    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CENTRAL PUGET SOUND REGIONAL
TRANSIT AUTHORITY, a regional transit                 No. 70958-5-
authority, dba SOUND TRANSIT,
                                                      DIVISION ONE
                     Respondent,
                                                      UNPUBLISHED OPINION
                     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 liability company;
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.                      FILED: January 26, 2015


        Appelwick, J. — A jury awarded AlC $225,000 in just 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 damages
No. 70958-5-1/2




based on Hampton Inn's franchise requirements and business practices. AlC claims the

trial court abused its discretion when it connected the admissibility of one of AlC's earlier

appraisals with the admissibility of an earlier Sound Transit appraisal. It contends the trial

court abused its discretion by admitting testimony from the company's president that was

based on an appraiser's out-of-court valuation. It argues that it is entitled to an award of

attorney fees under either 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 property consists of approximately 112,626 square feet of land area and is developed

with a four story, 130 room hotel. AlC operates the hotel under a Hampton Inn franchise.

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 of the easements. In exchange, 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 the jury trial, the jury awarded AlC $225,000 in just compensation—$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 it claims it was denied appropriate just

compensation.     It contends that there were prejudicial evidentiary errors at trial that

denied it just compensation for the 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. It contends that the evidence is relevant and

therefore admissible under the well-accepted income method of appraisal.

       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 in reaching their appraisal values.1 Sound Transit's appraisal

expert, Murray Brackett, testified that the permanent easement was 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

easement was 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 in just 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 Transit filed 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 of the franchise agreements was relevant, because

Sound Transit's construction activities would essentially put AlC in breach of its franchise

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 it unable 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, it claimed that both the temporary and permanent easements would result in a

loss of property value, because the hotel would be forced to honor its 100 percent money

back guaranty more often due to the construction. AlC claimed that itwas not introducing

the evidence to seek lost profits or consequential damages, but to show that the property's

value would decrease. The trial court granted 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 that AlC would

suffer a great loss for diminution to the remainder of the property after the taking. It
No. 70958-5-1/5




contends that the evidence is relevant and therefore admissible under the well-accepted

income method of appraisal.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. 176 Wn. 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 of appraisal.3 But,

whether the income approach is an admissible method of appraisal 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 that approach or on what is properly recoverable. The issue

is whether the trial court properly excluded consideration of AlC's franchise specific

damage claims.

       It is well established law in Washington that an eminent domain 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). It is the property of the condemnee,

not the business, which is condemned. See Chicago, Milwaukee & Puget Sound R.R. v.


        2Sound Transit contends that AlC 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 heart of the appeal—whether the 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 Oil Corp. v. Yakima County, 158 Wn. App. 553, 563, 242 P.3d 936 (2010).
No. 70958-5-1/6



True. 62 Wash. 646, 650, 114 P. 515 (1911). Damages cannot be 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 its lesser desirability to a willing buyer, not its desirability to a specific

owner. See Martin v. Port of Seattle. 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 of Tacoma 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 that gave rise to franchise specific damages to AlC.

This claim is clearly one of damage 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 rent the hotel property at fair market value. Only those buying the franchise

with the property would be constrained by those same restrictions.4               The case law

excludes recovery of these damages.

       The trial court did not abuse its discretion in finding the proposed evidence

irrelevant and inadmissible.




       4 AlC 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 Inn-
specific 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 initial appraisal 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 belief that it was 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 that the permanent easement would damage

the remainder of 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 day offer was marked "For Settlement Purposes Only." Sound Transit offered

AlC $463,500 for both the permanent easement and the TCE. Sound Transit's offer

remained open until July 17, 2013, the first day of trial. AlC did not accept Sound Transit'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 it was not labeled as

such. Alternatively, it argued that if the 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 court found that it was not convinced from the record that it had a sufficient

showing for either the work product privilege or the settlement privilege to apply to Lamb's

appraisal. It said that itwas not convinced either applied, because they were both waived

when AlC sent Sound Transit Lamb's appraisal without delineating it as "for settlement

purposes only." But, it declined to make a final determination regarding either privilege.

The trial court finally concluded, "So I'm going to let you folks figure out if you want to get

into this history. Ifone of you does, the other one can. All right? I'm going to do a tradeoff

here." The court further opined that it preferred neither side address the earlier appraisals

as they are unimportant and confusing for the jury to consider.

       On appeal, AlC argues that the trial court erred 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. It claims 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 Brackett without the threat that its initial appraisal would also

be admitted.

       The trial court's ruling on a pretrial motion to exclude evidence is within the

discretion of the trial court, and is reviewed for abuse of discretion. See Gammon v. Clark

Eguip. Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984), affd, 104 Wn.2d 613, 707 P.2d

685(1985).


                                                  8
No. 70958-5-1/9



       The two appraisals were communicated around the same point in time (May 2012

and July 2012) and both were communicated in advance of any litigation. Neither of the

initial appraisals were labeled as settlement communications on their faces. Whether the

initial appraiser was a consulting or testifying expert has no bearing on whether the earlier

appraisals were settlement offers when communicated. It was not an abuse of discretion

for the trial court to equate them and reserve judgment as to whether they were in fact

protected settlement offers.6

       Even if it had been error, it was clearly harmless. AlC wanted to impeach Brackett

without Lamb's appraisal being admitted into evidence. AlC was afforded the opportunity

to cross-examine and impeach Brackett regarding his earlier appraisal and it seized 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 if the 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 of the

trial court ruling about Oh's testimony, not on the ruling on AlC's motion in limine.


       6 On appeal, AlC argues that itwas an abuse of discretion for the trial court to deny
its motion in limine because it was "unopposed." In response to AlC's motions in limine
below, Sound Transit said that it agreed generally to the exclusion but that it wished 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 it was,
Brackett's earlier appraisal was too. The trial court did not abuse its discretion in treating
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-of court valuation. Alternatively, AlC contends that Oh's testimony

should have been excluded, because the valuation opinion of an owner is not admissible

when it is based entirely on an expert's valuation.

        Sound Transit called Oh as a witness. With the jury excused, the parties discussed

the admissibility of Oh's testimony regarding her belief of the property value. The court

questioned Oh:

                THE COURT: Was there a belief that you were entitled to $485,000
        for just compensation?

               MS. OH: Whatever was in the appraisal and what the appraiser came
        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 belief was?

               MS. OH: My belief was whatever the appraiser said 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.




                                                10
No. 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 belief was not hearsay.

       Oh then testified in front of the jury. Counsel for Sound Transit asked Oh, "And as

of July 16, 2012, was it Airport Investment Company's and your belief, strong belief, that

Airport Investment Company was entitled to a total of $485,000 for just 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 subject to de novo review.

       The trial court ruled that Oh's belief of value was not hearsay and was admissible

as a party admission. It authorized Oh to testify as to her belief of value. 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 if the 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 by the party to make a statement concerning the subject,

or (iv) a statement by the party's agent acting within the scope of authority to make the

statement for 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 of undercutting a larger appraisal that was admitted at


                                                 11
No. 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 belief of

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 belief of value

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 statement made to prove the truth of the matter asserted. ER

801(c); In re Pet, of Law, 146 Wn. App. 28, 38, 204 P.3d 230 (2008). Oh's belief of value

is quite simply not an out-of-court statement.7 The trial court did not abuse its discretion

in admitting Oh's belief testimony as nonhearsay.

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

of-court statement in the process, AlC did not object or 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 it was entitled to treat the ruling as

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




       7 The trial court did 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, "What did
Lamb say the property was worth?" which would have elicited a response citing to an out-
of-court statement. Based on the trial court's ruling and the question Sound Transit
asked, Oh could have responded "yes" or "no," without ever mentioning the foundation of
her belief and without alluding to Lamb's out-of-court appraisal.

                                                  12
No. 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 belief of the value of the property is inadmissible opinion

testimony, because the valuation opinion of an owner is not admissible when it is based

entirely on the hearsay of an 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. In SentinelC3, dissenting shareholders wished to testify to establish their shares'

values in order to withstand summary judgment. 181 Wn.2d at 136,142. Relying on ER

701, the court found the shareholders' testimony inadmissible, because it was not based

on firsthand knowledge or observation and the valuation report of the experts filed with

the court was never authenticated, jd. at 142. Unlike in SentinelC3, Oh did not offer her

opinion of what 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 of value

she believed the statement. It was a statement against her interest. The basis of that

belief and the correctness of that belief were 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 it denied its request for fees

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:


                                                13
No. 70958-5-1/14


       [l]f a trial is held for the fixing of the amount of compensation to 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 expert witness fees in the event of any of the following:

            (a) If condemnor fails to make any written offer in settlement to
       condemnee at least thirty days prior to commencement of said trial; or

              (b) If the judgment awarded as a result of the 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, AlC received a verdict of $225,000 for both easements. Therefore, under the plain

language of the statute, AlC was ineligible to recover fees.

       AlC nonetheless contends it is entitled to fees under RCW 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 that Sound Transit deliberately exaggerated

its taking at the commencement of the condemnation proceedings in order to later present

the jury with a lesser taking and insulate itself from 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

effect to the legislature's intent. Id. Ifthe language is unambiguous, this court gives 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.


                                                 14
No. 70958-5-1/15



Olympic Pipe Line Co. v. Thoenv. 124 Wn. App. 381, 399, 101 P.3d 430 (2004); Port of

Seattle v. Rio. 16 Wn. 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

placement required a driveway relocation. AlC was concerned about the 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 itdifficult to use six more parking spaces

abutting the building. The original TCE provided for a three year term of use.

      On June 14, 2013, Sound Transit made a 30 day settlement offer for the value of

the easements. On July 1, 2013, Sound Transit informed AlC that it would change the

configuration of the 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.

      The TCE provided Sound Transit with exclusive occupancy of the TCE for the three

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

the TCE, Sound Transit had communicated to AlC that its construction would only require

sporadic use of the TCE area during the three year period.




                                               15
No. 70958-5-1/16




      AlC filed motions in limine prior to trial. In its motions, AlC requested the exclusion

of any evidence that Sound Transit would use the TCE for a period of less time than was

explicitly set forth in the easement. Sound Transit responded that it would try and change

the language in the TCE to limit its exclusive right to use the TCE in order to make the

language more consistent with 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, it could 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 Sound Transit from submitting a revised TCE providing for the actual anticipated

time of use of the TCE area.

       With leave of the trial court, Sound Transit revised the TCE language regarding

time of use and gave it to AlC, after jury selection, but before opening arguments. The

revised language still provided for a three year easement term, but limited Sound Transit's

exclusive use of the 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 of the 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 condemnor must fail to make

any written settlement offer in order for the condemnee to be entitled to fees.        RCW

8.25.070(1 )(a). The only statutory requirements are that the offer must be "in settlement,"




                                                16
No. 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 Transit satisfied the purpose of RCW 8.25.070 when it made 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 about the TCE's impact

on parking. Sound Transit originally believed it would need the additional property for 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

about what it would require for the TCE in the time leading up to trial.

       Further, prior to the hearings on the motions in limine, Sound Transit

communicated to AlC that it would likely use 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 of way plan. While Sound Transit did
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 in an effort to avoid trial.

                                                17
No. 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 of the TCE—the period designated in the revised easement—its appraiser valued 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 of the easement

than it believed it was actually going to need during construction. There is no indication

that the TCE changes were not made in good faith or were manipulated in order to 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 In order to satisfy RCW 8.25.070(1 )(b), AlC needed to win a verdict

of at least $509,850 at trial. The jury awarded AlC $163,497 for the permanent easement

and $61,503 for the TCE. Even if Brackett'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 of recovery of attorney 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).




       9 AlC's appraiser valued the original TCE at $56,000. After the 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 in the calculation.


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No. 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 during trial and put before the jury a different taking than the one for

which it petitioned and obtained possession and use. AlC argues this is so, because the

property Sound Transit is actually condemning is smaller and for a shorter amount of time

than it was at the time of the 30 day offer. AlC cites to a 25 percent decrease in the area

of the TCE and a reduction in duration of two and a half years.

         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 attorney fees and reasonable expert fees 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. In fact, Sound Transit pursued the condemnation through to

judgment.

         Further, even if the statute were construed to allow for abandonment of the original

easement instead of the proceeding, AlC has not provided support for its argument that

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




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No. 70958-5-1/20




jurisdictions.10 The case law that AlC relies on interprets abandonment to 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 of property rights or

more substantial reductions in the amount of property taken.

       Here, the permanent easement—the more substantial taking—did not change.

The overall TCE location did not change, the nature of the 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 that the TCE

duration was reduced by 2.5 years, but this mischaracterizes the changes Sound Transit

made to the TCE. The revised TCE did reduce the amount of exclusive use to 160 days,

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

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

the other jurisdictions. 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) (area taken reduced to one-sixth of area encompassed in original petition); County
of Kern v. Galatas, 200 Cal. App. 2d 353, 354-55, 19 Cal. Rptr. 348 (1962) (original area
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 of the 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).


                                                20
No. 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 it denied AlC's motion for attorney

fees and expenses. We affirm.



                                                            '^^€^


WE CONCUR:




                                                       J




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