In Re The Estate Of: Denny Douglas Titus ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
No. 79760-3-I
DENNY DOUGLAS TITUS, (consolidated with 79660-7-I)
Deceased. DIVISION ONE
EMILY R. HANSEN, UNPUBLISHED OPINION
Respondent,
v.
FRED V. CHRISTIANSON,
Appellant.
SMITH, J. — The court appointed Emily Hansen as guardian ad litem
(GAL) for Denny Douglas Titus in two actions where the State sought to protect
Titus from financial exploitation by Robert Crawford. In this Trust and Estate
Dispute Resolution Act (TEDRA), ch. 11.96A RCW, petition, the trial court
granted summary judgment in favor of Hansen, finding Fred Christianson, a
former personal representative of Titus’s estate, liable for Hansen’s creditor’s
claims flowing from her appointment as GAL and awarding her fees incurred as a
result of the TEDRA petition. The court also imposed sanctions against
Christianson and his attorney.
Because Christianson breached his fiduciary duty by failing to act as a
reasonably prudent person in the management of the estate and because
Hansen was unable to collect her claims from the estate due to Christianson’s
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79760-3-I/2
actions, Hansen was entitled to judgment against Christianson personally.
Additionally, pursuant to RCW 11.96A.150, Hansen was entitled to the fees she
incurred as a result of the TEDRA petition. We therefore affirm the trial court’s
order on summary judgment. However, because Christianson did not receive
adequate notice that Hansen sought sanctions against him personally, we
reverse the award of sanctions.
FACTS
In 2015, Titus twice signed powers of attorney to Crawford. Additionally,
in August 2015, Titus executed a quitclaim deed transferring “all right, title, and
interest” in his home (property) located in Seattle, Washington, to Crawford’s
company, Marathon Legal Services Inc. Titus and Crawford also signed a “Letter
of Agreement Re Employment Agreement” (agreement). Therein, Marathon
agreed to pay Titus $75,000 within 30 to 90 days of the agreement and a $3,000
monthly salary “as a Marathon contractor.” Marathon also agreed to assume rent
and utilities for Titus’s office space, and title to the property was to revert back to
Titus in 2017, after Titus’s “two year tenancy at $1.00 per year.”1 The Real
Estate Excise Tax Supplemental Statement noted that the property was a “gift”
without consideration and that Titus would “continue to make 100% of the
payments on [the] total debt of $165,000.02.”
Shortly after Crawford and Titus executed the agreement, Titus’s pastor,
Sharon Bush, filed a complaint with the State alleging that Crawford was
Title should have reverted to Titus’s estate on August 4, 2017. In fact,
1
Marathon retained title until the property was foreclosed upon in 2018.
2
No. 79760-3-I/3
exploiting Titus. On this basis, the State brought a guardianship petition alleging
that Titus was incapacitated (guardianship petition). The State also brought an
action under the abuse of vulnerable adults act (AVAA), ch. 74.34 RCW, to have
Titus declared a vulnerable adult (AVAA petition). The court issued a temporary
order of protection—or Vulnerable Adult Protection Order (VAPO)—against
Crawford, restraining the sale of the property and ordering an account of every
dollar that “came into or out of Mr. Titus’ estate since [Crawford] became
attorney-in-fact.”2 Pursuant to these petitions, the court appointed Hansen as
GAL and Kameron Kirkevold as Titus’s attorney.
In her role as GAL, Hansen spoke with Titus. During their conversation,
Titus stated that he received neither the $75,000 owed to him pursuant to the
agreement nor a monthly payment from Crawford. Specifically, Titus “insisted
that Mr. Crawford had no obligation to pay him until the sale of his house.” Titus
“threatened to end his life” and said that “[h]e only need[ed] Mr. Crawford to take
care of him and his tremendous debt.”
In her GAL report, Hansen determined that Titus was a vulnerable adult in
need of protection from Crawford’s financial exploitation. She concluded that
Titus was “unable to handle any of his financial affairs” and could not adequately
care for his medical needs. Hansen found that “Crawford persuaded [Titus] to
transfer title to five (5) vehicles to him,” including titles to four classic vehicles,
“estimated at $20-25,000 in the aggregate.” Crawford sold the vehicles, but Titus
neither knew of the amount received as payment nor received any payment.
2 The record does not contain the protection orders.
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Furthermore, Titus had “no idea whatsoever the extent of his assets and income
expended by Mr. Crawford,” and did not “have any interest in an accounting.”
Hansen concluded that because of “cognitive impairment resulting from serious
medical conditions, [Titus’s] decision-making was significantly impaired,” and he
was unable “to comprehend [Crawford’s] egregious self-dealing.”
On July 2, 2016, Titus died intestate. Thereafter, the court struck the trial
for the guardianship petition and dismissed the petition. In August 2016, the
probate court appointed Christianson as personal representative of Titus’s
estate. Christianson served under court supervision. The court did not require
Christianson to post a bond for the estate. However, the court ordered him to
“advise the court on the known assets and liabilities of the estate” within 60 days
in order to determine whether a bond was necessary to protect the estate.
Christianson did not comply and never secured a bond for the estate’s protection.
In May 2017, Christianson and Crawford entered into an agreement for
payment of $65,000 to the estate “upon the sale of Marathon’s property”
(settlement). The settlement agreement “release[d] and discharge[d] Marathon
and all principals, officers, agents, attorneys, employees . . . of Marathon, from
any and all claims, demands, causes of action known or unknown which the
Estate may now have or may hereafter have in relation to any matter between
the Parties.” The estate never received the promised payment.
In August 2017, after the court had approved two previous creditor’s
claims for $17,147.45 and $9,961.84, Hansen filed a second amended creditor’s
claim requesting a principal judgment amount of $15,837.22 against the estate.
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The court approved her claim and added it to the two prior awards, including an
“interest at the rate of 12% per annum . . . until paid in full.” At the same time,
Christianson secured the rescission of the VAPO and dismissal of the AVAA
petition without prejudice.3 In the order dismissing the AVAA petition and the
VAPO, the court awarded fees to Hansen.
In April 2018, the mortgagee foreclosed on Titus’s property because the
mortgage had not been paid since June 1, 2016. The mortgagee’s complaint
showed that despite the VAPO enjoining Crawford from the sale or encumbrance
of Titus’s residence, in September 2016, Crawford had recorded two deeds of
trust: (1) $350,000 to his business associate, Anita Frick, and (2) $250,000 to
Louis J. Berg.
On September 7, 2018, the court issued an order to show cause to revoke
Christianson’s letters of administration. During the hearing, Hansen again
requested the approved GAL fees. The court noted that there was no objection
to Hansen’s creditor’s claims and that, therefore, the estate must pay the fees
within 30 days. The court ordered judgment of Hansen’s fees for $50,009.38 and
awarded her an additional $2,400.00 to “be paid by the Estate of Denny Douglas
Titus.” Additionally, pursuant to RCW 11.28.250, the court removed Christianson
as personal representative for mismanagement, waste, and neglect.4
3 Kirkevold originally requested, on behalf of Titus, dismissal of the VAPA
petition in April 2016. However, the court did not dismiss the petition until
Christianson took over as personal representative.
4 RCW 11.28.250 provides the trial court authority to revoke letters from a
personal representative when the court “has reason to believe that [they have]
wasted, embezzled, or mismanaged, . . . or ha[ve] wrongfully neglected the
estate.”
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No. 79760-3-I/6
When the estate did not pay her claims within 30 days, Hansen filed a
TEDRA petition against Christianson, alleging that he breached his fiduciary duty
by, among other things, entering into the settlement with Crawford and seeking
rescission of the VAPO. Hansen alleged that Christianson never provided her
with his filed response to the TEDRA petition.5 But in his response, Christianson
alleged that the State’s agents perpetuate “a massive guardianship and probate
fraud (“GPF”) scheme.” Christianson also asserted that, among other things,
Hansen attempted to extort Crawford, has “criminal history,” and committed
manslaughter in the second degree. Christianson “assert[ed] [his] right under 18
U.S. Code § 4 to demand” that “the Court notify the United States Attorney for
the Western District” of Hansen’s “federal criminal activity.” He argued that the
court’s failure to notify the U.S. attorney “would constitute the Court having
committed the federal crime of Misprision of Felony.” Christianson also argued
that Hansen and the trial court “failed to cite valid evidence supported by the
court record of the alleged waste, mismanagement or neglect.”
