Patricia Guertin v. James Young And Carolyn Tooley-young ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES YOUNG and CAROLYN ) No. 79549-0-I
TOOLEY-YOUNG, Husband and Wife, )
) DIVISION ONE
Respondents/Cross Defendants, )
)
v. )
)
PATRICIA GUERTIN, a single woman, ) UNPUBLISHED OPINION
)
Appellant/Cross Plaintiff, )
)
PAUL COLVIN, a single man, )
)
Defendant/Cross Plaintiff. )
PER CURIAM — Patricia Guertin appeals the trial court’s denial of her
motion to reconsider an order and judgment for attorney fees and costs. The
court dismissed her claims against her neighbors James Young and Carolyn
Tooley-Young (the Youngs) and awarded them attorney fees and costs, but the
court did not determine the amount until months later when the Youngs brought a
motion to enter an order and judgment of attorney fees and costs “in Sum
Certain.” Because Guertin’s motion to reconsider did not comply with the time
limits of CR 59(b) and the trial court properly considered the Youngs’ motion to
determine the amount of fees, the trial court did not abuse its discretion in
denying Guertin’s motion for reconsideration. Accordingly, we affirm.
Citations and pin cites are based on the Westlaw online version of the cited material.
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FACTS
This appeal follows several years of litigation pursued by Guertin and her
partner Paul Colvin against their neighbors the Youngs, who own property
adjacent to theirs. The dispute began in July 2011 when Colvin filed a complaint
claiming adverse possession of certain portions of the Youngs’ property.1 In
2012, the parties reached a settlement, agreeing to release all claims relating to
or arising from these properties that were brought or could have been brought in
the lawsuit. The settlement agreement provided for attorney fees and costs to
the prevailing party in any action arising out the settlement agreement.
Two years later in December 2014, Colvin filed a complaint in federal
court, seeking declaratory relief relating to the boundary line adjustment around
the property that was the subject of the adverse possession claims; and alleging,
among other things, breach of the settlement agreement, nuisance, and
trespass. The federal court dismissed the complaint on summary judgment in
July 2015.
In October 2015, the Youngs sued Colvin and Guertin in Snohomish
County Superior Court for breach of the settlement agreement, seeking damages
and attorney fees and costs. Colvin and Guertin asserted counterclaims of
breach of contract, intentional infliction of emotional distress, nuisance, trespass,
and timber trespass.
1Guertin and Colvin also brought claims against the former owner of their property, which
were dismissed on summary judgment. See Colvin v. Young, No. 69051-5-I (Wash. Ct. App. Apr.
21, 2014) (unpublished), http://www.courts.wa.gov/opinions/pdf/690515.pdf (affirming dismissal).
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In March 2016, the court granted the Youngs’ motion for partial summary
judgment, finding that Colvin and Guertin breached the settlement agreement
and were liable for damages proximately caused by their breach. The court
ordered that judgment would be entered for damages and for an award of
attorney fees “upon proper presentation.” In April 2017, the court granted the
Youngs’ motion for partial summary judgment as to damages and attorney fees.
The court entered judgment against Colvin and Guertin for $5,000.00 in damages
and $35,806.40 in attorney fees and costs. This judgment provided that
“Plaintiffs may apply for an award of attorney’s fees and costs incurred in this
action subsequent to the Motion for Summary Judgment.” Colvin’s and Guertin’s
motions for reconsideration and discretionary review were denied, as were their
motions for revision of other court orders.
In August 2017, the court dismissed Colvin’s and Guertin’s counterclaims
on summary judgment except for their breach of contract claims. A trial date on
the remaining claims was set for June 11, 2018. On the day of trial, Colvin
appeared pro se and asked for a continuance, claiming his recent bankruptcy
filing created an automatic stay of the trial, he no longer had counsel, and he was
not prepared to proceed to trial. Guertin did not appear. The court found that
there was no legal basis to stay the trial, that all parties had ample notice of the
trial date, and that there was no good cause for delay. When Colvin refused to
proceed with trial, the court dismissed the counterclaims with prejudice and
awarded the Youngs attorney fees and costs as the prevailing party, the amount
of which “to be determined upon proper presentation.” The court denied Colvin’s
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motion for reconsideration on August 1, 2018. On August 23, 2018, the court
also denied Colvin’s and Guertin’s motions to preclude the Youngs from
executing on the April 2017 judgment, imposing sanctions on Colvin and Guertin
for filing frivolous motions.
On October 22, 2018, the Youngs brought a “Motion for Order and
Judgment of Attorney’s Fees and Costs in Sum Certain” against Guertin, seeking
fees incurred in defending against Colvin’s and Guertin’s contract-based
counterclaims. In support of the motion, the Youngs’ attorney submitted a fee
affidavit referring to the court’s June 11, 2018 dismissal order awarding fees and
costs in an “amount to be determined upon proper presentation” and an itemized
statement of fees and costs, totaling $46,512.50 in fees and $1,440.83 in costs.
Guertin moved to dismiss the motion, claiming it was time barred by CR 54(d)(2)
because it was filed more than 10 days after the judgment was entered.
On November 2, 2018, the court entered an order and judgment for
attorney fees and costs totaling $47,953.33 and denied Guertin’s motion to
dismiss. On November 13, 2018, Guertin filed a motion for reconsideration of the
order and a hearing date was set for January 11, 2019. She asserted that the
court’s ruling was a “mistake of law,” claiming again that the court improperly
considered the Youngs’ motion because it was not filed within 10 days of the
order dismissing her remaining counterclaims. On January 11, 2019, the court
denied the motion to reconsider as untimely and awarded the Youngs $1,000.00
in additional attorney fees for time spent responding to the motion.
Guertin appeals.
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ANALYSIS
We first address the Youngs’ claim that the appeal is untimely. The
Youngs note that Guertin’s brief is titled, “Motion for General Review” and
contend that to the extent she seeks “general review” of the case, including the
final judgment entered on June 11, 2018, her appeal is untimely and should be
dismissed. Guertin’s notice of appeal seeks review of only the January 11, 2019
order denying her motion for reconsideration. Guertin filed her notice of appeal
within 30 days of the order appealed in compliance with time limits in RAP 5.2(a).
Her appeal of that order is therefore timely.
Guertin contends that the trial court erred in denying her motion for
reconsideration under CR 59(b) and in considering the Youngs’ motion for
attorney fees and costs when their motion was filed more than 10 days after the
order of dismissal. We disagree with both arguments.
The trial court did not abuse its discretion in refusing to grant
reconsideration under CR 59(b). “Motions for reconsideration are addressed to
the sound discretion of the trial court” and we will not reverse the trial court’s
ruling absent a showing of manifest abuse of discretion. Wilcox v. Lexington Eye
Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005). “A trial court abuses
discretion when its decision is based on untenable grounds or reasons.” Wilcox,
130 Wn. App. at 241.
Guertin claims the trial court abused its discretion by denying her motion
to reconsider as untimely. She asserts that she complied with CR 59(b) because
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she filed her motion on November 13, 2018, which was within 10 days of the
November 2, 2018 order, excluding the Veterans Day holiday on November 12.
CR 59(b) addresses the time for filing and contents of a motion for
reconsideration:
A motion for a new trial or for reconsideration shall be filed not later
than 10 days after the entry of the judgment, order, or other
decision. The motion shall be noted at the time it is filed, to be
heard or otherwise considered within 30 days after the entry of the
judgment, order, or other decision, unless the court directs
otherwise.
Guertin filed her motion to reconsider on November 13, 2018, which would
have been within the 10 days under CR 6(a) in light of the November 12 holiday.
But the record suggests Guertin did not properly note her motion for
reconsideration. There is no note for the motion in the record on appeal. The
only reference in the record to a note for the motion is in a letter from Guertin to
Snohomish County Commissioner Tracy Waggoner filed on December 14, 2018,
which refers to “my Motion for Reconsideration filing of 15-2-06641-1 previously
noted for December 4, 2018 hearing” and to communication from the clerk’s
office “regarding my December 11, 2018 hearing.” The December 14 letter
states, in part:
In response to a request by the clerk’s office this past Monday
regarding my December 11, 2018 hearing that because I used the
wrong Calendar Note Form (Superior Court not Commissioner),
didn’t designate the judge who was supposed to hear the motion,
and that I had put down the wrong date of Plaintiff’s original motion
hearing I was requesting reconsideration of (there was no June 11,
2018 motion filed by Plaintiffs under the title given, it was
November 2, 2018) I caused some confusion as [to] which court
and judge my motion was supposed to be heard by. Therefore, I
am renoting my hearing for my Motion to Reconsider using the
proper Commissioner Hearing Form designating yourself as the
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proper Commissioner and filing an Amended Motion with the date
clarification.
Guertin then filed an “Amended” motion and declaration on December 14, 2018
and again on January 3, 2019. Apparently, she filed the correct note for motion
with only the January 3 set of pleadings because the court calendared the motion
to be decided without oral argument on January 11, 2019. The court denied the
motion as untimely.
