Ability of an irrigation district to recover attorneys' fees when foreclosing a delinquent assessment

IRRIGATION--DISTRICTS--PROPERTY--ATTORNEYS--FEES--COSTS--Ability of an  irrigation district to recover attorneys' fees when foreclosing a delinquent assessment.

RCW 87.03.271 provides that the lien for a delinquent irrigation district assessment includes costs such as attorneys' fees.  When the lien is foreclosed pursuant to the procedure set forth in chapter 87.06 RCW, the irrigation district may recover costs, including reasonable attorneys' fees.

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                                                               September 9, 1993

HonorableMargaret Rayburn
State Representative, District 15
301 John L. O'Brien Building, MS 40629
Olympia, WA  98504-0629    

                                                                                                Cite as:  AGO 1993 No. 14

Dear Representative Rayburn:

            By letter previously acknowledged you have requested our opinion on a question we paraphrase as:

            Is an irrigation district entitled to seek attorneys' fees when it forecloses its lien for a delinquent irrigation district assessment pursuant to the procedure set out in chapter 87.06 RCW?

The answer is yes.

                                                                    ANALYSIS

            Chapter 87.06 RCW governs the procedure for foreclosing liens for delinquent irrigation district assessments.  RCW 87.06.020(1) provides for the preparation of certificates of delinquency on property for "unpaid irrigation district assessments, and for costs and interest."  RCW 87.06.020(1)(f) provides that the certificates shall contain

            [a] statement that interest will be charged on the amount listed in (d) of this subsection at a rate of twelve percent per year, computed monthly and without compounding, from the date of the issuance of the certificate and thatadditional costs, incurred as a result of the delinquency, will be imposed, including the costs of a title search[.]

(Emphasis added.)

            In AGO 1991 No. 30, which you also requested, we answered several questions about the operation of the foreclosure procedure set out in chapter 87.06 RCW, including whether an irrigation district was entitled to seek attorneys' fees in the foreclosure proceedings.

            We concluded at that time that the answer was no.  We noted that chapter 87.06 RCW contains no definition of the term "costs" or any specific legislative authorization that would allow the collection of attorneys' fees.  Accordingly, we applied the general rule that attorneys' fees are not authorized in absence of a statute or the agreement of the parties.  AGO 1991 No. 30, at 5-8.

            You have asked that we reconsider this conclusion and you have directed our attention to a statute in another chapter of the revised code, RCW 87.03.271, which provides:

                        The lien for delinquent assessments shall include the district's and treasurer's costs attributable to the delinquency and interest at the rate of twelve percent per year, computed monthly and without compounding, on the assessments and costs.  The word "costs" as used in this section includes all costs of collection, including but not limited to reasonable attorneys' fees, publication costs, costs of preparing certificates of delinquency, title searches, and the costs of foreclosure proceedings.

(Emphasis added.)

            Unlike chapter 87.06 RCW, RCW 87.03.021 specifically defines "costs" to include attorneys' fees.  Thus, the question is whether the definition of "costs", for purposes of the assessment lien in RCW 87.03.271, provides a definition for the term "costs" in RCW 87.06.020.

            After reviewing the statutes, we believe that the answer to this question is yes.  First, we note that RCW 87.03.271 and 87.06.020 were enacted together as part of the same bill -- Substitute House Bill 1297.  See Laws of 1988, ch. 134, § 2, p. 513 (RCW 87.06.020); and § 14, p. 521 (RCW 87.03.271).  The purpose of SHB 1297 was to reestablish the procedure for the foreclosure of irrigation district liens after the prior procedure was invalidated by the Supreme Court inWenatchee Reclamation Dist. v. Mustell, 102 Wn.2d 721, 684 P.2d 1275 (1984).  1987 Final Legislative Report, 50th Legislature at 17.  Thus, when the Legislature enacted the new foreclosure procedure in chapter 87.06 RCW, it also defined the lien for delinquent irrigation district assessments to include costs such as attorneys' fees.[1]

            Both RCW 87.03.271 and 87.06.020 use the term "costs".  RCW 87.03.271 defines "costs" to include attorneys' fees.  In our view, these statutes are in pari materia and should be read together.  As the court stated inChampion v. Shoreline Sch. Dist., 81 Wn.2d 672, 504 P.2d 304 (1972):

            Statutes are in pari materia when they relate to the same person or thing, or to the same class of persons or things.

                       . . .

                        "Whenever a legislature had used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby."

Id.at 674, 676 (citations omitted).  Accordingly, we conclude that the term "costs" in RCW 87.06.020 has the same definition as the term "costs" in RCW 87.03.271.  This includes reasonable attorneys' fees.

            Our conclusion is supported by two additional points.  First, it is a well established rule of statutory construction that the Legislature is presumed not to engage in unnecessary or meaningless acts.  State v. McCullum, 98 Wn.2d 484, 493, 656 P.2d 1064 (1983).  It would serve no useful purpose for the Legislature to declare in RCW 87.03.271 that the lien for delinquent taxes includes attorneys' fees and, at the same time, in RCW 87.06.020 establish a procedure that does not allow an irrigation district to foreclose that part of the lien.

            Second, the Legislature appears to have linked the definition of "delinquent assessment" in RCW 87.03.271 with the term "costs" in RCW 87.06.020.  As we pointed out, RCW 87.06.020(1)(d) requires that certificates of delinquency contain the "[a]mount of delinquent assessments, costs, and interest".  RCW 87.06.050(1), which provides for payment before foreclosure, provides:

                        Any party in interest of property for which a certificate of delinquency has been prepared, but against which a foreclosure judgment has not been entered,may pay to the treasurer, in person or by agent, the total amount of the assessment lien, as listed under RCW 87.06.020(1)(d), plus any additional costs and interest, including any title search costs.  If a foreclosure judgment has been entered, then any party in interest may pay to the treasurer, in person or by agent, the lien amount for which the judgment has been rendered, so long as payment is received by the treasurer during regular business hours before the day of the foreclosure sale.  The treasurer shall give a receipt for each payment received under this subsection.

(Emphasis added.)

            We take particular note of the phrase "the total amount of the assessment lien, as listed under RCW 87.06.020(1)(d)".  In this phrase, the Legislature has declared that the amount listed in RCW 87.06.020(1)(d) is the amount of the assessment lien.  Since RCW 87.03.271 defines the lien for delinquent assessments, and RCW 87.06.020(1)(d) sets out the amount of the assessment lien, it is logical that the amounts are the same -- including attorneys' fees.

            Our conclusion is also consistent with a recent decision of Division III of the Court of Appeals,Kennewick Irrig. Dist. v. 51 Parcels of Real Property, 70 Wn. App. 368, 853 P.2d 488 (1993).  InKennewick, the court vacated a default judgment foreclosing the assessment liens of the irrigation district.  The court also addressed the question of attorneys' fees stating:

            Commonwealth contends there is no statutory basis for the District to demand attorney fees and additional costs.  Under RCW 87.03.271, the lien for delinquent assessments includes "reasonable attorneys' fees, publication costs, costs of preparing certificates of delinquency, title searches, and the costs of foreclosure proceedings."

                        To the extent a judgment exceeds the amount set forth in the complaint, it is void.  If the amount of judgment is paid at any time before the day of the foreclosure sale, foreclosure proceedings must be abandoned.  See RCW 87.06.050(2).  RCW 87.06.040(1)(c) requires the summons and notice of foreclosure to set forth the amount of delinquent assessments and the amount of all costs accrued both before and after the preparation of the certificate of delinquency.  This necessarily includes the costs of the title search, filing costs, and attorney fees to that date.  See RCW 87.06.040.  The District admitted at oral argument it had obtained a title report prior to filing the notice of delinquency and the summons and complaint.  Having failed to include the cost of the title search, filing fees, and attorney fees in the complaint, the District was not entitled to demand payment therefor as a condition of abandoning the foreclosure.

Id.at 371-72 (citations omitted, emphasis added).  Thus, the court concluded that the irrigation district was not entitled to recover attorneys' fees because they were not included in the complaint.  However, the court plainly indicated that the irrigation district would have been entitled to attorneys' fees if it had included them in its complaint.

            Therefore, we conclude that an irrigation district may seek reasonable attorneys' fees when it forecloses an irrigation district lien pursuant to the procedure established in chapter 87.03 RCW.  Our response to Question 2 in AGO 1991 No. 30, is hereby rescinded.  We note that our reconsideration of Question 2 in AGO 1991 No. 30 does not affect the other answers therein which continue to represent the opinion of this office.

            We trust the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        WILLIAM B. COLLINS
                                                                        Senior Assistant Attorney General

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