In December 2018, Hansen moved for CR 11 sanctions against
Christianson’s attorney, Jonathan Grindell. In her motion, Hansen contended
that Grindell filed irrelevant pleadings and exhibits not well grounded in fact and
not warranted by existing law, and concealed and refused to serve pleadings on
Hansen. In granting Hansen’s CR 11 motion, the court made 29 findings of
Christianson and Grindell’s “bad faith litigation conduct[,] . . . result[ing] in
5 During a later hearing, Hansen admitted that she “had forgotten to sign
up for e-service.”
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No. 79760-3-I/7
[Hansen’s] increased litigation time and expense.” The court imposed $10,000 in
sanctions against Christianson and Grindell, jointly and severally.
In January 2019, Hansen moved for summary judgment, and in February
2019, the court heard Hansen’s motion. There, Christianson asserted “[t]here
are numerous, numerous genuine material facts.” He was unable to cite the
record for even one genuine issue of material fact. That day, the trial court
granted Hansen’s motion for summary judgment against Christianson, awarding
her $55,072.68 and pursuant to RCW 11.40.080, RCW 11.96.150,6 or
RCW 4.84.185, reasonable attorney fees and costs.
Later, Hansen sought to reduce to judgment the CR 11 sanctions imposed
on Christianson and Grindell. In reply, Christianson asked the court to remove
joint and several liability on Christianson, arguing that the order violated his right
to due process. The court disagreed and in its order noted that Hansen’s initial
CR 11 motion only sought sanctions against Grindell, but that it was entitled to
impose sanctions against Christianson or Grindell. The court granted Hansen’s
motion and found it had authority to impose sanctions against Christianson and
Grindell jointly and severally.
Hansen later submitted her presentation of proposed judgment on her
motion for summary judgment. Therein, she sought supplemental judgment for
the fees she incurred following the court’s original decision on summary
judgment. Christianson replied, arguing that the trial court did not have authority
The trial court committed an obvious scrivener’s error when it said it
6
awarded fees under RCW 11.94A.150 because no such statute exists.
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No. 79760-3-I/8
under RCW 11.40.080(2), RCW 11.94A.150, or RCW 4.84.185 to impose a
supplemental judgment in favor of Hansen. He also challenged many of the fees
that Hansen requested.
In June 2019, the court issued a judgment nunc pro tunc, ordering
judgment in favor of Hansen in the principal amount of $55,072.68, “including
prejudgment interest through February 15, 2019.” Pursuant to RCW 11.40.080,
RCW 11.96A.150, and RCW 4.84.185, the court also awarded Hansen attorney
fees and costs of $41,989 and “post-judgment interest at the rate of 12% per
annum on this judgment from February 15, 2019,” until paid in full. Christianson
appeals.
ANALYSIS
Summary Judgment
Christianson contends that the trial court erred when it granted Hansen’s
motion for summary judgment and found him liable for Hansen’s creditor’s
claims. We disagree.
“We review summary judgment orders de novo, considering the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party.” Keck v. Collins, 184 Wash. 2d 358, 370, 357 P.3d 1080 (2015).
“Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to summary judgment as a
matter of law.” Green v. Normandy Park, 137 Wash. App. 665, 681, 151 P.3d 1038
(2007). The moving party bears the initial burden of showing that there is no
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No. 79760-3-I/9
genuine issue of material fact. Hash by Hash v. Children’s Orthopedic Hosp. &
Med. Ctr., 110 Wash. 2d 912, 915, 757 P.2d 507 (1988).
Hansen argued below that she was entitled to summary judgment
because (1) Crawford breached his fiduciary duty as attorney-in-fact for Titus by
engaging in self-dealing and (2) as a result, Christianson breached his fiduciary
duty as the estate’s personal representative by securing the dismissal of the
AVAA petition and entering into the settlement with Crawford. She further
argued that but for Christianson’s breach of his fiduciary duty, the estate would
have been solvent and capable of paying her creditor’s claims. In all respects,
we conclude that Hansen met her burden to show that there were no genuine
issues of material fact.
First, as attorney-in-fact, Crawford owed Titus a fiduciary duty. In
particular, Crawford had a duty to act in good faith and “[a]ct so as not to create a
conflict of interest that impairs the agent’s ability to act impartially in the
principal’s[—in this case, Titus’s—]best interest.” RCW 11.125.140(1)(b), (2)(b).
Crawford created a conflict of interest by receiving title to the property and
entering into the agreement, which benefited his company. And Crawford and
Marathon failed to fulfill their contractual obligations. Specifically, Titus received
none of the promised payments, and the property’s title never reverted back to
the estate as required by the agreement. Crawford also never paid rent on
Titus’s office space, and he executed two deeds of trust on the property, one of
which was for a business associate, despite a VAPO enjoining such actions.
Finally, Crawford sold Titus’s cars and did not pay Titus or the estate any of the
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No. 79760-3-I/10
proceeds, and Hansen presented evidence that he withdrew funds from Titus’s
account. While we must take all reasonable inferences in the light most
favorable to the nonmoving party, Christianson provided no evidence from which
we may infer anything contrary to these facts. In short, Hansen presented
sufficient evidence that Crawford did not act in good faith or in Titus’s best
interest. Therefore, Hansen satisfied her burden to show that no genuine issue
of material fact existed and that Crawford breached his duty as attorney-in-fact.
Next, with regard to Christianson’s duty, an estate’s “personal
representative stands in a fiduciary relationship to those beneficially interested in
the estate.” In re Estate of Larson, 103 Wash. 2d 517, 521, 694 P.2d 1051 (1985).
The personal representative “is obligated to exercise the utmost good faith and
diligence in administering the estate in the best interests of the heirs.” Larson,
103 Wash. 2d at 521. To this end, a personal representative must “utilize the skill,
judgment, and diligence which would be employed by the ordinarily cautious and
prudent person in the management of [their] own trust affairs.” Hesthagen v.
Harby, 78 Wash. 2d 934, 942, 481 P.2d 438 (1971). And it is the personal
representative’s duty “to settle the estate[ ] . . . as rapidly and as quickly as
possible, without sacrifice to the probate or nonprobate estate” and to “collect all
debts due the deceased and pay all debts.” RCW 11.48.010.
Because Crawford had breached his fiduciary duty and owed the estate
considerable debts, a prudent personal representative would not have entered
into the settlement. Hansen presented evidence that the settlement sacrificed
the validity of the estate. In particular, the settlement failed to account for over
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No. 79760-3-I/11
$100,000 Crawford owed to the estate pursuant to the agreement and did not
consider the payments that Crawford transferred to himself from Titus’s bank
account or the sale of Titus’s vehicles. In addition, Christianson failed to
(1) secure the settlement’s payment, (2) receive the court’s approval of the
settlement, as required, (3) provide an accounting of the estate’s assets, as
required, and (4) secure a bond for the estate’s protection. In short, Hansen
presented evidence, even taken in the light most favorable to Christianson, that
when he entered into the settlement and secured the rescission of the VAPO,
Christianson did not utilize the skill, judgment, and diligence that an ordinarily
cautious and prudent person would employ in the management of their own trust
affairs.
Hansen also presented evidence that Christianson’s actions resulted in
her inability to collect her creditor’s claims from the estate. Under
RCW 11.48.080, “[n]o personal representative shall be accountable for any debts
due the estate, if it shall appear that they remain uncollected without his or her
fault.” Here, the settlement agreement allowed Crawford to retain title to the
property until he sold it and thereafter pay the estate only $65,000 of the sale
proceeds; at the same time, Crawford planned to receive $200,000 from the sale.
And rescission of the VAPO meant that Crawford could sell the property. Without
the estate’s sale of the property, Hansen alleged in her declaration—and
Christianson failed to rebut—the estate was unable to pay its creditors.7
7In April 2018, the due and unpaid principal balance on the property’s
mortgage was $160,414.63, plus interest. The total of the creditors’ claims in
April 2018 was around $127,000.00. As of December 20, 2018, Realtor.com
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No. 79760-3-I/12
Accordingly, Christianson was responsible for Hansen’s inability to collect her
debts from the estate, and he was personally liable for Hansen’s creditor’s claims
against the estate. For the above reasons, the trial court did not err in concluding
that Christianson breached his fiduciary duty and finding him liable for Hansen’s
creditor’s claims.
Christianson disagrees and contends that “Hash is directly applicable to
this case.” In Hash, six-year-old Joanne Marie Hash sued Children’s Orthopedic
Hospital (COH) after she fractured her femur while undergoing physical therapy.
10 Wash. 2d at 913. COH moved for summary judgment and submitted two
affidavits, one of which stated that “[i]t is possible for a child to suffer a fractured
bone during physical therapy when the therapist is not negligent.” Hash, 110
Wash. 2d at 913-14 (alteration in original). Hash did not submit affidavits in
response to COH’s motion but contended that COH failed to submit sufficient
evidence to establish that there were no genuine issues of material fact. Hash,
110 Wash. 2d at 914. Our Supreme Court concluded that COH had not met its
burden to show that there was no genuine issue of material fact. Hash, 110
Wash. 2d at 916. The court reasoned that the submitted affidavits included no
account of the material facts and that a reasonable inference from the above
statement, when resolved in Hash’s favor, is that negligence could have caused
Hash’s injury. Hash, 110 Wash. 2d at 916.
Hash is distinguishable because, here, Hansen did not present evidence
listed the property’s value as $652,200.00. Given the mortgage and federal and
state tax liens, the property’s sale was more than sufficient to cover all creditors’
claims with residual to Titus’s son.
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No. 79760-3-I/13
that, when taken in the light most favorable to Christianson, provides an
inference that there is a genuine issue of material fact. Instead, as discussed
above, Hansen met her burden to prove that Christianson breached his fiduciary
duty by failing to collect on the debts Crawford owed to the estate, by entering
into the settlement and thereby sacrificing the estate’s solvency, and by utilizing
poor judgment when he dismissed the AVAA petition. Moreover, Hansen
provided evidence of the facts in her declaration and the numerous exhibits
attached thereto. Accordingly, Hash is not applicable to this case.
Christianson makes a number of additional arguments that are
unpersuasive. He contends that Hansen provided no authority to support the
proposition that Christianson was required to maintain the AVAA petition or
VAPO against Crawford. While it is true that Christianson was not statutorily
obligated to maintain the AVAA petition,8 as discussed above, Hansen
established that no genuine issue of material fact exists as to whether a
reasonably prudent personal representative would have sought dismissal of the
AVAA petition or the VAPO in this case.
Additionally, Christianson contends that Hansen—to prevail on her motion
for summary judgment—was required to show that (1) an action by the estate
against Marathon would not have been successful, (2) had Christianson
8 Rather, RCW 74.34.210 leaves the decision to the discretion of the
estate’s personal representative. It provides that in the death of a vulnerable
adult, “the right to . . . maintain the action shall be transferred to . . . the
administrator of the deceased, for recovery of all damages for the benefit of the
deceased person’s beneficiaries . . . or . . . for recovery of all economic losses
sustained by the deceased person’s estate.”
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No. 79760-3-I/14
remained the estate’s personal representative, he would not have pursued an
action against Crawford, (3) the estate can no longer pursue a claim against
Crawford, and (4) the AVAA petition against Crawford would have been
successful. Contrary to Christianson’s assertion at oral argument, the settlement
explicitly released Crawford and Marathon from all liability to the estate. As such,
these contentions are unpersuasive as no action against either could have
ensued. Furthermore, with regard to the AVAA petition, while its guaranteed
success would have further supported Hansen’s argument, it is not required—
and therefore immaterial—to prove that Christianson breached his fiduciary duty.
Accordingly, we are not persuaded.
Attorney Fees and Costs
Christianson also challenges the court’s award of Hansen’s attorney fees
and costs for the TEDRA petition. We conclude that the trial court had the
authority to grant fees under RCW 11.96A.150 and that the fee award was
reasonable.
“Whether a party is entitled to an award of attorney’s fees is a question of
law and is reviewed on appeal de novo.” Durland v. San Juan County, 182
Wash. 2d 55, 76, 340 P.3d 191 (2014). Generally, an award of attorney fees must
be “authorized by contract, statute, or recognized ground of equity.” Durland,
182 Wash. 2d at 76. To this end, the trial court awarded Hansen fees based on
RCW 11.40.080(2) and RCW 11.96A.150.9
9 On appeal, Hansen does not contend that the trial court had authority
under RCW 4.48.185. Accordingly, we do not address RCW 4.48.185 or the trial
court’s reliance thereon.
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No. 79760-3-I/15
Under RCW 11.40.080(2), an estate’s creditor is entitled to recover fees
from the estate. Accordingly, under its plain language, the statute did not provide
authority for the court to grant fees to Hansen from Christianson. Thus, the trial
court lacked the statutory authority under RCW 11.40.080(2) to award Hansen’s
TEDRA fees from Christianson, and it therefore erred in that respect.
Under RCW 11.96A.150, in a TEDRA petition, “[e]ither the superior court
or any court on an appeal may, in its discretion, order costs, including reasonable
attorneys’ fees, to be awarded to any party . . . [f]rom any party to the
proceedings.” And the court may grant fees and costs “in such amount and in
such manner as the court determines to be equitable.” RCW 11.96A.150(1). “In
exercising its discretion, . . . the court may consider any and all factors that it
deems to be relevant and appropriate, which factors may but need not include
whether the litigation benefits the estate or trust involved.” RCW 11.96A.150(1).
In short, RCW 11.96A.150 authorizes the court broad discretion to grant attorney
fees and costs in a TEDRA action. See, e.g., In re Guardianship of Lamb, 173
Wash. 2d 173, 198, 265 P.3d 876 (2011) (“The express language of
RCW 11.96A.150 leaves attorney fee awards in cases resolving guardianship
disputes to the court’s discretion.”). Thus, the trial court had authority to award
Hansen fees.
Christianson disagrees and contends that the trial court should have
considered the novelty of the case and whether Hansen’s TEDRA petition
benefited the estate.10 The court’s failure to consider these facts is not an abuse
10 In support of his contention, Christianson cites a number of cases that
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No. 79760-3-I/16
of discretion because the court “may consider any and all factors that it deems to
be relevant and appropriate.” RCW 11.96A.150(1). Moreover, the statute
specifically provides that a court need not consider whether the petition benefited
the estate. RCW 11.96A.150(1). Accordingly, Christianson’s contention fails.
Because the court had authority to award fees, we next review whether
the award was reasonable. To this end, “[w]e review for abuse of discretion
whether the amount of an attorney fee award is proper.” Bright v. Frank Russell
Invs., 191 Wash. App. 73, 78, 361 P.3d 245 (2015).
Christianson asserts that the fees were “grossly excessive.” In particular,
Christianson asserts that Hansen received fees for research completed before
she began drafting her TEDRA petition. He points to, among other things,
Hansen’s inclusion of services for her research into Marathon, for the removal of
Christianson as personal representative, and for the preparation of her motion for
sanctions. But the trial court had discretion to impose the fee award that it
involved the appellate court either exercising its own discretion to determine
whether to award fees on appeal or affirming the trial court’s decision by finding
no abuse of discretion. See In re Estate of Collister, 195 Wash. App. 371, 382 P.3d
37 (2016) (awarding neither party attorney fees on appeal because the court
accepted the losing party’s argument in part); In re Washington Builders Ben.
Trust, 173 Wash. App. 34, 85-86, 293 P.3d 1206 (2013) (declining to award fees to
one party where the litigation raised “unique issues” but awarding fees to another
party for those issues on which it prevailed on appeal); In re Estate of Lowe, 191
Wash. App. 216, 239-40, 361 P.3d 789 (2015) (affirming the trial court’s decision to
grant the appellant fees, but exercising its discretion and denying fees on appeal
because the prevailing party kept silver “treasure” that “ably allows him to afford
the expense of this appeal”); In re Estate of Jones, 170 Wash. App. 594, 287 P.3d
610 (2012) (affirming the trial court’s decision to deny attorney fees to the
prevailing party in a TEDRA action). These cases only reaffirm that we should
not disturb a fee award under RCW 11.96A.150 absent a showing that the trial
court acted unreasonably.
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deemed equitable. And Christianson failed to show that the award was
manifestly unreasonable or based on untenable grounds. See Bright, 191 Wn.
App. at 78 (“‘A trial court abuses its discretion if a decision is manifestly
unreasonable or based on untenable grounds or untenable reasons.’” (quoting
Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No. 1,
177 Wash. 2d 718, 730, 305 P.3d 1079 (2013)).
Next, Christianson claims that Hansen received duplicative costs because
“[a]t least part of the services for which [she] was awarded $41,989 were also
awarded to her in the CR 11 motion.” Christianson makes the conclusory
assertion that “she was double compensated by $5,655” because of the CR 11
award. But Christianson does not point to evidence in the record that Hansen
was awarded double recovery for the same services. See In re Estate of Palmer,
145 Wash. App. 249, 265, 187 P.3d 758 (2008) (The appellant is “obligated to
demonstrate why specific findings of the trial court are not supported by the
evidence and to cite to the record in support of that argument.” (emphasis
added)). Therefore, we are not persuaded that the trial court’s award was
unreasonable. See Scott Fetzer Co. v. Weeks, 122 Wash. 2d 141, 147, 859 P.2d
1210 (1993) (When attorney fees are authorized, in order to reverse the award
based on unreasonableness, the opponent must show “that the trial court
manifestly abused its discretion.” (emphasis added)).
Christianson also contends that in its nunc pro tunc order, the court
entered prejudgment interest on Hansen’s fees incurred as a result of the
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No. 79760-3-I/18
TEDRA petition.11 A nunc pro tunc order records a prior act of the court that was
“actually performed but not entered into the record at that time.” State v.
Rosenbaum, 56 Wash. App. 407, 410-11, 784 P.2d 166 (1989); see also State v.
Hendrickson, 165 Wash. 2d 474, 478, 198 P.3d 1029 (2009).
Here, the court’s June nunc pro tunc order recorded an action already
performed by the court in the February order, i.e., the award of fees and
postjudgment interest thereon. Because the original judgment included Hansen’s
fees and the original judgment was entered in February, the court’s order
granting interest beginning in February recorded an event that occurred at that
time. In the June order, the court adjusted the fees to include the additional work
Hansen did replying to Christianson’s responses to her entry of judgment motion,
considered additional documents from both parties, and again awarded
postjudgment interest dating back to February 15, 2019. Accordingly, the court
did not award prejudgment interest, the nunc pro tunc order was not improper,
and the trial court did not err.
As a final matter, Christianson contends that the trial court’s order granting
fees should be reversed because the trial court offered only five days for his
response to Hansen’s motion and failed to exclude holidays. CR 6(d) and King
County Superior Court Local Civil Rule 7(b)(4)(A) require a moving party to
provide notice of written motions at least five and six days in advance of the
hearing thereon, respectively. But “‘CR 6(d) is not jurisdictional, and . . . reversal
11 In its nunc pro tunc order, the court only addresses “prejudgment
interest” with respect to Hansen’s creditor’s claims. That interest, the court
notes, is included in the judgment’s principal amount.
