                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                        May 12, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 KEVIN DOLAN and a class of similarly                             No. 52253-5-II
 situated individuals,

                              Respondent,

        v.

 KING COUNTY, a political subdivision of the                UNPUBLISHED OPINION
 State of Washington,

                              Respondent,

 DEPARTMENT OF RETIREMENT
 SYSTEMS,

                              Appellant.

       CRUSER, J. — In this class action litigation, the superior court awarded attorney fees and

costs to class counsel based on the common fund doctrine. On appeal, the Department of

Retirement Systems (DRS) argues that the superior court erred by exempting class member Judge

Laura Inveen from paying a pro rata share of the class’s common fund attorney fees. DRS argues

that the exemption violates the common fund doctrine principles set forth in Bowles v. Department

of Retirement Systems, 121 Wn.2d 52, 847 P.2d 440 (1993), and CR 23(b)(1) and (2). DRS also

requests guidance on how it should implement the process for assessing common fund attorney
No. 52253-5-II


fees for other class members who, like Inveen, are members of the judiciary or may become

members of the judiciary in the future.

        We affirm and hold that the superior court did not abuse its discretion when providing

equitable relief to Inveen by ordering DRS to not reduce Inveen’s pension due to the common fund

attorney fees, thereby exempting Inveen from payment of attorney fees. Additionally, we decline

DRS’ request to provide guidance on how it should implement the process for assessing the

common fund attorney fees.

                                             FACTS

                                          I. BACKGROUND

        In 2006, Kevin Dolan filed a class action lawsuit against King County (County) on behalf

of all employees of public defender agencies with which the County had contracted to provide

legal defense services. The complaint alleged that the class members were entitled to membership

and benefits in the Public Employees’ Retirement System Plan (PERS), but that the County had

not reported their services to DRS or made retirement contributions on their behalf. The class

members requested declaratory and injunctive relief concerning the County’s obligation to provide

PERS benefits and an order requiring the County to make all contributions needed to fund those

benefits. The superior court certified the class as a mandatory injunctive class action under CR

23(b)(1) and (2).

        The case proceeded to a bench trial. The superior court ruled that the class members should

be considered county employees for purposes of receiving coverage under PERS. Based on its

decision, the court issued a permanent injunction requiring the County to enroll class members in

PERS.


                                                 2
No. 52253-5-II


         The County appealed to our Supreme Court. Dolan v. King County, 172 Wn.2d 299, 310,

258 P.3d 20 (2011) (Dolan I). The court affirmed the superior court, holding that class members

were county employees for purposes of PERS and were entitled to be enrolled in PERS. Id. at

320. The court remanded for further proceedings regarding remedies. Id. at 322.

         On December 18, 2012, the County and the class reached a settlement. The County agreed

to make retroactive payments to PERS on behalf of the County as the employer and on behalf of

the class members as the employees without receiving reimbursements from the class. The County

also agreed to make payments from the date that the County should have enrolled the class

members. Pursuant to the settlement, the class members received retroactive benefit eligibility

and service credits in PERS from the date that the County should have enrolled the class members.

         DRS was not a party to the settlement. Shortly after the superior court’s preliminary

approval of the settlement agreement, DRS moved for full intervention. The court allowed DRS

limited intervention to object to the settlement and to have the right to appeal. The court entered

a final order approving the settlement over DRS’ objections.

         DRS appealed the superior court’s approval of the settlement agreement to this court.

Dolan v. King County, No. 44982-0-II (Wash. Ct. App. Nov. 18, 2014) (unpublished),

http://www.courts.wa.gov/opinions/pdf/D2%2044982-0-II%20%20Unpublished%20Opinion

.pdf (Dolan II). DRS argued that the Administrative Procedure Act1 (APA) removed the superior

court’s original subject matter jurisdiction for matters affecting PERS, and the court erred by

denying DRS’ motion to intervene and in ruling that the settlement agreement bound DRS. We



1
    Ch. 34.05 RCW.


                                                3
No. 52253-5-II


affirmed the superior court’s original jurisdiction but reversed and remanded the court’s order

denying DRS’ motion for full intervention and final order approving the settlement agreement.

        On remand, the class moved to modify the superior court’s April 2009 permanent

injunction to clarify issues of service credit for the class members. On June 5, 2015, the court

entered an order modifying the permanent injunction. The County and DRS agreed to its entry.

The modification order stated that the class was entitled to receive retroactive PERS service credit

for work as county employees between January 1, 1978 and March 31, 2012. Additionally, the

County would be required to pay DRS retroactive employer and employee contributions of

approximately $32 million. The order did not resolve the issue of whether DRS could assess

interest on retroactive service credit contributions. The order also did not resolve the issue of

whether class members had an obligation to pay attorney fees or the method of paying attorney

fees.

        The class moved for approval of an attorney fee award of $12,554,000 pursuant to the

common fund doctrine. On August 28, 2015, the superior court entered an order granting the

class’s request. Under this theory, the court ordered the attorney fees to be taken from the class

members’ overall pension benefits recovered through the suit. The court ordered the attorney fees

to be immediately paid by the County from employee PERS contributions that the County would

have otherwise paid to DRS. The reduced pension benefits created a reduction from each class

member’s pension.

        Class members’ monthly pension checks would then be reduced by a maximum of about

13 percent to account for each class member’s pro rata share of the attorney fees from the common

recovery. The reduction assured that DRS would be repaid by the class as a whole for the attorney


                                                 4
No. 52253-5-II


fees paid by the County from the contributions to be made by the County. The class members

were also provided the option to repay DRS by paying their pro rata share of the attorney fees in a

lump sum to DRS directly before receiving monthly pension benefits.

       The County and DRS disputed whether the County should be required to pay interest in

the amount of about $64 million on the retroactive contributions (omitted PERS contributions) for

the service credits. DRS also contended that under the APA, the superior court did not have subject

matter jurisdiction to address whether the County was required to pay interest because it had not

exhausted all administrative remedies. The court disagreed. The court ruled that it had subject

matter jurisdiction to decide the interest issue and it could exercise equitable authority in ordering

a fair remedy. After considering the equities of each party, the court assessed the County interest

in the amount of $10.5 million on retroactive contributions. The remaining interest would be

socialized among PERS participants.

       DRS appealed the superior court’s order on jurisdiction and assessment of interest, arguing

that the court erred in applying equitable principles to determine the County’s interest obligation,

and in the alternative, equity did not support imposing only a portion of the interest. Dolan v. King

County,     No.    49876-6-II      (Wash.     Ct.       App.   May     1,    2018)     (unpublished)

http://www.courts.wa.gov/opinions/pdf/D2%2049876-6-II%20Unpublished%20Opinion.pdf

(Dolan III). We held that the superior court had subject matter jurisdiction regarding the interest

matter. We also held that the superior court did not err in exercising its exclusive and equitable

authority in ruling that the County was required to pay a portion of the interest on retroactive PERS

contributions.




                                                    5
No. 52253-5-II


                                      II. CURRENT APPEAL

       On March 11, 2016, the superior court entered an agreed order implementing the class

repayment plan for pension contributions used for the attorney fees. The court ordered the Office

of the State Actuary (OSA) to calculate the amount each class member owed in common fund

attorney fees by calculating the total pension liability (value) added by service credits obtained

though the Dolan litigation. The court also ordered OSA to calculate a reduction percentage to be

applied to each class member’s pension.

       On August 30, 2017, the superior court entered an agreed order that approved notices to be

sent to class members. The notices included an invoice for each class member’s pro rata share of

attorney fees owed and the two payment options. The court’s order also provided that if DRS

learned of additional class members before sending the notices, DRS and class counsel must

estimate the pro rata share of the newly identified members. Subsequently, DRS sent each of the

635 class members a notice specific to that member.

       On June 26, 2017, the class brought a motion on behalf of Julia Garratt, a class member

and a King County Superior Court Judge. In addition to receiving PERS benefits as a result of the

Dolan litigation, Garratt was a participant in the judicial benefit multiplier program. Under that

program, a judge earns 3.5 percent of their average final salary each year of service with up to a

maximum of 75 percent of their final salary. RCW 41.40.404. In contrast, under the PERS

program2 Garratt selected, members earn 2 percent of their average ﬁnal salary for each year of

service, with no maximum percentage. RCW 41.40.620.


2
 PERS offers three plans: “Plan 1,” “Plan 2,” and “Plan 3.” See RCW 41.40.005; former RCW
41.40.010 (33), (34), (35) (2003). Garratt selected PERS Plan 2.


                                                6
No. 52253-5-II


       Stated differently, the judicial benefit multiplier program allows a judge to increase the

benefit multiplier used in their retirement benefit calculation for their judicial service. However,

benefits are capped at 75 percent of a judge’s average final salary. This program allows a judge

to accrue service credit3 and benefits faster in exchange for a lower benefit cap.

       Garratt consulted DRS and learned that with about 6 more years of judicial service, plus

her previous PERS service credits received outside of the Dolan litigation, she would reach the

maximum pension amount. Her additional 6 years of service as a judge would increase her pension

by about 21 percent, which would bring her to the maximum of 75 percent of her average ﬁnal

salary. Therefore, if Garratt worked 6 more years as a judge, her 12 years of PERS service credits

obtained through the Dolan litigation would have no impact on her pension.

       The class moved to revise Garratt’s and other similarly situated class members’

responsibility for paying a portion of the common fund attorney fees. The class asked the court to

require Garratt and other similarly situated class members to pay only the attorney fees to the

extent that the service credit received through the Dolan litigation actually enhanced their

pensions. In Garratt’s case, this would only be if she retired before she reached the maximum of

her average final salary. The superior court denied the motion.

       On May 21, 2018, the class moved to correct the notices and pro rata attorney fee amounts

for five class members—Anne Dederer, Robin Jones, Carolyn Frimpter, Linda Moland, and

Inveen. Dederer and Jones received notices from DRS, but the notices did not include all their


3
  “Service” for PERS Plan 2 and Plan 3 members is defined as periods of employment by a member
in an eligible position or positions for one or more employers for which compensation is paid.
Former RCW 41.40.010(9)(a), (b). For example, compensation earned in full-time work for 90 or
more hours in one month constitutes one service credit month. Id.


                                                 7
No. 52253-5-II


service credit. Dederer’s notice was missing 68 months of service credit and Jones’s notice was

missing 22 months of service credit. The notices thus understated their pro rata share of the

common fund attorney fees. Frimpter and Moland did not receive any notice from DRS because

the parties did not know of their existence at the time DRS sent the notices. The County

transmitted 15 months of service credit to Frimpter and 63 months service credit to Moland.

Because DRS did not send Frimpter and Moland a notice, they were not assessed their pro rata

share of the common fund attorney fees even though they received service credits due to the Dolan

litigation.

        In regards to Inveen, the class argued that Inveen should not be assessed a pro rata share of

the common fund attorney fees. Inveen worked as a public defender in 1980, 1981, and a small

part of 1982. Several years before she received the notice, Inveen filled out a questionnaire sent

from class counsel where she disclosed her work history.          Inveen did not have any other

involvement in the litigation. As a result of the litigation, the County transmitted 27 months of

service credit to Inveen. Inveen received a notice from DRS stating that she owed $14,482 in

attorney fees for the service credits she received from the Dolan litigation.4

        The class argued that Inveen should be exempt from paying attorney fees because Inveen

could not beneﬁt from the litigation. Like Garratt, Inveen participated in the judicial beneﬁt

multiplier program. However, when she received the notice from DRS regarding the attorney fees



4
  Although DRS does not concede this point, Inveen’s pro rata share of the attorney fees appears
to be miscalculated. In its motion, the class notes that another superior court judge, who is about
the same age as Inveen and who worked as a public defender at around the time as Inveen, was
assessed a pro rata share of about $5,000 in attorney fees. The other superior court judge also
worked as a public defender for five months longer than Inveen.


                                                 8
No. 52253-5-II


owed, Inveen’s pension was at the maximum 75 percent of her average ﬁnal salary without

receiving the service credit for her two plus years of service as a public defender. Because Inveen’s

pension had reached its maximum, any service credit that she was entitled to as a result of the

Dolan litigation did not have any impact on her pension. Thus, unlike Garratt, Inveen did not

receive any benefit from the litigation.

       The class argued that it was unfair to the class for Dederer, Frimpter, Jones, and Moland to

receive Dolan service credit increasing the value of their PERS pensions but have a reduced

responsibility or no responsibility for attorney fees associated with the Dolan litigation. The class

further argued that it was equally unfair to assess Inveen with attorney fees when she received no

benefit from the Dolan litigation. The class asked the superior court to direct DRS to send

corrected notices to Dederer and Jones and send notices to Frimpter and Moland assessing their

pro rata share of attorney fees.

       The class also asked the superior court to rule that Inveen’s PERS pension not be reduced

at retirement due to the common fund attorney fees because she received no beneﬁt from the Dolan

litigation. The class reasoned that assessment of the correct amount of attorney fees for Dederer

and Jones and assessment of attorney fees to Frimpter and Moland would remedy any shortage to

the PERS fund due to Inveen’s nonpayment of attorney fees.5

       DRS opposed the class’s motion. DRS conceded that there was an error in calculating

Dederer’s and Jones’s pro rata share of attorney fees. However, DRS argued that in the interest of


5
  The class estimated that for Dederer’s pro rata share to be correct, she must be assessed an
additional $4,608. For Jones’s pro rata share to be correct, the class estimated that she must be
assessed an additional $1,664. The class calculated Frimpter’s share to be $2,083 and Moland’s
share to be $12,952. These amounts add up to around $21,000.


                                                 9
No. 52253-5-II


finality and to avoid periodically recalculating attorney fees and reissuing notices to each class

member, the superior court should not order DRS to recalculate or calculate their pro rata share of

attorney fees.6 Regarding Frimpter and Moland, DRS also argued that assessing them with their

pro rata shares of attorney fees conflicted with the court’s prior order implementing the repayment

plan. The prior order stated that only class members discovered before DRS sent the notices would

be obligated to pay a pro rata share of the attorney fees, and Frimpter and Moland were discovered

after DRS sent the notices.

       DRS contended that waiving payment for Inveen conflicted with the superior court’s order

regarding Garratt because Inveen and Garratt were “similarly situated judges.” Clerk’s Papers

(CP) at 239. DRS argued that the class was collaterally estopped from relitigating the issue of

whether a judge participating in the judicial benefit multiplier program should be relieved of the

responsibility to pay their pro rata share of the attorney fees.

       The superior court granted the class’s motion in part, ruling that DRS “shall not withhold

any sums from Ms. lnveen’s retirement based on the Dolan litigation.” Id. at 263-64. The court

found that DRS’ reduction of Inveen’s pension due to the attorney fees was “inherently unfair and

an unintended consequence of the Dolan litigation.” Id. at 263. The court ruled that “lnveen

should not unjustly enrich third parties for payment of assessed attorney’s fees which apply in her

unique fact pattern.” Id.




6
  DRS also briefly argued that there was no indication that the class notified the four members
regarding the change in attorney fees, therefore assessing Frimpter and Moland with fees and
assessing Dederer and Jones with additional fees would violate their due process rights. DRS does
not renew this argument on appeal.


                                                  10
No. 52253-5-II


       The superior court denied the class’s request to order DRS to send corrected notices to

Dederer and Jones and to send notices to Frimpter and Moland. The court found that any fault

regarding the miscalculation lays with the County or DRS and ruled that DRS “shall not recalculate

pro rata fees as a result of this order.” Id. at 266. The court determined that “[t]he Doctrine of

Finality has credibility as applied to this fact pattern,” and the “fact that other class members may

pay for these class members’ share of the attorney’s fees is not [a] sufficient reason to go back and

attempt to correct the error.” Id. at 264.

       DRS appeals the superior court’s ruling ordering DRS to not withhold any sums from

lnveen’s retirement based on the Dolan litigation.

                                             DISCUSSION

                                         I. INVITED ERROR

       The class argues that we should not consider DRS’ appeal because DRS invited any error

regarding loss to the PERS fund. The class contends that assessing Dederer and Jones with the

correct amount of attorney fees and assessing Frimpter and Moland with attorney fees, which DRS

opposed, would have remedied any shortage to the PERS fund due to Inveen’s nonpayment of

attorney fees.7 The class argues that by opposing the motion, DRS created the shortfall to the

PERS fund and is therefore prohibited from claiming error due to the shortfall on appeal.

       In response, DRS argues that it did not invite the error regarding the Inveen order because

the superior court ordered the PERS fund to pay for Inveen’s share of the attorney fees, a remedy



7
  DRS does not dispute the class’s position that assessing Dederer and Jones with the correct
amount of attorney fees and assessing Frimpter and Moland with attorney fees would have been
sufficient to reimburse the common fund for the fees that the fund did not receive from Inveen.


                                                 11
No. 52253-5-II


not requested by either party. We hold that DRS invited any error regarding a shortfall to the

PERS fund, but DRS did not invite any error regarding the Inveen order.

       The invited error doctrine “‘prohibit[s] a party from setting up an error at trial and then

complaining of it on appeal.’” Angelo Prop. Co. v. Hafiz, 167 Wn. App. 789, 823, 274 P.3d 1075

(2012) (alteration in original) (internal quotation marks omitted) (quoting City of Seattle v. Patu,

147 Wn.2d 717, 720, 58 P.3d 273 (2002)). The doctrine applies when a party takes affirmative

and voluntary action that induces the trial court to take the action that the party later challenges on

appeal. In re Estate of Irwin, 10 Wn. App. 2d 924, 927, 450 P.3d 663 (2019).

       In arguing invited error, the class points to DRS’ argument on appeal that the superior court

compromised the PERS fund by waiving Inveen’s payment of the attorney fees and then

precluding DRS from offsetting the loss to the fund due to Iveen’s nonpayment by ordering DRS

to not reassess Dederer and Jones with the correct amount of attorney fees and assess Frimpter and

Moland with attorney fees. DRS argues that the court’s order effectively forced uninvolved third

parties to the Dolan litigation to pay Inveen’s pro rata share of the attorney fees because the PERS

fund would absorb the loss. However, DRS expressly opposed assessing the four other class

members with attorney fees or a corrected fee amount below. Had DRS assessed the four other

class members with their correct pro rata shares, the shortfall due to Inveen’s nonpayment would

have been remedied because the share amounts were greater than the amount owed by Inveen.

Further, their payment would have ensured that uninvolved third parties to the Dolan litigation

would not have paid Inveen’s share of the attorney fees.

       DRS relies on Horne v. Aune, 130 Wn. App. 183, 121 P.3d 1227 (2005), to argue that the

invited error doctrine does not apply. In Horne, the court held that when a trial court’s action was


                                                  12
No. 52253-5-II


inconsistent with the course of action suggested by the appealing party, the invited error doctrine

does not apply. Id. at 191 n.2. DRS argues that like Horne, DRS’ position when opposing the

class’s motion to correct the notices and pro rata fees for the five class members was inconsistent

with the action that the superior court took. DRS opposed waiving payment for Inveen and

opposed assessing and reassessing the four other class members with the correct fee amounts on

the grounds that principles of finality should govern.

       The superior court agreed with DRS’ finality argument as it pertained to assessment and

reassessment of the four other class members’ fees, concluding that “[t]he Doctrine of Finality has

credibility as applied to this fact pattern.” CP at 264. Therefore, the court’s action was not

materially inconsistent with the action suggested by DRS. Horne, 130 Wn. App. at 191 n.2.

Rather, the court’s ruling was identical to DRS’ argument below when opposing the assessment

and reassessment of the four class members’ attorney fees. A party may not use theories or

arguments to his or her advantage at trial and then argue on appeal that they were erroneously

accepted by the trial court. State v. Lewis, 15 Wn. App. 172, 176, 548 P.2d 587 (1976). Thus, we

do not entertain DRS’ claim that the court erred when it failed to offset the loss to the PERS fund

because this error, if any error occurred, was invited by DRS.

       On its own initiative, however, the superior court ordered DRS to not charge Inveen with

her pro rata share of the attorney fees and ordered DRS to not assess and reassess the four other

class members with their correct pro rata share of the attorney fees. DRS did not advocate for

Inveen to be exempted from paying her pro rata share of the attorney fees or present an alternative

argument that in the event Inveen was exempted, the court should order DRS to assess and reassess

the four other class members with their correct pro rata share of the attorney fees. Therefore, DRS’


                                                13
No. 52253-5-II


actions did not induce or set up Inveen’s exemption, the error DRS now claims on appeal. Angelo,

167 Wn. App. at 823. We hold that DRS’ claim of error regarding the superior court’s exemption

of Inveen from paying a pro rata share of the attorney fees is not barred by invited error.

                                II. THE COMMON FUND DOCTRINE

A. LEGAL PRINCIPLES

       Generally, a party pays its own attorney fees unless an award of fees is authorized by

contract, statute, or a recognized ground in equity. Bowles, 121 Wn.2d at 70 (quoting Painting &

Decorating Contractors of Am., Inc. v. Ellensburg Sch. Dist., 96 Wn.2d 806, 815, 638 P.2d 1220

(1982)). The common fund doctrine is an equitable ground for granting and recovering attorney

fees. City of Sequim v. Malkasian, 157 Wn.2d 251, 271, 138 P.3d 943 (2006). Under the common

fund theory, an award of attorney fees is assumed by the prevailing party instead of the losing

party when the prevailing party creates a common fund for their own benefit and the benefit of

others. Winters v. State Farm Mut. Auto. Ins. Co., 144 Wn.2d 869, 877, 31 P.3d 1164, 63 P.3d

764 (2001).

       The common fund doctrine provides that an attorney who renders services in recovering or

preserving a fund in which a number of persons are interested may in equity be allowed

compensation out of the whole fund. Id. Stated differently, the doctrine allows an attorney “in

equity to recover fees in the absence of a contract or statute when his services confer a substantial

benefit for a group of people.” Lynch v. Deaconess Med. Ctr., 113 Wn.2d 162, 167-68, 776 P.2d

681 (1989).

       The common fund doctrine generates an “‘equitable sharing rule.’” Hamm v. State Farm

Mut. Auto. Ins. Co., 151 Wn.2d 303, 310, 88 P.3d 395 (2004) (quoting Mahler v. Szucs, 135 Wn.2d


                                                 14
No. 52253-5-II


398, 426, 957 P.2d 632, 966 P.2d 305 (1998)). “‘[W]hen one person creates or preserves a fund

from which another then takes, the two should share, pro rata, the fees and costs reasonably

incurred to generate that fund.’” Winters, 144 Wn.2d at 877 (quoting Winters v. State Farm Mut.

Auto. Ins. Co., 99 Wn. App. 602, 609, 994 P.2d 881 (2000), aff’d, 144 Wn.2d 869). Without such,

a person who benefits from a lawsuit without contributing to its expense is unjustly enriched at the

successful litigant’s expense. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 62 L.

Ed. 2d 676 (1980).

B. STANDARD OF REVIEW

       As an initial matter, the parties disagree as to the standard of review governing our review

of DRS’ appeal. DRS argues that we review the superior court’s ruling de novo because whether

the PERS fund must pay for one of its member’s pro rata share of the common fund attorney fees

is a question of law. The class disagrees, arguing that the standard of review is abuse of discretion

because the superior court’s authority to enter the order at issue was based in equity. We agree

with the class.

       DRS relies on Matsyuk v. State Farm Fire & Casualty Co., 155 Wn. App. 324, 329, 229

P.3d 893 (2010), and its subsequent reversal by our Supreme Court, 173 Wn.2d 643, 272 P.3d 802

(2012), a case that involved a question of law about whether a common fund was created in the

automobile insurance context. The doctrine applies in this context when an automobile insurer

that has paid benefits to an injured party is required to pay a pro rata share of the injured party’s

attorney fees anytime it seeks reimbursement out of the judgment or settlement with a tortfeaser.

Belling v. Emp’t Sec. Dep’t, 191 Wn.2d 925, 931-32, 427 P.3d 611 (2018).




                                                 15
No. 52253-5-II


       DRS argues that we should address this appeal as a question of law reviewed de novo

pursuant to our decision in Matsyuk because in that case, we reviewed de novo whether the

common fund doctrine applied, and the Supreme Court did not specifically address the standard

of review in its reversal of our decision. 155 Wn. App. at 329-30. However, this argument is

misplaced because DRS does not challenge on appeal the superior court’s ruling that the common

fund doctrine applied. Rather, DRS challenges the court’s ruling that ordered DRS to not collect

Inveen’s pro rata share of the common fund attorney fees, thereby exempting Inveen from payment

of attorney fees.

       DRS further urges de novo review because the Supreme Court held in Matsyuk that the

question of whether a third party should pay pro rata attorney fees under RAP 18.1 is a question

of law. 173 Wn.2d at 659. But this argument is also misplaced because the award of attorney fees

under RAP 18.1 is irrelevant to the question of whether the superior court improperly exempted

Inveen from paying her pro rata share of the common fund attorney fees.

       We disagree with DRS and hold that the superior court’s authority to enter the Inveen order

was based in equity because the common fund doctrine is grounded in equity and arises from

equitable principles. Bowles, 121 Wn.2d at 70; Hamm, 151 Wn.2d at 311. “A court sitting in

equity has broad discretion to shape relief.” Bloor v. Fritz, 143 Wn. App. 718, 739, 180 P.3d 805

(2008). Because the common fund doctrine invoked the superior court’s general equity power, we

review the superior court’s consideration of equities to determine whether the court abused its

discretion. Arzola v. Name Intelligence, Inc., 188 Wn. App. 588, 596, 355 P.3d 286 (2015). Here,

we review the superior court’s order granting equitable relief to Inveen from payment of her pro

rata share of the attorney fees for an abuse of discretion. A trial court abuses its discretion when


                                                16
No. 52253-5-II


its decision is manifestly unreasonable or based upon untenable grounds. Havens v. C & D

Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).

C. INVEEN’S LIABILITY UNDER BOWLES

       DRS argues that the superior court’s order exempting Inveen from payment of her pro rata

share of the common fund attorney fees was improper because the order violates Bowles by (1)

shifting the responsibility of paying Inveen’s share of the attorney fees to the PERS fund and (2)

treating the PERS fund as property of the class. The class argues that the superior court properly

exempted Inveen from paying attorney fees because Inveen did not receive any benefit from the

litigation. We agree with the class.

       In its final order on assessment of common fund attorney fees on Inveen, the superior court

expressly adopted class counsel’s arguments by finding that reduction of Inveen’s pension due to

attorney fees was “inherently unfair and an unintended consequence of the Dolan litigation.” CP

at 263. The court ordered DRS to not withhold the attorney fees from Inveen’s retirement based

on the Dolan litigation, concluding that “lnveen should not unjustly enrich third parties for

payment of assessed attorney’s fees which apply in her unique fact pattern.” Id.

       In Bowles, employees of the State covered by the PERS pension plan filed a class action

suit against DRS, arguing that DRS improperly limited accrued vacation and sick leave benefits

(“leave cashouts”). 121 Wn.2d at 57. Our Supreme Court held that DRS violated the employees’

pension rights when it placed certain limitations on leave cashouts. Id. at 68, 69. The court also

affirmed the grant of attorney fees to the employees under the common fund doctrine because the

employees successfully sued to secure payment of additional funds into their pension plan and

increased benefits to all plan members. Id. at 71. The court affirmed the trial court’s order that


                                               17
No. 52253-5-II


the PERS fund immediately pay the attorney fees on behalf of the employees, subject to

reimbursement by employees as class members. Id. at 75.

       DRS points to the assertion in Bowles that even though the PERS fund will initially front

the attorney fees, “‘the attorney fee award remains a liability of the plaintiff class’” to argue that

Inveen is liable for her pro rata share of the attorney fees as a class member. Br. of Appellant at

17 (quoting Bowles, 121 Wn.2d at 76). However, Bowles also made clear that the common fund

doctrine “authorizes attorney fees only when the litigants preserve or create a common fund for

the benefit of others as well as themselves.” 121 Wn.2d at 70-71 (emphasis added).

       The requirement that litigants benefit from the common fund is well established. Belling,

191 Wn.2d at 930 (quoting Malkasian, 157 Wn.2d at 271). However, Washington case law

discusses this requirement only when determining whether a party created a common fund entitling

the party’s attorney to fees from the common fund and not in the context of whether an individual

class member may be exempt from paying common fund fees if the class member did not benefit

from the common fund. Belling, 191 Wn.2d at 929-30; Winters, 144 Wn.2d at 877, 881-82;

Bowles, 121 Wn.2d at 71.

       The class points us to Boeing, 444 U.S. at 474, a case that arose from a class action to

recover for Boeing’s failure to give adequate notice of intention to call in certain convertible

debentures. The district court awarded attorney fees under the common fund doctrine and provided

that “[e]ach individual recovery was to carry its proportionate share of the total amount allowed

for attorney’s fees, expenses, and disbursements.” Id. at 476. Boeing appealed the attorney fee

award, arguing that the court should have awarded attorney fees from only the portion of the fund

actually claimed by class members. Id. at 477. Boeing argued that the common fund doctrine was


                                                 18
No. 52253-5-II


inapplicable to the unclaimed portion of the fund because class members who never made a claim

against the fund would never receive the benefit of the fund. Id.

       The Supreme Court disagreed. Id. at 480-81. The Supreme Court concluded that the

attorneys for a successful class may recover attorney fees from a common fund created for the

class, even if some class members did not make a claim against the fund. Id. The Supreme Court

reasoned that

       [t]o claim their logically ascertainable shares of the judgment fund, absentee class
       members need prove only their membership in the injured class. Their right to
       share the harvest of the lawsuit upon proof of their identity, whether or not they
       exercise it, is a benefit in the fund created by the efforts of the class representatives
       and their counsel.

Id. at 480. In order to ensure that some members of the class do not bear additional costs, the rule

requires “every member of the class to share attorney’s fees to the same extent that he can share

the recovery.” Id. Although Boeing itself could not be obligated to pay the fees awarded to the

class attorneys, Boeing’s claim against unclaimed money could not defeat each class member’s

equitable obligation to share the expenses of litigation. Id. at 482.

       DRS does not dispute that Inveen did not receive any benefit from the Dolan litigation.

However, pursuant to a settlement agreement, the County made retroactive payments to the PERS

fund on its own behalf as the employer and on behalf of the class members as the employees.

Although the County made these payments on behalf of Inveen, her interest in the payments will

never vest because her pension was already capped when she received the notice regarding her pro

rata share of the common fund attorney fees. This is because when Inveen received the notice

regarding her pro rata share of the common fund attorney fees, Inveen’s pension had already

reached the maximum allowance of 75 percent of her average final salary. Due to Inveen’s


                                                  19
No. 52253-5-II


inability to ever claim the funds the County paid to PERS on her behalf, the payments will go

unused by Inveen.

       Although Inveen has proven her “membership in the injured class,” Inveen is unable to

“share the harvest of the lawsuit” because Inveen cannot claim the two years of service credit to

benefit her pension. Id. at 480. Because Inveen did not have a “right to share the harvest of the

lawsuit upon proof of [her] identity,” Inveen did not receive any benefit created by the efforts of

class counsel. Id.

       This rationale is consistent with the superior court’s conclusion that Inveen’s circumstances

differ from Garratt’s circumstances. Unlike Inveen, when DRS assessed Garratt with her share of

the common fund attorney fees, Garratt’s pension had not reached the maximum amount. With

the service credit received from the Dolan litigation, Garratt had the option of immediately retiring

with a full pension. Therefore, Garratt benefited from the Dolan lawsuit because she had a “right

to share the harvest” of the Dolan lawsuit by immediately retiring with a full pension, regardless

of whether she exercised that right. Id.

       As a result of the litigation, Inveen was assessed a pro rata share of $14,482 in attorney

fees. If Inveen had paid the attorney fees without receiving any benefit of the litigation, other

litigants would have been unjustly enriched at Inveen’s expense. DRS counters that by exempting

Inveen from paying her pro rata share, the responsibility to pay Inveen’s share impermissibly

shifted to all PERS members and employers who, like Inveen, received no benefit from the Dolan

litigation. DRS does not attempt to explain how shifting the cost from Inveen to the PERS fund,

including other similarly situated PERS members who received absolutely no benefit from the

Dolan litigation, is not a legitimate equitable remedy.


                                                 20
No. 52253-5-II


       Sitting in equity, the superior court had broad discretion to balance the relative equities of

the parties in order to fashion a remedy. Arzola, 188 Wn. App. at 596. Here, the superior court

invoked its equitable power to prevent other successful litigants from being unjustly enriched at

Inveen’s expense. We agree with the superior court that requiring Inveen to be responsible for her

pro rata share of the common fund fees is “inherently unfair and an unintended consequence of the

Dolan litigation.” CP at 263. Holding otherwise would be contrary to the equitable principle that

litigants who benefit from a common fund or have the ability to “share the harvest” of a common

fund also share the burden of the attorney fees. Boeing, 444 U.S. at 480; Hamm, 151 Wn.2d at

320. Without this principle, those who benefit from the lawsuit without contributing to its cost are

unjustly enriched at the expense of a successful litigant. Boeing, 444 U.S. at 478.

       We hold that the superior court did not violate the common fund doctrine when it exempted

Inveen from paying a pro rata share of the attorney fees based on the Dolan litigation.

                                           III. CR 23(b)

       DRS next argues that Inveen’s exemption from paying a pro rata share of the common fund

attorney fees violated CR 23(b)(1) and (2) by effectively excluding Inveen from the class. We

disagree.

       CR 23 governs class actions. Washington courts favor liberal interpretation of CR 23 to

“avoid multiplicity of litigation,” in order to save “members of the class the cost and trouble of

filing individual suits” and also to free “the defendant from the harassment of identical future

litigation.” Brown v. Brown, 6 Wn. App. 249, 257, 492 P.2d 581 (1971).




                                                21
No. 52253-5-II


          A class action may be maintained under CR 23(b)(1), (2), or (3). Here, the superior court

certified the class under subsections (b)(1) and (b)(2).8 Subsection (b)(1) is intended to avoid

prejudice to the defendant or absent class members. Sitton v. State Farm Mut. Auto. Ins. Co., 116

Wn. App. 245, 251, 63 P.3d 198 (2003). Certification under CR 23(b)(2) is appropriate when

injunctive or declaratory relief is requested and when the defendant has acted, refused to act, or

failed to perform a legal duty on grounds generally applicable to the class. Id.

          Although all three categories have corresponding procedural requirements, classes certified

under CR 23(b)(1) and (2) are “‘mandatory’” classes. Nelson v. Appleway Chevrolet, Inc., 160

Wn.2d 173, 189, 157 P.3d 847 (2007) (quoting Sitton, 116 Wn. App. at 252). As a mandatory

class, all members of the class are bound by the determination of the respondent’s rights and

obligations to the class. Brown, 6 Wn. App. at 256. This is because certification under subsection

(b)(1) is reserved for actions where individual adjudications would be impossible or unworkable,

and certification under subsection (b)(2) was intended for relief that impacts the entire class and



8
    Subsections (b)(1) and (b)(2) state,
                  (b) Class Actions Maintainable. An action may be maintained as a class
         action if the prerequisites of section (a) are satisfied, and in addition:
                  (1) The prosecution of separate actions by or against individual members of
         the class would create a risk of
                  (A) inconsistent or varying adjudications with respect to individual
         members of the class which would establish incompatible standards of conduct for
         the party opposing the class, or
                  (B) adjudications with respect to individual members of the class which
         would as a practical matter be dispositive of the interests of the other members not
         parties to the adjudications or substantially impair or impede their ability to protect
         their interest; or
                  (2) The party opposing the class has acted or refused to act on grounds
         generally applicable to the class, thereby making appropriate final injunctive relief
         or corresponding declaratory relief with respect to the class as a whole.


                                                   22
No. 52253-5-II


can be remedied by a class-wide injunction. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362-

63, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011).9

       DRS argues that excluding Inveen from assessment of common fund attorney fees

effectively allowed Inveen to opt out of the class, in violation of CR 23(b)(1) and (2). DRS

contends that the court’s decision violated the procedural requirements of CR 23(b)(1) and (2)

because as a mandatory class, the result of the litigation is binding on all class members. However,

exempting Inveen from payment of the attorney fees did not necessarily equate to Inveen opting

out of the class action as a whole. Inveen did not argue that she should not be bound by the

determination of the County’s obligation to provide retroactive PERS benefits to the class. See

Brown, 6 Wn. App. at 256. Inveen also did not claim that she was entitled to a different form of

relief against the County or that the relief granted did not remedy the County’s failure to provide

PERS benefits while she was employed as a public defender. See Sitton, 116 Wn. App. at 251.

       Moreover, as noted above, the County contributed funds to PERS on Inveen’s behalf. In

order to fully exempt Inveen from the class, the County must subtract all 27 months of service

credit Inveen earned through the Dolan litigation for her past employment as a public defender.

However, the County already paid the PERS fund for the retroactive service credit on behalf of

itself as the employer and on behalf of Inveen as the employee. For Inveen to be deemed fully

opted out of the class, the PERS fund would have had to reimburse the County for these payments




9
  “CR 23 is identical to its federal counterpart, Fed. R. Civ. P. 23.” Pickett v. Holland Am. Line-
Westours, Inc., 145 Wn.2d 178, 188, 35 P.3d 351 (2001). When the state and federal rules at issue
are substantially similar, we look to federal decisions for guidance in interpreting and construing
the state rule. Smith v. Behr Process Corp., 113 Wn. App. 306, 319 n.2, 54 P.3d 665 (2002).


                                                  23
No. 52253-5-II


because Inveen would no longer be a class member entitled to the 27 months of service credit for

her past employment as a public defender. This did not occur.

          We hold that Inveen’s exemption from paying a pro rata share of the common fund attorney

fees did not effectively exclude Inveen from the class in violation of CR 23(b)(1) and (2).

                                  IV. DRS’ REQUEST FOR GUIDANCE

          DRS argues that if we affirm the superior court’s order, we should provide guidance to

DRS on how it should implement the Dolan common fund attorney fees process for other class

members who are members of the judiciary or who will become members of the judiciary in the

future.

          We decline DRS’ request to provide guidance because any guidance would constitute an

advisory opinion.

          There must be a justiciable controversy before the jurisdiction of the court may be invoked.

Wash. Educ. Ass’n v. Wash. State Pub. Disclosure Comm’n, 150 Wn.2d 612, 622, 80 P.3d 608

(2003). A justiciable controversy exists when

          (1) . . . an actual, present and existing dispute, or the mature seeds of one, as
          distinguished from a possible, dormant, hypothetical, speculative, or moot
          disagreement, (2) between parties having genuine and opposing interests, (3) which
          involves interests that must be direct and substantial, rather than potential,
          theoretical, abstract or academic, and (4) a judicial determination of which will be
          final and conclusive.

Id. at 622-23 (alteration in original) (internal quotation marks omitted) (quoting To-Ro Trade

Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)). The four justiciability factors ‘“must

coalesce’” to ensure that a court does not enter the prohibited area of advisory opinions. Id. at 623

(quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)).



                                                  24
No. 52253-5-II


        DRS asks us to contemplate a hypothetical situation where a different class member who

is also enrolled in the judicial benefit multiplier program challenges the common fund attorney

fees as applied to that class member. Providing the requested guidance would require us to

speculate on scenarios that do not exist in the present case. Were we to issue such an opinion, it

would be advisory. Any future dispute that arises from the Dolan litigation must be decided on

the basis of the evidence presented in that forum.

        Because DRS requests guidance on a hypothetical future dispute as opposed to an actual

present existing dispute or the seeds of a mature one, we refrain from addressing DRS’ request and

hold that its claim is not justiciable.

                                           V. SANCTIONS

        The class argues that we should impose monetary sanctions under RAP 18.9 against DRS

because DRS’ appeal is frivolous. We disagree and hold that DRS’ appeal is not frivolous.10

        An appellate court may award fees for a frivolous appeal. RAP 18.9(a). “[A]n appeal is

frivolous if it raises no debatable issues on which reasonable minds might differ and it is so totally

devoid of merit that no reasonable possibility of reversal exists.” Protect the Peninsula’s Future

v. City of Port Angeles, 175 Wn. App. 201, 220, 304 P.3d 914 (2013). We consider the civil

appellant’s right to appeal an adverse judgment, and we resolve any doubts about whether an

appeal is frivolous in the appellant’s favor. Id.




10
  In support of its argument that DRS’ appeal is frivolous, the class attached a letter containing
communications between the parties. DRS’ motion to strike this document is granted. We see no
proper purpose for filing such document nor does the document have any relevance to resolving
the matters presented in this appeal. See Heckard v. Murray, 5 Wn. App. 2d 586, 600, 428 P.3d
141 (2018), rev. denied, 192 Wn.2d 1013 (2019).
                                                    25
No. 52253-5-II


        DRS’ appeal is not frivolous. DRS raises a debatable issue of whether the superior court

properly exempted Inveen from assessment of common fund attorney fees under both the common

fund doctrine and CR 23, and DRS provided factual and legal support for its claims. For these

reasons, we deny the class’s request to impose sanctions under RAP 18.9(a).

                                          CONCLUSION

        We hold that the invited error doctrine does not apply to the court’s ruling regarding Inveen,

the subject of this appeal. We hold that the superior court did not abuse its discretion when

ordering DRS to not reduce Inveen’s pension due to common fund attorney fees assessed to her as

a class member of the Dolan litigation. We do not provide DRS with guidance regarding future

challenges to the common fund attorney fees and decline to impose monetary sanctions under RAP

18.9 against DRS because DRS’ appeal is not frivolous. Accordingly, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      CRUSER, J.
 We concur:



 WORSWICK, J.




 LEE, C.J.




                                                 26
