Randall Danskin, PS v. Nancy Taormina ( 2019 )

FILED
JUNE 18, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
RANDALL DANSKIN, P.S., a )
Professional Service Corporation, ) No. 35930-1-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
NANCY TAORMINA, a single person, )
)
Appellant. )
FEARING, J. — We affirm the superior court’s order granting summary judgment
to a law firm against its former client for fees incurred. In her appeal brief, the client
only cites to her unsworn answer to the complaint in order to attempt to raise a factual
question.
FACTS
In November 2015, Nancy Taormina hired attorney Michael Wolfe of Randall
Danskin, P.S. to file a guardianship petition for her father, John J. Tormino, Sr.
Curiously the last names of the father and daughter are similar, but not identical.
No. 35930-1-III
Randall Danskin v. Taormina
Taormina sought the guardianship because her brother, John J. K. Tormino, Jr., prevented
her from visiting her elderly father in an assisted living facility where he resided and
because Taormina believed John Jr. exploited his father. The parties did not enter a
written fee agreement, but Taormina admits an oral agreement. Taormina provided
Randall Danskin with a $5,000 retainer against which the law firm would initially pay
billed costs and fees.
On December 3, 2015, Nancy Taormina, through Michael Wolfe, filed a petition
in Spokane County Superior Court seeking a guardianship of the person of her father,
John Sr., and his estate and her selection as the guardian of both the person and estate. In
her petition, Taormina alleged that John Sr. was incapacitated, that he required a full
guardian of his person and his estate, that a guardianship was preferable over powers of
attorney previously executed by John Sr. naming John Jr. as attorney in fact, and that the
powers of attorney should be voided. John Sr. and John Jr. both contested the need for a
guardianship and argued that John Jr. should remain as attorney in fact for John Sr.
Throughout the guardianship litigation, Michael Wolfe provided Nancy Taormina with
monthly billing statements that showed her legal fees and costs as they accrued.
The superior court appointed Mayree Beckett as guardian ad litem for purposes of
the guardianship proceedings. Following an investigation, Beckett recommended the
establishment of a guardianship and the appointment of James P. Spurgetis, a certified
professional guardian, for the person and estate of John Sr. Beckett noted that the
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children of John Sr., including Nancy Taormina and John Jr., quarreled and would
continue to clash in the future.
Before trial, Nancy Taormina’s attorney, Michael Wolfe, advised her that the court
would likely follow the guardian ad litem’s recommendation of appointing the certified
professional guardian. Taormina still insisted on being appointed, and her petition
proceeded to four days of trial.
After trial, the superior court read in open court a lengthy oral decision. The court
agreed to create a guardianship of the person and estate of John Sr., but refused to appoint
either Nancy Taormina or John Jr. as guardian. The court questioned Taormina’s
credibility. After weighing the evidence, including testimony of independent witnesses,
the trial court concluded that Taormina was assaultive and derogatory toward her siblings
and John Sr.’s care providers and that the antagonism had resulted in two restraining
orders against her. Taormina’s denial of the allegations of assaultive behavior impeded
her credibility.
In a later written order, the superior court also explained why the court refused to
appoint John Jr. as guardian. John Jr. did not understand his role as a fiduciary and
managed John Sr.’s estate to the benefit of John Jr. As recommended by the guardian ad
litem, the court appointed James Spurgetis as John Sr.’s guardian.
At Nancy Taormina’s instruction, Randall Danskin sought reimbursement of her
costs and fees from the estate of John Sr. In support of the fee motion, Michael Wolfe
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submitted a fee affidavit and sent a copy to Taormina. Wolfe attached prior bills to the
affidavit. The billing showed total fees and costs of $33,109.00, of which Taormina had
paid $19,638.23, leaving a balance of $14,790.14. Taormina did not complain then to the
amount of fees. The superior court denied the application for fees. In the court’s order
denying the motion for fees, the superior court found Randall Danskin’s fees reasonable.
Nancy Taormina thereafter failed to pay any of the remaining fees owed.
John Sr.’s attorney sought reimbursement of fees from the estate of John Sr. John
Jr. also requested that the court order John Sr.’s estate to reimburse John Jr. for attorney
fees he incurred. Nancy Taormina, through attorney Michael Wolfe, successfully argued
that independent counsel for John Sr. charged an excessive hourly rate. Taormina
through counsel also successfully opposed reimbursement of John Jr.’s fees from the
estate of her father.
