Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

IN THE MATTER OF THE PETITION               )       No. 67068-9-I
THE CITY OF WOODINVILLE, a                  )
Washington optional code, non-charter       )
municipal corporation, TO ACQUIRE           )
BY CONDEMNATION CERTAIN REAL                )
PROPERTY FOR PUBLIC USE AS                  )
AUTHORIZED BY ORDINANCE                     )
NO. 449 OF SAID CITY,                       )
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            ) 
HOLLYWOOD VINEYARDS                         )       UNPUBLISHED OPINION
LIMITED PARTNERSHIP, a                      )
Washington Limited Partnership,             )       FILED: April 2, 2012
                                            )
                      Appellant.            )
                                            )

       Ellington, J.  --  Under RCW 8.25.070(1)(a), the condemnee in an eminent 

domain action may recover attorney fees if the condemnor fails to make a written 

settlement offer at least 30 days prior to trial.  The question here is whether  a

written offer, made more than 30 days before trial, nevertheless did not satisfy the 

statute because it did not describe itself as a "30-day" offer and/or because it was 

conditionally accepted but the condition was never realized.  The offer satisfied the 

statute, and we affirm the trial court's denial of fees to the condemnee. 

No. 67068-9-I/2

                                     BACKGROUND

       The City of Woodinville (City) condemned a portion of property owned by 

Hollywood Vineyard Limited Partnership.  The parties stipulated to immediate use 

and possession.  Trial to determine just compensation was set for June 28, 2010.

       At mediation on October 5, 2009, the City made a written settlement offer of 

$317,500.  Hollywood accepted the offer contingent on obtaining an access 

easement from an abutting property owner, MJR Development.  The parties signed a 

CR 2A settlement agreement to that effect.

       As of March 18, 2010, MJR Development had not agreed to grant the 

easement, and the City submitted an alternative "optional" settlement offer of 

$307,000, stating, "This offer is intended as a 30 day pre-trial offer and should be 

considered as an optional means to settlement in addition to the conditioned 
settlement reached in mediation."1 The offer expired as of March 26, 2010.  

Hollywood did not accept. 

       At trial, the jury awarded $215,000 in just compensation.  Hollywood moved 

for an award of attorney fees under RCW 8.25.070(1)(a).  The court denied the 

motion on grounds the requirements of the statute were not met.  Hollywood appeals 

this ruling.

                                       DISCUSSION

       We review issues of statutory interpretation de novo, and apply the standard 
principles therefor.2 Absent disputed facts, the legal effect of a contract is a question 

       1 Appellant's Br. at 9.

                                              2 

No. 67068-9-I/3

law, also reviewed de novo.3 Attorney fee decisions are reviewable separately from 

just compensation awards.4

       RCW 8.25.070(1)(a) provides for an award of attorney fees to the condemnee 

in an eminent domain proceeding if certain circumstances exist:

       [I]f a trial is held for the fixing of the amount of compensation to be 
       awarded to the owner or party having an interest in the property being 
       condemned, the court shall award the condemnee reasonable
       attorney's fees and reasonable expert witness fees in the event of any 
       of the following:

              (a) If condemnor fails to make any written offer in settlement to 
       condemnee at least thirty days prior to commencement of said trial.

The statute is designed to ensure that each side makes a good faith effort to settle 

and to achieve fairness in compensation by recognizing not only the taking of the 
land, but also litigation costs incurred in obtaining just compensation.5

       2 State v. Costich, 152 Wn.2d 463, 470, 98 P.3d 795 (2004).  We first look to 
the plain language of the statute.  "Recalling our primary goal is to give effect to the 
legislature's intent, we derive such intent by construing the language as a whole, 
giving effect to every provision.  If the language is unambiguous, we give effect to 
that language and that language alone because we presume the legislature says 
what it means and means what it says."  Id. (citations omitted).

       3 Keystone Masonry, Inc. v. Garco Constr., Inc., 135 Wn. App. 927, 932, 147 
P.3d 610 (2006); see also Berg v. Hudesman, 115 Wn.2d 657, 668, 801 P.2d 222 
(1990).

