§17.7 REQUESTING APPELLATE FEES
RAP 18.1 requires a party to request attorney fees in the brief or motion on the merits and, if the court states in its opinion that fees should be awarded, to file an affidavit of fees and expenses within 10 days of the court's ruling.
In most cases, the prevailing party must request an award of fees on appeal from the appellate court, not the trial court. This is true even when an appellant abandons an appeal before filing an opening brief. The prevailing respondent must make a motion for fees in the appellate court. Thompson v. Lennox, 151 Wn. App. 479, 486, 212 P.3d 597 (2009).
(1) Request fees in the brief or motion on the merits
RAP 18.1(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 explain which theory provides the basis for the request. The request should be in the opening brief and not in the reply brief. Sacco v. 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., Inc., 47 Wn. App. 414, 735 P.2d 1330, review denied, 108 Wn.2d 1023 (1987).
A party seeking reasonable attorney fees on appeal must "devote a section of its opening brief to the request for fees or expenses." RAP 18.1(b). If an attorney fails to make a sufficient request in the opening brief, the appellate court will deny fees regardless of the merits; this request is mandatory. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998); Gardner v. First Heritage Bank, 175 Wn. App.650, 676-77, 303 P.3d 1065 (2013) (strict compliance with RAP 18.1 mandatory); Bay v. Jensen, 147 Wn. App. 641, 661, 196 P.3d 753 (2008) ("RAP 18.1(b) requires more than this bald request for attorney fees on appeal." (footnote omitted)). Thus, parties must provide authority to support an appellate fee request. Osborne v. Seymour, 164 Wn. App. 820, 866, 265 P.3d 917 (2011).
| Practice
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If the court has overlooked awarding fees in its decision the party entitled to fees should consider filing a motion for reconsideration directing the court to the section of the party's brief in which the fee request was made. See Chapter 16 of this deskbook on motions for reconsideration. |
(2) Fee requests in dissolution appeals require parties to file an affidavit of financial need before oral argument
RAP 18.1(c) provides that for certain types of actions, a party seeking fees on appeal must provide a "financial affidavit" 10 days prior to oral argument on the merits or simultaneously with a motion on the merits. In re Marriage of Leland, 69 Wn. App. 57, 847 P.2d 518, review denied, 121 Wn.2d 1033 (1993). The requirement applies principally in the family law setting and 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.
The Court of Appeals has denied fees when the requesting party failed to file a financial affidavit 10 days before oral argument. In re Marriage of Holmes, 128 Wn. App. 727, 742, 117 P.3d 370 (2005); Scanlon v. Witrak, 110 Wn. App. 682, 689, 42 P.3d 447, review denied, 147 Wn.2d 1024 (2002); In re Marriage of Gillespie, 77 Wn. App. 342, 890 P.2d 1083 (1995).
| Practice
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The rules do not specify what the financial affidavit should look like. Counsel in dissolution cases may have their clients file an updated Financial Declaration, available in the "Forms" section of the Washington Courts website Washington State Court Forms, WASHINGTON COURTS, http://www.courts.wa.gov/forms/ (last visited Mar. 12, 2015). The appellate courts generally discourage financial declarations that contain extensive narrative. |
RAP 18.1(c) authorizes an answer to an affidavit of financial need within seven days of service of the affidavit.
(3) Affidavit showing amount of fees is filed after the decision
RAP 18.1(d) directs the party awarded attorney fees to file, within 10 days of the decision, an affidavit detailing expenses incurred and the services of counsel. RAP 18.1(e) allows any other party to answer a request for fees and expenses 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, filed within 5 days after service of the answer. RAP 18.1(e).
The request for attorney fees should include only those services rendered on appeal after entry of the judgment. In Hepler v. CBS, Inc., 39 Wn. App. 838, 696 P.2d 596, review denied, 103 Wn.2d 1041, cert. denied, 474 U.S. 946 (1985), the appellate court disallowed fees for pre-appellate services. Id. at 848 n.3. As a matter of practice, the appellate courts will usually not award fees incurred before the notice of appeal is filed.
(4) 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. A party must have both prevailed in the Court of Appeals and received an award of fees in order to be eligible for fees under this rule. As noted above, it is possible for a domestic relations...
