      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES BEARDEN,                                  No. 72926-8-

                     Respondent,         )      DIVISION ONE


      v.

                                                PUBLISHED OPINION
DOLPHUS MCGILL-i                         /




                     Appellant,          )

NELLIE KNOX MCGILL,                      )
                                                FILED: April 11,2016
                     Defendant.          )


      Leach, J. — MAR 7.3 and RCW 7.06.060(1 )1 require that the superior

court assess costs and reasonable attorney fees against a party who asks for a

trial de novo and does not improve his or her position at trial. Here, the parties

disagree about how to determine if Dolphus McGill improved his position at a trial

de novo.


      James Bearden sued McGill for damages caused by an auto accident. An

arbitrator awarded     Bearden    $44,000.00   in compensatory damages and

$1,187.00 in statutory costs, for a total arbitration award of $45,187.00. McGill

requested a trial de novo.    The jury awarded Bearden less in compensatory



      1 Because the rule and statute are substantively identical, we refer to them
together as MAR 7.3.
NO. 72926-8-1 / 2




damages, $42,500.00. But the trial court awarded more in costs, $3,296.39, for a

total judgment against McGill of $45,796.39. Bearden then asked for an award of
reasonable attorney fees. By comparing the total arbitration award with the total

trial judgment, including all statutory costs, the trial court decided that McGill

failed to improve his position at trial; the total judgment exceeded the total

arbitration award.   It awarded Bearden $71,800.00 in attorney fees.         McGill

appeals.

      We hold that a court determines if a party improved its position at a trial de

novo by comparing every element of monetary relief the arbitrator considered

with the trial court's award for those same elements.       Here, this means the

damages and statutory costs that both the arbitrator and trial court considered. It

excludes those statutory costs requested only from the trial court.            This

comparison shows that McGill improved his position at a trial de novo. Thus, the

trial court erred in awarding Bearden MAR 7.3 attorney fees. We reverse that

award. Because McGill does not show that the trial court abused its discretion in

awarding Bearden certain challenged costs, we affirm the award of those costs.

                                      FACTS


       Dolphus McGill injured James Bearden in a January 2011 automobile

accident. After Bearden sued, the parties took part in mandatory arbitration. The



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NO. 72926-8-1 / 3




arbitrator awarded Bearden $44,000 in compensatory damages and $1,187 in

fees and costs, for an arbitration award of $45,187.

       McGill requested a trial de novo. The jury awarded Bearden $42,500.00

in damages. The trial court then awarded Bearden $3,296.39 in costs. These

included costs incurred after the arbitration. The total judgment against McGill

was thus $45,796.39.2

       Bearden then asked for attorney fees under MAR 7.3, arguing that McGill

failed to improve his position by appealing the arbitration award.         Bearden

pointed out that the $45,796.39 trial court judgment against McGill exceeded the

$45,187.00 arbitration award. McGill responded that costs should not factor into

the analysis: he improved his position from a $44,000.00 damages award after

arbitration to a $42,500.00 damages award after trial. McGill also argued that

Bearden's claimed fees were excessive.

       The trial court compared the total amounts after arbitration and trial,

including costs, to see if McGill improved his position by going to trial. The court

ruled McGill did not improve his position, so MAR 7.3 entitled Bearden to

$71,800 in attorney fees. McGill appeals.




      2 The trial court judge filled in the judgment form erroneously, writing that
Bearden was awarded a total judgment of $42,500.00 rather than the correct
sum, $45,796.39. McGill points this error out but does not contend that it makes
$42,500.00 the true judgment.
                                         -3-
NO. 72926-8-1 / 4




                            STANDARD OF REVIEW

      This court reviews de novo whether a statute authorizes an award of

attorney fees.3 The application of a court rule is also a question of law we review
de novo.4 This court upholds attorney fee and cost awards unless it finds the trial

court manifestly abused its discretion.5

                                    ANALYSIS


MAR 7.3 Attorney Fees

       Washington generally follows the "American rule," where each party in a
civil action pays its own attorney fees and costs.6 But a party may recover
attorney fees when authorized by statute, a recognized ground of equity, or party
agreement.7 Bearden asserts a right to recover fees under MAR 7.3 and RCW
7.06.060(1).    McGill disagrees, claiming that Bearden does not meet the
requirements of the rule and statute. He contends that the trial court should not
have compared the total arbitration award with the total trial court judgment to

decide if McGill improved his position for purposes of applying MAR 7.3. He




       3 Niccum v. Enquist, 175 Wn.2d 441, 446, 286 P.3d 966 (2012).
       4 Niccum, 175 Wn.2d at 446.
       s In re Disciplinary Proceeding Against VanDerbeek, 153 Wn.2d 64, 99,
101 P.3d 88 (2004).
       e Cosmo. Enq'a Grp.. Inc. v. Ondeo Deoremont. Inc., 159 Wn.2d 292, 296,
 149 P.3d 666 (2006).
       7 Niccum, 175 Wn.2d at 446.
                                           -4-
NO. 72926-8-1 / 5




argues that he improved his position using the proper comparison, the arbitrator's

damages award to the jury's damages award.

       To resolve this case, we follow several principles of statutory construction.

A court accepts, without interpretation, the plain meaning of a clearly worded

statute.8   A court will deem a statute ambiguous if it has more than one

reasonable interpretation.9 A court will interpret an ambiguous statute in the way

that best fulfills the legislature's intent.10

       MAR 7.3 imposes on a party who appeals an arbitration award an

obligation to pay costs and reasonable attorney fees incurred after the filing of a

request for a trial de novo when that party "fails to improve the party's position on

the trial de novo."11 Like all mandatory arbitration rules, we interpret this rule as if

the legislature drafted it.12 The legislature intended this provision to encourage

settlement and discourage meritless appeals.13

       This court has consistently held that to decide if a party improved its

position, the trial court may compare only the claims the party actually arbitrated

with those it tried in superior court. We first applied this rule in Christie-Lambert




        8 Biggs v. Vail, 119Wn.2d 129, 134, 830 P.2d 350 (1992).
        9 In re Marriage of Kovacs, 121 Wn.2d 795, 804, 854 P.2d 629 (1993).
        10 Kovacs, 121 Wn.2d at 804.
        11 MAR 7.3; RCW 7.06.060(1).
        12 Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001).
        13 Niccum, 175 Wn.2d at 451.
                                             -5-
NO. 72926-8-1 / 6




Van & Storage Co. v. McLeod.14 There, Christie-Lambert arbitrated its claims

against McLeod and Nolan. McLeod did not arbitrate his crossclaim against

Nolan because he had not served her. The arbitrator made an award in favor of

Christie-Lambert. McLeod requested a trial de novo. He did not improve his

position on the issues arbitrated with Christie-Lambert but, having served Nolan,

received a judgment against her. The trial court denied Christie-Lambert's fee

request because McLeod had improved his overall position due to his recovery

from Nolan.15 We reversed and awarded Christie-Lambert fees because McLeod

had not improved his position on the arbitrated claim.16 To reach this result, we

compared the disposition of claims actually litigated between the parties both at

arbitration and trial.


       In Sultani v. Leuthv,17 Sultani sued four defendants for injuries he suffered

in two separate car accidents. An arbitrator awarded damages against the four

defendants jointly and severally. At a trial de novo, requested by a defendant, a

jury awarded Sultani a higher amount of damages but apportioned the total

award among the defendants based on a percentage of fault. This meant that

Sultani recovered a lesser damages award from each individual defendant at trial

than he recovered in arbitration.     Because Sultani had improved his overall

        14 39 Wn. App. 298, 303, 693 P.2d 161 (1984).
        15 Christie-Lambert, 39 Wn. App. at 300-01.
        16 Christie-Lambert, 39 Wn. App. at 305-06.
        17 86 Wn. App. 753, 755, 943 P.2d 1122 (1997).
                                        -6-
NO. 72926-8-1 / 7




award, the trial court awarded him MAR 7.3 fees.18 We reversed, holding that

the court should have compared the result at arbitration and trial for the claim

litigated between Sultani and each individual defendant.           Because Sultani

recovered a lesser amount at trial from each individual defendant, each had

improved its position.19

       In Yoon v. Keeling,20 Division Two followed Christie-Lambert and Sultani.

Yoon sued Fernau and Keeling for injuries he suffered in a car accident. An

arbitrator awarded Yoon $10,769.00 and apportioned fault 25 percent to Fernau

and 75 percent to Keeling. Fernau requested a trial de novo. Before trial, Yoon

settled with Fernau and Keeling for $8,000.00, leaving only the issue of

apportionment of liability for trial.   A jury allocated this liability 32 percent to

Fernau and 68 percent to Keeling. This resulted in Fernau owing Yoon $132.25

less than she owed under the arbitration award.21

       The trial court awarded Keeling MAR 7.3 fees against Fernau.           Fernau

appealed, claiming she improved her position because she had reduced the

amount she owed Yoon.22         Division Two affirmed the trial court, holding that

because Fernau had not improved her position on the only issue litigated at both



       18 Sultani, 86 Wn. App. at 755-56.
       19 Sultani, 86 Wn. App. at 761.
       20 91 Wn. App. 302, 305-06, 956 P.2d 1116 (1998).
       21 Yoon, 91 Wn. App. at 304.
       22 Yoon, 91 Wn. App. at 304.
                                          -7-
NO. 72926-8-1 / 8




arbitration and trial between Fernau and Keeling, apportionment of fault, MAR

7.3 entitled Keeling to fees.23

       In Mei Tran v. Yue Han Yu,24 this court considered facts analogous to

those in this case. In mandatory arbitration with Yu, Tran recovered $14,675.00

in damages. Yu requested a trial de novo. At trial, Tran recovered $13,375.00.

Posttrial, Tran requested and received statutory costs of $955.80 and $3,205.00

in attorney fees under CR 37(c) for proving in superior court matters that Yu

denied in requests for admission.         This resulted in a total judgment of

$17,535.80.   Because this total exceeded the arbitration award, Tran asked for

MAR 7.3 attorney fees.25          The trial court denied the request, and Tran

appealed.26 We affirmed, holding that only the disposition of claims litigated at

both the arbitration and trial should be compared to decide if Yu improved her

position.27

       Most recently, in Miller v. Paul M. Wolff Co.,28 Division Three approved a

similar approach.29    Miller sued Wolff for unpaid commissions.    An arbitrator



       23 Yoon, 91 Wn. App. at 306.
       24 118 Wn. App. 607, 75 P.3d 970 (2003).
       25 Mei Tran, 118 Wn. App. at 609-10.
       26 Mei Tran, 118 Wn. App. at611.
       27 Mei Tran, 118 Wn. App. at 616-17.
       28 178 Wn. App. 957, 316 P.3d 1113 (2014).
      29 we view this recent decision, rather than the older Wilkerson v. United
Investment, Inc., 62 Wn. App. 712, 815 P.2d 293 (1991), as representing Division
Three's current jurisprudence on the issue.
                                         -8-
NO. 72926-8-1 / 9




awarded Miller $22,802.84 but denied his request for attorney fees under RCW

49.48.030. Miller requested a trial de novo. The trial court awarded damages of

$21,628.97 plus $74,662.00 in attorney fees under RCW 49.48.030.30 Wolff

appealed, claiming in part that MAR 7.3 entitled it to a fee award because Miller

had not improved his position at trial because he received a smaller damages

award.31 Division Three affirmed the trial court. It concluded that a court should

compare the success of aggregate claims litigated in both the arbitration and trial

to decide if Miller improved his position at trial. Because the parties litigated the

attorney fee claim at both, it should be considered.32

       Thus, all three divisions of the Washington Court of Appeals agree that to

determine if a party improved its position at a trial de novo, the superior court

should compare the aggregate success on claims actually litigated between the

parties at both the arbitration and the trial de novo—whether those claims were

for damages,33 statutory fees,34 costs, or sanctions.35

       The Supreme Court has neither adopted nor rejected the "compare

comparables" rule.36     In Halev v. Highland,37 the Supreme Court "generally

      30 Miller. 178 Wn. App. at 962.
      31 Miller, 178 Wn. App. at 966.
      32 Miller, 178 Wn. App. at 967-68.
      33 Christie-Lambert, 39 Wn. App. at 303-06.
      34 Miller, 178 Wn. App. at 967-68.
      35 Mei Tran, 118 Wn. App. at 616-17.
      36 Niccum, 175 Wn.2d at 448; Halev v. Highland, 142 Wn.2d 135, 154, 12
P.3d 119 (2000); see Miller, 178 Wn. App. at 967.
                                         -9-
NO. 72926-8-1/10




agree[d] with the Court of Appeals' view that only comparables are to be

compared." But it declined to consider if attorney fees have any place in an MAR

7.3 determination because the party seeking to include fees in the comparison

could have requested them at arbitration but did not.38 The Supreme Court held

this precluded inclusion of those fees in the MAR 7.3 comparison.39 In Niccum v.

Enguist,40 the Supreme Court held that trial courts should not subtract purported

"costs" from offers of compromise when comparing those offers to jury awards.

The court reasoned that "a party is not entitled to costs in connection with an

offer of compromise," so there is no amount to deduct.41 The court distinguished

Mei Tran and other cases where—as in this case—courts "were simply asked to

compare a party's position after arbitration to its position after trial de novo."42

       Here, the trial court attempted to distinguish Mei Tran, explaining, "There,

the arbitrator had not considered costs, so there were no arbitration costs to

compare to costs following a trial de novo." The trial court then included all the

fees and costs it had awarded Bearden in comparing the total trial judgment to



       37 142 Wn.2d 135, 154, 12 P.3d 119 (2000).
       38 Halev, 142 Wn.2d at 154-55.
       39 Halev, 142 Wn.2d at 154-55.
       40 175 Wn.2d 441, 446, 450, 286 P.3d 966 (2012).
       41 Niccum, 175 Wn.2d at 448.
       42 Niccum, 175 Wn.2d at 448. In light of Niccum, this court reversed its
decision in Stedman v. Cooper on reconsideration, holding that the trial court
erred in subtracting "costs" from an offer of compromise before comparing it to a
jury verdict. 172 Wn. App. 9, 23, 292 P.3d 764 (2012).
                                          -10-
NO. 72926-8-1 /11




the total arbitration award.    In support of this ruling, Bearden contends that

"where statutory fees or costs are placed 'at issue' at arbitration and at trial, the

trial court should include [those fees and costs] in determining whether the

appealing party improved its position." Bearden distinguishes Mei Tran on that

basis and contends that Miller required the trial court include all the costs at both

stages. McGill responds that Mei Tran mandates the trial court compare only the

damages the arbitrator awarded to those the trial court awarded.

       Contrary to both parties' assertions, Mei Tran and Miller are consistent.

Miller held that a trial court may consider certain fees and costs to determine

whether a party improved its position under MAR 7.3. Division Three considered

attorney fees where "the arbitrator denied attorney fees based on the exact

argument that was successful at trial."43 That argument was that RCW 49.48.030

entitled the plaintiff to attorney fees in his action on wages.44 In contrast, here,

the trial court awarded Bearden fees and costs not requested from the

arbitrator.45   Neither Mei Tran nor Miller allows a trial court to include in its

comparison costs and fees the arbitrator was not asked to consider.




        43 Miller, 178 Wn. App. at 967-68.
        44 Miller, 178 Wn. App. at 968-69.
        45 These included $103.84 in witness fees, $1,752.05 in deposition costs,
$400.00 for Dr. Gaddis's report, $9.50 for a police report, and part of the $498.00
in filing fees. Of course, Bearden did not submit these costs to the arbitrator
because he incurred them only in preparing for trial.
                                        -11-
NO. 72926-8-1/12




       The arbitrator in this case awarded Bearden the filing fee, costs of service

of process and records and reports, and statutory attorney fees totaling

$1,187.00, all under RCW 4.84.010. After trial, the court considered all of these

fees and costs and others that Bearden incurred after arbitration for trial. Of the


fees and costs that Bearden presented to the arbitrator, the trial court awarded

Bearden only $765.49.46 Thus, among the fees and costs the arbitrator had

considered, the trial court awarded Bearden $421.51 less.         Combined with the

$1,500.00 less that Bearden recovered in damages, McGill thus improved his

position by $1,921.51 when comparing those fees, costs, and damages that both

the arbitrator and trial court considered. McGill improved his position at trial.

       This result comports with cases from the three divisions of this court and

the Supreme Court.      Consistent with our observation that "[a] trial is almost

always more expensive than arbitration," this result does not consider those fees

and costs that arise only for trial.47    In Halev, the Supreme Court "generally

agree[d] with" this court's compare comparables rule but found it unnecessary to

adopt a bright-line rule that "attorney fee awards have no place in making an




      46 This includes $232.49 in filing fees, $200.00 in statutory attorney fees,
and $333.00 for serving McGill, all of which the arbitrator had awarded Bearden.
But the trial court declined to award two more costs the arbitrator awarded:
$276.00 for medical records and $195.00 for serving Nellie Knox McGill.
      47 Mei Tran, 118 Wn. App. at 612; Haley. 142 Wn.2d at 159 (Talmadge, J.,
concurring).
                                         -12-
NO. 72926-8-1/13




MAR 7.3 determination."48 This rule compares comparables while allowing that

courts may in some cases consider fee awards in making MAR 7.3 decisions.

And in Niccum, the Supreme Court excluded fees and costs from its comparison

because a party making an offer of compromise is not yet entitled to fees and

costs.49 Unlike an offer of compromise, an arbitrator's award can include fees

and costs, so Niccum does not preclude their inclusion here.

       Bearden also asserts that the 2011 amendments to the MAR support the

trial court's inclusion of costs in comparing awards. Those amendments clarified

"the authority of the arbitrator to award costs and attorney fees."50 They did not

address if, for application of MAR 7.3, a party "fails to improve [its] position on the

trial de novo" where the total judgment is greater than the arbitration award. We

presume the Supreme Court knew about the Court of Appeals' decisions we

have discussed above and could have changed the rule to require a different

result if it disagreed.

       Finally, Bearden contends that the policies of the mandatory arbitration

system support his position.        Bearden correctly notes that the legislature

intended mandatory arbitration to relieve court congestion and provide a speedy




       48 Halev, 142Wn.2dat154.
       49 Niccum. 175 Wn.2d at 450.
       50 Purpose statement to proposed amendment to MAR 3.2(a), Wash. St.
Reg. 11-01-023 (Dec. 2, 2010).
                                         -13-
NO. 72926-8-1 /14




and inexpensive method for resolving claims of $50,000 or less.51       But an

interpretation of MAR 7.3 that discourages meritorious appeals would also

frustrate the purposes of the mandatory arbitration system.52

      Because McGill improved his position at trial, MAR 7.3 did not entitle

Bearden to attorney fees, and the trial court erred in awarding him those fees.

We reverse that award.53

The Trial Court's Cost Awards


Dr. Gaddis's Report

       McGill contends the trial court erred in awarding Bearden $400.00 for Dr.

Gaddis's report. RCW 4.84.010(5) allows for reasonable expenses "incurred in

obtaining reports and records[ ] which are admitted into evidence." Although

McGill improved his position at trial, Bearden was the prevailing party at both

arbitration and trial. RCW 7.06.060(3) "does not preclude the prevailing party

from recovering those costs and disbursements otherwise allowed under chapter

4.84 RCW, for both actions."

       McGill makes three challenges to the award of report costs under RCW

4.84.010(5). All three lack merit.




       51 Christie-Lambert, 39 Wn. App. at 302-03.
       52 See Hutson v. Costco Wholesale Corp., 119 Wn. App. 332, 338, 80
P.3d 615 (2003); Niccum, 175 Wn.2d at 452.
       53 See Stedman. 172 Wn. App. at 25.
                                       -14-
NO. 72926-8-1/15




       First, McGill argues the trial court erred in awarding costs for the report

because the trial court did not admit the report into evidence. But this court has

held that RCW 4.84.010(5) "plainly allows costs for medical records so long as

they are admitted into evidence, either in mandatory arbitration or at trial."54 The

same rule applies to reports under the same provision.           Since the arbitrator

admitted Gaddis's report, the trial court did not need to admit it to award its cost.

       Second, McGill contends the Gaddis report did not qualify under RCW

4.84.010(5) because that statute covers only costs of "obtaining" preexisting

documents, not producing new ones for litigation. McGill cites no authority for

this restrictive reading of the statute. This proposed interpretation would require

this court to add language to the statute that the legislature did not include.

       Third, McGill contends the report was an expert expense and therefore not

permitted under RCW 4.84.010. "[C]osts under the Mandatory Arbitration Rules

are limited to those items set forth in RCW 4.84.010."55 "'Where an expert is

employed and is acting for one of the parties, it is not proper to charge the

allowance of fees for such expert.'"56 "The party presenting an issue for review




      54 Stedman, 172 Wn. App. at 23 (holding RCW 4.84.010(5) entitled injured
motorist to costs for medical records admitted during mandatory arbitration but
not during trial de novo).
        55 Colarusso v. Petersen, 61 Wn. App. 767, 771, 812 P.2d 862 (1991).
        56 Wagner v. Foote, 128 Wn.2d 408, 417-18, 908 P.2d 884 (1996) (quoting
Fiorito v. Goerig, 27 Wn.2d 615, 620, 179 P.2d 316 (1947)).
                                         -15-
NO. 72926-8-1/16




has the burden of providing an adequate record to establish such error and

should seek to supplement the record when necessary."57

      McGill contends that Gaddis acted as Bearden's expert in preparing his

report, even though Gaddis also treated Bearden.      McGill acknowledges that

Gaddis's report is not part of the appellate record and Bearden's trial court

briefing provides the only description of it.   That brief states the arbitrator

admitted the report in lieu of a perpetuation deposition to help "establish the

reasonableness and necessity of the chiropractic and massage therapy

billings"—not, as McGill contends, as an opinion on the cause of Bearden's

injuries. This purpose is consistent with the report's cost being a "[reasonable

expense[ ]. .. incurred in obtaining reports and records" from a treating

physician, rather than a cost for an expert witness.58 This court cannot say on

this record that the trial court erred in awarding Bearden the cost of Gaddis's

report under RCW 4.84.010(5). We affirm that cost.

Dr. Murphy's Deposition

      McGill also contends that the trial court abused its discretion in awarding

Bearden 50 percent of the cost of Dr. Murphy's discovery deposition. Bearden's

attorney used Murphy's discovery deposition in cross-examining Murphy during


       57 State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012) (citations
omitted); RAP 9.2(b), 9.6, 9.10.
       58 RCW 4.84.010(5).
                                      -16-
NO. 72926-8-1/17




Murphy's perpetuation deposition.         The parties recorded and played the

perpetuation deposition at trial in lieu of Murphy's live testimony.

       RCW 4.84.010(7) allows cost awards for depositions "on a pro rata basis

for those portions of the depositions introduced into evidence or used

for. .. impeachment."    Neither party introduced Murphy's discovery deposition

into evidence, but Bearden used part of it to impeach Murphy. The question is

thus what constitutes a permissible "pro rata basis" for the portions Bearden used

to impeach Murphy in cross-examination.

       Bearden argued successfully that he should receive 50 percent of the cost

of Dr. Murphy's discovery deposition because his "cross-examination outline was

drawn from, and thus 'used,' Dr. Murphy's discovery deposition testimony."

McGill asserts that RCW 4.84.010 does not allow for such a broad definition of


"used for. .. impeachment." He contends the proper basis is closer to 2 percent

than 50 percent because Bearden's counsel directly cited only two pages during

cross-examination.59

       The appellate record does not contain Murphy's discovery deposition.

Although Bearden's attorney cited directly to the transcript only twice during the

perpetuation deposition, she impeached Murphy throughout using his history of

work as a defense witness and his incomplete basis for his opinions. This court

       59 This would make the proper pro rata amount $10.45 rather than
$261.25.
                                         -17-
NO. 72926-8-1/18




cannot say on this record that the trial court abused its discretion in deciding that

Bearden "used" 50 percent of Murphy's discovery deposition for impeachment.

We therefore reject McGill's challenge to the award of costs for Murphy's

deposition.

Lack of Contemporaneous Proof of Expenses

       Next McGill contends, without citing authority, that the trial court "generally

abused its discretion by not requiring any sort of bills, invoices, or receipts to

justify the claimed expenses."60

       A trial judge has broad discretion in determining the reasonableness of an

award. This court will not disturb an award unless the appellant demonstrates

that the trial court manifestly abused its discretion.61 The trial court here relied on

two sworn declarations from Bearden's counsel to support the costs.             These

declarations itemized and described each cost for the trial court and provided

additional clarification where McGill challenged the costs. The trial court did not

manifestly abuse its discretion by relying on Bearden's counsel's sworn

declarations to determine costs.62


       60 McGill notes that he objected to the lack of documentation in his
objections to plaintiff's proposed judgment.
       61 Ethridge v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001).
       62 McGill's contentions that that lack of documentation led to exorbitant
costs also lack merit. He claims Murphy's perpetuation deposition cost over
$200 more than Murphy's discovery deposition, despite being "likely a shorter
deposition." McGill cannot say for certain the perpetuation deposition was
shorter; the figures are not far apart ($750 to $520); and the factors that go into
                                         -18-
NO. 72926-8-1/19




Exclusion of Bearden's Proposed Costs

       Bearden contends in his response brief that the trial court abused its

discretion in refusing to award Bearden the costs of serving Nellie Knox McGill

and obtaining Bearden's medical records. The arbitrator had allowed both costs.

       This court will grant a respondent affirmative relief of a trial court's

decision "only (1) if the respondent also seeks review of the decision by the

timely filing of a notice of appeal or a notice of discretionary review, or (2) if

demanded by the necessities of the case."63             Because Bearden requests

affirmative relief but did     not file a    notice of appeal or "independently

demonstrate! ] a basis for relieving [him] of the requirements of RAP 2.4," we

reject his challenges to the trial court's exclusions of costs.64

Attorney Fees and Costs for Appeal

       Finally, Bearden argues that RAP 18.1 entitles him to fees on appeal.

RAP 18.1 authorizes appellate courts to award reasonable attorney fees or

expenses where authorized by applicable law. "A party entitled to attorney fees




pricing depositions are not before the court. McGill also claims that because
Bearden did not use Murphy's deposition in his case in chief, Bearden did not
"need" to spend money on Murphy's perpetuation deposition. McGill cites no
authority to support this proposition. Further, McGill did not object before trial to
the perpetuation deposition costs or their lack of documentation.
       63 RAP 2.4(a), 2.5(a); Happy Bunch, LLC v. Grandview N., LLC, 142 Wn.
App. 81, 90 n.2, 173 P.3d 959 (2007).
       64 See Happy Bunch, 142 Wn. App. at 90 n.2.
                                         -19-
NO. 72926-8-1 / 20




under MAR 7.3 at the trial court level is also entitled to attorney fees on appeal if

the appealing party again fails to improve her position."65

       Because we reverse the trial court's award of attorney fees to Bearden,

McGill has improved his position on appeal.        We therefore decline to award

Bearden RAP 18.1 fees.


                                  CONCLUSION


       Under MAR 7.3 and RCW 7.06.060(1), McGill improved his position by

requesting a trial: Bearden's combined damages, costs, and fees were less after

trial than after arbitration when comparing only those costs and fees litigated

before both the arbitrator and trial court.    The trial court thus erred in ruling

otherwise.   We reverse the trial court's award of attorney fees to Bearden.

Because the record does not show the trial court abused its discretion in

awarding Bearden the costs of Dr. Gaddis's report or Dr. Murphy's discovery




      65 Arment v. Kmart Corp., 79 Wn. App. 694, 700, 902 P.2d 1254 (1995);
Bovd v. Kulczyk, 115 Wn. App. 411,417, 63 P.3d 156 (2003).
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deposition, we affirm those awards. We deny Bearden's request for fees on

appeal.




                                              JL
WE CONCUR:




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                                                                    CO




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