. He/it knew DWT was performing extensive

services for him/it after having received the Engagement Letter, and Mr.

Peterson on behalf of RWNW also initially compensated DWT in

accordance with the Engagement Letter and [Legal Services Agreement].

Thus, Mr. Peterson contracted with DVVT for legal services under the

terms of the Engagement Agreement and the enclosed [Legal Services

Agreement].

8
No. 75014-3-1/9

The court concluded the contract was "fair" and the Engagement Letter and

Legal Services Agreement "provided full and fair disclosure of the contract's terms."

DVVT's contract with Mr. Peterson, including the Engagement Letter and

[Legal Services Agreement], was fair, DWT exerted no undue influence on

Mr. Peterson to cause him to enter into or continue to perform under the

contract, and the Engagement Letter and [Legal Services Agreement]

provided full and fair disclosure of the contract's terms.

The unchallenged findings establish "DWT rendered legal services to Mr.

Peterson in connection with the Meilinger Lawsuit" between October 2010 and

September 2012 totaling $122,415.90 but Peterson paid only $40,817.27. We conclude

the unchallenged findings support the trial court's conclusion that Peterson breached

the Legal Services Agreement.

Motion To Dismiss 

Peterson argues the court erred in denying his motion to dismiss at the

conclusion of the evidence presented by DWT. Peterson asserts DWT presented no

evidence that the legal fees DWT incurred were reasonable. Under CR 41(b)(3),

dismissal is appropriate only " 'if there is no evidence, or reasonable inferences

therefrom, that would support a verdict for the plaintiff.'" Commonwealth Real Estate 

Servs. v. Padilla, 149 Wn. App. 757, 762, 205 P.3d 937 (2009) (quoting Willis v. 

Simpson Inv. Co.,79 Wn. App. 405, 410, 902 P.2d 1263 (1995)); Brant v. Mkt. Basket

Stores, Inc., 72 Wn.2d 446, 447, 433 P.2d 863 (1967). We review a trial court's

decision on a motion to dismiss for manifest abuse of discretion. Escude v. King 

County Pub. Hosp. Dist. No. 2,117 Wn. App. 183, 190, 69 P.3d 895 (2003); Johnson v. 

Horizon Fisheries, LLC,148 Wn. App. 628, 636, 201 P.3d 346 (2009). "A trial court

abuses its discretion only if its decision is manifestly unreasonable or based on

9
No. 75014-3-1/10

untenable grounds." Cent. Puget Sound Reg'l Transit Auth. v. Airport Inv. Co., 186

Wn.2d 336, 350, 376 P.3d 372 (2016). -

In an action filed by an attorney to collect legal fees, the burden is on the attorney

"to prove by a preponderance of the evidence both the services rendered and the

reasonable value thereof." Dailey v. Testone,72 Wn.2d 662, 664, 435 P.2d 24 (1967).

An attorney must present " 'reasonable documentation of the work performed.'" Scott

Fetzer Co., Kirby Co. Div. v. Weeks,122 Wn.2d 141, 151, 917 P.2d 1086 (1993)

(quoting Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193

(1983)).

Here, DI/VT introduced into evidence invoices documenting the legal services

performed for Peterson between 2010 and 2012. Theiss and Summers used the

invoices to testify at length about the legal services DVVT provided while representing

Peterson. The evidence presented at trial established the legal services DVVT provided

to Peterson included (1) "Nesearching, drafting, and filing cross-claims, counterclaims,

and a third-party complaint"; (2) engaging in extensive discovery including

interrogatories, document production, depositions, and motions to compel; (3) engaging

in mediation; and (4) "engaging in numerous settlement discussions with the plaintiffs,

cross-claim defendant, and third-party defendants." Theiss also testified about the

reasonableness of the hourly rates DVVT billed. The court did not abuse its discretion in

denying the motion to dismiss under CR 41(b)(3).

Prevailing Party Attorney Fees

Peterson asserts the court erred in awarding attorney fees to DVVT as the

prevailing party. Peterson claims he is the prevailing party because the court reduced

10
No. 75014-3-1/11

the amount of attorney fees awarded to DVVT.

A "prevailing party" is "the party in whose favor final judgment is rendered." RCW

4.84.330; see also Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 164, 795 P.2d

1143 (1990) ("a prevailing party is generally one who receives a judgment in its favor");

Emerick v. Cardiac Study Ctr., Inc., 189 Wn. App. 711, 732, 357 P.3d 696 (2015) ("In

general, a prevailing party is one who receives an affirmative judgment in his or her

favor.").

After reducing the amount billed for the associate by one-third, the court found

DVVT was entitled to $83,860.40 as reasonable attorney fees and costs for the work

performed. The court deducted the amount Peterson had previously paid and entered a

judgment in favor of DVVT for $43,043.13. The court did not err in concluding DVVT was

the prevailing party.