Even if Guertin originally filed her motion within 10 days of the November
2, 2018 order as she asserts, the record demonstrates that she failed to note the
motion properly for a hearing within 30 days of the order in compliance with CR
59(b). At best, according to her December 14 letter, she improperly noted the
motion for a hearing on either December 4 or December 11. Both dates were
more than 30 days from the entry of the order.2 Additionally, there is nothing in
the record showing that she noted the motion for a hearing at the time she filed
her motion on November 13 as required by the rule. CR 59(b) provides that
“[t]he motion shall be noted at the time it is filed.” (Emphasis added.) In any
event, as indicated in her December 14 letter to Commissioner Waggoner, her
initial attempt to note the motion was not successful and a hearing was not set
until January 11, 2019, well over 30 days from entry of the order of which she
sought reconsideration. The trial court did not abuse its discretion by finding that
her motion was untimely.
2 Thirty days from entry of the order was December 2, 2018, which was a Sunday. Thus,
the motion should have been noted for an available hearing date before then.
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Moreover, even if timely, her motion to reconsider was without merit. The
trial court properly considered the Youngs’ motion for an order and judgment of
attorney fees and costs “in Sum Certain.”
The trial court’s application of a court rule is a question of law we review
de novo. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001); Kim v.
Pham, 95 Wn. App. 439, 441, 975 P.2d 544, review denied, 139 Wn.2d 1009,
994 P.2d 844 (1999). CR 54(d)(2) does not prohibit the court from considering a
motion to determine the amount of attorney fees filed more than 10 days after the
court enters an order of dismissal when the court previously determined that the
party was entitled to an award attorney fees. CR 54(d)(2) provides:
Attorneys’ Fees and Expenses. Claims for attorneys’ fees and
expenses, other than costs and disbursements, shall be made by
motion unless the substantive law governing the action provides for
the recovery of such fees and expenses as an element of damages
to be proved at trial. Unless otherwise provided by statute or order
of the court, the motion must be filed no later than 10 days after
entry of judgment.
A “[c]laim[ ]” for attorney fees within the meaning of CR 54(d)(2) is a
request for a ruling on that party’s entitlement to an award of fees. In North
Coast Electric Co. v. Signal Electric, Inc., 193 Wn. App. 566, 569-70, 373 P.3d
296 (2016), North Coast filed a summary judgment motion in which it requested
an award of attorney fees but did not submit a declaration from counsel detailing
a specific amount sought. Several months after the court granted its summary
judgment motion, counsel for North Coast filed a motion for an award of attorney
fees with a declaration and documents supporting its calculation of fees. Id. at
570. The opposing party contended the motion was untimely under CR 54(d).
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Id. at 570. This court disagreed, holding that under CR 54(d), the motion must
be made “ ‘no later than 10 days after entry of judgment,’ ” not “within 10 days of
entry of judgment.” Id. at 573 (quoting CR 54(d)(2)). Because North Coast had
claimed an entitlement to attorney fees in its summary judgment motion, the
court concluded that “[n]othing in the text of CR 54 suggests that the substance
of North Coast’s motion, or the manner in which it was submitted, is incongruent
with the requirements set forth in CR 54(d)(2).” Id. at 573.
This case is analogous. Here, the Youngs sought and the trial court
granted their request for attorney fees on at least three different occasions—in
March 2016, in April 2017, and again in June 2018—before dismissing Guertin’s
counterclaims when she failed to appear for trial. As in North Coast, the Youngs’
subsequent motion for a specific dollar amount of attorney fees did not need to
relitigate their entitlement to fees as the prevailing party—that determination had
already been made. Thus, the motion was not subject to the 10-day limit of CR
54(d). The trial court did not err in awarding attorney fees to the Youngs.
Accordingly, Guertin’s motion for reconsideration was without legal merit and the
trial court did not abuse its discretion by denying it.
The Youngs request attorney fees under RAP 18.1(a) based on the
attorney fee provision in the 2012 settlement agreement. Neither the settlement
agreement nor the counterclaim pleadings out of which this litigation arose have
been designated on appeal.3 Thus, we cannot ascertain the basis for the
attorney fees request. Accordingly, we deny the Youngs’ request for fees.
3 Guertin appended a copy of the settlement agreement to her brief but did not designate
it as part of the clerk’s papers. See RAP 9.1, 9.6.
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We affirm the trial court’s denial of Guertin’s motion to reconsider the
order and judgment for attorney fees and costs.
WE CONCUR:
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