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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CHRISTINA LASSEK and "JOHN DOE" LASSEK, wife and husband, both individual and on behalf of their marital community composed thereof, Appellants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 66569-3-I DIVISION ONE

PUBLISHED OPINION

v.

BIRHANE JENBERE, an individual, Respondent.

FILED: July 2, 2012

Spearman, A.C.J. -- A party making a CR 68 offer of judgment is entitled to define the offer as including attorney fees. Because Birhane Jenbere accepted Christina Lassek's post-arbitration offer of judgment, which expressly indicated it was "inclusive of any and all attorney fees and costs[,]" Jenbere was not entitled to attorney fees and costs under Mandatory Arbitration Rule (MAR) 7.3 and RCW 7.06.060. We therefore reverse the award of fees and costs, and remand. FACTS Birhane Jenbere sued Christina Lassek for damages arising out of a car accident, and the case went to mandatory arbitration. The arbitrator awarded

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$9,242.22 to Jenbere. Lassek requested a trial de novo. Jenbere made three offers of compromise, the last of which was $4999. Lassek rejected all of them. Then, about two weeks before trial, Lassek made a $5,500 offer of judgment under CR 68 as follows: COMES NOW Defendant Lassek by and through her attorneys of record, and pursuant to Rule 68 of the Civil Rules for Superior Court in the State of Washington, and pertinent statute, including but not limited to Chapters 4.84.250 through RCW 4.84.300 of the Revised Code of Washington, if applicable, and hereby offers to allow judgment to be taken in the above matter in the amount of Five Thousand Five Hundred Dollars and 00 cents ($5,500.00) inclusive of any and all attorney fees and costs, any and all special damages, any and all general damages, and any and all property damages. Counsel for Jenbere sent an email asking whether the phrase "`any and all attorney fees'" in the offer of judgment meant only "fees available under 4.84.250-300[.]" Counsel for Lassek responded that the offer of judgment covered all fees, not just statutory fees: "`[t]hat offer is all inclusive and not just limited to the cited rcw [sic] attorney fees provisions.'" Jenbere accepted the offer. Judgment was entered against Lassek in the principal amount of $5300 and $200 in statutory attorney fees under RCW 4.84.080 and the parties filed a satisfaction of judgment. Jenbere then moved for attorney fees and costs under MAR 7.3 and RCW 7.06.060. Lassek opposed the motion, arguing that the offer of compromise included all fees and costs, and that the total fee request was not reasonable. The trial court awarded all fees requested by Jenbere, and included the 2.0 multiplier requested by counsel. In all, the judgment for the total of fees and costs was $74,965. Lassek appeals. DISCUSSION 2

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Lassek challenges the trial court order entering judgment for attorney fees under MAR 7.3 and RCW 7.06.060. "In order to reverse an attorney fee award, an appellate court must find the trial court manifestly abused its discretion." Chuong Van Pham v. City of Seattle, 159 Wn.2d 527, 538, 151 P.3d 976 (2007) (citing Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987)). That is, the trial court must have exercised its discretion on untenable grounds or for untenable reasons. An exercise of discretion is based on untenable grounds where a trial court applies an incorrect legal analysis or commits an error of law. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). Lassek claims the award of attorney fees was erroneous because the offer of judgment, which was accepted by Jenbere, specifically included "any and all" attorney fees. We agree. The CR 68 offer of judgment proposed "to allow judgment to be taken in the above matter in the amount of Five Thousand Five Hundred Dollars and 00 cents (5,500.00) inclusive of any and all attorney fees and costs . . . ." (some emphasis added). Additionally, counsel for Jenbere asked about this provision prior to accepting, and was told it was "all inclusive" rather than merely covering statutory attorney fees. CP 53. Jenbere responds that the language in MAR 7.3 and RCW 7.06.060 is "mandatory" in that it provides that the superior court "shall" award reasonable attorney fees and costs against a party who appeals an award but fails to improve his or her position in a trial de novo.1 On this basis, Jenbere claims an award of attorney fees
1

Pursuant to RCW 7.060.050(1)(b), Jenbere's offer of compromise of $4999 replaced the

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can never be included in a CR 68-based settlement offer if the appealing party did not improve his position in a trial de novo. But nothing in MAR 7.3 or RCW 7.06.060 indicates that parties are prohibited from entering into a settlement, whether via CR 68 or some other mechanism, that includes all attorney fees. McGuire v. Bates, 169 Wn.2d 185, 234 P.3d 205 (2010), is instructive on this issue. Although McGuire did not involve MAR 7.3, in that case, the issue was whether the plaintiff, who agreed to settle "all claims," was nevertheless also entitled to prevailing party attorney fees under either RCW 4.84.250

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