INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY, a regional transit authority, dba SOUND TRANSIT, Respondent,

v. AIRPORT INVESTMENT COMPANY, a Washington corporation, dba Hampton Inn, Appellant, HORIZON AIR INDUSTRIES, INC., a Washington corporation; IBEW 77 INTERNATIONAL BOULEVARD, LLC, a Washington limited liabilitycompany; JPMORGAN CHASE BANK, N.C., fka The Chase Manhattan Bank, as Trustee for the Registered Holders of Prudential Securities Financing Corporation Commercial Mortgage Pass-Through Certificates, Series 199-C2; KING COUNTY; and ALL UNKNOWN OWNERS and UNKNOWN TENANTS, Defendants. No. 70958-5- DIVISION ONE UNPUBLISHED OPINION

FILED: January 26, 2015 Appelwick, J. — A jury awarded AlC $225,000 injust compensation for Sound Transit's condemnation of easements across the company's Hampton Inn property. AlC argues that the trial court abused its discretion when it excluded evidence of damagesNo. 70958-5-1/2


### based on Hampton Inn's franchise requirements and business practices. AlC claims the trial court abused its discretion when itconnected the admissibility ofone of AlC's earlier appraisals withthe admissibility ofan earlierSound Transitappraisal. Itcontendsthetrial 

### court abused itsdiscretion by admitting testimonyfromthe company's presidentthat was based on an appraiser's out-of-courtvaluation. Itargues that it is entitled to an award of 

### attorney fees undereither RCW 8.25.070(1)(a) or RCW 8.25.075(1)(b). We affirm. FACTS 

### Airport Investment Company (AlC) owns property just south of SeaTac Airport. The propertyconsists ofapproximately 112,626 squarefeetof land area and isdeveloped with a four story, 130 room hotel. AlC operates the hotel undera Hampton Innfranchise. 

### On July 28, 2011, Sound Transit decided to acquire a permanent guideway easement and a temporary construction easement (TCE) over the AlC property. The permanent guideway easement is to provide for the operation of an elevated light rail line along the property's western boundary. Sound Transit also sought a three year TCE to enable it time to construct the guideway. In November 2012, AlC stipulated to Sound Transit's early possession and use ofthe easements. Inexchange, Sound Transit made a deposit with the clerk of the court. The parties subsequently exchanged valuations by their respective appraisers, but could not agree on a value for the takings and proceeded to trial. After thejury trial, thejury awarded AlC $225,000 injustcompensation—$163,497 for the permanent easement and $61,503 for the TCE. The trial court denied AlC's request for attorney fees and expenses.No. 70958-5-1/3
AlC appeals and seeks reversal, because itclaims itwas denied appropriatejust compensation. It contends that there were prejudicial evidentiary errors at trial that denied itjustcompensation forthe taking. AlC also contends that it is entitled to attorney fees below and on appeal, because either RCW 8.25.075(1 )(b) or RCW 8.25.070(1 )(a) provide for a fee award. DISCUSSION I. Hampton Inn's Franchise Requirements and Business Practices AlC claims that the trial court erred when it prevented AlC's appraiser, Scott Biethan, from supporting his opinion with references to the Hampton Inn franchise agreement and related business practices. Itcontends thatthe evidence is relevant and therefore admissible underthe well-accepted income method ofappraisal. At trial, the parties' testifying appraisers presented two very disparate just compensation values. Both appraisers utilized the income method of appraisal and the 

### sales comparison method inreaching their appraisal values.1 Sound Transit's appraisal expert, Murray Brackett, testified thatthe permanent easementwas worth $113,169, the TCE was worth $61,503, and that there were no severance damages. Severance damages are the amount by which the permanent easement damages the property remainder. In contrast, AlC's testifying expert, Biethan, testified that the permanent easementwas valued at $210,000 and the TCE was worth $32,124. But, unlike Brackett, Biethan also included $1,457,000 in his appraisal representing severance damages. Consequently, Biethan testified that $1,699,124 injust compensation was appropriate.
Murray Brackett, Sound Transit's appraiser, also utilized a cost method.No. 70958-5-1/4
Biethan's original appraisal was even higher as to severance damages. The appraisal was based, in part, on certain franchise requirements and business practices imposed on AlC's hotel operations by the Hampton Inn franchise agreement. In light of Biethan's appraisal calculation methods, Sound Transitfiled a motion in limine to exclude any evidence of franchise operation requirements and business practices currently imposed on AlC's property. It argued that the evidence should be excluded, because business losses and consequential damages are not compensable in eminent domain
actions. AlC responded that evidence ofthe franchise agreements was relevant, because Sound Transit's construction activities would essentially put AlC inbreach of itsfranchise agreement. The franchise agreement requires AlC to provide one parking space per 

### room. AlC argued that Sound Transit's construction would limit the amount of parking spaces available, rendering itunable to comply with the franchise parking requirement. 

### AlC claimed that it would be forced to use valet services during construction to help 

### mitigate the parking issue and that evidence of this mitigation should be admitted. Further, itclaimed that both the temporary and permanent easements would result in a loss ofpropertyvalue, because the hotel would beforced to honorits 100 percentmoney 

### back guaranty more often due to the construction. AlC claimed thatitwas not introducing theevidenceto seeklost profits orconsequentialdamages, but to showthattheproperty's value would decrease. The trial courtgranted Sound Transit's motion in limine. 

### On appeal AlC renews this argument and contends that the trial court's ruling prevented Biethan from adequately supporting and explaining his opinion thatAlC would 

### suffer a great loss for diminution to the remainder of the property after the taking. ItNo. 70958-5-1/5
contends that the evidence is relevant and therefore admissible under the well-accepted 

### income method ofappraisal.2 This court reviews relevance issues for abuse of discretion. City of Bellevue v. 

### Kravik, 69 Wn. App. 735, 741, 850 P.2d 559 (1993). A trial court abuses its discretion only if its decision was manifestly unreasonable, exercised on untenable grounds, or based on untenable reasons. Gorman v. Pierce County. 176Wn. App. 63, 84, 307 P.3d 795 (2013), review denied. 179 Wn.2d 1010, 316 P.3d 495 (2014). 

### AlC cites to cases that it claims endorse the income approach ofappraisal.3 But, whetherthe income approach is an admissible method ofappraisal is not at issue. Both appraisers were allowed to testify to value under the income approach. Acceptance of the income approach to appraisal does not mean that there are no limitations in a condemnation proceeding on thatapproach oron whatis properly recoverable. The issue 

### is whether the trial court properly excluded consideration of AlC's franchise specific damage claims. It is well established law inWashington that an eminentdomain award must relate 

### to the property's market value, not the business conducted there. See Seattle & Mont. R.R. v. Roeder. 30 Wash. 244, 264,70 P. 498 (1902). Itisthepropertyofthe condemnee, notthe business, which is condemned. See Chicago, Milwaukee & Puget Sound R.R. v. 2Sound Transit contends thatAlC failed to preserve this issue for appeal, because it did not present an offer of proof showing how the evidence was relevant to property value as opposed to noncompensable business losses or other consequential damages. 

### But, this is effectively the issue at the heartofthe appeal—whetherthe trial court abused 

### its discretion by excluding AlC's evidence, which AlC contends is both relevant to the 

### property value appraisal and legally admissible. As such, we reach the merits of AlC's argument. 3 State v. Obie Outdoor Adver.. 9 Wn. App. 943, 946-47, 516 P.2d 233 (1973); Tiger OilCorp. v. Yakima County, 158 Wn. App. 553, 563, 242 P.3d 936 (2010).No. 70958-5-1/6


### True. 62Wash. 646, 650, 114 P. 515 (1911). Damages cannotbe allowed for the loss of profits of a business maintained on the property. Renton v. Scott Pac. Terminal, 9 Wn. 

### App. 364, 368-69, 512 P.2d 1137 (1973). Just compensation should reflect the land's objective value and itslesserdesirability to a willing buyer, not its desirability to a specific
owner. See Martin v. Port ofSeattle. 64 Wn.2d 309, 319, 391 P.2d 540 (1964). Further, 

### Washington cases establish that consequential damages, including lost profits, are not available in eminent domain proceedings. See City ofTacoma v. Nisguallv Power Co., 

### 57 Wash. 420, 434, 107 P. 199 (1910); True, 62 Wash, at 650 (1911); Fix v. City of Tacoma, 171 Wash. 196, 200, 17 P.2d 599 (1933). Biethan's original appraisal accounted for specialized Hampton Inn franchise 

### requirements and business practices thatgave rise to franchise specific damages to AlC. 

### This claim is clearly one ofdamage to the specific business operating on the property, not to the property itself. These damages would not apply to every buyer seeking to purchase or rentthe hotel property at fair marketvalue. Only those buying the franchise with the property would be constrained by those same restrictions.4 The case law excludes recovery ofthese damages. The trial court did not abuse its discretion in finding the proposed evidence irrelevant and inadmissible.



