Willard Lawrence Gibson, Jr., V. Melissa Davey

• Court: Court of Appeals of Washington
• Decided: November 28, 2022
• Docket: 83099-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MELISSA DAVEY, No. 83099-6-I

Appellant, DIVISION ONE v.

WILLARD LAWRENCE GIBSON JR., UNPUBLISHED OPINION

Respondent.

SMITH, A.C.J. — Melissa Davey brought an unlawful detainer action

against Will Gibson, her former romantic partner, to evict him from a

condominium she owned. Gibson responded by initiating an action to partition

property acquired pursuant to a committed intimate relationship (CIR), claiming

an ownership interest in the property. The matters were consolidated and set for

trial. On the first day of trial, Gibson voluntarily dismissed his CIR action. After

trial, Davey moved for attorney fees and costs based on, among other things,

Gibson’s intransigence throughout the proceedings. The trial court awarded

Davey attorney fees for the CIR action only, determining that it did not have

authority to award fees for the unlawful detainer action. The trial court erred in

not exercising its inherent authority to award fees for intransigence for both

causes of action. We reverse and remand.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83099-6-I/2

FACTS

Melissa Davey and Will Gibson dated for about five years. They had a

turbulent relationship with many disagreements. They were living together when

their relationship ended in 2015. Toward the end of the relationship, Davey

purchased another condominium in the same complex and Gibson moved in. 1

Gibson, a commercial real estate agent, intended to purchase the condo from

Davey when funds became available. Gibson sporadically made payments to

Davey. At trial, Davey testified that the initial arrangement was for Gibson to pay

her $1,500 per month as rent. She also testified that Gibson planned to

eventually purchase the unit. Gibson testified he never paid rent to Davey; he

believed he made mortgage payments. In December 2016, Davey told Gibson

their arrangement was not working. She gave him until the end of January 2017

to move out. Gibson did not vacate the condo.

Litigation

Davey initiated an unlawful detainer action to evict Gibson in February

2018. In response, Gibson began a separate legal action, seeking to partition

property he alleged was acquired during a committed intimate relationship (CIR).

He brought the CIR action as a defense to Davey’s unlawful detainer action; he

asserted he owned a property interest in the condo and therefore, he was not a

1 It is unclear from the record and the parties’ briefing when the parties

separated in 2015. It appears that the relationship was deteriorating when Davey purchased the second condominium.

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tenant to be evicted. Davey denied the existence of a CIR. The trial court

consolidated the two matters and set a trial date.

Gibson caused unnecessary delay throughout the course of the litigation.2

He refused, for instance, to answer Davey’s discovery requests. As a result,

Davey brought her first motion to compel discovery in August 2018, which the

trial court granted. Gibson appealed that order but did not actively pursue his

appeal. Davey moved to dismiss Gibson’s appeal, which was granted.

On another occasion, Davey requested entry to the condo for appraisal

and inspection. Though Davey agreed to Gibson’s terms of entry, Gibson

refused to allow Davey access. Davey was therefore forced to file a second

motion to compel, in November 2018, this time asking the court to order access

to the condo for appraisal and inspection. The court granted her motion.

Gibson, in response, filed his own motion to compel, seeking production of

Davey’s financial records, claiming that they were relevant to his CIR claim. The

court granted Gibson’s motion and awarded him attorney fees. Davey moved for

contempt against Gibson for his failure to respond to her first set of discovery

requests and for disobeying the court’s order compelling the same. The court did

not find Gibson in contempt but ordered him to comply with its previous discovery

order.

2 Gibson’s general unwillingness to cooperate pervaded the proceedings.

For example, in response to an e-mail from Davey’s lawyer regarding settlement, Gibson replied: “Would I prefer to resolve this without spending another multiple of $10g on what might be the silliest fight (resources expended v. what’s being contended over) in the history of the world? Yes. Will I, just for the sake of not committing further significant resources? Emphatically NO.”

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On the morning of trial, Gibson moved to voluntarily dismiss his CIR claim.

The court granted his motion and the trial proceeded on Davey’s unlawful

detainer action. The court found that none of the scenarios outlined in the

unlawful detainer statute applied to the relationship or transactions between the

parties. The court concluded that Gibson was a tenant at will and when he

refused to vacate, he became a trespasser. The court ordered him evicted. The

court also granted leave for Davey to present a motion for damages and attorney

fees and costs.

Motion for Attorney Fees and Costs

Davey moved for attorney fees and for entry of judgment. In its January

2020 order, the court determined that Gibson’s actions throughout the

consolidated matter were intransigent and that Davey should be awarded fees

under CR 37 and RCW 4.84.185. It concluded that Gibson’s discovery requests

and motion to compel were frivolous and made in bad faith and that Gibson filed

his CIR claim for the purpose of harassing Davey. The court also found that

Gibson filed his motion to compel production of Davey’s financial records for the

purpose of harassing Davey. It awarded Davey damages for Gibson’s failure to

maintain the property provided that she submitted additional affidavits from her

attorneys to support her request for fees. She complied, requesting fees totaling

$175,144.92.

In its April 2021 order on Davey’s motion for fees, the court noted that

Davey based her fee request on Mr. Gibson’s intransigence. But the court

awarded fees solely for the CIR action. It stated that because Davey did not

4 No. 83099-6-I/5

provide a basis for awarding fees under the common law rule of tenancy at will,

the court could not award fees based on unlawful detainer or tenancy at will.

Instead, the court awarded Davey fees totaling $34,000 pursuant to CR 41.3 In

making its determination, the court considered previous fee awards, the record of

the matter, and Gibson’s intransigence, which caused Davey additional legal

expense.

ANALYSIS

We are presented with two questions. First, whether Davey waived her

argument for attorney fees based on the court’s inherent authority to award fees

for intransigence by not explicitly requesting her fee award on that basis.

Second, if the argument was not waived, did the trial court abuse its discretion by

not exercising discretion to award fees upon finding Gibson intransigent. We

conclude that Davey did not waive her argument and that the trial court abused

its discretion by not recognizing or exercising its discretion.

Preservation of Argument

On appeal, Gibson asserts that Davey presents two novel arguments that

are barred by RAP 2.5(a): (1) that she was entitled to fees under the trial court’s

inherent authority to sanction bad faith conduct; and (2) that she was entitled to

fees for the unlawful detainer action because Gibson’s bad faith “permeated” the

proceedings. As to the second argument, Gibson claims that the trial court did

3 Though the trial court found earlier that fees were warranted under

CR 37 and RCW 4.84.185, it awarded fees under CR 41 after Gibson voluntarily dismissed his CIR claim. Under CR 41(a)(1)(B), the trial court retained jurisdiction for the limited purpose of considering Davey’s motion for fees.

5 No. 83099-6-I/6

not make a finding of bad faith in the unlawful detainer action. We first conclude

that while her briefing was not as clear as it might have been, Davey did make

the argument below and therefore preserved the issue for appeal. We also

conclude that the trial court made a clear finding of bad faith in the unlawful

detainer action because the cases were consolidated below.

1. Fees Under Trial Court’s Inherent Authority

An appellate court may refuse to hear any claim of error not raised at trial.

RAP 2.5(a); State v. O’Hara, 167 Wn.2d 91, 94, 217 P.3d 756 (2009). Here,

because of an ambiguous record, the point of contention is whether the error was

raised below.

In Davey’s post-trial motion for fees, she based her request on CR 11,

CR 37, RCW 4.84.185, and Gibson’s intransigence. She then detailed Gibson’s

various acts of intransigence and bad faith.4 When requesting fees because

Gibson’s misbehavior had forced her to make otherwise unnecessary discovery

motions, Davey cited both CR 37 and several cases that awarded fees based on

intransigence in discovery proceedings.

Though Davey’s motion did not unambiguously state that the fees

requested were based on Gibson’s intransigence, a brief review of the cases

4 Before litigation began, and in response to Davey’s request that he

vacate the condo, Gibson told Davey, “You’re going to burn every penny you have. I shall see to it.” During trial, while Davey testified she expended the majority of her assets in defending against the CIR action, Gibson blurted out “[s]weet!” At the end of trial, Gibson told Davey to “get ready to burn another hundred grand” as they left the courtroom. And after the trial court issued its final order, Gibson texted a friend stating he had “resources ro [sic] grind her [Davey] and her meager little position into dust.”

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cited makes clear that Davey sought an award of fees on that basis. See In re

Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992) (stating that

“[a] trial court may consider whether additional legal fees were caused by one

party’s intransigence and award attorney’s fees on that basis” and holding that

although the trial court did not make specific findings of intransigence, it correctly

awarded fees where respondent was forced to come to court to enforce her

dissolution decree); In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306

(2006) (vacating award of attorney fees where trial court did not provide sufficient

findings of fact or conclusions for appellate review of a fee award); Wixom v.

Wixom, 190 Wn. App. 719, 725, 360 P.3d 960 (2015) (finding that

noncompliance with discovery requests is a form of intransigence); State ex. rel.

Stout v. Stout, 89 Wn. App. 118, 126-27, 948 P.2d 851 (1997) (awarding fees

based on intransigence and finding intransigence based on refusal to answer

discovery requests). None of the intransigence cases cited by Davey awarded

fees pursuant to CR 37.

Moreover, the trial court clearly understood that Davey requested fees

based on intransigence because it noted as much in its April 2021 order on

Davey’s motion for fees: “The basis for the request for fees has been Ms. [sic]

Gibson’s intransigence which started when he filed his CIR claim within days of

the Unlawful Detainer Action.”

Because Davey presented her argument to the trial court and because the

trial court indicated an understanding of the basis of her request, she preserved

the issue for appeal. RAP 2.5 does not apply.

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2. Findings of Bad Faith

Gibson asserts that the trial court did not make any finding of bad faith in

the unlawful detainer action and therefore Davey cannot be awarded fees for

intransigence in that matter. Gibson is mistaken. The trial court made findings of

both bad faith and intransigence. The court found that “Gibson’s actions during

the pendency of the matters [sic] were nothing but harassment and

intransigence.”5 The court also stated that “Gibson’s intransigence … started

when he filed his CIR claim within days of the Unlawful Detainer action.”

Gibson’s claim that the trial court only found intransigence in the CIR

action is unsupported by the record. Soon after Gibson filed his CIR action, the

trial court consolidated the two cases into one matter, under one cause number,

to be governed by a single scheduling order. From that moment on, the matters

ceased being two separate cases and were fundamentally intertwined.

Discovery, mediation, and other proceedings were conducted as applying to both

causes of action. Thus, any future findings by the trial court applied equally to

both causes of action unless otherwise noted. None of the trial court’s findings of

fact specify whether there was intransigence in one cause of action and not the

other; the court found intransigence specifically throughout the “pendency of the

matters [sic].”

5 Throughout the case, the court referred to the matter as both the

“matters” and the “matter” interchangeably. Although there were two causes of action, this is properly considered a singular matter.

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Abuse of Discretion

Davey challenges the trial court’s decision to only award fees for

intransigence for the CIR cause of action but not in the unlawful detainer action

even though the court found that Gibson’s intransigence permeated both causes

of action. Davey contends the court erred by not recognizing and exercising its

discretion to award fees for Gibson’s intransigence in the unlawful detainer

action. We agree.

A trial court may award attorney fees in a civil action if the award is

authorized by statute, agreement of the parties, or a recognized equitable

ground. Greenlee, 65 Wn. App. at 707. A trial court also has the equitable

power to “consider whether additional legal fees were caused by one party’s

intransigence and award attorney’s fees on that basis.” Greenlee, 65 Wn. App.

at 708; Mattson v. Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999).

“Intransigence is the quality or state of being uncompromising.” Schumacher v.

Watson, 100 Wn. App. 208, 216, 997 P.2d 399 (2000). “Determining

intransigence is necessarily factual, but may involve foot-dragging, obstructing,

filing unnecessary or frivolous motions, refusing to cooperate with the opposing

party, noncompliance with discovery requests, and any other conduct that makes

the proceeding unduly difficult or costly.” Wixom, 190 Wn. App. at 725 (citing

Greenlee, 65 Wn. App. at 708). Though generally awarded in dissolution

proceedings, attorney fees for prelitigation and litigation bad faith conduct are

available in certain other proceedings. See, e.g., Dalton M, LLC v. N. Cascade

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Tr. Servs., Inc., 20 Wn. App. 2d 914, 947-48, 504 P.3d 834 (2022) (awarding

fees for intransigence in title action).

We review an attorney fee award for an abuse of discretion. In re

Marriage of Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002). “A trial court

abuses its discretion if its decision is based on untenable grounds or untenable

reasons.” In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P.3d 1101 (2011).

A failure to recognize authority and consider exercising discretion is an abuse of

discretion. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017).

The court entered several findings supporting its conclusion that Gibson

was intransigent. For instance, the trial court found that Gibson’s discovery

requests and motion to compel Davey to produce her financial records were

frivolous and in bad faith. It also found that Gibson’s actions during the

pendency of the matter were nothing but harassment and intransigence. And it

found that Gibson brought his CIR claim for the sole purpose of harassing Davey

and causing her to exhaust her financial resources in defending it. The court

concluded that fees were proper under RCW 4.84.185 and CR 37 because

Gibson’s CIR claim was “frivolous” and because Gibson’s intransigence

throughout the matter violated CR 37. Neither party challenges the trial court’s

findings on appeal, making them verities for the purposes of review. Metro. Park

Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986) (“An

unchallenged finding of fact is a verity on appeal.”).

Here, the trial court abused its discretion by failing to recognize it had the

discretion to award fees based on intransigence for both causes of action, not

10 No. 83099-6-I/11

just Gibson’s CIR action. Davey requested fees for both causes. In its order on

that motion, the trial court recognized that the basis for Davey’s fee request was

Gibson’s intransigence. The court found that Gibson was intransigent throughout

the “matters [sic].” It even cited case law holding that courts have discretion to

award fees for intransigence.6 Yet the court only awarded Davey fees for

Gibson’s intransigence in the CIR matter. It reasoned that Davey did not provide

authority for a fee award under the common law rule of tenancy at will and

declined to award fees based on unlawful detainer or tenancy at will.

The court apparently believed it did not have the authority to award fees

for the entirety of the litigation based on Gibson’s intransigence. Based on its

own findings and because the CIR action was intrinsically wedded to the unlawful

detainer action, the court had authority to award fees for the entirety of the

matter.7 The failure to recognize that discretion was error.

6 The court cited Wixom, 190 Wn. App. at 725 (discussed above and cited

by Davey); Bobbitt, 135 Wn. App. at 30 (discussed above and cited by Davey); In re Marriage of Wallace, 11 Wn. App. 697, 710, 45 P.3d 1131 (2002), review denied, 148 Wn.2d 1011 (2003) (stating that intransigence includes litigious behavior, bringing excessive motions, or discovery abuses); and Gamache v. Gamache, 66 Wn.2d 822, 829-30, 409 P.2d 859 (1965) (finding that pursuing meritless appeals for the purpose of delay and expense is intransigence). 7 We note that a CIR action is analogous to a dissolution proceeding and

therefore, fees for intransigence are proper. Moreover, under Dalton M, fees for prelitigation and litigation bad faith conduct are proper in cases other than dissolution proceedings. 20 Wn. App. 2d 914, 947, 504 P.3d 834 (2022) (“Language from this court’s opinions in marital dissolution appeals confirms the availability of reasonable attorney fees for both prelitigation and litigation bad faith conduct.”). Thus, a court award may be justified on a recognized equitable ground based on one party’s intransigence which forced the other to go to court to obtain relief. Dalton M, 20 Wn. App. 2d. at 947-48.

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Attorney Fees

Davey requests attorney fees on appeal. RAP 18.1(b) provides this court

authority to award reasonable attorney fees where applicable law permits.

Davey asserts that the same bases for fees at the trial court apply here. But the

bases for the fee award below was Gibson’s intransigence, RCW 4.84.185, and

CR 37. Davey does not argue that Gibson is intransigent on appeal nor does

she argue that RCW 4.84 or CR 37 apply. We deny her request for fees on

appeal.

We reverse and remand for the trial court to consider Davey’s request for

an award of attorney fees for the entire matter in light of its inherent authority to

award fees for intransigence.

WE CONCUR: