Villa Marina Assoc., Appellant V. Richard Cassady, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VILLA MARINA ASSOCIATION OF
APARTMENT OWNERS,
Appellant,
v.
RICHARD B. CASSADY, JR.,
Respondent.
No. 85710-0-I
DIVISION ONE
UNPUBLISHED OPINION
SMITH, C.J. — Villa Marina Association of Apartment Owners (Villa Marina)
appeals the trial court’s order awarding it attorney fees following the entry
summary judgment in its favor. Villa Marina asserts that the trial court erred by
deducting its claimed fees by more than half without conducting a proper lodestar
analysis. We conclude that the trial court did not develop an adequate record for
us to review Villa Marina’s claim of error and reverse and remand for further
proceedings.
FACTS
Richard Cassady owns a condominium located at 17109 NE 45th Street,
Unit 34 in Redmond, Washington. As owner of this condominium, Cassady is a
member of Villa Marina and is obligated to pay regular monthly and special
assessments to Villa Marina pursuant to Article 16 of the Declaration of
Condominium for Villa Marina. The declaration provides that any unpaid
assessments shall be a lien against the owner’s condominium, which has priority

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over all other liens and encumbrances. The declaration further grants the
authority to the Villa Marina Board of Directors to levy and collect assessments
and to bring suit to recover unpaid assessments, regardless of whether
foreclosure has been initiated.
Villa Marina’s collection policy states that any “account with an
outstanding balance shall be subject to a monthly late fee of $25” and that all
outstanding balances would accrue interest at 12 percent per annum on a
monthly basis until the balance is paid in full. The collection policy also states,
“All attorneys’ fees and costs incurred in the collection of past due Assessments
shall be assessed against the delinquent Owner’s account and shall be
collectible as an Assessment, including but not limited to any fees paid to the
Association’s Manager as a result of the Owner’s delinquency.” The
condominium declaration similarly states that
Failure to comply [with the condominium declaration] shall also
entitle the Board of Directors to collect all attorneys’ fees incurred
by it by reason of such failure, irrespective of whether any suit or
other judicial proceedings in commenced; and if suit is brought
because of such failure, all costs of suit may be recovered in
addition to attorneys’ fees.
Cassady first fell behind on his regular monthly assessments in
September 2019. On May 5, 2022, after sending multiple notices to Cassady
about his accumulating debt, Villa Marina initiated a complaint against Cassady
for lien foreclosure and to collect unpaid assessments, interest, late fees, and
attorney fees. Villa Marina moved for summary judgment on October 18, 2022.

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On April 18, 2023, after multiple continuances, the trial court entered an
order granting Villa Marina’s motion for summary judgment in part. Therein, the
trial court entered judgment against Cassady in the principal amount of
$24,912.79, plus late fees and interest, minus $19,072.04 in payments received,
for a total of $8,818.13. The trial court reserved determination of attorney fees
and costs and Villa Marina’s motion for decree of foreclosure pending the
outcome of alternative dispute resolution (ADR).
Villa Marina moved for limited reconsideration on April 20, 2023, asking
the trial court to decide the issues it had reserved in its order on summary
judgment. The trial court did not decide the motion until June 7, 2023, by which
time, the parties’ attempt at ADR had failed.
Also on June 7, 2023, the trial court entered an order awarding $20,000 in
attorney fees and $2,839.34 in costs to Villa Marina. This award was less than
half of the fees that Villa Marina requested. The trial court entered the following
findings of fact justifying its fee award:
3. In addition to the basis of the amount being requested, the
Court has considered the type of work performed and the ultimate
size of legal fees requested in light of the underlying debt in
controversy in this collections matter. The total debt owed in HOA
assessments after subtracting the payments made by Mr. Cassady
is approximately $5,800, while the requested attorney fees and
costs are more than $52,000. The attorney fees being requested far
outstrip the principal debt. Indeed, there is a gross disparity
between the amount requested when compared to the amount in
controversy. Plaintiff has requested attorney fees and costs of
more than nine (9) times the matter in controversy.
4.. This matter is not complex and may have been resolved
sooner if not for the Plaintiff’s delayed participation in ADR on a
matter of a relatively small amount of debt. The Plaintiff

