No. 51755-4-I.The Court of Appeals of Washington, Division One.
Filed: October 18, 2004.
Appeal from Superior Court of King County. Docket No. 01-2-05790-1. Judgment or order under review. Date filed: 12/26/2002. Judge signing: Hon. Bruce Hilyer.
Counsel for Appellant(s), Richard Lamar Jr Pope, Attorney at Law, 15015 Main St Ste 208, Bellevue, WA 98007.
Counsel for Respondent(s), August George Cifelli, Lee Smart Cook Martin Patterson PS, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Eric S Newman, Lee Smart Cook Martin Patterson, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Marc Rosenberg, Lee Smart Cook Martin Patterson, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
COLEMAN, J.
The trial court has discretion to grant or deny a motion for a continuance. In addition, the trial court may condition its grant of a continuance on payment of terms. Here, the trial court conditioned its grant of a continuance on an attorney’s agreement to pay opposing counsel’s fees and costs. We hold that the trial court did not abuse its discretion because it was reasonable for the trial court to determine that a continuance was not compelled in this case.
FACTS
Sandra Larson sued Robert and Karen Van Curen (the Van Curens), their adult son Jarret Van Curen (Jarret), and Jarret’s girlfriend Tiffany Materne, for injuries relating to a dog bite, alleging that they were liable as owners, keepers, or harborers of the dog. The Van Curens answered the complaint and denied liability, claiming that Jarret owned the dog. Jarret did not answer the complaint, and the court eventually entered a default judgment against him. Larson voluntarily dismissed the complaint against Materne.
The court originally set trial for July 8, 2002. On March 22, 2002, the Van Curens requested a continuance because their attorney had a three-week trial skills seminar scheduled during July 2002. Larson did not oppose the motion and the trial court granted the continuance, setting trial for August 5, 2002.
On July 16, 2002, the Van Curens’ attorney filed a notice of intent to withdraw effective one week before trial. The Van Curens requested a continuance to retain new counsel. Larson did not oppose the request. The trial court granted the continuance and set trial for October 7, 2002.
Attorney Eric Newman filed a notice of appearance for Robert Van Curen on August 30, 2002. On September 6, 2002, Van Curen filed a motion for a lengthy continuance stating that he had just retained new counsel. Larson strenuously opposed the continuance, arguing that there was no justifiable reason for the delay and citing concern that the Van Curens’ major asset, a Kirkland home, was scheduled to be sold for nonpayment of property taxes on December 13, 2002. The trial court granted Van Curen’s motion for a continuance, but only until November 4, 2002, and wrote `No further continuances’ on its order. Newman filed an amended notice of appearance on September 20, 2002, to include Karen Van Curen in his representation.
The court entered a pretrial conference order on October 23, 2002, setting trial for November 5, 2002. Larson’s attorney, Richard Pope, became ill on October 25, 2002. Larson sought a continuance based on Pope’s illness and inability to prepare for trial. The Van Curens opposed Larson’s motion.
The parties appeared before the trial court on November 5, 2002, where Pope requested a continuance and notified the court that he was not prepared to proceed with trial that day. The trial court granted the continuance under certain conditions:
With great reticence, the Court will grant the Motion for Continuance upon express terms as follows, and those are that plaintiff’s counsel will be responsible for all reasonable attorneys’ fees and costs incurred in preparation of the trial, itself, including but not limited to issuance of trial subpoenas, counsel’s preparation of time, which will be needed to be duplicated for the continued trial date.
Report of Proceedings (RP) (Nov. 5, 2002) at 27. The trial court stated that if Pope did not pay the fees by December 13, 2002, it would dismiss the complaint without further hearing. Newman submitted his accounting to the trial court and requested $12,787.10 in attorney fees and costs. Larson opposed the attorney fee request, arguing that (1) $140 an hour was not a reasonable fee for an attorney with Newman’s experience, (2) Newman estimated his fee at $5,000 to $7,000 during the November 5, 2002 hearing, and (3) Newman would not have to duplicate all tasks. The trial court agreed that Newman would not have to duplicate some of the tasks and reduced the award to $9,219 for attorney fees and $45.50 for costs.
Pope did not pay the attorney fees as required by the trial court’s order. The trial court then dismissed Larson’s suit. Larson appeals.
ANALYSIS
We first address whether the trial court abused its discretion in conditioning an order granting a continuance on the requesting attorney’s agreement to pay opposing counsel’s attorney fees when the attorney requested the continuance because of illness. Under the Civil Rules, the trial court has discretion to continue a hearing or trial under appropriate circumstances and may impose terms as a condition of the continuance. CR 40(d), (e). Appellate courts review a decision to grant or deny a continuance for a manifest abuse of discretion. Swope v. Sundgren, 73 Wn.2d 747, 749, 440 P.2d 494 (1968). The trial court abuses its discretion if its “decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).
Larson argues that the trial court abused its discretion when it conditioned the grant of a continuance on her attorney’s promise to pay the opposing parties’ attorney fees, when her attorney’s illness necessitated the continuance. In support of this argument, Larson points to several cases where the trial courts’ decisions to grant continuances based on illness were affirmed. The issue is not, however, whether it is appropriate to grant a continuance because of counsel’s illness. Rather, the issue is whether the trial court abused its discretion in conditioning the grant of a continuance, in this particular case, on payment of fees.
Here, Pope alleges that he fell ill with the flu and then a bacterial infection about a week before trial was to start. In his affidavit, he stated that he intended to do much of the pretrial paperwork over the weekend that he fell ill and that he was, therefore, unable to prepare for trial. The case had been pending for nearly a year and a half, and presumably, not all trial preparation would be done the week before trial.
Additionally, the trial court offered to waive some pretrial deadlines and allow Pope to submit the required materials during the trial. Pope, however, told the court that he was not ready to go to trial even with the wavier. Pope was not specific about the work that he could not do during the week leading up to trial and why he was not prepared to go to trial.
THE COURT: Well, assuming assuming I were to waive the rules with respect to the filing of the trial brief for submission of jury instructions and allow you to do that over the next few days, why why aren’t you prepared to go forward today? Why don’t you have the witnesses lined up?
MR. POPE: I’m just not prepared, your Honor. And, you know, I thought that the Court was not going to be sympathetic to my situation.
THE COURT: You thought that the Court I’m sorry?
MR. POPE: I just didn’t think that there was going to be a lot of sympathy in my situation. I tried you know, we asked Mr. Newman about this thing last week and he wasn’t interest. I I just you know, it’s probably some failing on my part.
I mean, I I get ill, it runs me down, and I’m in a terrible rut. I’ve missed all these, you know, deadlines and that would have been happening last week, didn’t have all that stuff done. So I just didn’t figure it would be much use unless the Court gave a continuance in the case. It would probably this is a pretty, you know, close kind of case, your Honor.
You noted your Honor noted at summary judgment that the evidence that Ms. Larson has about ownership of the dog by the senior Van Curens, as well as the concept that the senior Van Curens had the operational control over the house as opposed to letting it out to their son, regardless of how informal the tenancy arrangement was, wasn’t a very strong kind of thing.
And unless I can, you know, go into this thing with full confidence and so forth, I I really, you know, it’s it’s a very iffy kind of thing, your Honor. Not to say that we don’t have a case, but it’s, you know, it’s a kind of thing that a trier of fact, you know, it’s possible they could rule in Ms. Larson’s favor. But certainly there’s quite a strong possibility a trier of fact would rule the other way.
RP (Nov. 5, 2002) at 12-13.
In addition, Pope did not request a short continuance to compensate for the week that he was ill, but rather, he requested two to three additional months. This suggests that his illness was not the sole reason for Pope’s request.
The court acknowledged that Pope was ill, but questioned whether a continuance was necessary, especially in light of its willingness to waive pretrial deadlines. Additionally, the court considered the prior continuances granted, its explicit ruling that it would not grant any further continuances, Pope’s strong desire to have the case heard as soon as possible, the case’s expedited schedule that Pope requested, and Larson’s interest in having her day in court.
Taking all of these factors into consideration, the trial court determined that a continuance subject to significant terms was appropriate. Under the circumstances, it would have been within the trial court’s discretion to deny Pope’s motion for a continuance, and therefore, it is not an abuse of discretion to condition the continuance on payment of terms.[1] The next issue we address is the reasonableness of the attorney fees upon which the continuance was conditioned. As an initial matter, Larson argues that the trial court erred by failing to enter findings of fact and conclusions of law showing that the attorney fee award was reasonable. In support of this contention, Larson cites Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998), which holds that findings of fact and conclusions of law are required when awarding attorney fees to present an adequate record for review. The trial court stated on the record that it was excluding certain portions of the fees requested because Newman would not have to duplicate the work:
What I have done is I have gone through the billing statement provided by Mr. Newman, and I have excluded from that statement those items that the Court concluded were work which would not have to be duplicated at the time of the scheduled trial.
And these primarily were in reference to the motion in limine, the research regarding admissibility of certain evidence, the drafting of proposed jury instructions and verdict forms, jury questionnaires, and the trial brief. All of which are work product which can be used at the time of the trial.
The Court found that the amount for those work product items is $3,388. And, therefore, does not award that amount as part of the award of sanctions.
RP (Nov. 26, 2004) at 61-62. While written findings on appeal would have been preferable, there is, nonetheless, an adequate record for us to review. Newman submitted a detailed affidavit setting his hourly rate and provided a detailed list of tasks performed, including the time spent on each task. The trial court clearly found Newman’s rate reasonable and excluded portions of the submitted charges because he would not have to duplicate some of the work.
Larson also argues that the amount of fees was unreasonable. An award of attorney fees must be reasonable. Progressive Animal Welfare Soc’y v. Univ. of Wash., 114 Wn.2d 677, 688, 790 P.2d 604 (1990). We review a trial court’s decision on the reasonableness of fees for an abuse of discretion. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 375, 798 P.2d 799 (1990). Larson argues that the trial court erred in setting the attorney fees at $9,219 and disputes both the hourly rate charged by Newman and the amount of hours submitted. Larson argues that Newman should only be allowed 40 percent of the time worked, but does not provide authority for this proposition. It is clear from the record that the trial court looked at the time submitted by Newman and determined that some of the tasks would not have to be duplicated for trial and therefore excluded them. Larson does not explain how this approach taken by the court was an abuse of discretion. Indeed, this approach appears to be the most reasonable way to make the necessary determination.
Larson also disputes the hourly amount charged by Newman and suggests that $90 per hour is a more reasonable rate for an attorney like Newman. Larson, however, does not present evidence to show that her suggested rate is more reasonable, and therefore, her claim must fail.[2]
Finally, Larson argues that estoppel should prevent Newman for requesting more fees than the amount he estimated to the trial court at the hearing on the motion for a continuance. Newman, however, clearly indicated that this figure was an estimate and stated that he would give a full accounting to the court. Additionally, the trial court still had the opportunity to determine whether the costs and fees submitted were reasonable. Under the circumstances, Larson has not shown that the trial court abused its discretion in determining that $9,219 was reasonable for the pretrial work that Newman would have to duplicate because of Pope’s failure to prepare for the case.
Affirmed.
SCHINDLER and COX, JJ., concur.