### 4AlC argues that because Sound Transit's appraiser accounted for the fact that the hotel property is suitable for maintaining a national brand means that Hampton Innspecific practices should be admitted into evidence also. But, not every potential buyer on the market, even one interested in acquiring a hotel property suitable to support a national brand, is seeking to acquire a Hampton Inn. Evidence that a hotel property is generally of franchise quality is different from evidence that a Hampton Inn business would stand to lose income because of constraining franchise requirements.No. 70958-5-1/7

II. Earlier Appraisals In May 2012, Sound Transit sent AlC a valuation offer of $142,300 for the easements based on an initialappraisal by its appraiser. Sound Transit stated that AlC had the right to obtain its own appraisal at Sound Transit's expense. Consequently, AlC hired Patrick Lamb to provide an appraisal. Lamb valued the easements at $485,000. AlC submitted the Lamb appraisal to Sound Transit in July 2012 with a letter expressing its strong beliefthat itwas entitled to $485,000. On January 2, 2013, AlC told Sound Transit that it would be hiring another appraiser. AlC hired Biethan as its new appraiser. Biethan appraised the permanent easement at $210,000. He also concluded thatthe permanenteasementwould damage 

### the remainderof the property by $1.6 million.5 Sound Transit's appraiser, Brackett, then updated his original appraisal in May 

### 2013. He valued the permanent easement at $113,169 and the TCE at $68,657. Sound Transit made a 30 day offer for the easements on June 14, 2013. Sound 

### Transit's 30 dayofferwas marked "ForSettlementPurposes Only." SoundTransitoffered AlC $463,500 for both the permanent easement and the TCE. Sound Transit's offer remained open until July 17, 2013, thefirstdayof trial. AlC did not acceptSoundTransit's settlement offer, and the valuation case proceeded to trial. 

### Prior to trial, AlC filed a motion in limine requesting that evidence of AlC's initial Lamb appraisal be excluded from trial as work product produced by a consulting expert and as evidence related to settlement discussions. Sound Transit argued that Lamb's
5 At trial, Biethan testified that the permanent easement damaged the property remainder by $1,457,000.No. 70958-5-1/8


### initial appraisal was not protected as a settlement offer, because itwas not labeled as 

### such. Alternatively, it argued that ifthe trial court construed Lamb's appraisal as a part of a settlement offer, then Sound Transit's (Brackett's) first appraisal should also be excluded under the same rationale. The trial courtfound that itwas notconvinced from the record that ithad a sufficient 

### showing for either the work productprivilegeor the settlementprivilegeto apply to Lamb's appraisal. Itsaid that itwas notconvincedeitherapplied, becausethey were both waived when AlC sent Sound Transit Lamb's appraisal without delineating itas "forsettlement purposes only." But, itdeclined to make a finaldetermination regarding either privilege. The trial court finally concluded, "So I'm going to let you folks figure out ifyou want to get into this history. Ifone of you does, the otherone can. All right? I'm going to do atradeoff 

### here." The court further opinedthatitpreferred neitherside addresstheearlierappraisals
as they are unimportant and confusing forthejury to consider. On appeal, AlC argues thatthetrialcourterred when it did not unequivocally grant its motion in limine to exclude Lamb's out-of-court valuation independent of Sound Transit's earlier appraisal. Itclaims that the two positions could not be equated—Sound Transit's appraiser would testify at trial and AlC's would not. AlC argues that it should have been able to impeach Brackettwithoutthe threatthat its initialappraisal would also be admitted. The trial court's ruling on a pretrial motion to exclude evidence is within the discretion ofthe trial court, and is reviewed for abuse ofdiscretion. See Gammon v. Clark Eguip. Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984), affd, 104Wn.2d 613, 707 P.2d 685(1985).

