IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
U.S. BANK TRUST NATIONAL No. 86136-1-I ASSOCIATION, not in its individual (consolidated with No. 86936-1-I) capacity but solely as owner trustee for RCF 2 ACQUISITION TRUST,
Respondent, UNPUBLISHED OPINION v.
MELISSA ANN HUELSMAN,
Appellant.
BOWMAN, A.C.J. — U.S. Bank Trust National Association, in its capacity as
owner trustee for RCF 2 Acquisition Trust (Trustee), obtained a default judgment
in this judicial foreclosure action and sold the property securing Melissa
Huelsman’s obligations under the underlying promissory note. Huelsman
appeals the order confirming the sale. She also challenges the default judgment
and the amount of fees awarded to the Trustee. Huelsman did not timely appeal
the default judgment, so we grant the Trustee’s motion to dismiss Huelsman’s
appeal of that judgment. And because the trial court’s findings are insufficient to
support the amount of fees it awarded to the Trustee, we reverse the fee award,
including the postjudgment fees awarded in the order confirming the sale, and
remand for more meaningful consideration of what constitutes a reasonable fee.
Otherwise, we affirm. No. 86136-1-I (consol. with No. 86936-1-I/2
FACTS
On January 9, 2023, the Trustee filed a complaint to judicially foreclose a
deed of trust encumbering a Seattle property owned by Huelsman. After
Huelsman did not timely answer the complaint, the Trustee moved for an order of
default. The trial court declared Huelsman in default on April 14, 2023.
On June 27, 2023, the Trustee moved for entry of a default judgment. On
July 11, Huelsman answered the Trustee’s complaint and opposed its motion for
default judgment. The trial court denied the Trustee’s motion, indicating it had
considered Huelsman’s answer.
The Trustee moved for reconsideration and to strike Huelsman’s untimely
answer. On September 18, 2023, the trial court granted reconsideration over
Huelsman’s opposition, vacated its earlier order denying the Trustee’s motion for
default judgment, and granted the default judgment motion. The order granting
default judgment states, “The Judgment will be entered after this Court’s
evaluation of [Trustee]’s motion for attorneys’ fees and costs and any response
filed in response thereto.”
On October 2, 2023, the Trustee moved for an award of attorney fees.
Huelsman filed a response and supporting declaration, and the Trustee replied.
On October 24, the trial court granted the Trustee’s fee motion in full. In its
order, the court wrote, “Contrary to court rules, and not containing the requisite
word count, [Huelsman] did not file a Response but rather a lengthy Declaration.”
That same day, the trial court separately entered a default judgment against
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Huelsman for $426,228.32. The default judgment foreclosed the deed of trust
and authorized the Trustee to sell the encumbered property.
Huelsman moved for reconsideration of the order granting the Trustee’s
fee motion, arguing the trial court “erroneous[ly] assert[ed] that [Huelsman] did
not file a Response to the Motion for Attorneys’ Fees and only filed a
Declaration.” On November 21, 2023, the court denied reconsideration,
explaining:
The Court did not base its award of fees and costs on any irregularities with the pleadings filed by [Huelsman]. Rather, the award was based entirely on the record before the court and a careful review of the Motion for Fees and Costs and supporting Declaration of counsel for the [Trustee].
On December 21, 2023, Huelsman appealed, designating (1) the
November 21 order denying Huelsman’s motion for reconsideration of the trial
court’s order granting the Trustee’s fee motion, (2) the October 241 order
granting the Trustee’s fee motion, and (3) the September 18 order granting the
Trustee’s motion for default judgment. Huelsman did not designate the separate
October 24 default judgment for appeal.
On April 11, 2024, the superior court clerk notified the parties that a
“Sheriff’s Return on Sale of Real Property” had been filed with the court and that
“the judgment creditor or successful purchaser at the Sheriff’s Sale is entitled to
have an Order Confirming Sale unless the judgment debtor . . . files objections to
the sale . . . within twenty (20) days from the mailing of this notice.” Huelsman
objected to the entry of an order confirming the sale, and the Trustee later moved
1 The notice of appeal mistakenly states that the court entered this order on October 10, 2023.
3 No. 86136-1-I (consol. with No. 86936-1-I/4
to confirm the sale. On June 18, following additional briefing, the trial court
entered an order confirming the sheriff’s sale. Huelsman timely appealed that
order, and we consolidated that appeal with Huelsman’s already pending appeal
of the trial court’s earlier orders.
ANALYSIS
1. Motion to Dismiss
The Trustee moves to partially dismiss Huelsman’s appeal. It argues that
because Huelsman did not timely appeal the default judgment, we must dismiss
her appeal as far as it challenges that judgment. We agree.
To initiate review, the party seeking review must file a notice of appeal
“within the time provided by [RAP] 5.2.” RAP 5.1(a). Under RAP 5.2, an
appellant must file their notice of appeal in the trial court within the longer of
(1) “30 days after the entry of the decision of the trial court that the party filing the
notice wants reviewed,” or (2) 30 days after the entry of an order deciding a
timely motion for reconsideration of that decision. RAP 5.2(a), (e); see also
Stedman v. Cooper, 172 Wn. App. 9, 14, 292 P.3d 764 (2012) (“[A] timely motion
for reconsideration in the trial court will extend [the time to file a notice of appeal]
until 30 days after entry of the order deciding that motion.”).
Here, the trial court entered the default judgment on October 24, 2023, the
same day it granted the Trustee’s fee motion. Although Huelsman sought
reconsideration of the latter order, she did not seek reconsideration of the default
judgment. So, she had until November 23, 2023 to file a notice of appeal
challenging that order. But Huelsman did not file her first notice of appeal until
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December 21, 2023, and her notice did not designate the default judgment. See
RAP 5.3(a)(3) (notice of appeal must “designate the decision or part of decision
which the party wants reviewed”). And although Huelsman timely appealed the
trial court’s order granting the Trustee’s fee motion after the court denied
reconsideration of that order, that appeal did not extend review to the earlier
default judgment. See RAP 2.4(b) (“A timely notice of appeal of a trial court
decision relating to attorney fees and costs does not bring up for review a
decision previously entered in the action that is otherwise appealable . . . unless
a timely notice of appeal has been filed to seek review of the previous decision.”).
Still, Huelsman contends that review of the default judgment is proper
because the default judgment was not final until the trial court entered the order
confirming the sheriff’s sale. In support, she asserts that “[a] judicial foreclosure
necessarily involves multiple steps after the foreclosure judgment is entered,”
and that the “proceedings remain open and unresolved even after an initial
judgment is entered.” But a judgment is final if it “finally determines the rights of
the parties in the action[,] . . . even if it directs performance of certain subsidiary
acts in carrying out the judgment, the right to the benefit of which is adjudicated
in that judgment.” Wlasiuk v. Whirlpool Corp., 76 Wn. App. 250, 255, 884 P.2d
13 (1994). Here, the default judgment did just that. It awarded judgment in the
Trustee’s favor on the underlying promissory note, declared the deed of trust a
valid lien on Huelsman’s property and foreclosed it, and authorized the Trustee to
sell Huelsman’s property.
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Huelsman also argues that because the order confirming the sheriff’s sale
is appealable under RAP 2.2(a)(13) as a “final order made after judgment that
affects a substantial right,” her timely appeal of that order brought the default
judgment—and the trial court’s prior order granting the Trustee’s motion for
default judgment—up for review under RAP 2.4(b). Huelsman is incorrect.
RAP 2.4(b) provides:
The appellate court will review a trial court order or ruling not designated in the notice [of appeal], including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.