RPC 1.5(a) 

Peterson asserts the DVVT Legal Services Agreement is void and unenforceable

under RPC 1.5(a). DVVT argues Peterson waived his right to raise this argument for the

first time on appeal

In answer to the complaint, Peterson asserted as an affirmative defense that "by

charging an unreasonable fee," DVVT violated RPC 1.5(a), and that the Legal Services

Agreement was void because it violated RPC 1.5(a). The party asserting an affirmative

defense has the burden of proving that defense at trial. Camicia v. Howard S. Wright

Const. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014); Schmidt v. Coogan,181 Wn.2d

661, 665, 335 P.3d 424 (2014); Cregan v. Fourth Mem'l Church, 175 Wn.2d 279, 283,

11
No. 75014-3-1/12

285 P.3d 860 (2012); Steele v. Orqanon, Inc.,43 Wn. App. 230, 239, 716 P.2d 920

(1986).

At trial, Peterson presented evidence on whether the fees were reasonable. But

at the presentation hearing on entry of the findings of fact and conclusions of law,

Peterson argued the Legal Services Agreement violates RPC 1.5(a) and is void.

On appeal, Peterson claims that as a matter of law, the Legal Services

Agreement violates RCP 1.5(a). Peterson asserts the agreement places an undue

emphasis on "the time and effort required" rather than "equally weigh[ing]" the factors

set forth in RPC 1.5(a).

RPC 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an

unreasonable fee or an unreasonable amount for expenses. The factors

to be considered in determining the reasonableness of a fee include the

following:

(1) the time and labor required, the novelty and difficulty of the

questions involved, and the skill requisite to perform the legal service

properly;

(2) the likelihood, if apparent to the client, that the acceptance of

the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal

services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the

circumstances;

(6) the nature and length of the professional relationship with the

client;

(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services;

(8) whether the fee is fixed or contingent; and

(9) the terms of the fee agreement between the lawyer and the

client, including whether the fee agreement or confirming writing

demonstrates that the client had received a reasonable and fair disclosure

of material elements of the fee agreement and of the lawyer's billing

practices.

12
No. 75014-3-1/13

Peterson cites no authority that the factors in RPC 1.5(a) must be given equal

weight. Because the RPC 1.5 factors "are not exclusive. Nor will each factor be

relevant in each instance," we conclude the Legal Services Agreement did not violate

RPC 1.5(a). RPC 1.5 cmt. 1.2

In the alternative, Peterson claims the award of attorney fees to DVVT as the

prevailing party violates public policy. The unchallenged findings establish the terms of

the Legal Services Agreement control. The Legal Services Agreement states Peterson

agrees to pay reasonable attorney fees incurred in collecting unpaid legal fees. "Where

a contract provides for such fees, RCW 4.84.330 requires that the court award them to

the prevailing party." Riss v. Angel,80 Wn. App. 553, 563-64, 912 P.2d 1028 (1996).3

Because the award of attorney fees and costs is mandatory and the court does not have

"discretion except as to the amount," Peterson's public policy argument fails. Nw.

Cascade, Inc. v. Unique Constr., Inc., 187 Wn. App. 685, 704, 351 P.3d 172 (2015);

Crest Inc. v. Costco Wholesale Corp., 128 Wn. App. 760, 772, 115 P.3d 349 (2005);

Kofmehl v. Steelman,80 Wn. App. 279, 286, 908 P.2d 391 (1996).

2 For the first time on appeal, Peterson also argues the Legal Services Agreement is

unenforceable because DVVT violated the implied covenant of good faith and fair dealing. We decline to

consider an argument raised for the first time on appeal. RAP 2.5(a); Herberg v. Swartz,89 Wn.2d 916,

925, 578 P.2d 17 (1978).

3(Emphasis added.) RCW 4.84.330 states, in pertinent part:

In any action on a contract. . . where such contract. . . specifically provides that

attorneys' fees and costs, which are incurred to enforce the provisions of such contract

. . . , shall be awarded to one of the parties, the prevailing party, whether he or she is the

party specified in the contract. . . or not, shall be entitled to reasonable attorneys' fees in

addition to costs and necessary disbursements.

(Emphasis added.)

13
No. 75014-3-1/14

We affirm the judgment against Peterson and the award of attorney fees to DWT

as the prevailing party.4

WE CONCUR:

...-------

1 if N' cA/N e 0 GJ

5

56_„\ii._ida i y

(67A,J

4 DVVT requests attorney fees on appeal under RAP 18.1. Because DVVT is entitled to attorney

fees and costs incurred to enforce the contract, we award DVVT reasonable attorney fees on appeal upon

compliance with RAP 18.1.

14