                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two
   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                            June 30, 2020
                                       DIVISION II
 ARMSTRONG MARINE, INC.,                                            No. 53163-1-II

                        Respondent,

        v.

 MICHAEL P. WILEY, JR.,                                       UNPUBLISHED OPINION

                        Appellant.


       GLASGOW, J.—Armstrong Marine Inc. sued Michael P. Wiley Jr., a former employee,

to enforce a noncompete agreement. During the course of the litigation, Wiley’s attorney,

Joseph Wolfley, withdrew from the case. Armstrong Marine ultimately stopped pursuing its

claim, and the court dismissed the case for lack of prosecution.

       Wolfley then filed a motion seeking attorney fees and to enforce his attorney’s lien

against any proceeds that Wiley would be entitled to. On the day of the hearing, Wiley filed a

declaration asserting that Wolfley was acting on his behalf. The trial court declined to consider

this untimely declaration and denied Wolfley’s motion for attorney fees.

       Wiley appeals, arguing that the motion for attorney fees was properly filed and that the

trial court should have concluded that he was the prevailing party and entitled to fees.

       We hold that Wiley failed to properly appeal or assign error to the trial court’s decision

not to consider Wiley’s declaration. Wolfley was not authorized to seek attorney fees himself

because he had withdrawn from the case. Thus, Wolfley’s underlying motion for attorney fees

was improper, and the trial court did not err in denying it. We affirm.
No. 53163-1-II
                                            FACTS

        Armstrong Marine employed Wiley as a welder. Wiley signed a contract that included

a noncompete agreement and also provided: “In the event of any demand or suit in connection

with this Agreement, the prevailing party shall be entitled to its reasonable costs and expenses,

including reasonable attorney’s fees.” Clerk’s Papers (CP) at 159.

        After Wiley left to work for a nearby competitor, Armstrong Marine sued him to enforce

the noncompete agreement. Wolfley appeared as Wiley’s attorney. Wiley counterclaimed for

attorney fees and moved for summary judgment. The trial court denied both the motion for

summary judgment and Wiley’s subsequent motion for reconsideration.

        Armstrong Marine filed a motion to compel discovery that the trial court granted. The

trial court ordered sanctions against Wiley to be held in abeyance subject to Wiley complying

with the discovery order.

        Wolfley then withdrew from the case and filed an attorney’s lien on any recovery Wiley

might receive under RCW 60.40.010.

        Armstrong Marine stopped prosecuting its case and, more than a year later, the court

sent notices to Armstrong Marine, Wolfley, and Wiley that the case would be dismissed for

lack of prosecution in 30 days. Neither party took any further action, and the court dismissed

the case. Neither party has claimed a lack of notice of the dismissal.

        Wolfley then filed a motion for an award of attorney fees and entry of judgment based

on his previously filed lien. He claimed that Wiley was entitled to fees as the prevailing party

and that Wolfley, in turn, was entitled to seek those fees himself through enforcement of his

attorney’s lien.



                                                2
No. 53163-1-II
          On the day of the hearing on the attorney fees motion, after Armstrong Marine had filed

its response and after the local rule deadline for submitting supporting affidavits, see Clallam

County LCR 77(k)(6), Wiley filed a declaration stating that he supported Wolfley’s motion for

attorney fees and incorporated it as his own.1 At the hearing on Wolfley’s motion, the trial court

declined to consider Wiley’s declaration.

          The trial court then denied Wolfley’s motion for attorney fees. The trial court noted that

the case had already been dismissed without costs to either party, defense counsel was neither

a party nor the attorney of record at the time he filed his motion for attorney fees, there were no

proceeds to which the lien could attach, and Wiley had not prevailed on any issue or motion up

to that point.

          The trial court’s written order indicated that the court ultimately based its decision on

the fact that there were no proceeds to which the lien could attach and Wiley was not a

prevailing party. The order did not address the import of Wiley’s declaration, though it did state

that the trial court had “considered Mr. Wolfley’s motion, including his Declaration and Reply,

as well as Plaintiff’s opposition thereto, and heard oral argument on the motion on March 8,

2019.” CP at 8. Consistent with its oral ruling, the trial court did not list Wiley’s declaration in

the documents it considered when addressing the motion.

          Wiley filed an amended notice of appeal in this court but did not attach the written order.

In addition, Wiley described the bases of his appeal as:

          [T]he court’s error in determining that Defendant is not the prevailing party
          when the Court dismissed Plaintiff’s claim for lack of prosecution, and the
          Court’s error in denying an award of attorney’s fees where Defendant is the
          prevailing party according to the contract Plaintiff sought to enforce against
          Defendant. Additional grounds are reserved until after the records are reviewed.

1
    Wolfley also filed his own affidavit detailing the basis for his fees at the same time.
                                                  3
No. 53163-1-II

Am. Notice of Appeal at 1. Attached to the amended notice of appeal were a transcript of the

trial court’s oral ruling and handwritten minutes from the hearing. While Wiley later filed a

copy of the trial court’s written order, no further amended notice of appeal expanding the

grounds for appeal was ever filed.

                                            ANALYSIS

          Wiley argues that the trial court improperly denied the request for attorney fees because

he should have been considered the prevailing party for the purposes of the contract. 2

Armstrong Marine counters that regardless of whether Wiley should be considered the

prevailing party, RCW 60.40.010 does not permit an award of attorney fees to Wolfley in this

context. We agree that Wolfley was not authorized to seek attorney fees on his own and the trial

court properly declined to consider Wiley’s untimely declaration, a decision that was not

appealed and to which Wiley has failed to assign error.

A.        Whether the Dismissal Precluded Wolfley from Seeking Fees

          As a threshold matter, Armstrong Marine argues that Wiley should have sought attorney

fees before the case was dismissed, or he should have filed a motion to set aside the dismissal

because he cannot move for relief once a case is dismissed. But a court retains jurisdiction to

award attorney fees even after a case is dismissed on the merits. For example,

          [w]hile a voluntary dismissal under CR 41(a)(1) generally divests a court of
          jurisdiction to decide a case on the merits, an award of attorneys’ fees pursuant
          to a statutory provision or contractual agreement is collateral to the underlying
          proceeding. As a result, the court retains jurisdiction for the limited purpose of
          considering a defendant’s motion for fees.

Hawk v. Branjes, 97 Wn. App. 776, 782-83, 986 P.2d 841 (1999).



2
    The appellant’s brief identifies Wiley, not Wolfley, as the appellant in this appeal.
                                                 4
No. 53163-1-II
        There is no compelling reason not to apply this reasoning to dismissals for lack of

prosecution. Wiley’s request for fees under the contract is collateral to the underlying lawsuit,

and he would not have been entitled to fees until prevailing as a result of the dismissal, so the

trial court retained jurisdiction over the fee request. As the Hawk court said:

        Any other result would permit a party to voluntarily dismiss an action to evade
        an award of fees under the express terms of a statute or agreement. Moreover, to
        hold otherwise would unnecessarily subject the courts to separate actions to
        recover fees readily ascertainable upon dismissal of the underlying claim.

Id. at 783.

        Armstrong Marine also relies on Clallam County LCR 0.7 to argue that Wolfley had a

duty to submit a claim for attorney fees before dismissal of the lawsuit.3 While that rule requires

an attorney claiming fees to submit a particular form itemizing the basis for the attorney fees

claim, the rule does not require that the claim be made at a particular time. Clallam County

LCR 0.7. As a result, this local rule did not govern the proper timing of the motion for attorney

fees.

        Therefore, the fact that Wiley did not seek fees before the case was dismissed or move

to reopen the case did not preclude him from seeking attorney fees.

B.      Wolfley’s Ability to Pursue Attorney Fees Under RCW 60.40.010

        Armstrong Marine argues that it was improper for Wolfley to seek to enforce his lien

under RCW 60.40.010 in this case because he did not have standing to intervene to recover

attorney fees when he was no longer the attorney of record. Armstrong Marine argues that it

was improper for Wolfley to file a motion requesting attorney fees and to enforce his lien




3
 Armstrong Marine actually cites to Clallam County LAR 0.7, but it must mean LCR 0.7,
which addresses attorney fees claims in civil cases.
                                               5
No. 53163-1-II
because he was not a party and he was no longer representing Wiley. Wiley counters that his

declaration effectively empowered Wolfley to seek attorney fees on his behalf.4 We agree with

Armstrong Marine that the trial court properly did not consider Wiley’s declaration and that

Wolfley was not independently authorized to move for attorney fees.

        The application and meaning of RCW 60.40.010 are issues of statutory interpretation

that we review de novo. Aiken, St. Louis & Siljeg, P.S. v. Linth, 195 Wn. App. 10, 15, 380 P.3d

565 (2016). “Our fundamental objective in interpreting a statute is to ascertain and carry out

the legislature’s intent.” Id. “‘If a statute’s meaning is plain on its face, then we must give effect

to that plain meaning.’” Id. (quoting Smith v. Moran, Windes & Wong, PLLC, 145 Wn. App.

459, 463, 187 P.3d 275 (2008)). If a statute is ambiguous, we may consider legislative history

and other external sources to determine legislative intent. Id. We avoid interpreting a statute in

a way that renders any portion meaningless or that would lead to absurd or strained results. Id.

        1.      Background on attorney’s liens

        Where an attorney has a lien for their compensation, the lien attaches, among other

things, to an action and its “proceeds,” as well as to any “judgment,” to the extent of the value

of the services rendered by the attorney. RCW 60.40.010(1)(d)-(e). RCW 60.40.010(2) provides

that “[a]ttorneys have the same rights and power over actions and judgments to enforce their

liens under [subsections (1)(d) and (e)] . . . as their clients.” RCW 60.40.010(5) defines

“‘proceeds’” as “any monetary sum received in the action.” The proceeds are limited to the




4
 Wiley poses this issue as one of standing. To be sure, Wolfley had a financial interest at stake,
but the more relevant question is whether he had authority to bring a motion for attorney fees
when he did under the particular procedural posture of the case.

                                                  6
No. 53163-1-II
monetary sums the client has received in the action, but are not limited to the amount actually

in the client’s possession. Aiken, 195 Wn. App. at 16-17.

        We held in Aiken that RCW 60.40.010 does not empower attorneys to step into their

clients’ shoes to direct the course of litigation. Id. at 17-19. In Aiken, a law firm represented

Linth in a dispute regarding her interests in a trust. Id. at 13. Linth then entered into a settlement

agreement by which the trust would be sold and she would receive a portion of the proceeds.

Id. The law firm filed an attorney’s lien on the proceeds. Id. Linth was later appointed as trustee,

and the firm then withdrew from representation. Id. at 13-14. The firm later filed a motion to

enforce its lien, arguing a statutory right to remove Linth as a trustee and replace her with

someone else to ensure distribution of the proceeds to satisfy the lien. Id. at 14. We held the

firm was not entitled to take control of the underlying litigation over the trust in order to satisfy

its lien. Id. at 19-20.

        Relying on the statute’s legislative history, we concluded that the legislature intended

only for this provision to end double taxation of attorney fees, since both clients and attorneys

were required under federal law to pay taxes on attorney fees when they received them. Id. at

18-19. Therefore, “[t]he right to seek enforcement of an attorney’s lien does not equate to the

right to control the underlying litigation to satisfy the attorney’s interest.” Id. at 19. We reasoned

that to hold otherwise “would lead to an absurd result where attorneys could commandeer their

client’s litigation to pursue their own financial interest.” Id. at 20.

        2.       Wiley’s declaration

        Wiley argues that Aiken is distinguishable because his declaration established that

Wolfley was representing him on the attorney fees motion and ratified Wolfley’s statements

and actions. Armstrong Marine correctly points out that the trial court permitted Wiley to file

                                                  7
No. 53163-1-II
the declaration, even though it was untimely under the Clallam County Local Court Rules, but

the court ultimately did not consider it.

        Wiley did not challenge on appeal the trial court’s refusal to consider his declaration.

RAP 5.3(a)(3) provides that a notice of appeal must designate “the decision or part of decision

which the party wants reviewed.”5 (Emphasis added.) Here, Wiley’s amended notice of appeal

specified the parts of the trial court’s decision that he was appealing, the determination that

Wiley was not the prevailing party, and the denial of attorney fees, without mentioning the

decision not to consider the declaration. Moreover, in his opening brief, Wiley did not assign

error to the trial court’s decision not to consider his declaration. RAP 10.3(a)(4); Becerra v.

Expert Janitorial, LLC, 181 Wn.2d 186, 191 n.4, 332 P.3d 415 (2014) (declining to review the

trial court’s decision on whether to consider declarations because the party failed to assign

error). The trial court’s decision not to consider Wiley’s declaration was not properly appealed.

        Even if we were inclined to ignore the failure to properly appeal the trial court’s decision

regarding the declaration, the trial court’s refusal to consider the declaration was plainly within

the trial court’s discretion. See, e.g., O’Neill v. Farmers Ins. Co. of Wash., 124 Wn. App. 516,

522, 125 P.3d 134 (2004) (affirming a trial court’s decision not to consider late-filed

declarations). The declaration was presented to the trial court and opposing counsel for the first

time on the morning of the hearing on Wolfley’s motion, in violation of Clallam County LCR

77(k)(6), so there was a valid basis for the trial court’s refusal.




5
  We note that Wiley did not attach to his amended notice of appeal the written order of the trial
court. “The party filing the notice of appeal should attach to the notice of appeal a copy of the
signed order or judgment from which the appeal is made.” RAP 5.3(a). Wiley filed the written
order at this court’s request and included the written order in the clerk’s papers without further
amending his notice of appeal.
                                                8
No. 53163-1-II
       3.      Wolfley’s claim brought on his own behalf

       We must therefore determine whether it was proper for Wolfley to bring a claim for

attorney fees on his own behalf. In Wolfley’s motion for attorney fees he did not mention Wiley

and asserted the basis for the motion was RCW 60.40.010. Armstrong Marine argued in its

response that Wolfley could not “step into the shoes of his former client.” CP at 28.

       These facts are similar to those in Aiken. Wolfley brought his motion for attorney fees

on his own behalf to satisfy his attorney’s lien. Wolfley attempted to control the underlying

litigation to satisfy his own interest, which RCW 60.40.010 does not permit him to do. Aiken,

195 Wn. App. at 19. The statute gives Wolfley the right to enforce his lien against any proceeds

of the litigation received by Wiley, but it does not allow him to take control of the litigation in

order to generate those proceeds. Thus, under Aiken, it was improper for Wolfley to assume

Wiley’s place to move for attorney fees when Wolfley had withdrawn from Wiley’s case.

       Wiley argues Aiken is distinguishable because there the litigation was ongoing, whereas

here the case had been dismissed.6 He reasons that Wolfley’s right to enforce his lien

materialized at the time of dismissal and it was proper for Wolfley to move on his own to seek

attorney fees at that time. But again, the question is not whether Wolfley’s lien would attach to

an award of attorney fees under RCW 60.40.010—it likely would. The question is whether

RCW 60.40.010 gave Wolfley the right to pursue those fees in the first place where he no longer




6
  Wiley also makes the conclusory argument that this issue is moot, without explanation or
citation to authority. Presumably, he is referring to the fact that he filed a declaration ratifying
Wolfley’s motion as his own. But as discussed above, the trial court properly declined to
consider this declaration, so it was not effective in resolving the case. We therefore reject
Wiley’s mootness claim.
                                                 9
No. 53163-1-II
represented Wiley and Wiley was not pursuing those fees himself. Under Aiken, the statute does

not create such a right of action. 195 Wn. App. at 20.

        Because we agree with the trial court that Wolfley was not authorized to move for

attorney fees on his own behalf, we need not address the remaining issues. Wiley requests

attorney fees on appeal under RAP 18.1 and the parties’ contract. Because Wiley is not the

prevailing party on appeal, we reject this request.

                                         CONCLUSION

        We affirm. Wolfley’s underlying motion for attorney fees was improper and the trial

court did not err in denying it. Wolfley did not have authority to take control of his former

client’s litigation and Wiley failed to properly appeal or assign error to the trial court’s decision

not to consider Wiley’s declaration.

        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.



                                                      Glasgow, J.
 We concur:



 Sutton, A.C.J.




 Cruser, J.




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