       4 See State v. Trask, 91 Wn. App. 253, 263-64, 957 P.2d 781 (1998).

       5 State v. Roth, 78 Wn.2d 711, 712-13, 479 P.2d 55 (1971).

                                              3 

No. 67068-9-I/4

       Hollywood contends the October 5, 2009 settlement offer did not qualify under 

the statute because (1) the City did not indicate it was intended as a qualifying 30-

day offer under the statute; and (2) Hollywood's acceptance of the offer was 

conditioned upon the cooperation of a third party.

       We reject the first argument.  The statute contains no express requirement 

that a settlement offer be identified as a "qualifying" offer.  Rather, it requires only 

that the offer be in writing.  This court will not add language to an unambiguous 
statute.6  As acknowledged by Hollywood, "an offer consists of a promise to render a 

stated performance in exchange for a return promise being given."7 The City's 

October 5, 2009 offer was a written promise to pay Hollywood $317,500 in just 

compensation.  It was clearly an offer, and it contained no expiration date.

       Hollywood asserts the City was required to identify its October 5, 2009 offer 
as a 30-day offer by the due process clauses of the state and federal constitutions.8  

Due process requires, at a minimum, notice and an opportunity for a hearing before 
a deprivation of property takes effect.9 But Hollywood was afforded a trial on just 

compensation.  Attorney fees are not a constitutional right,10and in any event,

       6 Costich, 152 Wn.2d at 477 (citing Kilian v. Atkinson, 147 Wn.2d 16, 20, 50 
P.3d 638 (2002)).

       7 Pacific Cascade Corp. v. Nimmer, 25 Wn. App. 552, 556, 608 P.2d 266 
(1980); see also Appellant's Br. at 30-31.

       8 U.S. Const. amend. XIV; Wash. Const. art. I, § 3.

       9 Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wn.2d 418, 422-23, 
428-29, 511 P.2d 1002 (1971). 

       10 See Peterson v. Port of Seattle, 94 Wn.2d 479, 486-87, 618 P.2d 67 (1980) 
(statutory fees in condemnation case not constitutionally based).  Hollywood also 
seems to argue that it was deprived of notice and opportunity because it was "left to 

                                              4 

No. 67068-9-I/5

Hollywood offers no authority supporting its claim that due process requires more 

than the statute does.

       Hollywood next argues that the October 5, 2009 offer does not satisfy 

RCW 8.25.070(1)(a) because the resulting conditional settlement agreement 

required the cooperation of a third party.  Again we disagree. The statute requires an 

offer, not fulfillment of an agreement.  The City made an unconditional offer with no 
expiration date.11 The fact that Hollywood's acceptance was conditioned on 

occurrence of a future event does not change the fact that the offer was made and 

never withdrawn.  Hollywood cites a number of references for the proposition that, 
where a condition precedent fails, a binding contract does not arise.12 But 

enforceability of the CR 2A agreement is not the issue.  Rather, the question is 

whether the City made a written offer to settle, which it unmistakably did. 

       Hollywood claims it did not have the power to accept the City's offer because 

it was reliant on the cooperation of MRJ Development to fulfill the condition 

precedent.  But Hollywood did accept the City's offer, and fails to explain why it did 
not have the power to waive the condition and accept unconditionally.13

guess" whether the City's October 5, 2009 offer was a qualifying offer under the 
statute.  Appellant's Br. at 38.  But, as mentioned above, the City's offer fit squarely 
into the standard definition of an offer, and was in writing as required by the statute.

       11 The City's offer was conditioned only upon city council approval, which was 
granted that same day.

       12 See Appellant's Br. at 34-36.

       13 Hollywood again asserts its due process rights were violated because of its 
reliance on a third party to fulfill the conditional agreement.  It fails to flesh out this 
argument.

                                              5 

No. 67068-9-I/6

       Ostensibly attempting to make a public policy argument in support of its 

position, Hollywood points to various cases and commentators that opine as to the 

unfairness of the just compensation system in Washington.  These policy debates 
are for the legislature to resolve, not the courts.14

       We affirm.  Because the court properly denied Hollywood attorney fees below, 

we deny fees on appeal.

WE CONCUR:

       14 See Costich, 152 Wn.2d at 479.

                                              6