FILED MAY 30, 2024 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MARK HANNA and JENNIFER ) No. 39077-2-III HANNA, husband and wife, ) ) Respondents, ) ) v. ) UNPUBLISHED OPINION ) ALLAN MARGITAN and GINA ) MARGITAN, husband and wife, ) ) Appellants. )
LAWRENCE-BERREY, C.J. — Allan and Gina Margitan appeal the trial court’s
enforcement of their settlement agreement. We affirm.
FACTS
Mark and Jennifer Hanna and Allan and Gina Margitan are neighbors in Nine Mile
Falls. The Margitans own two parcels of land, one on either side of the Hannas’ parcel.
The Margitans desire to use one of the parcels, parcel 3, as a rental property. According
to Mr. Margitan, the water line servicing parcel 3 was leaking and otherwise
noncompliant with plat requirements, and thus needed to be replaced. The Margitans
have a road and utility easement across the Hannas’ property. No. 39077-2-III Hanna v. Margitan
On July 9, 2019, Mr. Margitan drove an excavator onto the Hannas’ land and
began digging a hole in the easement. Mr. Margitan later claimed he was digging “to
determine if there was enough spacing” between the Hannas’ abandoned septic drain
field and his leaking water line “to install a new drinking water line and data cable.”
Clerk’s Papers (CP) at 54. While digging, Mr. Margitan struck and broke an
underground geothermal pipe, a “critical component of the Hannas’ . . . heating/cooling
system.” Id. at 4. Unable to control the temperature of their home, the Hannas hired
contractors to fix the broken geothermal line. When the contractors arrived, Mr.
Margitan confronted them, threatening to sue if they damaged his utilities. Apparently
perturbed by Mr. Margitan’s vehement threats of litigation, the contractors refused to
repair the Hannas’ pipe.
The Hannas subsequently sued the Margitans (hereinafter the “2019 action”),
asking the superior court to enjoin the Margitans from further interfering with the
Hannas’ repair of their geothermal line. The Hannas’ complaint also sought damages for
nuisance and trespass.
The Margitans, represented by counsel, answered the Hannas’ complaint in the
2019 action by denying certain allegations and asserting affirmative defenses. The
Margitans also brought several counterclaims. First, they alleged the Hannas had
“interfere[d] with . . . their easement,” seeking both damages and injunctive relief.
2 No. 39077-2-III Hanna v. Margitan
CP at 26, 224. Specifically, the Margitans contended the Hannas’ geothermal line and
abandoned septic drain field were “encroachments” on the easement that needed to be
removed. Id. at 26, 224.
Next, the Margitans brought a nuisance counterclaim, primarily claiming that the
proximity of the Hannas’ geothermal line to the Hannas’ new septic system created
“noxious and foul odors.” 1 Id. at 27, 225. The Margitans also contended the Hannas had
created a nuisance through the filing of “serial legal actions.” Id. at 227. Finally, the
Margitans alleged the Hannas intentionally damaged the easement by grading and
plowing rock toppings that the Margitans had placed on the road. The Hannas answered
the Margitans’ counterclaims and asserted affirmative defenses of their own.
The superior court granted the Hannas’ motion for a preliminary injunction,
enjoining the Margitans from further interfering with the Hannas’ repair of their
geothermal line through threats to sue the Hannas’ contractors.2 The court required the
Hannas to post a $2,500 bond with the court clerk, protecting the Margitans in the event
the Hannas’ contractors damaged the Margitans’ utilities.
1 The nuisance counterclaim also encompassed the Margitans’ allegations that the Hannas “allowed their dogs to aggressively chase [the Margitans]” and “place[d] their dog’s feces on the easement.” CP at 227. 2 At the preliminary injunction hearing, the superior court corrected a false assertion from the Margitans’ counsel that the Hannas were suing to prevent the Margitans from installing a replacement water line.
3 No. 39077-2-III Hanna v. Margitan
Injunction in place, the Hannas’ contractors excavated and repaired the broken
geothermal line. “Given that the repair work authorized by the . . . injunction was
performed . . . without incident,” the Hannas requested a release of the $2,500 bond back
to them. CP at 130. The Margitans opposed the release of the bond amount, baldly
asserting that the mere presence of the Hannas’ geothermal line interfered with their use
of the easement. The superior court granted the Hannas’ motion to release the bond, and,
on the Hannas’ motion, imposed CR 11 sanctions on Mr. Margitan.