8No. 70958-5-1/9


### The twoappraisals were communicated around the same pointin time(May 2012 and July 2012) and both were communicated in advance of any litigation. Neitherof the initialappraisals were labeled as settlementcommunications on theirfaces. Whetherthe 

### initial appraiserwas a consulting or testifyingexperthas no bearing onwhetherthe earlier appraisals were settlement offers when communicated. Itwas not an abuse ofdiscretion 

### for the trial court to equate them and reservejudgment as to whether they were in fact protected settlement offers.6 

### Even ifit had beenerror, itwas clearly harmless. AlCwanted to impeach Brackett 

### without Lamb's appraisal being admitted intoevidence. AlCwas afforded the opportunity to cross-examine and impeach Brackett regarding his earlierappraisal and itseized that opportunity. And, Lamb did not testify nor was his appraisal admitted. This was AlC's desired outcome when it moved to exclude Lamb's earlier appraisal. The value Lamb provided came in through AlC's president, Sandra Oh, as a result of a separate evidentiary ruling. Even ifthe trial court had explicitly granted AlC's motion in limine, that ruling would not have precluded the trial court's ruling admitting Oh's testimony. Any prejudice from the admission of Lamb's appraisal value turns on the correctness ofthe trial court ruling about Oh's testimony, not on the ruling on AlC's motion in limine. 

### 6Onappeal, AlCargues thatitwas an abuse of discretion for the trial court to deny its motion in limine because itwas "unopposed." In response to AlC's motions in limine below, Sound Transit said that it agreed generally to the exclusion but that itwished to present some caveats and clarifications in light of AlC's arguments about the issues. Sound Transit argued that Lamb's appraisal was not a settlement offer and that if itwas, Brackett's earlier appraisal was too. The trial courtdid not abuse its discretion intreating AlC's motion in limine as an opposed motion. Further, AlC provides no support for its assertion that a trial court abuses its discretion when it does not grant an unopposed motion. RAP 10.3(a)(6); In re Marriage of Fahev. 164 Wn. App. 42, 59, 262 P.3d 128 (2011) (an appellate court does not address arguments that are not supported by cited authorities).No. 70958-5-1/10

III. Sandra Oh's Testimony AlC contends that the trial court erred when it required Oh to provide testimony about her belief of the value of the property that was based on Lamb's out-of-court valuation opinion. AlC claims that Oh's statements were hearsay, because they were 

### based on Lamb's out-ofcourtvaluation. Alternatively, AlC contends that Oh's testimony should have been excluded, because the valuation opinion ofan owner is not admissible when it is based entirely on an expert's valuation. SoundTransitcalled Oh as a witness. Withthejuryexcused, the parties discussed 

### the admissibility ofOh's testimony regarding her belief of the property value. The court questioned Oh: 

### THE COURT: Was there a beliefthat you were entitled to $485,000 forjust compensation? 

### MS. OH:Whateverwas inthe appraisal andwhatthe appraisercame up with with -- THE COURT: Is that an accurate statement, Ms. Oh? Did you 

### believe you're entitled to $485,000? When you said it in July, was that an accurate statement about what your beliefwas? 

### MS. OH: My beliefwas whateverthe appraisersaid was - THE COURT: Yes. Focus on the letter and the date and tell me if this was your belief. 

### MS. OH: Well, that was my belief from the information from the appraiser.

THE COURT:
... I do think it's clear that this is a statement of 

### something that she believed at the time and [Sound Transit] can bring it in as her party admission.

10No. 70958-5-1/11


### AlC then objected, contending that Oh's belief testimony would not satisfy the party admission hearsay exception. The court responded that Oh's beliefwas not hearsay. Oh then testified in front ofthejury. Counsel for Sound Transit asked Oh, "Andas 

### of July 16, 2012, was it AirportInvestment Company's and your belief, strong belief, that Airport Investment Company was entitled to a total of $485,000 forjust compensation." 

### Oh responded that she, "based compensation on whatever the appraiser said." When pressed to answer either "yes" or "no" to Sound Transit's question, Oh responded, "Yes." This court reviews the correct interpretation of an evidentiary rule de novo as a question of law. State v. DeVincentis, 150Wn.2d 11. 17. 74 P.3d 119 (2003). Once the rule is correctly interpreted, the trial court's decision to admit or exclude the evidence is reviewed for an abuse of discretion. Id. As such, whether Oh's testimony is hearsay or inadmissible opinion testimony is first subjectto de novo review. The trial court ruled that Oh's beliefofvalue was not hearsay and was admissible
as a party admission. Itauthorized Oh to testify as to her beliefofvalue. An admission by a party opponent is not hearsay. ER 801(d)(2); Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 859, 292 P.3d 779 (2013). An admission qualifies as an admission by a party opponent ifthe statement is offered against a party and is (i) the party's own 

### statement, (ii) a statement of which the party has manifested an adoption or belief in its truth, or (iii) a person authorized bythe partyto make a statementconcerning the subject, or (iv) a statement by the party's agent acting within the scope of authority to make the statementfor the party. ER 801 (d)(2). Here, Oh's statement regarding her belief of the property's value was clearly 

### offered against AlC as a method ofundercutting a larger appraisal that was admitted at

11No. 70958-5-1/12
trial. There was no dispute below that as president, Oh is a principal authorized to make
a statement concerning AlC's beliefs. In voir dire, Oh admitted to adopting the beliefof the $485,000 value that AlC sent to Sound Transit via letter on July 16, 2012. Oh then repeated in trial that she believed the property was worth $485,000. Oh's beliefofvalue falls within the definition of a party admission under ER 801(d)(2) and is therefore not hearsay. The trial court did not abuse its discretion. 

### Still, AlC argues that Oh's testimony went beyond the scope of ER 801(d)(2)'s exclusion. Even if ER 801(d)(2) did not apply, the testimony that the trial court 

### authorized—Oh's belief of the property value—is simply not hearsay by definition. 

### Hearsay is an out-of-court statementmade to prove the truth ofthe matterasserted. ER 801(c); Inre Pet, of Law, 146 Wn. App. 28, 38, 204 P.3d 230 (2008). Oh's belief ofvalue 

### is quite simply not an out-of-courtstatement.7 The trial court did notabuse its discretion in admitting Oh's belieftestimony as nonhearsay. 

### When Oh referred to Lamb's appraisal while testifying and communicated an out

### of-courtstatement in the process, AlC did notobjector move to strike. AlC claims that it did not need to object again during Oh's questioning, because it had previously objected and was overruled during voir dire. AlC claims that itwas entitled to treat the ruling as 

### the "law of the trial." But, during voir dire, AlC's hearsay objection was overruled as to

7The trial courtdid not rule that it would not be hearsay if Oh testified as to Lamb's 

### appraisal. Similarly, the trial court did not authorize Sound Transit to ask Oh, "Whatdid Lambsaythe property was worth?" which wouldhave elicited a response citing to an outof-court statement. Based on the trial court's ruling and the question Sound Transit 

### asked, Oh could have responded "yes" or "no," withoutevermentioning the foundation of her beliefand without alluding to Lamb's out-of-court appraisal.

12No. 70958-5-1/13
Oh testifying about her belief of value of the property, not as to Lamb's appraisal or statements by Lamb. The issue has not been preserved. AlC also argues that Oh's beliefofthe value ofthe property is inadmissible opinion testimony, because the valuation opinion of an owner is not admissible when it is based entirely on the hearsay ofan expert's valuation. AlC cites to SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 331 P.3d 40 (2014), which relies on ER 701 for this assertion. ER 701 limits a lay witness's testimony to opinions and inferences based on the perception of the witness. InSentinelC3, dissenting shareholderswished to testifyto establishtheirshares' values inorderto withstand summaryjudgment. 181 Wn.2d at 136,142. Relying on ER 701, the court found the shareholders' testimony inadmissible, because itwas not based
on firsthand knowledge or observation and the valuation report of the experts filed with the courtwas never authenticated, jd. at 142. Unlike in SentinelC3, Oh did not offer her opinion ofwhat the property was worth to establish a fact necessary or favorable to her


### case. Rather, Oh's testimony verified that in July when she made a statement ofvalue she believed the statement. Itwas a statement against her interest. The basis ofthat beliefand the correctness ofthat beliefwere not sought by the questions asked. To the 

### extent she volunteered testimony that may have been objectionable under ER 701, AlC did not object on that basis below. Any error is not preserved. The trial court did not abuse its discretion in admitting Oh's testimony. IV. Attorney Fees 

### AlC argues on appeal that the trial court erred when itdenied its request forfees under RCW 8.25.070(1 )(a) or RCW 8.25.075(1 )(b). RCW 8.25.070 sets out the conditions for an award of attorney fees:

13No. 70958-5-1/14 

### [l]fatrial is held for the fixing of the amountofcompensationto be awarded to the owner or party having an interest in the property being condemned, the court shall award the condemnee reasonable attorney's fees and reasonable expertwitness fees in the event of any of the following: (a) If condemnor fails to make any written offer in settlement to condemnee at leastthirtydays prior to commencement ofsaid trial; or 

### (b) Ifthe judgment awarded as a result ofthe trial exceeds by ten percent or more the highest written offer in settlement submitted to those 

### condemnees appearing in the action by condemnor in effect thirty days before the trial. 

### Sound Transit made a 30 day offer to AlC of$463,500 for both easements. AlC 

### did not recover 10 percent more than Sound Transit's 30 day offer at trial, 509,850. At trial, AlCreceived a verdict of$225,000 for both easements. Therefore, underthe plain language ofthe statute, AlC was ineligible to recoverfees. AlC nonetheless contends it isentitledtofees underRCW 8.25.070(1)(a), because 

### Sound Transit failed to satisfy its obligations under the statute by not making a 30 day offer on the actual TCE at issue. AlC implies thatSound Transitdeliberately exaggerated its taking atthe commencementofthe condemnation proceedings inorderto laterpresent thejury with a lessertaking and insulate itselffrom exposure to a fee award under RCW 8.25.070(1 )(b). AlC interprets 8.25.070(1 )(a) to require a 30 day offer on the exact
easement at issue at trial. Statutory interpretation is a legal question that this court reviews de novo. State
v. Costich, 152 Wn.2d 463, 470, 98 P.3d 795 (2004). This court begins its analysis with the plain language employed by the legislature recalling that the primary goal is to give effectto the legislature's intent. Id. Ifthe language is unambiguous, this courtgives effect to that language, jd. The purpose of RCW 8.25.070 is to encourage settlement negotiations before trial and ensure that each side makes a good faith effort to settle.

14No. 70958-5-1/15 

### Olympic PipeLine Co. v. Thoenv. 124Wn. App. 381, 399, 101 P.3d 430 (2004); Port of Seattle v. Rio. 16Wn. App. 718, 720-21, 559 P.2d 18 (1977). The TCE initially provided for a 3,883 square foot easement area. This area 

### included a space Sound Transit's contractor would need only if the guideway column placementrequired a driveway relocation. AlCwas concerned aboutthe size of the TCE, because it would reduce available parking at the hotel. The TCE would eliminate about 

### 25 parking spaces, and itwas also going to make itdifficultto use six moreparking spaces abutting the building. The original TCE provided for a three yearterm ofuse. On June 14, 2013, Sound Transit made a 30 day settlement offer forthe value of the easements. On July 1, 2013, Sound Transit informed AlC that it would change the configuration ofthe TCE, because it no longer needed to relocate the driveway. Sound 

### Transit provided AlC with an updated parcel map and updated right of way plan showing the change on that same day. This modification reduced the TCE area to 2,885 square feet—nearly a 1,000 square foot reduction. Sound Transit's initial offer remained open for more than two weeks after it provided AlC with the revised parcel map and right of way of plan. AlC did not oppose the reduced TCE square footage. TheTCE provided SoundTransitwithexclusiveoccupancyoftheTCE forthethree year period, but allowed AlC to retain the right to use the TCE for all purposes except those inconsistent with Sound Transit's construction activities. Despite the language in theTCE, Sound Transit had communicated to AlC that its construction would only require sporadic use ofthe TCE area during the three year period.

15No. 70958-5-1/16
AlC filed motions in limine prior to trial. In its motions, AlC requested the exclusion ofany evidence that Sound Transitwould use the TCE for a period ofless time than was explicitly setforth inthe easement. Sound Transitresponded that itwould try and change the language in the TCE to limit its exclusive right to use the TCE in order to make the language more consistentwith its anticipated use. The trial court agreed with AlC that if Sound Transit had the right to exclusive use of the TCE area for the entire three year term, itcould not attempt to show the jury that its actual duration of use would be less. The trial court granted AlC's motion, but specifically provided that its ruling did not preclude SoundTransitfrom submitting a revised TCE providingforthe actual anticipated time of use ofthe TCE area. With leave of the trial court, Sound Transit revised the TCE language regarding 

### time ofuse and gave it to AlC, afterjury selection, but before opening arguments. The revised language stillprovidedfor athreeyeareasementterm, but limitedSoundTransit's exclusive use ofthe TCE area to a total of 160 nonconsecutive days during the term. The TCE also required 14 days' notice to AlC before each exclusive use period. 

### AlC filed a posttrial motion for fees and costs based on the argument that when 

### Sound Transit changed the size of the TCE and the durational language ofthe TCE, it either nullified its 30 day offer or abandoned the condemnation proceeding altogether. The trial court denied AlC's motion. 

### The plain language of RCW 8.25.070(1 )(a) says the condemnormustfail to make any written settlement offer in order for the condemnee to be entitled to fees. RCW 

### 8.25.070(1)(a). The onlystatutory requirements arethatthe offermustbe "in settlement,"

16No. 70958-5-1/17 

### "written," and made at least 30 days prior to the beginning of trial. Id. Sound Transit satisfied these requirements. 

### Further, Sound Transitsatisfied the purpose of RCW 8.25.070when itmade its 30 day offer. Sound Transit made an offer based on how much land its contractor believed 

### it would need for the build at that time. By submitting its original 30 day offer, Sound Transit began settlement negotiations so the parties could attempt to work together and 

### avoid trial.8 The offer was more than twice the appraisal value from Sound Transit's appraiser. AlC was free to accept that offer. The evidence does not support that this number was not submitted in good faith. Moreover, there is no evidence that the reason Sound Transit reduced the initial taking after making its initial 30 day offer was to avoid an attorney fee award. The TCE changes were made, in part, in response to complaints from AlC aboutthe TCE's impact
on parking. Sound Transitoriginally believed itwould need the additional propertyfor the TCE to accommodate a driveway relocation. But, the contractor was able to make changes later that enabled Sound Transit's work to have less of an impact on AlC's property. Sound Transit was consistently learning new information from its contractor aboutwhat itwould require for the TCE inthe time leading up to trial. 

### Further, prior to the hearings on the motions in limine, Sound Transit communicated to AlC that it would likelyuse the TCE for a shorter period of time than is set forth in the actual TCE. Consequently, AlC moved to exclude any evidence that 

### 8 Sound Transit's 30 day settlement offer remained open for two weeks after it provided AlC with the revised parcel map and right ofway plan. While Sound Transitdid 

### not present the revised easement to AlC with a full 30 days before trial, the timing of Sound Transit's revision still afforded AlC the opportunity to carry out the intent of the 

### statute—to negotiate with Sound Transit inan effort to avoid trial.

17No. 70958-5-1/18


### Sound Transit would use the TCE for less than the period designated in the easement. Despite the fact that Sound Transit was confident it would not need 160 day exclusive
use oftheTCE—the period designated inthe revised easement—its appraiservalued the TCE for the full three year period. Because of its uncertainties about its construction 

### needs, Sound Transit effectively agreed to pay for more exclusive use ofthe easement than itbelieved itwas actually going to need during construction. There is no indication thattheTCE changeswere notmade ingoodfaith orweremanipulated inorderto prevent the fee statute from being triggered. Moreover, after the size reduction, Sound Transit's appraiser valued the TCE at 

### $61,503—the amount presented at trial. This resulted in roughly a $7,154 reduction in fair market value.9 Inorderto satisfy RCW 8.25.070(1)(b), AlC needed to win a verdict ofatleast$509,850 attrial. Thejury awarded AlC $163,497 forthe permanenteasement 

### and $61,503 for the TCE. Even ifBrackett's higher TCE appraisal had been presented to the jury and accepted, that $7,154 increase would not have taken the judgment anywhere near the offer, let alone 10 percent above it. Because the combined highest appraisals of the permanent easement and the TCE were substantially below Sound Transit's offer, AlCs hope ofrecovery ofattorney fees was solely dependent on recovery of sufficient severance damages. The trial court did not err when it did not award AlC attorney fees under RCW 8.25.070(1).



### 9AlC's appraiser valued the original TCE at $56,000. Afterthe reduction, AlC's appraiser valued the TCE at $32,124—a $23,876 reduction. This comparatively larger reduction in value by AlC's appraiser accounts for both the reduction of square footage for the TCE and accounts for the elimination of an erroneous additional fourth year previously included inthe calculation.

18No. 70958-5-1/19 Alternatively, AlC argues that it is entitled to fees and costs under RCW 

### 8.25.075(1 )(b), because the change of the TCE constitutes an abandonment of the 

### original taking. It contends that Sound Transit abandoned its taking by materially modifying the TCE duringtrial and put before the jury a different taking than the one for which it petitioned and obtained possession and use. AlCargues this is so, becausethe property Sound Transitis actually condemning is smallerandfor a shorteramountof time than itwas at the time ofthe 30 day offer. AlCcites to a 25 percentdecrease in the area 

### of the TCE and a reduction in duration of two and a halfyears. RCW 8.25.075(1) provides: 

### A superior court having jurisdiction of a proceeding instituted by a condemnor to acquire real property shall award the condemnee costs 

### including reasonable attorneyfees and reasonable expertfees if:
(b) The proceeding is abandoned by the condemnor. 

### A plain language reading of this statute indicates that AlC's argument is without merit. The statute says that the court will award fees and costs if the comdemnor abandons the proceeding. Here, there is no indication that Sound Transit abandoned the condemnation proceeding. Infact, Sound Transit pursued the condemnation through to judgment. Further, even ifthe statute were construed to allowfor abandonment ofthe original easement instead ofthe proceeding, AlC has not provided supportfor its argument that 

### abandonment is present in this case. AlC relies solely on authority from other

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### jurisdictions.10 The case law that AlC relies on interprets abandonmentto mean a change
more significant than the changes made to the TCE here. All of the cases from other 

### jurisdictions cited by AlC involve much more substantial substitutions ofproperty rights or
more substantial reductions inthe amount ofproperty taken. Here, the permanent easement—the more substantial taking—did not change. The overall TCE location did not change, the nature ofthe TCE did not change, and the land area was reduced by about 25 percent. This resulted in a $7,154 reduction in Brackett's highest TCE appraisal. Further, the duration of the exclusive use language
was simply clarified without changing either party's appraisals. AlC claims thatthe TCE duration was reduced by 2.5 years, butthis mischaracterizes the changes Sound Transit made to the TCE. The revised TCE did reduce the amount ofexclusive use to 160 days, 

### but the duration ofthe easement was still for three years. The modification ofthe TCE


### was less significant here than the modifications that were found to be abandonments in 

### the otherjurisdictions. The trial court did not err in denying AlC's posttrial motion for attorney fees and costs under RCW 8.25.075(1 )(b). 

### Additionally, AlC argues that it is entitled to attorney fees on appeal pursuant to RAP 18.1 if it prevails. A prevailing party may recover attorney fees only if provided by 

### statute, agreement, or equitable principles. Tacoma Northpark, LLC v. NW, LLC, 123 10 Dep't of Transp. v. N. Trust Co.. 59 III. App. 3d 1053, 1054, 376 N.E.2d 286 

### (1978) (areataken reduced to one-sixth ofarea encompassed in original petition); County of Kern v. Galatas, 200 Cal. App. 2d 353, 354-55, 19 Cal. Rptr. 348 (1962) (originalarea 

### taken reduced by 35 percent and the taking changed from oil, gas, hydrocarbon, and mineral interest to mere right of entry); Montgomery County v. McQuarv, 26 Ohio Misc. 239, 240, 265 N.E.2d 812 (1971) (sewer route changed to take different course across 

### different part of property); FKM P'ship. LTD v. Bd. of Regents ofthe Univ. of Houston Svs.. 255 S.W. 3d 619, 624, 51 Tex. Sup. Ct. J. 989 (2008) (amount of property taken reduced by more than 97 percent).

20No. 70958-5-1/21 

### Wn. App. 73, 84, 96 P.3d 454 (2004). As AlC is not the prevailing party, it is not entitled to attorney fees on appeal. 

### The trial court did not abuse its discretion in making the evidentiary rulings challenged by AlC. The trial court did not err when itdenied AlC's motion for attorney fees and expenses. We affirm.

'^^€^ WE CONCUR:



### J

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