RECEIVED

AUG 2 9 ~ 0 0 3
COURT OF APPEALS, DIVISION III
CAUSE NUMBER 21114-2-111
STATE OF WASHINGTON,
Petitioner,
v.
ELROY COSnCH; ELROY COSTICH as trustee under the COSTICH
LIVING TRUST,
Respondents,
SPOKANE COUNTY,
Defendant.
PETITION FOR REVIEW
RECEIVED
SEP 0 2 2001
;\7
T
ORNEY GENERAL'S OFFH,::E
.' ',.!'JSPORTATIOI'J ,8, PU
i
3UC
COf\JSTRUCTION D!ViSION
CHRISTINE O. GREGOIRE
Attorney General
JOHN F. SALMON III
Assistant Attorney General
WSBA No. 20812
Transportation & Public Construction
Post Office Box 40113
Olympia, Washington 98504-0113
(360) 753-1622
TABLE OF CONTENTS
1.
II.
III.
N.
V.
VI.
IDENTITY OF PETITIONER ....................... 1
COURT OF APPEALS' DECISION ................... 1
INTRODUCTION ............................... 1
ISSUES PRESENTED FOR REVIEW .................. 2
A. Does the Court of Appeals' decision requiring the public
to pay a property owner's attorney and expert witness
fees where the jury verdict is $30,000 tess than the
DOT's highest written offer in settlement conflict with
this Court's decision in State v. Swarva? .............. 2
B. Does the Court of Appeals decision invalidating the
DOT's offer improperly make adjustment for fees and
costs in conflict with the Court of Appeals, Division 1's
holding in SeaTac v. Cassan? ..................... 2
C. Does the Court of Appeals' decision, which prohibits
condemnors from considering factors other than their
opinion of the fair market value of the owner's property
in making settlement offers, thereby hindering efforts to
settle condemnation lawsuits, raise issues of substantial
public interest? ......................... . . . . . 2
ST A TEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT FOR ACCEPTANCE OF REVIEW . . . . . . . . . . 5
A. The Court Of Appeals' Decision Ignores The Plain
Language OfRCW 8.25.070 And Conflicts With This
Court's Decision In State v. Swarva. ...... . . . . . . . . . . 5
B. The Court Of Appeals' Decision Conflicts With The
Division One Holding In SeaTac v. Cassano .......... 10
C. Because It Hinders Efforts To Settle Condemnation
Lawsuits, The Court Of Appeals' Decision Raises Issues
Of Substantial Public Importance .................. 12
D. The Court of Appeals' Advisory Decision Requiring
Condemnors To Leave Settlement Offers Open For
Thirty Days Before Trial Raises Issues Of Substantial
Public Importance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i
VII. CONCLUSION ........................ . ...... 19
ii
TABLE OF AUTHORITIES
. Cases
Moore v. Moore,
2 0 Wn. App. 909 ( 1978). ....................... 9
SeaTac v. Cassan,
93 Wnw App. 357 (1998) ............ 2, 10, 11, 12
Seattle v. Rio,
16 Wn. App. 718 ( 1977) ....................... 11
Snow's Mobile Homes, Inc. v. Morgan,
80 Wn.2d 283 (1972) ........................... 9
State ex rel. Washington State Convention and
Trade Center,
101 Wnw App. 25 (2002) ....................... 11
State V. Olson,
31 Wnw App. 403 (1982) ....... 11, 15, 16, 17, 18
State v. Swarva,
86 Wn. 2 d 29 ( 1975) ................ 2, 5, 7, 8, 9
Walker v. Munro,
124 Wn.2d 402 (1994) ......................... 15
Statutes
Laws of 1971, 1st Ex. Sess., ch. 39, 3 ....... 15
RCW 8.25.0701, 4, 5, 10, 11, 13, 14, 15, 16, 17, 18
RCW 8. 25 . 070 ( 1) (b) .............................. 4
RCW 8.25.070(5) ................................ 11
RCW 8.25.120 ........................... 1, 3 I 8, 9
RCW 8. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RCW 8. 26 . 180 . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 7, 8
RCW 8. 2 6 . 18 0 (2) ................................. 6
iii
RCW 8.26.205 I, 5, 7
Other Authorities
WPI 150. 05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iv
\ ~
I. IDENTITY OF PETITIONER
The Washington State Department of Transportation
(DOT), an agency of the State of Washington, and the
Appellant in this action, asks the Court to accept review of the
decision designated in Part II of this Petition.
II. COURT OF APPEALS' DECISION
The DOT seeks review of the Court of Appeals' decision
filed on June 19, 2003. That decision affinned an award of
attorney and expert witness fees of$100,740 in a condemnation
case although the jury returned a verdict of $30,000 less than
the DOT's pre-trial settlement offer. A copy of the decision is
attached as Appendix A. The presiding judge denied the
DOT's Motion for Reconsideration by order dated August 1,
2003, which is attached as Appendix B.
III. INTRODUCTION
Under certain circumstances, RCW 8.25.070
1
entitles a
condemnee to attorney fees if the judgment exceeds the
agency's highest written "offer in settlement" by ten percent or
more. This was intended to encourage early settlement before
the significant costs of preparing for trial are incurred. Here,
the DOT offered more in settlement than what the eventual
1 The statutes referred to in this Petition for Review, RCW
8.25.070, RCW 8.25.120, RCW 8.26.180, and RCW 8.26.205, are
attached as appendices to this Petition.
1
verdict was, yet had to pay fees essentially because it offered
more to settle the case than its eventual trial evidence of fair
market value. This result is contrary to both the plain meaning
of the statute and the underlying policy. It also negatively
impacts the ability of all public agencies to settle condemnation
cases.
The Court of Appeals' decision should be reversed
because it: (1) improperly relies on RCW 8.26 to create new
rights in condemnation actions contrary to this Court's holding
in State v. Swarva, 86 Wn.2d 29 (1975); (2) contradicts
Division I's holding in SeaTac v. Cassan, 93 Wn. App. 357
(1998); and (3) frustrates the Legislature's goal of encouraging
settlement in condemnation cases. The DOT respectfully
contends that the dissenting opinion is correctly reasoned and
should be followed by this Court.
IV. ISSUES PRESENTED FOR REVIEW
A. Does the Court of Appeals' decision requiring the
public to pav a propertv owner's attorney and expert
witness fees \vhere the jury verdict is $30,000 less than
the DOT's highest written offer in settlement conflict
with this Court's decision in State v. Swarva?
B. Does the Court of decision invalidating the
DOT's offer improperly make alijustment for fees
and costs in conflict with the Court of Appeals,
Division I's holding in SeaTac v. Cassall?
C. Does the Court of decision, which prohibits
condemnors from considering factors other than their
2
opinion of the fair market value of the owner's
property in making settlement offers, therebv
hindering efforts to settle condemnation lawsuits,
raise issues of substantial public interest?
D. Does the Court of Appeals' advisory decision
reguiring condemnors to leave settlement offers in
effect for thirty days before trial raise issues of
substantial publIc importance?
V. STATEMENT OF THE CASE
This IS a condemnation action brought to acqUlre
property needed for the construction of the North Spokane
Corridor Highway Project on State Route 395. The DOT
brought this condemnation action to acquire approximately two
and one-half acres of property located in Spokane County. In
preparation for the valuation trial, both the DOT and the
Costiches retained expert witnesses to appraise the value of the
property. The DOT's expert witness valued the property at
$191,200. The Costiches' expert witness valued the property at
$382,000. The parties exchanged these appraisal conclusions in
November 2001 pursuant to RCW 8.25.120.
2
Thirty-three days before the date set for trial, the DOT
sent a written offer to settle the case for $282,500 pursuant to
2 The Court of Appeals' decision incorrectly states that the DOT
did not disclose its opinion of fair market value. The record shows that
this opinion was disclosed in November 2001. CP 193 (11-29-01 entry).
The Court of Appeals also incorrectly identifies the date of the appraisal
done by the DOT's expert witness, Bruce Jolicoeur, as August 21, 2001.
Costich Opinion at 3 and 9. In fact, Mr. Jolicoeur only visited the
property in August. His appraisal was not completed until November
2001 and then revised in December. CP at 34-35, 194 (12-17-01 entry).
3
RCW 8.25.070. CP 99. RCW 8.25.070(1)(b) provides that a
condemnee sha11 be awarded attorney and expert witness fees
when "the judgment awarded as a result of trial exceeds by ten
percent or more the highest written offer in settlement
submitted to those condemnees appearing in the action by
condemnor in effect thirty days before the trial." By its terms,
this written settlement offer was scheduled to expire nine days
after it was served. However, on the ninth day, the DOT
offered to extend the expiration date for another week. CP 103.
The Costiches then served the DOT with a motion to invalidate
the offer for a11eged failure to comply with RCW 8.25.070. CP
59-60. The Costiches argued and the trial judge agreed that the
settlement offer was invalid because it expired prior to trial and
because it was greater than the DOT's expected just
compensation testimony.3 RP at 8 11. 5-9; CP at 48-49.
At trial the jury awarded $252,000 as just compensation
for the taking, which was $30,000 less than the DOT's
settlement offer. However, because it had previously ruled the
DOT's settlement offer invalid, the trial court then awarded
$88,157.55 in attorney's fees and $12,582.35 in expert witness
3 Where, as in this case, the condemnor acquires the entire
property, just compensation is the fair market value of the property. WPI
150.05.
4
fees. The DOT appealed the order invalidating its settlement
offer and the fee award.
VI. ARGUMENT FOR ACCEPTANCE OF REVIEW
A. The Court Of Appeals' Decision Ignores The Plain
Language Of RCW 8.25.070 And Conflicts With This
Court's Decision In State v. Swarva.
The plain language of RCW 8.25.070 directs trial courts
to award reasonable attorney and expert witness fees to
condemnees only where the judgment awarded as a result of
trial exceeds by ten percent or more "the highest written offer in
settlement. . .in effect thirty days before trial." Instead of giving
effect to this plain language, the Court of Appeals engaged in a
misguided exercise in statutory interpretation by grafting
guidelines for pre-condemnation acquisitions found in RCW
8.26.180 to the provisions ofRCW 8.25.070.
Specifically, the Court of Appeals found that the
provisions of RCW 8.26.180 limited the DOT to offering
precisely $191,200, which was its evidence of fair market
va1ue.
4
Co stich Opinion at 9. In doing so, the Court of Appeals
ignored RCW 8.26.205, which explicitly limits the effect of
RCW 8.26.180, and this Court's holding in State v. Swarva,
supra, that RCW 8.26.180 creates no legal rights in a
condemnation action. In reaching this decision, the Court of
4 As noted earlier, the DOT's expert witness concluded that
$191,200 represented just compensation for the property.
5
Appeals mistakenly found that guidelines for agency
acquisition of real property found in RCW 8.26.180 Impose
duties on condemning agencies even after the cases have
entered into adversarial condemnation proceedings. The Court
of Appeals stated:
The State must make every effort to aCRuire the
p'roperty through negotiation. RCW 8.20.180(1)
Every effort' mcludes informing the condemnee
of the State's fair market value determination.
RCW 8.26.180(3). Before negotiations begin, the
State must have the property appraised and fix an
amount which it believes represents 'just
compensation' for the 'Rroperty. The State must
then 'make a prompt offer to acquire the property
for the full amount so established. In no event
shall such amount be less than the agency's
~ p p r o v e d appraisal of the fair market value.'
RCW 8.26. I 80(2), (3). We read these provisions
as requiring the State in this case to offer Mr.
Costicn $191,200 in just compensation when it
received this appraisal m August 2001.
Costich Opinion at 9.
By its own terms, RCW 8.26.180 relates only to pre
acquisition activity by the acquiring agency. See RCW
8.26.180(2) ("Real property shall be appraised before the
initiation of negotiations;") RCW 8.26.180(3) ("Before the
initiation of negotiations for real property, the acquiring agency
shall establish an amount which it believes to be just
compensation therefore ....") The DOT met these requirements
prior to the initiation of this condemnation action. CP 26-30.
RCW 8.26.180 does not create a duty for the DOT to
6
immediately transmit new settlement offers when it receives
new condemnation appraisals during pre-trial preparation in the
condenmation litigation. In relying on RCW 8.26.180 as the
basis of its holding, the Court of Appeals ignored RCW
8.26.205, which provides:
The provisions of RCW 8.26.180, 8.26.190 and
8.26.200 create no rights or liabilities and do not
affect the validity of any property acquisitions by
purchase or condemnation.
(Emphasis added.)
The Court of Appeals also ignored this Court's holding in
State v. Swarva. In that case, this Court confirmed that the
plain language of RCW 8.26.180 means what it says.
We note initially that RCW 8.26.180 is a guideline
statute only, and its terms do not declare rights.
Swarva, 86 Wn.2d at 33.
In Swarva, this Court held that the guidelines found in
RCW 8.26.180 do not affect subsequent condemnation
litigation. Swarva at 33. The Swarva court held that the State
was not prohibited from making a settlement offer for more
than its trial testimony concerning just compensation. "Such
practice is one purpose of settlement-to avoid litigation and its
resulting cost and delay." Swarva at 33. The Court of Appeals'
holding that the State in this case was limited to offering no
7
more than its opinion ofjust compensation is therefore in direct
conflict with the Swarva decision and should be reversed.
In addition, the Court of Appeals' holding on this issue
makes RCW 8.25.120 superfluous. RCW 8.25.120 provides the
mechanism for the reciprocal exchange of appraisal
information. It provides:
After the commencement of a condemnation
action, upon motion of either the condemnor or
condemnee, the court may order, upon such terms
and conditions as are fair and equitable the
production and exchange of the written
conclusions of all the appraIsers of the Rarties as to
just compensation owed to the conaemnee, as
prepared for the purpose of the condemnation
actIOn, and the comparable sales, if any, used by
such aRpraisers. The court shall enter such order
only after assurance that there will be m u t u a l ~
recIprocal and contemporaneous disclosures of
simIlar information between the parties.
By holding that condemnors have a duty to immediately
disclose their appraisal information under RCW 8.26.180, the
Court of Appeals makes RCW 8.25.120 superfluous. A
unilateral duty on the part of the DOT to disclose its appraisal is
contrary to the requirement that there be an exchange of
information and that the exchange be "mutual, reciprocal, and
con temporaneous."
8
Two statutes relating to same subject matter, if they are
not in conflict, should be interpreted to give meaning and effect
to both. Moore v. Moore, 20 Wn. App. 909, 913 (1978).
"(T)he courts are obliged to interpret a statute, if possible, so
that no portion of it is superfluous, void, or insignificant."
Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288
(1972).
Furthermore, the Court of Appeals' concerns regarding
disclosure of appraisal information are easily allayed by
reference to RCW 8.25.120 and the discovery rules which
provide for discovery of appraisal information. In this case the
Costiches knew months before trial that the DOT's opinion of
fair market value was $191,200. Therefore, the Court of
Appeals' statement that "Swarva cannot be read to say that the
State need not disclose what its determination of the fair market
value is," (Costich Opinion at 10) is misplaced and
demonstrates that the Court of Appeals did not understand the
record or the law regarding the discovery of appraisal
information.
9
..~
B. The Court Of Appeals' Decision Conflicts With The
Division One Holding In SeaTac v. Cassano
The Court of Appeals' decision also misconstrues the
holding in SeaTac v. Cassan, 93 Wn. App. 357 (1998). In
Cassan, Division I of the Court of Appeals held that attorney
fees, interest and costs should not be added to the jury verdict to
determine whether the award at trial exceeded by ten percent or
more the highest written settlement offer made before trial.
Cassan at 361-62. By the same reasoning, it was improper for
the court to invalidate the DOT's highest written offer in
settlement on the theory that it included amounts for fees,
interest, and trial risks. If, under Cassan, no adjustments to the
offer of settlement are permitted after trial, no adjustments
should be permitted before trial either. RCW 8.25.070 uses the
phrase "written offer in settlement." There is no legal
requirement that the offer in settlement be dissected into
component parts. There is also no reason to treat a settlement
offer in a condemnation case differently from a settlement offer
in any other case. The settlement offers of other litigants are
not limited to their trial evidence and there is no legitimate
reason to apply such a rule in condemnation cases.
The Court of Appeals' decision in this case asserts
"applying the [Cassan] reasoning here, the state cannot add fees
and costs to its offer in order to beat the jury award." Costich
10
Opinion at 8. Of course, there is absolutely nothing in Cassan
that prohibits a condemnor from considering, when making its
offer, the possibility that it might be responsible for fees if its
offer is too low. The Cassan court simply held that the relevant
figures for determining eligibility for an attorney fee award
were the "offer in settlement" and the jury verdict. The Cassan
court applied the statutory text-the Court of Appeals in this
case did not do so.
Many decisions have stated that one purpose of RCW
8.25.070 is to ensure that both parties in a condemnation
proceeding make a good faith attempt at settlement before trial.
Seattle v. Rio, 16 Wn. App. 718, 721-22 (1977); State ex rei.
Washington State Convention and Trade Center, 101 Wn. App.
25,31-32 (2002); State v. Olson, 31 Wn. App. 403,407 (1982).
If one of the purposes of RCW 8.25.070 is to encourage
settlement, then condemnors must be allowed to make offers
based on the costs and risks associated with going to trial. The
attorney fee statute recognizes this and uses the phrase "offer in
settlement" rather than "offer of just compensation." RCW
8.25.070. RCW 8.25.070(5) also demonstrates that the
Legislature intended settlement offers to be something other
than just compensation. That paragraph prohibits the use of an
"offer in settlement" at trial for any purpose in the
amount of "compensation" to be paid for the property. Clearly,
11
the Legislature intended that "offers in settlement" should have
a different meaning than 'Just compensation". The Court of
Appeals ignored the plain language of the statute,
misunderstood the holding in Cassan, and should be reversed.
C. Because It Hinders Efforts To Settle Condemnation
Lawsuits, The Court Of Appeals' Decision Raises
Issues Of Substantial Public Importance.
As the dissenting opinion in this case points out, there is
no statutory or other good reason to prohibit the DOT from
considering the same factors that other litigants consider when
making settlement offers, and the Legislature has not done so.
By restricting "offers in settlement" to fair market value, the
Court of Appeals' decision makes settlement in condemnation
cases less likely than where condemnors are free to make an
"offer In settlement" that considers the intangibles,
uncertainties, and risks that are present in nearly every lawsuit.
It is common in condemnation cases, as it is in most
types of lawsuits, to consider any number of risk factors when
formulating settlement offers. In a "total take" condemnation,
'Just compensation" for a particular piece of property is the fair
market value of that property. In addition to its determination
of fair market value for the property, a condemning authority
may consider factors such as: (a) the risk of a high jury award
and the risk of paying attorney and expert witness fees; (b) the
12
significant costs that may be saved by avoiding preparation for
trial and the actual trial of the case as well as potential post trial
litigation costs; and (c) other intangibles such as the complexity
of the legal and factual issues involved in the case, and whether
they involve unsettled issues oflaw.
Offers of settlement in condemnation cases are almost
always higher than the condemnor's evidence of fair market
value as a result of these considerations. It simply makes no
sense to invalidate a settlement offer because it is too high.
RCW 8.25.070 applies to condemnations initiated by any state
or local agency exercising the power of eminent domain.
Because the Court of Appeals' decision in this case affects the
ability of all condemning agencies to settle these cases prior to
trial, it raises an issue of substantial public interest.
D. The Court of Appeals' Advisory Decision Requiring
Condemnors To Leave Settlement Offers Open For
Thirty Days Before Trial Raises Issues Of Substantial
Public Importance.
Because it ruled that the DOT's offer in settlement was
invalid on the grounds previously discussed, the Court of
Appeals did not analyze the meaning of the words "in effect
thirty days before trial." In the interest of judicial economy,
this Court should rule on this issue and find as the dissenting
opinion did that "in effect thirty days before trial" means what
13
it says and not "in effect for thirty days" or "in effect for the
thirty days" before trial as the Costiches have argued.
The Court of Appeals in this case offered an advisory
opinion without conducting any analysis of the Issue. The
Court of Appeals' opinion in this case states:
We need not, therefore, address the State's
contention that an offer is "in effect thirty days
before the trial" if it is operative, however
fleetingly, on the 30th day before trial. We
nevertheless mention in passing-purely as
dictum-that, as we read this statute, the State is
required to keep its offer in effect for a full 30
days.s
Costich Opinion at 6. If the Court of Appeals wished to decide
that issue, it should have done so directly. If it wished to pass
on the issue, it should not have included gratuitou's remarks.
These unsupported conc1usory remarks are poor jurisprudence
and unfairly prejudice all condemning authorities in future
5 The Court of Appeals' assertion that the DOT contended that a
settlement offer satisfies RCW 8.25.070 "if it is operative, however
fleetingly, on the 30th day before trial" repeats and erroneously attributes
to the DOT the Costiches' mischaracterization of the DOT's argument. It
was never the DOT's argument that its offer could be "fleeting." In fact,
the DOT argued that any offer must be open for a reasonable amount of
time, and that fifteen days in this case (eight days plus a seven day
extension) was a reasonable amount of time for the offer to be open.
DOT's Reply Brief at 4.
14
proceedings. See, e.g., Walker v. Munro, 124 Wn.2d 402, 411
12 (1994 ) (courts are not authorized to issue advisory opinions).
This dicta, as well as the statement in the first line of the
opinion that the State must have a written offer of settlement
"in effect for thirty days before trial," which simply misstates
the language of RCW 8.25.070, should be corrected.
Prior to its amendment in 1984, RCW 8.25.070
conditioned an award of attorney fees on the judgment awarded
as a result of trial exceeding "by ten percent or more the highest
written offer in settlement submitted to ... condemnees ... at
least thirty days prior to commencement ofsaid trial." Laws of
1971, 1st Ex. Sess., ch. 39, 3. (Emphasis added.)
In the case of State v. Olson, 31 Wn. App. 403 (1982),
the Court of Appeals observed that the phrase "at least thirty
days," could lead to inequities when a property's value
depreciated significantly over the course of a lengthy
condemnation proceeding. Id. at 407. The Olson court,
therefore, suggested that the Legislature should amend the
statute to address a perceived injustice that arose in that case.
15
A thorough understanding of the facts in Olson is key to
appreciating why the Olson court suggested that the Legislature
amend RCW 8.25.070. The purpose of the amendment was to
bring the offer closer in proximity to trial, not to require that the
offer remain openfor thirty days.
In Olson, the State began condemnation proceedings to
acquire a sandspit located in Clallam County in January 1979.
In July 1979, the State offered $90,000 for the property which
was rejected. Then in January 1980, the property's value was
drastically reduced by a flood. After this flood event, the State
reappraised the property and offered just $35,000 for the
property prior to trial. Id. at 405.
At trial the jury awarded $57,000 and the condemnees
requested attorney fees. This request was denied because under
the plain meaning of the statute, the highest written offer made
at least thirty days before trial was $90,000. Therefore, the
judgment at trial had not exceeded by ten percent or more the
highest written offer in settlement made at least thirty days
prior to the trial. Id. at 405-406.
16
While the Olson court held that RCW 8.25.070 was
unambiguous and, therefore, the owners, were not entitled to
attorney fees, the court also noted that in circumstances where
properties depreciated significantly during the course of
litigation, there might be apparent inequities inherent in strict
interpretation of the statute. Consequently, the court in Olson
offered a suggestion for the statute's improvement.
Recognizing that an offer made in effect thirty days before trial
more accurately reflected the actual value of the depreciated
property at the time of trial than an offer which had been in
effect more than a year earlier, before the depreciation had
occurred, the Olson court suggested that "the statute should be
amended 'so as to base attorney and witness fee entitlement on
the highest written offer in settlement in effect 30 days before
trial.'" Olson, 31 Wn. App. at 407. (Emphasis added.)
Significantly, in Olson, there is no discussion whatsoever about
the length of time that the offer must remain in effect.
In 1984, the Legislature acted on the Olson court's
suggestion and amended the statute, using the very words the
court suggested. The Legislature replaced the phrase "highest
written offer in settlement .. . at least thirty days prior to
17
commencement of said trial" with "highest written offer in
settlement ... in effect thirty days before triaL" 1984 Wash.
Laws, ch. 129, 1. The Legislature did not at that time, or at
any time since, see fit to include in the statute a requirement
that the condemnor's offer be in effect for the entire thirty days
prior to trial. The Olson case and the legislative history of
RCW 8.25.070 demonstrate that the addition of restrictions or
requirements on settlement offers in condemnation cases should
be made as a matter of policy by the Legislature, not by a
judicial amendment of the statute.
This Court should find, as the dissenting opinion below
did, that settlement offers under RCW 8.25.070 must be in
effect thirty days before trial. To hold otherwise will only
encourage expensive and wasteful preparation during the days
immediately preceding trial, when such cases can and should be
settled without such a misuse of litigant and court resources. If
the Court of Appeals is correct, the DOT and all other
condemning agencies would always be required to incur the
cost of full-blown trial preparations, with owners still entitled to
accept the settlement offer on the courthouse steps. RCW
8.25.070 does not require such an absurd result and surely the
Legislature did not intend to force such meaningless litigation
. 18
expenses on the public, where its stated intent was to encourage
early settlement. Because the Court of Appeals' "dicta" stating
that offers in settlement must remain in effect for thirty days
before trial affect all public condemning authorities, it raises
issues of substantial public importance, and should be reviewed
by this Court.
VII. CONCLUSION
This case raises an issue of substantial public interest:
the process by which public agencies deal with private property
owners in condemnation cases. The Court of Appeals' decision
ignores the relevant statutory language and conflicts with
published decisions of both this Court and Division I. Unless
reversed, the Court of Appeals' decision will make settlement
of condemnation cases more unlikely because condemnors will
be prohibited from making realistic offers of settlement.
Therefore, the DOT requests that the Court grant its Petition for
Review.
19
RESPECTFULL Y SUBMITTED this 29th day of
August, 2003.
CHRISTINE O. GREGOIRE
Attorney General
Assistant Attorney General
Transportation & Public Construction
Post Office Box 40113
Olympia, Washington 98504-0113
(360) 753-1622
20
_ PRI 12: 16 FAX 360 586 6847
AGO - TPC

APPENDIX "A"
08129/03 FRI 12:20 [TX/RX NO 7584J
AGO - TPC

.'
FILED
'JUN 1g 2003
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF )
)
Appellant, )
)
v. )
)
ELROY COSTICH; ELROY )
COSTICH as trustee under the )
COSTICH LIVING TRUST, )

)
Respondents, )
)
SPOKANE COUNTY, )
)
Defendant. )
----
----.. )
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
ELROY COSTICH; ELROY )
COSTleH as trustee uDder the )
COSTICH LIVING TRUST, )
)
Appellants, )
)
SPOKANE COUNTY, )
)
Defendant. )
No. 21114-1-ID
No.
Division Three
Pane) Nine
PUBLISHED OPINION
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No. 21 1 14-2-nI, 21243-2-III
State v. Costich
.
SWEENEY, J.-In a condemnation action, the State must have a written offer of
settlement in effect for 30 days before a mal to f1Xjust compensation. RCW 8.25.070(1).
If the jury's compensation award exceeds that offer by more than 10 percent, the
landowner gets attorney fees and costs. Here, the State made what it- called an "all
inclusive offer. tt But, when pressed by the landowner to specifY the amount ofjust
compensation being offered, the State refused to break do'WD. the total to show the amoWlt
being offered for just compensation. So it was impossible for the landowner to compare
any subsequent jury award to the State's pretrial offer.
The question before us is whether this "all inclusive offer" satisfied the
requirements ofRCW 8.25.070(1). We conclude that it did not. And we therefore affinn
the judgment ofthe trial court awarding fees and costs.
FACTS
The Washington State Department ofTransportation sued to condemn a piece of
north Spokane property owned by Phillip The State established a just
compensation value of$134,000 based on preliminary appraisals. Following the
statutory condemnation protocol, the State made a written offer and paid $134,000 into
the registry of the court in exchange for Mr. Costich's stipulation to immediate
possession and use. Phillip Costich declined the $134,000 offer and demanded ajuI)'
trial.
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. No. 211 14-2-III, 21243-2-Ill
State v. Costich
Trial was set for March 4, 2002 on the only unresolved question-the amount of
just compensation to be paid for the property. Meanwhile, on August 21. 2001) the State
received a second appraisal of$191 ,200. Although this was the just compensation value
the State planned to offer at trial. the offer was not passed along to !vir. Costich.
On January 30, 2002-34 days before trial-the State made 'a written settlement
offer of$282,500. The State described this offer as and told Mr. Costich
1
that the offer would expire on February 8.
!vir. Costich responded by asking what portion ofthe offer represented the State's
fair market value offer for the land and what part of the remainder represented interest,
attorney fees, and so forth. The State responded that "our offer is the written settlement
offer referred to iD. RCW 8.25.070.,,2 Papers (CP) at 78. The State persisted in
its refusal to identifY how much, if any, of the offer was for amounts extraneous to the
fair market value offer for the land. In response to every inquiry, the State simply
reiterated that the offer was a "global settlement": U[i]n formulating this offer in
settlement we did not itemize the categories ... this offer is all-inclusive." CP at 79-80.
"'All-inclusive means that the offer settles all claims in this condemnation action." CP at
t Phillip Costichdied shortly before the State made this offer. His brother, Elroy
Costich, was substituted as the condemnee.
2 RCW 8.25.070(1)(a) and (b) provide that the condemnee is entitled to expert
witness fees and attorney fees if either the condemnor fails to make an offer at least 30
days prior to trial or the jury award exceeds the offered amount by 10 percent or more.

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No. 211 14-2-III, 21243-2-III
State v. Costich
103. Mr. Costich proceeded on the assumption that the "all-inclusive" offer included
interest, attorney fees, andso forth, as well as the fair market value, and asked the State
to advise immediately if that assumption was wrong.
rvtr. Costich then moved for a pretrial ruling that the State's "all-inclusive
t
offer
did not constitute an offer for the purposes of determining his entitlement to fees under
RCW 8.25.070. He argued that the lack ofa clear statement ofthe State's fair market
value determination rendered the offer useless for the purpose of comparison with the
jury award. The judge agreed. The court ruled that the offer did not comply with the
statute and was invalid. This left the original $134,000 offer as the highest written offer
in effect for the pW'poses of comparison with any jury award. In addition, the court
concluded that the offer was doubly invalid because it did not remain open for 30 days
before the trial as required by the statute.
Following the court's ruling. on February 19 (less than 30 days before trial)1the
State made another written offer of $283,000. Mr. Costich again asked for a breakdown.
This time the State said the $283,000 was the sum of its offers for just compensation,
interest, and an unspecifi.ed amount for the time the State would save by not preparing for
trial and appeal. The State suggested that Mr. Costich could submit a separate attorney
fee request for its discretionary consideration. Mr. Costich ignored this invitation.
Trial was held to fix the amount ofjust compensation. The jury fixed the fair
market value of the Costich property at $252,000. The court entered judgment for Mr.
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No. 21114-2-III. 21243-2-In
State v. Costich
Costich for $365,669.20. This included $88,157.75 for attorney fees; $12.582.35 for
expert witness fees; $1,214.52 for costs; and $11.714.58 in prejudgment interest:
The State filed a timely notice of appeal. A month later, the State returned to the
superior court and filed a belated motion for an order of appropriation, vesting title to the
property in the State upon its payment into court of $252,OOO-the amount ofjust
compensation sans costs and fees. Mr. Costich challenged the superior court's
jurisdiction after the State had filed an appeal, and argued that title could vest only upon
payment of the total judgment. The superior court ruled against Mr. Costich and entered
an order ,of appropriation vesting title in the State upon payment of $252,000 (the jury's
just compensation award).
Before this court are two appeals. The State appeals the order invalidating its
January 30 uall-inclusive offer" and the award of attorney fees. Mr. Costich appeals the
entry of the order of appropriation vesting title in the State on payment of less than the
full judgment amount.
DISCUSSION
THE STATE'S APPEAL
RCW 8.25.070(1) provides in part:
[l]f a trial is held for the fixing ofthe amount of compensation ... , the
court shall award ... reasonable attorney's fees and reasonable expert
witness fees in the event ofany ofthe following:
(a) lfthe condemnor fails to make any written offer in settlement to
condemnee at least thirty days prior to commencement ofsaid trial; or
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No. 21114-2-llI,
State v. Costich
(b) Ifthe judgment awarded as a result of the trial exceeds by ten
percent or more the highest written offer in settlement submitted to those
condemnees appearing in the action by condemnor in effect thirty days
before the trial.
(Emphasis added.)
We are asked to review the trial court's interpretation of the statutory term
"highest written offer in settlement: Our review is, therefore, de novo. State ex reI.
Wash. State Convention & Trade err. v. Allerdice, 101 Wn. App. 25, 28, 1 P.3d 595
(2000). Our determination is dispositive on the issue of attorney fees. We need not,
therefore, address the State's contention that an offer is "in effect thirty days before the
trial" ifit is operative, however fleetingly, on the 30th day before trial. We nevertheless

mention in passing-purely as dictum-that, as we read this statute. the State is required
to keep its offer in effect for a full 30 days.
Highest Written Offer in Settlement
The State contends that its offer of $282,500 was a valid offer in
settlement fot' the purposes ofRCW 8.25.070(1)(b). 1vfr. Costich responds that, under the
State's interpretation ofthe statute, thejury award and the pretrial offer are like apples
and oranges, impossible to compare in deciding whether the award beat the offer by 10
percent. This is because the jury award includes only the just compensation amount, with
no fees or other judgment costs. City o/SeaTac v. Cassan,93 Wn. App. 357,362.967
P.2d 1274 (1998). Costs and fees are added later by the court if certain statutory
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............. State v. Costich
conditions are met. Calculation ofthe jury award as a percentage ofthe State's pretrial
offer is possible, therefore. 'Only ifthe two numbers represent the same value.. That is, the
pretrial 'Offer must state unequivocally what the State's fair market value 'Offer is.
Canons 0fConst1'uction. The power of eminent domain is strictly construed
against the government. State ex reI. Wash. State Convention & Trade etr. v. Evans, 136
Wn.2d 811, 836, 966 P .2d 1252 (1998) (Sanders, 1., dissenting) (citing 3 JULIUS L.
SACKMAN, NICHOLS ON EMINENT DOMAIN 9.03, at 9-17,9-18 (3d rev. ed. 1998)). The
provisions ofTitle 8 RCW are strictly construed, both as t'O the extent of the State's
power and Uto the manner 'Of its exercise." Slate v. Teuscher) 111 Wn.2d 486,497) 761
P.2d 49 (1988). Statut'Ory language is interpreted in light 'Of the statute as a whele. In re
Sehome Park Care etr., Inc., 127 Wn.2d 774, 778,903 P.2d 443 (1995).
Just Compensation Means Fa;r Market Value. Just c'Ompensation is the fair
market value of the property. Petersen v. Port o!Seattle, 94 Wn.2d 479.487,618 P.2d
67 (1980). A jury must "fix as a lump sum the t'Otal amount of damages which shall
result te all pers'Ons or parties ... by reason ofthe appropriation and use of the lands."
RCW 8.04.110. The cendemnatien award is the full and equitable menetary equivalent
oftile preperty. Lange v. State. 86 Wn.2d 585) 547 P.2d 282 (1976); State v. McDonald,
98 Wn.2d 521, 656 P.2d 1043 (1983).
Ina mirror image 'Of the facts here, the corollary issue has been decided: Can the
landewner add atterney fees, interest, costs, and so f'Orth te thejury's fair market value
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State v. Costich
award in order to beat by 10 percent the offer that included only fair market
value? The court held that it could not, because the ext:ran"eous costs and fees bear no
relationship to just compensation and should DQt be included. in the calculations.
93 Wn. App. at 361-62. Applying the same reasoning here, the State cannot add fees and
costs to. its offer in order to beat the jury award.
Statutory Framework. The eminent domain statutory scheme contains provisions
designed to put the State in possession of the property early in the condemnation
'proceedings. while a-voiding the time. trouble, and expense ofa jury trial. This requires
the cooperation of the landowner, who has the constitutional right to receive just
compensation before turning over possession. WASH. CONST. art. I. 16. The owner
also has the statutory right to a trial by jury to detennine the amount ofjust
compensation. RCW 8.04.092; RCW 8.04.094; RCW 8.04.110.
RCW 8.25.070 uses attorney fees and costs as part ofa design to encourage
settlement before trial. It ensures that each side makes a good faith effort to settle .. State
v. Olson. 31 Wn. App. 403,407,642 P.2d 410 (1982). It encourages the landowner by
making the award of attorney fees contingent on bettering the State's offer at trial. Id. It
encourages the State by awarding fees if its best pretrial offer is bettered by 10 percent.
RCW 8.25.070(1Xb).
RCW 8.25.070 works in concert with RCW 8.04.090, which provides for the State
to obtain immediate possession and use of the property during negotiations. Besides
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State v. Costich
encouraging the State to make, and the property owner to accept, a reasc:>nable offer,
RCW 8.25.070 creates an additional inducement to the owner to transfer possession to
the State early in the proceedings. It does this by making the owner's right to receive
attorney fees contingent upon the stipulation to immediate possession and use. RCW
8.25.070(3).
Acquisition Procedures. The sole purpose ofnegotiations and trial in
condemnation proceedings is to establish the amount ofjust compensation. RCW
8.25.070(1) (Hif a trial is held for the fixing of the of compensation"). RCW
8.04.010 provides for a jury trial to detennine "compensation to be made ... for taking
such land." RCW 8.04.110 also says a trial shall be held to determine "compensation and
damage to be awarded."
The State must make every effort to acquire the property through negotiation.
RCW 8.26.180(1). "Every effort" includes infonning the condcmnee of the State's fair
market value detennination. RCW 8.26.180(3). Before negotiations begin, the State
must have the property appraised and fix an amount which it believes represents 'Just
compensation" for the property. The State must then "make a prompt offer to acquire the
property for the full amount so established. In no event shall such amount be less than
the agency's approved appraisal ofthe fair market value." RCW 8.26.180(2), (3). We
read these provisions as requiring the State in this case to offer Mr. Costich $191,200 in
just compensation when it received this appraisal in August 2001.
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State v. Costich
Forthright Offer Required. The State insists that an unambiguous offer ofjust
compensation is optional. The State is mistaken. The statute provides:
The acquiring agency shall provide the owner ofreal property to be
acquired with a written statement of, and sununary of the basis for, the
amount it established as just compensation. Where appropriate the just
compensation for the real property acquired, for damages to remaining real
property. and for benefits to remaining real property shaH be separately
stated.
RCW 8.26.180(3) (emphasis added).
The State's reliance on State v. Swarva is misplaced. State v. Swarva, 86 Wn.2d
29, 541 P .2d 982 (1975). At issue in Swarva was whether an order of immediate
possession binds the State to pay the amount offered at that time, even if the jury award is
less. Id. at 30. Swarva merely holds that the State can offer more than its lowest
appraisal of the fair market value in the interests ofavoiding trial. Swarva cannot be read
to say that the State need not disclose what its determination of the fair market value is.
ld. at 34.
We therefore agree with the trial judge. He correctly concluded that the State's
highest written offer for the purposes ofRCW 8.25.070 was the $134,000 offered to
secure the order of immediate possession and usc. The January 30 so-called "all
inclusive" offer did not establish the State's determination ofjust compensation. RCW
8.26.180(3). The only offer on the table was, then, th7 $134,000 preliminary offer made
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No. 21114-2III, 21243-2-1I1
'-'" State v: Costich
in order to secure immediate possession and use. And, of course, the jury's award easily
exceeded this offer by more than the 10 percent required by the statute.
MR. COSTICB'S APPEAL
Waiver of Appeal
On May 10, the State filed its appeal. On June 20. the superior court released
$118,000 of the deposited judgment funds to Mr. Costich.
The State contends that Mr. Costich, as condemnee, waived any right to appeal the
entry of an order ofappropriation by accepting the judgment funds. :Mr. Costich
responds that the statute precludes only an appeal of the amount ofthe damages award.
The statute provides that the landowner may immediately withdraw the funds that
were deposited by the State at the outset of the proceedings to secure an order of
immediate possession and use. RCW But, ifthe landowner withdraws funds
deposited to pay the sum awarded by the jury, he is 4'deemed thereby to have waived
conclusively appellate review." RCW 8.04.150.
But Mr. Costich did not appeal the sum awarded by the jury. He appealed the
post-judgment entry ofthe decree of appropriation. He did not, therefore, waive his right
to this unrelated appeal by accepting the immediate possession funds.
Another section of the statute requires that, once an appeal is file! by either party,
all moneys paid into the registry of the court must remain in the custody ofthe court until
after the appeal is decided. RCW 8.04.130. But. if the court erroneously releases the
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State v. Costich
funds, nothing in the statute penalizes the landowner by foreclosing his right to appeal
issues umelated to the amount ofthe award.
The authorities Cited by the State here do not require a different result. In State v.
Sternoff, the landowners' appeal ofthe judgment amount was dismissed because they had
taken the funds. State v. SternoJf. 64 Wn.2d 465,469,392 P.2d 222 (1964). State v.
Smithrock Quarry, Inc. holds that neither party can appeal the judgment after the court
has disbursed the funds. State v. Smithrock Quarry, Inc., 49 Wn.2d 623, 625, 304 P.2d
1043 (1956). Neither case involves an appeal of an order other than the judgment
amount.
........... Superior Court's Jurisdiction Following State's Appeal
Mr. Costich argues that once the State appealed the attorney fees award, the
superior court lost jurisdiction to enter any further orders in the case. RAP 7.2(e) permits
the superior court to enter an order modifYing a prior ruling. The decree of appropriation,
however, did not modifY a prior ruling. It was an entirely separate order.
Jurisdiction is the power to hear and detennine a cause or proceeding. State v.
Hampson. 9 Wn.2d 278,281, 114 P.2d 992 (1941). Jurisdiction is a question oflaw
which we review de novo. Crosby v. Spokane County, 137 Wn.2d 296,301,971 P.2d 32
(1999).
Once an appeal is before us, RAP 7 .2( e) pennits the superior court to hear: a
posgudgment motion authorized by statute and to change or modify its decision. If the
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No. 21114-2-III, 21243-2-III
~ State v. Costich
postjudgment action will affect the appeal, the pennission ofthe appellate court must be
obtained prior to the fonnalentry of the trial court decision. RAP 7.2(e). The trial
court's postjudgment action may itself be appealed, in which case the appellate court may
consolidate the two cases. RAP 7.2(e).
Here, the statutory scheme unconditionally instructs the court to enter a decree of
appropriation at the time the judgment is entered. RCW 8.04.120. The postjudgment
entry of the decree will not affect the State's appeal of an attorney fee award. Under
RAP 7.2(e), therefore, the superior court could hear the motion and enter a decree. Mr.
Costich may appeal it. And we can consolidate the two appeals, which is what we did.
~ The court then had jurisdiction.
Decree of Appropriation for Less than Full Amount of Judgment
Mr. Costich next contends that the attorneys fee award merges with the
compensation judgment. State v. Wachsmith, 4 Wn. App. 91, 93,479 P.2d 943 (1971).
Therefore the State must pay into court the total amount of this judgment, including the
fee award, before it can obtain title to the property. Instead, the State received title by
depositing the amount of the jury award for just compensation only_ The State now takes
the position that extraneous items such as interest. attorney fees, and so forth that are
unrelated to just compensation are not part of the judgment. City ofSeaTac v. Cassan,93
Wn. App. 351,967 P.2d 1274 (1998). The State therefore contends it was required to
deposit only the amount awarded for just compensation.
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. No. 21243-2-III
State v. Costich
RCW 8.04.120 says: "At the time of rendering judgment for damages, whether
upon default or trial, the court or judge thereof shall also enter a judgment or decree of
appropriation of the land." The decree has the same effect as a deed.
Mr. Costich reads the phrase "enter a judgment or decree" as authorizing the court
either to enter judgment on the verdict or to enter a decree ofappropriation, but not both.
We reject this interpretation. As we read RCW 8.04.120, it commands that, at the same
time that the court enters judgment on the verdict, the court must also enter an order
vesting title in the State. The statute refers to that order a supplementary "judgment or
decree." "Judgment" here does not refer to the judgment for damages.
In the usual case, the court enters judgment on the verdict and a conditional decree
of appropriation in a single order. The tenns of the judgment provide that, upon payment
into court of the amount of the judgment, a decree of appropriation wiU be entered. See,
e.g., State ex reI. Struntz v. Spokane County, 85 Wash. 187, 188, 147 P. 879 (1915); State
v. Calkins, 54 Wn.2d 521,525-26,342 P.2d 620 (1959). Even though combined, the
judgment fixing the award and the tmal decree of appropriation are two distinct
judgments. Calkins, 54 Wn.2d at 526. Satisfaction ofjudgment on the verdict is, then, a
prerequisite for the right to receive title: "Under statutes such as ours, the rights of the
parties are correlative. There can be no vested right in the one party until there is a
vested right in the other." Struntz, 85 Wash. at 189-90, quoted in 54 Wn.2d at
526-27. Ifthc court here had entered the decree of appropriation simultaneously with the
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No. 21114-2 ..111, 21243-2-III
State v. Costich
entry ofjudgment, as RCW 8.04.120 mandates, the decree would likely have been made
contingent on payment of the entire judgment amount, including fees.
But Calkins and Struntz predate the enactment ofthe attorney fees provisions of
RCW 8.25.070. The judgment being discussed in those cases includes, therefore, only
the award ofjust But payment ofjust compensation is a constitutional
quid pro quo for taking title. WASH. CONST. art. I, 16. Entitlement to attorney fees, by
contrast, is entirely statutory. RCW 8.25.070; State v. Buckley, 18 Wn. App. 798, 801,
572 P.2d 730 (1977). Nothing in Title 8 RCW requires the order awarding attorney fees
to be entered contemporaneously with the judgment on the verdict. And nothing in the,
constitution requires that attorney fees be paid as a condition for transfer of title.
Therefore, in entering the decree of appropriation separately, the judge was not
constitutionally required to condition the vesting of title upon satisfaction of the attorney
fees award, but only upon the constitutionally required just compensation.
The statutory scheme ofTitle 8 RCWread as a however, does require the
condemnor to deposit with the court the full amoWlt of the judgment, including inherent
fees and costs.
After the trial court enters judgment, the statute provides for the attorney general
to obtain a warrant from the state treasury and to "forthwith" deposit with the court the
full amount of the award together with "the costs of said proceeding." RCW 8.04.130;
RCW 8.04.160. These provisions say the State "may" do this, but this does not mean that
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No. 21114-2-III, 21243-2-ID
State v. Costich
the attorney general or the court has discretion over whether the full amount ofthe
judgment must be deposited. Rather, the pennissive language leaves open the option of
abandoning the acquisition if the just compensation award is lUlsatisfactory. State ex reI.
Peel v. Clausen, 94 Wash. 166, 162 P. 1 (1917). Once it receives possession and use
under RCW 8.04.090, however, the State is statutorily precluded from abandoning the
acquisition. Buckley, 18 Wn. App. at 800.
Here, the State took possession under RCW 8.04.090 before the trial. Moreover,
the property was under 40 feet ofrubble when the decree of appropriation was sought
The State had no intention of abandoning the acquisition. In light ofRCW 8.04.130 and
.160, therefore, the State was required to deposit the full amount of the judgment. The
court should have ordered the State to do this, decree or no decree.
Our prior decisions are in accord. Where an award ofattorney fees and costs is
made and included in the judgment for damages, the fee award is merged in the total
judgment for damages. Wachsmith, 4 Wn. App. at 96.
Mr. Costich complains that vesting title before the judgment was paid into court
deprives him of any protection ifthe State refuses to pay. But RCW 8.04.130 and .160,
as discussed above, require the State to forthwith obtain and deposit with the court a
warrant for the full amount ofthe judgment. And RCW 8.04.090 provides that the order
of immediate possession and use binds the State '1:0 pay the full amount of any fmal
judgment." We have interprt:ted "final judgment" to mean judgment after review.
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Wachsmith, 4 Wn. App. at 95. By seeking and securing immediate use and possession
here, therefore. the State bound itself to pay the full amount ofthe judgment as affmned
on appeal.
Both parties. then, benefited from the court's inadvertent departures from the
black letter statute in this case. The statutory scheme binds the State to deposit the full
amount of the judgment. It also precludes Mr. Costich from withdrawing any disputed
funds until after the appeal is concluded. The errors were mutually beneficial and,
therefore, hannless.
Frivolous Appeal
Finally, the State contends that Mr. Costich's appeal on the question oftitle
vesting is frivolous because the highway has been built and there was nothing to gain by
delaying the vesting of title.
An appeal is frivolous if it presents no debatable issue' upon which reasonable
minds might differ and is so devoid of merit that there is no reasonable possibility of
reversal. State ex rei. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64
(1998). An appeal is not frivolous simply because the arguments are rejected. In re
Marriage ofWagner, 111 Wn. App. 9, 18.44 P.3d 860 (2002). All doubts as to whether
the appeal is frivololls are resolved in favor of the appellant, considering the record as a
whole. Id.
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Here, what constitutes satisfaction of the judgment for the purposes of vesting title
is no less debatable than what constitutes an offer for the purposes ofattorney fees.
Disposition of each issue presented nove] questions of intetpretation ofa complex
statutory scheme and judicial decisions. No Washington case was directly on point.
Mr. Costich's appeal is not, then. frivolous.
ATTORNEY FEES
:Mr. Costich is entitled to attorney fees and costs as prevailing party in appeal No.
21114-2-III. the State's appeal of the judgment. Neither party is entitled to fees in appeal
No. 21243-2-III, Mr. Costich's unsuccessful appeal of the post judgment order.
The judgment ofthe trial court is affmned.
I CONCUR:
Kato, A.C.J.
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No.11114-2-nI; No. 21243-2-DI
KURTZ, J. (dissenting) - RCW 8.25.070(1)(b) directs trial courts to award
reasonable attomey fees and expert fees to condemnees if:
(T]he judgment awarded as a result of the trial exceeds by ten percent or
more the highest written offer in settlement submitted to those condenmees
appearing in the action by condemnor in effect thirty days before the trial.
~ (Emphasis added.) Here, the trial court ordered ~ e State to pay attorney fees and expert
witness fees and costs even though the jury verdict on just compensation was $30,000
less than the State's highest written offer in settlement in effect 30 days before trial. The
trial court achieved this result by connecting the phrase "highest written o f f ~ r in
settlement" to ''just compensation," and by interpreting the phrase "in effect thirty days
before the triar
t
to mean "in effect for thirty days before the trial" or possibly "in effect
for the thirty days before the trial."
In interpreting a statute, this court's primary goal is to ascertain the intent of the
legislature. Dep't ofEcology v. Campbell & Gwinn, L.L.C'
7
146 Wn.2d 1,9,43 P.3d 4
(2002). If the statute's meaning is plain on its face, we must give effect to that plain
meaning as an expression of the legislative intent. Id. at 9-10. The "plain meaning" rule
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State v. Costich
includes not only the ordinary meaning ofthe words, but the underlying legislative
purpose and closely related statutes to detennine the proper meaning ofthe statute. Id. at
11. Ifthe plain meaning inquiry shows the existence of an ambiguity, we may construe
the meaning ofthe statute with the aid of other sources of interpretation. Yd. at 12.
The plain 1anguage ofRCW 8.25.070 does not limit the "bighest written offer in
settlement" to just compensation, nor does the statute indicate a relationship between the
two phrases. When the legislature uses different language in the same statute that deals
with related matters, the.legislature is presumed to have intended that. those words have
different meanings. Silver Firs Town Homes. Inc. v. Silver Lake Water Dist., 103 Wn.
App. 411, 419, 12 P.3d 1022 (2000), review denied, 143 Wn.2d 1013 (2001) .. While
other parts ofTitle 8 RCW refer to 'Just compensation," RCW 8.25.070 does not.
Instead, for the statute the legislature uses the broader term Hoffer in settlement."
Arguably, the legislature used the broader term, "offer in settlement," instead of
the narrower term, "just compensation:- to encourage settlement. The State should be
allowed to include intangibles other than fair market value or just compensation in the
settlement offer. Here, the Department ofTransportation's opinion of' just
compensation'- was $191,200. But its offer of settlement exceeded that amount by almost
$100,000. What is the reason for prohibiting the State from considering the same things
that other litigants consider when they make settlement offers?
2
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' ..~ .
State v. Costich
The trial court's second reason for ruling that the State"s offer was invalid was that
the State's offer was not in effect for 30 days before trial. RCW 8.25.070(1)(b)
authorizes the trial court in condern.nation cases to make certain awards to the condemnee
if the judgment awarded as a result of trial exceeds by 10 percent or more the highest
written offer in settlement uin effect thirty days before the trial/' The State's settlement
offer was made on January 30, 2002, a:rid was scheduled to expire on February 8,2002, or
24 days before the March 4, 2002 trial.
The Costiches argue that the phrase "in effect thirty days before the triar'should
be read as meaning "in effect for thirty days before the trial" or even Hin effect for the
~ . thirty days before the trial." We are instructed to add words to a statute only where its
omission creates a contradiction that renders the statute absurd and undermines its sole
purposes. Nielsen v. Employment Sec. Dep"l, 93 Wn. App. 21, 36, 966 P.2d 399 (1998).
Here, the addition of the words "forto or "for the" in front of "thirty days before the trial"
is not necessary to avoid a contradiction or absurdity. Addition ofthese words simply
changes the meaning ofthe statute.
I therefore respectfully disagree with the majority and I would reverse the
judgment in favor of the Costiches.
Kurtz, 1.
3
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APPENDIX "B"
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flI 025
Chapter 8.25.070 RCW - The Washington State Legislature
Page I 01"2
AboutJJs, Search
RQW I!I!.._E._e SECTION 6.25.070
8.25.070
8.25.070
Award of attorney's fees and witness fees to condemnee Conditions to
award.
(1) Except as othelWise provided in subsection (3) of this section, if 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; or
'b) If the judgment awarded as a result of the trial exceeds by ten percent or
the highest written offer in settlement submitted to those condemnees
""-1earing in the action by condemnor in effect thirty days before the trial.
(2) The attorney general or other attorney representing a condemnor in effecting
a settlement of an eminent domain proceeding may allow to the condemnee
reasonable attorney fees.
(3) Reasonable attorney fees and reasonable exp'ert witness fees authorized by
this section shall be awarded only if the condemnee stipulates, if requested to do so
in writing by the condemnor, to an order of immediate possession and use of the
property being condemned within thirty days after receipt of the written request, or
within fifteen days after the entry of an order adjudicating public use whichever is
later and thereafter delivers possession of the property to the condemnor upon the
deposit in court of a warrant sufficient to pay the amount offered as provided by law.
In the event, however, the condemnor does not request the condemnee to stipulate
to an order of immediate possession and use prior to trial, the condemnee shall be
entitled to an award of reasonable attorney fees and reasonable expert witness
fees as authorized by subsections (1) and (2) of this section.
(4) Reasonable attorney fees as authorized in this section shall not exceed the
general trial rate, per day customarily charged for general trial work by the
condemnee's attorney for actual trial time and his or her hourly rate for preparation.
Reasonable expert witness fees as authorized in this section shall not exceed the
("' . -+omary rates obtaining in the county by the hour for investigation and research
ly the day or half day for trial attendance.' "

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Chapter 8.25.070 RCW - The Washington State Legislature
(5) In no event may any offer in settlement be referred to or used during the trial
for any purpose in determining the amount of compensation to be paid for the
-"operty.
''--'[1984 c 129 1; 1971 ex.S. c 39 3; 1967 ex.s. c 137 3.]
NOTES:
Court appointed experts: Rules of court: ER 706.
"--'"
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Chapter 8.25.120 RCW - The Washington State Legislature .
Page 1 ot'1
H..ome About Us J;-Mail Search .
.KG.Y\I 8 . .2.2 >.> SECTION 8.25.120
.. 8.25.120
RCW 8.25.120
Conclusions of appraisers - Order for production and exchange between
parties.
After the commencement of a condemnation action, upon motion of either the
condemnor or condemnee, the court may order. upon such terms and conditions as
are fair and equitable the production and exchange of the written conclusions of all
the appraisers of the parties as to just compensation owed to the condemnee, as
prepared for the purpose of the condemnation action, and the comparable if
any, used by such appraisers. The court shall enter such order onty after assurance
that there will be mutual. reciprocal and contemporaneous disclosures of similar
information between the parties.
1969 ex.s. c 236 8.]
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Chapter 8.26.180 RCW - The Washington State Legislature page lor:.::.
About l)s
RC,W..JITbJ;S SECTION 8.26.180
8.26.. tt. 8.26.180 ...
RCW 8.26.180
Acquisition procedures.
Every acquiring agency shall, to the greatest extent practicable, be guided by the
following policies:
(1) Every reasonable effort shall be made to acquire expeditiously real property
by negotiation.
(2) Real property shall be appraised before the initiation of negotiations, and the
owner or his designated representative shall be given an opportunity to accompany
at least one appraiser of the acquiring agency during his inspection of the property,
except that the lead agency may prescribe a procedure to waive the appraisal in
cases involving the acquisition of property with a low fair market value .
.,3) Before the Initiation of negotiations for real property. the acquiring agency
establish an amount which it believes to be just compensation therefor, and
shall make a prompt offer to acquire the property for the full amount so established.
In no event shall such amount be less than the agency's approved appraisal of the
fair market value of such property; Any decrease or increase in the fair market
value of the real property to be acquired prior to the date of valuation caused by the
public improvement for which such property is acquired, or by the likelihood that the
property would be acquired for such improvement, other than that due to physical
deterioration within the reasonable control of the owner, will be disregarded in
determining the compensation for the property. The acquiring agency shall provide
the owner of real property to be acquired with a written statement of. and summary
of the basis for, the amount it established as just compensation. Where appropriate
the just compensation for the real property acquired, for damages to remaining real
property, and for benefits to remaining real property shall be separately
(4) No owner shall be required to surrender possession of real property before
the agreed purchase price is paid or deposited with a court having jurisdiction of
condemnation of such property. in accordance with applicable law, for the benefit of
the owner an amount not less than the acquiring agency's approved appraisal of the
fair market value of such property, or the amount of the award of compensation in
the condemnation proceeding of such property. _.
(5) The construction or development of a public improvement shall be sp .
,. . that, to the greatest extent practicable, no person lawfully occupying real

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Chapter 8.26.180 RCW - The Washington State Legislatux'e
property shall be required to move from a dwelling or to move his business or farm
operation without at least ninety days wrrtten notice of the date by which such move
. 'qulred.
'-16} If an owner or tenant is permitted to occupy the real property acquired on
rental basis for a short term or for a period subject to termination on short notice,
the amount of rent required shall not exceed the fair rental value of the property to a
short-term occupier.
(7) In no event shall the time of condemnation be advanced, on negotiations or
condemnation and the deposit of funds in court for the use of the owner be
deferred, or any other coercive action be taken to compel an agreement on the
price to be paid for the property. .
(8) If an interest in real property is to be acquired by exercise of the power of
eminent domain, formal condemnation proceedings shall be instituted. The
acquiring agency shall not intentionally make it necessary for an owner to institute
legal proceedings to prove the fact of the taking of his real property.
(9) If the acquisition of only a portion of a property would leave the owner with an
uneconomic remnant, the head of the agency concerned shall offer to acquire that
remnant. For the purposes of this chapter, an uneconomic remnant is a parcel of
real property in which the owner is left with an interest after the partial acquisition of
the owner's property and that the head of the agency concerned has determined
has little or no value or utility.
0) A person whose real property is being acquired in accordance with this
"-rpter may. after the person has been fully informed of his right to receive just
compensation for the property, donate the property. any part thereof. any interest
therein, or any compensation paid for it to any agency as the person may
determine.
[1988 c 90 12; 1971 ex.s. c 240 18.]
NOTES:
Section captions -1988 c 90: See note following RCW

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Chapter 8.26.205 RCW - The State Legislature
J:l'age 1 or 1
Usts
TII!-ES Til],,!;. 8 yH_APTER a.2 SECTION 8.26.205 p-.rjnt
8.26.205 ..21 Q
RCW 8.26.205
Effect on certain property acquisitions.
The provisions of RCW .. 80.. 6.2...J.. and .8... create no rights or
liabilities and do not affect the validity of any property acquisitions by purchase or
condemnation.
{19B8 e 90 15.]
NOTES:
Section captions --1988 c 90: See note following RCW 8.26,010.
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