Mark Williams, et ux v. Paul Dana, et ux ( 2020 )

FILED
OCTOBER 13, 2020
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
MARK WILLIAMS and MARIAN )
NUNER, husband and wife, ) No. 36852-1-III
)
Respondents, )
)
v. )
) UNPUBLISHED OPINION
PAUL AND SUSAN DANA, husband and )
wife, DANA LIVING TRUST, )
KENNETH L. WERNER AND ANDREA )
M. WERNER, husband and wife, )
ROBERT NEILSEN and JANE DOE )
NEILSEN, husband and wife, EUGENE )
L. TAYLOR and MICHELLE A. )
TAYLOR, husband and wife, )
)
Appellants. )
KORSMO, A.C.J. — This appeal arises from a mediated agreement to settle an
easement dispute. We affirm and grant respondent’s request for attorney fees.
FACTS
The underlying dispute is secondary to the issues in this appeal and can briefly be
summarized. Appellant Dana and Respondent Williams1 disagreed concerning the scope
1
The appellants are referred to collectively as Dana, and the respondent
Williams/Nuner marital community is referred to as Williams.
No. 36852-1-III
Williams, et ux v. Dana, et ux, et al
of an easement along the boundary of their properties. After Williams’ motion for
summary judgment was denied, the case went to mediation.
By the time of mediation, Dana was proceeding pro se; Williams was represented
by counsel. At mediation, the parties reached a tentative agreement. The agreement
provided:
1) The parties agree to a 15 foot easement on each side of the property line.
2) [Dana] will move or remove the fence within one year onto the parties’
property outside of the easement.
3) [Williams] will not cause the trees within the easement to be cut.
4) Release of all claims Williams/Nuner have against Danas and the trust
with prejudice.
5) Mutual non-disturbance agreement-not verbally or physically harass
each other (no harassment as defined in statutory harassment orders).
6) If either party must enforcement [sic] of the settlement agreement,
prevailing party gets attorney fees.
7) [Williams] will remove the slash pile.
8) Steve [Williams’ attorney] will prepare the legal paperwork and his
clients will pay for the filing.2
9) Release of lis pendens.
Clerk’s Papers (CP) at 273. The agreement was signed by the attorney for Williams and
needed their approval. They approved the agreement.
Williams’ attorney then prepared a draft settlement document containing the
following summarized provisions:
1. An agreement to recognize the boundary line easement.
2
While Dana apparently had an attorney early in the process, Dana was pro se
through the relevant parts of this case until appeal.
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2. The width of the easement shall extend 15 feet from the centerline onto
each party’s property (30 feet total) with a fence on the Dana’s property
moved to leave 24 feet on their side unobstructed.
3. Williams will not cut any trees on the Dana property.
4. Mutual non-disturbance.
5. Do not block the easement
6. Dismiss the lawsuit.
CP at 356-357. The e-mail accompanying the draft document noted that it contained
additional language and some details requested by Williams and requested that if “you
feel you are being treated unfairly, assume it is my mistake and make a suggestion.” CP
at 358.
In response to the draft, Dana sent an e-mail rejecting the proposal and the entire
mediation process, claiming that it had been a ruse. He threatened to hire an attorney and
sue Williams for a six-figure sum. The e-mail also demanded changes to the easement
terms and presented a 10-point counter-offer containing detailed easement provisions and
requesting $5,000 for “reimbursement.” CP at 237-238. Williams then brought a
contempt action to enforce the mediated agreement, claiming that Dana had repudiated it.
Dana contended it was tentative and did not bind him. Mr. Dana stated that when he
received the draft document, “I was done.” Report of Proceedings at 77.
The trial court concluded that the agreement, although needing to be placed in
final form, was a valid contract despite any “buyer’s remorse.” The court declined to
find Dana in contempt and directed Williams’ counsel to prepare a final agreement that
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only reflected the terms of the mediated agreement. Williams’ counsel then sought
attorney fees as the prevailing party seeking to enforce the mediated agreement. Dana
argued that Williams had not prevailed and that Dana should receive compensation for
time and mental duress.
The court concluded that Williams had prevailed and awarded $2,770 in attorney
fees. Dana then appealed to this court and retained counsel. This court heard the case on
the basis of the briefing without conducting oral argument.
ANALYSIS
Dana challenges the award of attorney fees on the basis that the proposed draft
settlement order deviated from the mediation agreement, rendering the proposal a
counter-offer rather than a confirmation of the mediation agreement. While a clever
argument, it was not the argument actually made to the trial judge, and thus, is not
supported by the record.
Well-settled law governs the issue presented. Contract law principles govern
construction of settlement agreements. Morris v. Maks, 69 Wn. App. 865, 868, 850 P.2d
1357 (1993). The authority to enforce a settlement agreement is based in CR 2A and
RCW 2.44.010. Morris, 69 Wn. App. 868. The general rule is that a settlement
agreement must either be acknowledged in court or be in a signed writing. Id. at 868-
869. Even if the parties anticipate a later formalized agreement, evidence may establish a
binding preliminary agreement based on the extent the parties agreed to the subject
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matter, whether the present writing establishes the key terms, and if the parties anticipate
the agreement be binding before the formalized contract. Loewi v. Long, 76 Wash. 480,
484, 136 P. 673 (1913). If the party disputing the settlement agreement fails to
demonstrate that the parties did not intend to be bound by the agreement until the
formalized document was prepared, the court may enforce the settlement agreement.
Morris, 69 Wn. App. at 872.
Appellate courts review a trial court’s decision to enforce a settlement agreement
for abuse of discretion. Id. at 868. Discretion is abuse when it is exercised on untenable
grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482
P.2d 775 (1971).
Recognizing these standards, Dana now, quite properly, concedes that the original
mediated agreement was valid and challenges only the proposed final order. If he had
confined his trial court remarks to attempting to modify the proposal in line with such
sentiments, his argument would properly have focused on whether or not the proposed
draft materially altered the mediation agreement. However, it did not.
Instead, Dana repudiated the agreement when he received the draft judgment,
saying he “was done” with it, calling it a ruse. He threatened litigation and then dictated
the acceptable terms of the settlement of his proposed litigation. He characterized the
mediation agreement as “tentative” in his remarks to the court, arguing that all such
proposals were tentative and not binding. He made no argument that the court should
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enforce the unadorned agreement, nor did he ask the court to modify or correct the draft
proposal. Indeed, Dana fought the motion to enforce the mediated agreement. These
simply were not the actions of a party that was honoring its agreement.
The trial court did not err. While counsel has valiantly attempted to recast his
client’s arguments in a more favorable light, the record simply does not support the
appeal. The court properly awarded attorney fees to Williams for his efforts to enforce
the mediated agreement. For the same reason, we award Williams attorney fees on
appeal. Our commissioner will consider a timely request. RAP 18.1(d).
Affirmed.
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.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Siddoway, J.
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