City Of Kahlotus v. Sharon Lind

• Court: Court of Appeals of Washington
• Decided: August 11, 2014
• Docket: 71394-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF KAHLOTUS, NO. 71394-9-1

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION SHARON M. LIND,

Appellant. FILED: August 11, 2014

Per Curiam - In this dispute over a street in Kahlotus, Washington,1 Sharon Lind appeals the denial of her motion to vacate orders quieting title to the

street, enjoining her from blocking the street, and granting the City of Kahlotus CR 11 sanctions. We dismiss the appeal as untimely.

On December 15, 2010, and May 9, 2011, the superior court entered

summary judgment orders quieting title to the street in the City and enjoining Lind

from blocking it.

In 2011, Lind filed her first motion to vacate the summary judgment

orders. In January, 2012, the superior court denied the motion.

In December, 2012, Lind filed a second motion to vacate the summary

judgment orders. The motion also sought to vacate the order denying her first motion to vacate. On January 25, 2013, the superior court denied Lind's motion.

This appeal was transferred to this court by order from Division Three. NO. 71394-9-1/2

That same day, the court granted the City's motion for $1,197.20 in attorney fees

under CR 11.

On February 4, 2013, Lind timely filed a motion for reconsideration of the

order denying her second motion to vacate. On February 5, 2013, the trial court

denied the motion.

On March 14, 2013, the court entered an order amending the January 25,

2013 order awarding attorney's fees under CR 11. The amended order simply

added a judgment summary.

On March 25, 2013, more than 30 days after entry of any of the decisions

except the amended order on CR 11 sanctions, Lind filed a notice of appeal

purporting to appeal all of the court's 2013 orders.

DECISION

A party may appeal a final judgment, RAP 2.2(a)(1), an order denying a

motion to vacate a final judgment, RAP 2.2(a)(10), or an order granting a motion

for attorney fees. See RAP 2.2(a)(1); RAP 2.2(a)(3). A party seeking review of

such decisions must file a notice of appeal within 30 days of the entry of the

decision in the trial court.2 An appeal from a "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 [RAP] 2.2(a) unless a timely notice of appeal

RAP 5.2(a). NO. 71394-9-1/3

has been filed to seek review of the previous decision."3 For example, in

Bushonq v. Wilsbach, 151 Wn. App. 373, 377, 213 P.3d 42 (2009), this court

held that a party appealing a post-judgment decision setting the amount of

attorney fees was precluded from challenging the legal basis for the fee award

because the party failed to timely appeal the earlier decision establishing that

basis.

Under these authorities, Lind's notice of appeal was untimely as to all of

the orders appealed except the order amending the order awarding attorney

fees. The appeal of the latter order does not permit review of the prior,

appealable decisions of the superior court, including the orders under CR 11 and

CR 60.4 Thus, the challenged orders are not properly before this court.

In any case, Lind fails to demonstrate an abuse of discretion in the court's

decisions under CR 60 and CR 11.5 Pro se litigants are held to the same

standard as attorneys and must comply with all procedural rules on appeal.6

Failure to do so may preclude appellate review.7 An appellant must provide

"argument in support of the issues presented for review, together with citations to

3 RAP 2.4(b); Carrara. LLC v. Ron & E Enterprises. Inc.. 137 Wn. App. 822, 825-26, 155 P.3d 161 (2007). 4 Lind does not claim that the original CR 11 order or the CR 60 orders were not appealable. 5 This court reviews a trial court's denial of a CR 60(b) motion to vacate for abuse of discretion. Haley v. Highland. 142 Wn.2d 135, 156, 12 P.3d 119 (2000). 6 In re Marriage of Olson. 69 Wn. App. 621, 626, 850 P.2d 527 (1993). 7 State v. Marintorres. 93 Wn. App. 442, 452, 969 P.2d 501 (1999). 3 NO. 71394-9-1/4

legal authority and references to relevant parts of the record."8 Failure to support

assignments of error with legal arguments precludes review.9 Arguments that

are not supported by references to the record, meaningful analysis, or citation to

pertinent authority need not be considered.10 Unchallenged findings of fact are

verities on appeal.11

Here, in denying Lind's motion to vacate, the court stated in part that the

motion "was not made within a reasonable time or within one year as required by

CR 60(b)(3) for newly discovered evidence." Lind's December, 2012 motion to

vacate was untimely as to the 2010 and 2011 motions for summary judgment.

And even assuming the motion to vacate was timely as to the January, 2012

order denying her earlier motion to vacate, she fails to provide any meaningful

analysis of CR 60(b)(3)12 and its application to that order.

Lind misperceives the nature of the due diligence requirement under CR

60(b)(3) and failed to satisfy that requirement below. In her opening brief, she

states in part that "Due Diligence is primarily a contract term for people who

initiate, or respond to, the request for a contract. It should not be used the same

way when someone is defending themselves from other people's actions." App.

8 RAP 10.3(a)(6). 9 Howell v. Spokane & Inland Empire Blood Bank. 117Wn.2d619, 624, 818 P.2d 1056 (1991). 10 Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Elliott. 114Wn.2d6, 15, 785 P.2d 440 (1990); RAP 10.3(a). 11 Fuller v. Emp't Sec. Dep't. 52 Wn. App. 603, 605, 762 P.2d 367 (1988). 4 NO. 71394-9-1/5

Br. at 16. But as the party moving to vacate on the ground of newly discovered

evidence, it was her burden to establish that there was "[njewly discovered

evidence which by due diligence could not have been discovered in time to move

for a new trial under rule 59(b)."13 This required more than merely alleging

diligence; it required Lind to set forth facts explaining why the evidence was not

available prior to the summary judgment hearings and the previous motion to

vacate.14 Lind did not satisfy this standard below. On appeal, she claims that,

prior to the summary judgment hearings, she made "numerous public records

requests]" for certain correspondence she eventually discovered in 2012.15 But

she cites nothing in the record supporting this claim.

Lind's challenge to the attorney fee awards under CR 11 is also unavailing

as it fails to address the court's CR 11 findings and is unsupported by authority or

meaningful analysis. The City requests attorney fees and costs on appeal under

RAP 14.2, RCW 4.84.185, and CR 11.16 We grant reasonable costs and fees

subject to the City's compliance with RAP 14.3 and 18.1.

12 Lind's motion to vacate only discussed CR 60(b)(3). 13 (Emphasis added) Jones v. City of Seattle. 179 Wn.2d 322, 360, 314 P.3d 380, 399 (2013). 14 See Vance v. Thurston County Comm'rs. 117 Wn. App. 660, 671, 71 P.3d 680 (2003). 15 Appellant's brief at 38. 16 An award of attorney fees on appeal is authorized by CR 11 where sanctions have been imposed in the trial court pursuant to that rule, as responding to the appeal "could reasonably be viewed as a cost of collecting the judgment" entered by the trial court. Skilcraft Fiberglass. Inc. v. Boeing Co.. 72 Wn.App. 40, 48, 863 P.2d 573 (1993), abrogated on other grounds bv Morin v. Burris. 160 Wn.2d 745, 161 P.3d 956 (2007). Attorney fees may also be awarded for a frivolous appeal under RAP 18.9. 5 NO. 71394-9-1/6

The appeal is dismissed.

For the court:

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