Attorney's Fees on Appeal

By Howard M. Goodfriend ¹

Table of Contents

• Preserving Attorney Fee Issues for Appeal
• When Reasonable Attorney Fees May Be Claimed
• When Attorney Fees May Be Claimed as a Sanction
• Procedure to Follow

Preserving Attorney Fee Issues for Appeal

A trial court's award of attorney fees will frequently be entered after entry of the judgment on the merits. Where the order on fees is entered before a notice of appeal is filed, counsel should designate the attorney fees order along with the judgment in the notice of appeal. Frequently, however, a trial court will delay ruling on the attorney fees issue until more than thirty days have elapsed from entry of judgment. Counsel should ensure that the notice of appeal or notice of discretionary review is filed within thirty days from entry of the underlying judgment in order to preserve review of that judgment, even if the attorney fee issue is still outstanding. RAP 5.2. A pending motion for fees will not extend the time within which a notice of appeal must be filed. See RAP 2.4(c) and RAP 5.2(e) (listing post-trial motions which, when timely filed, will stay requirement of filing notice of appeal within thirty days of entry of final judgment). But see Wlasiuk v. Whirlpool Corp., 76 Wn. App. 250, 884 P.2d 13 (1994) (notice of appeal from "amended judgment" that included attorney fees award, brought up for review underlying judgment on the merits, even though amended judgment was entered more than thirty days following denial of CR 59 motion for a new trial and more than eighty days following entry of original judgment).

A pending motion for attorney fees poses a potential trap for the unwary. Under the current Rules of Appellate Procedure, an appeal from a final judgment will bring up for review an award of attorney fees that was entered after the notice of appeal was filed. RAP 2.4(g). This rule has been amended effective September 1, 1998 to require counsel to file an amended notice of appeal or an amended notice for discretionary review in order to seek review of a trial court's order granting or denying fees. Amended RAP 2.4(g), effective September 1, 1998, published at 135 Wn.2d 1113 (1998). Similarly, RAP 7.2(d) has been amended to make doubly clear the obligation to file a separate notice of appeal to obtain review of a subsequent trial court decision on attorney fees:

To obtain review of a trial court decision on attorney fees and litigation expenses in the same review proceeding as that challenging the judgment, a party must file an amended notice of appeal or an amended notice for discretionary review in the trial court.

RAP 7.2(d).

Thus, in order to preserve an appeal of a trial court's order on attorney fees, counsel must file an amended notice of appeal or notice of discretionary review in the trial court. No new filing fee will be required if the notice clearly states that it is quot;amendedquot; or quot;supplemental.quot; The Court of Appeals will administratively process the attorney fee appeal under the same Court of Appeals cause number. If they fail to do so, counsel may seek consolidation of the two review proceedings in the Court of Appeals by motion before a Court of Appeals Commissioner. RAP 3.3(b). Conversely, if the fee issues are sufficiently complex and discrete, the Court of Appeals may separate the cases into separate review proceedings. RAP 3.3(b).

When Reasonable Attorney Fees May Be Claimed

In general, attorney fees are available on review on the same grounds on which they are available in the trial court. The general rule is that each party bears its own attorney fees. Seattle School Dist. No. I v. State, 90 Wn.2d 476 585 P.2d 71 (1978). Reasonable attorney fees may be claimed, however, where provided for by contract, statute, or recognized ground in equity. Western Stud Welding, Inc. v. Omark Indus., Inc., 43 Wn. App. 293,716 P.2d 959 (1986). See Talmadge, The Award of Attorney Fees in Civil Litigation in Washington, 16 GONZ. L. REV. 57 (1980). Attorney fees may also be available as a sanction against a party pursuing a frivolous appeal or abusing the court rules and procedures. RAP 18.9 CR 11; Rich v. Starczewski, 29 Wn. App. 244, 628 P.2d 831, rev. denied, 96 Wn.2d 1002 (1981); Bryant v. Joseph Tree, 119 Wn.2d 210, 829 P.2d 1099 (1992). For attorney fees in general, including fees on appeal, P. Talmadge, supra, Attorney Fees in Washington.

Provided by Statute or Contract

Where a statute allows for the award of attorney fees to the prevailing party at trial it is interpreted to allow for the award of attorney fees to the prevailing party on review as well. See, e.g., Puget Sound Plywood, Inc. v. Master, 86 Wn.2d 135, 542 P.2d 756 (1975).

Several of the most commonly-used statutes authorizing the award of attorney fees specifically authorize the award of attorney fees on review. For example:

Dissolution Actions: RCW 26.09.140 provides: quot;Upon any appeal, the, appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney fees in addition to statutory costs.quot;

Decedents' Estates: RCW 11.96.140 provides: quot;Either the superior court or the court on appeal, may, in its discretion, order costs, including attorney fees, to be paid by any party to the proceedings or out of the assets of the estate, as justice may require.quot;

Small Actions for Damages: RCW 4.84.290 provides: quot;Attorney fees as costs in damage actions of ten thousand dollars or less-prevailing party on appeal. if the case is appealed, the prevailing party on appeal shall be considered the prevailing party for the purpose of applying the provisions of RCW 4.84.250.quot;

Division III held that RCW 4.84.290 authorized the Court of Appeals to award fees incurred in the Court of Appeals, but not in Superior Court, in J & J Drilling Inc. v. Miller, 78 Wn. App. 683, 691, 898 P.2d 364 (1995), review denied, 128 Wn.2d 1011 (1996) (quot;Although J & Drilling's request covers its appeal in Superior Court as well, we find no specific authority of an award of those fees by this court.quot;) Division III's reasoning seems misguided. In J & J, the prevailing party on appeal was the appellant, who could not have obtained an award of fees in the Superior Court, where it had lost. Division III's decision thus prevented the prevailing party from recouping all its fees incurred in appeal of a District Court judgment.

Other attorney fee statutes, while not mentioning appeals, have been held to apply on review. For example:

Child Support Enforcement: RCW 26.18. 160 applies to appeals. Marriage of Hunter, 52 Wn. App. 265, 758 P.2d 1019 (1988), rev. denied, 112 Wn.2d 1006 (1989).

Consumer Protection Act: RCW 19.86.090 applies to appeals. Sherwood v. Bellevue Dodge, Inc., 35 Wn. App. 741, 669 P.2d 1258 (1983).

A provision in a contract allowing attorney fees incurred in an action on the contract is generally interpreted to include those fees on appeal as well as at trial. Marine Enters. v. Security Trading, 50 Wn. App. 768, 750 P.2d 1290, rev. denied, 111 Wn.2d 1013 (1988); Schmitt v. Matthews, 12 Wn. App. 654, 531 P.2d 309 (1975). Since RCW 4.84.330 makes attorney fee provisions in contracts reciprocal, the prevailing party on appeal will be entitled to an award of attorney fees even though the contract only provides, by its terms, for an award to the adverse party. The statute is also available to a defendant on a contract claim who successfully defends by proving that there is no enforceable contract. Herzog Aluminum Inc. v. General Am. Window Corp., 39 Wn. App. 188, 692 P.2d 867 (1984).

Recognized Ground in Equity

Several equitable grounds have been recognized for the award of attorney fees. Where the litigant's actions create or preserve a common fund, fees may be awarded. Grein v. Cavano, 61 Wn.2d 498, 379 P.2d 209 (1963). Where a party's actions have subjected another to litigation by a third party, attorney fees may be awarded as consequential damages. Manning v. Loidhamer, 13 Wn. App. 766, 538 P.2d 136, rev. denied, 86 Wn.2d 1001 (1975). Where a fiduciary's breach of duty is tantamount to constructive fraud, the injured party may be entitled to attorney fees. Hsu Ying Li v. Tang, 87 Wn.2d 796, 557 P.2d 342 (1976).

Claims Against Insurer

The Supreme Court has fashioned a special rule allowing for recovery of attorneys fees where an insured is required to bring a legal action against the insurer to obtain the fill benefit of the insurance contract. The rule has been applied where the insured sued the insurer on a fidelity bond and when the insured sued under a liability policy to recover sums paid in satisfaction of claims of third parties. Estate of Jordan v. Hartford Co., 120 Wn.2d 490, 844 P.2d 403 (1993); Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991). However, an insured who is itself in breach of the insurance contract cannot rely on this doctrine to claim fees. PUD No. I of Klickitat County v. International Ins. Co., 124 Wn.2d 789, 881 P.2d 1020 (1994).

Prevailing Party

The applicable case law and statutes usually make attorney fees available, if at all, to the quot;prevailing party.quot; In general, the prevailing party is one against whom no affirmative judgment is entered. Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 505 P.2d 790 (1973). There are, however, unusual situations in which this general rule is difficult to apply.

A good analysis of this issue is found in Richter v. Trimberger, 50 Wn. App. 780, 750 P.2d 1279 (1988). Richter was to do a number of tasks for Trimberger and fish with him in the coming season. He then was to have the option to buy into the fishing operation or be paid $50.000. Trimberger gave Richter a note for $50,000. Richter began the work, the parties got into a dispute, and Richter stopped work and did not participate in the fishing season. The parties agreed that the work Richter had done was worth $12,000 and Trimberger tendered a check to him for that amount. Richter refused the check and filed suit on the $50,000 note. Trimberger tendered $12,000 into the registry of the court and defended the action. The court granted Richter a judgment of $12,000, but denied his request for prejudgment interest or attorney fees pursuant to the terms of the note. The appellate court affirmed the trial court's determination that Trimberger was the prevailing party and was entitled to costs and attorney fees. Although a judgment was entered against Trimberger and not against Richter, Richter had not achieved anything that was not offered to him before trial.

In some cases, both parties partially prevail and neither is determined to be the prevailing party. American Nursery v. Indian Wells, 115 Wn.2d 217, 797 P.2d 477 (1990); Puget Sound Service Corp. v. Bush, 45 Wn. App. 312, 724 P.2d 1127 (1986).

In State v. Black, 100 Wn.2d 793, 676 P.2d 963 (1984), the defendants prevailed in an action brought by the State under the Consumer Protection Act. The Supreme Court expressly stated that the defendants were prevailing parties on appeal but then held that no attorney fees would be awarded to the defendants because the defendants were not substantially prevailingquot; parties under RAP 14.2 (dealing with award of costs). The court's reasoning on this point seems flawed. The Rules of Appellate Procedure distinguish between an award of reasonable attorney fees and traditional costs. Different rules apply to each. The quot;substantially prevailingquot; test in RAP 14.2, cited by the court, applies only to costs. It has nothing to do with an award of attorney fees. Attorney fees are governed by RAP 18.1, and nothing in RAP 18.1 requires that a party substantially prevail before receiving reasonable attorney fees.

It is especially important that the record includes enough for the court to identify principles upon which the trial court awarded attorney fees. In DeBenedictis v. Hagen, 77 Wn. App. 284, 890 P.2d 529 (1995), the court could not tell from the record which party had sought a trial de novo of an arbitration award and was therefore unable to determine if the prevailing party on appeal was entitled to its attorney fees under MAR 7.3.

When Attorney Fees May Be Claimed as a Sanction

RAP 18.9 provides the appellate court with broad authority to impose attorney fees as a sanction against the pursuit of frivolous claims and defenses or the abuse of court rules and procedures. In addition, the sanctions of CR 11 in the trial court are made applicable to appeals under RAP 18.7. Bryant v. Joseph Tree, 119 Wn.2d 210, 829 P.2d 1099 (1992); Layne v. Hyde, 54 Wn. App. 125, 773 P.2d 83 (1989).

Frivolous Appeals

RAP 18.9 has provided authority to the appellate courts to sanction frivolous appeals since 1976. The rule was cited as authority for imposing sanctions soon after its adoption. See State ex rel. Moore v. Houser, 16 Wn. App. 363, 556 P.2d 556 (1976), reversed, 91 Wn.2d 269 (1978). By 1980, case law had developed standards for evaluating whether an appeal was frivolous. In Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, rev. denied, 94 Wn.2d 1014 (1980), the Court of Appeals held that a court should consider that: (1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no possibility of reversal.

This standard was adopted by the Supreme Court and used as the basis for awarding $2,183.90 in quot;terms and compensatory damagesquot; in Millers Casualty Ins.. Co. v. Briggs, 100 Wn.2d 9, 665 P.2d 887 (1983). The Supreme Court first made an award under RAP 18.9 that was specifically denominated as quot;attorney feesquot; in Boyles v. Retirement Systems, 105 Wn.2d 499, 716 P.2d 869 (1986). The court has followed that decision several times since. See, e.g., Mahoney v. Shinpoch, 107 Wn.2d 679, 732 P.2d 510 (1987).

A pair of 1990 decisions provide further guidance on what constitutes a frivolous appeal. In Wheeler v. East Valley School Dist., 59 Wn. App. 326, 796 P.2d 1298 (1990), the Court of Appeals held that the presentation of an issue of first impression prevented the appeal from being frivolous though it found no merit to appellant's arguments. And in Rhinehart v. Seattle Times, 59 Wn. App. 332, 798 P.2d 1155 (1990), the court held that, where an appeal presents one arguably meritorious issue, the appeal will not be considered frivolous.

Similarly, the Supreme Court held that sanctions under RAP 18.9 were not appropriate where three of the plaintiffs four claims were found to be frivolous in Biggs v. Vail, 119 Wn.2d 129, 830 P.2d 350 (1992). But see Farr v. Martin, 87 Wn. App. 177, 940 P.2d 679 (1997) (review pending) (awarding fees for frivolous claims when other arguments had resulted in reversal of contempt sanction).

Abuse of Court Rules and Procedures

RAP 18.9(a) allows an appellate court to impose sanctions against a party who quot;uses these rules for the purpose of delay or who fails to comply with these rules,quot; as well as for frivolous appeals. The Court of Appeals has invoked this section of the rule to impose sanctions on a party whose appeal was not frivolous, but who had repeatedly used the appellate rules and procedures for delay and harassment. In Rich v. Starczewski, 29 Wn. App. 244, 628 P.2d 831, rev. denied, 96 Wn.2d 1002 (1981), the court detailed the seemingly endless series of motions and appeals of interlocutory rulings filed by Starczewski. The court noted that the appellate rules quot;are not designed to place unjustified burdens, financial and otherwise, upon opposing parties nor are they designed to provide recreational activity for litigants.quot; Id. at 250. Although the court found that one of the issues Starczewski raised on appeal was not frivolous, it required him to pay $1,000 in compensatory damages and $4,000 in attorney fees.

RAP 18.9 also authorizes an award of fees where a party's violation of the Rules of Appellate Procedure needlessly increases the cost of litigation. See Pugel v. Monheimer, 83 Wn. App. 688, 693, 922 P.2d 1377 (1996).

RAP 18.7 Incorporation of CR 11 Sanctions on Appeal

RAP 18.7 requires that each paper filed in appellate court be dated and signed as required by CR 11. This provision has been held to incorporate the remedies for violation of CR 11 into the appellate rules. Bryant v. Joseph Tree, 119 Wn.2d 210, 829 P.2d 1099 (1992); Layne v. Hyde, 54 Wn. App. 125, 773 P.2d 83, rev. denied, 113 Wn.2d 1016 (1989). This incorporation, however, provides nothing new to the sanctions available to an appellate court. CR 11 allows for sanctions in three situations: (1) the assertion of a factually frivolous claim or defense, (2) the assertion of a legally frivolous claim or defense, and (3) the assertion of a claim or defense for purposes of harassment or delay. As has been noted in the analysis above, RAP 18.9 provides the appellate court with authority to sanction the assertion of a frivolous claim or defense and with the authority to sanction the use of the appellate rules or procedures for harassment or delay.

Nevertheless, there may be greater willingness to impose sanctions for violating CR 11 than there is for violating RAP 18.9, so citing both rules as authority for requested sanctions may be wise. There have been several recent cases imposing sanctions on appeal for violation of CR 11. See, e.g., Bryant v. Joseph Tree, 57 Wn. App. 107, 786 P.2d 829, aff'd, 119 Wn.2d 210 829 P.2d 1099 (1992) (imposing sanctions of attorney fees for filing in the appellate court a groundless motion to disqualify opposing counsel.); In re Lasky, 54 Wn. App. 841, 776 P.2d 695 (1989); Lee v. The Columbian, Inc., 64 Wn. App. 535, 826 P.2d 217 (1992).

Procedure to Follow

The procedure for requesting attorney fees on appeal was simplified greatly by the 1990 amendments to the Rules of Appellate Procedure. RAP 18.1, which governs the claim for attorney fees, formerly required that: (i) the request for fees be made in the brief, (2) that an affidavit supporting the request be filed seven days prior to oral argument, and (3) that the request be repeated at oral argument. Fees were frequently denied due to counsel's failure to comply with one or more of these procedural prerequisites. RAP 18.l(c); In re Marriage of Leland, 69 Wn. App. 57, 847 P.2d 518, review denied, 121 Wn.2d 1033 (1993).

The amended RAP 18.1 only requires that the request for attorney fees be made in the brief or motion on the merits and, if the court states in its opinion that fees should be awarded, an affidavit of fees and expenses must be filled within 10 days after the opinion is issued. Gone, altogether, is the requirement that fees be mentioned in oral argument. The principal trap in the new rules is the need to file an affidavit of financial need in cases where that is an issue (e.g. dissolution actions) 10 days before oral argument. RAP 18.l(c); see e.g. III.B, infra.

Fees Must Be Requested in Brief or Motion on the Merits

RAP 18.l(b) requires that any request for attorney fees be made in the brief or in a motion on the merits if the moving party has not yet filed a brief. The request should be in a separate subsection of the argument section of the brief, should explain which legal theory provides the basis for the request, and should contain citation to authority. See Wilson Court Limited Partnership v. Tony Maroni's, Inc., 139 Wn.2d 692, 713 n.4, 952 P.2d 590 (1998) (rejecting fees on appeal where request made in supplemental brief, and did not include separate section or citation to authority). The request should be in the opening brief and not in the reply brief. In Re Marriage of Sacco, 114 Wn.2d 1, 784 P.2d 1266 (1990). Some statutes authorizing the award of attorney fees specifically state that the trial court has discretion to award or refuse to award fees on appeal. In such a case, the appellate court will defer to the trial court's exercise of discretion in determining if fees should be awarded on appeal. CH2M Hill, Inc. v. Greg Bogart & Co., 47 Wn. App. 414, 735 P.2d 1330, rev. denied, 108 P.2d 1023 (1987).

Some Fee Requests Must Be Supported by An Affidavit of Financial Need Filed Before Hearing

RAP 18.1 (c) provides: In any action where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees and expenses, each party must serve upon the other and file a financial affidavit not later than 10 days prior to the time set for oral argument; however, in a motion on the merits pursuant to rule 18.14, each party must serve and file a financial affidavit along with its motion or response.

This provision is new to the rules with the 1990 amendments. It was added in recognition of case law which had developed requiring the filing of such affidavits. In Re Marriage of Coons, 53 Wn. App. 721, 770 P.2d 653 (1989).

The requirement is understandable in light of the statutory mandate of RCW 26.09.140 that an award of fees in a dissolution case be based upon the need of one spouse and the ability to pay of the other spouse. Fees awarded under RCW 26.09.140 are not based on which party prevails. The appellate court examines the arguable merit of the issues on appeal as well as the financial resources of the parties. Marriage of Booth, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).

The financial affidavit requirement of RAP 18.1(c) provides a trap for the unwary lawyer who may not closely read the rules. Cases are legion denying an award of attorney fees for failure to file an affidavit before oral argument. See, e.g., Local 112 v. Bray, 112 Wn.2d 253, 770 P.2d 634, cert. denied, 493 U.S. 965 (1989); In re Marriage of CMC, 87 Wn. App. 84, 89, 940 P.2d 669 (1997); Marriage of Crosetto, 82 Wn. App. 545, 565, 918 P.2d 954 (1996); Marriage of Gillespie, 77 Wn. App. 342, 350, 890 P.2d 1083 (1995).

If counsel has failed to comply with RAP 18.1(c), the appellate courts may provide some leniency, as was sometimes extended under the old rule. Donovick v. Seattle-First, 111 Wn.2d 413, 757 P.2d 1378(1988). In Donovick, counsel for the bank failed to file counsel's affidavit seven days prior to oral argument, but the court granted the request since opposing counsel did not challenge the requested amount and did not object to the request to waive strict compliance in light of extenuating circumstances set forth in the affidavit. Another example is Melior v. Chamberlain, 34 Wn. App. 378, 661 P.2d 996 (1984), reversed on other grounds, 100 Wn.2d 643, 673 P.2d 610 (1983), where the Court of Appeals allowed the award of attorney fees though no affidavit had been filed prior to oral argument, provided that the affidavit was filed within 15 days and $250 terms were paid. Accord, Scully v. Employment Security, 42 Wn. App. 596, 712 P.2d 870 (1986).

The rule requires quot;each partyquot; to serve and file an affidavit. If one of the parties files a financial affidavit and demonstrates the need for payment of fees on appeal and the other party does not, the court may grant fees to the party who has complied with RAP 18.1(c), in effect presuming that the non-complying party has sufficient funds to pay any reasonable attorney fees. See State ex rel. Stout v. Stout, 89 Wn. App. 118, 127, 948 P.2d 851 (1997); Marriage of Harrington, 85 Wn. App. 613, 635, 935 P.2d 1357 (1997).

Affidavit as to the Amount of Fees is Filed After the Decision

RAP 18.l(d) requires that the party awarded the right to attorney fees by the decision file, within 10 days of the decision, an affidavit detailing expenses incurred and the services of counsel. RCP 18.l(e) allows any other party to answer a request for fees and expenses filed pursuant to section 18.l(d) by serving and filing answering documents within 10 days after service of the affidavit upon the party. If the opposing party wants the court to review the fees, it should file an answer. Otherwise, the court has no obligation to do anything other than approve the request. If the requested fees are challenged, they may be justified in a reply affidavit, to be filed within 5 days after service of the answer. RAP 18.l(e). For a motion on the merits proceeding under. RAP 18.14, the answer can be made any time before oral argument

The request for attorney fees should be just for those services rendered on appeal after entry of the judgment. In Healer v. CBS, Inc., 39 Wn. App. 838, 696 P.2d 596, rev. denied, 103 Wn.2d 1041, cert. denied, 474 U.S. 946 (1985), the appellate court disallowed fees for the following services, which the court listed in footnote 3:

Redraft findings, conclusions and judgment; office conference re: Reconsideration motions; research right to trial by jury -- instructions; draft praecipe and writ of execution to enforce judgment; receive and review court's memorandum opinion; review plaintiffs reconsideration/new trial.

In determining the amount of fees to be awarded, the Supreme Court has indicated that there is no set formula to be applied, but that the award must be reasonable. Allard v. First Interstate Bank, 112 Wn.2d 145, 768 P.2d 998, opinion amended, 773 P.2d 420 (1989). The Allard court approved the use of several guides to assessing reasonableness of the fees: (1) the factors listed in RPC 1.5(a); (2) any contingent fee agreement between a party and attorney; and (3) a determination by the court that a party should be made whole. Where a statute provides for the award of attorney fees on one claim, but not on other claims of the prevailing party, the court will award fees only for the time spent pursuing the claim for which fees may be awarded. Travis v. Horse Breeders, 111 Wn.2d 396, 759 P.2d 418 (1988).

The Supreme Court has held that where a statute shifts a party's attorney fees to an opponent, the time spent establishing entitlement to the fee award and the amount of the award is properly included in the award. Fisher Properties v. Ardin-Mayfair, 115 Wn.2d 364, 798 P.2d 799, motion to modify, denied, 804 P.2d 1262 (1990). The court also held in the Fisher Properties case that generally an attorney's time should be valued at the attorney's billing rate used at the time the work was done, not the billing rate used at the time of the fee application.

Time spent by nonlawyer personnel could be compensable in a fee award. Absher Constr. Co. v. Kent School Dist., 79 Wn. App. 841, 917 P.2d 1086 (1995). In Absher, Division I held that nonlawyer time spent in duplicating pleadings, obtaining docket sheets, or verifying citations and quotations was not compensable, but that time spent in preparing briefs and related work was.

The Absher court also engaged in a general discussion of the factors governing an award of fees. Noting that the burden of establishing the reasonableness of fees is on the party seeking an award, the per curiam opinion in Absher awarded $22,807.50 in fees on a fee request of $36,911.54.

The court noted that quot;[a]n award of substantially less than the amount requested should indicate at least approximately how the court arrived at the final numbers, and explain why discounts were applied.quot; 79 Wn. App. at 848, citing Progressive Animal Welfare Society v. University of Washington, 54 Wn. App. 180, 187, 773 P.2d 114 (1989). As factors justifying a discount of the award in Absher, the court first noted that the fee request on appeal had been larger than the fees awarded at trial even though the only issue was whether the trial court had erred in holding that there was no material issue of fact on summary judgment. quot;There may be exceptional cases where more effort is required to defend a summary judgment than was required to win it, but we do not view this case as within the exceptional category. It thus does not appear reasonable to allow a larger award on appeal for this litigation than was reasonable below.quot; 79 Wn. App. at 848.

Division I also noted that the issues raised by the case were institutionally of some importance to the prevailing party and its law firm, and concluded that it was appropriate quot;to reduce the award because some of the hours spent here could be useful in ancillary or parallel litigation.quot; 79 Wn. App. at 848. Finally, the court opined that spending 20 hours preparing for oral argument was not reasonable. 79 Wn. App. at 849. This latter proposition seems dubious if the case was at all complicated, but the opinion does not reflect the size of the record or the issues raised, except to note that the appeal was from summary judgment.

Pursuant to RAP 18.l(f), the commissioner will make a decision on fees. The decision will be made without oral argument unless it is requested by the commissioner. A party may object to the commissioner's decision by a motion to modify, pursuant to RAP 17.7. See §16.7 of the Washington Appellate Practice Deskbook. The clerk will include the award of attorney fees in the mandate or in a supplemental judgment. RAP 18.l(h).

Fees for Answering Petition For Review

RAP 18.1(j) allows for the award of attorney fees to a party who prevailed and was awarded fees in the Court of Appeals and successfully opposes a petition for review in the Supreme Court. This provision was added to the rules by the 1990 amendments. A party must have both prevailed in the Court of Appeals and received an award of fees in order to be eligible to seek fees under this rule. It is possible for a party to have received an award of fees in the Court of Appeals based upon need even though the opposing party prevailed on the appeal. In such a case, the party would not meet the requirement of the rule that it both prevail and be awarded fees.

The respondent must ask for fees in its answer to the petition for review. RAP 18.1(j). If fees are awarded the party to whom fees are awarded should then submit the same material in support of fees as is required by RAP 18.l(d). Answers to the request for fees or replies to answers may be filed within the same timeliness as provided by RAP 18.l(e). The Supreme Court Commissioner will determine the amount of fees without oral argument, unless oral argument is requested by the Commissioner. The Commissioner's ruling is then subject to review as is any other ruling.

The Supreme Court will not award fees for work done in the Court of Appeals for actions like responding to a motion to reconsider. Fees for this work should be requested in the Court of Appeals by way of a supplemental request.