PROCEDURE
Randall Danskin filed this lawsuit against Nancy Taormina to recover the unpaid
balance of Taormina’s bill. Randall Danskin moved for summary judgment. The trial
court granted the motion based on the ground that Taormina never objected to the
reasonableness of the fees when she applied for payment of the fees by the estate of John
Sr.
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LAW AND ANALYSIS
Summary Judgment
On appeal, Nancy Taormina contends the trial court committed error because she
was not allowed to object to the reasonableness of Randall Danskin’s fees when applying
for payment of the fees in the underlying guardianship proceeding. She also argues the
fees to be unreasonable and that she only agreed to pay $5,000 for Randall Danskin’s
services. Finally, she argues that Randall Danskin did not sufficiently inform her of the
amount of fees incurring as the litigation progressed.
Appellate courts review a trial court’s order granting summary judgment de novo.
Allen v. State, 118 Wash. 2d 753, 757, 826 P.2d 200 (1992). This court engages in the same
inquiry as the trial court below. Vallandigham v. Clover Park School District No. 400,
154 Wash. 2d 16, 26, 109 P.3d 805 (2005).
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show no genuine
issue as to any material fact and the moving party is entitled to a judgment as a matter of
law. CR 56(c). If the moving party satisfies its initial burden, the nonmoving party must
present evidence that demonstrates that material facts are in dispute. Atherton
Condominium Apartment-Owners Association Board of Directors v. Blume Development
Co., 115 Wash. 2d 506, 516, 799 P.2d 250 (1990). In making this responsive showing, the
nonmoving party cannot rely on the allegations made in its pleadings, such as its answer
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to the complaint. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d
182 (1989). CR 56(e) emphasizes the need to counter a summary judgment motion by
affidavit. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d at 225-26. If the nonmoving
party fails to make a showing sufficient to establish the existence of an element essential
to her case, then the trial court should grant the motion. Hines v. Data Line Systems, Inc.,
114 Wash. 2d 127, 148, 787 P.2d 8 (1990).
In her appeal brief, Nancy Taormina cites to no affidavit testimony that she only
agreed to pay $5,000. She cites to her answer to the complaint wherein she agreed to pay
no more than $5,000. An answer to the complaint does not suffice to defeat a summary
judgment.
We question whether the trial court correctly found Nancy Taormina to be bound
by the guardianship court’s determination of Randall Danskin’s fees to be reasonable
when Taormina remained the client of Randall Danskin at the time of the fee application.
Nevertheless, we need not address this issue, since Taormina’s appeal brief cites to no
affidavit testimony in the pending litigation wherein she otherwise provided facts
showing the amount of fees to be unreasonable. She only cites to her answer to the
complaint wherein she disputes the reasonableness of the fees. We may affirm on other
ground supported by the record provided the parties had a full and fair opportunity to
develop the relevant facts. Bernal v. American Honda Motor Co., 87 Wash. 2d 406, 414,
553 P.2d 107 (1976).
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Attorney Fees
Pursuant to RAP 18.9, Randall Danskin seeks an award of its attorney fees
incurred on appeal. RAP 18.9(a) authorizes this court to order a party who files a
frivolous appeal “to pay terms or compensatory damages to any other party who has been
harmed by the delay or the failure to comply or to pay sanctions to the court.”
Appropriate sanctions may include an award of attorney fees to the opposing party.
Rhinehart v. Seattle Times, 59 Wash. App. 332, 342, 798 P.2d 1155 (1990).
An appeal is frivolous when the appellant presents no debatable issues on which
reasonable minds could differ and when the appeal is so totally devoid of merit that there
was no reasonable possibility of reversal. Mahoney v. Shinpoch, 107 Wash. 2d 679, 691,
732 P.2d 510 (1987). Appellate courts examine the record as a whole, and doubts should
be resolved in favor of the appellant. Mahoney v. Shinpoch, 107 Wash. 2d at 692. We
decline to characterize Nancy Taormina’s appeal as frivolous because we question
whether the superior court’s ruling in the earlier guardianship litigation precludes her
challenging Randall Danskin’s fee request.
CONCLUSION
We affirm the trial court’s judgment in favor of Randall Danskin for attorney fees
charged in the guardianship litigation. We deny Randall Danskin fees on appeal.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
(