A previous order prejudicially affects the order designated in the notice of appeal
“if the order appealed cannot be decided without considering the merits of the
previous order.” Right-Price Recreation, LLC v. Connells Prairie Cmty. Council,
105 Wn. App. 813, 819, 21 P.3d 1157 (2001).
This requires some connection between the two [orders] other than that the appealed order would not have occurred if the earlier order had been decided differently. The issues in the two orders must be so entwined that to resolve the order appealed, the court must consider the order not appealed.
Id.2
Here, the issue before the trial court when it granted default judgment was
whether the Trustee had satisfied the requirements of CR 55(b)(1), i.e., that the
court had entered Huelsman’s default and that the Trustee’s claim against her
was for a sum certain. Meanwhile, the issue before the court when it confirmed
the sheriff’s sale was whether “there were substantial irregularities in the
2 Emphasis added.
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proceedings concerning the sale, to [Huelsman’s] probable loss or injury.” RCW
6.21.110(3). These issues are entirely distinct, so Huelsman’s timely appeal of
the order confirming the sheriff’s sale did not bring up for review the trial court’s
decision to grant the Trustee’s motion for default judgment.
We grant the Trustee’s motion to dismiss Huelsman’s appeal of the default
judgment. Cf. Buckner, Inc. v. Berkey Irrig. Supply, 89 Wn. App. 906, 911, 951
P.2d 338 (1998) (“A necessary prerequisite to appellate jurisdiction is the timely
filing of the notice of appeal.”).
2. Attorney Fee Award
Huelsman next argues that we must reverse the trial court’s order granting
the Trustee $49,589.48 in attorney fees because the court’s findings are
insufficient to support the amount of the award. We agree.
We review an award of attorney fees for an abuse of discretion. Estrada
v. McNulty, 98 Wn. App. 717, 723, 988 P.2d 492 (1999). “A trial court abuses its
discretion when its decision is based on untenable grounds or is made for
untenable reasons.” Shandola v. Henry, 198 Wn. App. 889, 896, 396 P.3d 395
(2017).
The burden of showing a fee is reasonable rests with the fee applicant.
Berryman v. Metcalf, 177 Wn. App. 644, 657, 312 P.3d 745 (2013). Generally,
Washington courts apply the lodestar method to calculate attorney fees. Mahler
v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 (1998). To arrive at a lodestar
award, the court first considers the number of hours reasonably expended on the
case. McGreevy v. Or. Mut. Ins. Co., 90 Wn. App. 283, 291, 951 P.2d 798
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(1998). To this end, the attorney must provide reasonable documentation of the
work performed, including the number of hours worked, the type of work
performed, and the attorney who performed the work. Id. at 292. The court
should discount hours spent on unsuccessful claims, duplicated effort, or
otherwise unproductive time. Id.
Next, the court determines whether the hourly fee charged was
reasonable. McGreevy, 90 Wn. App. at 291. When attorneys have an
established rate for billing clients, that rate is likely a reasonable rate. Id. at 293.
The usual rate is not, however, conclusively a reasonable fee. Id. The court may
also consider the attorney’s level of skill, reputation, local rates charged by other
attorneys with similar skill and experience, or other factors relevant to the
desirability and difficulty of the case. Id. The court then multiplies the
reasonable hourly rate by the number of hours reasonably expended on the
matter to arrive at the lodestar. Id. at 291.
Courts must take an active role in assessing the reasonableness of
attorney fee awards and should not treat cost decisions as a “ ‘litigation
afterthought.’ ” Berryman, 177 Wn. App. at 657 (quoting Mahler, 135 Wn.2d at
434). While the court does not need to “deduct hours here and there just to
prove to the appellate court that it has taken an active role in assessing the
reasonableness of a fee request,” it must issue findings of fact and conclusions
of law that “do more than give lip service to the word ‘reasonable.’ ” Id. at 658.
The findings and conclusions must be “sufficient to permit a reviewing court to
determine why the trial court awarded the amount in question.” SentinelC3, Inc.
