Olympic Peninsula Narcotics Enforcement Team v. Junction City Lots 1 Through 12 Inclusive, Block 35

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IN CLERKS OFFICE
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SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE OLYMPIC PENINSULA
NARCOTICS ENFORCEMENT TEAM;
BILL BENEDICT,CLALLAM COUNTY
SHERIFF; CLALLAM COUNTY
SHERIFF'S OFFICE; and
CLALLAM COUNTY,

Respondents, No. 95013-0

EN BANC
REAL PROPERTY KNOWN AS
(1)JUNCTION CITY LOTS 1 THROUGH
12 INCLUSIVE,BLOCK 35, Filed: SEP 0 6
(2)LOT 2 OF THE NELSON SHORT
PLAT LOCATED IN JEFFERSON
COUNTY,AND ALL APPURTENANCES
AND IMPROVEMENTS THEREON,OR
PROCEEDS THEREFROM,

Defendant,

STEVEN L. FAGER;DBVWC,INC., a
Washington corporation; and the LUCILLE
M. BROWN LIVING TRUST,

Petitioners.
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

YU,J.— This case involves Washington's civil forfeiture statute and the

scope of the attorney fees provision where the claimant is the substantially

prevailing party. The forfeiture statute allows law enforcement agencies to seize

and take ownership of property that has a sufficient factual nexus to certain

controlled substance violations. RCW 69.50.505. However, if someone claims the

property and law enforcement cannot prove that forfeiture is authorized, then the

claimant is entitled to have the property returned and to receive "reasonable

attorneys' fees reasonably incurred by the claimant." Id. at (6). We are presented

with two issues of first impression regarding this attorney fees provision.

First, we are asked who qualifies as a "claimant" when the property at issue

is owned by a corporation. We hold that in such a case, a corporate shareholder

who did not file any claim in the forfeiture case is not a claimant and therefore

cannot recover attorney fees pursuant to the statute's plain language. We thus

affirm the Court of Appeals in part.

Second, we must decide whether a substantially prevailing claimant's fee

award is strictly limited to fees incurred in the forfeiture proceeding itself. The

answer is no. The plain language of RCW 69.50.505(6) gives courts discretion to

award the claimant attorney fees from a related criminal case if the fees were

reasonably incurred for the primary purpose of resisting civil forfeiture. We
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

therefore reverse the Court of Appeals in part and remand to the trial court to enter

a corrected fee award consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2007,the Olympic Peninsula Narcotics Enforcement Team

(OPNET)became suspicious that brothers Steven and Timothy Eager' were

growing and distributing marijuana from a commercial building at 115 Freeman

Lane in Port Townsend. OPNET officers conducted surveillance and, in 2009,

obtained a warrant for a thermal image search, based on allegations that they could

smell marijuana from the street and that the smell was coming from the 115

Freeman Lane building.

Based on the results ofthe thermal image search, OPNET obtained a search

warrant for the 115 Freeman Lane building and "discovered a large, sophisticated,

indoor marijuana growing operation." Clerk's Papers(CP)at 19. The next day,

the Pagers were each charged with one count of manufacturing marijuana and one

count of possession with intent to deliver marijuana. The criminal cases against

the Pagers were consolidated.

On the same day that the criminal charges were filed, OPNET,the Clallam

County sheriff, and Clallam County brought this civil forfeiture case against the

'For clarity, we refer to the brothers collectively as "the Fagers" and individually as
"Steven" and "Timothy."
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

two parcels of real property on which the 115 Freeman Lane building is loeated.

One parcel belongs to Steven and the other belongs to a corporation, Discovery

Bay Village Wellness Collective(DBVWC).^ Steven is the president and

registered agent for DBVWC,and the Pagers are both shareholders.

Jeffrey Steinbom timely entered a notice of appearance in the forfeiture case

as "Attorney for Claimant Steven Fager." Id. at 31. In January 2010,the parties

entered an agreed order staying the forfeiture case pending the outcome of the

consolidated criminal cases, which took several more years to resolve.

In their criminal cases, the Pagers moved to suppress the evidence OPNET

obtained from searching the 115 Freeman Lane building. After a lengthy hearing,

the trial court granted the motion, crediting unrebutted expert testimony "that it

would have been impossible for the officers to smell the marijuana" from the

distance at which they claimed to smell it. Id. at 80. The court also determined

that the officers' statements "demonstrate[d] a reckless disregard for the truth" and

must be suppressed. Id. at 81.