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represented to the Court that they would not participate in ADR until
after the Court ruled on Plaintiff’s summary judgment motion.
5. In light of the size of the debt in relation to the fees
requested, the Court finds it appropriate for a downward adjustment
in fees and that reasonable fees and costs in this case should not
exceed more than four (4) times the total debt owed in HOA
assessments. See Scott Fetzer Co. v. Weeks, 122 Wash. 2d 141,
859 P.2d 1210 (1993). Thus, the Court finds attorney fees of
$20,000 to be reasonable in this case.
6. The Court finds an additional basis for this downward
adjustment is consideration of the reasonableness of the hourly
attorney rate billed of $415 and the hourly paralegal rate billed of
$190 in this collections matter.
Villa Marina moved for reconsideration and submitted additional documentation
to the court, including its scheduling communications with the mediator and
declarations by other attorneys with experience representing condominium
associations. The trial court denied the motion.
Villa Marina appeals.
ANALYSIS
We review a trial court’s decision concerning the amount of fees to be
awarded for abuse of discretion. Mayer v. City of Seattle, 102 Wn. App. 66, 79,
10 P.3d 408 (2000). “A trial court abuses its discretion when its decision is
manifestly unreasonable or based upon untenable grounds, or if no reasonable
person would take the position adopted by the trial court.” Mayer, 102 Wn. App.
at 79. (citing Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148–
49, 768 P.2d 998 (1989)).
A trial court calculating the reasonable amount of attorney fees should
apply the lodestar method. Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632
(1998) (overturned on other grounds by Matsyuk v. State Farm Fire & Cas.

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Co., 173 Wn.2d 643, 659, 272 P.3d 802 (2012)). Courts applying the lodestar
method must engage in a three-part analysis. First, the court must determine
that “counsel expended a reasonable number of hours in securing a successful
recovery for the client. Necessarily, this decision requires the court to exclude
from the requested hours any wasteful or duplicative hours and any hours
pertaining to unsuccessful theories or claims.” Mahler, 135 Wn.2d at 434; see
also Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 599-600. 675 P.2d
193 (1983) (“The starting point for the calculation of the lodestar is the number of
hours reasonably expended in the litigation.”). Second, the trial court must
determine “the reasonableness of the hourly rate of counsel at the time the
lawyer actually billed the client for the services.” Mahler, 135 Wn.2d at 433
(citing Fisher Props., Inc. v. Arden–Mayfair, Inc., 115 Wn.2d 364, 798 P.2d 799
(1990)). Factors in determining the reasonable hourly rate include not only
counsel’s customary rate, but also “the level of skill required by the litigation, time
limitations imposed on the litigation, the amount of the potential recovery, the
attorney's reputation, and the undesirability of the case.” Bowers, 100 Wn.2d at
597. Finally, the court must calculate the lodestar fee “by multiplying the
reasonable hourly rate by the reasonable number of hours incurred,” which the
trial court may adjust up or down in “rare instances.” Mahler, 135 Wn.2d at 433;
see also Bowers, 100 Wn.2d at 597.
Villa Marina’s challenge to the trial court’s award of attorney fees is
twofold. First, Villa Marina asserts that the trial court reduced the amount of the
fee award based upon factors that are not properly part of the lodestar analysis.

