Real Estate & Property Law

Washington Supreme Court Enacts Blanket Rule: Condemnor Liable For Attorneys Fees Even If Condemnee Claims Alternatives

By Robert Thomas (inversecondemnation.com)

Remember that kid in grade school, the one who misbehaved behind teacher's back and then when teacher turned around, he sat back silently while you took the blame? If like me you still remember that kid, we've got a case from the Washington Supreme Court for you, Noble v. Safe Harbor Family Preservation Trust, No. 80873 (en banc) (Sep. 24, 2009).

In Washington, as in many other jurisdictions, a private landowner may condemn a "way of private necessity" over the the property of her neighbors if needed for access. See RCW 8.24.010 ("An owner ... of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity ... may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity..."). In these actions, the trial court has broad discretion to award attorneys fees to condemnees. See RCW 8.24.030.

The Noble property is apparently landlocked, but they thought they had a usable easement over the property of their neighbors, the Safe Harbor Family Trust. Turns out they didn't, and in an earlier litigation, the court of appeals held the easement could not be developed but that the Nobles could gain access by the condemnation of an easement by way of private necessity under the above statute.

Thus, the Nobles sued Safe Harbor to condemn an easement and Safe Harbor responded by asserting the Nobles access didn't need to go over Safe Harbor's property, but that alternative routes over other parcels were feasible. Safe Harbor didn't specify which parcel or parcels, however, and didn't join any other property owner. Consequently, the Nobles joined another neighbor, Tillicum Beach, Inc., as an alternative condemnee.

Safe Harbor and Tillicum each asserted the other should provide the Nobles' access. After the trial court concluded Safe Harbor was responsible, Tillicum claimed Safe Harbor was responsible for dragging it into the lawsuit and sought to recover its attorneys fees from Safe Harbor. The trial court made two rulings: (1) Safe Harbor owed Tillicum attorneys fees, and (2) the award of attorneys fees Safe Harbor recovered from the Nobles should be reduced by 70% because the majority of the time expended by Safe Harbor's attorneys was spent dealing with Tillicum and not the Nobles. The court of appeals affirmed.

In the Washington Supreme Court, Tillicum argued the court of appeals got it right because in two earlier cases, the courts held that condemnees who defend a taking by asserting feasible alternatives and who join those property owners in the suit can be liable for fees. See Kennedy v. Martin, 65 P.3d 866 (Wa. Ct. App. 2003); Sorenson v. Czinger, 852 P.2d 1124 (Wa. Ct. App. 1993). The supreme court began its analysis by noting that as the condemnor, the Nobles bore the burden to show necessity and the absence of alternatives. Slip op. at 7, 14-15. The court approved of the holding in Kennedy, noting "[i]n Kennedy, the Court of Appeals properly held the trial court may exercise its discretion and require an alternative condemnee to pay an alternative condemnee?s attorney fees under certain circumstances, namely when they join the alternative condemnee as a third party." Id. at 15. The court approved of the Kennedy rule since nothing requires the joinder of the alternative parcel owner, and if a condemnee (or condemnor for that matter) voluntarily joins another, the trial court has broad discretion to award fees and costs. Id.

The court found the Noble case distinguishable, however, because although Safe Harbor defended the condemnation by asserting the Nobles could get their easement from some other parcel, Safe Harbor didn't say which parcel, and didn't join anyone. Once Safe Harbor raised the alternative defense, the "burden shifts to the condemnor [the Nobles] to prove the chosen route is more equitable than the alternative route." Slip op. at 16. Holding Safe Harbor liable for Tillicum's attorneys fees would be tantamount to shifting to it the burden to join alternative parcel owners and prove the better route. Id. at 17. The supreme court rejected the court of appeals' conclusion that formal joinder mechanics are not conclusive in determining who is "responsbile" for dragging in other parcel owners. One justice dissented, arguing the statute gives the trial court broad discretion to award attorneys fees and costs, and no "blanket rule" is necessary or permitted.

In essence, the supreme court concluded that condemnors are always responsible for joinder of the owners of alternative parcels, and for proving the location of the route. Thus, condemnees who believe that a condemnor should look elsewhere for the necessary access to their property should not be identifying the parcel, or joining its owner in the case.

Bottom line: be that grade school kid. Chill out, make allegations that "its not me," and under the Noble rule you should not be liable for attorneys fees. The condemnor, as the party seeking to take the property, is on the hook.

On the second issue, the supreme court affirmed the court of appeals' conclusion reducing Safe Harbor's claim for fees from the Nobles because the trial court has broad discretion to determine what fees are owed, and the trial court did not abuse its discretion. Slip op. at 19-20. The court remanded the case to the trial court to allow Tillicum to seek fees from the condemnor, the Nobles.

The Chief Justice concurred in the holding on the Tillicum vs. Safe Harbor fee award, but dissented on the remand allowing Tillicum to seek fees from the Nobles since the issue was not briefed. The Chief Justice's short opinion is here.

Thanks to Supreme Court of Washington Blog for bringing this decision to our attention.

Full post as published by inversecondemnation on September 24, 2009 (boomark / email).