Without those statements, there was no probable cause for the search

warrant, and the court therefore suppressed "[a]11 evidence procured as a result."

Id. at 84. The trial court then dismissed the criminal cases with prejudice, and the

^ The"WC"in DBVWC is variously referred to as standing for "Water Company" and
"Wellness Collective." E.g., CP at 19, 52. We defer to the trial court's findings of fact, which
use "Wellness Collective." Id. at 546.
Olympic Peninsula Narcotics Enft Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

Court of Appeals affirmed. State v. Eager, No. 44454-2-II(Wash. Ct. App. Feb.

10, 2015)(unpublished), bttp://www.courts.wa.gov/opinions/pdf/D2%2044454-2-

II%20%20Unpublisbed%200pinion.pdf. The State did not seek further review,

and the mandate issued on April 8, 2015.

Two and a half weeks later, James R. Dixon entered a notice of appearance

in the forfeiture proceeding as "Substitution Counsel for Steve Fager." CP at 46.

That same day,"Steven Fager and the Discovery Bay Village Wellness Collective"

moved for summary judgment. M at 52. OPNET did not respond. Instead,

OPNET released its lis pendens and filed a motion for voluntary dismissal pursuant

to CR 41(a)(1)(B). The parties agreed that voluntary dismissal should be granted

and that the summary judgment motion was moot. However, OPNET would not

stipulate to a dismissal that included any attorney fee award, so Steven filed a

separate motion for attorney fees.

The trial court dismissed the forfeiture case and awarded the Fagers the

attorney fees incurred in the forfeiture case, as well as some of the fees incurred in

the Fagers' criminal cases. The Fagers did not request, and the court did not

award, all of their criminal defense fees, however. Instead, the court awarded fees

only "where the primary purpose behind the incurred fees was to prevent the

forfeiture." Id. at 540. On OPNET's request for clarification, the court confirmed

that it was awarding fees to both Steven and Timothy because Timothy is "a part
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

owner of DBVWC,Inc." Excerpt of Proceedings of Audio Verbatim Tr.(Aug. 5,

2015)(RP)at 67.

OPNET appealed. In an unpublished decision, the Court of Appeals,

Division One, held that RCW 69.50.505(6) did not authorize the trial court to

consider "factors unrelated to the civil forfeiture proceeding," such as '"the way in

which the State approached the criminal case,'" in awarding attorney fees.

Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12

Inclusive, No. 75635-4-1, slip op. at 14-15 (Wash. Ct. App. May 22, 2017)

(unpublished)(OPNET)(underlining omitted), http://www.courts.wa.gov/opinions/

pdf/756354.pdf. It also held that Steven appeared in the forfeiture proceeding only

in his individual capacity and that DBVWC and Timothy never appeared at all, so

Timothy could not be a claimant entitled to attorney fees. The Court of Appeals

therefore affirmed in part, reversed in part, and remanded for the trial court to enter

a corrected fee award as to Steven. We granted the Pagers' petition for review.

ISSUES

A. Is Timothy a substantially prevailing claimant entitled to attorney fees

in the forfeiture case?

B. Does RCW 69.50.505(6) give courts discretion to award attorney fees

that a substantially prevailing claimant incurred in a related criminal proceeding

for the purpose of resisting forfeiture?
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

C. Are the Fagers entitled to attorney fees incurred on review in this

court?

ANALYSIS

In Washington,"a court may award [attorney] fees only when doing so is

authorized by a contract provision, a statute, or a recognized ground in equity."

King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV,

188 Wn.2d 618, 625, 398 P.3d 1093 (2017). The only basis asserted for attorney

fees in this case is a statute, RCW 69.50.505(6). Attorney fee awards are reviewed

for abuse of discretion. Guillen v. Contreras, 169 Wn.2d 769, 774, 238 P.3d 1168

(2010). However, the underlying question of which fees may be awarded pursuant

to the statute is a question oflaw reviewed de novo. Id.

In this case, OPNET did not waive or forfeit its argument that Timothy is not

a claimant, and the record clearly shows that he is not. His status as a shareholder

in DBVWC,a distinct corporate entity, does not make him a claimant. We

therefore affirm the Court of Appeals in part and remand to the trial court to

exclude from its fee award the fees that Timothy incurred in his criminal case.