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No. 79760-3-I/19
for failure to comply requires a showing of prejudice.’” Goucher v. J.R. Simplot
Co., 104 Wash. 2d 662, 665, 709 P.2d 774 (1985) (quoting Brown v. Safeway
Stores, Inc., 94 Wash. 2d 359, 364, 617 P.2d 704 (1980)). Christianson has not
shown prejudice. In fact, Christianson did respond to Hansen’s motion for fees
months later, and the court took into account Christianson’s response when it
entered the nunc pro tunc order for fees and costs on June 17, 2019. Therefore,
the error does not require reversal. See, e.g., King County Water Dist. No. 90 v.
City of Renton, 88 Wash. App. 214, 231, 944 P.2d 1067 (1997) (holding that the
court’s order issued two days after a party’s motion was submitted was not
reversible error and that the nonmoving party, which failed to reply to the motion,
“was given sufficient notice and opportunity to be heard on the issue of
sanctions”).
Sanctions
Christianson also asserts that the court did not provide adequate notice
that he would be sanctioned and that therefore the trial court erred when it
imposed sanctions against him. We agree.
“CR 11 procedures ‘obviously must comport with’ the due process
requirements of notice and an opportunity to be heard.” King County Water Dist.
No. 90, 88 Wash. App. at 231 (quoting Bryant v. Joseph Tree, Inc., 119 Wash. 2d 210,
224, 829 P.2d 1099 (1992)). And “‘[a]n elementary and fundamental requirement
of due process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their
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No. 79760-3-I/20
objections.’” Young v. Thomas, 193 Wash. App. 427, 440, 378 P.3d 183 (2016)
(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.
Ct. 652, 94 L. Ed. 865 (1950)). Accordingly, whether Christianson received
adequate notice of personal sanctions is an issue of constitutional magnitude and
may be raised for the first time on appeal. See RAP 2.5(a)(3) (A party may raise,
“for the first time in the appellate court,” a “manifest error affecting a
constitutional right.”).
Here, the trial court sanctioned Grindell and Christianson jointly and
severally. But the record did not indicate that Hansen sought sanctions against
Christianson. Specifically, Hansen’s motion stated that she sought “entry of an
order of sanctions against . . . Christianson’s attorney, Jonathan Grindell.” She
cited “Mr. Grindell’s conduct” in support of her motion and concluded that she
was seeking sanctions “against Mr. Grindell personally.” At the sanctions
hearing, the court and Hansen’s comments did not indicate an intent to impose
sanctions against Christianson. In particular, the court challenged Grindell’s
conduct specifically, stating that he “misrepresented” the court’s orders in his
motions to the court. And Hansen alleged that Grindell continuously partook in
ex parte communication and failed to serve Hansen pleadings. In short,
Hansen’s motion was not reasonably calculated to apprise Christianson that she
sought sanctions against him personally. Thus, the court’s imposition of
sanctions against Christianson violated his due process rights of notice and
opportunity to state his objections and therefore must be reversed.
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No. 79760-3-I/21
Fees on Appeal
Hanson requests fees on appeal pursuant to RCW 11.96A.150. It is within
this court’s discretion to award fees and costs to Hansen as the substantially
prevailing party on appeal. RCW 11.96A.150. We may order an amount of fees
deemed “equitable” and “may consider any and all factors that [we] deem[ ] to be
relevant and appropriate.” RCW 11.96A.150. And contrary to Christianson’s
contention, this appeal does not involve a unique issue; it is merely a common
breach of fiduciary duty claim. Cf., Bale v. Allison, 173 Wash. App. 435, 461, 294
P.3d 789 (2013) (holding that the issue of whether a quitclaim deed “must recite
consideration” was a unique issue and “an award of fees to either party [was]
unwarranted”); In re Estate of D’Agosto, 134 Wash. App. 390, 402, 139 P.3d 1125
(2006) (holding that in “novel issues of statutory construction[, a]n award of fees
to either party is unwarranted”). And here, Christianson’s bad faith litigation
practices throughout the proceedings below, including alleging that Hansen
committed manslaughter and other conduct the trial court considered
sanctionable, entitles Hansen to her fees and costs on appeal subject to her
compliance with RAP 18.1.
For the foregoing reasons, we affirm in part and reverse in part.
WE CONCUR:
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