Filed Washington State Court of Appeals Division Two
April 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II P&M CONSTRUCTION, INC., a Washington No. 49605-4-II business corporation
Appellant,
v.
SEAN R. MATT and KIMBERLY M. TOSSMAN, a marital community, UNPUBLISHED OPINION
Respondents.
WORSWICK, J. — P&M Construction brought suit against Sean R. Matt and Kimberly M.
Tossman (the Matts) after entering into a contract to remodel the Matts’ home. After the parties
entered into a settlement agreement, the trial court granted the Matts’ motion to dismiss with
prejudice and awarded them attorney fees. P&M Construction argues that (1) the trial court
erred in granting the Matts’ motion to dismiss because the Matts did not have authority to move
for dismissal pursuant to the settlement agreement, (2) the trial court erred by awarding the Matts
attorney fees because (a) their claim was untimely and (b) the award was not based on contract
or statute, and (3) we should award sanctions under CR 11 against the Matts because their
motion for attorney fees was frivolous. We do not review the trial court’s order to dismiss, but
because the trial court did not find bad faith and the record does not support such a finding, we
reverse the attorney fee award and decline to award sanctions against the Matts. No. 49605-4-II
FACTS
P&M Construction entered into a contract with the Matts to remodel their home in
Seattle. Disputes arose, and P&M Construction filed a lawsuit against the Matts for damages
from the breach of their remodeling contract. The Matts filed a counterclaim against P&M
Construction for, among other things, breach of contract and negligent misrepresentation.
Trial began on October 19, 2015. On October 21, the parties entered into a settlement
agreement to dismiss their claims against each other with prejudice. The parties stipulated to the
terms of the settlement agreement on the record, and the trial court stated that “the trial date is
stricken, and we’ll just wait to hear from you folks about an order of dismissal.” Verbatim
Report of Proceedings (VRP) (Oct. 21, 2015) at 4.
The Matts drafted a proposed stipulation and order of dismissal and sent the order to
P&M Construction. The Matts contacted P&M Construction on at least four occasions, but they
received no response. In its last communication with P&M Construction, the Matts stated that
they would file a motion to dismiss and request attorney fees if P&M Construction failed to
respond.
After receiving no response about the stipulation and order of dismissal, the Matts filed a
motion to dismiss with prejudice on November 17. In the motion, the Matts also requested
attorney fees for costs incurred while seeking an order of dismissal because of the “failure (or
refusal) of Plaintiff and its attorneys to even acknowledge, let alone comply with, their
obligations to the Court and the Matts.” Clerk’s Papers (CP) at 166. P&M Construction did not
object to the motion to dismiss.
2 No. 49605-4-II
On December 2, 44 days after the scheduled trial date, the trial court granted the Matts’
motion to dismiss and awarded them attorney fees. The order stated that the amount of attorney
fees would be determined at a later date because the Matts’ motion did not include the fee
amount. However, the trial court did not address the basis for the award of attorney fees, and it
did not make a finding that P&M Construction had acted in bad faith. The Matts’ counsel filed a
declaration regarding the attorney fees on December 14, and the trial court awarded the Matts
$2,236 in attorney fees. P&M Construction appeals the order of dismissal and the attorney fee
award.
ANALYSIS
I. MOTION TO DISMISS
As an initial matter, P&M Construction argues that the trial court erred in granting the
Matts’ motion to dismiss because the Matts did not have the authority to move for dismissal
under the settlement agreement. We do not review this claim of error.
RAP 2.5(a) provides that we “may refuse to review any claim of error which was not
raised in the trial court.” In its response to the Matts’ motion for dismissal, P&M Construction
stated it had “no objection to entry of an order dismissing all claims with prejudice.” CP at 184.
Because P&M Construction did not raise this issue in the trial court, it failed to properly preserve
the issue for appeal. Accordingly, we do not review it.
II. ATTORNEY FEES
P&M Construction also argues that the trial court erred by awarding the Matts attorney
fees because (a) their claim was untimely and (b) the award was not based on contract or statute.
3 No. 49605-4-II
We conclude that the Matts’ attorney fee claim was timely, but we nonetheless reverse the
attorney fee award.
A. Untimely Application
P&M Construction argues that the trial court erred in awarding the Matts attorney fees
because their claim was untimely under CR 54(d)(2), which requires a party to make a claim for
attorney fees no later than 10 days after entry of judgment. We disagree.
The trial court’s application of a court rule to the facts is a question of law we review de
novo. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001). CR 54(d)(2) provides that
“[c]laims for attorneys’ fees and expenses, other than costs and disbursements, shall be made by
motion . . . . Unless otherwise provided by statute or order of the court, the motion must be filed
no later than 10 days after entry of judgment.” The 10-day limit is “intended to prevent parties
from raising trial-level attorney fee issues very late in the appellate process.” 4 LEWIS H.
ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CR 54, at 333 (6th ed.
2013) (drafter’s comment on 2007 amendment to CR 54(d)(2)).