We further hold that RCW 69.50.505(6) gives courts discretion to award

attorney fees that a substantially prevailing claimant reasonably incurred in a

related criminal case for the primary purpose of avoiding civil forfeiture. Here, the

trial court properly exercised its discretion to award some of Steven's criminal
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

defense fees when he prevailed in the civil forfeiture case. We therefore reverse

the Court of Appeals on this issue.^

Finally, we award Steven the attorney fees he incurred on review in this

court as to the second issue, on which he substantially prevails.

A. Timothy's criminal defense fees cannot be awarded because he is not a
claimant

As discussed further below, the trial court properly awarded some of

Steven's criminal defense fees in this case. However, we affirm the Court of

Appeals' holding that Timothy's criminal defense fees must be excluded from the

fee award.

The Fagers initially contend that OPNET forfeited or waived this issue by

failing to raise it in a timely manner. However, OPNET did raise concerns about

Timothy's status as a claimant before the trial court entered its findings offact,

conclusions oflaw, and order, both at oral argument and in its written briefing. RP

at 43, 67; CP at 522-24. The Fagers responded on the merits, and the trial court

^ The parties read the Court of Appeals' opinion as agreeing with OPNET that trial courts
do not have any discretion to award related criminal defense fees in a civil forfeiture case. See
OPNET,No. 75635-4-1, slip op. at 14-15. Amicus, however, contends that the Court of Appeals
held just the opposite. Amicus Curiae Br. of Wash. Ass'n of Criminal Defense Lawyers at 2-7.
We agree with the parties' reading hecause the Court of Appeals denied the Fagers' motion for
reconsideration or clarification on that very issue and only the Fagers sought this court's review
as aggrieved parties. See RAP 3.1.

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Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

decided the issue in their favor. RP at 43-44, 67; CP at 527, 529-30. We likewise

address the merits of this issue on review.

RCW 69.50.505(6) explicitly allows courts to award fees "reasonably

incurred by the claimant." A "claimant" in a civil forfeiture case is "any person

[who] notifies the seizing law enforcement agency in writing ofthe person's claim

of ownership or right to possession of the property within the statutory time limit.

RCW 69.50.505(5). Timothy did not do that in this case.

Timothy argues that his duty to notify OPNET in writing was never

triggered because OPNET never served him with notice of the intended forfeiture.

OPNET contends it had no duty to serve Timothy because its "title search did not

identify Timothy Eager as having a known interest in the real property." Suppl.

Briefing under RAP 13.7(d) at 15-16. We decline to resolve this dispute because it

is unnecessary. Timothy cannot be a claimant in this case as a matter oflaw.

Steven owns one parcel ofthe real property at issue and DBVWC,a

corporation, owns the other."^ "[A] corporation's shareholders have no property

interest in that corporation's physical assets because corporations are separate

OPNET conceded at oral argument that Steven "was acting as the representative for"
DBVWC in the forfeiture case, so DBVWC and Steven are both prevailing claimants. Wash.
Supreme Court oral argument, Olympic Peninsula Narcotics Enf't Team v. Junction City Lots
1 through 12 Inclusive, No. 95013-0(June 1.2, 2018), at 18 min., 16 sec., video recording by
TVW, Washington State's Public Affairs Network, http://www.tvw.org. Contra OPNET,No.
75635-4-1, slip op. at 11-12. In light of OPNET's concession, this opinion does not distinguish
between Steven's and DBVWC's entitlement to attorney fees.
Olvmpic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

organizations with different privileges and liabilities from shareholders." Nw.

Cascade, Inc. v. Unique Constr., Inc., 187 Wn. App. 685, 702, 351 P.3d 172

(2015)(citing Christensen v. Skagit County, 66 Wn.2d 95, 97, 401 P.2d 335

(1965)). We do not doubt that as a shareholder in DBVWC,Timothy is financially

interested in the outcome of the forfeiture case. But a claim of financial interest in

the outcome is not a "claim of ownership or right to possession of the real

property. RCW 69.50.505(5). Timothy is therefore not a claimant.

RCW 69.50.505(6) explicitly limits the attorney fees that may be awarded to

fees "incurred by the claimant." Steven and DBVWC are the only claimants in this

forfeiture case, and there is no suggestion that they incurred Timothy's criminal

defense attorney fees. Therefore, those fees may not be awarded.

B. RCW 69.50.505(6) gives courts discretion to award attorney fees that a
claimant reasonably incurs in a criminal case for the purpose of prevailing in
a related civil forfeiture case

Washington is one ofthe few jurisdictions that provides for mandatory

attorney fee awards to prevailing claimants in civil forfeiture cases: "In any

proceeding to forfeit property under this title, where the claimant substantially

prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred

by the claimant."^ RCW 69.50.505(6). The parties dispute whether, and to what

^ See also 28 U.S.C. § 2465(b)(1); lowA Code § 809A.12(7); Or. Rev. Stat.
§ 131A.310(1); Utah Code § 24-4-110(l)(b); Va. Code § 19.2-386.12(6); Wyo. Stat. § 35-7-
1049(p)(i).

10
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

extent, there are limitations on the fees that may be awarded pursuant to this

provision. OPNET contends that claimants may recover attorney fees incurred

only in the civil forfeiture case itself, under that specific cause number, while the

Pagers contend that courts have discretion to award claimants fees reasonably

incurred in a related criminal case for the primary purpose of ensuring the

claimant's success in the forfeiture case. We agree with the Pagers.

When interpreting statutes, our task is always to give effect to the

legislature's intent. Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,

43 P.3d 4(2002). The legislature's intent in enacting RCW 69.50.505(6) was "to

protect individuals against having their property wrongfully taken by the State."

Guillen, 169 Wn.2d at 776. To effect this intent, courts should look at the purpose

of the work underlying the fees incurred and ask whether the attorney's work was

directly related to the forfeiture proceedings even if it was not the same cause

number. The trial court in this case thus properly exercised its discretion when it

awarded Steven some ofthe attorney fees he incurred in his criminal case because

it found those fees were factually connected and reasonably incurred for the

primary purpose of prevailing in the forfeiture case.

We have already once interpreted RCW 69.50.505(6) as requiring courts to

take a purpose-based approach to fees in civil forfeiture cases. In Guillen, we held

that a partially prevailing claimant is entitled only to partial attorney fees,

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Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

reasoning that the legislature did not "intend for claimants to recover fees and costs

incurred solely for unsuccessful claims." Id. at 780. This reasoning directs courts

to award fees based not on cause number but on whether the fees were reasonably

incurred for the purpose of ensuring the success that the claimant actually

achieved.

We decline to confine Guillen's, reasoning to cases where it works to the

claimant's detriment. Just as a partially prevailing claimant is entitled to only

partial attorney fees, we hold that a fully prevailing claimant is entitled to the full

amount of attorney fees reasonably incurred for the claimant to succeed. This is

the only approach that accounts for all ofthe statutory language, gives that

language the liberal interpretation required, and reflects the realities presented in

the context of civil forfeiture.

When interpreting statutes, we have a duty '"to give effect to all language,

so as to render no portion meaningless or superfluous.'" State v. Ervin, 169 Wn.2d

815, 823, 239 P.3d 354(2010){cyaoCmg Rivard v. State, 168 Wn.2d 775, 783, 231

P.3d 186 (2010)). If fee awards pursuant to RCW 69.50.505(6) were limited based

strictly on the cause number, as OPNET contends they should be, then the statute

could just as easily read,"In any proceeding to forfeit property under this title,

where the claimant substantially prevails, the claimant is entitled to reasonable

attorneys' fees." We cannot ignore the legislature's decision to specifically

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Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

include additional language without limitation that allows for the award offees

"reasonably incurred by the elaimant." RCW 69.50.505(6).

OPNET suggests that its interpretation would not render "reasonably

incurred by the claimant" meaningless because that phrase should be interpreted as

an additional limit on a claimant's right to recover fees:

[T]he legislature was setting out two separate reasonable standards.
The first one ["reasonable attorneys' fees"] is whether the attorney
was charging a reasonable rate, whether it was a reasonable fee for
that attorney's work in the civil forfeiture proceeding. And then the
"reasonably incurred" language is for the actual work within the civil
forfeiture proceeding that was—led to a successful [claim] under that
statute.

Wash. Supreme Court oral argument, Olympic Peninsula Narcotics Enf't Team v.

Junction City Lots 1 through 12 Inclusive, No. 95013-0 (June 12, 2018), at 27

min., 31 sec., video recording by TVW,Washington State's Public Affairs

Network, http://www.tvw.org. This is a dubious proposition because work that did

not lead to a successful claim is already excluded by the statute's reference to

"reasonable attorneys' fees." RCW 69.50.505(6); see Guillen, 169 Wn.2d at 780.

More troublingly, this interpretation relies on federal case law that "'strictly'"

interprets the attorney fees provision in a federal civil forfeiture statute. United

States V. 317 NickFitchardRd. Nw., 579 F.3d 1315, 1320(11th Cir. 2009)

Ruckelshaus V. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274, 77

L.Ed. 2d938 (1983)).

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Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

Our precedent precludes such a strict interpretation, directing us instead to

interpret ROW 69.50.505(6) liberally in favor ofthe claimant's right to recover

fees. Guillen, 169 Wn.2d at 777-78. Liberally reading the phrase "reasonably

incurred by the claimant" leads us to conclude that the legislature intended to make

it clear that a court's guiding inquiry in awarding attorney fees incurred by a

prevailing claimant is the fees' purpose and reasonableness. RCW 69.50.505(6).

In the context of civil forfeiture, neither purpose nor reasonableness can be

determined by cause number alone. Courts must instead account for the

"pragmatic" considerations presented by such cases. Guillen, 169 Wn.2d at 778;

of. Pennsylvania v. Del. Valley Citizens' Councilfor Clean Air, 478 U.S. 546, 558,

106 S. Ct. 3088, 92 L. Ed. 2d 439(1986)(awarding fees that were "necessary to

the attainment of adequate relief," even though the fees were incurred before the •

litigation officially began).

It is certainly true that civil forfeiture and criminal cases are separate

proceedings and that civil forfeiture is not technically a criminal penalty. United

States V. Ursery, 518 U.S. 267, 292, 116 S. Ct. 2135, 135 L. Ed. 2d 549(1996).

But forfeiture as a civil matter derives from a "'legal fiction'" that "'[i]t is the

property which is proceeded against, and . . . held guilty and condenmed as though

it were conscious instead of inanimate and insentient.'" Id. at 275 (emphasis

added)(quoting Various Items ofPers. Prop. v. United States, 282 U.S. 577, 581,

14
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

51 S. Ct. 282, 75 L. Ed. 558 (1931)). This legal fiction prevents courts from

applying constitutional rules that "are expressly limited to criminal cases" in civil

forfeiture cases. Austin v. United States, 509 U.S. 602, 607, 113 S. Ct. 2801, 125

L. Ed. 2d 488 (1993). But it does not require courts to ignore the fact that with the

enactment of RCW 69.50.505, the legislature "has chosen to tie forfeiture directly

to the commission of drug offenses." Id. at 620.

The connection between criminal and civil forfeiture cases is most clearly

pronounced in situations like this one, where both cases are based on the same

underlying offense, allegedly committed by the property's owner and claimant. In

each case, the government must prove the same offense was committed, and the

same person will be defending against the same charges based on the same

evidence. It is therefore entirely unsurprising that much of the legal work done in

one case will directly benefit the other. Performing such legal work under the

cause number for the criminal case will sometimes be the most reasonable course

of action in order to prevail in the forfeiture case. Fees for that work may be

awarded pursuant to RCW 69.50.505(6), which clearly does not require courts to

diminish a prevailing claimant's entitlement to attorney fees just because the

claimant acted reasonably.

The facts presented here well illustrate the reasonableness of performing

legal work in a criminal case to benefit a forfeiture claimant. Steven was charged

- 15
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

in his criminal case on the same day that OPNET filed its civil forfeiture

eomplaint. He was thus left with three options: stay the forfeiture case pending the

criminal case, stay the criminal case pending the forfeiture case, or litigate both

eases at the same time. Steven chose the first strategy, and OPNET agreed to stay

the forfeiture case. The trial court found that Steven pursued this strategy for the

primary, subjective purpose of prevailing in the forfeiture case, noting the high

value of the real property at issue in eomparison to the relatively small impact that

a criminal conviction would have on Steven's interests.

The eourt further found that Steven's strategy was objectively reasonable

based on the circumstances presented. Indeed, in many circumstanees, staying the

forfeiture case pending the criminal case may be the most(and possibly only)

reasonable option. Any other strategy (staying the criminal case pending the civil

forfeiture or litigating both eases at the same time) may require a person to forfeit

important constitutional rights that he or she is entitled to as a criminal defendant,

including the right to a speedy trial and the right against self-incrimination.

Const, art. I, §§ 22, 9; Austin, 509 U.S. at 607(constitutional rules that "are

expressly limited to criminal cases" do not apply in civil forfeiture cases). It would

also be an extremely inefficient use of resources for all parties involved. By

litigating the criminal case first, however, Steven was able to pursue a successful

suppression motion with preclusive effeet in the forfeiture ease, leading direetly to

16
Olvmpic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

the dismissal of both cases without duplicative litigation or forfeiture of Steven's

constitutional rights.

Steven thus reasonably incurred some attorney fees in his criminal case for

the primary purpose of prevailing in the forfeiture case. Denying his right to

recover those fees based solely on cause number would elevate form over

substance and would fail to make Steven whole, even though he wholly prevailed.

We therefore hold that the trial court properly exercised its discretion to award

Steven some of his criminal defense attorney fees in accordance with RCW

69.50.505(6).

C. Steven is entitled to partial attorney fees on review

The Pagers requested attorney fees on review in their Court of Appeals brief,

and "[rjequests made at the Court of Appeals will be considered as continuing

requests at the Supreme Court." RAP 18.1(b). As discussed above, Steven

prevails on the second issue presented, but not the first. He is therefore entitled to

the attorney fees he reasonably incurred on this court's review of the second issue.

RCW 69.50.505(6); RAP 18.1(a); Guillen, 169 Wn.2d at 780.

CONCLUSION

RCW 69.50.505(6) requires courts to award attorney fees to substantially

prevailing claimants and gives them discretion to determine which fees were

"reasonably incurred." The statute's plain language does not indicate that courts

17
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0

should limit their inquiry into reasonableness based on cause number. The trial

court here properly considered all the fees reasonably incurred by Steven Fager

when be prevailed as a claimant in the civil forfeiture case. However, because

Timothy Fager is not a claimant, the attorney fees be incurred in bis criminal case

were not incurred "by a claimant" and cannot be awarded in accordance with the

statute's plain language. We therefore affirm in part and reverse in part the Court

of Appeals and remand for the trial court to enter a corrected fee award consistent

with this opinion.

18
OPNET, etal. v. Real Prop., No. 95013-0

WE CONCUR:

19
Opnet, et al. v. Real Prop.

No. 95013-0

GonzAlez, J.(dissenting)—^The civil forfeiture statute does not authorize

attorney fees incurred in a criminal case to be awarded in a forfeiture proceeding.

To the extent the majority holds otherwise, I respectfully dissent.

The legislature made its intent plain. "In any proceeding to forfeit property

under this title, where the claimant substantially prevails, the claimant is entitled to

reasonable attorneys' fees reasonably incurred by the claimant." RCW

69.50.505(6). This statute explicitly limits attorney fees to "any proceeding to

forfeit property under this title." Attorney fees were meant to be limited to civil

forfeiture proceedings under Title 69 RCW. See State v. Catlett, 133 Wn.2d 355,

366-67, 945 P.2d 700(1997)("Seizure and forfeiture are civil processes and are

independent ofthe outcome of any criminal charges that might be brought against

the owner ofthe property."(quoting Final Legislative Report, 51st Leg., at 119

(Wash. 1989))). I recognize that in Guillen v. Contreras, we read this statute

liberally. 169 Wn.2d 769, 778, 238 P.3d 1168 (2010). But liberal interpretation
Opnet, et al. v. Real Prop., No. 95013-0 (Gonzalez, J., dissenting)

does not, and cannot, override the explicit limitation of attorney fee recovery to

"any proceeding to forfeit property."

The issue before us is a matter of form, not substance. majority at 17.

The civil forfeiture and criminal case are factually and legally two separate

proceedings. They involve different parties and different interests. The legislature

limited attorney fees to the civil forfeiture case. Contrary to the majority's

assertion, RCW 69.50.505(6)'s "reasonably incurred" does not change the meaning

of"any proceeding to forfeit property" to "any proceeding to forfeit property and

any connected proceedings."

In each proceeding, Steven Fager faced different adversaries: the Olympic

Peninsula Narcotics Enforcement Team in the forfeiture proceeding and the State

of Washington in the criminal case. See Clerk's Papers at 305-06. He is entitled to

an award of"reasonable attorneys' fees reasonably incurred" in the civil forfeiture

proceeding only. RCW 69.50.505(6). I respectfully dissent.
Opnet, et al. v. Real Prop., No. 95013-0(Gonzalez, J., dissenting)

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