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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CYMA G. TUPAS, a.k.a. CYMA G. GREGORIOS, Appellant,

STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Respondent, KEVIN FITZPATRICK; GERALD SHERVEY; AND WENDY HOLTON, Defendants. No. 72259-0-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: December 7, 2015

Lau, J.

—This case involves an attorney fees and costdispute underthe Washington Law Against Discrimination (WLAD), chapter49.60 RCW. Thejury 

### awarded CymaTupas $329,580 indamages against herformer employer, the 

### Washington State DepartmentofEcology (the Department), on herfailure to accommodate disability claim. Itfound no liability and awarded no damages on herNo. 72259-0-1/2 

### discrimination and retaliation claims. The trial court declined to apply a 1.5 multiplier and reduced Tupas' requestforfees and costs by 25 percent. Tupas contends (1) the court's findings are insufficientto permit meaningful appellate review of its award for 

### attorney fees and costs, (2) the court improperly relied on a riskfactor in declining the multiplier, and (3) the court erred by declining to award prejudgment interest on the back pay award. Because our review ofthe reasonableness offees and cost award is hampered by the trial court's inadequate findings offact and conclusions of law, and the trial court relied on an erroneous view ofthe law when itdenied the multiplier, we


### reverse the fees and cost award and remand for further proceedings on the existing record and consistentwith this opinion. But because the court properly denied Tupas' requestfor prejudgment interest on the back pay award on nonwaiver of sovereign immunity grounds, we affirm the denial ofprejudgment interest. We reverse and remand, in part, and affirm, in part. FACTS Cyma Tupas worked intechnical and scientific positions for the Departmentfrom 1987 until her involuntary disability separation in October 2012. In November 2012, Tupas filed a lawsuit againstthe Department and three 

### supervisors alleging national origin discrimination and retaliation.1 She alleged that, beginning in 2007, less qualified Caucasian workers were selected for promotion over her and the Department retaliated when she complained.



### 1At oral argument, Tupas claimed her retaliation claim was based on her disability. Her amended complaint and thejury instructions make clearthat her retaliation claim related to reporting national origin discrimination. -2-No. 72259-0-1/3 

### InOctober2013, Tupas filed an amended complaint abandoning herclaim for 

### national origin discrimination. She realleged her national origin retaliation claim2 and also alleged two new claims for disability discrimination and failure to accommodate a 

### disability. She alleged that her supervisors failed to accommodate ongoing medical conditions and discriminated against her because ofthose conditions. After 10 days of trial, thejury found the Department liable on the failure to accommodate disability claim and awarded damages for back pay, front pay, and 

### emotional distress totaling $329,580.3 Itfound no liability on her remaining claims. On April30, 2014, Tupas filed motions seeking an award of attorney fees, costs, 

### and prejudgment intereston her pastwages inthe total amountof$543,690. She also requested a contingency multiplier of 1.5 to accountfor the risk factor inherent in a contingency fee case. The multiplierwould have increased the fees award by $271,847.50. The trial court entered 15 findings offact and conclusions of law to support its fees and cost award. Itdeclined to grant the multiplier, reduced the fees and 

### costs requested by 25 percentand declined to award prejudgment interest.4 Tupas appeals the trial court's order on attorney fees, costs, and prejudgment interest.5



### 2Tupas is Filipina. 

### 3Thejuryawarded $96,580 for lost wages and benefits, $225,000 for lost future wages and benefits and $8,000 foremotional distress damages. 4Tupas contends the trialcourt should have allowed the entire fees amount requested or applied the contingent multiplier. 5Our record contains no transcript ofthe hearing on attorney fees and costs. -3-No. 72259-0-1/4

ANALYSIS 

### Tupas contends thatthe trialcourt's findings and conclusions supporting its 25 

### percent reduction of the lodestaraward are insufficient to permit meaningful appellate review.6 We agree. 

### For claims arising underWashington's Law Against Discrimination(WLAD), courts use the lodestar method to calculate reasonable attorneyfees. Martinez v. City 

### ofTacoma. 81 Wn. App. 228, 239, 914 P.2d 86 (1996). Under this method the trial court must determine the numberofhours an attorney reasonably expended inpursuit 

### of the litigation and then multiply that by the attorneys' reasonable hourly rates. Bowers

v. TransamericaTitle Ins. Co.. 100Wn.2d 581, 593-94, 675 P.2d 193 (1983). The 

### lodestarfunctions as the presumptive reasonable fee. Chuong Van Pham v. Seattle Citv Light. 159 Wn.2d 527, 542, 151 P.3d 976 (2007). 

### The hours "reasonably expended" for the purposes of the lodestarcalculation 

### must be spent on claimswith a "common core" of facts and related legal theories to the successful claims. Pham. 159 Wn.2d at 538. A court should discount hours spent on 

### unsuccessful claims, duplicate orwasted effort, or otherwise unproductive time. Pham. 159Wn.2d at 538. Butifefforts to segregate successful and unsuccessful claims are 

### unavailing, atrial courtdoes not abuse itsdiscretion byincluding related claims in a fee award without reduction. Brovles v. Thurston Cntv.. 147 Wn. App. 409, 450,195 P.3d 985 (2008).



### 6There is no dispute on the court's findings ofreasonableness associated with the attorneys' hourly rates. -4-No. 72259-0-1/5 

### When determining an award ofattorneyfees, the court mustenterfindings of fact and conclusions of law. Berrvman v. Metcalf. 177 Wn. App. 644, 657-58, 312 P.3d 745 

### (2013). These "findings must show how the court resolved disputed issues of fact and the conclusions must explain the court's analysis." Berrvman. 177 Wn. App. at 658. An explicithour-by-hour analysis ofeach lawyer's time sheet is not required ifthe award is made with consideration ofthe relevantfactors and the reasons provided forthe amount awarded are sufficientto permit review. Absher Const. Co. v. Kent School Dist. No. 415. 79 Wn. App. 841, 848, 917 P.2d 1086 (1995). "Trial courts must independently decide what represents a reasonable amount of 

### attorney fees; they may not merely rely on the billingrecords ofthe prevailing party's 

### attorney." Maver v. Citv ofSeattle. 102 Wn. App. 66, 79,10 P.3d 408 (2000) (citations omitted). We review a trial court's award of attorney fees for a manifest abuse of discretion. Pham. 159 Wn.2d at 538. A court abuses its discretion when it exercises it in a manifestly unreasonable mannerorbases itupon untenable grounds or reasons. State v. Stenson. 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). But where the trial court has not provided sufficient analysis to permit meaningful appellate review, remand is the appropriate remedy. Brand v. Dep'tof Labor Indus.. 139Wn.2d 659, 67-75, 989 P.2d 1111 (1999). The trial court entered findings offact 10 and 11 supporting its 25 percent reduction ofthe fees requested: It is challenging to determine precisely how much time spent [sic] plaintiff's counsel spent preparing and presenting evidence on the successful, as opposed, to non-successful claims. Certainly, some background as to Ms. Tupas's employment history atthe Department of Ecology would have been relevant background for evaluating the successful failure to accommodate claim. In addition, both parties were entitled to present lay testimony as to incidents that

-5-No. 72259-0-1/6 

### ultimately resulted in Ms. Tupas's disability separation. The courtfinds and concludes thata 25% reduction inthe hours ofpreparation and trial is appropriate to accountfor time spent on the unsuccessful claims thatdo not 

### encompass a "common core offacts and related legal theories" as the failure to accommodate claim. See Steel v. Lundoreen. [96 Wn. App. 773, 982 P.2d 619] (1999). Accord, Pham v. Citv Light. [159 Wn.2d 527,151 P.3d 976] (2007). This would result in an adjusted lodestarof $407,771. Clerk's Papers (CP) at 691. 

### Because ofthe approach taken by the court, the issue of "blockbilling" raised by the Department is unnecessary to address. In addition, the court notes that 

### many ofthe examples raised by the Department as examples of "blockbilling" are fairly specific. CP at 692. These findings show that the trial court did not resolve the "blockbilling"objection 

### by the Department and reduced the fees award by 25 percentto take into accounttime expended on "unsuccessful claims" not involving "common core offacts and related legal theories." Washington courts frequently rely on federal authority involving attorney fees issues when interpreting the WLAD on fee issues. Blair v. Wash. State Univ.. 108 

### Wn.2d 558, 570, 740 P.2d 1379 (1987). Our state cases have consistently relied on Henslev v. Eckerhart. 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), a case involving the Federal Civil Rights Attorney's Fees Awards Act. In Bright v. Frank Russell Investments. No. 72663-3-I, 2015 WL 6681033 (Wn. App. Nov. 2015), we recently addressed a WLADfees dispute where the plaintiff, like Tupas, prevailed on some but not all of her claims. We relied principally on Henslev's analysis ofthe proper relationship between the results obtained to an award ofattorney fees to determine whetherthe reasonably expended hours portion ofthe lodestar calculation was proper.No. 72259-0-1/7

The Court stated: "Itmay well be that cases involving [] unrelated claims 

### are unlikely to arise with greatfrequency. Many civilrights cases will present only a single claim. Inothercases the plaintiff's claims for relief willinvolve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claimby-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the [1 court should focus on the significance ofthe overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." The Supreme Courtwent on to state: 

### "Where a plaintiffhas obtained excellent results,!71 his attorney should recover a fullycompensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may bejustified. Inthese circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised inthe lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of orfailure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." Notably, the Supreme Court made the following observation while rejecting an argumentvery similarto the one Frank Russell now makes: "We agree with the District Court's rejection of "a mathematical approach comparing the total number of issues inthe case with those actually prevailed upon." Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevantfactors. Nor is itnecessarily significantthat a prevailing plaintiff did not receive all the relief requested. For example, a plaintiffwho failed to recover damages but obtained injunctive relief, orvice versa, may recover a fee award based on all hours reasonably expended ifthe relief obtainedjustified that expenditure of attorney time."


### 7Finding of fact 9 states, "The quality of Plaintiff's attorneys on this case was excellent." CPat691. -7-No. 72259-0-1/8 

### Bright. 2015 WL6681033 at *3 (footnotes omitted) (quoting Henslev. 461 U.S. at 435- 36) (emphasis inoriginal). In affirming the trial court's fees award for Bright's successful and unsuccessful 

### claims, we explained that "[l]itigants ingood faith may raise alternative legal grounds for

a desired outcome" and "courts should treat claims as separate lawsuits when they are based on differentfacts and legal theories." Bright. 2015 WL 6681033 at *4 (emphasis in original). Thus, courts should treat claims as separate lawsuits when they are both factually and legally unrelated. Conversely, when a plaintiffprevails and the claims "involve a common core offacts or... related legal theories," the court should not view the lawsuit "as a series of discrete claims." Bright. 2015 WL 6681033 at *4 (quoting Henslev. 461 U.S. at435) (emphasis in original). 

### Itappears that the trial courtdid not weigh the considerations discussed in Henslev when itreduced the lodestaramount by a fixed percentage. Our review of this issue is also hampered by the inadequate findings of fact. The findings offact on this 

### question are conclusory. For example, the trialcourt made no findings that explain how itarrived at the specific percentage reduction and why the unsuccessful claims do not 

### encompass a common core offacts and related legal theories. While we acknowledge that assessing properfees awards can be challenging, "it is thejudge who has watched the case unfold and who is inthe best position to determine which hours should be included inthe lodestarcalculation." Henslev. 461 U.S. at437. "That is why the law 

### requires us to deferto the trialcourt'sjudgment." Pham. 159 Wn.2d at 540. Butthat 

### judgment must be reduced to adequate written findings of fact and conclusions of law

-8-No. 72259-0-1/9 

### that inform an appellate court on how the court resolved disputed factual issues and the conclusions mustexplain the court's analysis. Here the courtentered two conclusory 

### findings to support itsfees reduction and did not resolve the objections raised by the Department.8 InHenslev. the courtemphasized that "the mostcriticalfactor is the degree of

success obtained." 461 U.S. at 436. 

### Application of this principle is particularly important incomplex civil rights litigationinvolving numerous challenges to institutional practices or 

### conditions. This type oflitigation is lengthy and demands many hours of lawyers' services. Although the plaintiffoften may succeed inidentifying some unlawful practices or conditions, the range ofpossible success is 

### vast. Thatthe plaintiffis a "prevailing party" therefore may say little about whetherthe expenditure ofcounsel's time was reasonable in relation to the success achieved. 

### There is no precise rule or formula for making these determinations. The districtcourt may attemptto identifyspecific hours that should be eliminated, or it may simply reduce the award to accountforthe limited success. The court necessarily has discretion inmaking this equitable 

### judgment. This discretion, however, must be exercised inlightof the considerations we have identified. Henslev. 461 U.S. at 436. 

### Regardless of the how the courtexercises its discretion, it mustenterfindings
and conclusions: 

### Itremains important, however, for the district court to provide a concise but clearexplanation of its reasons for the fee award. When an 

### adjustment is requested on the basis of either the exceptional orlimited nature of the reliefobtained by the plaintiff, the district court should make clearthat ithas considered the relationship between the amount of the fee awarded and the results obtained. Henslev. 461 U.S. at 437.



### 8See. Defendant's Objection to Plaintiff's Motion forAward ofAttorney Fees and Cost Bill. CPat547. -9-No. 72259-0-1/10 

### Tupas argues that under Henslev. no reduction was necessary where the trial courtfound it"challenging to determine precisely how much time" Tupas "spent preparing and presenting evidence on the successful, as opposed, to non-successful 

### claims." CP at 691. The Departmentargues that Henslev stands for the proposition that where a court is unable to identify specific attorney hours that should be eliminated, "it may simply reduce the award." Henslev. 461 U.S. at 436-37. On this limited record, neither party is correct. Henslev does not grant a trial court unlimited discretion to reduce a fee award as discussed above. 

### Cases after Henslev indicate that even greater scrutiny will be applied when a trial court imposes a significant reduction to a fee award. In Gates v. Deukmeiian. 987 

### F.2d 1392 (9th Cir. 1992), the court explained that the "meat-axe approach" utilized by the district courtwhen itapplied an across the board percentage reduction in an attorney fee award did notexcuse it from entering findings. Instead, the courtexplained that large reductions to a fee award will be examined more closely: Thus, percentages indeed are acceptable, and perhaps necessary, tools for districtcourts fashioning reasonable fee awards. However, decisions of district courts employing percentages in cases involving large fee requests are subjectto heightened scrutiny and the use of percentages, in any case, neither discharges the district courtfrom its responsibility to set forth a "concise but clear" explanation of its reasons for choosing a given percentage reduction norfrom its duty to independently review the applicant's fee request. Gates, 987 F.2d at 1400. 

### Nor is itenough for a trial courtto merely identify the correct legal rules orfactors 

### implicated by a fees award. InPadgettv. Loventhal. 706 F.3d 1205, 1208 (9th Cir. 2013), the court reasoned, "identifying the legal rules that guide the calculation offees,

-10-No. 72259-0-1/11 and then producing a numberthat is purportedly a resultofthatcalculation, does not allow us to review the decision for an abuse of discretion." Padgett. 706 F.3d at 1208. Indeed, "the mandate that district courts show theirwork is all the more important in

cases where, as here, there are many overlapping claims and a very mixed result." Padgett. 706 F.3d at 1209. In sum, under Berrvman, meaningful findings and conclusions mustbe entered 

### that explain an award ofattorney fees and the considerations for awarding fees 

### discussed inHenslev apply here.9 Cost Award 

### Tupas argues thatthe trial court abused its discretion by reducing her cost award 

### by 25 percent, in the same proportion as the reduced attorneyfees awarded.10 Underthe WLAD, an aggrieved party may recoverthe costs ofthe suit and any other remedy authorized by the United States CivilRights Act. RCW 49.60.030(2); Blair

v. Wash. State Univ.. 108 Wn.2d 558, 572-73, 740 P.2d 1379 (1987). The WLAD provides no direct limitation on the costs recoverable in a discrimination action under chapter49.60 RCW: 

### Any person deeming himselfor herselfinjured by any act in violation of this chapter shall have a civilaction in a court ofcompetentjurisdiction to 

### enjoin further violations, or to recoverthe actual damages sustained by the person, orboth, togetherwith the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter 

### orthe United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).



### 9As noted above, a trialcourt may properly reduce a fee award by a fixed percentage provided itenters findings offact to supportthe reduction and explains its analysis. 

### 10Tupas submitted adequate documentation of her costs expended in this action.

-11-No. 72259-0-1/12 

### RCW49.60.030(2) (emphasis added). InBlair, the Supreme Court adopted "the federal rule allowing more liberal recovery ofcosts ... inorderto further the public policies underlying civil rights statutes." Blair. 108 Wn.2d at573. Those policies include: 

### to make it financially feasible to litigate civil rights violations, to enable 

### vigorous enforcementofmodern civil rights legislation
... to compensate fullyattorneys whose service has benefitted the public interest, and to 

### encourage them to acceptthese cases where the litigants are often poor and the nonjudicial remedies are often nonmonetary. Blair. 108 Wn.2d at 573. Recovery should include expenses that are "reasonable and necessary in the preparation and trial of the case." Blair. 108 Wn.2d at 573-74. This 

### may include "out-of-pocketexpenses fortransportation, lodging, parking, food and telephone expenses, photocopying, and paralegal expenses." Martinez. 81 Wn. App. at 245. Statistician, computerexpenses, supplies, equipment and depositions are all allowable costs for civilrights actions. Blair. 108 Wn.2d at 574. Expertwitnesses are allowable costs. Johnson. 177 Wn. App. 684, 700, 313 P.3d 1198 (2013). Tupas submitted written documentation ofcosts and expenses totaling $18,573. She also submitted her attorney's declaration attesting to the accuracy ofthe costs and 

### expenses incurred by the law firm on behalfofTupas. The court's sole finding offact and conclusion of law on costs states "[plaintiff's costs are reasonable and fully recoverable, inthe same proportion as the attorney fees." CP at 692. The Department's brief devotes no discussion or analysis to the cost issue. We conclude the trial court improperly reduced the total costs by 25 percent without considering the rule allowing for liberal cost recovery in civil rights actions and whether the costs were reasonable and necessary expenditures in the preparation and trial of

-12-No. 72259-0-1/13 

### this litigation. While a fixed percent reduction may be appropriate in the attorneyfees award context, the standards governing award ofcosts is differentforaward ofattorney fees. The trial court based its cost award on an erroneous view of the law. We reverse the cost award. On remand the court should determine the proper amount ofcosts in 

### light ofthe considerations discussed above and make sufficientfindings offact and conclusions of law to support any award of costs. Contingency Multiplier Tupas challenges the trial court's disallowance of a 50 percent (1.5) contingency multiplieron two grounds. First, she argues the court placed undue emphasis on the risk of litigation to the exclusion ofother relevantfactors. Second, she contends the 

### court failed to considerthe risk from the outset oflitigation.11 Indeclining the multiplier, the court concluded thatthis was a low risk case, due in part, to the Department's factual concessions. Indetermining that a multiplier is notwarranted, the court considered, among otherfactors, the Department's concession that Ms. Tupas was disabled. Itwas also conceded that Ms. Tupas was terminated because ofherdisability and because the Department concluded itwould be unable to accommodate her. 

### This was not a particularly high risk claim for plaintiff's counsel to take on. Some ofthe otherfactors considered by the court are briefly summarized in Footnote 2 to this order.'121



### 11 Tupas contends the court should have awarded herthe entire lodestar amount or applied a multiplier. 12 Footnote 2 states as follows: 

### Because ofthe court's approach to the amount offees (See Finding 10), the court did not reduce the award by arguably redundant billing, such as 

### having two lawyers attend some depositions or the conferences that occurred among the three lawyers handling this case. CP at 691. -13-No. 72259-0-1/14

CP at 692. The court may consider adjusting the award to reflecfadditional factors once the lodestar has been calculated. Pham. 156 Wn.2d at 540. A party seeking a deviation from the lodestar amount bears the burden of justifying the deviation. Wash. State Phvsicians Ins. Exch. &Ass'n v. Fisons Corp.. 122 Wn.2d 299, 334, 858 P.2d 1054 (1993). Generally, "adjustments ofthe lodestar are 

### discretionary and rare." Sanders v. State. 169 Wn.2d 827, 869, 240 P.2d 827 (2010). Adjustments to the lodestarfall into two general categories: the contingent nature ofsuccess and the quality ofthe work performed. Pham. 159 Wn.2d at 541. The contingency adjustment is based on the principle that attorneys willrefuse high risk contingency cases unless they receive a premium for the risk of receiving no recovery at all. Pham. 159 Wn.2d at 541. A contingency adjustment should not include the difficulty in establishing the merits ofthe case, since this will be reflected inthe number ofhours an attorney spends on a case and the level of skillthat an attorney must have to prevail. Pham. 159 Wn.2d at 541. Furthermore, a contingency multiplier should be denied where the attorney's hourly rate "comprehends an allowance for the contingent nature ofthe availability offees." Bowers. 100Wn.2d at599. Despite a presumption thatthe lodestar represents a reasonable fee, an exception to the presumption exists in antidiscrimination cases because the law "places


### a premium on encouraging private enforcement and
... the possibility of a multiplier works to encourage civil rights attorneys to accept difficultcases." Berrvman v. Metcalf. 

### 177 Wn. App. 644, 666, 312 P.3d 745 (2013) (quoting Pham. 156 Wn.2d at542). In this type ofcase, "it is possible the lodestarfigure does not adequately accountfor the high

-14-No. 72259-0-1/15 

### risk nature of a case." Berrvman. 177 Wn. App. at 666. Citing Pham. we noted in Berrvman. "Mostofthe [Washington] cases in which multipliers have been considered


### were brought under [liberally construed] remedial statutes with fee-shifting provisions designed to further the statutory purposes." Berrvman. 177 Wn. App. at 682 (listing

cases where plaintiffs ended up with a multiplier). Although the determination ofwhether a lodestar multiplier is warranted is largely

a question left to the discretion ofthe trial court, in reaching its conclusion the court must consider the risk faced by plaintiff's attorneys at the outset ofthe litigation: In adjusting the lodestarto account for this riskfactor, the trial court must assess the likelihood of success at the outset of the litigation. This is necessarily an imprecise calculation and must largely be a matterofthe trial court's discretion. Nevertheless certain guiding principles should be followed [T]o the extent, ifany, thatthe hourly rate underlying the lodestar fee comprehends an allowance for the contingent nature of the availability offees, no further adjustment duplicating that allowance should be made. Pham. 159 Wn.2d at 542 (quoting Bowers. 100Wn.2d at 598-99) (emphasis added). 

### Inconsidering the propriety of a contingency adjustment, we have held that the trial court abuses its discretion when it takes irrelevant factors into account. 

### Tupas claims the court failed to considerthe contingent nature ofsuccess,13 the Department's "nuisance value" offer to settle the case, the Department's stance that Tupas' disability disqualified herfor work inher profession, Tupas speaks English as a second language, and the quality of representation. The Departmentcontends the court considered these factors in its lodestar 

### calculation. Inparticular, the Department argues that a discrimination suit's complexity 

### and the quality ofthe legal services are already factored inthe lodestarcalculation.

13 Tupas' attorneys represented her in this case on a contingencyfee basis. -15-No. 72259-0-1/16 

### See Bowers. 100Wn.2d at593-94, 598-99. The Departmentalso argues that the court's findings offact 12 properly considered the risk of a contingency fee case. As noted above, the rule is well settled. When assessing whether a contingency 

### multiplier is warranted, the trial court must assess the likelihood of success at the outset of litigation. Bowers. 100Wn.2d at 598 (citing Samuel R. Berger, CourtAwarded Attorneys' Fees: Whatis "Reasonable"?, 126 U. Pa. L. Rev. 281, 324-25, on the purpose ofthe contingency adjustment). The trial court's findings offact 12 are inadequate to determine whether it assessed the chances of success at the outset ofthe litigation. The findings mention the court considered "otherfactors" and also referenced footnote 2. The findings offact fail to state what those "otherfactors" are in denying the multiplier. Footnote 2 merely recites that the courtdid not reduce the award for redundant billing because of its fixed 25 percent reduction approach. Itappears the trial court may have disallowed the multiplier based on an 

### improper grounds. Instead of relying on either an assessmentofthe riskfactor or the quality of work, the court relied on an irrelevantfactor—its 25 percentfee reduction 

### approach. "Inconsidering the propriety of a contingency adjustment, we have held that the trial court abuses its discretion when it takes irrelevant factors into account." Pham. 159Wn.2dat543. We do not know ifthe trial court considered Tupas' arguments in supportofthe 

### multiplier. The court's resolution of this issue lacks necessary findings to show how the court resolved disputed issues offact and the conclusions mustexplain the court's analysis.

-16-No. 72259-0-1/17 Given the inadequate findings and questionable conclusions, we remand to the 

### trial courtto reconsiderthe contingency multiplier request and for the entry ofproper 

### findings of fact and conclusions of law that explain the basis for the court's decision.14 Prejudgment Interest Tupas contends that she was entitled to prejudgment interest under chapter 49.60 RCW to the same extent as ifshe prevailed against a private employer. She asserts that RCW 40.60.040(11)'s definition of "employer" includes the Department, indicating the legislature's intentto impose liability on the Departmentto the same extent as a private employer. The trial court denied Tupas' requestfor prejudgment interest on the liquidated portion of her damages. The parties do notdispute that in promulgating the WLAD, Washington waived its 

### sovereign immunity and allowed employees to recoverdamages underthe WLAD againstthe state. The dispute here involves whetherthis waiver applies to prejudgment interest. 

### This question is controlled by Norris v. State. 46 Wn. App. 822, 733 P.2d 231 (1987). A jury awarded the plaintiffsubstantial damages in his personal injury 

### negligence lawsuit againstthe state. In Norris. the court held that when the legislature enacted RCW 4.56.115,15 itwaived sovereign immunity for postjudgment intereston

14We express no opinion on the decision to award or not award a multiplier in this case. That decision remains within the trial's discretion on remand. 

### 15 RCW 4.56.115 currently provides in relevant part: Inany case where a court is directed on review to enterjudgmenton a 

### verdict or inany case where ajudgmententered on a verdict is wholly or partly affirmed on review, intereston thejudgmentor on that portion ofthe -17-No. 72259-0-1/18


### tort claims. Citing the principle ofstatutory construction "[ejxpressio unius estexclusio alterius"—specific inclusions exclude implication—the court held that because the 

### statute waived liability for postjudgment interest, but did not mention prejudgment interest, the state's sovereign immunity remained intact. "The State has not consented 

### to prejudgment interest on tort claims against it." Norris. 46Wn. App. at 825. Tupas fails to address Norris. In Fosterv. Wash. Dep't ofTransp.. 128 Wn. App. 275, 115 P.3d 1029 (2005), the court reaffirmed its holding in Norris. We held that when the legislature enacted RCW 4.56.115, ithad expressly waived sovereign immunity from postjudgment interest on tort claims, 

### while at the same time, by necessary implication, notwaiving sovereign immunity from p_rejudgement interest on tort claims. Since 1987, the legislature has met many times without abrogating or altering Norris. Foster. 128 Wn. App. at 279. The trial court properly declined to award prejudgment interest. Attorney Fees and Costs on Appeal Tupas requests an award of reasonable attorney fees and costs on appeal. Under RCW 49.60.030(2), a successful plaintiff who also prevails on appeal is entitled to an award of reasonable attorney fees and costs on appeal. Martini v. Boeing Co.. 137 Wn.2d 357, 377, 971 P.2d 45 (1999). Because Tupas prevails on appeal, she is entitled to an award ofattorney fees subjectto compliance with RAP 18.1. She is also entitled to an award of costs on appeal.

judgment affirmed shall date backto and shall accrue from the date the verdict was rendered, (emphasis added). -18-No. 72259-0-1/19

CONCLUSION 

### For the reasons discussed above, we reverse the award ofattorney fees and 

### costs and remand for reconsideration of a multiplier and fees and costs on the existing record and for entry ofnecessary findings offact and conclusions of law consistentwith this opinion. The findings must indicate how the court resolved issues offact and the 

### conclusions mustexplain the court's analysis insufficientdetail. We affirmthe trial 

### court's denial ofprejudgment interestunder Norris. We award reasonable attorneyfees and costs conditioned on compliance with RAP 18.1.

WE CONCUR: 

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