WSR 99-01-015

RULES OF COURT

STATE SUPREME COURT

[December 3, 1998]



IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 17.2(a)(5) AND RAP 18.1 )

))

ORDER

NO. 25700-A-635

The Court having determined that the proposed amendments to RAP 17.2(a)(5) and RAP 18.1 will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendment will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 3rd day of December, 1998.

Durham, C.J.


Dolliver, J.


Madsen, J.
Smith, J.
Talmadge, J.
Guy, J.
Alexander, J.
Johnson, J.
Sanders, J.

RULE 17.2

WHO DECIDES A MOTION



(a) Generally. The judges determine (1) a motion in a brief, (2) a motion to modify a ruling by a commissioner or the clerk, (3) a motion for reconsideration of a decision, (4) a motion to recall the mandate, and (5) a motion to extend time under rule 18.8(b), and (6) a motion to publish. All other motions may be determined initially by a commissioner or the clerk of the appellate court.

(b) Reference to the Judges. A commissioner or clerk may refer a motion to the judges for determination. If the motion is referred to the judges, the commissioner or clerk will give notice of the reference to all persons entitled to notice of the motion.

(c) Transfer by Supreme Court to Court of Appeals. A commissioner or clerk of the Supreme Court may transfer a motion for discretionary review of a trial court decision to the Court of Appeals for determination.



RULE 18.1

ATTORNEY FEES AND EXPENSES



(a) Generally. If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court.

(b) Argument in Brief. The party must devote a section of the brief to the request for the fees or expenses. The request should not be made in the cost bill. In a motion on the merits pursuant to rule 18.14, the request and supporting argument must be included in the motion if the requesting party has not yet filed a brief.

(c) Affidavit of Financial Need. In any action where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees and expenses, each party must serve upon the other and file a financial affidavit no later than 10 days prior to the time set for oral argument; however, in a motion on the merits pursuant to rule 18.14, each party must serve and file a financial affidavit along with its motion or response.

(d) Affidavit of Fees and Expenses. Within 10 days after the filing of a decision awarding a party the right to reasonable attorney fees and expenses, the party must serve and file in the appellate court an affidavit detailing the expenses incurred and the services performed by counsel.

(e) Answer to Affidavit; Reply. A party may answer a request for fees and expenses filed pursuant to section (d) by serving and filing answering documents within 10 days after service of the affidavit upon the party. In a rule 18.14 proceeding, an answer to an affidavit of financial need may be served and filed at any time before oral argument. A party may reply to an answer by serving and filing the reply documents within 5 days after the service of the answer upon that party.

(f) Commissioner or Clerk Award Fees and Expenses. A commissioner or clerk will determine the amount of the award, and will notify the parties. The determination will be made without a hearing, unless one is requested by the commissioner or clerk.

(g) Objection to Award. A party may object to the commissioner's or clerk's award only by motion to the appellate court in the same manner and within the same time as provided in rule 17.7 for objections to any other rulings of a commissioner or clerk.

(h) Transmitting Judgment on Award. The clerk will include the award of attorney fees and expenses in the mandate or in a supplemental judgment. The award of fees and expenses may be enforced in the trial court.

(i) Fees and Expenses Determined After Remand. The appellate court may direct that the amount of fees and expenses be determined by the trial court after remand.

(j) Fees for Answering Petition for Review. If attorney fees and expenses are awarded to the party who prevailed in the Court of Appeals, and if a petition for review to the Supreme Court is subsequently denied, reasonable attorney fees and expenses may be awarded for the prevailing party's preparation and filing of the timely answer to the petition for review. A party seeking attorney fees and expenses should request them in the answer to the petition for review. The Supreme Court will decide whether fees are to be awarded at the time the Supreme Court denies the petition for review. If fees are awarded, the party to whom fees are awarded should submit an affidavit of fees and expenses within the time and in the manner provided in section (d). An answer to the request or a reply to an answer may be filed within the time and in the manner provided in section (e). The commissioner or clerk of the Supreme Court will determine the amount of fees without oral argument, unless oral argument is requested by the commissioner or clerk. Section (g) applies to objections to the award of fees and expenses by the commissioner or clerk.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

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