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Second, Villa Marina asserts that the trial court did not correctly calculate the
fees and costs awarded.
Reasonableness
Villa Marina first asserts that the trial court based its award of fees upon
factors not properly included in the lodestar analysis. Villa Marina contends that
it was improper for the trial court to reduce its fee award based on the disparity
between the amount of fee sought and the amount of the judgment, the lack of
complexity involved, and its delayed participation in ADR. We disagree with
respect to the first two factors and hold that the trial court did not err by reducing
the fee award due to lack of complexity of the matter and the disparity between
the fee request and amount of the judgment. But we agree with Villa Marina on
the third factor and hold that the trial court’s order is insufficient to support a
reduction in fees for delayed participation in ADR.
Washington law does not contain any set definition of what constitutes a
reasonable fee. However, courts have frequently looked to RPC 1.5(a) when
assessing which factors are appropriate for a trial court to consider in
determining the reasonableness of a requested fee award. See e.g. Berryman v.
Metcalf, 177 Wn. App. 644, 666, 312 P.3d 745 (2013)). RPC 1.5(a) lists nine
factors to be considered in determining the reasonableness of attorney fees.
Among the factors listed are “the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to perform the legal
service properly” and “the amount involved and the results obtained.” RPC
1.5(a)(1), (4). Because RPC 1.5(a) expressly contemplates that complexity of a

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matter and the amount of the judgment are factors in determining what
constitutes a reasonable fee, the trial court did not err by reducing Villa Marina’s
fee award on those bases.
Villa Marina nevertheless asserts that the disparity between the fees
requested and the amount awarded should not have been considered, relying on
Target Nat’l Bank v. Higgins, 180 Wn App. 165, 321 P.3d 1215 (2014). The court
in Target held that the trial court erred when it reduced the amount of fees
awarded under RCW 4.84.250 because of the small value of the claim. 180 Wn.
App. at 193-94. Here, as the trial court correctly recognized, Target does not
apply because Villa Marina did not claim fees under RCW 4.84.250.1 For fee
claims not asserted under RCW 4.84.250, our courts have consistently held that
the amount of the judgment is a relevant, albeit not conclusive, factor in the trial
court’s determination of the reasonableness of the fees claims. Mahler, 135
Wn.2d at 433; Mayer, 102 Wn. App. at 83.
Villa Marina also asserts that the trial court erred by reducing its fee award
based on Villa Marina’s delayed participation in ADR. In its order awarding fees
to Villa Marina, the trial court entered the following finding of fact:
This matter is not complex and may have been resolved sooner if
not for the Plaintiff’s delayed participation in ADR on a matter of
relatively small amount of debt. The Plaintiff represented to the
1 Although Villa Marina states that Target did not limit its holding to fee
claims brought under RCW 4.84.250, such a reading is inconsistent with our
Supreme Court’s decision in Mahler and Scott Fetzer Co. v. Weeks, 122 Wn.2d
141, 151, 859 P.2d 1210 (1993). We do not believe that Division Three intended
such a result and therefore decline to read Target in the manner advocated by
Villa Marina.

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Court that they would not participate in ADR until after the Court
ruled on Plaintiff’s summary judgment motion.
Villa Marina contends that this was not a valid basis for the deduction of fees
because it was entitled to a ruling on its summary judgment motion before
proceeding with ADR. It is not clear from the trial court’s order how Villa Marina’s
“delayed participation in ADR” pertains to its determination that counsel’s hours
or hourly rate were unreasonable. To the extent that the trial court believed that
a delay in ADR resulted in the expenditure of “wasteful” hours, it was required to
state as much in its order. Mahler, 135 Wn.2d at 434-35. Without any
explanation from the trial court connecting its finding to its reasonableness
determination, we are unable to state whether the trial court abused its
discretion.
Lodestar Calculation
Villa Marina also asserts that the trial court erred by not using the lodestar
method to calculate its fee award. Villa Marina contends that the trial court
“never identified what it considered to be a reasonable rate” and “made no efforts
to establish a lodestar before declaring the Association’s attorneys’ fees to be
unreasonable and justifying a reduction by nearly 2.5 times.” We agree with Villa
Marina that the trial court did not adequately explain how it determined its fee
award. But we disagree with Villa Marina as to the appropriate remedy for the
inadequate explanation.
“The purpose of the lodestar is to provide an objective basis for assessing
a reasonable fee.” Bowers, 100 Wn.2d at 599. The lodestar method of
calculating fees provides “trial courts a clear and simple formula for deciding the

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reasonableness of attorney fees in civil cases and gives appellate courts a clear
record upon which to decide if a fee decision was appropriately made.” Mahler,
135 Wn.2d at 433.
In order for this court to determine whether the fee award was
appropriately made, the trial court must necessarily create an adequate record
explaining the basis of the award. Mayer, 102 Wn. App. at 79 (“Trial courts must
also create an adequate record for review of fee award decisions. Failure to
create an adequate record will result in a remand of the award to the trial court to
develop such a record.”) (citing Mahler, 135 Wn.2d at 435). This requires the
court to explain its reasoning for each of the three steps outlined in Mahler –
which hours it deemed inessential, duplicative or unnecessary, what it
determined to be a reasonable hourly rate, and how it reached its calculation,
before adjusting the award up or down.2 135 Wn.2d at 435.
Here, the trial court’s order contains no discussion whatsoever of the
amount of hours counsel spent litigating the matter. While the trial court
explained why it determined counsel’s claimed hourly rates to be unreasonable, it
did not state what would constitute a reasonable hourly rate. Finally, the trial
court did not explain how it arrived at $20,000 as the appropriate amount of fees
to be awarded and whether that number included an upward or downward
2 One such way for the court to do so is to prepare a table “that lists, for
each attorney, the hours reasonably performed for particular tasks and the rate
charged, which may vary with the type or work.” Berryman, 177 Wn. App. at 664
(citing Bowers, 100 Wn.2d at 597-98).

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multiplier. Because it is unclear how the trial court calculated the fee award,
remand is necessary in order for the trial court to develop an adequate record.
Villa Marina asks us to perform the lodestar calculation on the trial court’s
behalf. Villa Marina contends that the trial court does not have “any interest in
ever awarding a community association its reasonable attorneys’ fees in a
superior court foreclosure lawsuit because [the trial court] appears to believe
such actions are unjustifiable.” This is a gross misreading of the trial court’s
orders. The trial court initial order awarding fees was not wholly improper, as
lack of complexity and the amount of judgment are factors to be considered in
determining what constitutes a reasonable fee. In its order on Villa Marina’s
motion for reconsideration, the trial court expressed its disagreement with Villa
Marina’s proffered interpretation of the Washington Condominium Act, chapter
64.34 RCW, which would have had the trial court read the statute generously in
favor of condominium associations. It did not go so far as to state that it would
never award fees in a foreclosure action. We decline to calculate the reasonable
fees to be awarded and remand for the trial court to clarify its award of fees and
costs in light of this opinion.
Fees on Appeal
Villa Marina also requests an award of fees on appeal under RAP 18.1,
the condominium declaration, and RCW 64.34.364. RAP 18.1 provides that
applicable law may grant a party the right to recover reasonable attorney fees or
expenses on review. RCW 64.34.364(14) states:

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The association shall be entitled to recover any costs and
reasonable attorneys' fees incurred in connection with the collection
of delinquent assessments, whether or not such collection activities
result in suit being commenced or prosecuted to judgment. In
addition, the association shall be entitled to recover costs and
reasonable attorneys' fees if it prevails on appeal and in the
enforcement of a judgment.
Similarly, the condominium declaration states, “In any such action to foreclose a
lien against any apartment for nonpayment or delinquent assessments, any
judgment rendered against the Owner of such apartment shall include a
reasonable sum for attorneys’ fees.”
Because we remand this matter due to a lack of an adequate record, Villa
Marina is not yet a prevailing party. The trial court may consider a request for
appellate fees on remand.
Because the trial court did not create an adequate record for us to review
its award of fees to Villa Marina, we reverse and remand for further proceedings.
WE CONCUR: