Robert Gunn, V Terry & Petra Riely, 48701-2

Background

Gunn and the Rielys own adjacent parcels; a grassy path used by the Rielys for access lies wholly on Gunn’s property. The Rielys repeatedly used the path despite Gunn’s objections and knowledge they had no recorded easement.
In 2009 the Rielys hired a well driller who cut down about 107 of Gunn’s trees along the path; the driller’s contract specifically included "tree removal."
Gunn sued for timber trespass (RCW 64.12.030), waste (RCW 4.24.630), quiet title, and injunctive relief. The trial court found the Rielys acted ‘‘wrongfully’’ and awarded damages under the waste statute plus $17,500 in attorney fees.
On first appeal the court reversed the waste-based damages and remanded to compute damages under the timber trespass statute (treble damages for willful trespass) and to determine whether attorney fees were available under that statute.
On remand the trial court awarded $459 (trebled to $459) under the timber trespass statute and again awarded $17,500 in equitable attorney fees based on bad faith; the Rielys appealed.

Issues

Issue	Plaintiff's Argument (Gunn)	Defendant's Argument (Riely)	Held
Whether law-of-the-case barred awarding equitable fees on remand	Remand did not preclude arguing equitable fees; timber statute lacks fee provision so equity available	Prior opinion limited remand to timber-statute fees only	Court: Law-of-the-case did not bar equitable-fee claim on remand; remand language allowed further proceedings consistent with opinion
Whether Gunn waived equitable-fee claim by raising it on remand	Fee claim preserved by remand and prior opinion	Raised for first time on remand = waiver	Court: No waiver; trial court had discretion to address equitable theory on remand
Whether equitable attorney fees are legally available here (basis/scope)	Quiet title is equitable; bad-faith prelitigation conduct supports equitable fees	Equity fees limited (claimed to apply only to temporary-injunction context or where equitable cause exists)	Court: Equitable fees available for bad faith/prelitigation misconduct; quiet title provided equitable basis for fees
Whether trial court’s prior findings support bad faith/willful trespass and defeat mitigating-circumstances provision	Prior findings (repeated confrontations, knowledge property belonged to Gunn, hiring driller with tree removal) demonstrate willfulness and bad faith	Prior findings were for waste statute only; Rielys had probable cause (Sisson’s statements) to believe in an easement so mitigating provision applies	Court: Findings support bad faith and willful trespass; mitigating provision inapplicable because defendants knew they lacked authorization and failed to investigate
Whether trial court abused discretion in fee amount or failed to apply proportionality (exclude fees for unsuccessful claims)	Fees reflect bad-faith equitable award tied to quiet title/trespass; trial court reasonably relied on earlier findings	Trial court failed to exclude time spent on waste claim or other nonprevailing matters; affidavit supports waste-only hours	Court: Issues waived because Rielys did not raise proportionality below; no recalculation required on remand
Whether defendants are prevailing party under RCW 4.84.250 / CR 68 given settlement offers	Gunn argues offers didn’t resolve quiet title; equitable fees support plaintiff prevailing	Rielys argue recovery ($459) < offer so they are prevailing and entitled to costs/fees	Court: Rielys are not prevailing party; offers did not resolve quiet title and equitable fee award tied to success in quiet title/trespass

Key Cases Cited

Gunn v. Riely, 185 Wn. App. 517 (Wash. Ct. App. 2015) (prior appellate decision remanding for timber-trespass damages)
Lutheran Day Care v. Snohomish County, 119 Wn.2d 91 (Wash. 1992) (explaining law-of-the-case doctrine)
State v. Barberio, 121 Wn.2d 48 (Wash. 1993) (trial court discretion on remand under RAP 2.5(c))
Columbia Steel Co. v. State, 34 Wn.2d 700 (Wash. 1949) (issues not considered on first appeal may be raised on remand)
Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918 (Wash. Ct. App. 1999) (equitable attorney fees available for bad faith/prelitigation misconduct)
Kobza v. Tripp, 105 Wn. App. 90 (Wash. Ct. App. 2001) (quiet title is an equitable action)
Birchler v. Castello Land Co., 133 Wn.2d 106 (Wash. 1997) (treble damages for willful trespass; mitigating circumstances provision)
Mullally v. Parks, 29 Wn.2d 899 (Wash. 1947) (knowledge of boundary dispute negates mitigating circumstances)
Wheeler v. Fruhling, 54 Wn.2d 483 (Wash. 1959) (same principle regarding willful trespass)
Smith v. Shiflett, 66 Wn.2d 462 (Wash. 1965) (mitigating circumstances provision applies when probable cause exists)
Beckmann v. Spokane Transit Auth., 107 Wn.2d 785 (Wash. 1986) (timber trespass statute does not provide for attorney fees)