The repairs to their geothermal system complete, the Hannas stipulated to the
dismissal of their affirmative claims in the 2019 action, leaving only the Margitans’
counterclaims remaining. The Hannas moved for partial summary judgment on the
counterclaims. The Hannas sought dismissal of the Margitans’ claims for interference
with the easement and nuisance insofar as they were based on the mere presence of the
Hannas’ abandoned drain field and geothermal line within the easement. The superior
court granted the motion, agreeing with the Hannas that Mr. Margitan’s theory
undergirding these claims was barred by res judicata and collateral estoppel.3 The court
3 The superior court reasoned that we had already rejected the Margitans’ legal theory that the mere presence of the Hannas’ utilities within the easement impaired the Margitans’ ability to use the easement. See Margitan v. Spokane Reg’l Health Dist., No. 34746-0-III, slip op. at 10-12 (Wash. Ct. App. Jul. 24, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/347460_unp.pdf.
4 No. 39077-2-III Hanna v. Margitan
also summarily dismissed the Margitans’ counterclaim for “serial litigation,” and
sanctioned the Margitans, calling it a “baseless claim.” CP at 1106.
Parallel to the 2019 action, Mr. Margitan sued the Hannas and their counsel4 in a
separate action in November 2021 (hereinafter the “2021 action”). Contrary to the 2019
action where the Margitans retained counsel, Mr. Margitan signed the operative
complaint in the 2021 action pro se. In the 2021 action, Mr. Margitan alleged the Hannas
inflicted emotional distress on him—both intentionally and negligently—and invaded his
privacy. Among Mr. Margitan’s litany of grievances alleged in the 2021 complaint, he
included purportedly tortious conduct by the Hannas’ adult “daughter” and “son,” who
were not named defendants in the suit.
On April 27, 2022, with a trial date mere days away, the Hannas and Margitans
agreed to a settlement after hours of negotiations. A written agreement executed that day
stated that both the 2019 action and the 2021 action had “respectively settled under the
following terms and conditions.” CP at 1228-29.
4 In the 2021 action, the superior court dismissed the Hannas’ counsel, the law firm Paine Hamblen LLP, as a defendant, an order independently appealed by Mr. Margitan and not relevant here.
5 No. 39077-2-III Hanna v. Margitan
Under the settlement, the parties agreed that the Hannas would instruct their
insurer, PEMCO, to pay $85,000.5 Of this sum, $50,000 would be paid directly to the
Margitans, while $35,000 would be placed in their counsel’s trust account to be held
there, until the Hannas (1) hired a contractor to dig a trench across their land for
installation of a replacement water line servicing the Margitans’ rental home, and
(2) decommissioned their geothermal system.6 Should the costs of excavation and
replacing the heating/cooling system be less than $35,000, the remainder would be
released to the Margitans. The Hannas also agreed to destroy copies of all records
obtained through earlier subpoenas that Mr. Margitan had opposed.
“In exchange” for this consideration, in paragraph 5 of the settlement agreement,
the Margitans agreed to “dismiss the [2019 action and 2021 action] with prejudice and
without costs and . . . execute a Release of All Claims arising out of the incidents alleged
in said Complaints.” CP at 1228 (emphasis added). The parties each promised the terms
of the settlement would remain confidential. The settlement agreement was signed by the
Hannas, the Margitans, and their respective attorneys.
5 The settlement was expressly conditioned on the acceptance of this demand by PEMCO, who agreed to it the following day. 6 Recall that, according to the Margitans’ theory, the geothermal system and its proximity to the Hannas’ septic system caused the noxious odors underlying the Margitans’ primary nuisance claim. The Hannas’ agreement to abandon this type of heating system thus obviated the Margitans’ claim of odors.
6 No. 39077-2-III Hanna v. Margitan
The parties presented their settlement agreement to the superior court the next day.
The court asked the attorneys to explain “the general nature of” the agreement.
Rep. of Proc. (RP) (Apr. 28, 2022) at 5. The Hannas’ counsel summarized the agreement
as follows:
[T]he concept is that funds that are paid will be utilized by Hanna to replace his heating system and also some funds to dig the water line that was in dispute. . . . [T]here’ll also be some compensation . . . for the Margitans . . . in addition to that. Any funds that aren’t expended by the Hannas to replace their heating system or do the excavation will also revert back to Mr. Margitan. .... There’s also a provision to make sure that we . . . destroy or return the confidential records and materials that Mr. Margitan was concerned about. . . . Greg [the Margitans’ attorney], if you want to throw something more in. . . . [O]f course it results in a release of all claims and a dismissal with prejudice of those two actions.
Id. at 6-7 (emphasis added). The Margitans’ attorney immediately replied: “Judge, I
think that accurately describes it.” Id. at 7 (emphasis added). The judge thanked both
sets of counsel and instructed them to “get [her] a[n] order of dismissal once you’ve got
all this ironed out.” Id.
Over the next several weeks, the parties’ attorneys communicated about how to
word the release of claims, exchanging numerous drafts via e-mail. A point of contention
in these negotiations was the Margitans’ belief that the settlement required the Hannas to
do more than dig a trench for the installation of a new water line. The Margitans wanted
7 No. 39077-2-III Hanna v. Margitan
the Hannas to be required to excavate until they located another, abandoned water line,
which the Margitans wanted to use as a conduit for an Internet connection. The Hannas
made clear they had no opposition to the Margitans’ installation of an Internet line in the
easement, but they pointed to the settlement agreement itself, which contemplated the
Hannas would dig a single trench adjacent to the existing water line.
In the meantime, the Hannas located contractors to perform the promised work,
received a check for $85,000 from PEMCO, and stood by, ready to tender the settlement
funds to the Margitans’ counsel once a release was executed. Nevertheless, the failure of
the Hannas to swiftly perform—notwithstanding that no release of claims had been
executed—apparently enraged Mr. Margitan, whose attorney wrote to the Hannas’
counsel on May 31, 2022, declaring that, “[O]ur clients [are] on the verge of renouncing
the entire agreement.” CP at 1297 (emphasis added).
Then, on June 8, 2022, without informing either the Hannas or his own attorneys,
Mr. Margitan personally wrote a letter to the chief executive officer (CEO) of PEMCO,
the Hannas’ insurer. In his letter, Mr. Margitan announced he was “withdraw[ing] from
the agreed settlement.” CP at 1568. The Hannas became aware of the letter three days
later and spoke to the Margitans’ counsel, who were previously unaware of it.
On June 13, 2022, prompted by Mr. Margitan’s stated intention to evade the
settlement agreement, the Hannas’ counsel e-mailed the superior court judge’s
8 No. 39077-2-III Hanna v. Margitan
chambers—with the Margitans’ counsel copied on the e-mail—stating their intention to
“bring a motion to enforce [the] settlement agreement.” CP at 1219. Given that the
judge’s retirement from the bench was less than three weeks away, the Hannas’ attorney
asked if the judge had “availability to hear a motion (perhaps on shortened time).” Id.
Without a hearing date, on June 16, the Hannas served a motion to enforce the
settlement agreement on the Margitans’ counsel by personal delivery and e-mail.7 The
same day, the Hannas filed and served a motion requesting that they be allowed to file the
enforcement motion and related documents under seal, given the settlement agreement’s
confidentiality clause. The Margitans opposed the motion to seal and filed a copy of the
settlement agreement themselves. Given the Margitans’ apparent waiver of
confidentiality, the Hannas did not press the issue, and no documents in this case were
ever sealed.
On June 17, the superior court judge’s judicial assistant e-mailed the Hannas’
counsel—copying the Margitans’ attorneys—informing them that the judge could hear a
motion on shortened time on June 24. On June 21, the Hannas formally moved to
shorten time, asking the court to hear their motion to enforce the settlement agreement on
June 24.
7 It appears the Hannas filed the motion the same day, but it was not stamped as “received” by the superior court until June 24—the day of the eventual hearing— ostensibly due to their outstanding request to file the motion under seal.
9 No. 39077-2-III Hanna v. Margitan
On June 22, the Margitans filed a written response, outlining their opposition to
the Hannas’ motion to enforce the settlement agreement. The Margitans offered several
arguments against enforcement, including allegations that the agreement “fails for
indefiniteness” and that the Hannas were in “material breach.” CP at 1202-03. The
written objection also claimed that Mr. Margitan was out of the country, in Canada, and
“[i]t has been impossible to get his input.” 8 Id. at 1204 (emphasis added). The Margitans
also opposed the motion to shorten time, through counsel, in written filings.
The superior court held a hearing, as scheduled, on June 24. At the outset, the
Hannas’ counsel stated:
The only reason we requested this motion to be heard on shortened time is because your Honor’s retiring next week and will not be able to further adjudicate this case. . . . . . . [I]t makes sense that this matter not be heard by another judge without the knowledge of the disputes between these parties and the dynamics of the case. . . . [T]o serve judicial economy, . . . to have this pass over to another judicial officer just doesn’t make sense.
RP (June 24, 2022) at 10-11. The Hannas’ counsel added that there was no surprise
or prejudice because the Margitans had more than one week of actual notice, “ha[d]
indeed filed written responses,” and provided oral argument before a commissioner of
8 Contrary to their counsel’s claim that it was “impossible” to get in touch with the Margitans, Mr. Margitan personally delivered a remote oral argument before our court’s commissioner in another matter the very next day. See Wash. Ct. of Appeals Comm’r oral argument, Margitan v. Hanna, No. 38929-4-III (June 23, 2022), at 28 min., 45 sec. through 34 min., 48 sec. (on file with court).
10 No. 39077-2-III Hanna v. Margitan
our court the previous day. Id. at 12. The Margitans’ attorney responded by asserting
that he had spoken to Mr. Margitan “yesterday afternoon, and . . . the call kept dropping.”
Id. at 14.
