                                                                                       TIED
                                                                              COURT OF APPEALS
                                                                                    DIVISION II

                                                                             2015 MAY 27 AM 9: 31

                                                                             STATE OF WASHINGTON

                                                                              BY       jC
                                                                                     OtPb(T Y
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


 BRETT       HAYFIELD         and   KATHY     DAVIS-                       No. 45202 -2 -II
 HAYFIELD, husband and wife,


                   Respondents /Cross -Appellants,


          v.




 BEATRIX RUFFIER and ROBERT RUFFIER,                                   PUBLISHED OPINION
 husband and wife,


                    Appellants /Cross- Respondents.



       LEE, J. —       Brett Hayfield and Kathy Davis -Hayfield appeal the trial court' s denial of their

request for attorney fees under RCW 19. 122. 040 after the trial court found their neighbors, Beatrix

and Robert Ruffier, liable for damage caused to the Hayfield home by an excavation on the Ruffier

property.      Because RCW 19. 122. 040 provides for a mandatory award of attorney fees to the

prevailing party, we hold that the trial court erred in failing to award attorney fees to the Hayfields.

Accordingly, we reverse the trial court' s denial of attorney fees incurred at trial and remand for

determination     of   the Hayfields' attorney   fees below.   We also award the Hayfields attorney fees

on appeal.



                                                    FACTS


        The Hayfields and the Ruffier live on adjoining high -bank waterfront property in Gig

Harbor.     In   February 2011,     the Hayfields   noticed water   accumulating in their basement.   The
No. 45202 -2 -II



basement had      not   leaked previously      during   their seven -year ownership of the   house. The water


appeared to be coming from under the washer and dryer, but when the Hayfields inspected the

units,   they found     no   leaking. They vacuumed up the water and hoped that it was an isolated

incident.


          At the same time that the water began infiltrating the Hayfield basement, Robert Ruffier

was using a backhoe to dig out a two -foot diameter tree stump on his property. Ruffier excavated

a trench around the stump that was about three feet deep, and he used the bucket of the backhoe to

wiggle    the stump     out of   the ground.    He then backfilled the hole with dirt and compacted it by

driving   over   the hole    with   the backhoe.    Ruffier made no effort to identify any utilities before

performing the excavation work and did not provide notice of his work to the Hayfields or anyone

else. The Hayfields saw Ruffier performing this excavation work.

          Water continued to accumulate in the Hayfields' basement, and they began pumping it out

of a   basement   window.        Over the next three weeks, the Hayfields contacted a series of plumbers,


leak detection contractors, and Pierce County officials to investigate the flooding. No one could

identify the source of the water, and several inches of water remained in the basement.

          In early March, the Hayfields discovered that three feet of water had entered their basement

overnight and had caused extensive damage. The pumps could not keep up with the water entering

the basement, and the source of the water was still unknown.


          The Hayfields called another plumber, Tom Bozeman, and his investigation revealed a


floor drain in the basement that was not taking water. Bozeman suspected that the flooding was

due to an obstruction in the drain system that was causing water to back up through the floor drain

and into the basement.




                                                           2
No. 45202 -2 -II



          Bozeman confirmed the existence of the Hayfields' foundation drain system and that the

system connected to an underground drain pipe that runs from the Hayfields' house and across the


boundary line into the Ruffiers' property.

          When he tried to insert a plumbing snake through the drain pipe, Bozeman encountered an

obstruction.    He then confirmed that the obstruction was in the same location where Ruffier had


removed the stump in February.

          Before Bozeman returned for further investigation, Ruffier used his backhoe to dig out a

large hole   where     he had   removed   the stump.   When he uncovered the Hayfields' crushed drain


pipe, water immediately entered the hole. After Ruffier cleaned out the pipe, water exited the hole

and drained out of the Hayfields' basement.


          The Hayfields sued the Ruffiers for the damage caused to their basement, alleging that the

excavation constituted negligence as well as a violation of chapter 19. 122 RCW, the " Underground


Utility   Damage Prevention Act."         Following a bench trial, the court concluded that

                  8.    Although [ the Ruffiers]       technically violated the terms of RCW
          19. 122. 040, notice to [ the Hayfields] of the excavation and/ or calls to " 811" would
                                                             1'
          not have prevented the damage that occurred.[         Therefore, although [ Ruffier] is
          liable for   common     law   negligence   to [ the Hayfields]      for their damages, [ the
          Hayfields] are not entitled to recover their attorney' s fees per RCW 19. 122. 040(4).

Clerk' s Papers ( CP) at 31 -32. The trial court entered judgment accordingly.

          The Ruffiers    appealed, and    the Hayfields    cross -appealed   the   denial   of   attorney fees.   We


granted the Ruffiers' motion to dismiss their appeal and here address only the Hayfields' argument

that they are entitled to attorney fees under RCW 19. 122. 040( 4).




1 The reference to an 811 call is to the 811 " dial- before -you -dig" system in Washington.
Verbatim Report of Proceedings ( May 8, 2013) at 10.
                                                        3
No. 45202 -2 -II



                                                   ANALYSIS


A.        ATTORNEY FEES UNDER RCW 19. 122. 040( 4)


           1.    Standard of Review


          At issue is whether the language in RCW 19. 122. 040( 4) stating that the prevailing party

 is entitled to" attorney fees requires or merely allows an award of fees to the prevailing party.

We review questions of statutory interpretation de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761,

317 P. 3d 1003 ( 2014).        Our objective is to ascertain and carry out the legislature' s intent. Jametsky,

179 Wn.2d at 762. If the plain language of the statute is unambiguous, we enforce it according to

its   plain     meaning.    Life Care Ctrs.   ofAm.,   Inc.   v.   Dep' t   of Soc. & Health Servs.,   162 Wn. App.

370, 375, 254 P. 3d 919 ( 2011).        The plain meaning of an undefined statutory term can be discerned

from its      dictionary    definition. Estate of Haselwood        v.   Bremerton Ice Arena, Inc., 166 Wn.2d 489,


498, 210 P. 3d 308 ( 2009).         We also determine the plain meaning of a statutory provision from the

general context of the statute, related provisions, and the statutory scheme as a whole. Wash. Pub.

Ports Ass 'n v. Dep' t ofRevenue, 148 Wn.2d 637, 645, 62 P. 3d 462 ( 2003).

          2. Construing RCW 19. 122. 040( 4)

          The Underground Utility Damage Prevention Act, 2 chapter 19. 122 RCW, sets forth a series

of obligations for excavators that are intended to protect existing underground facilities and to

protect the public health and safety from interruption in utility services caused by damage to such

facilities. Former RCW 19. 122. 010 ( 1984).            Neither party challenges the trial court' s conclusions




2 The Underground Utility Damage Prevention Act was given this title as part of extensive
revisions       that took  January 1, 2013. RCW 19. 122. 901. Because the excavation at issue
                            effect on

occurred in 2011, we otherwise cite only the statutory language that was in effect at that time.


                                                              4
No. 45202 -2 -II



that, under the Act, Ruffier was an excavator who performed an excavation that affected an

                                  3
underground           facility.       Former RCW 19. 122. 020( 4), ( 6), ( 22) ( 2007).


           The       statute also provides             that: "   In any action brought under this section, the prevailing

party is      entitled     to   reasonable attorneys'            fees."        RCW 19. 122. 040( 4).       The parties do not dispute


that the Hayfields are the prevailing party                         under        RCW 19. 122. 040( 4).          See Riss v. Angel, 131


Wn.2d 612, 633, 934 P. 2d 669 ( 1997) ( prevailing                              party is generally one who receives affirmative

judgment).           Rather, the parties disagree on whether the language in the statute stating that the

prevailing party " is entitled to" attorney fees requires or merely allows an award of attorney fees

to the prevailing party.

           The Ruffiers rely on the dictionary definition of "entitled" in arguing that the language of

RCW 19. 122. 040( 4) is               permissive.        They    assert    that the legal meaning          of   the term is "[ t] o grant a


legal   right   to    or   qualify for,"    while the more common meaning is to " furnish with proper grounds

for seeking      or    claiming something."                Br. of Cross -Resp' t at 12 ( citing BLACK' S LAW DICTIONARY

612 ( 9th      ed.   2009); WEBSTER'             S   THIRD NEW INT' L DICTIONARY 758 ( 3d                   ed.   1969)).   The Ruffiers


contend that these definitions show that " entitled" should be read as permissive and that RCW


19. 122. 020( 4) should be read as allowing the Hayfields to seek fees while not requiring the trial

court to award them. We disagree with relying on a single word in determining the meaning of a

phrase.



           The       phrase "    is   entitled       to" is defined       as   meaning " has     a right   to."    Bryan A. Garner, A


DICTIONARY            OF    MODERN LEGAL USAGE 942 ( 2d                           ed.   1995).    Consistent with this definition,


Washington courts have interpreted other statutes providing that a party " is entitled to" attorney



3 An underground facility includes " any item buried or placed below ground for use in connection
with    the   storage or conveyance of water."                     Former RCW 19. 122. 020( 22) ( 2007).



                                                                           5
No. 45202 -2 -II



fees as mandatory. In referring to RCW 4. 24. 510, which provides that the person prevailing on an

immunity defense " is entitled to" recover attorney fees, we stated that the trial court did not err

 when      it followed this         statute' s   mandatory authority to     award      attorney fees."   Segaline v. Dep 't of

Labor & Indus., 144 Wn.                App.      312, 327, 182 P. 3d 480 ( 2008), rev 'd on other grounds, 169 Wn.2d


467, 238 P. 3d 1107 ( 2010).               Similarly, the provision in RCW 26. 18. 160 stating that the prevailing

party " is       entitled    to"    attorney fees      renders   an award       of   fees mandatory.     In re Marriage of

Cummings, 101 Wn.                  App.   230, 235, 6 P. 3d 19,    review   denied, 141 Wn.2d 1030,( 2000);          see also



In   re   Marriage of Nelson, 62 Wn.                 App.   515, 520, 814 P. 2d 1208 ( 1991) ( award of fees required


because terms          of   RCW 26. 18. 160         are not   discretionary); see also Transpac Dev., Inc. v. Oh, 132

Wn.       App.    212, 217, 130 P. 3d 892 ( 2006) (              where lease provided that prevailing party in any

litigation is      entitled    to attorney fees,       award of    fees   was   mandatory     under   RCW 4. 84. 330).   The


phrase " is entitled to" makes an award of attorney fees to the prevailing party mandatory rather

than permissive.



           Ruffier argues that our Supreme Court has described the trial court' s authority to award

fees as discretionary in two decisions that addressed similar attorney fee provisions in RCW

69. 50. 505      and   RCW 18. 27. 040. See Guillen v. Contreras, 169 Wn.2d 769, 780, 238 P. 3d 1168


 2010) ( explaining that             claimant " may recover"       fees   under      RCW 69. 50. 505);   Cosmo. Eng' g Grp.

v.   Ondeo Degremont, Inc., 159 Wn.2d 292, 306, 149 P. 3d 666 ( 2006) (                               explaining that RCW

18. 27. 040 "     was   intended to       authorize"    attorney fees to prevailing party). Both RCW 69. 50. 505( 6)


and RCW 18. 27. 040( 6) state that the prevailing party " is entitled to" fees, but neither Guillen nor

Cosmopolitan Engineering addressed the issue of whether the phrase is mandatory or permissive.

The issue in Guillen           was     the meaning      of "substantially prevail[ s,]"      and the issue in Cosmopolitan


Engineering was whether fees were available in actions against contractors as well as actions



                                                                   6
No. 45202 -2 -II



against a contractor' s   bond.       169 Wn.2d    at   775; 159 Wn.2d    at   298.   Neither case supports the


position that Washington courts have interpreted the phrase " is entitled to" as permissive.


       Because the Hayfields prevailed in their action under RCW 19. 122. 040, they were entitled

town award of attorney fees incurred at trial.

B.     ATTORNEY FEES ON APPEAL


       Both   parties request an award of appellate             attorney fees.    RAP 18. 1 permits a party to

recover attorney fees on appeal where authorized by applicable law. Dan 's Trucking, Inc. v. Kerr

Contractors, Inc., 183 Wn.      App.    133, 143, 332 P. 3d 1154 ( 2014).         Because RCW 19. 122. 040( 4)


authorizes an award of attorney fees to the prevailing party, we grant the Hayfields' request for

attorney fees on appeal and deny the Ruffiers' request for similar relief.

       We     reverse   the   trial   court' s   denial   of   attorney fees     incurred   at   trial,   remand for


determination of Hayfields' attorney fees incurred at trial, and award the Hayfields attorney fees

on appeal.




                                                                                      Lee, J.

 We concur:




                                                          7
