IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALASKA CASCADE FINANCIAL SERVICES, INC., DIVISION ONE
Respondent, No. 84350-8-I
v. UNPUBLISHED OPINION
GRATING FABRICATORS, INC., a Washington Corporation that was administratively dissolved on September 3, 2019 and reinstated on December 20, 2020; and RHONDA R. ABERNATHY and LARRY W. ABERNATHY, husband and wife,
Appellants.
DWYER, J. — Rhonda and Larry Abernathy appeal from an order denying
their renewed motion for attorney fees. The Abernathys and additional appellant
Grating Fabricators, Inc. also appeal from the trial court’s denials of their motions
to dismiss under either CR 12(b)(6) or CR 41(b). As the Abernathys’ renewed
motion for attorney fees was correctly denied as procedurally improper and the
appeal is untimely as to all other issues, we affirm the judgment.
I
Grating Fabricators was formed by Rhonda and Larry Abernathy1 and
incorporated in 1993. The Secretary of State’s office administratively dissolved
1 We use the Abernathys’ first names when referring to them in their individual capacity.
No disrespect is intended. No. 84350-8-I/2
Grating Fabricators on September 3, 2019 due to a failure to file a renewal
notice. The Abernathys claimed that they were unaware of the dissolution until
the following year.
On December 3, 2019, Grating Fabricators submitted an application for
commercial credit to Seaport Steel. Rhonda signed the application as president
of Grating Fabricators. Grating Fabricators was reinstated as a corporation on
December 8, 2020.
On October 14, 2020, Alaska Cascade Financial Services (Alaska
Cascade), successor in interest to Seaport Steel, filed a complaint against the
Abernathys “d/b/a Grating Fabricators.” Grating Fabricators was later added as a
separate defendant due to its corporate reinstatement.
The Abernathys filed a CR 12(b)(6) motion to dismiss all claims against
them in their individual capacity. On March 19, 2021, the trial court denied the
motion on the basis that Alaska Cascade could hypothetically prove that the
Abernathys knew of the corporate dissolution and could thus be individually
liable.
On October 4, 2021, the defendants collectively filed a motion to dismiss
pursuant to CR 41(b) claiming a failure to prosecute and a failure to comply with
the scheduling order. The trial court denied the motion on October 15, 2021 and
continued the trial date.
On December 16, 2021, the Abernathys filed a motion for partial summary
judgment requesting that the trial court dismiss them from the suit and award
them attorney fees. On January 18, 2022, the trial court granted the motion for
2 No. 84350-8-I/3
summary judgment, dismissing all claims against the Abernathys with prejudice.
However, the court denied the request for attorney fees, as the Abernathys had
not identified a basis for a fee award. The Abernathys subsequently filed a
motion for attorney fees, identifying both the contract with Seaport Steel and
RCW 4.84.250 as a basis for an award of fees. On February 4, 2022, the trial
court denied the motion, ruling that the Abernathys were not a party to the
contract and had not pleaded any damages. The Abernathys filed a motion for
reconsideration.
The matter was reassigned from Judge Schubert to Judge Vargas on
March 28, 2022. The Abernathys submitted a second motion for reconsideration,
no order having been entered on their previous motion. Grating Fabricators2 also
filed a second motion to dismiss pursuant to CR 41(b), on the basis that Alaska
Cascade had not complied with the case schedule. The trial court denied
Grating Fabricators’ motion to dismiss. The trial court also denied the
Abernathys’ motion for reconsideration, as the prior order had been entered by a
different judge.
The Abernathys then filed a renewed motion for attorney fees. A
stipulated judgment was entered against Grating Fabricators on June 29, 2022.
The trial court denied the Abernathys’ renewed motion for attorney fees on July
5, 2022. The Abernathys then filed the same motion and noted it to be heard by
2 The motion was titled as having been filed by all defendants; however, all claims
against the Abernathys had already been dismissed at the time of filing.
3 No. 84350-8-I/4
the chief civil judge. This motion was denied as not having been noted to the
judge assigned to the case.
The appellants filed their notice of appeal on August 3, 2022.
II
Alaska Cascade contends that the only orders this court may review on
appeal are the July 2022 orders denying the Abernathys’ renewed motions for
attorney fees. This is so, Alaska Cascade asserts, because the appeal is
untimely as to all other orders. We agree.
Pursuant to RAP 5.2(a), “a notice of appeal must be filed in the trial court
within . . . 30 days after the entry of the decision of the trial court that the party
filing the notice wants reviewed.” RAP 2.4(b) provides, in relevant part:
A timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.
