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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JULIE ANN THOMAS, a single woman,
                                                 DIVISION ONE
              Appellant,
                                                 No. 72496-7-1
         v.
                                                 UNPUBLISHED OPINION
J.R. LeVASSEUR and DONNA
LOUISE LeVASSEUR, husband and
wife, individually and the marital
community composed thereof,

              Respondents.                        FILED: August 24, 2015


       Dwyer, J. —"Washington courts have repeatedly held that the absence of
an adequate record upon which to review a fee award will result in a remand of
the award to the trial court to develop such a record." Mahler v. Szucs, 135

Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998) (collecting cases). Here,
the trial court failed to enter adequate findings of fact and conclusions of law to

support the amount of its award of attorney fees and costs in favor of J.R. and
Donna LeVassseur, the respondents in this matter. Thus, we must reverse the

award and remand for further proceedings.



       On January 29, 2014, Thomas filed a lawsuit against her parents—the
LeVasseurs—in which she sought to quiet title to real property located in Seattle,

Washington. Thomas also filed a lis pendens.
No. 72496-7-1/2



       In early March 2014, the LeVasseurs brought a motion for summary

judgment. Therein, they requested an award of attorney fees, costs, and

expenses. In support of this motion, counsel for the LeVasseurs filed a fee

declaration; an amended fee declaration was filed with their reply. According to

counsel for the LeVasseurs, at that time, the total costs and fees amounted to

$25,280.50.

       On April 17, 2014, the trial court granted the LeVasseurs' motion for

summary judgment, dismissing Thomas' complaint. In doing so, the court

concluded that an award of attorney fees, costs, and expenses in favor of the

LeVasseurs was appropriate pursuant to either CR 11 or RCW 4.28.328(3).1

Furthermore, the court found "that the costs and expenses incurred by [the

LeVassuers], including their attorneys' fees, were reasonable and necessary to

defend the lawsuit initiated by Plaintiff." Nevertheless, the court deferred entry of

an order specifying the amount of fees awarded, noting that "[t]his award may be

reduced to judgment at Defendants' prerogative."

       On April 23, Thomas filed a notice of appeal, wherein she sought review of

several orders, including the aforementioned order granting summary judgment.2

That appeal has been resolved by separate opinion.

       Subsequently, on August 26, the trial court entered judgment against both

       1 This provision provides for the following:
       Unless the claimant establishes a substantial justification for filing the lis
       pendens, a claimant is liable to an aggrieved party who prevails in defense of the
       action in which the lis pendens was filed for actual damages caused by filing the
       lis pendens, and in the court's discretion, reasonable attorneys' fees and costs
        incurred in defending the action.
       2She also sought review of the "Order Denying Plaintiffs Motion for Leave to Amend,"
which was entered on April 17, 2014.
No. 72496-7-1/3



Thomas and her counsel of record in the amount of $26,280. Additionally, the

court noted that Thomas had not requested a stay of the enforcement of the April

17 order granting summary judgment, and "therefore concludes it is authorized to

cancel the Lis Pendens." The court stated that Thomas "must request a stay and

post an appropriate bond to defer enforcement of the Court's prior decisions."

The court directed Thomas to "file a supersedeas bond in the amount of

$950,000 pending appeal," adding that the bond "shall be filed by Sept. 5, 2014."

      Thomas neither requested a stay nor posted a supersedeas bond.

Instead, on September 5, she released the lis pendens on the property in dispute

and filed a notice of appeal, seeking review of both the "Order Granting

Defendants' Motion to Enter Judgment and Remove Lis Pendens" and the

judgment entered on August 26, 2014.3 This appeal stems from the September
5 notice of appeal.

                                                II


       Thomas contends that, even ifthe LeVasseurs were entitled to an award

of attorney fees and costs, the trial court nonetheless abused its discretion. This
is so, she asserts, because the amount awarded was unreasonable. We do
not_and, indeed, cannot—decide whether the amount ofthe award was, in fact,
unreasonable. Owing to the absence of necessarily specific findings offact and
conclusions of law, we cannot evaluate the propriety of the amount awarded.


       3In her merits briefing, Thomas contends that the trial court erred in canceling the lis
pendens and requiring her to post a supersedeas bond. During oral argument, however, counsel
forThomas conceded—and counsel for the LeVasseurs agreed—that these averments have
been mooted by subsequent events. Accordingly, we do not further address them.
No. 72496-7-1/4



Accordingly, we must remand this cause back to the trial court for further

proceedings.

      Appellate courts exercise a supervisory role to ensure that a trial court's

discretion in making an attorney fee award is properly exercised on articulable

grounds. Mahler, 135 Wn.2d at 435. Therefore, such an award must be

supported by findings of fact and conclusions of law sufficient to establish an

adequate record for review. Mahler, 135 Wn.2d at 435. "Washington courts

have repeatedly held that the absence of an adequate record upon which to

review a fee award will result in a remand of the award to the trial court to

develop such a record." Mahler, 135 Wn.2d at 435 (collecting cases).

       "Courts must take an active role in assessing the reasonableness of fee

awards .... Courts should not simply accept unquestioninglyfee affidavits from

counsel." Mahler, 135 Wn.2d at 434-35. "The total hours an attorney has

recorded for work in a case is to be discounted for hours spent on 'unsuccessful

claims, duplicated effort, or otherwise unproductive time.'" Miller v. Kenny, 180
Wn. App. 772, 823, 325 P.3d 278 (2014) (quoting Bowers v. Transamerica Title
Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)). Such discounting is

appropriate because "[f]ees are not penalties, but rather a cost of litigation."
Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841, 847, 917 P.2d

1086 (1995). "A trial court does not need to deduct hours here and there justto
prove to the appellate court that it has taken an active role in assessing the
reasonableness of a fee request." Miller, 180 Wn. App. at 823. However, in

order "to facilitate review, the findings must do more than give lip service to the

                                         -4-
No. 72496-7-1/5



word 'reasonable.'" Berrvman v. Metcalf. 177 Wn. App 644, 658, 312 P.3d 745

(2013), review denied, 179 Wn.2d 1026 (2014).

       In reviewing the award in this matter, we are guided by the language of

the lis pendens statute,4 which limits an award to "reasonable attorneys' fees and

costs incurred in defending the action." RCW 4.28.328(3). Given the

circumstances, the trial court's award must compensate the LeVasseurs for their

reasonable expenses in defending against the claims associated with the filing of
the lis pendens.5 Because the claimant's liability does not arise until the lis
pendens is filed, the award cannot be based on any attorney work performed
prior to that time.

        While the trial court did enter findings and conclusions in this matter, they

are conclusory. Hence, we are unable to ascertain whether the trial court
considered any of Thomas's objections, which included averments that the fee
declarations submitted by counsel for the LeVasseurs contained fees that were
duplicative, excessive, and—importantly—unrelated to the filing of the lis
pendens. Consequently, we are unable to determine from the record whether
the award properly compensates the LeVassuers for their reasonable expenses
incurred in defending against those claims upon which the filing ofthe lis
pendens was based.

        On remand, it will be incumbent upon the trial court to make and enter the

        4As explained by separate opinion, the award of attorney fees and costs was not
sustainable pursuant to CR 11.
        5Unlike CR 11, which permits the imposition ofmonetary sanctions for both
compensatory and punitive purposes, RCW 4.28.328(3) affords a court the discretion to award
 attorney fees and costs only for compensatory purposes.

                                              -5-
No. 72496-7-1/6



necessary findings of fact and conclusions of law. The findings must indicate the

manner in which the court resolved disputed issues of fact and the conclusions

must explain the court's analysis in sufficient detail.

                                           Ill


       The LeVasseurs request an award of attorney fees on appeal. Where

attorney fees are awarded at trial, the prevailing party may recover fees on

appeal. RAP 18.1. Here, attorney fees were awarded at trial, where the
LeVasseurs prevailed. As a partially prevailing party on appeal, they are also

entitled to an award of attorney fees on appeal. To be clear, as against Thomas,

the LeVasseurs have prevailed on the issue of whether an attorney fee award

was allowable. However, Thomas prevailed on the issue of the amount of that

award. On remand, the appellate fee award must appropriately segregate the
work performed by LeVasseurs' counsel as to the successful and unsuccessful
issues.

       The award of attorney fees and costs is reversed and remanded for further
proceedings. In addition, the trial court is tasked on remand with determining an
appropriate award of attorney fees on appeal, as it is in the best position to
safeguard against the risk of duplication or double recovery.

          Reversed and remanded.




          We concur:




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