The superior court judge granted the motion to shorten time, explaining that it was
her last day on the bench and reasoning that she was uniquely well-situated to rule on the
motion to enforce the settlement because she had spent years familiarizing herself with
the “complex chain of events” that preceded it. Id. at 19. The judge acknowledged
“there’s difficulty reaching Mr. Margitan” but pointed out that he had remotely
participated in a hearing before the court the previous day. Id. at 19-20. Therefore, the
judge concluded that the difficulties in communication clearly “could . . . have been
overcome.” Id. at 20.
Turning to the motion to enforce the settlement agreement, the Hannas’ attorney
commended opposing counsel for “admirabl[y]” trying to represent a “rogue client[ ].”
Id. at 33. But the Hannas explained they were ready to perform under the settlement
agreement as written and were simply waiting for the Margitans to agree to a release of
all claims as promised.
The Margitans’ counsel then complained, “We’re being asked to agree to a lot of
things that aren’t part of this negotiated settlement agreement . . . .” Id. at 28. The court
immediately retorted, “Like what?” Id. Counsel responded that the Hannas had drafted
11 No. 39077-2-III Hanna v. Margitan
recitals for the release of claims that the Margitans saw as inaccurate and one-sided. The
judge pointed out that the offending recitals had been excised from the latest drafts, and
the Margitans’ attorney agreed.
The court then asked about Mr. Margitan’s attempt to require the Hannas to locate
his abandoned water line, inconsistent with the parties’ settlement. Counsel for the
Margitans responded, “No, . . . we’ve never pushed that. . . . [W]e made a suggestion
. . . . And [the Hannas] said, ‘No, we have no responsibility to . . . locate the water line.’
And . . . I looked, and they’re right; I can’t force them to locate it.” Id. at 29 (emphasis
added).
The court then asked the Margitans’ counsel point-blank: “What material terms
are missing?” Id. at 30. Counsel responded that the Hannas’ time for performance was
not contemplated in the written agreement. The court continued: “Is that something that
was bargained for?” Id. at 31. The Margitans’ attorney responded: “No, it really
wasn’t.” Id. (emphasis added). Counsel went on to concede that “[t]ypically when time
isn’t stated [in a contract], the time for performance is a reasonable time.” Id.
Nevertheless, counsel explained that “Mr. Margitan is very upset” because “we can’t
force Mr. Hanna to do it right away . . . .” Id. at 31-32. The Hannas’ counsel responded
that, contrary to the Margitans’ implication, “[B]oth sides want it done now.” Id. at 33.
12 No. 39077-2-III Hanna v. Margitan
The court began its oral ruling by noting the parties’ settlement agreement was
“signed by all the parties.” Id. at 35. The court went on:
I don’t know what Mr. Margitan’s motivations are here, but I don’t know that it takes a rocket scientist to read between the lines. . . . [Mr. Margitan is] a smart man. He entered into a bargain. He agreed and he signed on the dotted line that this was going to resolve the case. He has not moved forward with that agreement. He claims that the Hannas stalled the agreement, when actually it was the Margitans who stalled the agreement by making demands and adding conditions that were not part of the agreement. Time frame is not part of this agreement; at least it’s not handwritten into the agreement. But it appears to me that really no one wasted any time here. . . . [I]t’s ready to go at this point; the check [from PEMCO] has been ready for weeks now. And so I am going to grant the motion enforcing the settlement agreement, [and] order the Margitans to sign off on the [release].
Id. at 36-37.
After granting the motion to enforce the settlement agreement, the court ordered
the Margitans to sign release language. Under the court-ordered release, the Margitans
released all claims arising from incidents alleged in the 2019 and 2021 actions, with
specific language explaining that the Margitans would not be precluded from suing the
Hannas for nuisance again if new odors arose.
The Margitans’ counsel ended the hearing by asking a clarifying question about
whether the Margitans’ claims against “nonparties” would be released. Id. at 46.
Counsel conceded, “obviously PEMCO gets released,” but asked whether claims against
the Hannas’ adult children were also released. Id. The court directed the Margitans’
13 No. 39077-2-III Hanna v. Margitan
attorney to the language of the release: the Margitans would be required to release claims
“arising out of . . . acts and omissions by Hannas and certain Hanna family members, as
reflected in [the 2019 action and the 2021 action].” CP at 1348 Counsel for the
Margitans responded, “I agree, thank you.” RP (June 24, 2022) at 52 (emphasis added).
The Margitans moved for reconsideration of the orders shortening time and
enforcing the settlement agreement. Due to the superior court judge’s retirement, the
motion was reassigned to one of her bench mates. The second judge “declin[ed] to
consider” the motion, reasoning that if he were to “reconsider an order previously entered
by” another trial court judge, he would “effectively be acting in an appellate capacity.”
CP at 1532. He reasoned that the superior court “lacks such authority.” Id.
The Margitans appealed, seeking review of 14 trial court orders in this matter.
On the Hannas’ motion, a commissioner of our court entered an order limiting the
scope of appeal to the order enforcing the settlement agreement, reasoning that if we
affirmed the enforcement of the settlement, the other issues would be rendered moot.
See Comm’r’s Ruling, Hanna v. Margitan, No. 39077-2-III, at 6-7 (Wash. Ct. App.
Oct. 21, 2022). Both the Margitans and the Hannas moved to supplement the record.
Both motions were denied. See Comm’r’s Ruling, Hanna v. Margitan, No. 39077-2-III,
at 4-7 (Wash. Ct. App. Aug. 18, 2023); Notation Ruling from Tristen Worthen, Clerk of
Court, Hanna v. Margitan, No. 39077-2-III (Wash. Ct. App. Oct. 30, 2023).
14 No. 39077-2-III Hanna v. Margitan
ANALYSIS
The Margitans contend the trial court erred by (1) granting the Hannas’ motion to
enforce the parties’ settlement agreement and (2) hearing the motion on shortened time.
We reject the Margitans’ contentions and affirm.
As an initial matter, the Margitans cavalierly ask us to take judicial notice of the
trial records in prior cases we have decided involving the Hannas and the Margitans.
We reject the Margitans’ invitation to peruse the records in our prior cases because those
cases are “‘independent and separate judicial proceedings’” involving the same parties,
rather than proceedings ancillary to this one. See Spokane Rsch. & Def. Fund v. City of
Spokane, 155 Wn.2d 89, 98, 117 P.3d 1117 (2005) (quoting In re Adoption of B.T., 150
Wn.2d 409, 415, 78 P.3d 634 (2003)).
DID THE TRIAL COURT ERR IN GRANTING THE MOTION TO ENFORCE THE SETTLEMENT AGREEMENT?
A trial court’s ruling on a motion to enforce a settlement agreement is reviewed de
novo. See Lavigne v. Green, 106 Wn. App. 12, 16, 23 P.3d 515 (2001). As the moving
party, the Hannas carried the burden of proving there was “no genuine dispute” about
“the existence and material terms” of the parties’ agreement. Brinkerhoff v. Campbell,
99 Wn. App. 692, 696-97, 994 P.2d 911 (2000). To satisfy this burden, the Hannas
needed to show that the parties contemporaneously agreed “to the same bargain.”
15 No. 39077-2-III Hanna v. Margitan
Pac. Cascade Corp. v. Nimmer, 25 Wn. App. 552, 555-56, 608 P.2d 266 (1980). We
consider the record in “the light most favorable to” the Margitans and “determine
whether reasonable minds could reach but one conclusion.” Brinkerhoff, 99 Wn. App.
at 697.
Because settlement agreements are governed by the common law of contracts,
mutual assent is required. See Condon v. Condon, 177 Wn.2d 150, 162, 298 P.3d 86
(2013); Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 48, 470 P.3d 486 (2020). We
give the words in a contract their ordinary, reasonable meaning. Cronin v. Cent. Valley
Sch. Dist., 23 Wn. App. 2d 714, 755-56, 520 P.3d 999 (2022). The “subjective intent of
the parties is generally irrelevant if the intent can be determined from the actual words
used.” Brogan & Anensen, LLC v. Lamphiear, 165 Wn.2d 773, 776, 202 P.3d 960
(2009).
Here, the plain text of the settlement agreement reveals that an enforceable
agreement existed, Mr. Margitan’s later attempt to rescind it notwithstanding. The
Margitans attempt to concoct a factual dispute by claiming there are elements of the
court-ordered release that they did not agree to. They point to four supposed
discrepancies between the settlement and the release.
First, the Margitans complain that they never agreed to “forever” resolve all
claims arising out of the Hannas’ “acts” alleged in their 2019 and 2021 complaints.
16 No. 39077-2-III Hanna v. Margitan
CP at 1348-49. But in reality, the Margitans agreed to do precisely that. They signed the
settlement agreement, by which they agreed to “execute a Release of All Claims arising
out of the incidents alleged in said Complaints.” Id. at 1228 (emphasis added).
It is also not entirely clear to us what the Margitans intend by this argument.
If their worry is that the release “forever” forbids them from suing the Hannas for any
“acts,” then they can rest assured: that worry is ridiculous. Id. at 1348-49. The
settlement and the release simply require them to “forever” release claims stemming from
all “acts” alleged in the prior suits. Id. No reasonable reader of the release could
conclude it forbids the Margitans from ever suing the Hannas if the Hannas commit
tortious conduct in the future.
Conversely, it is possible the Margitans are claiming they merely bound
themselves to dismiss the lawsuits, not to release related claims. Such an interpretation
would mean that, after dismissing their suits, the Margitans could simply refile identical
complaints. If that is indeed the Margitans’ contention, not only does their strained
interpretation flout the plain language of paragraph 5 of the settlement, it would
impermissibly “render [their] contract obligations illusory.” Taylor v. Shigaki, 84 Wn.
App. 723, 730, 930 P.2d 340 (1997). The Hannas would not have agreed to settle with
the Margitans without assurance that the instant controversy was behind them.
17 No. 39077-2-III Hanna v. Margitan
Second, the Margitans contend they never agreed to release claims against the
Hannas’ adult children and insurer.9 As to the Hannas’ insurer, this complaint is waived
because the Margitans’ counsel affirmatively agreed the insurer should be released.
See RP (Jun. 24, 2022) at 46 (“[O]bviously PEMCO gets released . . . .”). And as to the
Hannas’ adult children, again, the plain text of the settlement agreement easily dispels the
Margitans’ argument. The Margitans agreed to “execute a Release of All Claims arising
out of the incidents alleged in said Complaints.” CP at 1228 (emphasis added). And
several of the “incidents alleged in” the Margitans’ 2021 complaint alleged tortious
conduct on the part of the Hannas’ “son” and “daughter.” By signing the settlement
agreement, the Margitans agreed to release any claims against the Hannas’ children,
because they agreed to “[r]elease . . . [a]ll” claims arising out of “incidents alleged in” the
2021 complaint. Id.
9 The Margitans also contend the court lacked “jurisdiction” to require they release claims against the Hannas’ adult children and insurer. The Margitans misunderstand the concept of jurisdiction, which is simply a court’s authority to decide cases involving certain persons and certain subject matter. See J.A. v. State, 120 Wn. App. 654, 657, 86 P.3d 202 (2004); Amy v. Kmart of Wash., LLC, 153 Wn. App. 846, 852, 223 P.3d 1247 (2009); Failla v. FixtureOne Corp., 181 Wn.2d 642, 649, 336 P.3d 1112 (2014). The trial court may not have had jurisdiction over the Hannas’ adult children or insurer, who were nonparties. But that is of no import because the trial court did not require those nonparties to do anything; rather, it required the Margitans to release their claims against those nonparties. And there is no serious dispute here that the superior court had jurisdiction over the Margitans.
18 No. 39077-2-III Hanna v. Margitan
Third, the Margitans contend the settlement agreement was missing a material
element because it did not contemplate a specific time by which the Hannas were
required to perform. This argument fails because “[w]here a contract is silent as to
duration or states time for performance in general and indefinite terms,” a “reasonable
time” is implied. Pepper & Tanner, Inc. v. KEDO, Inc., 13 Wn. App. 433, 435, 535 P.2d
857 (1975); see also Smith v. Smith, 4 Wn. App. 608, 612, 484 P.2d 409 (1971). And
here, the trial court asked the Margitans’ counsel, “Is [timing of performance] something
that was bargained for?” and counsel conceded: “No, it really wasn’t. . . . Typically
when time isn’t stated, the time for performance is a reasonable time.” RP (June 24,
2022) at 31 (emphasis added). Nevertheless, the Margitans’ counsel explained his client
was “very upset” because, under the settlement, “we can’t force Mr. Hanna to do it right
away.” Id. at 31-32. Needless to say, the mere fact that Mr. Margitan was unhappy,
after the fact, with the agreement he signed is not a basis for evading enforcement of the
agreement.10
10 The Margitans also contend the settlement was substantively unconscionable because it failed to definitely state the time for performance. A contract is substantively unconscionable only where it is so one-sided that it can be described as “‘monstrously harsh’” or “‘exceedingly calloused.’” Adler v. Fred Lind Manor, 153 Wn.2d 331, 344- 45, 103 P.3d 773 (2004) (quoting Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258 (1995)). Contracts that fail to specify a time for performance are commonplace and unremarkable, not atypically one-sided, let alone monstrous.
19 No. 39077-2-III Hanna v. Margitan
Fourth, the Margitans insist there was a dispute as to how much the Hannas were
required to excavate under the agreement. But the only supposed dispute here was
created by Mr. Margitan after he signed the agreement. Under the settlement agreement,
the parties agreed the Hannas would hire a contractor to dig a trench across their property
into which the Margitans could place a new waterline. Only after signing that agreement
did Mr. Margitan seek to newly require the Hannas to keep digging until they found the
Margitans’ old, abandoned waterline. But that was not the deal the parties agreed to.
Mr. Margitan’s “remorse or second thoughts” about the agreement he signed did not and
cannot create a genuine dispute of material fact. Lavigne, 106 Wn. App. at 19.
The Margitans fault the court for failing to hold an evidentiary hearing before
enforcing the settlement agreement. But such a hearing is only required if there is a
“genuine issue of material fact.” Brinkerhoff, 99 Wn. App. at 697. To defeat
enforcement of a settlement agreement, “the ‘purport’ of the agreement must be
disputed,” not just minutiae. Lavigne, 106 Wn. App. at 19 (quoting CR 2A). And as
explained above, there was no genuine dispute as to any of the settlement’s material
terms.
Contrary to the Margitans’ insistence on appeal, nor was the settlement agreement
a mere “agreement to agree.” Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d
171, 175, 94 P.3d 945 (2004) (explaining such agreements are unenforceable because
20 No. 39077-2-III Hanna v. Margitan
they require a further meeting of the minds). No further meeting of the minds as to
material terms was required. See Loewi v. Long, 76 Wash. 480, 484, 136 P. 673 (1913)
(holding a contract is enforceable where “the subject-matter is not in dispute, the terms
are agreed upon, and the intention of the parties plain,” even if the parties contemplated a
subsequent writing).
Under the settlement, the Hannas would pay money (through their insurer), dig a
trench, decommission their geothermal system, and destroy records, in exchange for a
release of all claims. Those material terms are sufficiently definite, notwithstanding that
the parties still needed to actually draft the comprehensive release, and notwithstanding
the lawyerly wrangling about the release’s precise language in the following weeks.
See Morris v. Maks, 69 Wn. App. 865, 872, 850 P.2d 1357 (1993) (holding that informal
letters exchanged by the parties’ attorneys created a binding settlement agreement,
notwithstanding that the parties also intended to subsequently draft a formal contract).
The Margitans’ next argument is that they were induced to sign the settlement by
misstatements made by the Hannas’ counsel amounting to fraud. See Wash. Fed. Sav. &
Loan Ass’n v. Alsager, 165 Wn. App. 10, 18, 266 P.3d 905 (2011) (noting a contract may
be rendered void if one party induced the other to enter into the contract through a
“misrepresentation” on which the other party “justifiably relied ” (boldface omitted)).
21 No. 39077-2-III Hanna v. Margitan
Specifically, the Margitans fault the Hannas’ counsel for telling them that the fastest way
to construct a new waterline through the Hannas’ lot would be to settle. We disagree.
Assuming the Hannas’ counsel made the purported comment, it would not
constitute fraud. Among other elements, a claim of fraud requires a misrepresentation of
existing fact. Adams v. King County, 164 Wn.2d 640, 662, 192 P.3d 891 (2008). “[A]
false promise does not constitute the representation of an existing fact.” Id.
Finally, the Margitans contend the superior court erred by failing to require
that the settlement agreement be read into the record in open court, citing CR 2A and
RCW 2.44.010. But the Margitans misread both the rule and the statute they cite.
CR 2A only requires an “agreement . . . between parties” to be “made and assented to in
open court on the record” if “the evidence” of the agreement is not “in writing.” Here,
the settlement agreement was reduced to a writing. And RCW 2.44.010 merely addresses
the “authority” of “[a]n attorney . . . [t]o bind his or her client.” See also In re Marriage
of Langham, 153 Wn.2d 553, 561, 106 P.3d 212 (2005); Smyth Worldwide Movers, Inc.
v. Whitney, 6 Wn. App. 176, 491 P.2d 1356 (1971). The statute has no applicability to
this case, where the Margitans personally bound themselves to the settlement agreement
by signing it.
22 No. 39077-2-III Hanna v. Margitan
DID THE TRIAL COURT ERR IN HEARING THE HANNAS’ MOTION ON SHORTENED TIME?
A civil litigant may seek to have a motion heard on less than the usually required
notice by filing a motion to shorten time. See 3A ELIZABETH A. TURNER, WASHINGTON
PRACTICE: RULES PRACTICE, at 185 (7th ed. 2021) (citing CR 6(d)). Here, the Margitans
contend the trial court erred by hearing the Hannas’ motion on shortened time. This
contention fails.
“A trial court has discretion when ruling on a motion to shorten time.” State ex
rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 236, 88 P.3d 375 (2004). We
review such discretionary decisions for abuse of discretion. See id. A trial court abuses
its discretion when its ruling is based on untenable grounds or reasons or is otherwise
manifestly unreasonable. See, e.g., Graser v. Olsen, 28 Wn. App. 2d 933, 940, 542 P.3d
1013 (2023). Furthermore, “[t]o prevail on an appeal challenging a trial court’s deviation
from normal time limits, the appellant must demonstrate it was prejudiced by the trial
court’s actions.” Zurich Servs. Corp. v. Gene Mace Constr., LLC, 26 Wn.
App. 2d 10, 28, 526 P.3d 46 (2023). To establish prejudice, the Margitans must show
(1) a lack of actual notice, (2) a lack of time to prepare for the motion, and (3) no
opportunity to submit case authority or provide countervailing oral argument. Id.
23 No. 39077-2-III Hanna v. Margitan
The Margitans’ challenge to the order shortening time fails for two independent
reasons. First, the trial court acted well within its discretion, and, second, the Margitans
cannot establish prejudice.
The Hannas’ reason for moving to shorten time was that the superior court judge
who had overseen the litigation for more than two years was rapidly nearing her
scheduled retirement from the bench. If the motion was calendared after her retirement, a
different judge would have been tasked with quickly familiarizing themself with the
convoluted, years-long history of the case, requiring herculean effort. Given her unique
familiarity with the dynamics of the case, no other superior court judge was as well
situated to decide the Hannas’ motion. She properly invoked this reasoning in granting
the motion to shorten time. On its face, this was a tenable reason for hearing the motion
on shortened time. See generally State v. Castillo-Lopez, 192 Wn. App. 741, 748, 370
P.3d 589 (2016) (“Trial courts have discretion to manage their docket . . . .”).
The only argument the Margitans can muster against the trial court’s rationale is
that “not a single case can be found where a judge leaving the bench was an appropriate
basis to shorten time.” Appellants Margitans’ Reply Br. at 25. As an initial matter, the
Margitans’ claim is not totally accurate. We have found at least one decision, albeit
unpublished, where we mentioned in passing that “an order shortening time . . . was
required because of [the trial judge’s] pending retirement.” In re Estate of Davila, noted
24 No. 39077-2-III Hanna v. Margitan
at 167 Wn. App. 1003, 2012 WL 927102, at *2 (emphasis added). Although
nonprecedential, see GR 14.1(a), Davila’s casual reference to an order shortening time
for this precise reason suggests we were unperturbed.
More importantly, the Margitans’ argument is logically flawed because they ask us
to infer a legal rule merely from the case law’s silence as to this precise situation. Just
because no published decision has ever approved a judge’s impending retirement as a
reason to shorten time does not mean that such reasoning is disapproved. See generally
Karahalios v. Def. Language Inst., 821 F.2d 1389, 1392 (9th Cir. 1987) (noting that
arguments from silence are “normally weak”); State v. Running Wolf, 2020 MT 24,
398 Mont. 403, 416, 457 P.3d 218 (noting that not every silence is meaningful).
Finally, even if the trial court abused its discretion, the Margitans cannot show
they were prejudiced by the order shortening time. First, the Margitans and their counsel
received actual notice of the motion. See Zurich Servs., 26 Wn. App. 2d at 28. Second,
the Margitans had plenty of time to prepare for the motion. See id. In their briefs, the
Margitans claim their attorneys had only two days to prepare a response to the Hannas’
motions. While it is true that the motions to enforce the settlement agreement and to
shorten time were not formally received by the superior court until shortly before the
hearing, this omits important context. The Hannas’ motion was precipitated by
Mr. Margitan’s own letter, sent to PEMCO’s CEO, in which he openly stated an intent
25 No. 39077-2-III Hanna v. Margitan
to renege on the settlement. With that backdrop, the Margitans cannot seriously claim
to have been surprised at the last minute by the Hannas’ motion.
And prompted by Mr. Margitan’s letter, the Hannas e-mailed the superior court
judge’s chambers—copying the Margitans’ counsel—a full 11 days before the eventual
hearing, stating they would be moving to enforce the agreement. Nor do the Margitans
dispute that the Hannas personally served their counsel with the motion eight days before
the hearing. Finally, the Margitans’ attorneys had an “opportunity to submit case
authority” and “provide countervailing oral argument,” and in fact did so. Zurich Servs.,
26 Wn. App. 2d at 28. There was no prejudice here.11
11 The Margitans contend they were prejudiced because they were out of the country, in Canada, and unable to attend the June 24, 2022 hearing or communicate with their counsel about the Hannas’ motion. The Margitans do not say when they left for Canada, so it is unclear whether they were out of the country for the entire 11-day period between the Hannas’ e-mail stating their intent to move to enforce the settlement and the hearing on that motion. And again, the Hannas’ motion to enforce the settlement was precipitated by Mr. Margitan’s own repudiation of the contract. Plus, in a separate case—where he was proceeding pro se—Mr. Margitan remotely delivered oral argument before our court’s commissioner the day before the superior court hearing. See Wash. Ct. of Appeals Comm’r oral argument, Margitan v. Hanna, No. 38929-4-III (June 23, 2022), at 28 min., 45 sec. through 34 min., 48 sec. (on file with court). Even if communicating with his counsel from Canada would have been difficult, it was clearly not impossible.
26 No. 39077-2-III Hanna v. Margitan
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.
Lawrence-Berrey, C.J.
WE CONCUR:
Staab, J.
I