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v. Hunt, 181 Wn.2d 127, 144, 331 P.3d 40 (2014). They must show how the
court resolved disputed issues of fact and explain the court’s analysis.
Berryman, 177 Wn. App. at 658.
Here, Huelsman raised several objections to the Trustee’s fee motion. For
example, she argued that (1) it was unreasonable for the Trustee’s counsel to
staff this matter with two seasoned attorneys in addition to an associate and a
paralegal, (2) the Trustee should not recover for the prelitigation time its
attorneys spent researching nonjudicial foreclosures, and (3) although Huelsman
herself is a seasoned foreclosure defense attorney, that did not justify treating
her file differently from other borrowers’ files, including researching defenses she
had raised in her clients’ nonjudicial foreclosure cases. And Huelsman pointed
out that the default judgment amount included a “Corporate Advance Balance” of
$28,303.51, which the Trustee’s counsel later confirmed consisted of attorney
fees. Huelsman questioned potential overlap between the amounts already
awarded as “corporate advances” and the fees requested in the Trustee’s fee
motion.
The trial court did not address any of these issues. It found only that “the
hourly rate of counsel and time spent on this matter is both reasonable and
necessary under the facts of this case and conduct by [Huelsman].” The Trustee
points out that it presented evidence that this case “was especially time-
consuming” and asserts that the trial court did not abuse its discretion by
accepting the Trustee’s evidence. But the trial court’s conclusory finding does
explain its analysis or allow us to evaluate its decision, especially in light of
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Huelsman’s specific objections.3 See Mahler, 135 Wn.2d at 435 (appellate
court’s role is to “ensure that discretion is exercised on articulable grounds”). For
example, it does not appear the Trustee addressed Huelsman’s concern about
the “corporate advances” in its briefs in support of its fee motion, and we cannot
discern how the trial court resolved that concern. It is also unclear why the trial
court concluded it was reasonable for the Trustee’s counsel to incur fees to
research nonjudicial foreclosures and anticipated defenses when this is a judicial
foreclosure action ultimately resolved by default.4
We reverse the fee award and remand for the trial court to consider more
meaningfully what constitutes a reasonable fee. Cf. Berryman, 177 Wn. App. at
658-59 (reversing fee award and remanding for further consideration where trial
court’s findings and conclusions lacked required scrutiny of objecting party’s
“very specific objections”).
3. Order Confirming Sale
Huelsman next argues that the trial court erred by confirming the sheriff’s
sale. Although we conclude that we must remand for the trial court to evaluate
3 The Trustee points out that Huelsman admitted to not providing the trial court with a working copy of her response to the Trustee’s fee motion. It then asserts that the trial court’s order granting the fee motion “made it clear . . . that [Huelsman] did not file a response to the motion for fees and therefore had made no objections.” (Emphasis added.) But on reconsideration, the trial court stated that it did not base its fee decision on any irregularities with Huelsman’s filings and, instead, had considered “the record before the court.” Further, Huelsman’s objections were also set forth in her declaration, which the court acknowledged it received. And the trial court did not indicate that it had stricken or declined to consider the declaration. 4 We do not suggest that these fees were unreasonable; only that without more specific findings, we cannot evaluate the trial court’s decision.
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the reasonableness of the additional attorney fees awarded in the order
confirming the sale, we otherwise affirm the order.
RCW 6.21.110 governs confirmation of a purchase at a judicial sale. The
court must confirm a sheriff’s sale unless “there were substantial irregularities in
the proceedings concerning the sale, to the probable loss or injury of the party
objecting.” RCW 6.21.110(3). “ ‘[C]onfirmation of judicial sales rests largely
within the discretion of the trial court’ and so is reviewed for manifest abuse of
such discretion.” Sixty-01 Ass’n of Apt. Owners v. Parsons, 181 Wn.2d 316, 322,
335 P.3d 933 (2014) (quoting Braman v. Kuper, 51 Wn.2d 676, 681, 321 P.2d
275 (1958)). We generally defer to a sale “absent substantial irregularities or
great inadequacies.” Id. at 327.
Huelsman argues that we must vacate the confirmation of sale because
there were discrepancies between the amounts set forth in the default judgment
and those in the bidding instructions for the sheriff’s sale. In particular, she
points out that the amounts of the escrow advances, delinquent interest, and
corporate advances in the bidding instructions were higher than the amounts for
those line items in the default judgment.
But the default judgment authorized the Trustee to recover
such additional sums as [it] may advance for taxes, assessments, municipal charges, and such other items as may constitute liens on the property, together with insurance and repairs necessary to prevent impairment of the security, together with interest thereon from the date of payment.
And the Trustee’s counsel submitted a declaration explaining how it calculated
the additional interest based on the underlying loan’s four-percent interest rate
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and attesting that the additional escrow advances, which included property taxes,
were made after the court entered default judgment in October 2023. Huelsman
fails to show the trial court abused its discretion by directing that the sale
proceeds cover these additional amounts.
The corporate advances, however, are a different matter. In his
declaration, Trustee’s counsel stated, “The bidding instructions included
attorneys’ fees, which were captured as ‘corporate advances,’ in the amount of
$66,969.92.” This is $17,380.44 more than the fees the trial court awarded in its
earlier fee order, and an increase of $38,666.41 from the amount of “corporate
advances” shown in the payoff statement the Trustee submitted when it moved
for default judgment. Additionally, Trustee’s counsel stated that “[s]ince April 5,
2024, additional fees in the amount of $16,570.30 have been incurred.”
The trial court allowed the Trustee to recover the additional “corporate
advances” even though the Trustee did not provide documentation to support the
reasonableness of any postjudgment fees. And, as discussed earlier, it is
unclear from the record how the trial court resolved Huelsman’s concerns about
potential overlap between any fees designated as “corporate advances” and the
fees the Trustee separately sought by motion.
We direct the trial court on remand to evaluate the reasonableness of any
postjudgment fees incurred by the Trustee. We otherwise affirm the order
confirming the sale.5
5 Huelsman cites no authority for the proposition that the deficiencies in the trial court’s fee award require us to vacate the confirmation of sale.
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4. Fees on Appeal
Each party requests an award of fees on appeal based on underlying
contracts. We may award attorney fees on appeal if a contract, statute, or
recognized ground in equity permits the recovery of attorney fees and the party
substantially prevails. Judges of Benton & Franklin Counties Superior Ct. v.
Killian, 195 Wn.2d 350, 363, 459 P.3d 1082 (2020).
Here, the Trustee asserts it “is entitled to an award of attorneys’ fees
under its contract with [Huelsman] as well as in equity.” And Huelsman asserts
“she is entitled to . . . fees based upon the same contract language which [the
Trustee] relies upon to recover its attorneys’ fees.” But neither party cites the
relevant contract language or provides any analysis of why that language
supports an award of fees on appeal. Nor does the Trustee provide any
argument about why equity supports an award of fees.
RAP 18.1(b) “requires more than a bald request for attorney fees on
appeal.” Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 710
n.4, 952 P.2d 590 (1998). “Argument and citation to authority are required under
the rule to advise us of the appropriate grounds for an award of attorney fees.”
Id. And, in any event, while the Trustee prevailed on Huelsman’s challenges to
the default judgment, Huelsman prevailed on her challenges to the amount of the
trial court’s attorney fee awards. So, neither party substantially prevailed on
appeal. As a result, we deny both parties’ requests for fees on appeal.
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We dismiss Huelsman’s appeal of the default judgment. And we reverse
the trial court’s award of attorney fees, including any postjudgment attorney fees,
and remand to the trial court for more meaningful consideration of what
constitutes a reasonable fee. Otherwise, we affirm.
WE CONCUR: