Opnet v. Real Property, Steven L. Fager
75635-4
| Wash. Ct. App. | May 22, 2017Background
- OPNET and Clallam County seized real property at 115 Freeman Lane after detectives found evidence suggesting an indoor marijuana grow; a lis pendens and notices of seizure/forfeiture were served on identified interests (Steven Fager, DBVWC, Lucille M. Brown Living Trust).
- Criminal charges (manufacture and possession with intent) were filed against Steven and Timothy Fager; the criminal cases proceeded and were consolidated.
- After extensive pretrial proceedings, the trial court redacted odor-related statements from search-warrant affidavits, suppressed evidence for lack of probable cause, and dismissed the criminal charges; the Court of Appeals affirmed that dismissal.
- Steven Fager moved for summary judgment in the civil forfeiture action arguing collateral estoppel barred use of suppressed evidence and that the State could not meet its burden; Clallam County voluntarily dismissed the forfeiture action.
- The trial court awarded $295,185.64 in attorney fees to Steven and Timothy Fager as substantially prevailing claimants under RCW 69.50.505(6). Clallam County appealed.
- The Court of Appeals held Steven is a prevailing claimant entitled to reasonable fees for the civil forfeiture, reversed the fee award to Timothy (no timely claim filed), and remanded to determine the reasonable fee amount limited to fees reasonably incurred to prevail in the forfeiture proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Timothy Fager was a claimant entitled to attorney fees under RCW 69.50.505(6) | Timothy (via Steven): Timothy is a claimant because he is a major shareholder of DBVWC, which has a recorded interest | County: Timothy/DBVWC never filed a written claim within 90 days and thus are not claimants entitled to fees | Reversed as to Timothy: substantial evidence shows only Steven filed a claim; Timothy/DBVWC never filed timely notice, so no fee award to Timothy |
| Whether Steven Fager, as substantially prevailing claimant, is entitled to attorney fees under RCW 69.50.505(6) | Steven: Dismissal of criminal case and collateral estoppel barred use of suppressed evidence, so the forfeiture action could not succeed; he is the prevailing claimant entitled to fees | County: Challenges extent/reasonableness of fees and contends some fees related to criminal defense are not compensable in civil forfeiture | Affirmed in part: Steven is a substantially prevailing claimant and entitled to reasonable fees incurred to prevail in the civil forfeiture proceeding |
| Whether fees awarded should include time/charges tied to the criminal case and broader conduct | Steven: Fees for motions and efforts that led to dismissal of forfeiture (including overlapping criminal work) are compensable | County: Fees must be limited to work reasonably incurred to prevail in the civil forfeiture, not unrelated or purely criminal litigation tasks | Limited: Court remanded to calculate fees confined to hours reasonably expended to prevail in the civil forfeiture (exclude unrelated or legally untenable bases) |
| Whether trial court abused discretion in fee calculation by relying on improper factors | County: Trial court used factors unrelated to civil-forfeiture success (e.g., general litigation conduct, criminal discovery disputes) making fee award excessive | Steven: Fee magnitude justified by length and complexity of litigation overlap | Held: Trial court relied on improper factors; remand required to determine hours reasonably expended and reasonable rates for civil-forfeiture success |
Key Cases Cited
- State v. Catlett, 133 Wn.2d 355 (1997) (seizure/forfeiture under UCSA is civil and independent of criminal outcome)
- Tellevik v. Real Prop. Known as 31641 W. Rutherford St., 120 Wn.2d 68 (1992) (judicial writ and probable cause required for real property seizure)
- Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873 (2003) (standard for reviewing substantial evidence)
- Brand v. Dep't of Labor & Indus., 139 Wn.2d 659 (1999) (interpret attorney-fee provisions in light of their purpose)
- Guillen v. Contreras, 169 Wn.2d 769 (2010) (legislative purpose of fee provision is to protect claimants from wrongful seizures; fee provision to be read liberally)
- Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863 (1973) (voluntary dismissal makes defendant the prevailing party)
- Deeter v. Smith, 106 Wn.2d 376 (1986) (collateral estoppel bars use of unlawfully obtained criminal evidence in civil forfeiture)
- Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527 (2007) (appellate standard for reviewing attorney-fee awards: abuse of discretion)
- Berryman v. Metcalf, 177 Wn. App. 644 (2013) (method for calculating reasonable attorney fees: reasonable hours times reasonable rate)