Filed Washington State Court of Appeals Division Two
April 30, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Marriage of: No. 57677-5-II
TRACI DANYEL FALLOW,
Respondent,
and
TROY LYNN FALLOW, PUBLISHED OPINION
Appellant.
LEE, P.J. — Troy Fallow appeals a commissioner’s order imposing sanctions pursuant to
CR 11 based on his counsel’s continued objection to a commissioner’s authority to hear a contested
dissolution trial. Troy1 also appeals a superior court order denying a motion for reconsideration,
which was entered in response to Troy’s motion for revision of the commissioner’s ruling
imposing sanctions.
Because Troy’s counsel advanced an argument without legal basis and failed to conduct a
reasonable inquiry into legal authorities, and because the relevant legal authority allows
commissioners to preside over a contested dissolution trial, we hold that the commissioner did not
err in imposing sanctions. However, because the superior court issued an order denying a motion
for reconsideration instead of an order addressing the motion for revision, the superior court’s
1 This opinion refers to the parties by their first names for clarity. We intend no disrespect. No. 57677-5-II
order was issued on the wrong legal basis. Therefore, we reverse the superior court’s order denying
reconsideration and remand for further proceedings consistent with this opinion.
FACTS
Troy and Traci Fallow married in 2004. They separated in 2020, and in 2021, Traci filed
for dissolution. Over the course of 2021, Troy and Traci disputed several aspects of their
separation, including child support, spousal support, and distribution of assets. In February 2022,
the dissolution was set for a one-day, non-jury trial on March 2. At the pretrial conference on
February 28, the parties indicated they were not prepared to go to trial.
Trial was re-set for September 30. On September 27, Troy’s counsel, Steven McNeill,
called the superior court administrator to confirm the judge assigned to the trial. The court
administrator informed McNeill that a commissioner2 had been assigned by the presiding judge.
McNeill told the court administrator that he did not believe a commissioner could hear a
“final divorce trial” and “there were no stipulations regarding a court commissioner sitting as a
pro tempore Judge.” Clerk’s Papers (CP) at 238. The court administrator stated that the
2 The assigned commissioner was appointed in 2021. The order appointing the commissioner stated:
IT IS HEREBY ORDERED that pursuant to the provisions of chapter 2.24.010 and 2.24.040, Revised Code of Washington, Daryl A Rodrigues, be and hereby is appointed as a Court Commissioner . . . and shall qualify as such by taking and subscribing an oath as provided by law. He shall have all the powers of a Court Commissioner as provided by the law of the State of Washington.
Mot. to Suppl. the Rec., Ex. A., (July 12, 202)
2 No. 57677-5-II
commissioner was assigned by the superior court presiding judge and that commissioners could
hear final dissolution trials.
On September 28, McNeill called Traci’s counsel, James Parker, to discuss his reservations
about a commissioner being assigned to the trial. According to McNeill, Parker agreed with him
that a commissioner could not hear a final dissolution trial. However, Parker suggested that they
maintain the trial date and use it instead as a settlement discussion opportunity.
Parker had previously learned on September 23 that a commissioner had been assigned to
the trial. According to Parker, when Parker spoke with McNeill, McNeill allegedly did not inform
Parker that he intended to object to the commissioner hearing the case; rather, McNeill stated that
“he preferred the issue of the commissioner’s authority be resolved first,” without further
explanation. CP at 214.
On September 29, Parker filed Traci’s proposed exhibits. McNeill then filed Troy’s pretrial
statement and proposed exhibits. According to Parker, he understood McNeill’s filings to mean
that McNeill was actually prepared to proceed to trial despite his initial reservations. According
to McNeill, he only filed the pretrial statement and proposed exhibits in response to Parker’s
submissions.
On September 30, at the start of trial, McNeill raised the issue of the commissioner’s
authority. When the commissioner asked why McNeill was raising the issue at the commencement
of trial, as opposed to before trial, McNeill stated, “I don’t know what more I can do in terms of
raising the issue.” Verbatim Rep. of Proc. (VRP) (Sept. 30, 2022) at 9. Parker suggested that the
parties stipulate on the record to the commissioner acting as a judge pro tempore. However,
3 No. 57677-5-II
McNeill stated that he wanted a ruling from the court on the issue of the commissioner’s authority
first and would then consult with Troy.
The commissioner took a brief recess to research the issue. Upon return, the commissioner
concluded that under the Washington State Constitution, it had the authority to proceed with the
trial and that its authority was not limited by RCW 2.24.040.3 However, McNeill continued to
object to the commissioner’s authority, citing language from the Washington Constitution4 and
RCW 2.24.040(9).5 Specifically, McNeill took issue with the definition of “‘at chambers’” in the
Washington Constitution. VRP (Sept. 30, 2022) at 14. McNeill stated, “I couldn’t find a definition
of what ‘at chambers’ means. I assume what that means is ex parte, at chambers.” VRP (Sept. 30,
2022) at 14.
Because of McNeill’s continued objection, the commissioner stated: “I have the authority
to conduct this trial under advisement and both parties are going to submit briefing.” VRP (Sept.
3 RCW 2.24.040 enumerates 15 specific powers of court commissioners. 4 The relevant portion of the Washington State Constitution states:
There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.
WASH. CONST. art. IV, § 23. 5 RCW 2.24.040(9) provides that court commissioners shall have the authority “[t]o hear and determine ex parte and uncontested civil matters of any nature.”
4 No. 57677-5-II
30, 2022) at 16. The commissioner instructed the parties to contact court administration to set
another hearing date within the next 10 days to resolve the issue of the commissioner’s authority.
After the commissioner ruled, Parker orally moved for attorney fees and sanctions, in part
because McNeill’s objection to the commissioner’s authority was untimely and because Traci had
flown to Washington from out of state to participate in the trial. The commissioner determined it
would resolve Parker’s motion at the next hearing date. McNeill asked to respond to Parker’s
motion but used the opportunity to again argue about the commissioner’s authority.
The commissioner asked the parties to submit briefing by October 7 and to have the matter
set for hearing no later than October 14. McNeill then stated:
I’m surprised [the issue of the commissioner’s authority] hasn’t been resolved definitively before. I spent hours trying to research this, looking for that—that bullet there that says this is what’s going on.
....
. . . I called Thurston County and Thurston County says we don’t do trials with commissioners, you know. And I say[], well, why? Well, I don’t know. We— we don’t do trials with commissioners. And so I don’t—and we’ve never done trials by commissioners here, unless we had an agreement or a judge pro tem.
VRP (Sept. 30, 2022) at 28.
On October 4, Parker filed a written motion for attorney fees, travel expenses for Traci,
and sanctions. In the motion, Parker cited a Washington case, In re Marriage of Lyle,6 that directly
addressed the issue of the commissioner’s authority and the definition of “‘at chambers.’” CP at
214. Parker argued that McNeill’s position was frivolous because “it is clear that court
6 199 Wn. App. 629, 398 P.3d 1225 (2017).
5 No. 57677-5-II
commissioners . . . have the authority to conduct all judicial proceedings that are not jury trials.”
CP at 215.
A hearing was set for October 17. By October 12, McNeill had not filed any briefing, so
the court ordered McNeill to submit a brief with authority supporting his position no later than
October 14. On October 14, McNeill filed a response to Parker’s motion, but did not provide his
own briefing regarding the issue of the commissioner’s authority. McNeill’s response primarily
addressed Parker’s arguments regarding fees and sanctions. As to the commissioner’s authority,
McNeill stated only that the “issue can be simply resolved by reference to RCW 2.24.040.” CP at
242.
On October 17, during the hearing McNeill maintained his position that a commissioner
did not have the authority to hear a final dissolution trial. McNeill argued that the position was
not frivolous because the Washington Constitution only allowed commissioners to hear matters
“at chambers . . . which essentially prohibits them from hearing all matters that would have been
at a trial.” VRP (Oct. 17, 2022) at 38. McNeill further argued that dissolutions required jury trials
when the Washington Constitution was written. He then asserted that even though jury trials were
subsequently dispensed with in dissolution proceedings, RCW 2.24.040(9) limited the type of civil
matters a commissioner may hear. Regarding Marriage of Lyle, cited by Parker, McNeill stated
that it was “only . . . one case.” VRP (Oct. 17, 2022) at 41.
The commissioner asked McNeill if he had read Claypool,7 a seminal case regarding the
authority of commissioners and which is referenced in Marriage of Lyle. McNeill responded, “I
7 State v. Claypool, 132 Wash. 374, 232 P. 351 (1925).
6 No. 57677-5-II
don’t need to, Judge. The rules were changed in 1973.” VRP (Oct. 17, 2022) at 42. Parker then
interjected that cases discussing commissioner authority were “easily discovered.” VRP (Oct. 17,
2022) at 45.
The commissioner ruled that its prior oral ruling was unchanged—a commissioner
possesses the authority to hear a final dissolution trial. The commissioner also stated that travel
expenses and attorney fees could be determined at trial. On the issue of sanctions, the
commissioner decided to issue a written ruling.
On October 27, the commissioner issued a written order on the motion for fees and
sanctions. The written order held that (1) McNeill’s objection to the commissioner’s authority was
untimely; and (2) McNeill’s objection and subsequent response was frivolous under CR 11. As a
result, the commissioner ordered McNeill to pay attorney fees, along with lost wages and travel
expenses for Traci. Additionally, the commissioner sanctioned McNeill in the amount of $750 for
violation of CR 11.
On October 28, McNeill filed a motion for revision of the commissioner’s order. McNeill
cited RCW 2.24.050 and Grays Harbor County Local Court Rule (LCR) 59. On October 31, the
superior court denied McNeill’s motion. However, the superior court’s order denying the motion
was titled “Order on Motion for Reconsideration.” CP at 259. The order stated:
THIS MATTER having come upon the Respondent’s Motion for Reconsideration dated October 28, 2022, and the Court having reviewed the records and files herein, now therefore
IT IS HEREBY ORDERED that the Motion for Reconsideration is denied without oral argument pursuant to CR59.
CP at 259 (boldface omitted).
7 No. 57677-5-II
Troy appeals.8
ANALYSIS
A. COMMISSIONER AUTHORITY
Troy argues the superior court erred when it assigned a court commissioner to hear a final
dissolution trial because commissioners have no such authority. Specifically, Troy argues that
RCW 2.24.040(9) prohibits a commissioner from presiding over a contested dissolution trial, and
none of the enumerated powers in RCW 2.24.040 grant a commissioner the authority to hear
dissolution trials generally. We disagree.
1. Legal Principles
Court commissioners are an integral part of the Washington court system. Marriage of
Lyle, 199 Wn. App. at 632. “Superior court commissioners derive their powers from our state’s
constitution and statute.” Id.; see generally WASH. CONST. art. IV, § 23; ch. 2.24 RCW. Article
IV, section 23 of the Washington State Constitution provides:
There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.
This provision gives commissioners (1) the power to “perform like duties as a judge of the superior
court at chambers,” subject to revision by a superior court judge; (2) the power to take depositions;
8 After the October 17 hearing, the dissolution trial was set for November 1, 2022. The trial was held before the commissioner. The commissioner issued a ruling and written opinion on November 28. Troy does not appeal the outcome of the dissolution trial.
8 No. 57677-5-II
and (3) the power “to perform such other business connected with the administration of justice as
may be prescribed by law.” WASH. CONST. art. IV, § 23; see Claypool, 132 Wash. at 375.
When the Washington Constitution was adopted, the duties of judges “‘at chambers’”
included “‘entertain[ing], try[ing], hear[ing] and determin[ing], all actions, causes, motions,
demurrers and other matters not requiring a trial by jury.’” State v. Goss, 78 Wn. App. 58, 60, 895
P.2d 861 (1995) (quoting CODE OF 1881, § 2138, p. 368); accord State v. Karas, 108 Wn. App.
692, 701-02, 32 P.3d 1016 (2001). Because article IV, section 23 of the Washington Constitution
provides that commissioners “shall have authority to perform like duties as a judge of the superior
court at chambers,” it follows that commissioners have the authority to entertain, try, hear, and
determine all actions not requiring a jury trial. Claypool, 132 Wash. at 377; accord Goss, 78 Wn.
App. at 60 (“It follows that a court commissioner appointed under article IV, section 23, has
authority to act in any matter not requiring a trial by jury, subject to revision by a superior court
judge.”); Marriage of Lyle, 199 Wn. App. at 632 (“[Commissioners] are conferred with most of
the powers of a superior court judge but may not preside over jury trials.”).
While the legislature may add to powers enumerated in the constitution, those powers
cannot be taken away by legislative enactment. Claypool, 132 Wash. at 377; Olson v. Chase, 12
Wn. App. 682, 687, 531 P.2d 508 (“The powers of a court commissioner are vested by the
constitution. This granted power is supreme; while the legislature has power to add to those
specifically set forth in the constitution, so long as those powers pertain to the administration of
justice, the legislature cannot take away a constitutional grant of power.”), review denied, 85
9 No. 57677-5-II
Wn.2d 1010 (1975); Karas, 108 Wn. App. at 702 (“Thus, Karas’s effort to limit a commissioner’s
authority to those matters expressly set forth in RCW 2.24.040 fails.”).
RCW 2.24.040 enumerates specific commissioner powers. One such power is to “act as
referee in all matters and actions referred to him or her by the superior court as such, with all the
powers now conferred upon referees by law.” RCW 2.24.040(4). A referee is a person appointed
by the court or a judicial officer with the power “[t]o try an issue of law or of fact in a civil action
or proceeding and report thereon.” RCW 2.24.060(1). Commissioners may also “hear and
determine ex parte and uncontested civil matters of any nature.” RCW 2.24.040(9).
Superior courts may adopt local court rules, so long as they are not inconsistent with the
superior court civil rules. CR 83(a); see King County v. Williamson, 66 Wn. App. 10, 12, 830 P.2d
392 (1992). Often, local court rules address commissioner duties and powers. See, e.g., PIERCE
COUNTY SUPER. CT. LOCAL R. (PCLR) 0.4; THURSTON COUNTY SUPER. CT. LOCAL SPECIAL
PROCEEDINGS R. (LSPR) 94.02.
Grays Harbor County authorizes commissioners to accept and enter guilty pleas by
criminal defendants. GRAYS HARBOR COUNTY SUPER CT. LOCAL CRIM. R. (LCrR) 1.6. Beyond
LCrR 1.6, however, the Grays Harbor County local rules do not otherwise specify a
commissioner’s affirmative duties nor do they prohibit specific duties. See generally GRAYS
HARBOR COUNTY SUPER. CT. LOCAL COURT RULES. However, the Grays Harbor County local
rules provide for the assignment of cases. GRAYS HARBOR COUNTY SUPER. CT. LOCAL CIV. R.
(LCR) 40. For instance, “[j]udges may select those cases deemed appropriate for pre-assignment
due to length of trial or complexity of issues.” LCR 40(g)(1). Further, “[o]nce a case has been
10 No. 57677-5-II
pre-assigned, all subsequent matters and proceedings except settlement conferences shall be heard
before the assigned judicial officer, if available.” LCR 40(g)(4).
Parties dissatisfied with a commissioner’s ruling may seek relief through a motion for
revision. Marriage of Lyle, 199 Wn. App. at 632; RCW 2.24.050. “The right to seek revision
permits a litigant appearing before a commissioner to be treated similarly to one appearing before
a superior court judge.” Marriage of Lyle, 199 Wn. App. at 632.
2. Commissioner Has Authority To Hear A Contested Dissolution Trial
Troy argues that because the commissioner was not appointed pursuant to article IV,
section 23 of the Washington Constitution, the commissioner does not have the authority to hear
a contested dissolution trial. Troy also argues that because the order appointing the commissioner
cites only to RCW 2.24.010 and RCW 2.24.040, those statutes are the only pertinent authority
when it comes to the commissioner’s powers.
Troy is correct that the order appointing the commissioner did not reference the
Washington Constitution. However, the order also stated: “[The Commissioner] shall have all the
powers of a Court Commissioner as provided by the law of the State of Washington.” Mot. to
Suppl. the Rec., Ex. A.
Superior court commissioners derive their power from both statute and the Washington
Constitution. Marriage of Lyle, 199 Wn. App. at 632. Here, although the order appointing the
commissioner did not specifically reference the Washington Constitution, it does not—and
cannot—negate the broad powers granted by the constitution. See Karas, 108 Wn. App. at 702
(rejecting effort to limit a commissioner’s authority to only those matters expressly set forth in
11 No. 57677-5-II
RCW 2.24.040). Therefore, Troy’s argument that the commissioner did not have the authority to
hear a non-jury dissolution trial because the order appointing the commissioner failed to reference
the constitution is unpersuasive.
Commissioners have the authority under article IV, section 23 of the Washington
Constitution, to entertain, try, hear, and determine all actions not requiring a jury trial. Claypool,
132 Wash. at 375-77. Dissolutions are civil actions where “trial by jury is dispensed with.” RCW
26.09.010(1). Therefore, dissolution trials are non-jury trials, and commissioners have the
authority to preside in those proceedings.
Troy also argues that RCW 2.24.040(9) limits what authority a commissioner has as it
pertains to civil actions. See RCW 2.24.040(9). However, while RCW 2.24.040(9) refers to a
commissioner’s authority to hear and determine ex parte and uncontested civil matters, it does not
preclude a commissioner’s ability to hear other matters. Here, Troy and Traci’s dissolution trial
is a contested, non-jury civil action, and because all parties appeared for a trial, it is not ex parte.
See RCW 26.09.010(1). Therefore, based on the circumstances, RCW 2.24.040(9) simply does
not apply.9
RCW 2.24.040(4), on the other hand, provides that commissioners have the authority to
“act as referee in all matters and actions referred to him or her by the superior court as such, with
all the powers now conferred upon referees by law.” (Emphasis added). A referee has the power
to “try an issue of law or of fact in a civil action.” RCW 2.24.060(1). Here, when the Fallows’
9 Regardless, Washington case law establishes that legislative enactments cannot curtail the broad powers granted by the constitution. See, e.g., Karas, 108 Wn. App. at 702.
12 No. 57677-5-II
dissolution proceeding was noted for trial, the superior court presiding judge transferred the matter
to the commissioner. The parties do not dispute that the presiding judge assigned—or in other
words, referred—the Fallows’ dissolution trial to the commissioner. Therefore, based on the plain
language of RCW 2.24.040(4), the commissioner had the authority to act as a referee in the matter.
See RCW 2.24.040(4).
Additionally, the presiding judge appears to have pre-assigned the matter to the
commissioner pursuant to Grays Harbor County LCR 40(g). See LCR 40(g)(1). The pre-
assignment of the matter to a commissioner is not precluded by the plain language of LCR 40(g),
which refers to “the assigned judicial officer,” and does not specify “judge.” LCR 40(g)(4)
(emphasis added). There is no dispute that a commissioner is a judicial officer.
Article IV, section 23 of the Washington Constitution, RCW 2.24.040(4), and LCR 40(g)
conferred authority to the commissioner to preside over the contested dissolution trial. Thus, the
non-jury dissolution trial fell within the commissioner’s authority.
B. CR 11 SANCTIONS
Troy argues that sanctions against McNeill pursuant to CR 11 were inappropriate because
McNeill’s objection to the commissioner’s authority was not frivolous. We disagree.
CR 11 provides that any filings by a party or attorney must, to the best of the party’s or
attorney’s knowledge, be “well grounded in fact”; “warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law or the establishment of new
law”; and “not interposed for any improper purpose, such as to harass or to cause unnecessary
13 No. 57677-5-II
delay or needless increase in the cost of litigation.” CR 11(a). “The purpose of CR 11 is to deter
baseless filings and curb abuses of the judicial system.” Bldg. Indus. Ass’n of Wash. v. McCarthy,
152 Wn. App. 720, 745, 218 P.3d 196 (2009). A baseless filing is one that is not well grounded
in fact or warranted by existing law or a good faith argument to change the law. Id.
The movant for CR 11 sanctions bears the burden of justifying the request for sanctions.
Id. “The court applies an objective standard to determine ‘whether a reasonable attorney in like
circumstances could believe his or her actions to be factually and legally justified.’” Eller v. E.
Sprague Motors & R.V.’s, Inc., 159 Wn. App. 180, 190, 244 P.3d 447 (2010) (quoting Bryant v.
Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992)). “To impose sanctions for a
baseless filing, the trial court must find not only that the claim was without a factual or legal basis,
but also that the attorney who signed the filing did not conduct a reasonable inquiry into the factual
and legal basis of the claim.” West v. Wash. Ass’n of County Offs., 162 Wn. App. 120, 135, 252
P.3d 406 (2011).
We review the imposition of CR 11 sanctions for an abuse of discretion. Stiles v. Kearney,
168 Wn. App. 250, 260, 277 P.3d 9, review denied, 175 Wn.2d 1016 (2012). A court abuses its
discretion if its decision is manifestly unreasonable or based on untenable grounds. Id.
2. Sanctions Appropriate
The commissioner imposed sanctions for frivolousness based on McNeill’s continued
objection to and argument about the commissioner’s authority. McNeill claimed that he “spent
hours trying to research” the issue and could find nothing that spoke definitively on the
commissioner’s authority. VRP (Sept. 30, 2022) at 28. Despite McNeill’s claim, the record shows
14 No. 57677-5-II
that the commissioner was able to find a legal basis supporting its authority to hear the dissolution
trial during a brief recess. And despite the commissioner ruling that it had authority to proceed
with the dissolution trial based on the Washington Constitution and RCW 2.24.040, McNeill
continued to argue that the commissioner did not have the authority, prompting the commissioner
to direct the parties to submit briefing on the issue. Further, despite the order to submit briefing,
McNeill failed to file any briefing regarding the commissioner’s authority, and then only filed a
response after being ordered to do so by the court. In the response, McNeill cited only to RCW
2.24.040(9) as limiting a commissioner’s authority to hear a dissolution trial. While McNeill wrote
that Marriage of Lyle “represents a recent restatement of what is well settled law,” the case was
“just a starting point.” CP at 241. However, McNeill did not analyze Marriage of Lyle, let alone
mention any other authority discussing the commissioner’s authority.
The commissioner’s written order on sanctions and attorney fees listed and described
several cases that the commissioner had quickly found “following [the] rudimentary legal engine
search phrase ‘Commissioner 2.24.040 at chambers.’” CP at 252 (internal quotation marks
omitted). The commissioner’s written order concluded that McNeill’s objection to the
commissioner’s authority was baseless and that imposing sanctions was appropriate because
McNeill’s objection “was not warranted by existing law;” “no good-faith argument for the
extension of existing law was made;” and although McNeill claimed he spent hours researching
the issue, “McNeill failed to conduct an inquiry reasonable under the circumstances.” CP at 254.
The record shows that the commissioner conducted an appropriate CR 11 analysis by
hearing argument from both parties, taking the issue under advisement, and then conducting its
15 No. 57677-5-II
own research prior to issuing the written order. See Eller, 159 Wn. App. at 190. Based on
McNeill’s continued advancement of an argument without conducting a reasonable inquiry and
the apparent ease with which the commissioner found legal authorities supporting the proposition
that commissioners may hear contested dissolution trials, the commissioner did not abuse its
discretion in imposing CR 11 sanctions.10
C. MOTION FOR REVISION
Troy argues that the superior court erred when it denied a motion for reconsideration when
the motion was one for revision. We agree.
All acts and proceedings by court commissioners are subject to revision by the superior
court. RCW 2.24.050. The superior court reviews motions for revision de novo. Marriage of
Lyle, 199 Wn. App. at 632. “When an appeal is taken from an order denying revision of a court
commissioner’s decision, we review the superior court’s decision, not the commissioner’s.” In re
Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010).
Motions for reconsideration, on the other hand, are governed by CR 59. Under CR 59,
“[o]n the motion of the party aggrieved, a verdict may be vacated and a new trial granted to all or
any of the parties.” CR 59(a). Motions for reconsideration may be granted in cases of irregular
proceedings, misconduct, errors, and newly discovered evidence, among other circumstances. CR
10 Furthermore, Troy appeals only the order on the motion for sanctions and fees. Troy does not challenge the underlying dissolution proceeding, which later took place. Because Troy challenges only the sanctions, but not the actual dissolution proceeding, Troy appears to implicitly acknowledge that the commissioner had the authority to hear the final dissolution trial.
16 No. 57677-5-II
59(a). We review a superior court’s decision to grant or deny a motion for reconsideration for
abuse of discretion. In re Marriage of McCann, 4 Wn. App. 2d 896, 915, 424 P.3d 234 (2018).
Commissioner decisions are not subject to reconsideration; they are subject to revision.
RCW 2.24.050; WASH. CONST. art. IV, § 23.
Grays Harbor County LCR 59 addresses both reconsideration and revision. LCR 59. As
it pertains to revision, LCR 59 provides:
(i) A party moving for revision of a ruling by a Court Commissioner shall comply with RCW 2.24.050.
(ii) A motion for revision shall be based upon entry of written findings, conclusions and an order by the Court Commissioner. Oral rulings not reduced to written orders are not the proper subject for a motion for revision.
(iii) The original motion and supporting materials and proof of service upon all parties, along with a bench copy for the assigned judge, will be filed. If a non- moving party wishes to respond, that response is due ten days after being served with the initial motion.
(iv) At the judge’s discretion the moving party may be required to provide a written transcript of part or all of the hearing held before the Court Commissioner.
(v) The assigned judge shall review the pleadings and either rule on the motion or seek additional input from the parties.
LCR 59(e)(5).
On motions for reconsideration, LCR 59 states:
A motion for reconsideration shall be submitted on briefs and affidavits only, without oral argument, unless the trial Judge requests oral argument. The moving party shall file the motion and all supporting affidavits, documents and briefs at the same time, and on the date of filing, serve on or mail a copy thereof to opposing counsel, and deliver a copy thereof to the trial Judge which copy shall show the date of filing. The trial Judge shall either deny the motion and advise counsel of the ruling or request responding briefs and direct the movant to note the motion for hearing.
17 No. 57677-5-II
LCR 59(e)(4).
2. Superior Court Erred
Troy filed a motion for revision, pursuant to RCW 2.24.050 and LCR 59, of the
commissioner’s order on the motion for sanctions and attorney fees. Troy’s motion was titled
“Motion for Revision of Commissioner’s Ruling.” CP at 256. Further, the motion stated that the
superior court’s standard of review was de novo. Three days later, the superior court entered an
order “on motion for reconsideration.” CP at 259 (emphasis added). The order, in its entirety,
stated:
THIS MATTER having come upon the Respondent’s Motion for Reconsideration dated October 28, 2022, and the Court having reviewed the records and files herein, now therefore
IT IS HEREBY ORDERED that the Motion for Reconsideration is denied without oral argument pursuant to CR59.
Here, the record is clear that Troy appropriately filed a motion for revision of the
commissioner’s ruling. Troy cited the correct legal authorities, RCW 2.24.050 and LCR 59, both
of which address revision. Troy also provided the correct standard of review—de novo—and he
properly titled his motion as a motion for revision. Given this, the record is not clear as to why
the superior court then issued an order on a motion for reconsideration.11 The superior court
11 To the extent that the superior court confused the civil rules with the Grays Harbor County local court rules and incorrectly assumed that references to “LCR 59” meant CR 59, we emphasize the importance of superior court judges refreshing themselves on their own local rules.
18 No. 57677-5-II
should be well aware that commissioner rulings are not reviewed as motions for reconsideration.
RCW 2.24.050.
Traci argues that “the order makes it clear that the motion was denied after the court
‘reviewed the record and files herein,’” and that accordingly the superior court complied with
RCW 2.24.050. Br. of Resp’t at 5 (quoting CP at 259). However, the fact that the superior court
“reviewed the record and files herein” gives no indication of whether the superior court reviewed
the motion as one for revision or one for reconsideration. RCW 2.24.050 provides that “revision
shall be upon the records of the case, and the findings of fact and conclusions of law entered by
the court commissioner.” LCR 59(e)(5)(ii) further states, “A motion for revision shall be based
upon entry of written findings, conclusions and an order by the Court Commissioner.” CR 59
allows a superior court to grant a motion for reconsideration based either on the record or on facts
outside the record. CR 59(f).
Furthermore—and critically—motions for revision are reviewed under an entirely different
standard than motions for reconsideration. The face of the order would suggest that that the
superior court reviewed the motion as one for reconsideration under an abuse of discretion
standard, which is far less stringent than the de novo standard of motions for revision.
Because Troy filed a motion for revision and the superior court then issued an order on a
motion for reconsideration, without any acknowledgment that it was reviewing a commissioner’s
ruling, the superior court issued an order on the wrong basis. Because the superior court’s order
was issued on the wrong basis, the superior court erred, and we reverse the superior court’s order
19 No. 57677-5-II
on reconsideration and remand for the superior court to issue an order on a motion for revision in
accordance with RCW 2.24.050, LCR 59, and this opinion.
D. ATTORNEY FEES ON APPEAL
Troy requests attorney fees based on Parker’s alleged violations of CR 11 and RPC 3.3.
Troy argues that Parker’s conduct was “unprofessional” and that Parker “should be liable for the
entire amount of costs and fees incurred in the bringing of this appeal.” Br. of Appellant at 13.
Based on her briefing, it is unclear whether Traci requests attorney fees based on McNeill’s
violations of CR 11 and RPC 3.3.12
1. CR 11 Fees
As discussed in Section B above, “CR 11 deals with two types of filings: baseless filings
and filings made for improper purposes.” Stiles, 168 Wn. App. at 261. To impose fees based on
CR 11, “the trial court must find not only that the claim was without a factual or legal basis, but
also that the attorney who signed the filing did not conduct a reasonable inquiry into the factual
and legal basis of the claim.” West, 162 Wn. App. at 135. The movant for CR 11 sanctions bears
the burden of justifying the request for sanctions. Bldg. Indus. Ass’n of Wash., 152 Wn. App. at
745.
Here, Troy appears to take issue with Parker’s alleged failure “to acknowledge the
conversation of the attorneys which as an officer of the Court is improper” and that Parker
12 Neither party requests fees as the prevailing party under RAP 18.1 or any other appellate rule. Indeed, Traci’s brief goes so far as to state, “This request is not based on RAP 18.9(a) or any other basis for an award of appellate attorney fees.” Br. of Resp’t at 6 (emphasis added).
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“presented case law that was not disclosed to opposing counsel.”13 Br. of Appellant at 13.
However, Troy does not argue that Parker made any baseless filings or improper filings. CR 11
permits sanctions based on filings. Eller, 159 Wn. App. at 191. Because there is no argument
regarding baseless or improper filings, we decline to award fees to Troy based on CR 11.
To the extent Traci also requests attorney fees based on CR 11, we decline to award such
fees to Traci. Here, even though Traci prevailed on the issue of the commissioner’s authority,
Traci did not prevail on the appeal of the superior court’s order on the motion for reconsideration.
Because we hold that the superior court erred when it issued an order on the motion for
reconsideration, Troy’s appeal was not baseless or improper. Therefore, we decline to award
attorney fees to Traci based on CR 11.
2. RPC 3.3 Fees
RPC 3.3 addresses a lawyer’s duty of candor to the court. RPC 3.3 provides that a lawyer
shall not knowingly “make a false statement,” “fail to disclose a material fact,” fail to disclose
legal authority directly adverse to the lawyer’s position, or offer false evidence. RPC 3.3(a).
Here, there is insufficient information in the record to determine if McNeill or Parker
violated RPC 3.3 such that it can be a basis for the award of fees. Even assuming that a violation
of RPC 3.3 can be a basis to award fees, we decline to award attorney fees based on purported
violations of RPC 3.3.
13 We note that RPC 1.1 requires counsel to provide competent representation to a client. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. If McNeill failed to find applicable case law, he should reflect upon his own thoroughness and preparation for competent representation rather than blame Parker.
21 No. 57677-5-II
CONCLUSION
We hold that the commissioner did not err in imposing sanctions. However, because the
superior court issued an order denying a motion for reconsideration instead of an order addressing
the motion for revision, the superior court’s order was issued on the wrong legal basis. Therefore,
we reverse the superior court’s order on reconsideration and remand the order to the superior court
for further proceedings in accordance with this opinion.
Lee, J. We concur:
Veljacic, A.C.J.
Che, J.