The Matts filed a motion for dismissal and attorney fees on November 17. On December
2, the trial court granted the Matts’ motion for dismissal, awarded them attorney fees, and
reserved the determination of the amount of the fees, pending receiving a declaration concerning
fees. On January14 the court awarded the Matts $2,236 in attorney fees.
P&M Construction does not cite to any authority to support its contention that a motion
for attorney fees must also include a fee declaration. Here, the Matts filed a motion requesting
attorney fees before the trial court entered its judgment. The Matts’ subsequent fee declaration
was not an independent claim for attorney fees. Instead, it was a request that the trial court
4 No. 49605-4-II
calculate the amount of fees it authorized pursuant to its order granting the Matts’ motion for
dismissal. Because the Matts made their claim for attorney fees before the 10-day limit
proscribed by CR 54(d)(2), their motion for attorney fees was timely.
B. Unauthorized Award
P&M Construction next argues that the trial court erred in awarding the Matts attorney
fees because the court’s award was not based on contract or statute. The Matts argue that the
trial court’s award was based on its inherent power to sanction attorneys for bad faith conduct.
We agree with P&M Construction and reverse the attorney fee award.
We review the trial court’s decision whether to grant or deny attorney fees as sanctions
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Filed Washington State Court of Appeals Division Two
April 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II P&M CONSTRUCTION, INC., a Washington No. 49605-4-II business corporation
Appellant,
v.
SEAN R. MATT and KIMBERLY M. TOSSMAN, a marital community, UNPUBLISHED OPINION
Respondents.
WORSWICK, J. — P&M Construction brought suit against Sean R. Matt and Kimberly M.
Tossman (the Matts) after entering into a contract to remodel the Matts’ home. After the parties
entered into a settlement agreement, the trial court granted the Matts’ motion to dismiss with
prejudice and awarded them attorney fees. P&M Construction argues that (1) the trial court
erred in granting the Matts’ motion to dismiss because the Matts did not have authority to move
for dismissal pursuant to the settlement agreement, (2) the trial court erred by awarding the Matts
attorney fees because (a) their claim was untimely and (b) the award was not based on contract
or statute, and (3) we should award sanctions under CR 11 against the Matts because their
motion for attorney fees was frivolous. We do not review the trial court’s order to dismiss, but
because the trial court did not find bad faith and the record does not support such a finding, we
reverse the attorney fee award and decline to award sanctions against the Matts. No. 49605-4-II
FACTS
P&M Construction entered into a contract with the Matts to remodel their home in
Seattle. Disputes arose, and P&M Construction filed a lawsuit against the Matts for damages
from the breach of their remodeling contract. The Matts filed a counterclaim against P&M
Construction for, among other things, breach of contract and negligent misrepresentation.
Trial began on October 19, 2015. On October 21, the parties entered into a settlement
agreement to dismiss their claims against each other with prejudice. The parties stipulated to the
terms of the settlement agreement on the record, and the trial court stated that “the trial date is
stricken, and we’ll just wait to hear from you folks about an order of dismissal.” Verbatim
Report of Proceedings (VRP) (Oct. 21, 2015) at 4.
The Matts drafted a proposed stipulation and order of dismissal and sent the order to
P&M Construction. The Matts contacted P&M Construction on at least four occasions, but they
received no response. In its last communication with P&M Construction, the Matts stated that
they would file a motion to dismiss and request attorney fees if P&M Construction failed to
respond.
After receiving no response about the stipulation and order of dismissal, the Matts filed a
motion to dismiss with prejudice on November 17. In the motion, the Matts also requested
attorney fees for costs incurred while seeking an order of dismissal because of the “failure (or
refusal) of Plaintiff and its attorneys to even acknowledge, let alone comply with, their
obligations to the Court and the Matts.” Clerk’s Papers (CP) at 166. P&M Construction did not
object to the motion to dismiss.
2 No. 49605-4-II
On December 2, 44 days after the scheduled trial date, the trial court granted the Matts’
motion to dismiss and awarded them attorney fees. The order stated that the amount of attorney
fees would be determined at a later date because the Matts’ motion did not include the fee
amount. However, the trial court did not address the basis for the award of attorney fees, and it
did not make a finding that P&M Construction had acted in bad faith. The Matts’ counsel filed a
declaration regarding the attorney fees on December 14, and the trial court awarded the Matts
$2,236 in attorney fees. P&M Construction appeals the order of dismissal and the attorney fee
award.
ANALYSIS
I. MOTION TO DISMISS
As an initial matter, P&M Construction argues that the trial court erred in granting the
Matts’ motion to dismiss because the Matts did not have the authority to move for dismissal
under the settlement agreement. We do not review this claim of error.
RAP 2.5(a) provides that we “may refuse to review any claim of error which was not
raised in the trial court.” In its response to the Matts’ motion for dismissal, P&M Construction
stated it had “no objection to entry of an order dismissing all claims with prejudice.” CP at 184.
Because P&M Construction did not raise this issue in the trial court, it failed to properly preserve
the issue for appeal. Accordingly, we do not review it.
II. ATTORNEY FEES
P&M Construction also argues that the trial court erred by awarding the Matts attorney
fees because (a) their claim was untimely and (b) the award was not based on contract or statute.
3 No. 49605-4-II
We conclude that the Matts’ attorney fee claim was timely, but we nonetheless reverse the
attorney fee award.
A. Untimely Application
P&M Construction argues that the trial court erred in awarding the Matts attorney fees
because their claim was untimely under CR 54(d)(2), which requires a party to make a claim for
attorney fees no later than 10 days after entry of judgment. We disagree.
The trial court’s application of a court rule to the facts is a question of law we review de
novo. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001). CR 54(d)(2) provides that
“[c]laims for attorneys’ fees and expenses, other than costs and disbursements, shall be made by
motion . . . . Unless otherwise provided by statute or order of the court, the motion must be filed
no later than 10 days after entry of judgment.” The 10-day limit is “intended to prevent parties
from raising trial-level attorney fee issues very late in the appellate process.” 4 LEWIS H.
ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CR 54, at 333 (6th ed.
2013) (drafter’s comment on 2007 amendment to CR 54(d)(2)).
The Matts filed a motion for dismissal and attorney fees on November 17. On December
2, the trial court granted the Matts’ motion for dismissal, awarded them attorney fees, and
reserved the determination of the amount of the fees, pending receiving a declaration concerning
fees. On January14 the court awarded the Matts $2,236 in attorney fees.
P&M Construction does not cite to any authority to support its contention that a motion
for attorney fees must also include a fee declaration. Here, the Matts filed a motion requesting
attorney fees before the trial court entered its judgment. The Matts’ subsequent fee declaration
was not an independent claim for attorney fees. Instead, it was a request that the trial court
4 No. 49605-4-II
calculate the amount of fees it authorized pursuant to its order granting the Matts’ motion for
dismissal. Because the Matts made their claim for attorney fees before the 10-day limit
proscribed by CR 54(d)(2), their motion for attorney fees was timely.
B. Unauthorized Award
P&M Construction next argues that the trial court erred in awarding the Matts attorney
fees because the court’s award was not based on contract or statute. The Matts argue that the
trial court’s award was based on its inherent power to sanction attorneys for bad faith conduct.
We agree with P&M Construction and reverse the attorney fee award.
We review the trial court’s decision whether to grant or deny attorney fees as sanctions
for an abuse of discretion. Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707 (2004). A
trial court abuses its discretion when its decision is based on untenable grounds or untenable
reasons. Noble v. Safe Harbor Family Pres. Trust, 167 Wn.2d 11, 17, 216 P.3d 1007 (2009).
A trial court may impose sanctions according to court rules or under its own inherent
equitable powers. State v. Gassman, 175 Wn.2d 208, 210-11, 283 P.3d 1113 (2012). A trial
court’s inherent authority to manage and control its calendar, proceedings, and parties allows the
court to award attorney fee sanctions based on a finding of bad faith. 175 Wn.2d at 211. When
the trial court does not make an express finding of bad faith, we may uphold the attorney fee
sanction if an examination of the record establishes that the trial court found some conduct
equivalent to bad faith. 175 Wn.2d at 211. Bad faith may be demonstrated by “delaying or
disrupting litigation.” State v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058 (2000).
Here, the trial court did not make an express finding that P&M Construction acted in bad
faith, and it is unclear whether the trial court determined that P&M Construction’s actions
5 No. 49605-4-II
amounted to bad faith. Further, the record on appeal does not include an oral ruling regarding
the attorney fee award. Moreover, we cannot say from the record that P&M Construction acted
in bad faith because the court clerk was authorized to order dismissal within 45 days after the
date of the settlement agreement if the parties did not file their own motion to dismiss.
Accordingly, the trial court’s attorney fee award was based on untenable grounds. Therefore, the
trial court abused its discretion, and we reverse its attorney fee award.
III. REQUEST FOR SANCTIONS AGAINST THE MATTS
P&M Construction appears to ask that we award sanctions under CR 11 against the Matts
for having to respond to a frivolous motion for attorney fees in the trial court. We reject P&M
Construction’s request.
P&M Construction requests sanctions under CR 11, claiming that the Matts’ threat to
seek attorney fees constituted harassment. However, P&M Construction did not request
sanctions from the trial court.1 Accordingly, P&M Construction may not request CR 11
sanctions for the first time on appeal. Scott v. Goldman, 82 Wn. App. 1, 10, 917 P.2d 131
(1996). To the extent P&M Construction is requesting attorney fees on appeal under CR 11, we
have previously held that “CR 11, a superior court rule, does not explicitly authorize us to award
sanctions.” Schorno v. Kannada, 167 Wn. App. 895, 904, 276 P.3d 319 (2012). Thus, we reject
P&M Construction’s request for sanctions.
We reverse the trial court’s award of attorney fees to the Matts.
1 P&M Construction does not cite to the record where it requested CR 11 sanctions in the trial court, and our review of the record reveals no such request.
6 No. 49605-4-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J. We concur:
Maxa, A.C.J.
Sutton, J.