                                                              FILLD
                                                      COURT OF APPEALS DIV 1
                                                       STATE OF WASIIItiaTOZ4
                                                      2018 Ail 16       10: 8


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALASKA STRUCTURES, INC.,                   )
an Alaska corporation,                     )        DIVISION ONE
                                           )
                 Appellant,                )        No. 76105-6-1
                                           )
               v.                          )        UNPUBLISHED OPINION
                                           )
CHARLES J. HEDLUND,                        )
                                           )
                    Respondent.            )        FILED: January 16, 2018
                                           )

       DWYER, J. — Alaska Structures, Inc.(AKS) appeals from the trial court's
order awarding attorney fees and costs to Charles Hedlund. We conclude that

the trial court erred by awarding Hedlund fees and costs incurred in advancing an

unsuccessful legal theory. Accordingly, we reverse.



       Hedlund was employed by AKS from February 2007 until January 2010.

As a condition of his employment, Hedlund signed a confidentiality agreement

(Agreement) that prohibited him from disclosing certain confidential information

during and following his employment with AKS. The Agreement also contained a

fee shifting provision, stating that "[Un the event either party is required to institute

legal action to enforce the provisions of this Agreement, the prevailing party in

such litigation shall be entitled to recover its reasonable attorney's fees as well as

costs, expenses and disbursements."
No. 76105-6-1/2


        In March 2010, AKS was burglarized twice. The burglaries were part of a

string of burglaries in the area and were publicized on television and in

newspapers.

        In August 2011, an anonymous user—later revealed to be Hedlund—

posted a message on an Internet jobsite forum concerning the burglaries. The

message criticized the security measures at AKS. Shortly thereafter, AKS filed a

complaint in King County Superior Court against "John Doe," alleging that the

poster was a party to the Agreement and had violated the Agreement by

disclosing confidential information on a public website.

        AKS subpoenaed Cox Communications, a Georgia entity, in order to

identify the anonymous poster. Counsel for Hedlund objected to the subpoena.'

AKS then filed a motion to compel, which Hedlund opposed. The Georgia court

granted the motion and Hedlund was ultimately identified as the anonymous

poster. AKS filed an amended complaint naming Hedlund as the defendant in

this suit.

        Hedlund argued that he was sued as a result of his postings to a public

forum and moved to dismiss the claim pursuant to Washington's anti-SLAPP

statute, RCW 4.24.525.2 Following a hearing, the trial court found that the anti-

SLAPP statute applied and that AKS was unable to demonstrate that its action




         1 Without identifying Hedlund as the attorney's client.
        2 Washington's anti-SLAPP     statute, RCW 4.24.525, established a "special motion to
strike any claim" that acted to immediately halt discovery pending resolution of the motion. If the
 moving party prevailed on the motion, the statute authorized an award of attorney fees and costs
in connection with the motion as well as an additional award of $10,000. RCW 4.24.525(6)(a)(i),
(ii). The anti-SLAPP statute was ruled unconstitutional in 2015. Davis v. Cox, 183 Wn.2d 269,
351 P.3d 862(2015).
                                               - 2-
No. 76105-6-1/3


for violation of the Agreement had any merit. The trial court awarded Hedlund

attorney fees and costs as well as an additional $10,000 pursuant to the anti-

SLAPP statute.

      AKS appealed the trial court's ruling to this court. We reversed the trial

court's order, concluding that Hedlund did not meet the threshold standard for

application of the anti-SLAPP statute. Alaska Structures, Inc. v. Hedlund, 180

Wn. App. 591, 603-04, 323 P.3d 1082(2014). Our holding in that case

addressed only the application of the anti-SLAPP statute. "The issue of whether

Hedlund violated the confidentiality agreement may well tend itself to summary

judgment dismissal, and Hedlund may be entitled to attorney fees under that

contract." Hedlund, 180 Wn. App. at 603. A commissioner of this court awarded

AKS costs totaling $6,180.57. Hedlund petitioned our Supreme Court for review,

which it denied.

      On remand, Hedlund moved for summary judgment asserting that AKS

lacked proof that he had violated the agreement. The trial court granted his

motion. The trial court also awarded Hedlund attorney fees and costs:

              The Court HEREBY Orders that pursuant to the [Agreement]
      that Defendant shall be awarded his reasonable attorney's fees and
      all costs incurred in this action to date, including fees and costs
      incurred in connection with the Georgia proceedings, the Division
      One Court of Appeals action, before the Washington State
      Supreme Court, and while litigating as a John Doe. These fees and
      costs shall be paid by Plaintiff[AKS]. The appellate cost award
      issued by the appellate courts against Hedlund is deemed a cost
      and as such it, and any interest, would be required to be repaid to
      Hedlund by [AKS].




                                        3
No. 76105-6-1/4


Hedlund requested a total award of $148,734.52. The trial court reduced the fee

award by $17,182.10, awarding fees and costs totaling $131,552.42. AKS

appeals the award of fees and costs.

                                        11

      AKS contends that the trial court erred by awarding Hedlund attorney fees

and costs associated with the anti-SLAPP motion. AKS asserts that it prevailed

against Hedlund's anti-SLAPP motion and that, as a result, the hours spent

advancing that legal theory should be discounted from the award. We agree.

                                        A

      "When reviewing an award of attorney fees, the relevant inquiry is first,

whether the prevailing party was entitled to attorney fees, and second, whether

the award of fees is reasonable." Ethridge v. Hwang, 105 Wn. App. 447, 459, 20

P.3d 958(2001). "Whether a specific statute, contractual provision, or

recognized ground in equity authorizes an award of fees is a question of law and

is reviewed de novo." Kaintz v. PLG, Inc., 147 Wn. App. 782, 785-86, 197 P.3d

710(2008). Whether the amount of fees awarded was reasonable is reviewed

for an abuse of discretion. Am. Nat'l Fire Ins. Co. v. B&L Trucking & Constr. Co.,

82 Wn. App. 646, 669, 920 P.2d 192(1996), aff'd, 134 Wn.2d 413, 951 P.2d 250

(1998).

      A prevailing party is one who receives an affirmative judgment in his or her

favor. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669(1997). "If neither

wholly prevails, then the determination of who is a prevailing party depends upon

who is the substantially prevailing party, and this question depends upon the


                                        4
No. 76105-6-1/5


extent of the relief afforded the parties." Riss, 131 Wn.2d at 633. "Under the

lodestar methodology, a court must first determine that counsel expended a

reasonable number of hours in securing a successful recovery for the client.

Necessarily, this decision requires the court to exclude from the requested hours

any wasteful or duplicative hours and any hours pertaining to unsuccessful

theories or claims." Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632, 966

P.2d 305(1998). The party seeking fees bears the burden of proving the

reasonableness of the fees. Mahler, 135 Wn.2d at 434.



        AKS brought this suit against Hedlund for an alleged violation of the

Agreement. "The issue here is a simple contractual issue—whether or not

Hedlund violated a contract he signed with his former employer." Hedlund, 180

Wn. App. at 603. As the trial court determined on summary judgment, he had

not. There is no dispute that, pursuant to the fee shifting provision of the

Agreement, Hedlund is entitled to recover attorney fees and costs incurred in

defending against that claim.3

        But Hedlund did more than simply defend against the merits of the claim.

Rather than promptly moving for summary judgment, Hedlund opted to first

pursue an independent legal theory that, if successful, would have resulted in an

award of $10,000 in addition to attorney fees and costs.



        3 It is for this reason that Hedlund is entitled to fees and costs associated with the
Georgia proceeding. AKS first filed its breach of contract claim against John Doe and then
sought to compel the identity of the anonymous poster. This was an action to enforce the
Agreement. Pursuant to the fee shifting provision, Hedlund is entitled to recover attorney fees
and costs stemming from actions brought to enforce the Agreement.

                                              -5-
No. 76105-6-1/6


        The parties dispute whether Hedlund's anti-SLAPP motion constituted a

"claim" against which AKS could prevail. But "Washington case law recognizes

that a reasonableness determination requires the court to exclude 'any hours

pertaining to unsuccessful theories or claims." SAK & Assocs., Inc. v. Ferguson

Constr., Inc., 189 Wn. App. 405, 421, 357 P.3d 671 (2015)(quoting Mahler, 135

Wn.2d at 434). Hedlund's anti-SLAPP motion advanced a legal theory separate

and distinct from the merits of the contractual claim. Our determination that

Hedlund did not meet the threshold standard for application of the anti-SLAPP

statute confirmed that his legal theory was wholly unsuccessful. Hedlund, 180

Wn. App. at 603-04.

        By failing to discount the hours spent on Hedlund's anti-SLAPP motion

from the fee award, the trial court awarded Hedlund fees and costs associated

with an unnecessary and unsuccessful legal theory. In so doing, the trial court

erred. Accordingly, we reverse the trial court's order and remand for entry of an

award that excludes attorney fees and costs incurred in Hedlund's appeals to this

court and the Supreme Court, including the appellate award assessed against

him that was deemed a cost by the trial court.4




        4 Hedlund and AKS each request an award of appellate fees and costs pursuant to RAP
18.1 and the fee shifting provision of the Agreement. As AKS prevailed in this court, it is entitled
to an award of appellate costs. But because Hedlund was both the prevailing party on the
ultimate issue and the losing party in this stage of the proceeding, neither party is entitled to an
award of appellate fees. Upon compliance with RAP 18.1, a commissioner of this court will enter
an appropriate cost award.

                                               -6 -
No. 76105-6-1/7


      Reversed.




We concur:




                  -7-