Thus, “[a]n appeal from an award of attorney fees does not bring up for review
the merits of the underlying . . . decision.” Bushong v. Wilsbach, 151 Wn. App.
373, 376, 213 P.3d 42 (2009).
In this matter, the trial court entered two orders that were appealable
pursuant to RAP 2.2(a): the order granting summary judgment dismissing all
claims against the Abernathys and the stipulated judgment against Grating
Fabricators. The former order was entered on January 18, 2022; the latter was
entered on June 29, 2022. The appellants did not file a notice of appeal until
August 3, 2022. As the notice of appeal was not filed within 30 days of either
4 No. 84350-8-I/5
final order, the appellants’ appeal does not bring the merits of the underlying
action up for review in this court. Accordingly, we dismiss the appellants’ appeal
as it pertains to the denials of their various motions to dismiss.
III
The Abernathys additionally assert that the trial court erred by denying
their request for an award of attorney fees. This is so, they contend, because
they were entitled to an award of fees both pursuant to RCW 4.84.250 and
pursuant to the terms of the contract between Grating Fabricators and Seaport
Steel. However, the only timely appealed order denying the Abernathys’ request
for fees was the one entered on July 5, 2022.3 That order denied the
Abernathys’ renewed motion for attorney fees as being procedurally improper.
We agree that the motion was indeed procedurally improper pursuant to the local
court rules and accordingly hold that the trial court did not err.
As we have previously held,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALASKA CASCADE FINANCIAL SERVICES, INC., DIVISION ONE
Respondent, No. 84350-8-I
v. UNPUBLISHED OPINION
GRATING FABRICATORS, INC., a Washington Corporation that was administratively dissolved on September 3, 2019 and reinstated on December 20, 2020; and RHONDA R. ABERNATHY and LARRY W. ABERNATHY, husband and wife,
Appellants.
DWYER, J. — Rhonda and Larry Abernathy appeal from an order denying
their renewed motion for attorney fees. The Abernathys and additional appellant
Grating Fabricators, Inc. also appeal from the trial court’s denials of their motions
to dismiss under either CR 12(b)(6) or CR 41(b). As the Abernathys’ renewed
motion for attorney fees was correctly denied as procedurally improper and the
appeal is untimely as to all other issues, we affirm the judgment.
I
Grating Fabricators was formed by Rhonda and Larry Abernathy1 and
incorporated in 1993. The Secretary of State’s office administratively dissolved
1 We use the Abernathys’ first names when referring to them in their individual capacity.
No disrespect is intended. No. 84350-8-I/2
Grating Fabricators on September 3, 2019 due to a failure to file a renewal
notice. The Abernathys claimed that they were unaware of the dissolution until
the following year.
On December 3, 2019, Grating Fabricators submitted an application for
commercial credit to Seaport Steel. Rhonda signed the application as president
of Grating Fabricators. Grating Fabricators was reinstated as a corporation on
December 8, 2020.
On October 14, 2020, Alaska Cascade Financial Services (Alaska
Cascade), successor in interest to Seaport Steel, filed a complaint against the
Abernathys “d/b/a Grating Fabricators.” Grating Fabricators was later added as a
separate defendant due to its corporate reinstatement.
The Abernathys filed a CR 12(b)(6) motion to dismiss all claims against
them in their individual capacity. On March 19, 2021, the trial court denied the
motion on the basis that Alaska Cascade could hypothetically prove that the
Abernathys knew of the corporate dissolution and could thus be individually
liable.
On October 4, 2021, the defendants collectively filed a motion to dismiss
pursuant to CR 41(b) claiming a failure to prosecute and a failure to comply with
the scheduling order. The trial court denied the motion on October 15, 2021 and
continued the trial date.
On December 16, 2021, the Abernathys filed a motion for partial summary
judgment requesting that the trial court dismiss them from the suit and award
them attorney fees. On January 18, 2022, the trial court granted the motion for
2 No. 84350-8-I/3
summary judgment, dismissing all claims against the Abernathys with prejudice.
However, the court denied the request for attorney fees, as the Abernathys had
not identified a basis for a fee award. The Abernathys subsequently filed a
motion for attorney fees, identifying both the contract with Seaport Steel and
RCW 4.84.250 as a basis for an award of fees. On February 4, 2022, the trial
court denied the motion, ruling that the Abernathys were not a party to the
contract and had not pleaded any damages. The Abernathys filed a motion for
reconsideration.
The matter was reassigned from Judge Schubert to Judge Vargas on
March 28, 2022. The Abernathys submitted a second motion for reconsideration,
no order having been entered on their previous motion. Grating Fabricators2 also
filed a second motion to dismiss pursuant to CR 41(b), on the basis that Alaska
Cascade had not complied with the case schedule. The trial court denied
Grating Fabricators’ motion to dismiss. The trial court also denied the
Abernathys’ motion for reconsideration, as the prior order had been entered by a
different judge.
The Abernathys then filed a renewed motion for attorney fees. A
stipulated judgment was entered against Grating Fabricators on June 29, 2022.
The trial court denied the Abernathys’ renewed motion for attorney fees on July
5, 2022. The Abernathys then filed the same motion and noted it to be heard by
2 The motion was titled as having been filed by all defendants; however, all claims
against the Abernathys had already been dismissed at the time of filing.
3 No. 84350-8-I/4
the chief civil judge. This motion was denied as not having been noted to the
judge assigned to the case.
The appellants filed their notice of appeal on August 3, 2022.
II
Alaska Cascade contends that the only orders this court may review on
appeal are the July 2022 orders denying the Abernathys’ renewed motions for
attorney fees. This is so, Alaska Cascade asserts, because the appeal is
untimely as to all other orders. We agree.
Pursuant to RAP 5.2(a), “a notice of appeal must be filed in the trial court
within . . . 30 days after the entry of the decision of the trial court that the party
filing the notice wants reviewed.” RAP 2.4(b) provides, in relevant part:
A timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.
Thus, “[a]n appeal from an award of attorney fees does not bring up for review
the merits of the underlying . . . decision.” Bushong v. Wilsbach, 151 Wn. App.
373, 376, 213 P.3d 42 (2009).
In this matter, the trial court entered two orders that were appealable
pursuant to RAP 2.2(a): the order granting summary judgment dismissing all
claims against the Abernathys and the stipulated judgment against Grating
Fabricators. The former order was entered on January 18, 2022; the latter was
entered on June 29, 2022. The appellants did not file a notice of appeal until
August 3, 2022. As the notice of appeal was not filed within 30 days of either
4 No. 84350-8-I/5
final order, the appellants’ appeal does not bring the merits of the underlying
action up for review in this court. Accordingly, we dismiss the appellants’ appeal
as it pertains to the denials of their various motions to dismiss.
III
The Abernathys additionally assert that the trial court erred by denying
their request for an award of attorney fees. This is so, they contend, because
they were entitled to an award of fees both pursuant to RCW 4.84.250 and
pursuant to the terms of the contract between Grating Fabricators and Seaport
Steel. However, the only timely appealed order denying the Abernathys’ request
for fees was the one entered on July 5, 2022.3 That order denied the
Abernathys’ renewed motion for attorney fees as being procedurally improper.
We agree that the motion was indeed procedurally improper pursuant to the local
court rules and accordingly hold that the trial court did not err.
As we have previously held,
[w]here the issue is the interpretation of a local rule by the trial court, that court is the best exponent of its own rules, and their use will not be disturbed by an appellate court unless the construction placed thereon is clearly wrong or an injustice has been done.
Snyder v. State, 19 Wn. App. 631, 637, 577 P.2d 160 (1978). Judge Vargas first
denied the Abernathys’ renewed request for attorney fees as not having been
properly brought pursuant to King County Local Civil Rule (KCLCR) 7(7).
KCLCR 7(7) states:
3 The order entered on August 1, 2022 by the chief civil judge was not designated in the
notice of appeal. Time has long passed for an appeal to be taken from that order.
5 No. 84350-8-I/6
No party shall remake the same motion to a different judge or commissioner without showing by declaration the motion previously made, when and to which judge or commissioner, what the order or decision was, and any new facts or other circumstances that would justify seeking a different ruling from another judge or commissioner.
In the July 5, 2022 order, Judge Vargas determined that the Abernathys’
motion did not comply with this rule, as the Abernathys did not submit anything
that demonstrated “any new facts or other circumstances that would justify this
Court to enter different rulings from those entered by Judge Schubert on January
18, 2022 and February 4, 2022.”
Based on the record, we cannot say that the trial court improperly
construed the local rule or that any injustice has occurred. The Abernathys had a
remedy in filing a timely appeal of the orders entered on January 18, 2022 and
February 4, 2022. Their decision not to do so does not amount to an injustice.
We thus hold that the trial court did not err by denying the Abernathys’ motion as
being procedurally improper.
Affirmed.
WE CONCUR: