FAMILY MEDICAL BUILDING v. DSHS, 38 Wn. App. 738 (1984)

689 P.2d 413

FAMILY MEDICAL BUILDING, INC., Respondent, v. THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, ET AL, Appellants.

No. 5434-9-III.The Court of Appeals of Washington, Division Three.
October 2, 1984.

[1] Appeal and Error — Rules on Appeal — Construction — Comments. The interpretation of a Rule on Appeal should be based on the language of the rule itself rather than on the language of comments which have not been verified or adopted by the court.

[2] Appeal and Error — Substantially Prevailing Party — Determination. The commissioner or clerk of an appellate court has the discretion to examine the context of an appellate decision in determining which party substantially prevailed and is entitled to costs under RAP 14.2. The fact of affirmance or reversal is not determinative of which party substantially prevailed on review.

Nature of Action: A party on appeal moved for modification of a cost ruling by the clerk.

Court of Appeals: Holding that the clerk properly determined the prevailing party, the court denies the motion for modification.

Kenneth O. Eikenberry, Attorney General, and William L. Williams, Assistant, for appellants.

Richard B. Price, Michael J. Casey, and Reed Giesa, for respondent.

McINTURFF, J.

Following the filing of the opinion in Family Med. Bldg., Inc. v. Department of Social Health Servs., 37 Wn. App. 662, 684 P.2d 77 (1984), both parties

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moved for costs on appeal. Pursuant to RAP 14.2, the clerk of this court determined that Family Medical Building, Inc. (FMB) substantially prevailed on review and awarded costs accordingly. The State moved the court to modify the clerk’s ruling, contending that because it won a partial reversal of the judgment and a remand for trial on damages alone, it is the prevailing party on review and is entitled to costs. We uphold the clerk’s ruling.

The State’s argument is based upon a misinterpretation of the comment to RAP 14.2, 86 Wn.2d 1225 (1976). That rule provides: “A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, . . .” The comment to the rule states: “In other words, the award of costs is based on who wins the review proceeding — not on who ultimately prevails on the merits.”

[1, 2] The State reads the comment as directing the award of costs to the party who obtains a reversal or an affirmance. Such an interpretation does not take into consideration the language of the rule itself which allows costs to “the party tha substantially prevails.” (Italics ours.) In order to determine which party substantially prevailed on review, the clerk or commissioner must have discretion to look beyond the bottom line of reversal or affirmance.[1]

Here, the largest portion of the State’s appeal contested liability. It never took the position that FMB did not suffer damages. The State’s argument on damages was limited to its contention that the instruction allowed the jury to consider improper factors in setting its amount. In these circumstances, the clerk properly concluded that FMB, having had its theories of liability upheld, was the substantially prevailing party.

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The State’s motion to modify the clerk’s ruling on costs is denied.[2]

MUNSON, C.J., and THOMPSON, J., concur.

Review granted by Supreme Court November 16, 1984.